Meyer’s K9 Law

Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from May 2023 (included are cases that were decided in the previous month; however, my search program only retrieves cases that are published and sometimes that takes a month or two. That then causes a delay in my having access to the case). Also, a caution here: some cases are unpublished (“Unpub.”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. Also, the arguments in these cases can be used; the case just can’t be cited as precedent in court.

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

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.)

MARIJUANA UPDATE FROM JUNE 2023 FOR JULY 2023 UPDATE

FEDERAL

A coalition of cannabis attorneys, researchers and some of the country’s largest cannabis companies are urging the Biden administration to stop classifying marijuana as a Schedule I substance and to either reassign it to a lower tier or deschedule the drug altogether.

STATES

Florida’s attorney general has urged the state Supreme Court to reject an effort to legalize adult-use marijuana via a constitutional amendment, saying in a brief that the proposed ballot initiative misleads voters in multiple ways.

A potential ballot initiative that seeks to legalize recreational marijuana use in the Sunshine State has surpassed the number of signatures needed to get it in front of voters in 2024, but it still must survive a challenge in the state’s highest court. Florida’s attorney general has urged the state Supreme Court to reject an effort to legalize adult-use marijuana via a constitutional amendment, saying in a brief that the proposed ballot initiative misleads voters in multiple ways.

Oregon Gov. Tina Kotek has signed into law a measure that attempts to curtail the number of unlicensed cannabis grow facilities by hitting property owners with penalties and jail time, restoring wiretap and surveillance powers to police, and creating a new marijuana cultivation felony.

INDEX OF CASES REVIEWED FROM JUNE 2022 FOR JULY 2023 UPDATE

United States v. Robinson (Michigan 2023) 2023 U.S. Dist. LEXIS 95587

Reliability Foundation; Handler as Expert

An armed suspect ran from LE and a K9 team was brought in to locate the firearm as when they caught the suspect, he was no longer armed. The K9 team searched along the route the suspect took and located the firearm. Suspect Robinson then filed a motion to suppress the testimony of the handler.

The government told the court that the handler’s testimony will include “the conditions that affect and how long the human scent generally remains on articles, including a gun.” Handler will assert that “K9’s actions—recorded on handler’s body camera—which include an article search lasting only seconds and a near direct route to the recovered firearm—indicate that, when K9 alerted to the firearm, the firearm had not been present in the backyard for more than four-and-a-half hours from the time human scent/odor/tissue was deposited onto the article.” Further, handler will testify that, based on his training and experience, “complicating factors such as the passage of time, weathering, or contamination would have extended the duration of the article search and that the short duration and direct route K9  took are indicative of an absence of those factors.” Finally, he will testify that its relatively “clean” state and lack of discoloration lead him to conclude that the firearm had not been “exposed to outdoor conditions” for more than the four-and-a-half hour period.

The appellate court held that handler’s technique of the article search that K9 team conducted can be and has been tested, is maintained according to industry standards, and is generally accepted in the relevant expert community. The article search is part of an industry-standard curriculum for canine handlers.  K9 team have been trained, tested, and certified to conduct article searches by the National Association of Professional Canine Handlers (NAPCH). NAPCH employs industry-standard training and certification criteria for canines and their handlers. It also uses uniform  testing criteria, and its standards and certifications are accepted as best practices for the canine-handling field. The NAPCH article search test is a “comprehensive evaluation of the K9 team’s ability to locate items that have recent human odor on them.” A canine must locate at least three of four articles during NAPCH article search certification testing. K9 has a 100% rate of locating items during this type of testing. K9 team are annually certified by NAPCH as a patrol narcotics canine team, which encompasses narcotics, obedience, tracking, article searches, building and area searches, and aggression.

While handler’s use of K9 in conducting article searches has not been published in a peer-reviewed journal, handler evaluates K9’s effectiveness at article searches weekly, and the team is certified annually by experienced canine-handler trainers and master trainers. The training and testing logs that handler maintains, which note successful and unsuccessful article searches in controlled environments and the conditions of those searches, are comparable to known error rates. In considering the Daubert factors, the Court finds that the Government has met its burden of proving that Brandon’s testimony is sufficiently reliable. The Daubert factors are (i) whether the underlying technique can be and has been tested; (ii) whether the technique has been subjected to peer review and publication; (iii) the known or potential rate of error; (iv) the existence and maintenance of standards governing the technique’s operation; and (v) whether the technique is generally accepted in the relevant expert community.

Since 2020, K9 team has conducted over 200 article searches in a variety of conditions through training, testing, and on-the-job performance. Handler explained that, in an article search, a canine attempts to locate an object that is emitting “fresh human odor.” Thus, the article search is a function of a canine’s superior ability to detect the scent of fresh human biological tissues—such as skin, sweat, or saliva—deposited on objects. Handler also explained that certain conditions—location, the passage of time, weather, and levels of human contamination—impact how effective a canine is at detecting fresh human scent. He stated that, for example, rain, wind, sun, human odor, human traffic through an area, and increases in the length of time between when an article is discarded to when a search is conducted can all make an article search more complex or longer in duration. Through approximately eight hours of weekly training with K9, handler replicates real-world search conditions and uses different locations, weather conditions, and levels of contamination to develop Ares’s ability to locate articles. He testified that, through these searches, he has become familiar with K9’s physiological signs and the impact of various complicating factors on K9’s effectiveness in locating articles.

The longest period of time between when “human scent/odor/tissue was deposited onto [an] article” and when K9 has successfully found that article is four-and-a-half hours.

The Government has shown that handler’s testing, training, and experience create a sufficiently reliable foundation for the opinions he proposes to offer in this case.

Robinson contends that handler’s subjective opinions of K9’s performance are inconsistent with the actual results of K9’s performance. He points to two entries in handler’s training logs that show that on two previous trainings, K9 was unsuccessful at locating items in searches conducted as part of K9’s training. However, given that handler’s testimony has a reasonable factual basis, “any remaining challenges merely go to the weight, as opposed to the admissibility, of the expert testimony.”

Note: The court held that the handler could testify to the proposed testimony as listed in the case (see above). The government withdrew two statements that they initially wanted from the handler; instead they agreed that statements that the firearm had been “recently” discarded and that the scent was a “fresh” odor were not useable. The court agreed, stating such qualitative language would be hopelessly ambiguous, opening up the possibility that jurors would not have a uniform understanding of what those terms meant. Framing the opinion in terms of a defined four-and-half hour period in which human handling took place is more definitive. So pretty much a win for us.

United States v. McCarley-Connin (Ohio 2023) 2023 U.S. Dist. LEXIS 95896

Reliability Foundation

LE was alerted to a package that was interdicted by the USPS because it bore indications of drug trafficking. A K9 alerted to the package. When opened after a search warrant was issued, LE discovered $19,660 in cash (mixed bills). Package 2 was full of fentanyl.

McCarley-Connin complained that because K9 was only certified to alert on marijuana, cocaine, heroin, MDEA, methamphetamine, and their derivatives and not cash or Fentanyl. K9, therefore, could not reliably alert on anything but those drugs. That unreliability, in turn, undercut the probable cause for the warrant for the package. He also brought an expert that would call into question K9’s reliability — pointing specifically to insufficient information in K9’s training records and the lack of documentation regarding how K9 performed the sniffs of both Packages 1 and 2.

The court addressed this issue and stated that K9’s alert provided probable cause as to Package 1’s apparent contents. Unlike a two-legged informant, K9 could not have consciously misinformed LE. Nor could LE have known, when he prepared the affidavit, that the alert was a false positive. Thus, he could not have deliberately included false information, or done so with reckless indifference to the truth in his affidavit (the standard for a Franks hearing). In addition, this K9 had been found reliable before in a similar situation where the packages revealed fentanyl. That court upheld the reliability of the alerts in that case.

Note: This was a bit of a Hail Mary pass as McCarley-Connin did not bring these issues in the trial court. The take-away, though, is that a K9’s reliability is not impacted if it 1) has been properly trained and certified and 2) if the item upon which the K9 alerts does not contain one of the items the K9 has been trained on. This opinion didn’t say it, but it’s common sense, at least among handlers, that a K9 is only going to alert to trained scents and is alerting on the presence of those scents even if there is no appreciable quantity of the item present. Fentanyl is often cut into heroin and other substances and cash from drug dealers is often infected with any drug it has come into contact with it. This K9 was probably alerting to the residue of those drugs.

United States v. Lopez (Florida 2023) 2023 U.S. Dist. LEXIS 97244

Reasonable Suspicion; Standing; Reliability Foundation

A cross deputized Sheriff’s deputy and USPS inspector got an alert about a parcel addressed to Castro going to an address that he believed accepted a package of fentanyl a few months earlier. The handwriting and the packing on the two parcels was similar; the return addess on the newest package was fake; the return address was about 100 miles away from where the package was mailed; the name Castro could not be associated with anywhere new the listed return address; he knew that drug dealers often used USPS becasue they cannot open packages without a search warrant and that their turnaround times severely limit USPS from doing so; the sender spent $128 in cash to send the package; the label was handwritten rather than using a pretyped label which could have identified additional facts about the sender; and the parcel was heavily taped in an apparent attempt to mask the odor of the contents.

The package was pulled from the line and, about 30 minutes later, a K9 was brought in to sniff it. The K9 alerted and LE obtained a warrant to search the package. It contained over 4 pounds of meth.

A tracking warrant was obtained to do a controlled delivery. Lopez took delivery and later opened it and took items out (LE was watching from a distance). Lopez claimed that he thought the parcel contained marijuana. He claimed he did not know Castro.

The K9 team completed a 6 month certification course which they passed. This K9 was trained specifically as a scent dog. This K9 was recertified once a year and underwent 16 hours of training a month. K9 never failed his certification tests or training sessions. There were two alerts in the field where no drugs were found, but these were not considered a failure as the source of the scent could have been removed prior to sniff. K9 also had run training runs in the USPS facility.

The court first addressed the standing issue (or right to privacy). Here, Lopez denied being Castro (the addressee) or that he even knew a Castro. Lopez brought the package to co-defendant who opened it in view of Lopez and said that he thought the package contained marijuana, not meth. In a previous circuit court case, the court held that just delivery to a place of business and not being the individual to whom the package was addressed created no standing (or right to privacy). Therefore there was no standing here; in addition, Lopez’ motion fails for other reasons.

The reasonable detention issue was then addressed. Here, the court held that the deputy/inspector had reasonable suspicion sufficient to temporarily detain the Castro Parcel pending the K9 sniff. The deputy/inspector credibly explained a number of specific and articulable circumstances that gave him a particularized and objective basis to suspect that the Castro Parcel was involved in illegal activity. By far the most significant were the facts regarding the Return Address and Delivery Address. Deputy/inpsector’s check of open-source databases and Google or Apple Maps strongly indicated that the Return Address simply did not exist. The fact that the address could not be located or associated with any individual (much less the individual listed as the sender), combined with the facts that it misspelled the (fake) address, gave the wrong zip code for the city listed, and listed a zip code 100 miles away from where the parcel was actually mailed all objectively give reason to believe the sender did not want to be identified or associated with the parcel. Similarly, there was specific and articulable reasons to believe that the recipient was trying to avoid detection based on the fact that Ramos could not locate anyone named “Castro” associated with the Delivery Address (based on open-source databases) nor anyone with that name who reportedly earned wages at that address (based on state wage reporting records). It was reasonable for LE to view such facts with suspicion that warrants further investigation.

The court held this was a reasonable amount of time.

K9’s alert established probable cause to obtain a search warrant and search the Castro Parcel. Probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Here, the Government sufficiently established K9’s reliability such that his alert on the Castro Parcel amounted to probable cause. As handler testified, both he and K9 have been trained through a bona fide training program and certified by a bona fide organization (FLECA). K9 has since undergone near-weekly training sessions and has been re-certified three more times (including in the year during which the subject inspection occurred) without ever failing a certification test. Notably, the training courses have focused on training K9 to detect odor of narcotics and have specifically trained against alerts for other odors by incorporating “distractors” into the training. As handler testified, not alerting on the “distractors” is part of the certification examination that K9 has consistently passed.

Lopez pointed to the fact that handler was convinced his K9 was never wrong and testified that way. The court stated that handler’s unwillingness to even consider that an alert that does not lead to the discovery of narcotics could be an error is troubling. While it is a distinct and reasonable possibility that such alerts are accurate reactions to residual odor from drugs that were (but are no longer) present or are too well hidden to find, one must acknowledge that it is at least possible for even well-trained dogs to make mistakes. An unwillingness to at least consider the possibility does potentially point to a dangerous “head-I-win-tails-you-lose” mindset wherein a K9’s performance can never be questioned. The suggestion that K9 has never alerted on anything other than a controlled substance – even in his earliest training days when he was first trying to figure out which alerts would yield rewards and which ones would not – is also implausible. However, ultimately, it is the evidence of K9’s training, and his certification from that training, that carries the day. As discussed above, based on handler’s credible testimony, that training accounts for, and minimizes, the possibility of false positive alerts through its use of distractors and tests designed to confirm that the K9 will not alert when he should not in addition to seeing if he does alert when he should. That evidence is more indicative of K9’s reliability than attempts to measure his performance in the field.

Note: Lopez also attacked the search warrant, claiming the issue of the K9’s reliability indicated that the sniff and alert did not rise to probable cause. Fortunately, this court found that the overwhelming testimony of successful training and that K9 had almost perfect scores on all phases at certification and at trainings carried the day. even though they expressed criticism. It’s okay to admit your K9 isn’t perfect. In fact, it will actually show that you are trustworthy and unbiased when it comes to your K9. That is exactly how you want to appear in front of the finder of fact. Here, this handler almost lost the case because he couldn’t admit his K9 was perfect and also because his record keeping on the unproductive alerts was also sketchy. You need to keep records of everything: certifications, trainings and results of trainings, failures and remediation. Don’t give yourself more of a headache on the stand by being blind to the faults of your K9 (even though s/he is the best K9 ever!)

Joseph v. State (Wyoming 2023) 2023 WY 58

Traffic Stop; Sniff as a Search; Odor of Marijuana as Probable Cause

Joseph was pulled over by LE for lane violations. When LE approached to get documents and talk to driver (Joseph), LE noticed luggage covered with a blanket. LE asked her travel plans and she said she was driving from Spokane, Washington, then to Canton, Ohio and then to her home in Elkins, Virginia. She also claimed to have been speaking at vigils (at least one of them for her son) in Arizona and maybe Nevada.

Joseph did not have her registration so was asked to join LE in his cruiser so he could run her information. Joseph was very talkative and nervous, even though LE had told her she would only get a warning on the traffic offenses. At some point, she claimed her son died 15 years ago, but she previously said she was bringing his belongings home with her.

All of this indicated to LE she might be a drug trafficker, given that her story didn’t make sense and her luggage was covered by a blanket (who does that?). A K9 team was called and about 40 minutes later, the team arrived and the K9 alerted. Inside the car was 25 pounds of wax, 2 pounds of shrooms and 58 pounds of raw marijuana in the luggage.

The other case in this consolidated appeal was a case where handler hung out at truck stops with his K9 and conduct consensual encounters. Curtis had a rental vehicle which was considered a vehicle of interest because of that status. LE pulled his police car near the rental so that he could reach the gas pumps and position his dash cam video the encounter. LE started to wash his window. LE greeted Tarzia and asked about his travels. He said they were house hunting. LE believed that Tarzia was referring to someone who entered the store. Tarzia returned to the rental car and continued the discussion about real estate. Tarzia was standoffish and rigid. LE started to notice inconsistencies and oddities in their travel plans and descriptions of their real estate business.

LE asked about the rental since it was a high ticket car. Tarzia said they rented it in Vegas, but when Tarzia showed the contract to LE, he was shaking and breathing heavily. The contract said they rented it in San Francisco. At that point, they were detained and LE got his K9 out and had it sniff. The K9 alerted and found in the car was 150 pounds of marijuana.

The two defendants then claimed that the K9 sniff of the vehicles’ exterior was an unreasonable 4th Amendment search because it was not supported by probable cause (based on the state constitution). However, the court recognized that a sniff is not a search and that the actual question concerned the privacy interest in the public airspace outside a vehicle, and no state precedent was cited that recognized such a privacy interest, particularly considering the minimally intrusive nature of an exterior K9 sniff.

The appellants then claimed that since Wyoming had legalized hemp, they should skate. However, the first K9 was trained to alert to marijuana regardless of its potency or form. The court determined that meant that it was unknown whether the first K9 would alert on hemp. The second K9 was not trained on hemp, but handler testified that a marijuana trained K9 will alert on hemp because of the very similar chemical compositions. Again, the court held that it was unknown whether the 2nd K9 would alert to hemp.

As a hail Mary pass, the appellants asked the court to apply Colorado law under McKnight. However, that opinion did not address how the legalization of marijuana created a privacy interest in the airspace outside the vehicle.

Ultimately, the court held that even if an exterior sniff could be considered an intrusion, they have not demonstrated how the legalization of hemp has made the exterior sniff unreasonable under all the circumstances if it is not supported by probable cause.

Note: The issue on appeal was framed badly by defendants, arguing that a sniff to be supported by probable cause. However, the appellate court went the opposite way and held that the sniff was not a search. Interestingly, defendants did not claim there was prolonged detention, which might have actually been supported somewhat by the evidence. However, that analysis is very fact driven and each case needs to be addressed separately. The best thing, though, in this opinion, is the court differentiates the sniff as a sniff of the open air surrounding the vehicle which even McKnight did not address.

Ketring v. City of Loveland (Ohio 2023) 2023 U.S. Dist. LEXIS 98882

Excessive Force; Qualified Immunity

K9 team dispatched to a call in which was reported. On scene first, handler spotted V lying in a driveway with gunshots to his legs and a puddle of alcohol-smelling vomit next to his head. There were other people there and handler was told that the shooter was either Kody Ketring or Typler Ketring.

When a lieutenant arrived, he was told by the victim’s sister that the shooter was Tyler. The K9 team was then assigned to begin tracking the suspect. K9 picked up a scent and began to track. Earlier testimony revealed it was understood that handler had authority to use his K9 to “end the threat” if a suspect refused to follow commands.

The K9 tracked to a house where Kody Ketring was (although his ID was unknown at that time). Kody resembles his brother, Tyler. Kody told LE to come back with a warrant and he was not coming out. He did not ID himself, but eventually came onto the front porch with his hands up. He spun around to show LE he did not have any weapons, but then turned to go back in the house. At that point, handler released the K9. Kody was able to get the screen door shut on K9’s head and K9 was unable to gain control of Kody. LE ran up and yanked open the door and K9 was then able to bite Kody on the shoulder. The handler got the K9 off Kody and handcuffed him.

Kyle went to the hospital and charged with obstructing. Once he was treated at the hospital, he was booked on the charge. Ultimately, the charge was dismissed.

Kyle brought 16 claims against various officers, handler, and the City of Loveland; charges of violating § 1983 for unnecessary use of force, failure to protect, failure to provide proper training and supervision, failure to provide proper warning, failure to intervene, violating policy/ practice/custom, assault and battery, willful and wanton conduct, and failure to investigate/ respondeat superior. He also advanced claims for negligence, personal injury, assault and battery, malicious prosecution/abuse of process, liability under state code of assault and battery, interfering with civil rights, and strict liability state code regarding the K9 bite.

The appellate court held that the record and precedent support the application of qualified immunity for handler and the Lieutenant. Looking at the scene from handler’s perspective: He arrives at the crime scene to find a man bleeding on a driveway. He is told the man was shot. Then he is told to begin tracking the suspect with his police dog. His dog leads him to a nearby residence. A man inside matches the description of the shooting suspect. Yet the man refuses to come out and demands that the officers come back with a warrant. His belligerence prevents the officers from being able to determine whether he is the one who shot the man bleeding in the driveway. And, by extension, they cannot be sure he is not armed. Eventually he comes out — but barely. The man is still within an arm’s reach of the front door. Part of handler’s authority as a K9 officer is to end threats when suspects refuse to follow law enforcement commands. So, to end the threat, handler deploys K9. Ketring flees, slams K9’s head in the door, the officers open the door, and K9 bites Ketring.

Applying the Graham factors, then, LE acted reasonably, the court held. Ketring, though he was not the actual suspect, was in the residence that K9 led the officers to. But this was not simply a case of being in the wrong place at the wrong time. The facts and circumstances show that the police responded reasonably. First, what was the severity of the crime? It was grave. The officers were investigating a shooting—they had just found a man with multiple gunshots lying in a driveway. Second, did the suspect poses an immediate threat to the safety of the officers or others? From the officers’ perspective, yes. And that’s the perspective the court considers.  When handler got eyes on Ketring, he was able to confirm that he matched the shooting suspect’s description. So they were encountering a belligerent man, matching the suspect’s description, who refused to come out. And Ketring made a tense situation worse by screaming and cursing at the police officers. His behavior impeded the officers’ ability to confirm his identity to verify whether he was the shooter. So they could not be sure he was not the shooter, or that he was not armed. He thus posed a threat to the officers’ safety and to others. Third, was he actively resisting arrest or attempting to evade arrest by flight? The officers had formed a perimeter around his house, so there was nowhere he could go. But Ketring was actively resisting, if not arrest, any ability for the police to investigate a serious crime for which the suspect was still at large. Even when he came out, he remained an arm’s length from the front door. It was not until Ketring was back inside his residence, having fled from apprehension, that K9 bit him and brought an end to the confrontation. Though handler did not give verbal canine warnings, that was because things were moving fast. The situation was changing rapidly. And, bear in mind, this was after Ketring had already received numerous commands to come outside and get down on the ground. In light of the relevant considerations, then, handler responded the way any reasonable police officer would. There is nothing plainly incompetent about his conduct that morning.

For related reasons, Lieutenant is entitled to qualified immunity as well. Ketring claims that Lt. failed to tell handler that the shooter was Tyler, not Kody. In Lt.’s dashcam footage, someone can be heard asking, “Where’s Tyler Ketring live?” That question suggests that Tyler was a suspect. And he reported later that someone had told him that Tyler Ketring had shot the victim. Ketring argues that handler “asserted that he was unaware of the information possessed by Lt.” But he does not make any cite to the record supporting that claim. In fact, handler’s deposition testimony seems to contradict Ketring’s characterization of the facts — he testified that he heard Lt. talk with the lady who told him about Tyler Ketring and was present while they spoke about Tyler. But even viewing the facts in a light most favorable to Ketring, nothing shows that Lt. engaged in any unconstitutional behavior. Lt. instructed handler to begin a track of the suspect. The K9 search led to the Ketrings’ house. At that point, critically, the object was to determine if the shooter was at the house. But Kody Ketring’s belligerence made that impossible. In any case, Ketring has pointed to nothing that suggests Lt. is plainly incompetent for telling handler to initiate a K9 track for a shooting suspect without telling him the suspect’s name. The purpose of the K9 track itself is to find suspects. That the search led the officers to the Ketring residence was an indicator that a potential suspect was there — not a conclusive one but still one that justified investigation. During that legitimate investigation, Ketring escalated matters by fleeing from the police. It was not until after he began to flee that K9 bit him. And case law makes clear that there is nothing unreasonable or unconstitutional about using a police dog to apprehend a potential suspect who is fleeing the police or otherwise not responding to their efforts to complete a lawful investigation.

One more observation warrants mention, according to the appellate court. The Supreme Court has warned courts not to define clearly established rights at too high a level of generality. Ketring’s highly generalized “right to repose peacefully in his home” falls short of that standard. Such a “lofty definition of the right” fails to do what qualified immunity case law requires, which is to articulate a “concrete, particularized description of the right.” Besides failing to cite a case that supports that supposed right, he improperly frames it in overly broad terms.

Handler and Lt. were found to have qualified immunity. The City of Loveland was also found to be entitled to qualified immunity. The state claims were booted back to the state courts to be hashed out there.

Note: This court got it right. The facts were such that the use of a K9 for apprehension was appropriate which then shielded the handler and Lt. via qualified immunity.

Penaranda v. State (Maryland 2023) 2023 Md. App. LEXIS 384 (Unpub.)

Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for speeding after trailing Penaranda for 3 hours. LE immediately smelled the odor of marijuana coming from the car and Penaranda was told to get out. He refused and LE pulled him out. As LE walked him to the rear of his car, LE smelled the odor of marijuana on his person. A search of his person revealed a pharmacopeia of drugs and, in the car, a small amount of marijuana.

Marijuana was legalized and the odor of marijuana as probable cause for a search was eliminated by statute after the searches in this case. However, the court held in this case that the odor of marijuana was not sufficient probable cause to search, even based on the old law.

Note: While in other states there is an analysis to go through to determine whether the facts (including the odor of marijuana) rise to the level of probable cause, because Maryland law now says that this odor is not probable cause, this odor will not be considered even as part of the probable cause analysis. You will need to look for other sources of probable cause.

United States v. Pavao (Rhode Island 2023) 2023 U.S. Dist. LEXIS 100590

Traffic Stop; Reasonable Suspicion; Prolonged Detention; Probable Cause

LE stopped Pavao because he was swerving. The car stopped promptly and the registration was clear. LE approached on the passenger side and noted the odor of marijuana. Pavao gave LE his license and registration. Pavao’s hand was shaking and he was chain-smoking cigarettes. He claimed to have smoked a joint earlier in the day and was tired. There was marijuana residue on the floor of the vehicle which Pavao called marijuana crumbs.

Two minutes after the stop, LE called for back up so that he could search the car. LE noticed that Pavao kept reaching toward his waistband during the seven minutes it took for another LE to arrive. At that point, Pavao was ordered out of the car and he pulled a baggie of marijuana out of his jacket. He told LE here you go, now you don’t need to search my car. Pavao was also patted down and a gun was found concealed on his person.. LE searched his car anyway and found contraband.

In a motion to suppress, Pavao claimed that he was subjected to a prolonged detention without reasonable suspicion.

The court held that LE shifted from the investigation of the traffic stop to an investigation to a marijuana case. However, LE only had the odor of marijuana, an admission that Pavao smoked earlier in the day and the marijuana “crumbs.” This wait could only be justified by a reasonable suspicion that there was additional marijuana in the car which exceeded the 1 oz. demarcation between a civil and criminal violation or other, separate crimes.

The Court did not disagree that the odor of marijuana is a relevant circumstance to be considered, along with others, in the determination of whether in the “totality of circumstances” there is reasonable suspicion to believe a crime is being committed. However, the smell of burnt marijuana no more indicates that an unlawful amount of marijuana is possessed than it does that only one joint is in the car — or, more accurately, was in the car at the time it was smoked. Yet if there is not reasonable suspicion of more than 1 oz. in the car at the time of this stop, there was no criminal activity afoot at all.

LE testified that it was his practice to search for additional marijuana every time he found any marijuana at all, if the subject lacked a medical marijuana card. He justified it by saying he couldn’t know without searching whether the suspect possessed an unlawful amount. The law, however, does not authorize a search because the officer “doesn’t know” whether a person possesses contraband. That rationale, if allowed, would support a search of the person, or the vehicle, of everyone who possessed the permitted and thoroughly noncriminal amount of less than 1 oz. of marijuana. “Reasonable suspicion” by its very terms required LE to have at minimum a suspicion of criminal possession of marijuana, not simply a failure to have any idea whether Pavao possessed a criminal quantity or not. Continued detention must be “independently supported by individualized suspicion” of criminal activity. The fact that Mr. Pavao’s hands were shaking, or that he appeared nervous, adds nothing to the reasonable suspicion equation. It is not uncommon for those stopped by police to exhibit nervousness. Nor was it accompanied by an unwillingness to provide identification. Nor did Pavao “adjusting” his waistband add anything. At that point, he had touched his waistband only once and, indeed, LE was already on his radio calling for backup, having made the decision to hold the vehicle to search it.

Note: This is another jurisdiction that has decided that LE must prove that the amount of marijuana is over the 1 oz. limit prior to the search because under one oz. is now legal. The court also mashed up the analysis of probable cause v. reasonable doubt. “A search of a vehicle requires probable cause to believe criminal activity is “afoot.” This is incorrect. Reasonable suspicion is the level of evidence needed to determine whether criminal activity is afoot, while probable cause requires evidence that shows it is more probable than not that criminal activity is happening.  When LE said he searched every car with a legal amount of marijuana because he does not know if there is an illegal amount, this steered the court in the wrong direction. What the evidence and legal arguments should have established was that the odor of marijuana with only a legal amount found establishes probable cause that there is addition, illegal marijuana as well.

Berrier v. Minn. State Patrol (Minnesota 2023) 2023 Minn. App. LEXIS 201

Accidental/Unintentional Bite; Sovereign Immunity

Berrier worked at a car dealership in Owatonna that serviced state patrol vehicles. On March 15, 2019, a state patrol officer, accompanied by a K9, brought an official vehicle to the dealership for servicing. The officer failed to maintain control of the K9, which attacked Berrier without provocation. Berrier was seriously injured during the attack, and some of her injuries are permanent (and horrific).

Following the incident, Berrier sued state patrol. Her complaint alleges that, “[a]s a direct and proximate result of the negligence of [state patrol], [Berrier] sustained serious injuries, pain and suffering, disability, emotional distress, and doctor, hospital, and other medical expenses past, present and future.” The complaint does not cite section 347.22, Minnesota’s dog-bite statute, which imposes strict liability on a dog owner for injuries resulting from an unprovoked attack.

Shortly before trial, Berrier confirmed that she intended to pursue two alternative theories of liability against state patrol—strict liability under the dog-bite statute and ordinary negligence. State patrol moved to dismiss Berrier’s section 347.22 claim (strict liability). It argued that, as a state agency, it is immune to claims under the dog-bite statute. State patrol also argued that Berrier’s complaint failed to provide adequate notice of the statutory claim because it did not cite the statute. State patrol now challenges the district court’s denial of its motion to dismiss. It argues that sovereign immunity bars Berrier’s section 347.22 claim. Additionally, state patrol contends that Berrier’s complaint did not sufficiently plead such a claim.

Berrier argued that the legislation regarding dog bites made the “owner” of the dog strictly liable and this meant that the legislation waived sovereign immunity for the State. The appellate court disagreed and stated that, since the legislation does not so plain, clear, and unmistakably waive sovereign immunity, the state is immune from liability under the statute.

The appellate court concluded that Berrier cannot sue state patrol under section 347.22 because the legislature did not waive sovereign immunity for claims brought under the statute. Accordingly, the denial of state patrol’s motion to dismiss Berrier’s section 347.22 claim is reversed and remand to the district court for further proceedings on Berrier’s additional claim of ordinary negligence.

Note: This was an accidental, unintentional bite. However, this does not absolve the handler at this time. Berrier still has a negligence claim and that will probably suffice for her to get damages. The handler will be on the hook for those damages unless the handler can show that he/she did everything they could to make sure the K9 would not escape but that the K9 escaped under conditions that were not foreseeable. Those facts are not discussed here.

State v. Green (Tennessee 2023) 2023 Tenn. Crim. App. LEXIS 209

Traffic Stop; Alert as Probable Cause; Reasonable Suspicion; Odor of Marijuana as Probable Cause

Handler conducted a traffic stop of a vehicle in which Green was a passenger for failing to dim headlights. Handler noticed three air fresheners. There was a backpack between Green’s feet and when asked, both occupants denied possession of the backpack. Consent was denied and both occupants were removed.

At that point, handler got his K9 and did an open air sniff of the vehicle. K9 alerted and handler asked if there was anything inside the vehicle. Both occupants said no, and handler told them that the driver could be charged with anything found in the vehicle. The driver then encouraged Green to talk and Green said he got the backpack from his brother but he didn’t know what was inside. A gun, marijuana, packaging and scales were found in the backpack as well as a charger for one of the phones found on Green’s person.

Green claimed that since hemp is now legal, and the smell of marijuana is the same as that of hemp, the alert of the K9 was not sufficient as it could have been alerting to a legal substance. There was no proof in the trial court of the K9 being able to distinguish between hemp and marijuana. However, the court held, the applicable and only Tennessee Supreme Court decision (State v. Hughes (Tenn. 1976) 544 S.W.2d 99, 101 ). While this decision was about an LE officer detecting the scent rather that a K9, the court here said that there was no distinction that could be made. Therefore, the K9 alert was sufficient for the search of the vehicle and by extension the backpack. Finally, the court held that there was additional evidence that added to the probable cause and that was the air fresheners and their distinct odor, the fact that both occupants disclaimed the back pack and the fact that when prompted by the driver, Green said the back pack was his brother’s and he didn’t know what was inside. Based on all this, LE had sufficient probable cause to search.

Note: The case that this court cited regarding the scent of marijuana is decades older than the legalization of marijuana. This, therefore, has set up a split in the appellate districts of Tennessee. There will be more litigation on this issue for sure.

Commonwealth v. Boyd (Pennsylvania 2023) 2023 Pa. Super. LEXIS 268

Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for tinted windows and what LE believed were counterfeit stickers. LE approached on the passenger side and asked the driver to roll down his window so LE could see inside. Driver Boyd immediately lit up a cigarette. LE requested the appropriate documents and while he could provide some, Boyd had to search on this phone for his insurance. He ultimately was not able to produce proof of insurance.

LE noticed signs that Boyd was nervous. LE also noted numerous air fresheners and possibly the odor of marijuana. Boyd admitted smoking marijuana earlier. He did not produce a medical marijuana card. LE also noted a gun holster in the back seat which was of concern. LE asked if Boyd had a conceal carry permit and found out that Boyd was a felon and therefore unable to possess firearms. LE also found out that Boyd was coming from a high crime area and was driving on a narcotics pipeline highway.

LE then obtained consent to search the interior of the car. He found nothing, so he opened the trunk. Boyd shut the trunk and withdrew consent. This did not allay LE’s concerns about a possible weapon. Also, upon inspection of the registration stickers, he determined that they were fraudulent.

Boyd was never able to produce proof of insurance, so according to policy, LE had the vehicle towed. A search authorized by a warrant found a gun and marijuana. That search warrant set out LE’s considerable training and experience which informed the opinion of the affidavit that LE believed a gun was present in the car.

The appellate court held that when coupled with the aroma of marijuana and Boyd’s admission that he smokes marijuana and possesses no MMA card, the additional presence of: common drug masking agents producing an “overwhelming” fragrance in the car; his lighting an aromatic cigarette as the officer approached the vehicle; his nervous and distracted demeanor; his traveling along a known drug-running corridor in a car bearing counterfeit inspection stickers; his additional admission that he was returning to Philadelphia after having visited the Bensalem Knights Inn, which is designated a high drug and firearm crime location; the presence of a particular gun holster—known by the officer to be sold with a gun included—on his back seat despite his status as a person not to possess a firearm; and his implausible explanation for the presence of the holster, taken together, formed probable cause to believe marijuana and firearms were in Appellant’s vehicle. The motion was denied.

Note: Here, the State relied solely on the search warrant as probable cause for the search of the impounded car. In other jurisdictions, an inventory search (without a warrant) would have also been permitted as long as the agency policy allowed it and it was done correctly. Also, there may have been enough evidence that a felon was in the possession of a firearm which would also rise to the level of probable cause, possibly on a public safety argument, particularly when Boyd’s story was implausible (he said the holster he had had for years but he only owned the car for a year.)

State v. Holmes (Delaware 2023) 2023 Del. Super. LEXIS 286

Alert as Probable Cause; Curtilage; Sniff of Storage Unit; Sniff of Common Area of Apartment Complex; Standing

LE served search warrants on Holmes’ apartment and storage unit. Both were based, at least in part, on K9 alerts.

LE was running an investigation on a large-scale drug operation. LE obtained a court order for a GPS tracker to be put on a target’s car. This target often visited Holmes at his apartment. LE also saw the target selling drugs. The target was searched at his home and a large amount of drugs were found. LE believed that a stash of drugs was located in that apartment complex. Further investigation revealed that Holmes lived in the complex and that Holmes was a large scale dealer as well. LE pulled the security footage of a day when the target visited the apartment complex and a black Dodge pickup was leaving (matching the description of Holmes’ pickup). LE found out that a female had rented the apartment but was never there. LE then had a K9 deploy on the specific apartment’s door from the common hallway open to the public. The K9 alerted.

Holmes argued that the sniff violated the 4th Amendment. The appellate court considered Florida v Jardines, where Justice Kagan compared K9s to FLIR. In addition, a Circuit court case had applied this concurrence and found that a sniff at the door of an apartment in a closed hallway was a violation of the reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public.

However, in Illinois v. Caballes, the USSC held specifically held that a drug detecting K9 in a place where the public is allowed to be would only reveal illegal activities where a FLIR reveals more than that. Therefore, the sniff in this case was not a search and not a violation of the Fourth Amendment.

The appellate court went on to address a search warrant obtained after a K9 alerted on a storage unit. A search warrant was issued and LE searched the apartment finding contraband. The unit was identified via a CI and by rental records: an associate of Holmes rented a storage unit. However, Holmes made a cash payment for the rental. A K9 was deployed and alerted. A search warrant was obtained and a large amount of contraband was found along with a kilo press, vaccuum sealer and cutting agents.

The appellate court rejected any argument that the K9 sniff was a 4th Amendment search. The Circuit courts had already addressed this issue: since the sniff took place where LE had the right to be, there was no search.

Note: This standing issue continues to come up. There is no national agreement on apartment complexes but generally, if the K9 is in a place where a member of the public can be, then a sniff is not a search. However, contrast that with California authority that prohibits K9s sniffing an apartment door seam even from a public hallway. Be sure you’re on the same page as your local prosecutor.  Keep in mind this is a Delaware Supreme Court case and therefore has no precendential value outside Delaware.

United States v. $42,540.00 in United States Currency (Georgia 2023) 2023 U.S. Dist. LEXIS 103087

Currency Sniff; Alert as Probable Cause

Airport DEA agents saw Claimant in the airport carrying a black Nike dufflebag and a Louis Vuitton backpack. Agents approached and stopped Claimant and told him they were attempting to identify individuals who possessed illegal drugs and/or large amounts of currency. Claimant voluntarily agreed to speak to the agents and denied that he possessed any illegal drugs. As to currency, Claimant admitted that he was carrying a large sum of money. Despite this admission, Claimant told the agents that he was not employed and that he did not pay taxes.

Claimant was flying to LA on a one way ticket. He said he was going to visit friends but did not have a place to stay. He intended to fly back the next day even though he had no return ticket. Agents discovered Claimant had a history of armed robbery and simple possession of marijuana. His bags were seized and a K9 later alerted on them. The above captioned currency was found in small bills.

Claimant demanded his money back, so the government had to prove at this stage that the seizure was of currency that was used in drug trafficking stated with sufficient details facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.

Government’s allegations sufficiently show a reasonable belief that the government will be able to meet its burden of proof at trial. First, the quantity of cash (over $42,000) and the manner in which Claimant carried it (bundled and wrapped with rubber bands) are indicia of a connection to illegal activity. “Although a large amount of cash alone is insufficient to meet the government’s burden, it is ‘highly probative of a connection to some illegal activity.'” The Eleventh Circuit Court of Appeals has recognized that “legitimate businesses do not transport large quantities of cash rubber-banded into bundles and stuffed into packages in a backpack . . . because there are better, safer means of transporting cash if one is not trying to hide it from the authorities.”  “In contrast, drug rings do often utilize couriers to transport large amounts of cash in rubber-banded bundles.”

After considering the totality of the allegations, the Court finds that the government has sufficiently alleged facts that establish a reasonable belief that the government will be able to meet its burden at trial. As discussed above, facts regarding (1) the sheer quantity of the cash discovered and the way in which it was bundled, (2) Claimant’s employment status, (3) an alert by a certified K9 and (4) the short duration of the trip to Los Angeles all support a reasonable belief that the government will be able to prove, by a preponderance of the evidence at trial, that the currency at issue is substantially connected to a controlled substance violation. The motion to dismiss was denied.

Note: An alert by a trained K9 is not enough in and of itself to create probable cause to seize currency. However, based on all the other facts gathered prior to the deployment of a K9 combined with the alert to show the court that there was probable cause sufficient to deny the motion to dismiss.

Thompson v. Richter (Texas 2023) 2023 U.S. Dist. LEXIS 104879

Alert as Probable Cause; Traffic Stop; 4th Amendment Violation; Search of Entire Vehicle

The specific facts of this case were not recited. However, it appears that hander used his K9 to sniff a vehicle and the K9 alerted, resulting in a search of Thompson’s vehicle, including the trunk. Thompson then sued for violation of his Fourth Amendment rights.

In this motion to dismiss by handler, the court addressed the claim of qualified immunity. Thompson claimed that the search of the vehicle was valid but the search of the trunk was not because the K9 only alerted to the passenger door of the vehicle. Here, Thompson pleads that the K9 alerted to the front passenger door of the Mercedes. Handler did not provide evidence that the K9’s alert should be interpreted as an alert to the vehicle as a whole. Therefore, the Court found that handler only had probable cause to search the alerted-to front passenger area of the vehicle. Furthermore, after searching the alerted area, LE found an unopened package of cigarettes and allegedly noted aloud that the cigarettes were the likely cause of the K9 alert. At that point, the troopers had found the likely cause of the canine alert and had determined that it was not contraband. Trooper Richter then allegedly told handler, “We should just go straight to the trunk.” The two troopers searched the trunk and found the loaded handgun.

Therefore, the motion to dismiss was denied.

Note: There are 5th Cir. court cases that indicated there was no evidence presented that an alert on one location of the vehicle allows for a search of the trunk. This is wild, because USSC has already recognized that everything, including closed containers and the trunk, are fair game on an alert. This appears to be a failure on both the handler and the prosecution. USSC precedence must be followed and it wasn’t here because it wasn’t presented (prosecutor’s fault). In addition, there were some statements by handler and other trooper that should not have been stated on body cam (the cigs were the probable cause of the alert – not sure why that was stated: it seems at odds with what the K9 was trained on). Getting the law right and making sure you’re not stating things that will come back to bite you are both important. Keep that dialogue going with your local prosecutor.

United States v. Brown (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 105565

Traffic Accident; Reliability Foundation; Prolonged Detention; Alert as Probable Cause

LE was investigating the theft of motorized vehicles and were notified that some of the vehicles on Johnson’s property. LE did a drive by and saw a trailer covered with a tarp with some bright green skis sticking out. There was a report that a trailer with bright green skis was stolen. They decided to talk to Johnson and ultimately 4 troopers approached the house. Looking for Johnson, LE first approached the garage, located at the top of the long driveway. The garage door was partially open, and they saw a vehicle with a drop light “on the driver’s side door, as if somebody was working on that vehicle.” LE announced their presence but found no one. Next, they knocked on the doors of the three campers on the property, but did not find Johnson.

Around the same time that LE arrived, a dark Volkswagen sedan pulled up the driveway, and a male passenger exited the vehicle. LE spoke with the man, who identified himself as Edwin Blaisure. Blaisure indicated to LE that he was also there to see Johnson, but that he did not know where Johnson was. LE ran Blaisure’s name and learned he had an active arrest warrant in Broome County, New York. Blaisure was arrested and handcuffed.

Another vehicle came on to the property. It made an abrupt stop and backed up, becoming stuck. LE could not see inside due to dark tinted windows. LE approached in their vehicle and the passenger ran into the woods. One trooper contacted the driver of the vehicle and other troopers went into the woods to contact the passenger where he was apprehended. The passenger, Brown, said he ran because he had some weed and on parole so he ran to dump the weed before LE could contact him.

The driver said they had come from 5 hours away so that Brown could check on a trailer he was having painted. However, the driver was nodding his head and winking towards LE and when LE called him out on it, LE believed he was trying to signal that he wanted to provide information but due to the passengers in the back of the car, he could not. Neither the driver or the other adult passenger had IDs.

There were 2 cell phones in Brown’s possession. Brown said that there was another vehicle of his being repaired but LE could not find such a vehicle. LE thought the following facts were suspicious and indicative of drug trafficking: (1) Johnson’s association with “the movement or possession of contraband”; (2) Brown’s admission that he possessed marijuana and his status as a parolee; (3) the assumption that Brown, before fleeing, had been “inside of the black Chrysler with the drugs that he was admitting to possessing”; and (4) Brown’s possession of two cell phones. In addition, the timeline described by the driver and passenger did not add up. driver also indicated that he was being paid $200 to drive to this location. Driver was equivocal when asked if there was any contraband in the vehicle. Driver denied consent.

A K9 team was dispatched to the location and arrived about 2 hours after the first arrival of LE. There was a discussion of what the investigation had revealed before the team’s arrival and about 10 minutes later, the K9 was deployed. K9 alerted to the back of the vehicle on the first pass. On the second lap, K9 alerted to the passenger door. There was no alert on the third pass. A large amount of meth was located in the trunk.

The appellate first addressed whether Brown (passenger) had standing to raise any Fourth Amendment issues. He did not have standing as a passenger (although in California he would) and any standing in the search of the vehicle was abandoned when he ran. However, he did have standing to object to the seizure of contraband from his person. In any event, the search and seizures all were within the confines of the 4th Amendment.

The court moved on to the legality of contacting the occupants of the vehicle. First, when it arrived, LE were already on the property investigating a tip regarding stolen property. Second, LE testified that, due in part to Johnson’s extensive criminal history, the property is known to local law enforcement as “an area involved in high crime” and “a haven for illegal activity, especially regarding drugs and stolen property.” Indeed, LE had only been on the property for a matter of minutes when the vehicle arrived, and they had already arrested one visitor, Blaisure. Third, the “extremely rural” location of the property means “that one would need to be familiar with [it] to even come across [it].” It follows that the occupants of the vehicle were intentionally visiting an area that was both generally associated with crime and specifically the subject of investigation at that exact time. As the Government asserts, presence in an area with high crime rates can contribute to the formation of reasonable suspicion, in combination with other indicia of criminal activity.

In addition, there was evidence that windows of the vehicle were darkly tinted in violation of law. Heavily tinted windows are associated with drug trafficking. Therefore, when the remaining occupants were told to stay put, this was a legal seizure. As to Brown, his flight plus the already gathered evidence justified the seizure of his person.

The court then moved on to whether the detention of the occupants of the vehicle was unlawfully prolonged by waiting for a K9 team to arrive. While this is not a traditional traffic stop case, the Court applied Rodriguez and its progeny because Brown raised the issue.

Here, the court found that LE had two “missions” when they initially approached the vehicle and apprehended Brown: to continue investigating the stolen vehicle tip that brought them to the Johnson property in the first place, and to investigate a general suspicion of criminal activity established by the high crime area, the fact that the most recent visitor to the property had an active arrest warrant, the rural location, the tinted windows on the vehicle, and Brown’s flight. The question under Rodriguez is whether, and at what point, LE deviated from those missions and “measurably extended” the stop.

The first mission was completed as soon as LE identified the occupants of the vehicle. Of course, the stolen vehicles themselves could not logically be concealed in the vehicle. But LE also wanted to locate Johnson, and they could not see through the tinted windows to determine whether he was inside. However, as soon they confirmed that Johnson was not in the vehicle, their suspicion with respect to the first mission had been resolved. This was also the point at which Ives testified the vehicle occupants were “being detained”, and that Brown was handcuffed.

Defendant argues this was the “Rodriguez moment.” The Court agrees—but only with respect to the first of  LE’s two missions. Crucially, LE had a second purpose for approaching the vehicle, and that purpose remained unresolved. As such, this is not a typical Rodriguez moment wherein officers resolve the traffic-based purpose of their stop and begin investigating crimes separate from that original mission—instead, LE continued to investigate potential criminal activity consistent with the second of their two original missions. The extension beyond this point was therefore lawful if LE still had reasonable suspicion to pursue their second mission, and the evidence indicates they did.

From the start of their contact with Brown and the vehicle occupants, LE had reasonable suspicion that criminal activity beyond the theft of the vehicles was afoot. This was established by (1) the high crime area, (2) the fact that the most recent visitor to the property had an active arrest warrant, (3) the rural location, (4) the tinted windows as indicators of drug trafficking, and (5) Brown’s flight. In other words, the second mission was established independently of the stolen vehicles investigation and survived after LE learned Johnson was not in the vehicle. And as the events progressed, LE developed more and more suspicion that justified prolonging the stop, and eventually, calling for a K9.

In addition was the information that they drove 5 hours to check on a vehicle, Brown’s criminal history, possession of two phones, and his admission that he was in possession of marijuana.

Added to that was the odd behavior of the driver and the fact that he was paid. The call to summon the K9 was made as soon as the driver denied consent to search. Even though there was an approximately 40 minute wait, the court held this to be a reasonable term to await a K9 who could quickly and efficiently determine if there were controlled substance in the vehicle.

Finally, Brown challenged the reliability foundation of the K9. Handler testified that K9 was certified to detect marijuana, cocaine, meth and heroin. K9 had been recertified annually and was deployed over a 1000 times during his 6 year career. The court accepted the certifing agency under the Florida v. Harris standard and also found that while the K9 did not do a final indication, the body cam footage captured the behavior of the K9 that comprised the alert.

Note: Interesting case that brings up a lot of issues. Standing is a thresh hold issue but in California, there is case law that confers standing to object to search to passengers. Otherwise, textbook case well done.

United States v. Chapman (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 105579

Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause

This was a traffic stop of Chapman, who was the driver, for equipment violations. LE smelled marijuana upon contact. Chapman did not have ID. He claimed the car belonged to the passenger, a female. They were not able to find the registration for the car. LE took passenger’s ID and the verbal identifying information given by Chapman. There was difficulty in confirming the information given. Chapman was taken out of the car and Terry frisked. LE asked if Chapman was on probation and he said yes. There were additional issues regarding Chapman’s suspended license and only having a learner’s permit. Chapman then called his girlfriend to get a photo of his license texted to him. There was confusion on LE’s part whether Chapman was calling passenger. When Chapman clarified this person was at his home, LE then clarified with Chapman that the passenger was a good friend. There was additional discussion while they waited for the license to come through. When it did, Chapman showed LE.

LE then asked a series of drug investigation questions. Chapman admitted to smoking marijuana earlier in the day and denied any other drug use and denied that there was any drugs in the vehicle. LE told him that he could smell marijuana. LE then explained that there was a traffic warrant out for his arrest. They then discussed this as Chapman was confused why he was released if there was a warrant for his arrest. LE then has passenger get out. LE then checked one thing on Chapman’s license. They then conversed about his prison time. LE then searched the vehicle. There was conversation back and forth until Chapman suddenly ran away. LE chased and caught him and drove back to the scene with the stopped vehicle. At this point, Chapman was in custody. A firearm was found in the vehicle as well as loose marijuana and cash and pills were located on Chapman. Ultimately, passenger was released from the scene without charges. There is no indication that marijuana was found.

Turning to the facts of this case, the appellate court first found that LE’s investigation of Chapman’s driver’s license status and active bench warrant were related to the mission of the traffic stop.

The Court further found that LE credibly testified at the suppression hearing that at the time Chapman choose to flee from the traffic stop, effectively ending the traffic stop: (1) the bench warrant information about Chapman needed to be run through his dispatch service, who would then have to reach out to the original agency to find out if the warrant was going to continue to be an active warrant and Chapman needed to be taken into custody to be processed through the warrant; and (2) Chapman’s driver’s license information needed to be run through JNET with his dispatcher to confirm Chapman’s license status.

Therefore, the court concluded that these necessary tasks to the mission of the traffic stop had neither been completed, nor reasonably should have been completed, at the time Chapman fled from the traffic stop. In other words, when Chapman fled from the scene, the Rodriguez moment had not yet occurred.

In addition, the traffic stop also was not unreasonably prolonged because upon approaching the vehicle and its occupants at the start of the traffic stop, LE had independent reasonable suspicion that Chapman and passenger were illegally in possession of marijuana, which justified any further investigation. The court found that at the time of the traffic stop, LE already possessed independent reasonable suspicion that Chapman and passenger were illegally in possession of marijuana, having smelled marijuana when they first approached the vehicle and its occupants at the beginning of the traffic stop. This was based on 3rd Circuit authority that makes the odor of marijuana alone probable cause to search a vehicle under the automobile exception.

Note: When Chapman fled, this stopped the traffic investigation and turned it into a resisting investigation. Once Chapman was arrested for resisting, LE could return to searching the vehicle as Rodriguez did not apply anymore.

Watsky v. Williamson Cnty. (Texas 2023) 2023 U.S. Dist. LEXIS 95270

Excessive Force; Violation of Fourth Amendment; Supervisory Liability; Qualified Immunity

County LE were contacted by Live PD, a television show that purports to show actual policing as it happens. Turns out they actually stage some of the scenes with LE cooperation.

Watsky’s son had an arrest warrant for aggravated assault with a deadly weapons (shovel). Watsky Jr. appeared in court for a probation violation while the warrant was pending but the warrant was removed from the system so Jr. was not arraigned on it. Watsky alleged that this was done on purpose so that LE could arrest Jr. later on the TV show. Watsky also alleged that Jr. was available and willing to be peaceably arraigned on the warrant. Jr. lived with Watsky.

Around 7 p.m., LE “broke down both the front and back doors of Watsky’s home “without warning. LE did so “[w]ith bright lights, cameras rolling and throwing flash bang grenades,” while “yelling and screaming.” An unidentified individual “shoved” a rifle into Watsky’s midsection, and he “observed a finger on the trigger.” After telling LE he was feeling ill, Watksy “was allowed to leave standing hands up against the wall with guns pointed at him and was placed on a couch surrounded by LE who restrained him and warned him not to make any further movement.” Watsky’s allegations that he was “pushed” and “roughly frisked” appear to have occurred during this incident. Watsky “observed a handler with a large K9 dog” searching the home, which he alleges was because of a “fabricated” narrative that LE expected to find “dangerous drugs” in the home. The search yielded “no contraband or any other illegal items.” As LE completed the search, Watsky “suffered an anxiety attack with hyperventilated breathing and a highly accelerated heart rate.”

Live PD cameramen allegedly entered Watsky’s property with LE to film the raid. As the officers left, Watsky observed a cameraman in his front yard, and a neighbor told him that the raid was being broadcast live on Live PD. Live PD “directors or producers” allegedly sat in a police vehicle next to the house to observe. Watsky alleges that the raid on his home was “only one instance of the many LIVE PD encounters conducted in compliance with the Sheriff’s widespread ad hoc policy of using gratuitous excessive use of force and violence on non-resisting individuals accommodating Live PD TV productions for profit and ratings.” Watsky alleges that he was diagnosed with Post-Traumatic Stress Disorder and suffers from anxiety attacks and other physical symptoms as a result of the deputies’ actions during the search.

Along with his allegations that supervisor 1 directed the raid, Watsky alleges that he created a false narrative about the danger the situation presented. Supervisor 1 was recorded by Live PD on the way to Watsky’s home stating that Watsky’s son was a “dangerous subject” because of his “extensive history of narcotics use” and “background of violence.” At the motion to dismiss stage, the Court found this sufficient to plausibly allege that Supervisor 1 personally provided direction to the LE that was causally connected to their use of excessive force and unlawful search of Watsky’s person. However, the charges against the other supervisor were dismissed for failure to state a claim.

The court then considered qualified immunity. While the court assumed that the entry into the home was valid to arrest a resident (Jr.) on the warrant, LE only had the authority to search for Jr. and perform a protective sweep and not for contraband (unknown whether his probation terms allowed such a search). Therefore, Watsky clearly established in his pleadings that LE went beyond what the law authorized in searching the entire home. Therefore, the court held that, accepting the facts as alleged, it was clearly established that a “staged event for television and local theater viewing” violated the Fourth Amendment’s requirement that a warrantless search must be supported by genuine exigency. Because Watsky alleges that the narrative about dangerous drugs in his home was fabricated, the Second Amended Complaint does not support a reasonable belief that there was contraband in the home. Watsky further alleges that the arrest warrant for Jr. had been pending for more than two weeks before it was executed, allowing LE time to seek a search warrant for the home if necessary. Without additional facts establishing exigent circumstances, the Court finds that Watsky has sufficiently alleged that the search of his home violated his clearly established Fourth Amendment rights. In light of the clearly established law at the time, supervisors’ alleged actions of planning and leading a search of Watsky’s entire home with a police dog were objectively unreasonable. No qualified immunity was found.

The court then moved onto the excessive force claim. The Court found that Watsky had alleged his clearly established rights were violated by having a rifle “shoved into his chest” and “being pushed against the wall and roughly frisked.” As a bystander who allegedly was compliant, Watsky had a clearly established right not to be held at gunpoint or have forced used against him. In light of the clearly established law at the time, LE’s alleged actions of planning and leading a SWAT team raid intending to use “maximum” force were objectively unreasonable.

Finally, the court held that the search of Watsky’s person was not protected under qualified immunity. It is clearly established that where officers have lawfully entered a premises, they must have individualized “articulable reasonable suspicion to frisk an individual” who is not named as suspect in a warrant or under arrest. Watsky alleges that he was roughly frisked although LE had an arrest warrant only for his son. Without additional facts establishing an articulable reasonable suspicion to frisk him, Watsky has alleged a violation of his clearly established right. The Court finds that LE’s alleged actions of planning and leading the raid were objectively unreasonable.

Note: This is a good lesson that when LE deviates from their sworn mission to do some TV show, there are going to be problems. A K9 was involved but thankfully not deployed. Supervisors and leaders, don’t do this. It makes LE look bad and, in my opinion, there is no upside to it. Not all publicity is good publicity.

State v. Furtch (North Carolina 2023) 2023 N.C. App. LEXIS 338

Traffic Stop; Alert as Probable Cause; Prolonged Detention

LE had a tip from the drug task force to be on lookout for a silver minivan. LE saw a silver van following a white pick up too closely. As LE waited for a safe place to stop the van, it failed to maintain travel within the lane. LE pulled it over. Furtch was the driver and said he was on his way to Hendersonville to visit family. However, he said his family lived in Black Mountain which is not in Hendersonville. During this conversation, a K9 team arrived.

LE, after obtaining the proper documents, printed a citation and highlighted “certain things which are important.” On his way back to Furtch, LE met briefly with handler. LE then had Furtch step out so he could explain the citation (and also to allow for a free air sniff of the car). LE Terry frisked Furtch and then explained the citation. During the explanation, K9 alerted on the car. LE then searched the car and found a large amount of methamphetamine.

The only issue Furtch raised was prolonged detention. The trial court found that LE’s conversation with Furtch upon first contact, was relatively short and directly related to the mission of the traffic stop. The trial court also found that by removing Furtch from the vehicle to explain the ticket was a safety move by LE so as not to be standing by the driver’s side door where he would be exposed to oncoming traffic. Therefore, this was lawful as well. In addition, the Terry frisk did not unduly prolong the stop. Finally, the trial court found that the sniff took place prior to the traffic stop being completed and therefore, the search of the vehicle was based on that probable cause. The appellate court affirmed the trial court.

Note: Remember, the USSC has said that you have the right to remove all occupants and has recognized that there is an inherent safety risk with occupants remaining in the car. State law may impose a higher standard but in those states that follow the federal standard (California is one), this is a given. This opinion did not go into whether there was additional reasonable suspicion because the K9 alert was sufficient since there was no prolonged detention.  It did not justify the Terry frisk other than to say that it did not prolong the stop. However, the standard for a Terry frisk is LE reasonably believes the friskee is either armed or dangerous. It’s not a high standard, and LE could have testified that driver was suspected of drug trafficking and drugs and guns go hand in hand. That would probably be sufficient.

United States v. Boatright (Illinois 2023) 2023 U.S. Dist. LEXIS 106551

Traffic Stop; Alert as Probable Cause; Prolonged Detention

LE was assigned solely to interdict drug traffickers. LE targets high end rentals, SUVs and vehicles with out of state plates, as these vehicles often are involved in drug trafficking.

LE noticed a high-end rental in which the driver (Boatright) has holding a cell phone in violation of the law. The vehicle had out of state plates as well. While following the vehicle, LE noted speeding and lane violations.

LE stopped Boatright and conversed with him about his travel plans, employment, and criminal history. Within seven minutes, LE suspected that Boatright possessed drugs. LE extended the stop for a K9 unit to investigate. After the K9 gave a positive alert, DEA officers searched the vehicle on the roadway for over 40 minutes—but did not find drugs or anything illegal. They searched the vehicle again at the DEA’s office and uncovered 1.2 kilograms of cocaine in the vehicle.

There were significant differences between LE’s testimony and his dash cam, so the court held an evidentiary hearing. LE approached the vehicle after the stop and observed that Boatright was overly nervous. Boatright handed him a California DL which piqued LE’s interest because California is a source state. LE also obtained the rental contract. LE noted several cell phones, numerous energy drinks and several cell phone chargers. LE noted there was no luggage in the passenger area. Boatright claimed he was headed for Pennsylvania.

LE got Boatright out of the car and had him stand on the passenger side of the vehicle. LE noted that the odd combination of stuff in the car, no luggage, and a week long rental for $588.01. Boatright offered to show LE his Pennsylvania ID which was still in the car. LE refused because he didn’t want Boatright to have access to any weapons or flee the scene. There were other irregularities on the rental contract vs. what Boatright told the officer. Based on all of this, LE decided to search the car and called for a K9 team. 15 minutes later, a K9 arrived and alerted on the vehicle. LE found what he believed to be LSD or MDMA strips. However, they field tested negative. LE then decided to relocate the search and took Boatright and the rental to his office. There, they found cocaine.

The K9 team was certified to locate cocaine, meth and heroin. The K9 would alert on MDMA because it is close to methamphetamine.

The appellate court first found that LE was not credible in his testimony about the violations of law for which he pulled Boatright over. In addition, LE knew that the Lexus was a rental while he was following Boatright for the first five miles. After approaching the Lexus and talking briefly to Boatright, LE decided he was only issuing a warning. Then LE received Boatright’s valid rental agreement and driver’s license. Upon receiving this documentation, Le asked Boatright to go with him to his patrol vehicle so LE could issue him a warning.

Boatright contends LE’s inquiries after he and LE went to the patrol vehicle unlawfully prolonged the stop. To determine whether LE unlawfully prolong the stop, the Court must determine whether (1) LE’s inquiries fell outside the mission of the stop; (2) his actions added time to the stop; and (3) LE had reasonable suspicion.

Boatright contends LE’s inquiries after he and LE went to the patrol vehicle unlawfully prolonged the stop. The Court determined that LE’s inquiries fell outside the mission of the stop and his actions in trying to trip Boatright up by re-asking questions and his search of the database for Boatright’s criminal history added time to the stop.

The court then addressed whether LE had reasonable suspicion of other crimes sufficient to prolong the stop. The court first outlined all the inconsistent testimony of LE in comparison to his dash cam. The only factors the court used to determine whether there was additional reasonable suspicion were Boatright had two cellphones; Boatright provided a valid license and rental agreement; Boatright answered questions “okay;” LE did not notice any roaches or smell cannabis; Boatright had no active warrants; Boatright was previously convicted of a cocaine offense; and LE’s and Boatright’s conversation until the K9 arrived. Looking at these factors, the court found that the stop was impermissibly delayed. The court also found that the secondary search of the vehicle was in violation of the law. Since the first search did not yield any drugs, the secondary search was not lawful.

Note: This was not good. LE may have not reviewed his dash cam prior to writing his report and/or prior to testifying. This then gave an impression that he was less than truthful and the court didn’t even believe the initial stop was good. And it was downhill from there. Make sure you review whatever recording you have, whether dash cam or body cam, prior to writing a report and/or testifying. The only good thing is that the problem was laid at the foot of this particular officer, so no new bad law was made.

Sims v. City of Lakewood (Washington 2023) 2023 U.S. Dist. LEXIS 106528

Excessive Force; Qualified Immunity; Monell Liability

LE was dispatched to a violation of domestic violence restraining order and found that Sims, the violator, was in the attic. LE shouted at the one entrance to the attic at Sims to come out and surrender. Sims heard LE but remained silent. They could hear him crawling around. K9 team was dispatched to the scene. Handler told Sims to come out or the dog would be released and would bite him. Again, Sims heard the warning but remained silent. The dog was released into the attic and bit him.

What happened next is disputed. Sims alleges K9 bit him on the right shoulder. Once K9 bit him, Sims grabbed hold of the dog by the muzzle and the collar area, to prevent further biting. Sims then alleges two officers—the dog handler and Pritchard—entered the crawl space. According to Sims, he pleaded with the officers to remove K9, saying multiple times that if they removed the dog he would surrender peacefully. Sims says the officers would not remove the dog despite his pleas.

Handler alleges he did not hear Sims ask him to remove K9, only indistinct yelling. Handler alleges he saw the dog biting Sims’ leg at this time. Handler says he commanded Sims to put up his hands and stop holding onto K9 so he could remove K9 safely.

Sims alleges Pritchard punched him in the face. Handler instead says he himself struck Sims, because he thought Sims was reaching for his gear.

Finally, handler removed K9 from Sims. Sims says he did this by holding onto K9’s leash and pulling K9 by the collar; handler says he did it by grabbing K9’s harness. Sims says handler gave no verbal command to call K9 off; handler says he gave one.

Sims immediately put his hands behind his back and Pritchard handcuffed him. Sims says he looked over at K9 to make sure handler was securely holding him. He saw that handler was holding K9 firmly by the collar and that K9 was staring at him. He then briefly looked away, anticipating getting up to exit the crawl space. In that moment, Sims alleges K9 lunged at him and bit him on the thigh. Sims says that, although he did not see it, handler intentionally let K9 loose to bite Sims again. Handler denies that K9 bit Sims a second time at all, either by his intentional release or by K9’s escape. Handler maintains the thigh bite occurred when K9 was first released into the crawlspace.

Sims asserts that after K9 bit him this second time, while in handcuffs, he begged the officers to remove the dog. He says handler waited to remove the dog. Sims alleges handler did not remove the dog “until Pritchard said ‘That’s enough.'”

In the necessary Graham v. Connor analysis, the court indicated that the most important factor here was whether Sims posed an immediate threat to the safety of LE or others.

At the heart of this motion for summary judgement is whether there is a genuine dispute about the intentional release of K9 once Sims was in handcuffs. Sims argues handler intentionally let K9 loose. LE counter that, even if K9 did bite Sims while he was in handcuffs, because Sims did not see handler intentionally release the dog, and because Sims did not hear handler issue a command to attack, this at most amounts to an accident. Defendants say, even if it was an accident, no liability can attach.

The Court finds there is a genuine dispute about the allegedly intentional release. Even though Sims had looked away at the moment K9 lunged at him the second time, Sims points to several other facts that could lead a reasonable juror to believe it was intentional.

First, Sims indicates he looked at K9 and handler just seconds before the dog bit him. Sims says handler had a tight hold on K9, firmly gripping him by the collar. He alleges that as soon as he turned away, K9 lunged to bite him on the thigh. A reasonable juror might conclude the only way K9 could have bitten Sims the second time is if handler had intentionally loosened his firm grip on the collar.

Second, Sims points to the other officer’s language after K9 lunged. Sims admittedly does not remember all that was said during the second dog bite, but distinctly recalls Pritchard saying “Enough” to handler. A reasonable juror might conclude Pritchard believed handler intentionally let K9 loose and was telling him to stop.

Third, LE allege K9 has never failed the “calling off the dog” test before. Viewed in the light most favorable to Sims, this might cause a reasonable juror to find, if K9 did attack, it would have been at the command of his handler.

Lastly, handler stated in his deposition that merely pulling a dog off a suspect is not a command to stop biting; something more is needed. Sims alleges that when handler pulled K9 off Sims, he did so only by pulling on to the collar and leash, without any oral command. Although handler asserts he did issue a verbal command, viewing the facts in Sims’ favor, the reasonable juror might believe handler should have known that if he let go of K9, K9 would again try to bite Sims.

The Court does not weigh the credibility of these speakers. Instead, it merely views the facts in the light most favorable to Sims and concludes a material dispute does exist as to whether handler intentionally released K9 a second time. This fact is material as it implicates Sims’ constitutional right to be free from  K9 attack after having surrendered and been handcuffed.

The court then addressed qualified immunity. Handler contends he is entitled to qualified immunity. To determine whether an officer is entitled to qualified immunity, the Court must first “ask whether the facts taken in the light most favorable to the plaintiff show that the officer’s conduct violated a constitutional right” and then assess “whether the right in question was clearly established at the time of the officer’s actions, such that any reasonably well-trained officer would have known that his conduct was unlawful.” When a “‘defendant’s conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts’ that the action was unconstitutional, closely analogous preexisting case law is not required to show that the law is clearly established.”

It is clearly established that a police officer may use only minimal force on an suspect once they are handcuffed and subdued. Depending on the circumstances and the injuries sustained, police dog bites can be considered “severe” force. Here, Sims alleges he had already surrendered and been placed in handcuffs when the dog attacked. He alleges the dog bit him and held on, despite his pleas to handler to remove it. He further alleges he suffered significant injury from being bitten after he was handcuffed. Under these circumstances, it would have been clear to any reasonably well-trained officer that use of a trained police dog to bite an unarmed person who had surrendered and was handcuffed would be unconstitutional. If a jury finds K9 did in fact bite Sims a second time after Sims was handcuffed, and that handler did in fact intentionally release K9 a second time, this will preclude handler from immunity. Thus, the disputed fact about the second release of K9 is material to the question of handler’s qualified immunity.

Sims also filed a Monell claim against the city based on excessive force. To prove such a claim, a plaintiff must show “(1) that the plaintiff possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and, (4) that the policy is the moving force behind the constitutional violation.”

Here, Sims alleges no such policy or practice that the City of Lakewood supports a K9 handler’s intentional release of a dog on a handcuffed suspect. Sims points to the City policy that K9’s are to be used in “the apprehension of suspects of crimes of violence”. Sims makes two, equally unconvincing, arguments as to why this amounts to a policy of deliberate indifference.

First, Sims argues that the lack of an explicit policy banning use of force on handcuffed suspects constitutes a policy of allowing this type of force. He asserts that the “lack of clear policy articulation [in the Lakewood Police Department Manual of Standards] allows the [police service dog] handler complete discretion to deploy a K9 to search for a suspect under any circumstances except the few restrictions articulated in [the Manual of Standards].”

The restrictions listed in the Manual of Standards do not appear to be exhaustive. In fact, they prohibit use of police dogs in “circumstances which might discredit the police department”. This blanket prohibition indicates handlers do not have complete discretion as Sims alleges. Further, a police department is not expected to explicitly prohibit or allow every possible situation. Failing to explicitly forbid use of police dogs on handcuffed suspects does not constitute a policy allowing the use of a police dog on a handcuffed suspect

Second, Sims claims the conflicting responses on the post-incident forms indicate “policy and supervision failures”. At one point in handler’s incident report, he indicated there was a citizen injury and at another he indicated there was no citizen injury. Sims alleges this conflicting report is a result of the County’s failure to have a policy regarding use of police dogs on handcuffed suspects and a failure to supervise. This is unconvincing. Firstly, pointing to a single instance of unconstitutional activity is generally not sufficient to rise to a “policy” in a claim for municipal liability. While a single instance may in rare circumstances create liability, this instance must be “so inconsistent with constitutional rights” as to do so. The error Sims alleges does not appear to be evidence of a policy allowing handlers to release dogs on handcuffed suspects, nor it is clear how this individual error would be inconsistent with constitutional rights. It similarly provides no evidence that the County was failing to train its officers.

Accordingly, there is no genuine issue of material fact as to the Monell claim. Even if handler did release K9 intentionally to bite the handcuffed Sims, there are no facts supporting a City of Lakewood policy or practice allowing this behavior.

Plaintiff alleges LE are strictly liable for the second bite, citing Washington law that dog handlers are strictly liable for their dog’s bites. LE claim immunity from strict liability, citing an exception for police dogs in Wash. Rev. Code § 4.24.410 : “[a]ny dog handler who uses a police dog in the line of duty in good faith is immune from civil action for damages arising out of such use of the police dog or accelerant detection dog.” Further, LE note that strict liability does not apply to lawful applications of a police dog.

The question is if there is a genuine issue of material fact as to whether handler was acting in good faith and when he allegedly released K9 the second time. As explained  above, there is a genuine issue of material fact as to whether the handler released K9, and specifically whether he intentionally released K9. In addition to being material to the § 1983 claim against handler, this fact is equally material to the strict liability claim. If the finder of fact concludes handler intentionally released K9 in order to bite Sims a second time, when Sims had already surrendered and was in handcuffs, this could be strong evidence of bad faith as well as an unlawful application of a police dog.

Notably, if handler is found strictly liable, the City would also be strictly liable under the Washington statute.

Accordingly, because whether handler’s release of K9 a second time is a material disputed fact, the strict liability claim against both defendants stands.

Note: The city and agency got off the hook for excessive force because there was no policy or practice that condoned biting a suspect who had surrendered. However, they remain in the case to determine if a jury decides that 1) there was a second bite and 2) that bite was intentional. If so, excessive force can be found and a Fourth Amendment violation as well. In addition, if it was intentional, the handler would have been acting under the color of his office wrongfully and therefore he would not have strict liability protection. Negligence and assault and battery crimes were also dismissed.

What is strangly lacking is any body cam footage. It may have been that the area where this all happened was too small for the body cam to get any good pictures but a sound track would have been very helpful. In addition, there was no discussion of whether there was a shoulder injury. Both items would have been very helpful in sorting out who was telling the truth. Odd.

United States v. Elliot (Texas 2023) 2023 U.S. Dist. LEXIS 106716

Alert as Probable Cause; Reliability Foundation; Collective Knowledge Doctrine

Elliot arranged with a CI to purchase 3 Ks of fentanyl and 5 Ks of cocaine for $100,000.00 up front and the rest later. He called CI to inform him of his imminent arrival at a hotel recommended by the CI. LE was surveilling the location and saw a Mercedes with a North Carolina plate which was registered to Elliot and that Mercedes had been seen in Texas earlier in the day. Elliot was getting out of the car when he was contacted by LE. He was detained and a K9 team sniffed the car, resulting in an alert. Elliot was in possession of the cash that was agreed upon with the CI. He later pleaded guilty to a bunch of stuff.

The court first held that the information from the CI coupled with additional circumstances allowed LE to detain Elliot and to search his car.  LE witnessed the phone call between the CI and Elliot during which the deal was arranged. They knew that a controlled purchase of methamphetamine from Elliot had just been arranged and that Ellliot was headed to the location of the purchase. Based on these facts, under the collective knowledge doctrine, LE had probable cause to stop and detain Elliot. This information was relayed to the arrest team under the collective knowledge doctrine, thus proving probable cause to arrest Elliot and search his car under the automobile exception. This was a CI who had produced results before and was proven to be credible and reliable.

Alternatively, the K9 alert also provided probable cause to search the vehicle. This K9 was certified and the government entered that certification into the record without objection by Elliot. Therefore, the K9 was shown to be trained and certified and therefore reliable. Elliot claimed since there were no controlled substances in the car, the alert was not reliable. However, the handler testified that it was common for drug dealers to have drug residue on currency, particularly large amounts of money. It is well settled law that the absence of a seizable amount of cocaine, marijuana, or heroine, for which K9 was trained to detect, does not conclusively indicate that the currency was not previously exposed to such drugs.

Elliot further objects that the precise details of how K9 alerted his handler are not known; when questioned, LE testified that, while he did not personally know of the K9’s method of communicating the alert, “the handler reported to me that he had alerted”. As long as K9’s handler confirmed the positive alert, the Court need not inquire further into the nature of the specific alert. In sum, Elliot has not shown that the K9 sniff was unreliable or that K9 gave a false alert beyond conclusory assertions, and the totality of the circumstances show the alert was sufficient to provide probable cause to search the vehicle.

Note: Good case with a good result. It’s always important that the reliability foundation be established at any hearing so that does not leave the door open to a later attack. If the defense forgets to challenge it, then that’s their problem as generally an appellate court won’t hear an issue that wasn’t raised in the trial court. But best practice is to establish that reliability foundation in your initial direct examination.

United States v. Howell (4th Cir. Virginia 2023) 2023 U.S. App. LEXIS 15664

Probable Cause Stop; Alert as Probable Cause; Prolonged Detention

LE was investigating drug trafficking and got a tip from a CI that an out-of-town target of the investigation would be coming into town and meeting with other traffickers at a hotel and would be staying overnight. Target would be driving a dark SUV rental with plates from a northern state and would be with an African-American female.

This informant was reliable, having worked for the last few years with accurate information and CI had also been involved in drug trafficking involving this hotel.

LE then conducted surveillance but when target did not arrive, LE checked the register and did not find target’s name. However, they did find names of known traffickers, including Howell. LE had history on Howell starting in 2014 and he had a prior for trafficking in 2008. He also had arrests in three other states. LE had been tracking Howell for years and also had infiltrated his Facebook account. It was then discovered that Howell had an arrest warrant out for him in Georgia but unknown whether he was extradictable so LE was not able to act on it.

Later that morning, Howell pulled up in a dark SUV rental with a Georgia plate. The driver was immediately recognized as Howell. Howell went inside the hotel and came back with a small bag and put it in the vehicle. Howell and his African-American female passenger drove off.

LE communicated with patrol and patrol could not find any traffic violations as Howell appeared to be extremely careful to avoid a stop. LE then told patrol to pull him over based on the probable cause they had developed in their investigation.

Patrol pulled Howell over and explained (as a ruse) that the plate and car didn’t match up, as they didn’t want Howell to flee. Patrol got the appropriate documents and confirmed the arrest warrant and that it was unextradictable. At this point, the K9 team arrived, spoke briefly with the occupants and then had Howell and passenger get out of the car. The K9 sniff the vehicle and alerted. Inside the car, K9 alerted to 2 bags and a mail package. During the search, LE found 2 Ks of meth, cell phones and incriminating paperwork. A roll back SW to Howell’s apartment revealed more of the same.

The appellate court upheld that the stop was based on reasonable suspicion of drug trafficking. The court said that the observations that day that lined up with a reliable informant as well as the historical information and his very careful driving taken as a whole provided reasonable suspicion for the stop (even if some details were inconsistent).

The appellate court then addressed the assertion that the stop was prolonged for a K9 sniff. Here, the K9 team arrived 5 minutes after the stop. Conversing and removing the occupants took another 5 minutes and the sniff itself took about 30 seconds to get an alert. Therefore, LE had probable cause to search the car 11 minutes after the stop.

The court will assess the length of the detention (stop) based on what crime is being investigated. Here, this was not a routine traffic stop; it was to allay suspicion of Howell’s participation in a possible ongoing drug-trafficking conspiracy. Therefore, the court concluded that the initial stop was supported by reasonable suspicion, the arrival of the K-9 officer within 5 minutes of the stop and the completion of the dog sniff within 10 to 11 minutes did not amount to an illegal prolonging of the stop.

Note: As I have previously stated, putting the K9 inside the vehicle after the K9 clearly alerts on the vehicle is not illegal. BUT some cases have said that if the K9 did not alert inside the car, that vitiated or cancelled the initial alert and the probable cause that came from it. In this case, there really was no reason to do that because it was pretty clear that at least the bag Howell brought from the hotel had drugs. The outside alert allows a search of closed containers within the car under the federal standard.

Also, even though LE used patrol to pull Howell over, this was not a traffic stop to investigate a vehicle violation. This was a ruse to prevent flight. Therefore, the Rodriguez moment would have been when LE was finished with its drug investigation and then delayed Howell’s release. That Rodriguez moment did not occur here, because of the alert by the K9 which provided probable cause to search and arrest.

McKinney v. State (Indiana 2023) 2023 Ind. App. LEXIS 185

Reliability Foundation; Alert as Probable Cause; Prolonged Detention

McKinney was stopped for equipment and lane violations. He had a female passenger. After investigating their license status, they were both found to be suspended (passenger had a lifetime ban). Since neither could legally drive, LE started the process to tow and impound the car. LE then asked for back up by the K9 team. When the team arrived, LE and handler had a discussion about the situation. LE then went back to the vehicle to inform them of what was happening and McKinney volunteered that he had two warrants in Florida, but they declined to extradict him. LE had both occupants get out and stand with him while the K9 sniffed the car. K9 sniffed the door seam and then jumped up to get the source of the odor. K9 then stared at handler and did a half sit because the ground had slush and snow and K9 did not like to get wet. The same thing happened on the other side of the car. K9 then was rewarded. Inside the vehicle was contraband.

McKinney claimed that the K9 was not shown to be reliable. However, the trial court and the appellate court both disagreed. The government showed that handler and K9 were certified as a team and the records indicated a 90% success rate in the field (this is misleading and we urge you not to keep a percentage of field finds). The K9 was deemed reliable.

Then McKinney challenged the alert, claiming the half sit was not an alert. However, based on the descriptions in court by handler, the court found that the actions of the K9 on both sides of the car amounted to an alert which then provided probable cause.  Handler explained that K9 attempted to sit (referred to as a half-sit) at least three times in addition to behaviors associated with the fact that the K9 was in scent. K9 didn’t like to get his behind wet and the conditions were slushy and cold.  This was sufficient to establish that the K9 had alerted.

As to prolonged detention, the two occupants could not drive the vehicle from the scene so the vehicle was going to be towed and that extended the time frame of the traffic investigation. The sniff happened before the vehicle could be towed, so there was no prolonged detention.

Note: Well done to the handler for explaining the issue of alert v. final indication.

State v. Cohen (New Jersey 2023) 2023 N.J. LEXIS 658

Traffic Stop; Odor of Marijuana as Probable Cause; Search of Entire Vehicle

Vehicle was stopped for traffic violations. In addition, LE was alerted to a specific car which might be carrying illegal firearms. LE approached and obtained documentation. At that point, LE smelled a strong odor of raw marijuana and there was greenish-brown vegetation on driver’s beard and shirt, which LE described as shake.

LE searched the car and found a bullet but no marijuana. LE then searched under the hood and in the trunk, finding guns under the hood and ammo in the trunk.

The trial court denied the motion to suppress. The appellate court held that expanding the search to the engine compartment and trunk went beyond the scope of the automobile exception and a search warrant should have been sought. There was a split in authority over this issue. However the court found that those searches that have been found valid were situations where a search of an area beyond the passenger compartment have involved facts beyond simply detected the odor of marijuana from the interior of the car. Here, there were no unique facts that indicated raw marijuana was in either the engine compartment or trunk. The appellate court also dismissed consideration of the information about this vehicle trafficking illegal firearms.

Therefore, the court held that an odor of marijuana does not justify a search of every compartment of the car. The court went on to opine that they anticipate that cases involving the automobile exception and probable cause to search a vehicle based solely on the smell of marijuana will likely be few and far between going forward.

Note: Sometimes one wonders what people are thinking. Here, I believe testimony from a drug expert could have addressed the trunk and the engine compartment and why those could be searched as they are areas where drug traffickers put their dope to conceal it. This wasn’t mentioned at all. In addition, the bullet found in the passenger compartment was not addressed and should have been, given the information LE had prior to the stop. Instead, this court just dismisses those facts. Unfortunately, this is  the Supreme Court for New Jersey so now they are stuck with this standard. This case does not have any precedential value for other states.

United States v. Burrus (Tennessee 2023) 2023 U.S. Dist. LEXIS 108194

Reliability Foundation

In this appeal, one of the grounds was that the K9 alert that was used as part of the probable cause for a search warrant that yielded contraband was given by an unreliable K9.

Burrus objects to the reliability of the K9 used during the execution of the search warrants for the storage units. Burrus argues that the K9 is unreliable because it made a false alert on a third of the units to be searched, specifically unit G22.

There was a positive alert to narcotics by K9, a properly trained and certified narcotics dog, to storage units F8 and F10. The search warrant affidavit also connects Burrus to units F8 and F10. The affidavit seeking the search warrant for the storage units describes that Burrus paid monthly rent in cash for both units and Burrus communicated with associates the day of and after his arrest, instructing them to hide additional evidence in the units. When the dog was taken to the storage units to conduct a free air sniff of the storage units, he not only gave an alert to F10, but to G22 as well. No evidence was recovered from G22 and unit G22 was not considered for purposes of suppression. And, as Burrus conceded during the hearing, the issuing Judge would not have known about the false alert at the time the warrants were issued. Thus, K9’s error is irrelevant on the question of whether probable cause supported issuance of the warrants.

Note: This defendant is grasping at straws here. The K9 alerted to the target units but alerted to another unit that was uninvolved. This does not invalidate the alert to the two target units. A K9 can alert when it smells contraband and had they sought a search warrant for the non-target unit, they might have found another drug dealer. We’ll never know because LE kept their eye on the prize and did a great investigation on Burrus.

Morrow v. State (Texas 2023) 2023 Tex. App. LEXIS 4455

Traffic Stop; Alert as Probable Cause

LE was conducting covert surveillance on a person of interest in a murder case. LE saw Morrow exit an apartment carrying a backpack and getting into a vehicle behind the driver. The vehicle drove off with LE following. There were several vehicle code violations and a “high-risk” stop was initiated. All occupants were removed and a K9 sniffed and alerted on the backpack inside the vehicle (not sure how that actually happened as the opinion doesn’t say). The backpack was searched and inside was the murder weapon. The vehicle was then impounded and searched per inventory.

Morrow was charged with capital murder and he filed a motion to suppress the evidence found in the backpack. The court held that the only issue was the search of the backpack and held that an alert from a K9 is probable cause and since the backpack was in the car, the automobile exception applied. The renewed motion to suppress was denied.

Note: Odd that the opinion indicated that the K9 alerted on the backpack rather than the car. The few facts in the opinion don’t explain it. However, it appears the appellate court just assumed the backpack was in the backseat when the K9 alerted. The rest of the analysis goes from there. This is the case that should be remembered by all handlers; what happens if the search based on an alert turns up the murder weapon? That’s why it’s so important that deployments and resulting searches are conducted within the parameters of the law.

State v. Bowen (Ohio 2023) 2023-Ohio-2201

Traffic Stop; Prolonged Detention; Alert by Marijuana Trained K9; Odor of Marijuana as Probable Cause

Traffic stop for speeding. Bowen lies about his name. During the stop, K9 sniffs the free air around the vehicle and alerted. A search of the car revealed contraband.

The first issue on appeal was prolonged detention. While the passenger was able to hand over identification documents, Bowen claimed he had none in his possession and lied about his name and had difficulty spelling it when asked. This indicated to LE that not only was Bowen lying, he also had something to hide. The passenger claimed the car was hers and she would retrieve insurance information on her phone.

At that point, LE went back to his cruiser and called in the information he did have. He then approached the vehicle again and passenger said it would be another 10 minutes for her to get the insurance info. At this point, LE knew he was going to issue a speeding ticket, but he had to verify the identity of the driver. LE then asked Bowen if he had any insurance documentation, but he did not.

A K9 was on the way and there was a discussion between LE and his supervisor that they could not delay the stop for the K9 team to arrive. LE said he was still waiting for information to adequately process the citation. Yet another attempt to get Bowen to ID himself was rebuffed.

About 24 minutes into the stop, the K9 team arrived. At the time of arrival, LE was still waiting for confirmation of the ID of Bowen. The sniff took place during that waiting time. The court held that this delay was caused by Bowen’s actions in lying about his identity. In addition, the passenger took some time in locating proof of insurance which was only obtained shortly before the arrival of the K9 team. This still would not have given LE enough time to complete the citation before the K9 alerted. Therefore, the court found no prolonged detention. In addition, LE observed facts that created additional reasonable suspicion: lying about his ID, occupants continuously smoking, constantly drinking water, watching LE in his mirror, the odor of marijuana when occupants exited the car for the sniff and general nervousness.

The second issue was since K9 was trained to detect marijuana, the alert did not provide probable cause to search because marijuana in some forms was legal. Handler testified that K9 cannot determine the difference between strains of marijuana. However, legal marijuana derived substances were not used in K9’s training and K9 had never alerted to this either. The court said that K9’s training to detect marijuana did not weigh so heavily that his alert was not valid. Finally, the court said that under the totality of the circumstances, LE had probable cause to search the vehicle.

Note: Here, there were several avenues of justifying the delay so that the K9 could be present, including the fact that Bowen himself caused much of the delay by lying about his name. Your investigation report in this type of case should document your attempts to properly identify the driver and the times in which these steps took place. If you have a functioning body cam, you can use this for timing.

Tuggle v. City of Tulare (California 2023) 2023 U.S. Dist. LEXIS 112523

Excessive Force; Monell Liability; Qualified Immunity

Three people were riding in Cuevas’ car and Castro was driving with her permission. Their passenger was Ware. Earlier in the day, Castro left a backpack in her car so Castro put it in her trunk for safekeeping.

Castro rolled through a stop sign in front of LE and also failed to use his blinker as he turned and rolled through the next stop sign. LE pulled Castro over, but when LE approached, Castro took off over lawns and the chase was on. This high speed pursuit ended when Castro skidded off the roadway and got stuck in some mud. Castro put it in reverse and revved the engine, causing the tires to rotate. LE behind the car feared the car would gain traction and strike him. LE was yelling at Castro to turn off the engine and get out, but Castro made no indication that he heard them. LE then smashed the window with a baton. Once broken, Castro stopped revving the engine. Several warnings were made at that point that if Castro did not stop, he would send the dog. The K9 was deployed through the driver’s side window and Castro shot the K9 at least 3 times and handler one or two times.

Three LE then opened fire, all aiming at the driver’s side of the car. Castro died. Cuevas was shot multiple times and is now permanently disabled with very little quality of life. Handler was disabled out and the K9 was killed.

Cuevas, Castro’s wife and passenger brought this excessive force action. They claimed that LE used excessive force because they intentionally or recklessly provoked a violent confrontation by deploying the K9 into the vehicle. The court indicated that this was not the standard and that the Graham v. Connor factors analysis should be followed. The court then analyzed the totality of the circumstances.

The first factor favored LE as Castro posed a significant danger of harm to LE and the public. He led LE on a high-speed chase failing to stop at stop signs and red lights and swerving into oncoming traffic. Even more seriously, Castro presented an imminent threat of physical harm by shooting the K9 and handler when the officers attempted to place him under arrest. These acts, in isolation, suffice to justify the responding use of deadly force by officers to subdue Castro. In addition, there was no response to the K9 warnings given. Though LE may not release a K9 on a person who neither endangers officers nor resists arrest, the totality of Castro’s actions during the police pursuit, when viewed in a light most favorable to him, demonstrate a reasonable basis for handler to have believed the threat to safety persisted despite the temporary pause in Castro revving his engine. Finally, there is no evidence to suggest that it was reasonably foreseeable that in response to deploying the K9, Castro would escalate the situation by drawing a handgun and shooting handler and the K9. In addition, considering that Castro fired his handgun nearly at the instant the dog was inserted into the vehicle, causes the Court to conclude that a reasonable jury would not find the officers’ use of deadly force in response was unreasonable.

The court also held that LE was entitled to qualified immunity. Even if the plaintiffs could prove that this deployment of a K9 was excessive force, there is no case that would have put LE on notice that this deployment was excessive force. In addition, Castro was the one to start firing a gun first. LE was then authorized to return fire. Therefore, LE is entitled to summary judgement and dismissal.

As to the Monell claims, the court ruled that the plaintiffs had not sufficiently identified a particular deficiency in training protocols. In addition, they did not show a single violation by the agency that could have pointed to a policy that was in violation of the law.

The court moved on to Cuevas’ causes of action. She did not contest LE’s actions prior to the vehicle getting stuck. Here, Cuevas was not seized under the Fourth Amendment because Castro did not submit to the authority of LE; he got stuck in some mud. Then, LE fired on Castro because Castro fired on them, killing the K9 and seriously injuring the handler. This was not an intentional seizure of Cuevas.

Even if Cuevas was seized under the Fourth Amendment, LE would still be entitled to qualified immunity based on the above analysis. As to an excessive force argument, LE again claimed qualified immunity. Cuevas asserted that LE used excessive force when they put the K9 in the car. However, even though she was an innocent passenger, there was no previous law or authority that prevented LE from shooting at a high speed chase suspect when that suspect shot at them.

Note: This is a really tragic case. Because of Castro’s solo actions, Cuevas’ life will never be the same (and she will not be able to recover any money from Castro so her medical bills and on-going care will not be covered), the handler had to forfeit a career and a K9 was killed. However, there was valid justification for the actions of LE and the court found they acted reasonably. A good court outcome even if the real life outcomes were so serious.

United States v. O’Meara (Ohio 2023) 2023 U.S. Dist. LEXIS 112768

Traffic Stop; Collective Knowledge Doctrine; Reasonable Suspicion

LE received a tip from the a DEA agent (unidentified) about O’Meara. LE was given a description of O’Meara, that he was driving a white Impala, and that he had a brown bag in his car that possibly contained cocaine.

When LE observed the Impala, he followed it. O’Meara was following too closely. During the stop, LE asked for the appropriate documentation and O’Meara supplied it. LE had O’Meara come with him to his cruiser while he investigated his driving record. O’Meara seemed over nervous, made very little eye contact, his belly was moving in and out and he had increased respiration even though he had been told he was only going to get a warning. LE also asked for criminal history based on the tip from the DEA. At the same time, LE asked for a K9 team to respond.

LE then began filling out the warning citation. LE was unable to log into his in-car computer. After fiddling with it and trying to do the citation without the computer, he was able to log on and start the citation. However, O’Meara’s criminal history was still pending  and needed to complete the citation. The K9 team arrived about two minutes after this and still before the criminal history was known. The K9 team sniffed the car, then alerted. The search of the car revealed the cocaine as stated by the DEA agent. Rollback SW found more stuff in O’Meara’s home and two storage units.

O’Meara filed a motion to suppress claiming that the traffic stop was unreasonably prolonged to wait for the K9 team. Since the citation was complete at 12:02 and the K9 team did not arrive until 12:04 and alerted at 12:05, LE must be able to articulate reasonable suspicion of additional criminal behavior to extend the stop over these 3 minutes.

The court held that the nervous behavior and odd answers to questions need to be viewed together with the DEA tip. That knowledge together with O’Meara’s nervousness and delayed responses created sufficient reasonable suspicion for LE to prolong the traffic stop until the drug dog alerted.

The court also held collective knowledge doctrine did not apply in this case, but still LE had probable cause to pull O’Meara over based on the DEA’s information.

Note: That last argument was a bit of a hairsplitter: collective knowledge doctrine is when one LE tells another LE to do something because of an investigation that the first officer has done. As long as there is enough information shared between them, the court imputes the first officer’s knowledge to the second one. Here, there was no request to do anything, but the court held that the information was so specific and was from a trustworthy source that LE had probable cause to stop the vehicle.

Moss v. State (Texas 2023) 2023 Tex. App. LEXIS 4696

Traffic Stop; Prolonged Detention; Removing Occupants

LE was watching a known drug location and a black Mercedes did not properly signal when it turned at an intersection. Moss was the driver and when LE called in the plate, LE also asked for a K9 team to respond. There was a passenger and a backpack in the back seat. The passenger turned out to have a warrant. At this point, LE decided to take the occupants out of the vehicle for his safety. Records also indicated that Moss was a felon (which was reduced to a misdemeanor). As passenger exited the car, a firearm dropped to the passenger floorboard. At that point, Moss could have reached over and grabbed the gun. Moss was taken out of the car and told he was being detained although LE considered this an arrest because of his felony status. At that time, LE did not know the felony charge had been reduced to a misdemeanor. Seven minutes later, the K9 team arrived. K9 alerted and inside the backpack was narcotics, a gun and indicia for Moss.

The court first held that the traffic stop was justified. The only other issue was whether there was a prolonged detention. Here, when LE found out about the warrant and the felon status, he was justified in calling for back up. When back up arrived, and passenger got out, the gun fell to the floor and at this point, LE had reasonable suspicion that Moss was involved in more crime than just the traffic violations. The trial court concluded that based on the information LE was in possession of at the time, that Moss was a felon, LE had probable cause to arrest Moss. The appellate court agreed, even though later it was determined that Moss was not a felon.

Viewing the record in the light most favorable to the trial court’s ruling, and considering the totality of the circumstances throughout the detention, the appellate court concluded that the evidence supports the trial court’s conclusions of law, and the findings of fact in support, that there existed a reasonable basis for the traffic stop, the detention was not unconstitutionally prolonged, and Moss’s constitutional rights were not violated.

Note: LE’s belief that Moss was a felon was reasonable based on the information he had at the time. If a conclusion like this made by an officer is reasonable based on available information, then the court will uphold that determination.

United States v. Funk (Montana 2023) 2023 U.S. Dist. LEXIS 112761

Traffic Stop; Prolonged Detention

Funk was stopped for speeding. LE explained the reason for the stop and asked for the appropriate documents. Funk provided license and registration, but claimed he did not have insurance. Funk claimed that he and his passenger ere going to help a friend fix up her home so she could sell it and move. LE noticed that Funk was extremely nervous, fidgeting in his seat, looking out ahead of the vehicle, and stammering as he spoke.

Funk’s license status was that there was a problem with financial responsibility (no insurance) and he needed an interlock device. He had no warrants and no priors. While LE was waiting for this information, back up arrived and they discussed whether to run a more intensive criminal history search. This was based on Funk’s behavior, inconsistent story and that he was travelling from a source state to a destination state. LE then ran the additional check.

While they were awaiting the results, back up asked Funk out to talk to him. Funk was nervous, shaky, and inquisitive about why back up wanted to speak with him. Funk said that he was traveling from Spokane to Sheridan to repair a friend’s house for sale, and that he was staying for one to two days. He said he met the passenger through their girlfriends, had known him for about three years, but did not know his last name. Funk also stated that he and the passenger each had bags in the truck, though back up reported only observing a backpack on the driver’s rear seat and a cooler on the passenger rear seat. A conversation with the passenger came out a bit different. There were no tools or luggage consistent with the stated purpose of the trip and they traveled through the night.

There was another conference and they decided to get passenger’s ID since this was starting to look like a drug investigation. While waiting for passenger’s information, the intensive criminal check on Funk came back negative. But passenger had a warrant out of Washington for escape from a controlled substances sentence. He also had cautions for assault, C/S and trafficking. An intensive check on passenger also came back clear. A search warrant was requested but the judge asked for a K9 sniff. The K9 arrived, sniffed and alerted. The car was then towed and a SW was granted later that day. Contraband was found.

As an initial matter, the appellate court found the investigation of the traffic stop was concluded after LE received the results of Funk’s criminal history check and the validation of his information. All that remained to be done was the issuing of traffic citations or warnings. Any prolonging of the traffic stop thereafter must have been supported by independent reasonable suspicion. The court then held that the intensive record check of Funk was not part of the traffic stop and therefore a prolongation because LE did not have sufficient reasonable suspicion of any additional crimes. The court dismissed the nervousness and the odd story as not enough to support reasonable suspicion.

However, the revelations about passenger’s drug-related warrant and warnings officers learned from dispatch at 7:52 a.m. tipped the scale from a hunch to reasonable suspicion because the officers now had particular facts connecting passenger with drug possession and trafficking. Combined with the details about their trip, these facts gave the officers reasonable suspicion to believe that the men were engaged in criminal activity (specifically drug possession or trafficking), to run the intensive criminal check on passenger, and to extend the stop.

Moving to whether the officers had established reasonable suspicion when they seized the truck and conducted the dog sniff, the Court finds that the officers did. Funk’s negative criminal check did not erase the suspicion about drug trafficking generated from Gregory’s criminal history check. Additionally, while officers questioned Funk on the hood of LE’s patrol car, Funk continued to act nervous and distressed despite being told repeatedly that the officers did not care if he had small amounts of marijuana in the car. Together, Gregory’s warrants and warnings connecting him with drug possession and trafficking, Funk’s unabating nervousness, the nature of their trip, inconsistencies between their stories, and lack of knowledge of each other’s last names provided officers with suspicions of drug trafficking that were both objective and particularized. Such reasonable suspicion justified their seizure of Funk’s truck and the K9 sniff.

The finding of reasonable suspicion at this stage does not affect the Court’s holding but rather serves to articulate when an objective officer would have established reasonable suspicion to conduct unrelated inquiries and extend the stop, and when they did not. The officers here unconstitutionally extended the stop because they had not established reasonable suspicion when LE ordered the criminal check on Funk. Rather, it took officers an additional 17 minutes from the end of the mission of the stop to develop reasonable suspicion. As a result, Funk effectively was detained unconstitutionally for nearly 50 minutes while the officers investigated him and passenger for drug possession/trafficking, then had his vehicle seized for an additional hour before the K9 sniff was conducted. Thus, all evidence obtained after LE ordered the criminal check on Funk must be suppressed as fruit of the poisonous tree.

Note: This is an interesting result. These standards applied by the courts are very subjective and when similar facts result in sufficient reasonable suspicion, it’s hard to see another court rule the opposite way. The take away is to make sure you can articulate what the additional reasonable suspicion is along with getting a K9 team to respond quickly.