JULY 2022 UPDATE FOR MEYER’S K9 LAW (Vol. 3, No. 7)

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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from June 2022. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.)

As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.

This month, I have included an article on curtilage and how it affects the decision to deploy a K9. Please give it a read and please let me know if you have questions, comment and/or concerns.

Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has a review of the K9 relevant cases for the month, and often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.

(Disclaimer: I do not represent any individuals, handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)



A medical cannabis patient urged the U.S. Supreme Court to take up her appeal challenging whether federal drug policy preempts state cannabis laws and to reject the “unusually weak arguments” put forth by the U.S. Department of Justice. The court is in summer recess now so it will be awhile until there is an answer to this request.


The Iowa Supreme Court has upheld the conviction of a woman for possession of marijuana, saying her Arizona Patient Medical Marijuana Registry Identification Card was not a prescription or order that would allow her to carry the drug in Iowa, so evidence about the card was rightly excluded from her trial.

The North Carolina Senate recently approved a bill legalizing medical marijuana. This bill is still in discussion in the House.

In Louisiana, the Governor signed House Bill 629 which prohibits law enforcement from conducting a search of a person’s residence based on the odor of marijuana without first obtaining a warrant. This means that the Colorado/California arguments on alerts from K9s trained on marijuana possibly will no longer means that LE has probable cause to search and arrest.

Additional bills have passed to the Governor’s desk: House Bill 135 and House Bill 137 seek to provide reciprocity for patients within the state’s medical cannabis program. HB 135 permits the dispensing of medical marijuana to certain qualifying patients who are not Louisiana residents, and HB 137 ensures that those individuals have immunity from prosecution for the purchase and possession of medical marijuana.

In Delaware, House Bill 371 would remove all criminal penalties for the possession of up to one ounce of marijuana for adults. Possession above this limit and the public consumption of marijuana would still be classified as a misdemeanor. This legislation would also allow for adults to transfer cannabis among themselves within the possession limits and without remuneration. This bill passed both houses of the legislature but the Governor vetoed it. The Legislature did not vote to overturn the Governor’s veto.

New Hampshire lawmakers nixed two bills to create a regulated adult-use cannabis regime.

In South Dakota, the campaign to legalize adult-use cannabis applauded voters’ resounding rejection of a proposed constitutional amendment that could have made future ballot initiatives more difficult to pass.

The Texas Supreme Court upheld a state ban on the manufacture and processing of smokable forms of non-psychoactive hemp, finding that the hemp purveyors who challenged the law did not have a constitutionally protected interest affected by the ban.



(Disclaimer: This article is the opinion of the author and is not legal advice. The author does not represent any agencies or law enforcement (LE) officers. Each LE officer should check with his/her own attorneys and/or local prosecutor for legal advice.)

Curtilage is an ancient concept which maintains a person’s home is inviolate. This concept is enshrined in the Fourth Amendment of the U.S. Constitution. It provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment has “undoubtedly occurred.” United States v. Jones (2012) 565 U.S. 400, 406-407, n. 3.

The analysis over the years regarding curtilage has changed over the years. In Katz v. U.S. (1967) 389 U.S. 347, LE bugged a pay telephone booth that suspect was known to use in his nefarious dealings. In suspect’s subsequent trial, the Government introduced transcripts of those calls. Katz objected that those transcripts violated the Fourth Amendment.

The U.S. Supreme Court (USSC) stated in Katz: “[W]e have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any “technical trespass under . . . local property law.”” Silverman v. United States (1961) 365 U.S. 505, 511. Therefore, the court concluded that the right to privacy under the Fourth Amendment was not dependent on a trespass violation. Instead, this inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraced two discrete questions: first, has the individual manifested a subjective expectation of in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? In Katz, the court held that suspect chose to occupy a phone booth, shut the door behind him, and paid the toll that permits suspect to assume” that his conversation is not being intercepted. The point is not that the booth is “accessible to the public” at other times, but that it is a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.” Katz, supra, 361. Therefore, the statements made by suspect in the telephone booth were protected by the Fourth Amendment and, since they were obtained without a warrant, they were inadmissible.

So how is this relevant to K9 teams? K9 teams can run into issues when a sniff occurs in or near the curtilage. Therefore, in the curtilage, a K9 team must either have permission or some other legal reason for being present. In Florida v. Jardines (2013) 569 U.S. 1, LE brought a qualified and well-trained drug detection K9 onto the porch of the residence and the K9 alerted to the front door. LE then used that positive alert in a search warrant for Jardines’ home. At trial, Jardines moved to exclude any evidence taken under the authority of the search warrant, the probable cause of which was at least partially the positive alert by the K9.

The court first held that the porch of the house was clearly curtilage; the area immediately surrounding and associated with the home and an area “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” California v. Ciraolo (1986) 476 U.S. 207, 213.

The court then went on to discuss whether it was accomplished through an unlicensed (without consent or authority) physical intrusion. LE can look at curtilage areas when on public property or when invited into private property or even from an overflight (such as in Ciraolo, supra), or if there is an implied license for someone to be on a front porch. The USSC has recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Breard v. Alexandria (1952) 341 U.S. 622, 626. This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King (2011) 563 U.S. 452, 469.

But, the court held that introducing a trained drug detection K9 to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to–well, call the police. The scope of a license–express or implied–is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search and therefore the actions of LE in Jardines amounted to a search in a violation of the Fourth Amendment and therefore illegal.

Then we have the apartment/motel cases. These cases go back and forth over specific details (was the hallway accessible to the public? Did the K9 sniff the door/threshold and not the free air space around it, did LE have permission to be in the hallway, was an apartment different than a motel room, etc.). For example, US v. Whitaker (2016) 820 F.3d 849 holding that LE engaged in a warrantless search within the meaning of the Fourth Amendment when they had a drug-sniffing dog come to the door of the apartment and search for the scent of illegal drugs). The upshot of the cases in the Circuits is that one must apply the federal standard set out in Katz, supra.

The USSC revisited curtilage in 2018 in Collins v. Virginia (2018) 138 S. Ct. 1663. In this case, LE was investigating two traffic accidents involving a motorcycle. LE drove to a house, suspecting the motorcycle would be there. Sure enough, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph. Without a search warrant, LE walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for the motorcycle driver. Once he arrived, LE arrested him.

Collins complained that LE violated curtilage when LE approached the motorcycle and moved the tarp. Collins moved to have the evidence of the motorcycle suppressed. Because the motorcycle was parked inside a partially enclosed top portion of the driveway that abuts the house, just like the front porch, side garden, or area “outside the front window,” that enclosure constitutes “an area adjacent to the home and ‘to which the activity of home life extends. The automobile exception did not justify LE’s violation of the curtilage.

The Seventh Circuit recently dealt with this issue in U.S. v. Lewis (2022) 2022 U.S. App. LEXIS 17047. Here, an ongoing investigation against Lewis led LE to a motel where they saw someone who looked like Lewis’ wife drive up in a car registered to Lewis and watched her bring a duffle bag into a room where LE thought Lewis might be. She left about 5 minutes later. LE approached the room and knocked on the door. There was no answer, so a K9 team walked up the stairs and along the hallway where the room LE thought Lewis was located. The K9 alerted at Lewis’ room. LE applied for and got a search warrant for the room. When executed, contraband was found.

Lewis complained that the use of a K9 outside his hotel room constituted a search and pointed to Whitaker, supra. However, the court did not conclude in Whitaker that the area outside the defendant’s apartment door amounted to curtilage. Instead, the court drew upon Justice Kagan’s concurring opinion in Jardines and reasoned that apartment residents have a reasonable expectation of privacy in the area outside their doors.

The Lewis court then approached the case in two ways; the property-based approach and the privacy-based approach. Under the property-based approach, the court held that the key question under the property-based approach is whether the area outside Lewis’s hotel room door was constitutionally protected. Jardines, 569 U.S. at 6. This hallway of this particular hotel was open-air and accessible via an exterior staircase that led directly to a parking lot. Unlike the homeowner in Jardines, Lewis lacked the right to exclude members of the public from passing through the exterior hallway. And as noted above, the Whitaker court did not even conclude that the interior hallway of an apartment building amounts to curtilage. Whitaker, 820 F.3d at 853. The exterior hallway of the Red Roof Inn is even farther afield from a front porch than an interior apartment hallway, so there was no search under the property-based approach.

The court then moved onto a privacy-based approach. The court applied Justice Harlan’s formulation of that approach and asks (1) whether “a person [has] exhibited an actual (subjective) expectation of privacy,” and (2) whether “the expectation [is] one that society is prepared to recognize as ‘reasonable.'” Katz, 389 U.S. at 361 (Harlan, J., concurring). Even assuming that Lewis had a subjective expectation of privacy, the Supreme Court’s decisions in Caballes (US v. Caballes (2005) 543 US 405 – free air sniff of a vehicle only revealed possession of contraband in which no one has a right to privacy) and Place (US v. Place (1983) 462 US 696 – free air sniff of luggage at airport) demonstrate that his expectation was not reasonable. The court held that while there is a reasonable expectation of privacy in the rented room, the exterior hallway of this hotel adjacent to a parking lot is much closer to the public settings in Caballes and Place than the front porch in Jardines. Lewis was also a mere guest, not a resident. While it is true that hotel guests have some legitimate expectations of privacy, they cannot exclude others from entering a hallway—particularly where, as here, an exterior hallway is accessible from a staircase leading directly to the parking lot. Indeed, the US Supreme Court in Stoner (Stoner v. California (1964) 376 U.S. 483, 490 – recognized that “when a person engages a hotel room he undoubtedly gives implied or express permission to such persons as maids, janitors or repairmen to enter his room in the performance of their duties.”) If hotel guests have only a limited right to exclude hotel staff from a room, then it was hard for the court to see how guests at the Red Roof Inn could reasonably expect to be free of K9 sniffs in the exterior hallway.

This was a Seventh Circuit case, so it is only persuasive authority in other Circuits. But it is instructive nonetheless. At this point in time, it appears the Katz two step analysis is the appropriate analysis. LE should apply the inquiry as outlined in Katz: 1) has the individual manifested a subjective expectation of in the object of the challenged search? and 2) is society willing to recognize that expectation as reasonable?

So, moving forward, when and where can your K9 legally sniff if you are getting close to the curtilage and the no-go zone? What if LE got a “sniff” warrant from a judge which allowed the K9 to sniff the door seam or other part of curtilage? Nothing prevents this and you would already have a finding of probable cause by a magistrate and the benefits of a warrant in court. In the right circumstances, this may just work. Please let me know how you have handled curtilage cases and/or gotten a “sniff” warrant.

Note: Don’t let the courts’ use of sniff and search interchangeably throw you (generally, K9s sniff: people search). The Courts don’t really discuss this specifically, but it is clear from their opinions that a sniff only becomes a search when the Fourth Amendment is violated.


State v. Huntley (Idaho 2022) 2022 Ida. LEXIS 75 – Detention Stop; Prolonged Detention

State v. Smart (New Jersey 2022) 2022 N.J. Super. LEXIS 98 – Traffic Stop; K9 Alert as Probable Cause; Unforeseeable and Spontaneous Circumstances

People v. Lopez (Colorado 2022) 2022 COA 70 – Traffic Stop; K9 Sniff Not Supported by Probable Cause; Legalized Marijuana; Good Faith Exception

State v. Juneau (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 394 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause

State v. Haley (Ohio 2022) 2022-Ohio-2188 – Traffic Stop; Prolonged Detention

Bewley v. Turpin (Indiana 2022) 2022 U.S. Dist. LEXIS 113498 – Excessive Force; Failure to Warn; Accidental Bite; Qualified Immunity; Monell Liability

People v. Sung Min Yim (California 2022) 2022 Cal. App. Unpub. LEXIS 4047 – Odor of Marijuana as Probable Cause

Martinez v. Jenneiahn (Colorado 2022) 2022 U.S. Dist. LEXIS 108765 – Excessive Force; Qualified Immunity; Bystander Liability

United States v. Bodnar (Connecticut 2022) 2022 U.S. App. LEXIS 17035 – Aviation Ramp Check; Alert as Probable Cause; Prolonged Detention; Vehicle Exception to a Search Warrant

United States v. Lewis (Indiana 2022) 2022 U.S. App. LEXIS 17047 – Curtilage; Alert as Probable Cause

Powers v. State (Indiana 2022) 2022 Ind. App. LEXIS 209 – Traffic Stop; Prolonged Detention

Commonwealth v. Branch (Virginia 2022) 2022 Va. App. LEXIS 245 – Traffic Stop; Marijuana as Probable Cause; Prolonged Detention

People v. Boyd (New York 2022) 2022 N.Y. App. Div. LEXIS 3970 – Traffic Stop; Odor of Marijuana as Probable Cause

Hamilton v. Franklin (Tennessee 2022) 2022 U.S. Dist. LEXIS 111346 – Traffic Stop; Prolonged Detention; Qualified Immunity

United States v. Escobar-Lopez (Puerto Rico 2022) 2022 U.S. Dist. LEXIS 111439 – Stop at an Airport; Consensual Encounter; Consent; Foundation Reliability

United States v. Carter (Louisiana 2022) 2022 U.S. Dist. LEXIS 111733 – Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

State v. Burke (Ohio 2022) 2022-Ohio-2166 – Traffic Stop; Prolonged Detention; Odor (and Presence) of Marijuana as Probable Cause; Reliability Foundation

State v. Riley (Idaho) 2022 Ida. LEXIS 67 – Traffic Stop; Prolonged Detention

United States v. Overton (Indiana 2022) 2022 U.S. App. LEXIS 16158 – Traffic Stop; Prolonged Detention; K9 Entry into Vehicle; Inevitable Discovery

State v. Sumler (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 1060 – Traffic Stop; Alert as Probable Cause; Prolonged Detention

Frank v. City of Lake Charles (Louisiana 2022) 2022 U.S. Dist. LEXIS 107225 – Traffic Stop; Qualified Immunity; Monell Liability

State v. Bazzill (Arizona 2022) 2022 Ariz. App. Unpub. LEXIS 510 – Traffic Stop; Odor of Marijuana as Probable Cause

White v. City of Detroit (Michigan 2022) 2022 U.S. App. LEXIS 16876 – Civilian Dog Attack; Qualified Immunity

State v. Milner (Delaware 2022) 2022 Del. Super. LEXIS 241 – Traffic Stop; Odor of Marijuana as Probable Cause;

United States v. Griffin (Michigan 2022) 2022 U.S. Dist. LEXIS 102815 – Traffic Stop; Prolonged Detention; Foundation Reliability

United States v. Muhammad (Minnesota 2022) 2022 U.S. App. LEXIS (Unpub.) – Traffic Stop; Odor of Marijuana as Probable Cause

Dumond v. State (Arkansas 2022) 2022 Ark. App. 292 – Traffic Stop; Prolonged Detention

United States v. Stamper (North Carolina 2022) 2022 U.S. Dist. LEXIS 98311 – Traffic Stop; Prolonged Detention

United States v. Hylton (9th Cir. Nevada 2022) 30 F. 4th 842 – Traffic Stop; Prolonged Detention; Inevitable Discovery


State v. Huntley (Idaho 2022) 2022 Ida. LEXIS 75
Detention Stop; Prolonged Detention

Huntley was the subject of a drug trafficking investigation which was based on tips from a confidential informant. This informant was in LE’s database as reliable. The confidential reliable informant (CRI) also gave LE a description of Huntley’s car. The CRI’s information was confirmed via LE databases. Over the course of a few days, the CRI told LE that Huntley was buying and selling methamphetamine out of his house and car. LE surveilled Huntley’s home and saw him getting into the described vehicle with a child and a couple of bags. LE followed Huntley until he parked. At that point, LE believed that they had probable cause to arrest Huntley for drug trafficking.

While the other two detectives informed Huntley of their drug investigation against him, and read Huntley his Miranda rights, another detective called for a drug-detection K9. After making his call, LE approached Huntley and asked him if he was in possession of any illegal drugs and whether he would consent to a search. Huntley responded no to both questions. After this, the 3 detectives, and Huntley, waited for approximately fifteen minutes before the drug-detection K9 arrived and conducted an exterior sniff of Huntley’s vehicle. The K9 alerted and detectives used that information to obtain a warrant to search the vehicle. During the subsequent search of the vehicle, a large amount of methamphetamine.

The trial court granted a motion to suppress, stating that the “stop” was not supported by reasonable suspicion and the “stop” was improperly prolonged in waiting for the K9. The government appealed.

The appellate court had a different take on this case. The government argued that the “stop” was for drug trafficking and LE never wavered from this investigation. Waiting for the K9 was based on the investigation was one of drug trafficking. The appellate court held that, for the reasons below, the CI’s tips, in combination with the detectives’ partial corroboration, supplied reasonable suspicion to stop Huntley and investigate him for illegal drug possession and trafficking. The court also held that Huntley’s stop was not unlawfully prolonged.

The appellate court stated that the trial court’s totality analysis erred in two major respects. It improperly required corroboration of the tip before treating it as reliable (contrary to Bishop‘s known citizen-informant presumption); and it mistook the standard required for reasonable suspicion with that of probable cause.

The appellate court first held that the CRI was a known citizen informant and under Idaho law, a CRI’s tips are reliable. Second, LE only needed reasonable suspicion to detain Huntley and request a K9, not probable cause.

The CI was a known, paid, confidential informant who had supplied reliable information to LE in the past. Thus, the court starts with the presumption that the CRI’s tips as to Huntley were reliable. Nevertheless, the court must look at the totality of the circumstances before reaching a conclusion as to whether reasonable suspicion existed to stop Huntley.

To begin, the CRI’s accumulated tips include the following information. In early August 2019, the CRI reported Huntley was “involved in the sales of methamphetamine and trafficking methamphetamines” from Washington into Idaho. The CRI supplied Huntley’s apartment address and reported that he had seen Huntley driving a blue station wagon. LE testified the CRI also reported “Huntley takes his drugs with him when he leaves [his] apartment.” The CRI reported that on August 8, 2019, (the night before the stop) Huntley had left the Lewiston-Clarkston area of Idaho and was believed to be picking up methamphetamine in Washington. Finally, later that same night, the CRI reported personally observing Huntley “in possession of several ounces of methamphetamine” in Lewiston, Idaho. Contrary to Huntley’s arguments on appeal, these tips—taken together—are not innocuous.

That said, the CRI’s basis of knowledge for the above information is not entirely accounted for in the record. The CRI reported personal knowledge of Huntley’s blue station wagon and that Huntley was in possession of several ounces of methamphetamine in Lewiston, Idaho (the night before the stop). However, on both direct and cross examination, LE could not recall how the CRI came about the rest of the above information. Thus, the “basis of knowledge” factor contributes to the presumed reliability of the CRI’s tip yet detracts from it at the same time, i.e., the factor is a wash.

Next, only a minimal part of the information provided by the CRI was subject to immediate confirmation or corroboration (e.g., Huntley’s address). Furthermore, none of the information provided by the CRI was predictive in any strict sense. For example, when the CRI called LE the night before the stop and reported seeing Huntley with “several ounces” of methamphetamine, the CRI did not provide information predicting exactly where Huntley would be at a particular place, or time, with that methamphetamine.

Nevertheless, any defects in establishing reasonable suspicion based on the tips alone were cured when LE independently corroborated parts of the CRI’s tips. For example, prior to the stop, LE confirmed that Huntley’s registered residence matched the address the CRI supplied. LE also witnessed Huntley exit the apartment complex at that same address and enter a blue station wagon. This corroborated Huntley’s vehicle and suspected location. Furthermore, LE witnessed Huntley leave his apartment carrying, among other things, a large silver case and placing it inside his vehicle before driving away. This is significant because the CRI had reported seeing Huntley in possession of several ounces of methamphetamine the immediate night before. The CRI had also informed LE earlier in August that Huntley takes his “drugs” with him when he leaves his apartment. Thus, a person of reasonable caution would be warranted in the belief that the large silver case, taken from Huntley’s apartment into his vehicle, may contain the several ounces of methamphetamine the CRI witnessed the night before.

Therefore, the appellate court held that, based on the totality of the circumstances, including the CRI’s tips, that the stop was supported by reasonable suspicion. The district court’s decision to the contrary is reversed. Because of this, it was unnecessary for the court to discuss the State’s alternative argument that the CRI’s tips alone were enough to supply reasonable suspicion for the stop.

The court then addressed whether the stop was not unlawfully extended because LE never deviated from the original purpose of the stop. Here, the purpose of the stop was to investigate Huntley for possession and trafficking of methamphetamine. LE diligently pursued the purpose of the stop and did not deviate from the stop’s original purpose at any point. Moreover, the fifteen-minute wait for the drug-detection dog was related to the purpose of the stop and lasted no longer than necessary to dispel or affirm the reasonable suspicion that Huntley possessed and was trafficking illicit drugs.

Note: While both courts referred to the contact as a stop, it wasn’t really a traffic stop, given that Huntley was already parked and the purpose of the contact was to investigate whether Huntley was involved in drug trafficking. Since that was the stated reason for the contact, and LE had information that rose to the level of reasonable suspicion for drug trafficking, calling and waiting 15 for a K9 was also reasonable.

Not sure why they sought a warrant for the car since Idaho does recognize the automobile exception. Perhaps they just wanted to dot all the I’s and cross all the T’s. A search warrant is never a bad thing; if LE wants to get one, the prosecution should be perfectly happy that they sought a warrant because that shifts the burden of proof to the defendant to prove the search warrant did not state probable cause.

State v. Smart (New Jersey 2022) 2022 N.J. Super. LEXIS 98
Traffic Stop; K9 Alert as Probable Cause; Unforeseeable and Spontaneous Circumstances

LE was conducting surveillance on a condominium complex which was known as a high crime area, which included drug trafficking. LE noticed an unoccupied white 2017 GMC Terrain vehicle with tinted front windows parked in the complex’s lot. The vehicle bore Georgia registration; a Carvana license plate frame was affixed to its front end. LE knew from a CI that a dealer called “Killer” had a very similar car. CI had given LE a photo and LE matched that photo to that GMC. A physical description of Killer and his history according to the CI matched LE’s database information.

A woman and Smart got into the GMC with the woman as the driver. The GMC was tailed to the bank and a restaurant and LE found nothing suspicious in these activities. The GMC went to a residence where Smart went into the backyard for a short time and re-emerged and got back into the GMC. Later a CI and a concerned citizen told LE about their suspicions re: Smart.

Smart and the woman driver were stopped by LE. LE gave no reason for the stop. The driver refused consent. Smart was removed from the car and Terry frisked. No drugs or weapons were found. He declined to talk to LE and said only that he was visiting his people. The driver was then removed from the vehicle until a K9 could arrive and perform a sniff. When the K9 arrived about 23 minutes later, it alerted to the vehicle. The subsequent search revealed drugs, cash and guns.

The appellate court held that the K9’s alert for the presence of narcotics — which gave rise to probable cause in this case — falls within the ambit of circumstances the Witt Court contemplated as “unforeseeable and spontaneous” under the automobile exception. When the officers’ sensory perceptions failed to confirm their suspicions of drug activity following the stop of the GMC, police summoned the K-9 unit for the sole purpose of developing probable cause. That investigative tool, although validly employed under Dunbar and Nelson, nonetheless fails under Witt, because the use of the K-9 unit under the circumstances presented here did not result in the spontaneous and unforeseeable development of probable cause; it was simply another step in the search for drugs that caused the stop in the first place. Thus, when probable cause sufficient to support a search of the vehicle developed, police at that juncture were required to seek a warrant. The court concluded that their failure to do so rendered the ensuing search fatally defective.

Note: New Jersey is one of a handful of states that adds a factor to the automobile exception to a search warrant. Unless LE runs across “unforeseeable and spontaneous” circumstances, LE must apply for a warrant for the vehicle. This seems a bit ridiculous because in a drug trafficking investigation, finding drugs, guns and cash is foreseeable. But for now, New Jersey and other states add this step in before LE can search a vehicle without a warrant.

Practice tip: Because this stop was managed by the investigators, there was no reason not to have a K9 team at the initial stop.  A positive alert would have provided probable cause right away and the car could be impounded while a warrant was sought. Here, since probable did not occur until the K9 alerted, the stop was unduly prolonged and the car was inappropriately searched based on New Jersey’s additional factors.

People v. Lopez (Colorado 2022) 2022 COA 70
Traffic Stop; K9 Sniff Not Supported by Probable Cause (Colorado standard); Legalized Marijuana; Good Faith Exception

Lopez was stopped by LE for not having valid registration and failing to signal a turn. Noticing, among other things, how nervous Lopez was, LE summoned a K9 unit to conduct a sniff of the exterior of the vehicle. After the K9 alerted to the presence of narcotics, LE searched the interior of the vehicle, finding illegal narcotics, a loaded semiautomatic handgun, and a bag of tools. A passenger was also in the car, but only Lopez was prosecuted. At trial, Lopez claimed all items were passenger’s. Lopez was convicted of all charges.

In his appeal, Lopez claimed that the trial court erred by denying his motion to suppress the evidence found in the vehicle.

The evidence relied on regarding reasonable suspicion included Lopez was having difficulty opening his window and, after getting out of the vehicle, appearing nervous (breathing rapidly and reaching into his pockets); Lopez told LE that he had recently been released from prison and was out on bond in a pending narcotics case; and Lopez also told LE that, although he lived in Aurora, he was in Colorado Springs doing construction work (a claim LE found suspicious because Lopez was dressed in clean clothes, an ironed shirt, and “designer shoes”).

The appellate court held that the above circumstances did not rise to the level of probable cause which would have been the only way a K9 could have been brought into the investigation, based on the McKnight line of cases (see earlier Updates for a thorough discussion of these cases; use our search function to bring those up). The court held that a good faith exception was not available because, at the time of the police action here, no binding precedent had approved the police conduct at issue here: therefore, the appellate court could not say that LE acted in objectively reasonable reliance on such precedent.

The evidence was excluded and the conviction was reversed.

Note: I still maintain that Colorado is an outlier and their opinions are really a stretch. Here, there was no indication that there was any marijuana in this case; in fact, Lopez had a veritable smorgasbord of narcotics, none of which were marijuana. So basically, the court is saying that based on the legalization of marijuana in Colorado, a handler must have probable cause before deploying a K9, whether or not the K9 is trained in marijuana. This was not discussed specifically in the case, but the absence of such a discussion is concerning. This is a Colorado Appellate court case, so it is not the law of the land in Colorado, but is a harbinger of a disturbing trend.

State v. Juneau (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 394
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause

LE received notice that someone was running through the backyards of some residences. As LE was clearing from that investigation, LE saw Juneau driving a SUV very slowly past a residence that LE believed was a drug house. LE found out from LE databases that the owner of the vehicle was not a resident and that the registration had expired (this turned out to be incorrect information). As LE followed the SUV, the SUV started speeding up, making LE think the driver was trying to distance himself from LE. LE finally stopped the SUV for an equipment violation and the SUV came to a rolling stop. The driver was also making furtive movements towards the central console. Juneau, the driver, got out after being ordered out several times. LE recognized Juneau from previous contacts and Juneau said he was in the area to visit a friend. LE didn’t believe that and called for a K9 team for a free air sniff. When the team arrived, the K9 alerted on the vehicle. Inside was two small baggies of methamphetamine.

Juneau was convicted after his motion to suppress was denied. On appeal, Juneau argued that the trial court erred when it denied his motion to suppress the evidence found in the vehicle upon which the K9 alerted. He alleged that there was not enough reasonable suspicion to call the K9 team in and also, if there was sufficient reasonable suspicion, the alert was invalid because the K9 entered the vehicle prior to alerting.

In this case, the trial court concluded that LE’s expansion of the investigatory stop with a K9 sniff was justified by a reasonable, articulable suspicion of drug-related activity. The district court determined that three facts provided the requisite reasonable suspicion: (1) Juneau had been in a high-crime area, (2) he had come to a “rolling” stop, and (3) he had made “furtive movements” towards the center console after stopping. While Juneau complained that these actions could not be considered drug related, the appellate court put great weight on the fact that LE testified, based on his training and experience, that these behaviors did, indeed, provide reasonable suspicion that Juneau was involved in drug trafficking. Therefore, there was reasonable suspicion to extend the traffic stop into a drug investigation.

Interestingly, Juneau did not raise the issue of whether the K9 entered the vehicle before the alert until this appeal. Because he did not raise it in the trial court, he cannot raise it in the appellate court. The appellate court refused to consider it.

Note: This case highlights how important training and experience really is. You must be able to testify about how extensive your training and experience is and you must be able to apply that training and experience to the case in which you are testifying. This prosecutor did a great job in getting that on the record in this case; it was what saved an iffy drug investigation and turned it into a conviction. Well done.

State v. Haley (Ohio 2022) 2022-Ohio-2188
Traffic Stop; Prolonged Detention

LE observed Haley driving a car with a broken tail light and stopped it. Haley had a passenger in the car. LE obtained the appropriate documents from the occupants and found out that neither of them had warrants or issues. The passenger had a previous drug history, but other than that, LE testified that there were no other criminal indicators for either occupant. However, LE called for a K9 team. When the team arrived, the K9 alerted on Haley’s vehicle. Inside the car was a small amount of methamphetamine. After that point, LE issued a citation for the broken tail light. LE testified that he did not work on the citation while awaiting the K9 team. Instead, he testified, he was monitoring the occupants of the vehicle.

The appellate court held that LE’s testimony indicated that he stopped all activity regarding the traffic stop while he waited for the K9 team to arrive and complete a free air sniff. This time period, then, created a prolonged detention which was impermissible.

Note: There was a bit of discussion about LE needing to watch the occupants for safety reasons while he was waiting for the K9 team to arrive. The court did not bite on that and held that there was no constitutional reason for LE to stop all activities and wait for the K9 team. Here, LE basically just needed to get on with the citation and hope that the K9 team would arrive prior to completion. If not, then LE should have sent Haley on her way. This is probably a training issue that is easily remedied.

Bewley v. Turpin (Indiana 2022) 2022 U.S. Dist. LEXIS 113498
Excessive Force; Failure to Warn; Accidental Bite; Qualified Immunity; Monell Liability

LE received a call from a concerned citizen reporting “suspicious activity” by unknown individuals and fearing a possible burglary. Several LE were dispatched, including a K9 team. Upon arrival, handler saw a “suspicious vehicle,” which suddenly drove off. Handler pursued the vehicle. During this pursuit, he learned from dispatch that the vehicle had been reported as stolen.

That same evening, Bewley was working as a part-time delivery driver for a local restaurant. While handler was pursuing the suspect, Bewley was nearby, making a delivery to a customer. Bewley was at the customer’s door completing the transaction when he heard police sirens. He then saw the suspect’s vehicle driving toward the customer’s house. The vehicle crashed into a parked car just down the street and the vehicle’s occupants got out and began running. Bewley—fearing police might shoot at the suspects running toward him and that he would be caught in the line of fire—crouched on the south side of a Jeep parked in the customer’s driveway. Although the customer offered to let Bewley come inside, Bewley felt uncomfortable entering a customer’s home, so he stayed crouched behind the Jeep. Bewley was wearing a dark jacket but was illuminated by a streetlight.

When he lifted his head to see what was happening, Bewley saw one of the suspects run toward a neighboring house. A few seconds later, Bewley saw handler’s patrol car pull up to the customer’s house, with its lights on but siren off. By then, the suspects had fled down the path next to the customer’s house and out of sight. When he saw the patrol car, Bewley stopped crouching and stood at full height, believing that because the suspects were now out of sight, there was no longer any risk police would shoot at them, and that he was safe.

Handler had seen the suspects flee in between the houses, so he parked on the street just south of customer’s driveway. Handler quickly exited his patrol car, immediately went to the back driver’s side door, and, without looking for bystanders and without giving a warning, released K9 who had been trained to and had demonstrated an ability to pursue specific individuals on command. Prior to this date, K9 had bitten only people handler directed K9 to pursue and apprehend. But handler did not issue any commands to K9 when he released him, and instead of pursuing the suspect, K9 ran straight toward Bewley.

When Bewley saw K9 running toward him, he panicked and tried to climb onto the hood of the Jeep for safety. Officer Turpin did not see Bewley until K9 started running toward him. Before Bewley could climb completely on the hood of the Jeep, K9 bit Bewley’s right leg and held the bite for several seconds. Handler verbally commanded K9 to release Bewley, but K9 did not respond and needed to be pulled off of Bewley. Handler ceased his pursuit of the suspects to assist Bewley. Paramedics arrived and transported Bewley to the hospital. He was discharged later that evening.

In the federal district court in South Dakota, there was a split in authority as to whether an unintended bite of an innocent bystander by a K9 who was pursuing a suspect was a Fourth Amendment seizure. In one case, Mancini, K9 was on lead pursuing a suspect who jumped a fence into a private citizen’s yard. Several K9 warnings were given to the suspect during the chase. A‌ final warning was given and then, believing that K9 was locked on the target, handler dropped the lead and the K9 jumped the fence. Mancini’s dogs were barking and the K9 was not able to be recalled; instead, the K9 went into the yard with the barking dogs and bit Mancini. The Court likened Ms. Mancini’s claims to one of transferred intent, finding that “[t]he undisputed evidence is that Mancini was not the intended object of the officers’ efforts to seizure the fleeing suspect,” so Mancini was never “seized” under the meaning of the Fourth Amendment. (There was no testimony that this K9 was trained to bite and hold the first person he encountered).

In contrast, in Mitchum, LE was searching for 2 carjacking suspects in a residential neighborhood. By the time the K9 team arrived, one suspect was in custody and it was not believed that the outstanding suspect was armed. Handler deployed the K9 after a verbal warning, but the K9 was distracted by the suspect in custody. Handler then gave a command to conduct an area search, but did not give an additional warning when the team entered a private yard. This K9 was trained to bite and hold the first person he encountered. K9 saw and bit Mitchum, an uninvolved civilian. The Court in Mitchum distinguished Mancini, finding that Mitchum was “seized” under the meaning of the Fourth Amendment. The Mitchum court reasoned that because handler commanded K9 to conduct an area search and subdue the first person he encountered, “the object of the force [was] no longer an identified subject, but that of any human being. Mr. Mitchum’s freedom to leave was eventually terminated by handler’s intentional deployment of K9 to “ in the area of Mr. Mitchum’s backyard.” The Court noted that in Mitchum, unlike Mancini and other transferred intent cases, “there was no suspect being actively tracked or apprehended and there was no confusion for the canine as to which individual was proper to engage.” This appellate court was persuaded that after drawing all reasonable inferences in the Bewleys’ favor, this case is more like Mitchum than Mancini. As stated in Mancini, a seizure occurs when an unintended person or thing is the object of the detention or taking . . . but the detention or taking itself must be willful.”

Here, handler intentionally set the instrumentality in motion that caused Bewley’s seizure by releasing K9 from the patrol vehicle when Bewley was the closest and only person in K9’s view. Thus, K9 intentionally seized Bewley. LE offered affidavit testimony from handler that K9 had been trained to focus on suspects he was commanded to pursue, had never previously bitten anyone, and was commanded to pursue the fleeing suspect and “locked-in on” the suspect once deployed. However, the record did not clarify whether or how K9 was trained to behave when deployed without a specific command and when the intended target is out of sight, which the Court must assume on summary judgment was the case here. Handler also does not explain how he was able to perceive K9 “locking-in on” the intended suspect, and in light of Bewley’s testimony that the suspect was out of sight and that K9 ran straight for him, it is reasonable to infer for purposes of summary judgment that K9 did not “lock in on” the intended suspect.

In response, the Bewleys offer evidence supporting a reasonable inference that K9 was not in dedicated pursuit of the fleeing suspect when he bit Bewley, and that he was deployed to pursue and apprehend the only person in the vicinity, which handler mistakenly believed was the suspect. Bewley testified in his deposition that he was in handler and K9’s plain view when K9 was deployed, that the suspect had fled out of view, and that K9 ran straight toward Bewley. As this Court has recognized, dogs “cannot be trained to differentiate between a guilty person and an innocent person.”

The court went on to hold that this case is distinguishable from Mancini and other transferred intent cases. This is not a case in which K9 had been correctly pursuing the intended suspect and Bewley unfortunately stumbled into K9’s path. Viewing the facts in the light most favorable to the Bewleys, handler deployed K9 after K9 was unable to see the intended suspect and did not give K9 a specific command when deployed. It is reasonable to infer that K9 was not in active pursuit of the fleeing suspect when he bit Bewley but was instead released to bite the first person he could, who was Bewley. Under these facts, Bewley was seized under the meaning of the Fourth Amendment.

LE relied entirely on their argument that Bewley was not seized in moving for summary judgment on the Bewleys’ Fourth Amendment claim, and they have offered no argument or evidence regarding the reasonableness of Bewley’s seizure. The Court finds that genuine disputes of material fact preclude a finding that Bewley’s Fourth Amendment rights were not violated.

The court then turned to LE’s argument that handler was entitled to qualified immunity. Under the Graham factors, even taking into account the totality of the circumstances, the court found that the evidence weighed against a finding of reasonableness, At the time handler deployed K9, he had reason to believe that the fleeing suspect had been in possession of a stolen vehicle, which is a Level 6 felony—the lowest level under Indiana law. Handler had no reason to believe the suspect was armed. The concerned citizen who originally called about the “suspicious” individuals made no mention of weapons, and possession of a stolen vehicle is not inherently a violent crime. The suspect therefore did not pose an immediate threat to handler or others. The suspect was, however, actively fleeing from LE.

The additional factors related to the use of a police dog also weigh against LE. Viewing the evidence in the light most favorable to the Bewley’s, handler did not make any announcement warning the suspect or bystanders about his release of K9. Handler also did not maintain much control over K9, as evidenced by K9’s failure to heed handler’s commands to stop running toward Bewley and to release him. Handler physically removed K9 as soon as reasonably possible. But other tactics were available to handler—namely, deploying K9 on leash. As argued by the Bewley’s, deploying K9 on leash would have been particularly appropriate in this case because the suspect was out of sight by the time K9 was released from the patrol car, and because handler was in a residential neighborhood and had not taken time to check for bystanders in the area. The Bewleys have offered expert testimony that K9 should have been deployed on leash and that a leash would have prevented Bewley’s injuries.

The court concluded that the balancing factors, in total, lead to a finding that handler’s deployment of K9 off leash in a residential neighborhood in pursuit of a low-level, unarmed felony suspect, without warning, without the suspect in view, and without being able to recall K9 was unreasonable, constituting excessive force. Taking the facts in the light most favorable to the Bewleys, a reasonable jury could conclude that Bewley’s Fourth Amendment rights were violated.

However, when the court addressed the second prong of qualified immunity, it held that caselaw existing as of the bite, did not clearly establish that an officer’s deployment of a police dog trained to pursue a specific target and had done so without incident for several years, off leash, without specific command, without warning, and without checking for bystanders in a residential neighborhood, was unreasonable. Handler was therefore entitled to qualified immunity (since both prongs were not met), and the Court granted summary judgment as to all federal claims against handler.

The appellate court then addressed Monell Liability against handler’s agency. The Bewleys alleged the agency is liable for handler’s conduct because it did not properly train and supervise handler and did not enact appropriate rules and regulations regarding agency’s use of police dogs. LE argued that agency is not liable under Monell under either theory because agency did not act with deliberate indifference.

To prove Monell liability, Bewley must show a municipality’s failure to adequately train its agents and that failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.

Deliberate indifference in this context can be established by showing that the municipality either “fail[ed] to train its employees to handle a recurring situation that presents an obvious potential for a constitutional violation and this failure to train results in a constitutional violation” or “fail[ed] to provide further training after learning of a pattern of constitutional violations by the police.” The appellate court held that since K9 was a 6 year veteran without an accidental bite up to this point and that K9 was annually certified, the Bewley’s could not show a pattern of deliberate indifference. Therefore, the Monell claim was dismissed as well.

Note: This agency had a policy of no trophy photos which the Bewley’s tried to argue indicated that the existence of such a policy showed there was a pattern of abusive behavior by K9 teams. The court made short work of that, but it underscores the reason to not keep trophy photos. You, as the handler, of course, will take appropriate pictures to document your case, but think about keeping any on your phone after you have filed the appropriate pictures in your case. It may not be the best idea.

Also, sight picture is important. The court said this injury to Bewley was avoidable and I agree. If a K9 is released without handler understanding what the K9 is seeing, then this type of accidental bite happens. This case highlights the need to have a sight picture of what the K9 is looking at prior to release, especially if the release is off leash. In addition, there was no warning given prior to the deployment of the K9. This wasn’t really an issue here, but expect it to be a more important issue going forward. And finally, as the handler did here, get the K9 off as soon as possible once you realize your K9 has the wrong person.

People v. Sung Min Yim (California 2022) 2022 Cal. App. Unpub. LEXIS 4047
Odor of Marijuana as Probable Cause

During a traffic stop, LE smelled the strong odor of marijuana coming from inside the vehicle as the driver rolled the window down. LE said the odor was coming from Yim and the vehicle. LE testified about his training and experience regarding marijuana. LE asked if Yim had been smoking, and Yim said yes, recently. LE believed Yim to be under the influence of marijuana. Consent to search was refused, so LE searched on the smell of marijuana as probable cause. There was no testimony regarding any other factors that Yim was driving under the influence, such as red and watery eyes, etc. There was also no testimony regarding field sobriety tests: it appears none were given.

Here, there was no testimony Yim displayed signs and symptoms of being under the influence, such as red, watery eyes or slurred speech. LE did not administer any field sobriety tests to further evaluate whether Yim was under the influence. While LE may have training and experience in driving under the influence and marijuana cases, there are no facts before the court to which he could have applied that training and experience to conclude Yim was driving under the influence. The vague admission of “recently” smoking marijuana did not permit any meaningful inferences as to time and location or the quantity and potency of the amount consumed. Tellingly, Yim was neither arrested for, nor charged with, driving under the influence.

In the analogous scenario of an officer detecting the odor of alcohol, it is well settled law that a driver’s admission to having “recently” consumed alcohol would not alone justify placing him or her in the back of a patrol car and searching the vehicle without a warrant or consent. The appellate court held that the analysis does not change merely because the substance is cannabis, which is “not contraband nor subject to seizure” if possessed in accordance with Health and Safety Code section 11362.1. (Id., subd. (c).) The granting of the motion to suppress was upheld.

Note: This is not authority as it is unpublished. However, it gives a good overview of the evolution of marijuana laws regarding search and seizure. The other takeaway is that this officer should have pursued a DUI marijuana investigation as he testified he believed Yim was under the influence. Instead, he short cut the investigation and searched the car based on the odor of marijuana. Unfortunately, the majority of the appellate decisions on this issue in this jurisdiction is that the odor of marijuana alone is not probable cause for search of the vehicle. However, if it is apparent that other laws are being broken, think about pursuing that investigation.

Martinez v. Jenneiahn (Colorado 2022) 2022 U.S. Dist. LEXIS 108765
Excessive Force; Qualified Immunity; Bystander Liability

The events in this case begin when some bounty hunters assaulted Martinez in his home who were looking for his girlfriend. They Tasered him, used pepper spray and shot him with pepper balls. Martinez was taken to the hospital and admitted. It was discovered that Martinez had several outstanding warrants but LE did not monitor or guard Martinez. The next day, Martinez left the hospital in his gown and underwear and the hospital called the police. LE started looking for Martinez and knew that there were outstanding 2 felony and 2 misdemeanor failures to appear warrants, but no indication of threatening or violent behavior. While LE was tracking Martinez, there were reports that Martinez had been seen (1) crawling out of someone’s truck and then taking off running; (2) under some stairs in the complex and then running up the stairs; and (3) trying to get into various vehicles. A witness also informed them that Martinez had “contacted a lady driving out of the parking lot, attempting to get a ride.” A witness also observed Martinez run past her vehicle. Martinez was also observed carrying a bag which witness assumed was a bag of his belongings, taken with him from the hospital.

Eventually, LE called for a K9 team to assist. The K9 ultimately alerted/indicated that Martinez was inside a locked closet on the third floor of an apartment building. LE ultimately broke into the closet to get to Martinez; there was no dispute that Martinez did not communicate or respond to LE while this was going on. Once the door was open, and within one second, the K9 was deployed and bit Martinez. Within 20 seconds of opening the door, the K9 was released. Martinez had a 1.5 inch gash in his leg.

LE filed a motion for summary judgement based on qualified immunity.

The appellate court stated that, viewing the facts in the light most favorable to Martinez’s position, it is undisputed that, from the point of view of the officers at the time they decided to deploy K9 to seize Martinez, to their knowledge, (1) they were dispatched as a result of a call to the police from the hospital where Martinez had been treated; (2) although there was no report that Martinez had acted violently, his behavior was strange; (3) several people saw Martinez running through the apartment complex in his hospital gown; (4) a witness reported seeing Martinez “crawl out of someone’s truck and take off running”; (5) Martinez was trying to get into other vehicles; (6) Martinez had stopped a woman driving out of the parking lot and tried to get a ride; (7) there were four warrants out for Martinez for failing to appear in court, two for felonies, although all were for non-violent offenses; (8) Martinez had run past one of the police cars and was later seen running upstairs; (9) Martinez had something in his hands, likely a plastic bag full of his belongings that he had brought from the hospital; (10) K9 alerted that Martinez was located inside a locked storage closet; (11) the officers needed to use a crowbar to open the closet; (12) Martinez did not communicate with them while they were working to open the door; and (13) when the door to the closet was opened, Martinez offered no active resistance but the officers could not see his hands. Martinez claimed that under an analysis of the Graham factors, LE used excessive force. The appellate court did not address the Graham factors, but assumed, for sake of argument, that Martinez was correct that his Fourth Amendment rights were violated because of excessive force.

The court then analyzed the case under the doctrine of qualified immunity. One of the 2 prongs that must be satisfied is whether the law was clearly established to put LE on notice that deployment of a K9 in this situation was excessive force. After analyzing the cases put forth by Martinez, the court held that none of the cases were sufficiently similar to show that deploying the K9 in the situation faced by LE was a violation of clearly established law.

The court then granted the motion for summary judgement in favor of LE based on qualified immunity.

Note: Because the court found that there was no clearly established law but did not rule as to whether LE did commit excessive force, I am not sure how helpful this case will be going forward. However, there were some factors that weighed heavily in favor of Martinez in a Graham v. Connor analysis, namely that there was no threat of violence or weapon use; just a petty criminal in a hospital gown acting the fool. This probably would have been adequate for the court to find excessive force. So, stay in touch with your local prosecutor on this one.

United States v. Bodnar (Connecticut 2022) 2022 U.S. App. LEXIS 17035
Aviation Ramp Check; Alert as Probable Cause; Prolonged Detention; Vehicle Exception to a Search Warrant

In a scheme to transport marijuana from California to Connecticut, defendants evolved from using commercial aircraft and the US Mail to hiring a private aircraft. On the trip to California, defendants would bring cash and on the flight back, they would transport large amounts of marijuana in vacuum sealed bags in black duffle bags. Once it arrived in Connecticut, other defendants were contacted to prepare the marijuana for distribution. The FAA put this aircraft and pilot on their radar and notified DEA who was on the ground when the plane landed after a cross country flight. DEA did a “ramp check”, which is basically a check on the pilot’s license and other documentation. A ramp check ensures compliance with FAA regulations and does not require even suspicion of an antecedent violation for law enforcement to conduct one. The pilot asked if LE needed a warrant for a ramp check and, when told no, became very nervous and avoided eye contact. When asked about weapons on board, the pilot said there may be some marijuana. The pilot then consented to a search of the plane. During this conversation with the pilot, a K9 team arrived and alerted on the plane. The subsequent search of the plane revealed about 400 pounds of marijuana. A controlled delivery caught several people, who were prosecuted. One defendant, Capelli, went to trial and was convicted of some counts. He appealed. (The caption of the case is only the first defendant on the complaint: Bodnar is alphabetically first).

Capelli complained that his motion to suppress the search of the plane was wrongfully denied during the trial. While the trial court denied the motion on standing, the appellate court held that LE had probable cause to search the plane without a warrant because the automobile exception applies to aircraft.

In the discussion of how LE got to probable cause, the court analyzed how the ramp check (which did not need any suspicion at all) evolved into a reasonable suspicion investigation. The details of pilot’s cross-country travels, uncovered by the FAA, coupled with his demeanor at the time of the ramp check, convince us that the DEA agents had reasonable suspicion to stop the plane on the tarmac to investigate further for drug trafficking activity. There is nothing suspicious about frequent travel between Connecticut and California on its own. But FAA personnel found pilot’s conduct sufficiently suspect to merit a referral to the DEA. The FAA flagged pilot’s “unusual” flight pattern for a single-engine propeller airplane. Pilot made at least 15 cross-country roundtrips between 2015 and 2017 and did so indirectly by flying along the southern border. Proximity to the national border may support reasonable suspicion given that the borders “uniquely implicate various criminal activities—including contraband smuggling.” Pilot’s indirect flight path nearly doubled his transit time, required additional refueling stops, and increased the costs of the trip, without the amenities available on a commercial jet. This raised a “red flag.” The “quick turnaround” that pilot made after arriving in California, given his extensive travel time, did too. Capelli does not contest these facts.

Unlike a traffic stop, law enforcement agents may conduct a ramp check absent an antecedent violation or even reasonable suspicion of one. The ramp check by itself was therefore a proper exercise of regulatory authority. But some time after DEA requested pilot’s credentials, the ramp check evolved into an investigatory stop as part of a broader investigation into whether the plane was transporting contraband. Thus, the court must determine whether that investigatory stop was proper.

The agents’ suspicions were further heightened when DEA observed pilot to be evasive, nervous, and avoiding eye contact during the ramp check. The courts have recognized “[n]ervousness, particularly extreme nervousness, [to be] a factor supporting reasonable suspicion.” The DEA agents thus had articulable facts to conclude that pilot might be engaged in criminal activity, which was a sufficient basis for them to investigate further, including by deploying the drug sniffing dog.

Law enforcement was therefore duly authorized to conduct the ramp check, which Capelli concedes, and could permissibly prolong the stop because they developed reasonable suspicion “based on the actions of a driver or passenger either (i) before the stop, or (ii) during traffic-related processing of the stop.” The subsequent dog sniff was a reasonable and unintrusive means of detecting whether there was contraband on the aircraft.

In addition, there was no prolonged detention. The court held that the undisputed facts established that the ramp check was not impermissibly prolonged to conduct the K9 sniff. No bright-line time limit exists in the case law for determining how long officers acting on reasonable suspicion can delay a search to wait for a dog sniff before the search becomes unreasonable. But to the extent that there was any such delay here, under the circumstances of this case, it fell far short of impermissible.

With the K9 alert, the court held, LE’s reasonable suspicion ripened into sufficient probable cause to support the search. Probable cause exists when the “totality of circumstances indicates a fair probability that contraband or evidence of a crime will be found in a particular place.” Capelli has not challenged the reliability of the K9 alert at any time. Nor does Capelli question that an alert can provide probable cause to search for the presence of a controlled substance. Instead, Capelli’s argument is that, after the agents had what they believed to be probable cause, they were required to obtain a search warrant before entering and searching the aircraft.

However, the court held that the vehicle exception to a search warrant applies to private aircraft. The two distinct lines of reasoning that explain the exception, vehicle mobility and a reduced expectation of privacy, apply to privately owned and operated aircraft.

The mobility of an airplane in flight is so obvious that it needs no elaboration. And even when a plane is on the ground, it is no less capable of being moved than, say, a non-residential unhitched tractor-trailer. The fact that the search here occurred while the plane was sitting on the tarmac and the pilot was not in the pilot’s seat does not alter the calculus.

The reduced expectation of privacy rationale is similarly applicable. Airplanes and their operators are subject to far more onerous and complex regulatory requirements than automobiles. Title 14 of the Code of Federal Regulations sets out regulatory standards for all aspects of aviation, including airworthiness, piloting credentials and licensing, maintenance, and safety. That law enforcement can conduct a ramp check for any reason exemplifies this highly regulated regime.

Nor is a small private plane the sort of “hybrid” vehicle that presents a closer case when the mobility and privacy rationales are in tension. Unlike a mobile home or houseboat, which courts have still found to be subject to the exception, this sort of aircraft does not bear indicia of being both a vehicle and a residence.

Capelli’s convictions were affirmed on this issue.

Note: Apparently there was no previous case holding that aircraft are subject to search under an exception to a search warrant just like a car. In any event, this court made a common sense analysis in extending the exception to aircraft and is a good refresher of the doctrine.

United States v. Lewis (Indiana 2022) 2022 U.S. App. LEXIS 17047
Curtilage; Alert as Probable Cause

Lewis was a distributor in a drug-trafficking operation whose leader fled to Mexico. An FBI informant passed along Lewis’s cell phone number, and the government obtained a tracking order from Lewis’s cell phone provider that showed that his phone was within a 1,099-meter radius of Greenwood, Indiana. From there, LE searched parking lots and hotels and eventually saw a woman resembling Lewis’s wife enter a room at a hotel, drop off a duffel bag, and drive away in a car registered in Lewis’s name. After a drug-sniffing K9 sniffed an exterior hallway of several rooms and alerted at the room in question, LE applied for a search warrant, and the team executed the warrant the same day. Inside the room, LE found Lewis, $2 million in cash, and 19.8 kilograms of cocaine.

Lewis argues that the K9 sniff outside his hotel room constituted a search. He asks the court to extend their decision in Whitaker, which held that a K9 sniff for drugs in the interior hallway of an apartment building constituted a search. Notably, the court did not conclude in Whitaker that the area outside the defendant’s apartment door amounted to curtilage. Instead, the court drew upon Justice Kagan’s concurring opinion in Jardines and reasoned that apartment residents have a reasonable expectation of privacy in the area outside their doors. The court also distinguished the facts in Whitaker from Caballes and Place because those sniffs occurred in public places rather than a home.

The appellate court approached the question from two different viewpoints: 1) Property-Based Approach and 2) Privacy-Based Approach. Under the property-based approach, the key question is whether the area outside Lewis’s hotel room door was constitutionally protected. This hallway of this particular hotel was open-air and accessible via an exterior staircase that led directly to a parking lot. Unlike the homeowner in Jardines, Lewis lacked the right to exclude members of the public from passing through the exterior hallway. And the Whitaker court (a previous appellate decision in this jurisdiction) did not even conclude that the interior hallway of an apartment building amounts to curtilage. The exterior hallway of the this hotel is even farther afield from a front porch than an interior apartment hallway, so there was no search under the property-based approach.

Under the privacy-based approach, Lewis fared no better. The formulation of that approach asks (1) whether “a person [has] exhibited an actual (subjective) expectation of privacy,” and (2) whether “the expectation [is] one that society is prepared to recognize as ‘reasonable.'” Even assuming that Lewis had a subjective expectation of privacy, the Supreme Court’s decisions in Caballes and Place demonstrate that his expectation was not reasonable.

In Place, the Court explained that exposing luggage to a drug-sniffing dog in an airport was not a search, in large part because “the sniff discloses only the presence or absence of narcotics, a contraband item,” not the actual contents of the bag. In Caballes, the Court reasoned that “any interest in possessing contraband cannot be deemed legitimate, and thus, governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest.”

The court cautioned that their holding was not to say that Lewis had no reasonable expectation of privacy whatsoever inside his hotel room. Lewis was correct that the Fourth Amendment extends to temporary dwelling places, such as hotel and motel rooms. But that does not mean an expectation of privacy that is reasonable in a home is necessarily reasonable in a hotel room. In that respect, the exterior hallway of a hotel adjacent to a parking lot is much closer to the public settings in Caballes and Place than the front porch in Jardines.

Lewis was also a mere guest, not a resident. While it is true that hotel guests have some legitimate expectations of privacy, they cannot exclude others from entering a hallway—particularly where, as here, an exterior hallway is accessible from a staircase leading directly to the parking lot. Indeed, the Supreme Court in Stoner recognized that “when a person engages a hotel room he undoubtedly gives implied or express permission to such persons as maids, janitors or repairmen to enter his room in the performance of their duties.” If hotel guests have only a limited right to exclude hotel staff from a room, then it is hard to see how guests at the Red Roof Inn could reasonably expect to be free of K9 sniffs in the exterior hallway.

Note: This case is a federal one out of the 7th Circuit, so it is only controlling authority in that Circuit. However, the court gives a good description of where privacy starts and ends when applying the Fourth Amendment.

Powers v. State (Indiana 2022) 2022 Ind. App. LEXIS 209
Traffic Stop; Prolonged Detention

Powers was a passenger in a vehicle pulled over by handler for speeding and lane violations (swerving all over). The driver forgot to put the car in park as handler approached and the car lurched forward. He hit the brakes and then put the car in park. Handler obtained the driver’s documents. Driver was nervous, his hands were visibly trembling, and he was shaking and was kind of stumbling over some of his words on simple questions. He also noticed that Powers’ hands were visibly shaking and she had darkness under her eyes or dark eyes and open sores on her face and arms. Handler ran the driver’s documentation, wrote a warning and spoke with the driver briefly to try to determine any smell of alcohol or other indicators of impairment. He then spoke with Powers because he felt he had already developed reasonable suspicion. He then had Powers exit and she denied there was anything in the car, but had some meth in her bra. At that point, back up had arrived so handler deployed his K9 who alerted on the car. Inside the car was a purse with a gun and narcotics in the console which Powers claimed as hers. A motion to suppress was denied in the trial court.

After her conviction, Powers appealed the denial of the motion to suppress. The court agreed and found that once handler completed the warning and made a further assessment of the occupants regarding impairment which indicated no impairment, the stop was concluded and anything following that moment was prolonged detention. The court then addressed whether handler had developed additional reasonable suspicion based on his testimony that both were nervous and Powers could not answer his questions about their destination. The court found this was not sufficient to provide reasonable such that LE could delay Powers and the driver for a K9 sniff. Therefore, the court granted the motion to suppress and remanded the case back to the trial court.

Note: Even though the handler was alone for most of the call, he did take time to run the driver’s documents. It is unclear if this was enough time to deploy his K9, but that had been held to be an appropriate time to deploy a K9 (assuming there is enough time). This would have been one way to handle the deployment legally.

Commonwealth v. Branch (Virginia 2022) 2022 Va. App. LEXIS 245
Traffic Stop; Marijuana as Probable Cause; Prolonged Detention

Branch was stopped by LE for lane violations. There was a female passenger, Powers. There was an unsealed but closed container of alcohol, but that was not illegal in Virginia. LE asked the passenger to hand him the bottle and also to give him some ID. When she had passed the bottle to LE, she opened her wallet and LE saw a little bit of marijuana in her wallet. Marijuana had been decriminalized and LE seized the small amount. Both occupants came back clean, but LE searched the car anyway. They found a gun and more marijuana.

The appellate court first held that because an open container alone was not illegal under Virginia law, and there was no evidence Branch consumed alcohol while driving, LE did not have probable cause to search the vehicle for contraband or evidence of a crime relating to alcohol consumption. In addition, the sight and smell of a passenger’s small amount of personal, decriminalized marijuana contained in her wallet, without any other suspicious circumstances, did not provide LE with probable cause to search the vehicle for other contraband or evidence of a crime. The passenger never suggested Branch was involved in her purchase, and the marijuana was not loose in the vehicle. LE did not believe Branch and the passenger were dangerous and articulated no suspicions of criminal activity.

Note: Virginia is taking the line that small amounts of marijuana do not provide probable cause for a search. However, in other states, an unsealed but closed container is a violation of law. So the best practice in these cases is to investigate crimes other than the marijuana in plain sight or the smell of marijuana. But, in Virginia as well as in California, if there is no evidence of additional crimes, the contact is finished in terms of prolonged detention (even when there is no K9 deployed, the prolonged detention argument remains).

People v. Boyd (New York 2022) 2022 N.Y. App. Div. LEXIS 3970
Traffic Stop; Odor Marijuana as Probable Cause

Boyd was stopped for speeding. It was then discovered that his registration was suspended. LE smelled a strong odor of burnt marijuana in the vehicle. Boyd admitted to smoking earlier. One LE conducted field sobriety tests while the other searched the vehicle. Inside the vehicle was a gun and marijuana.

The court held that although New York decriminalized marijuana, it was clear that the new laws were not intended to be retroactive. Therefore, there was probable cause for LE to search the car.

Note: New York is not retroactively applying their new marijuana laws. However, some states do exactly that. Make sure you are communicating with your local prosecutor to make sure you know what the state of the laws are in your jurisdiction.

Hamilton v. Franklin (Tennessee 2022) 2022 U.S. Dist. LEXIS 111346
Traffic Stop; Prolonged Detention; Qualified Immunity

LE encountered Hamilton and his girlfriend as they were driving into a parking lot and LE was driving out. LE watched as Hamilton drove on the shoulder illegally to pass cars lined up to make a turn. LE followed but lost Hamilton as he turned. Hamilton stopped in the street shortly thereafter to talk to his uncle. LE pulled up behind Hamilton. They approached Hamilton and his girlfriend and asked them to return to their vehicle. They refused. LE asked for Hamilton’s license and Hamilton asked why they wanted it. After discussion, Hamilton finally gave LE his license. Hamilton was then directed to have a seat and Hamilton yelled he was not going to do that. Hamilton was then handcuffed with some difficulty. He was later searched and cash and contraband was found. In addition, LE called in a K9 team. The K9 alerted but no contraband was found in the car.

Hamilton later sued for unreasonable search and seizure. He had many complaints; the only one relevant here is the alleged prolonged detention for the K9 team to arrive and deploy. LE claimed that they had reasonable suspicion based on the following observations: the amount of cash found on Hamilton’s person; the denominations of the cash; the cash being in a rubber-banded “wad”; Hamilton’s refusal to return to the car; Hamilton having been stopped in the road talking to someone; and Hamilton’s “agitated and noncompliant state” during the stop.

The court held that as the search of Hamilton’s person happened after the K9 deployment, the cash found on his person was not un-banded, let alone counted, until after the officers had called for a K9 unit. Therefore, LE cannot rely on either the total amount or denominations of the cash in the wad to support reasonable suspicion to call the K9 unit and extend the stop. Additionally, although he is aware that at least under some circumstances a subject’s being agitated in an encounter with the police can support reasonable suspicion, the undersigned believes that in some cases an individual’s refusal to return to their car or being in an agitated state during a traffic stop just as easily could reflect an innocent person being upset by an undeserved disruption of his day as it could reflect the individual being in the midst of criminal activity and thus trying to avoid dealing with the police. The facts here, including those observable on the video recordings, do not serve as the basis for reasonable suspicion to believe that Hamilton was up to some drug-related criminal activity rather than merely being upset with what he could have perceived as unwarranted intrusion and harassment. The Court additionally stated that a person merely stopping to talk with someone in the road, absent some additional circumstances such as a hand-off of items or money between the two individuals, supports reasonable suspicion of drug activity. That leaves only one factor remaining as potentially supporting reasonable suspicion: the rubber-banded “wad” of cash. Despite its awareness that reasonable suspicion is not a high bar, the Court held that this alone does not serve as sufficient support for reasonable suspicion, and therefore Hamilton has shown at the very least a genuine issue as to whether his constitutional right to be free from unreasonable seizures was violated when LE extended the traffic stop beyond the original purpose (in order to pursue a new purpose of investigating potential drug activity) to wait for a K9 unit.

However, the court held that this was not the end of the inquiry as to qualified immunity, because Hamilton must show that reasonable officers in the position of LE should have known their actions violated this right. There are Sixth Circuit cases where rubber-banded currency was considered evidence supporting reasonable suspicion, as is nervousness/agitation, and trying to leave/exit the conversation. Hamilton has not cited to any case suggesting those cases are no longer governing law in the Sixth Circuit; and he certainly has not cited any Supreme Court case law to the contrary. Therefore, the court held that Hamilton had failed to sufficiently show that no reasonable officer would have thought LE had reasonable suspicion to extend the initial traffic stop to allow for a K9 search.

Note: So the court held that there was a prolonged detention of Hamilton to wait for the K9 as there was not enough evidence that drug crimes were being committed. But LE ended up off the hook because of qualified immunity. Remember that in qualified immunity, both prongs must be met. Here, the court held that one of the prongs had been met, so the other prong was not discussed because it was not necessary to do so.

United States v. Escobar-Lopez (Puerto Rico 2022) 2022 U.S. Dist. LEXIS 111439
Stop at an Airport; Consensual Encounter; Consent; Foundation Reliability

Escobar-Lopez and another person were flying from Pennsylvania to Puerto Rico. When they entered the rental car area, they were approached by LE and a consensual encounter took place. They handed over their licenses and answered questions about their travels and what was contained in their bags. Escobar-Lopez said he had $7,000 in cash in his backpack. They were then asked to return to the baggage collection area where a drug K9 could sniff their luggage. The K9 alerted to his backpack as well as his suitcase. When asked, Escobar-Lopez said he had no money in his suitcase. LE then asked him to accompany them to a secondary location where it was safer to remove and count the cash. They all walked to the Customs area. Escobar-Lopez carried his own bags. Upon arrival, Escobar-Lopez signed a consent to search his suitcase. Over $80,000 was found.

Escobar-Lopez first complained that the initial contact was a Fourth Amendment violation. The court disagreed and stated that, under the totality of the circumstances, a reasonable person in Escobar-Lopez’s position would “feel free to disregard the police and go about his business.” LE testified that they calmly approached Escobar-Lopez, identified themselves as officers, asked if they were willing to talk, received affirmative consent, and then proceeded to ask questions for as long as Escobar-Lopez was willing to engage. LE did not show force and repeatedly testified that they did not order Escobar-Lopez to say or do anything. While they asked for identification, “that is the type of de minimis intrusion that the First Circuit has long agreed to tolerate as a necessary part of policing.” Additionally, LE did not confront Escobar-Lopez with “accusatory questions.” LE testified that, in their initial conversation, he asked Escovar-Lopez about his travel plans, his luggage, and whether he was traveling or coordinating his travel with anyone else. The most specific question in this initial conversation concerned whether Escobar-Lopez had any money in his luggage. However, similar lines of questioning have been approved by the First Circuit. Therefore, the court held that Escobar-Lopez’s liberty was not restrained, and thus his initial encounter with LE was a consensual conversation and not a seizure for purposes of the Fourth Amendment.

Next, Escobar-Lopez complained about the K9 sniff of his luggage. First, the court held, Escobar-Lopez consented to go with LE to a secondary location as well as consented to a K9 sniff. Secondly, the court corrected Escobar-Lopez and held that the sniff was not a search and did not implicate the Fourth Amendment. However, the alert of the K9 supplied probable cause to search the luggage. Thirdly, the court held that the sniff took place in a permissible manner, in a public place and within minutes of Escobar-Lopez’s consent. Finally, the court held that there was no evidence to Escobar-Lopez’s claim that the K9 did not alert to his luggage. The trial court found that the K9 was reliable based on the testimony of the handler and other LE at the scene.

Therefore, the motion to suppress was denied.

Note: This was a contact at a transportation hub. Fortunately, for LE here, there was consent basically at every step. However, consent can be modified and even withdrawn at any point. Best to be building a case alongside that consent so if anything happens, you can rely on an evidence based investigation.

United States v. Carter (Louisiana 2022) 2022 U.S. Dist. LEXIS 111733
Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

There were two traffic stops. The first stop was for lane violations and following too closely. Since these activities are violations of Louisiana law, the stops were valid.

Carter then complained that he was subject to a prolonged detention waiting for the K9 team to arrive. However, while there was interaction with Carter and his passenger and the regular records check, Carter did consent to a search of the vehicle. Instead, LE deployed a K9 which alerted on the vehicle. The Government contends the records check with dispatch did not come back until after Carter gave verbal consent to the search. That consent appears to have been immediately followed by the K9 open-air sniff. These facts and allegations do not describe a detention that extended beyond the original traffic stop. Finally, the court held that the K9 alert gave LE probable cause to search the car.

During the second stop (where LE were following Carter because they had a cell phone ping warrant), LE noted the odor of marijuana which provided probable cause to search the vehicle.

Note: At the time of the stops, marijuana was not legal in Louisiana. As of 2021, up to 14 grams has been decriminalized. Also, interestingly, while Carter gave  a general consent to search, he did not specifically consent to a K9 sniff. The practical rule in this situation is that if Carter knew a K9 was present, the consent covers the sniff. He did not raise this issue, but other courts have dealt with it. 

State v. Burke (Ohio 2022) 2022-Ohio-2166
Traffic Stop; Prolonged Detention; Odor (and Presence) of Marijuana as Probable Cause; Reliability Foundation

Burke was stopped for speeding. Burke’s hands were visibly shaking. Burke produced his license but could not produce an insurance card. All checks came back clear on Burke. This was all the information that LE needed to complete a citation, but Burke’s name was familiar to LE. LE therefore also ran Burke through the local in-house system. This jogged LE’s memory that he had dealt with Burke as a juvenile who had a prior weapons charge. In addition, LE remembered that a friend of Burke’s who had been involved in drug trafficking had been killed, that Burke made admissions at a previous LE interview and that fact that Burke was visibly shaking. At this point, about 5 minutes into the stop, LE returned to Burke and asked if he could search the vehicle. Consent was refused. Burke could still not provide insurance information. LE went back to his cruiser to fill out the citation and also called for a K9 team to respond. This team arrived 21 minutes after the initial stop. While filling out the citation, LE noticed that the car did not have a rear registration sticker. He approached the car to see if one was concealed and at that time, smelled the odor of marijuana coming from the trunk. By the time the K9 team had arrived, LE was still working on the citation. LE stopped to brief the handler on what was up and then removed Burke from the vehicle so the handler could deploy the K9. The K9 alerted to the vehicle. Also, when Burke got out, marijuana shake fell from his clothes. Burke indicated he had smoke earlier that evening. There was no discussion about medical usage. Inside the car was LSD, marijuana, sales paraphernalia and a gun.

Burke complained that the trial court had erred in denying his motion to suppress. His two theories were 1) prolonged detention and 2) certain types of marijuana had been legalized and the K9 had no way of determining if what Burke had was legal or illegal.

Addressing the first point, the court stated that, under the totality of the circumstances here, the stop’s duration was reasonable. First, Burke was never able to produce an insurance card. In addition, the citation was still in progress when the K9 team arrived and alerted. Therefore, the court held there was no prolonged detention.

The court went on to talk about what reasonable suspicion LE had and why a detention may continue past the time necessary for just a traffic investigation. Here, a collection of factors added up to reasonable suspicion of additional crimes. These included Burke’s unusual nervousness; Burke’s friend having been involved in drug trafficking and was killed; a previous weapons charge where Burke was seeking someone out who was suspected of murder; and the odor of marijuana coming from the trunk. In addition, the loose marijuana shake on Burke’s clothing was sufficient as probable cause to search the vehicle. At the time, there were very specific factors to meet before possession of marijuana was allowed. Ohio did allow possession of prescribed marijuana plant material. However, while a person holding a valid marijuana license can possess plant marijuana, regarding the “shake” on Burke’s clothing, Ohio law required medical marijuana to be maintained only in approved containers. Ohio law also required that medical marijuana be kept in a “in a secure location so as to prevent theft, loss, or access by persons not authorized” to possess medical marijuana. Consequently, LE could reasonably conclude that the marijuana was being illegally possessed when he observed shake all over Burke’s shirt and clothing, even if it was legitimate medical marijuana. In addition, there was the odor and Burke’s admission that he had smoked earlier.

Given these facts, the court held that LE had probable cause at that point to search the vehicle. At a minimum, this would have provided reasonable suspicion for extending the stop.

Note: This court not only held there was no prolongation of the detention, LE had probable cause to search based on the information it had prior the K9 alert. As of now, Ohio has decriminalized small amounts of marijuana but there is no legalized recreational use. Stay in touch with your local prosecutor.

State v. Riley (Idaho) 2022 Ida. LEXIS 67
Traffic Stop; Prolonged Detention

Riley was stopped by LE for expired registration tags. When LE asked for her license, she provided a dental insurance card, saying she did not have a license. She further explained that her license was actually expired, she was still paying fines on a prior traffic infraction and that she had no car insurance. This meant that LE had to write down all pertinent information. As he was putting his pen and pad away, he asked if there was anything illegal in the car, such as marijuana. Riley denied all. This questioning took 8 seconds. LE then informed Riley he was going back to his car to write a couple of citations. While he was doing that, back up arrived. There was a short period of time where the two LE conversed re: safety and trying to get Riley’s consent to search. This conversation was so short the trial court found it immeasurable.

Back up approached Riley and told her about LE’s concerns about potential contraband. She did not consent and back up told her there was a K9 team on the way. Once the K9 team arrived, the K9 was immediately deployed and alerted. At that point, LE was not yet finished with the citation. Meth and paraphernalia were found.

The trial court found that the two conversations, the 8 second one and the immeasurable one, were unreasonable delays of the traffic stop. The government appealed.

The court first addressed the issue of whether the record (including body cam footage) could support a finding of how long the two conversations took that were allegedly outside the investigation of a traffic stop. By viewing the data that was submitted, the appellate court held that the first conversation took 8 seconds, and the second (between LE and back up) could have not been more than 20 seconds. Based on that finding, the court held that these brief deviations were not violative of the law. This is because the alert happened not only before the citation was completed but even if the 28 seconds were added to the time line of the traffic stop, the K9’s alert would have been prior to the completion of the citations.

Note: This case shows how nitpicky courts are becoming. They even have a timeline chart in the case to show their interpretation of the evidence as to when the events happened (or would have happened). Crazy.

United States v. Overton (Indiana 2022) 2022 U.S. App. LEXIS 16158
Traffic Stop; Prolonged Detention; K9 Entry into Vehicle; Inevitable Discovery

LE attempted a traffic stop on Overton for not signaling, but when lights and sirens went on, Overton did not stop, but drove into oncoming traffic. Additional LE units were able to intercept him and force him to stop. Seconds after the stop, a K9 team arrived on scene. Overton was ordered out of the vehicle and he was handcuffed and arrested. Overton did not have a valid driver’s license and his car obstructed traffic, so the officers planned to impound and search the vehicle pursuant to department policies.

Within two or three minutes of the arrest, the K9 was deployed and alerted at the passenger door. The K9 was directed to continue and when he reached the open driver’s door, he spontaneously jumped in. The K9 alerted twice inside the vehicle. No drugs were found but there was a gun in the center console.

Overton moved to suppress the gun uncovered during the search of his car, contending both that the traffic stop was unlawfully prolonged to give the K9 time to sniff and that the K9 impermissibly entered the vehicle. The trial court denied the motion without an evidentiary hearing.

The appellate court first held that under the inevitable discovery doctrine, illegally seized evidence need not be suppressed if the government can prove by a preponderance of the evidence that the evidence inevitably would have been discovered by lawful means. The court held that Overton’s gun would have been inevitably discovered during an inventory search after his car was impounded. An inventory search is lawful if (1) the individual whose possession is to be searched has been lawfully arrested, and (2) the search is conducted as part of the routine procedure incident to incarcerating an arrested person and in accordance with established inventory procedures. Both prongs were satisfied here. Overton was lawfully arrested for resisting arrest. And LE conducted the search pursuant to the agency’s established procedures, which provide for the impoundment and search of vehicles that obstruct traffic following the arrest of a driver.

The court also upheld an inventory search regarding the inevitable discovery doctrine. Since the car would be impounded under the agency’s policies, it would have also been subject to an inventory search. The gun would have therefore been inevitably discovered. Since the doctrine of inevitable discovery clearly allows for the admission of the gun as evidence, the appellate court did not see the need to consider whether the stop was unlawfully prolonged or if the K9’s spontaneous jump into the car somehow violated Overton’s Fourth Amendment rights.

Note: Even though the court did not address the spontaneous jump into the car by the K9, it had already alerted outside the car, so the jump inside would have been covered by the probable cause generated by the first alert outside the car. But inevitable discovery works too. All available avenues of admissibility should be explored and pled in court.

State v. Sumler (New Jersey 2022) 2022 N.J. Super. Unpub. LEXIS 1060
Traffic Stop; Alert as Probable Cause; Prolonged Detention

Sumler was stopped for rolling through a stop sign and LE had to apply his brakes to avoid a collision. There was a “faint or vague” smell of marijuana noticeable when Sumler opened his window. Sumler was trying to conceal cash in between his legs and he had tobacco on his pants and in the car. This signaled marijuana use to this LE because cigars are hollowed out in order to substitute marijuana. There was also currency in low denominations in the back seat scattered around. Sumler could only produce his license. When questioned about his travels, Sumler’s answers did not make sense to LE as he was taking streets instead of highway which would have been faster. Sumler was taken out of the car; he rolled up all the windows and locked the car. The Terry frisk did not reveal anything. Sumler refused consent to search the car. LE ran a license plate check and determined that Sumler was on parole for first degree robbery.

LE then called for a K9 team, which arrived about 1/2 hour later. The K9 alerted on the car. The search revealed a loaded gun, heroin and crack cocaine.

During the hearing, LE admitted that he knew the smell of marijuana was enough to provide probable cause, but he called for a K9 team anyway as reassurance since the scent wasn’t overwhelming.

Sumler complained LE impermissibly “sat” on probable cause by failing to conduct the search of his vehicle when police detected the odor of marijuana emanating from the vehicle and calling the K-9 unit to develop probable cause.

The court held that Sumler’s reliance on Witt is misplaced. The officers did not “sit” on probable cause prior to conducting the warrantless search in this case; they called for the K9 unit to confirm what they characterized as a “faint” or “vague” odor of marijuana. Sumler cites no authority to support his assertion that LE may not confirm their olfactory suspicions by requesting a K9 drug detection sniff test. Nor was the court aware of any authority prohibiting police from doing so. The officers’ cautious approach in calling for the K-9 unit to confirm their suspicions, which arose spontaneously after Sumler’s traffic violation, was reasonable. There was no need for a warrant under the circumstances presented here.

Note: This stop obviously wasn’t a pretext as the police car almost got hit by Sumler. So that argument fell flat at the trial court level and wasn’t raised here in any meaningful way. However, this drug dealer knew the lay of the land because before he relinquished control of the vehicle (was told to get out), he rolled all the windows up and shut the doors, presumably in an effort to foil the expected K9 team. This is a good reminder that the best practice is to remove all occupants, close all doors and windows before a K9 is deployed. If the scent is there, he will alert.

Frank v. City of Lake Charles (Louisiana 2022) 2022 U.S. Dist. LEXIS 107225
Traffic Stop; Qualified Immunity; Monell Liability

Citizen called 911 to report a reckless and erratic driver, speeding and driving on sidewalks and all over the road. LE intercepted the vehicle and attempted a stop. Frank did not stop but continued and almost hit some light poles. Spike strips were considered but abandoned when Frank stopped on his own, and LE exited their vehicles and shouted instructions as they approached Frank’s vehicle, the window of which was rolled down. Instead of exiting the vehicle with his hands raised, as instructed, however, Frank remained in his vehicle and appeared to reach for the center console. Fearing that Frank was going for a weapon, handler then deployed his K9.

K9 ran to the driver’s side door of the vehicle but did not enter through the open window as handler hoped he would. LE then approached the vehicle and handler saw that Frank’s hands were empty. Handler opened the door and gave Frank several verbal commands to exit the vehicle, but Frank did not comply. Handler then saw Frank reach for the center console and deployed K9 again, at which time K9 attacked (court’s word) Frank. K9 chewed on Frank’s arm and continued to do so even as handler ordered him to disengage, and did not release until handler reached into the vehicle and pulled him off. Handler admitted that it took him a “minute” to get K9 to let go after his initial verbal command.

After the dog released Frank remained in the vehicle and refused to emerge despite more verbal commands. One of the other officers now at the scene then Tased Frank for five seconds. At this point, handler testified, LE yelled that Frank was again reaching for the console and handler again released K9. K9 bit Frank’s lower leg and handler began pulling Frank out of the car, though Frank got caught on the seatbelt and handler had to cut him out with a knife. Handler did not order K9 to release until Frank had been completely removed from the vehicle. After Frank’s arrest for DWI, a search of the vehicle revealed no contraband or weapons.

K9 was commissioned and joined the police department approximately eight days before Frank’s arrest. He did not achieve his National Police Canine Association certification until the following year. The city admitted that, in purchasing K9, it chose the cheapest dog with the shortest training course. Training records from 2014 show that K9 was still having issues with releasing on command after attacking a subject. The city also admitted that, compared to other dogs commissioned to work with the city, K9’s obedience was “marginal” early on.

Frank sued for excessive force. LE (defendants) claimed qualified immunity. The appellate court held that the force used at the scene in deploying the K9 was not objectively unreasonable. Frank ignored commands and kept reaching toward the center console, an area which was poorly visualized which meant LE had no idea if Frank had a weapon. They also knew that Frank careened through city streets at a high rate of speed and was positioned to flee the officers until he exited the vehicle. Furthermore, the court held, there was no basis for holding the remaining officers liable for allowing a reasonable use of force to be deployed. Accordingly, the officers are entitled to qualified immunity on any excessive force claims raised against them.

The court then addressed Monell liability, stating that because they found no claim for excessive force under state law, Frank’s claim of vicarious liability is barred. Likewise, Frank may only hold the city independently liable under Monell if it shows (1) a policymaker, (2) an official policy or custom, and (3) a violation of a constitutional right whose “moving force” is the policy or custom. As described above, the court finds no violation of a constitutional right under these circumstances. Accordingly, there is no basis for any claim against the city in this matter.

Note: Whew! When I started reading this opinion and the description of the K9’s history, I was convinced that the motion for summary judgement would be denied and the case headed for trial. Lots of issues with the K9; not yet certified and documentation of obedience issues. This is not fatal for use of the K9, but it puts everyone in a defensive position. In addition, the obedience issues were noted, but no remediation appears to be documented in response. Finally, they admitted they got the cheapest dog with the least training. That literally came back to bite them. The court could have easily held that this K9 was not qualified to be used in the field and that would mean basically that Frank gets a win.

As to excessive force based on the actual deployment, the court did not go through a Graham v. Connor analysis. Had they done so, I think LE would have lost. While the reckless driving was endangered the public, he was ultimately stopped and LE believed there was enough time to engage in orders prior to releasing the K9. In addition, the only other crime was DWI (although admittedly, LE only found that out after a search of the car). A more liberal jurisdiction could easily have gone the other way on this. I truly hope that this agency takes this as a gift and made sure that the K9 team was appropriately remediated or, if not, taken out of service.

State v. Bazzill (Arizona 2022) 2022 Ariz. App. Unpub. LEXIS 510
Traffic Stop; Odor of Marijuana as Probable Cause

Bazzill was stopped for a cracked windshield. As LE approached, LE immediately smelled an odor of burnt marijuana emanating from inside the vehicle. Bazzill was the only occupant besides his dog.

Bazzill was asked to step out, given the presence of the dog. Bazzill claimed he was authorized under Arizona’s Medical Marijuana Act to possess marijuana. Bazzill did present a AMMA card. Bazzill claimed not to have a pipe in the car (there were rules to the AMMA, one of which was not smoking in the car). LE told Bazzill that, based on the smell of burnt marijuana, he would be searching the vehicle to make sure the marijuana was still in the prescribed containers and to see what quantity he had. LE later testified Bazzill’s demeanor then completely changed. He was not standing still as much, became more agitated and a little more nervous. A search of the vehicle revealed a glass-loaded marijuana pipe with a small amount of marijuana, a scale with a white crystallized substance later identified as methamphetamine, several small, unused Ziploc baggies in a backpack and a bag with 9.7 grams of methamphetamine.

Bazzill argued that the LE’s warrantless search of his Blazer based on the mere odor of burnt marijuana was unlawful. Bazzill asserts that his possession of a valid AMMA card could indicate that marijuana is being lawfully possessed or used and as such information could effectively dispel the probable cause resulting from the officer’s detection of marijuana by sight or smell, unless other facts suggest the use or possession is not pursuant to AMMA. Bazzill’s argument, however, did not account for the totality of the circumstances.

The record presented contains various factors allowing LE to conclude that Bazzill was not in compliance with the AMMA. Under the AMMA, a qualifying patient is prohibited from using marijuana while driving. LE, however, smelled burnt marijuana coming from the vehicle. After Bazzill provided his valid medical marijuana card, Bazzill told LE he did not have a pipe in the vehicle. The unexplained smell of burnt marijuana coming from a vehicle occupied only by Bazzill suggested use of marijuana that did not comply with the AMMA. Indeed, LE testified that an odor of burnt marijuana is concerning because it suggests that Bazzill was smoking while driving and triggers the possibility that someone is not complying with the AMMA. LE also testified that Bazzill became agitated and nervous after being told of the search, which further supported his reasonable belief that Bazzill was not compliant with the AMMA. LE therefore had probable cause to believe criminal activity occurred, despite Bazzill presenting his valid AMMA car. On this record, the court held that Bazzill had not shown the trial court erred in denying his motion to suppress.

Note: This is a common sense approach to this issue (always refreshing). Here, LE was able to articulate how the possession was possibly not compliant with the AMMA and therefore, LE had the right to conduct a search to confirm or dispel his probable cause.

White v. City of Detroit (Michigan 2022) 2022 U.S. App. LEXIS 16876
Civilian Dog Attack; Qualified Immunity

In the course of an LE encounter involving two individuals—an officer and a fleeing suspect—two dogs became the victims. Searching for a gun discarded by the suspect in a chase through a neighborhood, an officer used a K9 to find the gun. As LE approached with K9, they asked the civilian dog owners to secure their dogs during the LE search. They tried but the pitbull evaded capture and ran to the fence. Owner went inside to get a leash and handler decided to deploy the K9 by a neighboring yard. As they walked along a fence, the pit bull  lurched through the cornr of the fence, bit K9, and would not release him. After a struggle and plenty of yelling and yelping, LE shot and killed the pit bull. A federal constitutional claim came next. Lamentable though the incident was for dog and owner, the court found that no constitutional violation occurred.

The court held that handler acted reasonably at each turn. The threat had imminence written all over it. Handler immediately and sensibly reacted to K9’s yelp and its cause, a pit bull’s clenched-down grip on his nose. The threat also appeared severe and unrelenting. Within seconds, as the video footage confirms, the pit bull began “thrashing” back and forth, pivoting solely on K9’s hapless snout. Thrashing of this sort, as the record and common sense confirm, means a dog has “a good hold of something.” Handler fairly believed that K9 faced serious, if not deadly, consequences if she did not act.

Plaintiffs maintain that the threat at issue (police-canine safety) differs from the threat that courts often consider (police-officer safety). The court indicated this was a fair point. There is not a lot of law about the Fourth Amendment and dogs. Even so, no court has held that the Fourth Amendment requires officers to stand down when another animal threatens to harm severely (and perhaps kill) a police dog. Sure, the safety of Officers is more important than the safety of police dogs, as the Whites point out. But that does not remove the officer’s interest in protecting a police dog from the balance sheet. Police dogs have become an essential component of law enforcement. They are highly trained and have proven useful in a variety of dangerous law enforcement settings, including search and rescue, evidence detection, discovery of explosives, crowd control, and suspect apprehension. In this case, K9 was trained as a patrol K-9, meaning he helped with narcotics, tracking, article searches, building searches, and the like. While police dogs may not solve all our problems, no one can deny that they protect and help keep alive the officers we pay to catch those dangerous criminals who violate our laws. Whether considered a member of the police force or merely police property, these dogs serve a much-valued public interest. Consistent with that interest, federal and state laws alike impose enhanced penalties for those who harm police dogs. The court concluded that the problem in this case is not the law’s lack of appreciation for the plaintiff’s love of their dog. It is that the lives of two dogs were at risk. Handler permissibly considered that reality in killing one and saving the other.

Note: The case law on this type of scenario is limited, but the facts supported LE’s actions in this case. Even though handler only took 6 seconds to shoot the civilian dog, in that time, she pulled on her dog’s leash, yelled at the civilian dog and then realized that her K9 was going to be severely injured or killed because of the pit bull’s thrashing. That was enough to rightfully use deadly force against the attacking dog.

State v. Milner (Delaware 2022) 2022 Del. Super. LEXIS 241
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop of Milner for failing to signal for the correct distance for a lane change. LE directed Milner to stop in the parking lot of a 7-11. Milner provided LE his license, registration and proof of insurance. LE noticed a strong smell of burnt and raw marijuana emanating from the interior of the vehicle. The officer eventually informed Milner the odor of marijuana constituted probable cause to search the vehicle and any occupant in the vehicle. The defendant admitted he had marijuana in his pocket. He was removed from the vehicle and searched. A bag of marijuana was removed from Defendant’s right pants pocket.

The vehicle was then searched and LE found 2 loaded handguns and additional loaded magazines.

The court first held that the traffic stop was valid as it comported with Delaware law. The court then addressed whether Milner was subjected to a prolonged detention and whether the odor of marijuana can establish probable cause to search the entire car. Based upon the totality of the circumstances, the court concluded LE possessed probable cause to conduct a warrantless search of Milner’s person and vehicle. LE observed two motor vehicle signal infractions prior to conducting the vehicle stop. Upon initial contact with the officer, Milner only partially lowered his passenger side window. When asked about the odor of marijuana, Milner denied the vehicle smelled like marijuana and suggested that what LE smelled was a Black and Mild cigar Milner claimed to have just smoked in the vehicle. A short time later, Milner admitted possessing marijuana in his pocket. He was the sole occupant of a vehicle emitting an odor of burnt marijuana, denied that the vehicle smelled like burnt marijuana, and ultimately admitted to possessing marijuana. Evaluated in the context of the totality of the circumstances, there existed a fair probability that Defendant had consumed marijuana while operating the vehicle, in violation of Delaware law. This established additional crimes for which LE could detain Milner further.

Note: Delaware has not legalized recreational use, but had decriminalized small amounts. There is limited medical use available.

United States v. Griffin (Michigan 2022) 2022 U.S. Dist. LEXIS 102815
Traffic Stop; Prolonged Detention; Foundation Reliability

LE saw a car driving about 10 mph under the speed limit late at night. This caught his attention because it was unusual and possibly caused by driver seeing the cruiser. LE followed the vehicle and saw it drift over the fog line then jerk back. LE waited for a safe spot and then pulled the vehicle over.

Epps was the driver. He was asked about drinking. There was some discussion of his travels. In the front passenger seat was a female and the back passenger was Griffin, who Epps identified as the owner of the car. Griffin was taken out of the car. Griffin was asked for ID and registration which he provided, explaining that the car was a rental in his mother’s name and Epps was not an authorized operator. Griffin’s story about their travels did not match Epps’. LE went back to his cruiser while he waited for a criminal history check. K9 team arrived as back up. LE then learned that Griffin had a significant history of drugs, weapons, false personation of LE and violent crimes. He was also on federal parole. Epps had criminal history of fraud, drugs and burglary.

LE returned to the car and asked about the lane violation. Epps started to explain and LE stated he wasn’t going to issue a citation “right this second.” LE then questioned Griffin about why he wasn’t driving. Illegal items were denied; consent was refused.

Griffin was Terry frisked and nothing was found. The other two occupants were taken out to allow for a K9 free air sniff. After starting the sniff, the K9 appears to get distracted and handler redirected the K9 to the vehicle. During the second pass around the car, the K9 alerted on the car. There were two kilos secreted in factory voids in the car (no new compartment was made; just took advantage of voids in the car). Female passenger questions about travels; she didn’t get the right answers either.

Griffin challenged the original stop, claiming LE was not credible. The court however, reviewed the available videos and could not find any discrepancies in LE’s testimony. Therefore, the testimony that Epps crossed over the lane line was credible, making the traffic stop lawful.

The court then addressed the alleged prolonged detention. The government argues that LE developed reasonable suspicion after running a warrant and criminal history check for Griffin and Epps. This was based on five things: (1) Epps’s driving over the fog line, (2) the level of nervousness displayed by all occupant’s throughout the encounter, (3) Griffin’s extensive arrest history involving drug trafficking in cocaine, cocaine base, and illegal firearms possession, along with other offense, and Epps’ less extensive, but still existing, criminal history, (4) Griffin and Epps’s inconsistent statements as to their itinerary in Houston, and (5) the rental document showing that the car was rented by Griffin’s mother who was not present in the vehicle, was significantly overdue for return, and did not include Epps as an authorized driver.

Here, the parties did not dispute that the K9 sniff prolonged the traffic stop, and occurred after LE had returned occupant’s licenses and rental documents. The critical question, then, was whether LE had reasonable suspicion to detain the occupants for the period necessary to allow K9 to sniff their car.

The court addressed the factors comprising probable cause laid out by the government. It first found that LE quickly determined that the driver was not driving under the influence, so the lane line violation was not very probative. Neither was the occupants’ nervousness. The fact that the occupants gave different travel histories as well as were evasive and hesitant was given more weight. The third party and overdue rental were indicative of drug trafficking and therefore weighed in favor of reasonable suspicion. The occupants’ criminal histories were also concerning and weighed in favor of probable cause. Therefore, the court, under a totality of the circumstances analysis, found there was sufficient reasonable suspicion to wait for a K9 team.

The court then moved on to whether the K9 was sufficiently reliable to have provided probable cause to search the car. The record showed that this agency only purchased “finished” dogs that have already been trained by professional trainers. In addition, this handler completed an 80 hours with another dog and 40 hours with this dog. They were certified, having passed drug detection tests on different rooms and vehicles. However, while the handler did not know the exact location of the finds, the handler knew how many locations were to be searched and how many of those locations had finds. The team again passed certification the next year. The defense jumped on this type of training, describing it as non-blind since the handler might have deduced where the finds were and thus purposefully or unconsciously cueing the K9. The court looked to the Jordan case out of Utah in which it was held that a K9 team was not reliable even though certified because that certification process did not require any blind testing. Based on that case, while this K9’s successful certification does suggest an ability to detect drugs, due to the procedures used, the certification alone is insufficient to establish reliability. However, the court also recognized that certification is not required for a K9 to be determined to be reliable. Under Harris, so long as the K9 has “recently and successfully completed a training program that evaluated his proficiency in locating his drugs,” the K9 will be considered reliable. Here, this K9 had had such training. Occupants did not challenge the training methods or practices employed by the company who initially trained the K9. This K9 team completed an additional 40 hours of training in March of 2016. After this initial period of training, the team participated in monthly trainings with the Louisiana State Police. Between March 2016 and January 2017, when the stop was made, the team participated in nine training sessions. Of the nine sessions reflected in K9’s “PackTrack” training record, five were “self-monitored”—in which handler would place the finds himself and assess K9’s ability to locate the find—three were trainings monitored by Lieutenant—in which other LSP handlers and dogs also participated—and one was an NPCA recertification exam supervised by Lt. In addition to these regular trainings, the team also participated in daily obedience training, care, and maintenance, which were not documented in the PackTrack records. Between these various self-monitored trainings, group trainings, and daily obedience trainings, handler testified, he and K9 exceeded the NPCA-recommended 16 hours per month of training time.

The court held that while some trainings were not blind, the ones conducted by a training facility or the Lt were. In addition, handler testified that, in his recollection, K9 never failed to alert when drugs were hidden in a search location. Handler also testified that false alerts by K9 when no drugs were present were “rare,” and that “there was always an extenuating factor” that explained the false alert, such as wind that carried the scent of drugs from a vehicle with a find to a vehicle with no find. Handler only definitively recalled one instance in which K9 falsely alerted, and as handler described, that situation was unusual—a drug find had been placed in one vehicle but was later moved to a second, and K9 alerted on the lingering odor still present on the first vehicle.

The court held that given the extent of K9’s training, regular maintenance training in which K9 demonstrated reliability in detecting drugs and avoiding giving false alerts, the Court is satisfied that K9’s alert in this case was sufficiently reliable, even though the certification procedures to which he was subject may have been less than they should have been.

Occupants then claimed that K9’s behavior did not result in an alert. However, the deployment of K9 was captured on video. During the search, handler first directed K9 to the rear of the vehicle, around the license plate area. Handler then led K9 around the vehicle counter-clockwise. Near the vehicle’s right exhaust pipe, K9 appeared to become distracted, and began walking away from the vehicle towards the berm next to the highway. Handler then tugged K9’s leash, redirecting his attention to the vehicle. Handler testified that K9 was particularly sensitive to exhaust odors, and likely lurched away in an attempt to avoid the source of the smell. The expert testified that, in his experience, such aversions are common, and that K9 did appear to be exhibiting signs of aversion to the exhaust. After redirecting K9 and completing a pass around the vehicle, handler walked K9 around the vehicle again, to ensure that K9 sniffed the area he had missed before. This time, K9 sat near the right rear quarter panel. The expert agreed that K9 had likely missed this spot during his first pass around the vehicle due to his aversion to the exhaust.

Handler testified that when approaching the rear passenger-side quarter panel of the vehicle on the second pass, K9 “clamped his mouth, start[ed] breathing heavily . . . through his nose,” and “tense[d] up a little bit[.] According to handler, K9 also squared himself to the vehicle, stared, and sat. The video shows K9 sitting near the rear passenger-side tire. The Court found no reason not to credit the testimony of handler about his observations. In addition to being particularly expert in interpreting K9’s behavior given their experience together, handler was actually present and right next to K9 when he witnessed K9’s alerting behavior.

Occupants also argued that handler’s behavior after K9 sat down was inconsistent with a belief that K9 had alerted because handler did not immediately reward or praise K9. First, that it would be dangerous to do so alongside a busy highway and in the immediate presence of unsecured suspects. Second, and more importantly, it would be imprudent to immediately reward K9 for alerting because handler had no way of knowing whether or not drugs were actually present in the vehicle—that is, whether K9 had made a correct or a false alert. The court held that having carefully considered occupants’ arguments concerning whether K9’sbehavior constituted an alert, the Court concluded that it did. Because K9, a properly trained and reliable drug detection dog, alerted to the odor of narcotics in the vehicle, LE had probable cause to search the car.

Note: I think it’s telling that the court used the word “expert” to refer to the handler when it was considering the arguments regarding interpreting K9’s behavior. (There was also an expert witness on dog training and deployment that was probably proffered by the defense, The court was not impressed with his testimony). This court recognized not only that handler had specialized knowledge that would assist the court (the definition of what a court needs to find to determine someone to be an expert), it also seemed to recognize that perfection was not necessary to find reliability. Handler admitted to at least one false alert as well as the fact that his K9 didn’t like the smell of exhaust. Neither admission swayed the court’s thinking because they were both very adequately explained.

United States v. Muhammad (Minnesota 2022) 2022 U.S. App. LEXIS 15859 – Unpub.
Traffic Stop; Odor of Marijuana as Probable Cause

There was an active LE investigation in which one of the main targets drove an SUV. LE observed the target and a male passenger enter a house, emerge with a backpack, and leave in the SUV. LE followed and observed what they believed to be a drug transaction. LE observed a man get out of the SUV with an object which he brought with him when he entered the car. A traffic stop was initiated on this car for two lane violations, expired registration, and an obstructed plate. When LE approached, he smelled the faint odor of marijuana. After collecting the necessary documents from Muhammad, the driver, he had Muhammad come with him and seated him in the patrol car. He started writing a citation, but then needed the VIN so he opened the door to obtain that information. He again smelled marijuana. He went back to his vehicle and asked Muhammad about the smell. Muhammad clenched up and denied any marijuana use or possession. When LE gave Muhammad his citation and documents, he asked if he could ask questions. Muhammad agreed, and denied the presence of marijuana, narcotics, weapons, or unusual amounts of money. Muhammad refused to grant permission to search the car. LE believed he had probable cause and searched the vehicle. Marijuana and cocaine were found.

The court held LE developed probable cause to investigate a possible drug violation based on the odor of marijuana. Probable cause developed before he issued the traffic violation warning and completed tasks tied to the infractions. Therefore the motion to suppress was properly denied.

Note: At the time of this case, Minnesota had legalized only raw/flower cannabis for adults and for medical use.

Dumond v. State (Arkansas 2022) 2022 Ark. App. 292
Traffic Stop; Prolonged Detention

Handler pulled Dumond’s husband over for speeding. Dumond was the passenger. He obtained the proper documentation, called in, found out about their criminal drug-related history, and finished writing the citation. However, instead of giving them the citation, he approached them without it and asked if there was anything illegal, which they denied. He asked them out of the car and he saw Dumond trip and toss something which turned out to be drug paraphernalia. He then ran his K9 around the car. The K9 alerted and there was marijuana shake in the car.

The appellate court held that prior criminal history, standing alone, is not sufficient to establish reasonable suspicion. Since that was the only thing that handler could point to that would support reasonable suspicion of drug crime, and the citation was complete prior to the K9 sniff, the motion to suppress had to be granted.

Note: Not sure what happened here, but the way the opinion is written, it appears that the trial court and LE believed if the stop stayed under 15 minutes, it was good. That, of course, is not the state of the law. Even though it appears this handler was alone, he did call in information about two people, which may well have given him enough time to deploy his K9.

United States v. Stamper (North Carolina 2022) 2022 U.S. Dist. LEXIS 98311
Traffic Stop; Prolonged Detention

Stamper was stopped for driving a car with a fictitious registration sticker. Therefore, this was a valid traffic stop.

There was a subsequent K9 sniff of the vehicle. Stamper complained that LE knew prior to the stop of his vehicle that it displayed a fictitious tag, the ten-to-twelve-minute detention of his vehicle violated the Fourth Amendment. During the suppression hearing, however, LE testified that there was no delay between the K9 sniff and the check of Stamper’s vehicle registration status and VIN number — both were occurring simultaneously, and the K9 sniff did not take longer than the records check. Stamper, on the other hand, failed to present evidence at the suppression hearing that contradicted the brevity of the stop in its entirety or supported a finding that the K9 sniff prolonged the time of the stop. Accordingly, the Court was satisfied that the simultaneous K9 sniff of Stamper’s vehicle while LE was performing traditional incidents of the traffic stop was within the bounds of the Fourth Amendment.

The motion to suppress was properly denied.

Note: This opinion was a review of a lower magistrate’s memorandum and recommendation. Therefore, there was no statement of facts but it’s clear that both LE and the court knew what the rules were.

US v. Hylton (9th Cir. Nevada 2022) 30 F. 4th 842
Traffic Stop; Prolonged Detention; Inevitable Discovery

An armed robbery occurred at a bank in Henderson, Nevada. A couple of months later, LE was called to an unconscious driver in the middle of the busiest intersection in Las Vegas. LE was able to wake him, and find out it was Hylton. They asked him for the appropriate documents which he said were in the car. They could not locate the documents. LE then got his name and date of birth and called that in. Dispatch came back with Hylton’s criminal history, showing he was a felon. Hylton was arrested and LE confiscated a gun from him, which was very similar to the one used in the robbery. Ballistics matched the gun in the car to one that was fired at the scene.

Hylton filed a motion to suppress the gun, claiming the criminal history check prolonged the traffic stop and there was no independent reasonable suspicion that allowed the prolongation. The court held that a criminal history check is a negligibly burdensome precaution required for officer safety, and the officers thus did not need independent reasonable suspicion to perform the criminal history check. The court held, alternatively, that even if the criminal history check had unreasonably extended the traffic stop, the district court’s application of the inevitable discovery doctrine was not clearly erroneous.

Note: The court said also, “It’s true that in a footnote in Evans, citing two cases from other circuits, we noted that other “courts [have] observed that extending traffic stops to perform criminal history checks may be unlawful.” But that observation is not controlling here for two reasons. First, we have never otherwise held or suggested that criminal history checks are unlawful. And second, these two out-of-circuit cases preceded Rodriguez, which “recogniz[ed] [the] officer safety justification for criminal record . . . checks.”

“Having rejected Hylton’s Evans argument, we join our sister circuits and hold that because a criminal history check “stems from the mission of the stop itself,” it is a “negligibly burdensome precaution[]” necessary “to complete [the stop] safely.” The officers thus did not need independent reasonable suspicion to perform the criminal history check.

While this is not a K9 case, it’s important because it clearly shows that the traffic stop mission (which is the time frame in which your K9 sniff needs to occur if you have no other reasonable suspicion) includes a criminal history check.