July/August 2020 Update

Meyer’s K9 Law July/August 2020 Update – Volume 1, No. 4

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In this month’s edition, in addition to cases pertaining to PSD teams and supervisors, you will find additional cases that address the smell of marijuana as reasonable suspicion/probable cause. We are in the middle of a sea change in how Americans as well as political entities look at marijuana. That means that each state, depending on the level to which marijuana is legal or illegal, will analyze each case differently. It appears, though, that some patterns are emerging. In California, marijuana was legalized for recreational use by Proposition 64, which included language that possession of legal amounts of marijuana cannot constitute the basis for detention, search or arrest. Therefore, in California, because of this wording, LE must have more than just the scent of green marijuana or the discovery of a properly packaged legal amount of marijuana for LE to have reasonable suspicion to conduct a further investigation. In states where recreational marijuana is legalized, some states are indicating that there must be more than a reasonable suspicion that a legal amount of marijuana is legalized. Finally, in states where marijuana is medically available or completely illegal, the mere smell of marijuana remains probable cause to conduct a search. It is important that you not only be familiar with your states’ laws, but also know how your local prosecutor is going to handle these cases. I hope the discussion of the following cases assist you in understanding the path forward.

A note on unpublished (Unpub.) cases: Cases that are “unpublished” cannot be used as precedent. However, I have included unpublished cases because it helps to understand how the appellate courts are thinking. In addition, the arguments in the case can be used; the case just can’t be cited.

(Disclaimer: I do not represent any handlers or agencies. The data shared on via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. It is not legal advice.)

Article: Update on the Smell of Marijuana as Reasonable Suspicion/Probable Cause

Cases Reviewed:

New Jersey v. Cherry – Traffic Stop; Prolonged Detention; Reasonable Suspicion

United States v. Young – Traffic Stop; Prolonged Detention; Reasonable Suspicion;

Whaley v. State – Traffic Stop; Smell of Burnt Marijuana

Commonwealth v. Way – Traffic Stop; Probable Cause to Search; Automobile Exception; Plain View Doctrine

New Jersey v. Gerald – Smell of Marijuana as Probable Cause

People v. McGee – Marijuana as Probable Cause

State v. Mitchell – Traffic Stop; Reasonable Suspicion; Prolonged Detention

State v. Vanguilder – Illegal Seizure

State v. Hall (2020) – Traffic Stop; Smell of Marijuana; Plain Sight Doctrine

State v. Redway – Traffic Stop; Alert as Probable Cause; Prolonged Detention

United States v. Salas – Traffic Stop; Prolonged Detention

Estate of Rushing v. AG Private Protection, Inc. – Excessive Use of Force

State v. Dodson – Smell of Marijuana as Probable Cause; Automobile Exception

State v. Leonard – Smell of Marijuana as Probable Cause

State v. Bell-Brayboy – Traffic Stop; Prolonged Detention

Booker v. City of Lynchburg – Denial of Medical Attention; Monell Liability; Excessive Use of Force

United States v. Jennings – Traffic Stop; Prolonged Detention; Smell of Marijuana

United States v. Maffei – Prolonged Detention; Smell of Marijuana as Probable Cause

United States v. Trice – Curtilage

Jones v. HeasletHeck Doctrine

United States v. Green – Traffic Stop; Reasonable Suspicion; Collective Knowledge Doctrine

United States v. Goolsby – Traffic Stop; Smell of Marijuana; Automobile Search

State v. Acuna – Consensual Encounter; Detention

United States v. Rodriguez – Inevitable Discovery Doctrine

Commonwealth v. Scott (2020) – Curtilage; Alert as Probable Cause

Article: Update on the Smell of Marijuana as Reasonable Suspicion/Probable Cause

Courts have been changing how they treat evidence of marijuana as either reasonable suspicion to expand an investigation or as probable cause for arrest or search warrant. In California, specifically, the language of Proposition 64 in 2016 and amendments by the Legislature are changing how the courts must view evidence of possession of what appears to be a “legal” amount of marijuana.

What is a “legal” amount of marijuana in California? Anyone 21 years of age or older to possess and consume up to an ounce of marijuana with no medical recommendation. (H&S § 11362.1(a)(1) & (3)).  But there are limitations.  On the limited issue of the use or possession of marijuana in vehicles, the following statutory restrictions are important:  H&S § 11362.3(a) makes it illegal (an infraction) to smoke or ingest marijuana (1) in a public place (subd. (a)(1)), which arguably includes in a vehicle while out on the public streets or in any other public place), (2) anywhere where smoking tobacco is prohibited (subd. (a)(2)), (3) within 1,000 feet (including simple possession, whether or not it’s being smoked, if on the grounds) of a school, day care center, or youth center while children are present (subd. (a)(3) & (5)), or (4)), while driving or operating, or when riding in the passenger seat or compartment, of a motor vehicle, boat, vessel, or aircraft (subd. (a)(7) & (8)).  It is also illegal for anyone to (5) possess (whether or not it’s being smoked) an open container or open package of marijuana while driving, operating, or riding in the passenger seat of a motor vehicle, boat, vessel, or aircraft.  (Subd. (a)(4)) (See also Veh. Code §§ 23220, 23221, and 23222, relative to cannabis in vehicles.) “Open” container is not defined by the law; we will be monitoring cases to see if the courts address this issue.

What has made California courts approach possession of marijuana differently is the language in Health and Safety Code Section 11362.1(c). That language has redefined how courts view “legal” possession of marijuana. “(c) Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” (Emphasis added). Several recent cases demonstrate that the courts are applying this language literally.

Previously, courts viewed any evidence of marijuana possession as probable cause for additional evidence of illegal possession of marijuana. See People v. Waxler (2014) 224 Cal.App.4th 712; People v. Gale (1973) 9 Cal.3d 788, 794, superseded by statute on another ground in People v. Johnson (1984) 162 Cal.App.3d 100, 1008 [“strong odor of fresh marijuana” gave the officer “‘probable cause to believe … that contraband may be present’”]; People v. Johnson (1984) 162 Cal.App.3d 100, 1008 [“strong odor of fresh marijuana” gave the officer “‘probable cause to believe … that contraband may be present’”]; People v. Cook (1975) 13 Cal.3d 663, 667-669, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 [scent of marijuana emanating from a car’s trunk provided probable cause to a search under the automobile exception to the warrant requirement]; People v. Strasburg (2007) 148 Cal.App.4th 1052, 1060 and People v. Dey (2000) 84 Cal.App,4th 1318, 1320 [observation of a “useable quantity of marijuana … in the passenger compartment” of the defendant’s car “provided probable cause for the search of the vehicle’s trunk”]; People v. Hunter (2005) 133 Cal.App.4th 371, 37 [officer saw a “sandwich bag containing a green residue that his training and experience told him … was marijuana”]; Robey v. Superior Court (2013) 56 Cal.4th 1218, 1254 (conc. opn. of Liu, J.) [noting the “settled proposition that the smell of marijuana can establish probable cause to search and, in the context of an automobile search … , can provide a sufficient basis to proceed without a warrant”].

Post legalization in 2016, People v. Fews (2018) 27 Cal.App.5th 553 was decided. Where the odor of marijuana is detected coming from a vehicle, the court held that, “(d)ue to the odor of marijuana emanating from the vehicle and occupant, as well as occupant’s admission that there was marijuana in his half-burnt cigar, there was a fair probability that a search of the SUV might yield additional contraband  or evidence.” The search of defendant’s vehicle, therefore, was held to be lawful. Fews, supra, at pp. 561-562. However, very soon after Fews, People v. Lee (2019 40 Cal. App. 5th 853, People v. Shumake (2019) 45 Cal.App.5th Supp. 1 and People v. McGee (2020) 2020 Cal. App. LEXIS 4817 came out and demonstrated the different direction the courts are now taking.

The 4th Appellate District in California ruled for the defense in People v. Lee (2019) 40 Cal.App.5th 853. (While this is a 4th Appellate District case and therefore only binding in the 4th District’s jurisdiction, other appellate districts will rely heavily on it and it is an indication of how the other districts may rule. Lee and Fews have thus created a conflict in the appellate courts for California.) In Lee, the court held that a driver of a motor vehicle having on his person a small, legal amount of marijuana (i.e., with no odor emanating from the vehicle) is of “fairly minimal significance” in determining whether there is probable cause to believe the vehicle contains an illegal amount. “(T)here must be . . . additional evidence beyond the mere possession of a legal amount” for there to be probable cause to believe there is more marijuana in a suspect’s vehicle. Leesupra, at 861-867.

In addition, Alameda County came out with a new case out in California on this issue. (Since this is an Alameda Superior Court case, it is not precedent in any jurisdiction except Alameda County. However, you should expect defendants will be citing it in your cases). In People v. Shumake (2019) 45 Cal.App.5th Supp. 1, LE smelled fresh and burnt marijuana (LE testified that burnt marijuana can linger on clothes for up to a week, which isn’t exactly correct. It appears this LE did not have personal experience but was relying on information gained from others. Most LE know that there is a distinction between the smell of freshly burned marijuana v. the smell of stale burned marijuana. Had this LE been able to make this distinction, it may have been of use because recently smoked marijuana would indicate subject had just smoked marijuana while driving, which is illegal). Driver admitted to having a small amount of bud. LE found a closed container of marijuana (in a plastic tube with a lid on it). Erroneously believing this was an “open container” because it was not sealed, LE searched the car pursuant to probable cause and found a gun. The court held that the language of the statute just required the container to be closed and not sealed, so this was an illegal search, as H&S 11362.1 clearly states that a legal amount of marijuana cannot be considered contraband or subject to seizure.

Finally, this year, the courts have decided People v. McGee (2019). During a traffic stop for expired registration, LE smelled fresh marijuana and spotted an “unsealed” bag of marijuana on the passenger’s person (cleavage) which gave LE probable cause to search passenger’s purse (no further description of “unsealed” was given in the opinion). A gun was found. Driver (a prohibited person) later confessed to putting the gun in her purse and pleaded guilty to illegal possession of a firearm. The court here held that the fact that the marijuana was not in a sealed container as required by law (H&S 11362.3(a)(4)) gave LE probable cause to search for additional marijuana possessed illegally. (This is an unpublished case so it is not precedent, but it demonstrates how the 3rd District views the statute.)

So where does that leave LE? It appears that this issue will arise in one of two ways: 1) During an investigation, the smell of marijuana or an alert to the smell of marijuana could be further investigated only if there are other indicators that the marijuana is illegally possessed; or 2) the observation of a legal amount of marijuana will also need additional indicators that there is additional marijuana illegally possessed.

Case Review:

New Jersey v. Cherry (2020) 2020 N.J. Super. Unpub. LEXIS 1327

Traffic Stop; Prolonged Detention; Reasonable Suspicion

LE saw subject run a stop sign and found out that the registered owner of vehicle had a suspended license. Followed vehicle to gas station and maintained surveillance. The driver approached another vehicle on foot, reached inside and conducted an exchange, then got back in his vehicle and departed. LE believed based on training and experience that this was a drug deal. A traffic stop was initiated as he drove away. Driver told LE his license was suspended and wanted to know whether he could have someone come and get the vehicle. LE told him no because they believed the vehicle was involved in a drug deal and may have evidence or contraband. Driver was very nervous. Driver said he was coming from the house of a person LE believed was a drug dealer. Driver than started calling someone to come pick up the car. LE told driver to hang up because the car was not going to be released. Driver did not obey commands and took off running. He was caught and found with $498 in small bills. A PSD team was called to the scene and alerted on vehicle. Vehicle searched and contraband found.

Driver only appeals the unreasonable detention and search of his vehicle (stop was unchallenged at this level). The court held that LE had reasonable suspicion of drug offenses to prolong the investigatory stop to have a PSD team respond and conduct a free air sniff. This was based on what LE believed was a drug transaction at the gas station as well as driver’s nervousness and refusal to obey commands. In addition, driver’s flight from the scene extended the time for detention and allowed LE to conduct a search of driver’s person, which resulted in finding a large amount of cash in small bills. This along with the totality of the circumstances, extended reasonable suspicion sufficiently to summon a PSD team. The alert provided probable cause to search.

Editor’s note: This is a very straightforward case with little new information. However, it is interesting to note that the court held driver’s flight against him; something to keep in mind when making sure you mention all relevant facts in your reports. If the PSD team only wrote a report on the alert, it would be critical that the alert report mention the other LE reports so that the critical information that assisted in a finding of reasonable suspicion was properly discovered to the defense and used appropriately in the opposition to the motion to suppress.

United States v. Young (2020) 2020 U.S. App. LEXIS 20793

Traffic Stop; Prolonged Detention; Reasonable Suspicion;

Subject stopped for speeding and obscured windshield. Subject claimed car was a rental but her story was odd because she was travelling to the city she claimed she was driving away from. Subject very nervous; denied drugs in the car and refused consent. During a computer check, LE determined that subject had three prior cases for marijuana possession. A PSD team was called out and PSD alerted. Subject then admitted she had marijuana in her purse. LE discovered more marijuana in the door pocket and over $4,000 in cash on subject. When looking at the engine of the car, the battery looked out of place (old battery in new car). Rental company said battery should be new. When LE removed the battery, there were signs of tampering and he smelled vinegar which he associated with heroin. Once battery searched at the station, it contained over 10 pounds of heroin.

Court held the stop was appropriate for the violations observed. In addition, the court held that LE has reasonable suspicion of drug offenses to prolong the stop; subject’s story of heading the wrong direction, her overt nervousness and her three prior marijuana charges. The court stated that the eight to ten minutes it took for the PSD to arrive was not impermissibly long given the additional reasonable suspicion.

The search of the vehicle was legal under the vehicle exception as LE found marijuana in the car, the PSD alerted and the battery smelled like heroin and had been tampered with.

Editor’s note: Great work by all involved. It’s a good reminder that drug runners can hide stuff in really crazy places and once you have probable cause to search the car, you have probable cause to search all areas, including containers.

Whaley v. State (2020) Md. App. LEXIS 746

Traffic Stop; Smell of Burnt Marijuana

During a traffic stop (as the car was being pulled over), LE smelled and saw a cloud of burnt marijuana smoke wafting from the driver’s side of the vehicle. At the car, LE saw furtive movements and also smelled again the odor of marijuana. Driver admitted they had been smoking in the vehicle. Occupants removed from car and car searched. Contraband, including marijuana, was found. The trial court held that the smell of marijuana supplied probable cause to search the vehicle. Appeals court affirmed.

Editor’s note: Maryland is a state where marijuana is still illegal, so this ruling is not a surprise. We’ll keep tracking these issues for you around the nation to bring you the latest.

Commonwealth v. Way (2020) 2020 Pa. Super. Unpub. LEXIS 2405

Traffic Stop; Probable Cause to Search; Automobile Exception; Plain View Doctrine

Traffic stop for expired registration. Driver got out, refused to obey commands and took off running. Driver was caught some distance from the vehicle. Through the open driver’s door (left open by driver), LE could see a baggie of marijuana and could smell the odor of fresh marijuana. A search of the vehicle revealed additional contraband packaged for sale.

Driver objected to the vehicle search based on Arizona v. Gant (defendant secured away from the vehicle so cannot search for anything other than what defendant arrested for). However, the appellate court here indicated that the search was pursuant to the plain view doctrine. This is a four part test; 1) LE is in a location that does not violate the Fourth Amendment; 2) the contraband was not obscured and could be seen plainly from the location; 3) the incriminating nature of the contraband was immediately apparent; and 4) LE had the lawful right to seize the item. Here, the court found that based on LE smelling marijuana alone gave LE probable cause to search the vehicle, but the contraband in plain sight also gave LE probable cause to search.

Editor’s note: Pennsylvania is also a state where marijuana remains illegal to possess. For those states in which marijuana is legal, refer to that state’s laws.

New Jersey v. Gerald (2020) 2020 N.J. Super. Unpub. LEXIS 1520

Smell of Marijuana as Probable Cause

LE had knowledge that a person had been assaulted by a gang over a dispute and had requested additional patrol checks. A 911 call came in from someone at the victim’s house reporting a black male, wearing dark clothing and carrying a handgun, was outside. When LE arrived (around 2:30 am), they located a car with its engine running was parked across the street from the victim’s house. Three black males were in the vehicle, all wearing dark clothing. They were all detained; two were compliant, but the rear passenger was moving around and reaching over to the driver’s seat. Passenger finally complied with commands to exit by barely opening the door and easing out, cell phone in hand recording LE. Passenger was resisting being handcuffed (PSD team was approaching, but it is not clear whether that was the deciding factor in passenger’s obedience), but finally was handcuffed. The other two were complying with commands. The odor of burnt marijuana was emanating from the driver’s side. LE saw a alerted to the car. A search warrant was issued and the vehicle was searched. A handgun was discovered.

The appellate court held that the initial detention was lawful given the 911 call information. The appellate court also held that the search warrant affidavit provided probable cause to search based on LE’s smelling of marijuana, the PSD alerting to the vehicle and the bulge that ultimately contained a firearm.

Editor’s note: Again, New Jersey has not legalized marijuana, so the smell is probable cause in this state.

People v. McGee (2020) 2020 Cal. App. LEXIS 4817 (Unpub.)

Marijuana as Probable Cause

During a traffic stop for expired registration, LE smelled fresh marijuana and spotted an unsealed bag of marijuana on the passenger’s person (cleavage) which gave LE probable cause to search passenger’s purse. Driver later confessed to putting the gun in her purse and pleaded guilty to illegal possession of a firearm.

The fact that the marijuana was not in a sealed container as required by law (H&S 11362.3(a)(4)) gave LE probable cause to search for additional marijuana possessed illegally.

The court analyzed two recent cases, People v. Lee (2019) 40 Cal.App.5th 853 and People v. Fews (2018) 27 Cal.App.5th 553. The Lee case said that there must be additional evidence beyond the possession of a legal amount of marijuana to support a reasonable belief the subject has an illegal amount or is violating some other statutory provision. The Fews case indicated that since the subject was making furtive movements, there was the smell of burnt marijuana and subject was in possession of a half smoked marijuana cigar, there was probable cause to believe subject was violating laws other than simple legal possession of marijuana; to wit, driving while intoxicated and having an open container of marijuana in the vehicle.

Editor’s note: The concisely explained difference between the Lee decision and the Fews decision is helpful to applying the law in the field. It appears now that, in California, LE must have some evidence of illegal possession of marijuana (open container, smoking while driving, driving under the influence) before probable cause will be found to search a vehicle under the automobile exception.

State v. Mitchell (2020) 2020 Minn. App. Unpub. LEXIS 638

Traffic Stop; Reasonable Suspicion; Prolonged Detention

Rental car stopped for speeding on known corridor for drug trafficking. A large amount of luggage was noted in the car. After LE knocked on the window, the passenger only opened it a few inches. Driver said they were coming from a football game in Oregon and headed to Illinois. A large bottle of air freshener was in the glove box, noted when driver was looking for registration and driver’s license. Driver was unsuccessful so LE asked him to come back to his cruiser to obtain necessary information. Driver asked questions oddly and was extremely nervous. After a few minutes of observation, LE told driver that he thought he was involved in drug smuggling. LE then talked to passenger whose story was different than driver. At that point, LE smelled the strong odor of marijuana from the car. PSD was deployed and alerted. (No mention of when PSD team contacted or if they just happened to roll up).

Driver contested the search claiming prolonged detention at five different points in the investigation. Court examined each one and found, under the totality of circumstances, that none of them were an illegal prolongation as reasonable suspicion existed for drug smuggling (initially the partially rolled down window, large amount of luggage, air freshener and extreme nervousness; then later, the odor of marijuana). Therefore, at the time of the PSD sniff, LE had reasonable suspicion of drug smuggling.

State v. Vanguilder (2020) 2020 Minn. App. Unpub. LEXIS 634

Illegal Seizure

LE stopped and talked with a couple exit a van at 0300 and start trying doors of closed businesses. Male was arrested for false information and female was arrested on a warrant. Consent refused to search the van. Van was then towed to the police department for a PSD team to perform a sniff.

The appellate court indicated that while an investigatory detention was lawful, given the facts above, towing the van was an illegal seizure. The fact that the seizure was for a PSD sniff was irrelevant, because the seizure was illegal at the outset.

Editor’s note: The puzzlement here is why didn’t LE call the PSD team to the location or impound the van (if facts existed to impound it) and perform an inventory search. Either option would have gotten them into the van. In addition, the prosecuting agency did not argue inevitable discovery. This may not have been successful, but all avenues of admissibility should be argued at every stage in a case.

State v. Hall (2020) 2020 La. App. Unpub. LEXIS 139

Traffic Stop; Smell of Marijuana; Plain Sight Doctrine

Traffic stop on a rental vehicle because subject was blocking traffic flow in the middle of an intersection. As the vehicle pulled over, LE could see subject making furtive movements towards the center console. Upon approach, LE could smell burnt marijuana. Subject did not have a driver’s license so LE asked him to exit.  Subject tried to shut and lock the door which LE prevented. When LE returned to vehicle, he saw a gun between the driver’s seat and center console.

The appellate court held that the odor of marijuana provided LE with the probable cause to search the ‘s vehicle. In addition, the court noted that the door was open and the gun was actually in plain sight.

Editor’s note: Interestingly, it did not address the issue of whether LE leaving the door open impacted the driver’s rights. Since the gun was between the seat and the center console, it may have been visible even without the open door. We don’t know because it wasn’t addressed. Also, keep in mind that Louisiana is a medical marijuana state, not a recreational state.

State v. Redway (2020) 2020-Ohio-3826

Traffic Stop; Alert as Probable Cause; Prolonged Detention

LE noted that driver displayed unusual behaviors and followed him. Driver failed to signal a lane change so traffic stop initiated. A conversation was had where LE was suspicious but determined that driver wasn’t fatigued or impaired. However, because of the unusual behavior, LE called for a PSD team. LE then received information through their data bases that driver was involved in an international drug smuggling ring. LE then received notice that the PSD was unavailable so LE requested another team. PSD team responded in six minutes. PSD deployed and alerted. Dispatch had not yet returned with information necessary to complete the citation. Vehicle search resulted in locating contraband. Court found that LE continued to diligently pursue the processing of the traffic ticket and any delay was on the part of dispatch. Therefore, the court did not reach a prolonged detention discussion other that to say that defendant’s assertion that the traffic stop should have taken 5 minutes or less was not founded in the law. Motion to suppress denied.

United States v. Salas (6th Cir. 2020) 2020 U.S. App. LEXIS 23180 (Unpub.)

Traffic Stop; Prolonged Detention

A CI in possession of $300,000 agreed to give information to LE of an expected drug delivery at a specific location (LE confirmed through investigation that CI was a part of a drug smuggling operation). LE followed the identified party until a traffic violation was committed. The vehicle had out of state plates and driver and passenger had IDs out of two other states. Their story sounded rehearsed and non-specific even though they were within minutes of their claimed destination. PSD team was on site and performed a sniff and alerted. As this was happening, driver said he had some “personal use” narcotics in the vehicle. Search revealed over 6 pounds of cocaine.

The court held that LE had reasonable suspicion that defendant was transporting illegal drugs (due to previous investigation and CI information) and that a PSD sniff was constitutional on that basis, as the vehicle stop arose out of an extensive investigation into an ongoing drug enterprise and the officer testified that he met with the surveillance team and was briefed on the investigation just before the stop. Therefore, LE was not limited to just the traffic stop investigation; they had reasonable suspicion of drug smuggling which allowed LE to bring in a PSD to confirm whether the vehicle contained drugs.

Editor’s note: Once again, it is important that all avenues of admissibility be presented when faced with a motion to suppress. Here, LE was already operating with reasonable suspicion of drug trafficking, which allowed them the leeway to have a PSD perform a sniff.

Estate of Rushing v. AG Private Protection, Inc. (2020) 2020 U.S. Dist. LEXIS 129716

Excessive Use of Force

LE was dispatched to a “shots fired” call by a private security agent at a closed business. They found the security guard had been stabbed and the guard told LE that he had shot the subject in the chest in self defense. As LE investigated, they saw a great deal of blood both dripped and smeared on the inside of the glass entrance doors, leading LE to suspect the subject was inside. As they investigated, they called out their identity and told subject to come out. They then heard a voice yell, “Fuck you! I’ve got a gun!” LE continued to try and engage the subject, pleading with him to come out so they could help him and assuring him they did not want to hurt him. Subject at that point was barricaded in the bathroom. There were loud noises including a shattering noise coming from the bathroom as well as moans of pain. PSD team arrived from a neighboring agency. Handler called out a warning and encouraged subject to come out to avoid being bitten.

Blood tinged water was seeping out from under the bathroom door and it appeared that subject’s activity was slowing, indicating that subject was possibly succumbing to his wounds. LE forced entry into the bathroom; subject was actually behind the door they forced. Subject then stabbed one officer in the head, who began bleeding profusely. LE tried to restrain subject but he was wet and slippery as was the floor. Subject then stabbed a second LE in the throat; that LE shot the subject, ultimately killing him. PSD team was in the bathroom while this was going on but was only able to hold his bite for a short time due to the conditions.

This incident was captured on four different body cameras. The court held that after a review of audio and video, LE acted imminently and reasonably under the circumstances. The court went on to say that the high standard LE is held to regarding these types of situations (use of force) is not a standard that demands perfection and does not permit courts to act as armchair quarterbacks.

Editor’s note: this case has some great language about how LE was forced into this fatal result by the actions of the subject as well as how “reasonable” should be viewed by reviewing courts. This case came out of Butte County; anecdotally, it appeared that the handler did deploy the PSD, but the PSD was fairly ineffective due to the slippery floor and the rapidly evolving situation in a small area with lots of people. In addition, PSD really didn’t have much room to maneuver. As Meyer’s Police K9 Training advocates, be sure that when you deploy your PSD, it is an environment where the PSD can be successful.

State v. Dodson (2020) 2020 Ariz. Unpub. LEXIS 789

Smell of Marijuana as Probable Cause; Automobile Exception

During a probation search, LE found a gun in probationer’s garage (he was a prohibited person). When LE asked another subject, who was present with his vehicle which probationer was working on, for ID, he retrieved it from his car. LE could smell marijuana coming from the vehicle. Consent was refused.

There was discussion as to whether the car could be searched. Finally, a probation officer told LE that the car could be searched under probationer’s terms (it was in probationer’s garage). All sorts of contraband found.

The appellate court held that LE had probable cause to search the vehicle and no warrant was needed under the automobile exception. LE was legally present to conduct a probation search and when LE smelled marijuana, probable cause existed for search of the vehicle.

Editor’s note: At this time, Arizona is a medical marijuana state. Therefore, the smell of marijuana is still probable cause to search. However, there is a referendum on the ballot this election to determine if the voters want marijuana to be legalized for recreational use. If it passes, this issue will be revisited.

State v. Leonard (2020) 2020 Iowa App. LEXIS 743

Smell of Marijuana as Probable Cause

While serving a civil paper, LE smelled raw marijuana when subject opened the door. The court held this was probable cause sufficient to issue a search warrant.

Editor’s note: Iowa is a state that allows no legal possession of marijuana.

State v. Bell-Brayboy (2020) 2020 La. App. LEXIS 1087

Traffic Stop; Prolonged Detention

LE was patrolling an interstate looking for criminal activity including human trafficking and drug trafficking. Subject stopped for speeding and lane violations. Subject denied being sleepy, that the car belonged to his sister (it was registered to a female), and LE noticed the interior was very clean with only a backpack in the vehicle. Subject said he had been at a training camp and was heading back to school where he was on the football team. LE thought it odd that subject didn’t have more luggage for a four or five day trip. In addition, a call came in that only displayed a number but subject said it was a friend. When LE checked, subject was not on the roster for the football team at his school. The automated license plate reader system determined that the actual route taken by the vehicle was different than described by subject. LE called for back up and then asked for consent. Consent was refused and a PSD team was called. The team arrived within 20 to 22 minutes and PSD alerted.

The court held that the above facts created additional reasonable suspicion to extend the traffic stop in order to have the PSD team respond and perform a sniff.

Editor’s note: This case had a rather complicated trip to the Appellate court, with lower courts deciding that the Fourth Amendment was violated. At the second evidentiary hearing, LE’s expertise and training was more fully developed, explaining why the facts of the case indicated to LE that subject was a drug trafficker. This case serves as a good reminder to make your reports as thorough as possible so that a reviewing prosecutor and/or judge understands why you had reasonable suspicion to bring the PSD in.

Booker v. City of Lynchburg (Va. 2020) U.S. Dist. LEXIS 128818

Denial of Medical Attention; Monell Liability; Excessive Use of Force

Traffic stop for moving violation. Driver did not have a license. Driver refused consent to search the vehicle. Driver removed from vehicle and pat searched. LE searched the vehicle, saying they could see drugs and packaging that was consistent with drug packaging. PSD team then sniffed the vehicle, alerting on the trunk. (The alert was behavior consistent with being in the scent, but not a final indication). LE then attempted to detain driver and took him to the ground; the PSD then bit driver. Driver was hit with batons and the PSD was not released even when driver was in handcuffs. Handler had trouble getting the PSD to disengage and after release, PSD bit again at driver’s foot. (This is driver’s recitation of the facts in support of his opposition of LE’s motion for summary judgment which the court is required to consider for this type of motion).

The court allowed claims of denial of medical treatment, but everything else was dismissed, mainly because driver did not plead his allegations appropriately.

Editor’s note: There is nothing here that is earthshattering, but it will be interesting to see if additional filings make it to the appellate courts.

United States v. Jennings (Mont. 2020) 2020 U.S. Dist. LEXIS 128625

Traffic Stop; Prolonged Detention; Smell of Marijuana

During a traffic stop for speeding, LE smelled unburnt marijuana. Within two minutes of the stop, LE called for a PSD team. While talking with the driver regarding the citation, driver responded to questions about the smell of marijuana. The driver was a resident of North Dakota, and therefore could not have possession of even medical marijuana. Consent to search the vehicle was denied, but by then the PSD team arrived. PSD alerted and a search warrant was sought for the vehicle.

This court held that based on 9th Circuit precedent (United States v. Maffei (N.D. Cal. 2019) 417 F. Supp. 3d 1212, 1223), the smell of marijuana was sufficient to raise reasonable suspicion of additional criminal activity other than the traffic violations and justified the extension of time for the PSD team to arrive and deploy.

Editor’s note: There is a mention of the search warrant that was issued for the car. Driver complained that the PSD’s certification, training and experience was not included in the affidavit. The court did not reach that issue because the marijuana smell was probable cause to search. This serves as a good reminder that if you do seek a search warrant based on an alert or final indication of your PSD, you must include PSD’s certification information along with some information about the training and experience of your PSD. It’s probably a good idea to keep a paragraph on your computer that you can keep updated and then plug in when necessary.

United States v. Maffei (N.D. Cal. 2019) 417 F. Supp. 3d 1212

Prolonged Detention; Smell of Marijuana as Probable Cause

During a traffic stop, LE unreasonably prolonged the otherwise reasonable seizure of the vehicle by conducting a record check on the passenger (defendant) which was not relevant to the mission of the stop.

A traffic stop was conducted for equipment violations. LE smelled a strong odor of marijuana coming from inside the car. LE asked for ID from both occupants, and conducted records checks on both. LE waited for back up and then both occupants were removed from the car. Consent to search was declined. Driver said he had a cannabis card and there was some marijuana in the vehicle. LE believed at that point they had probable cause to search because of the marijuana smell.

The court held that asking (not demanding) information from the passenger was not problematic, but the records check on the passenger was, because such a check must be part of the stop’s mission or supported by independent reasonable suspicion. The court then went on to address the smell of marijuana as probable cause. The court held that because California’s Proposition 64 said that possession of “lawful” cannabis cannot be contraband nor subject to seizure and cannot be the basis for detention, search or arrest, the smell alone was not probable cause to search the vehicle. Since there was no evidence of “illegal” possession of cannabis prior to the search of the vehicle, the evidence from the vehicle search was suppressed. The court also addressed an inventory search under a community caretaking theory; the court said that impounding the vehicle under such a theory was not supported by the facts.

Editor’s note: This case is included even though it is from 2019 because somehow it slipped past me. Since this is a 9th Circuit case, it is important to understand it. Boiling it down, it appears now that the courts are taking Prop. 64 as written, that if there is no evidence that indicates illegal possession of marijuana, the presence of a legal amount and/or smell will not be probable cause to search. However, if you can show some indication of illegal possession (smell of burnt marijuana may support an investigation of driving while impaired, for example), then you may be on safer ground. This is a sticky wicket; we’ll keep you posted as this plays out in the courts. And be sure to read the article this month on this issue.

United States v. Trice (6th Cir. 2020) 2020 U.S. App. LEXIS 22738 (Michigan)


Defendant had no reasonable expectation of privacy in the apartment’s unlocked common hallway where a concealed camera recorded footage of suspect’s entry and exit which could have been seen by police in a publicly accessible location.

Editor’s note: While this isn’t a PSD case, it does discuss curtilage. Here, the appellate court was careful to limit the holding to this specific fact situation; particularly the fact that nothing other than the suspect’s entries and exits were recorded. This decision does not change the fact that bringing a PSD to an apartment door to sniff around it is a violation of curtilage.

Jones v. Heaslet (Kan. 2020) 2020 U.S. Dist. LEXIS 126785

Heck Doctrine

Prisoner brings this action to sue LE civilly for violating his civil rights during a traffic stop where a PSD alerted to the odor of narcotics. Prisoner was convicted of criminal charges arising out of this search. Because prisoner’s convictions arose out of the search about which he now complains, this appellate court held that the Heck Doctrine applies and therefore the action is to be dismissed.

United States v. Green (N.D.Fla. 2020) 2020 U.S. LEXIS 126663

Traffic Stop; Reasonable Suspicion; Collective Knowledge Doctrine

LE noticed a subject in a parked car, who according to an intelligence bulletin, was a suspect in recent violent crimes. One officer went close to the car and smelled marijuana. That officer then told uniformed officers to stop the car when it left. Another officer also saw open containers of alcohol. As soon as subject’s car was blocked by a marked unit, subject was taken from the car and handcuffed.

The court found the LE testimony credible, putting emphasis on demeanor in court (professional, calm and courteous), consistent with each other and with the physical evidence from body cams, and the training and experience of the officers. The court also found that LE has reasonable suspicion to affect a traffic stop, based on the smell of marijuana and the observation of open containers of alcohol.

Finally, the court addressed the subject’s complaint that the officers who stopped him were not the officers who smelled the marijuana or saw the open containers. The court held that the doctrine of collective knowledge applied here as there was at least minimal communication between the two sets of officers. Under that doctrine, the knowledge of the observing officers is imputed to the officers stopping the car.

Editor’s note: Recreational use of marijuana is not legal in Florida, so smell equates to reasonable suspicion in this case. Probable cause was not discussed as it was not challenged.

United States v. Goolsby (2nd Cir. 2020) 2020 U.S. App. LEXIS 22376 (New York)

Traffic Stop; Smell of Marijuana; Automobile Search

Traffic stop for turn signal violation. Upon approach to the car, LE smelled burnt marijuana. This justified a search of the entire vehicle, including containers (shoebox or lunchbox) in the vehicle.

Editor’s Note: Since this is a federal case, marijuana is still illegal to possess.

State v. Acuna (2020) 264 Ore. App. 158

Consensual Encounter; Detention

LE received a tip from an anonymous informant that four males in their late teens or early twenties were smoking marijuana while standing on a street corner. LE went to that location and engaged in conversation three men who met the description. They denied possession, but LE smelled the strong scent of marijuana in the immediate vicinity, but could not tell from where. That officer radio’d for back up and told the men that he appreciated honesty and cooperation and that simple possession of less than an ounce is just a ticket. When back up arrived, he asked defendant for consent to search his person. Defendant agreed. LE felt a baggie of weed and defendant confirmed it was marijuana. In a near by pick up truck bed was a backpack that also smelled of marijuana. Defendant claimed that back pack and gave consent to search. Marijuana and packing and a scale were found.

The court held that the consensual encounter became a detention when additional law enforcement showed up and he was asked for consent to search his person. The court went on to state that this detention was lawful because, among other things the court gives little weight to, the smell of marijuana gave LE reasonable suspicion that criminal activity was afoot. Therefore, the motion to suppress evidence was denied.

Editor’s note: Oregon does not allow the use of marijuana in public.

United States v. Rodriguez (Id. 2020) 2020 U.S. Dist. LEXIS 121637

Inevitable Discovery Doctrine

Report of a person acting strangely and rambling on in a store. Employees believed he was under the influence. LE arrived and ran the plate of the vehicle he was reportedly associated with. The plate did not come back to the car. Also, the car was parked outside the entrance (not a parking area) and still running, even though no one was in the car. LE made contact with subject who attempted to leave. LE told him to stop and noted that he was displaying physical signs of drug use. LE noted a large bulge in front pants pocket. LE asked if he had anything he wasn’t supposed to have, like weapons or drugs. Subject said no, patting at his pockets. LE asked him to raise his shirt so he could see subject’s waistline and subject started to do so, but then stuck both hands in his pockets. LE quickly became more forceful and told subject to do exactly as he was told or he would end up in the dirt. Subject finally complied with commands. LE held subject’s hands to his head and started a search of his person. A roll of cash was found and put back in subject’s pocket. LE then asked for consent to the item out his front pocket. Subject said, “Go ahead, pull everything out.” It turned out to be heroin. After subject invoked Miranda, a PSD sniffed the car and alerted. Inside was more contraband.

The court addressed many lines of appeal, but ruled that even though there might have been some issues with the previous searches and Miranda invocation, it held that the PSD sniff and alert was admissible under the inevitable discovery doctrine.

Commonwealth v. Scott (2020) 2020 Pa. Super. Unpub. LEXIS 2185

Curtilage; Alert as Probable Cause

Subject was in a car wreck while she was staying at the local drug dealer motel. LE found out that her companion in the car and in the room had a significant criminal history for drug and weapons offenses. Their stories, unsurprisingly, did not converge. Then, subject left the scene of the crash and ran to the motel. She came out in a few minutes and said she was in the bathroom. A PSD team was deployed to the hallway outside subject’s room and alerted at the door. Inside was evidence of crack cocaine sales.

The appellate court first held that, during the motion to suppress in the trial court, the Commonwealth had forfeited their right to require subject to prove she had a reasonable expectation of privacy in the hallway of the motel outside her room and would not allow the Commonwealth to raise that issue on appeal. The court held that in 1987, Pennsylvania recognized the use of a PSD as a limited search and seizure and therefore may be deployed to test for the presence of narcotics where LE is 1) able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and 2) lawfully present in the place where the sniff is conducted. The court held that in this situation, the facts indicated that LE had reasonable grounds to believe drugs would be present in the motel room. The court went on to state that the PSD sniff was lawful because LE had reasonable suspicion of drugs being present and created probable cause (LE sought a search warrant before searching the room based on the PSD alert).

Editor’s note: I have noticed that the trend in “curtilage” with regard to apartments and rented rooms has been leaning toward a PSD sniff being a violation of curtilage. Oddly, though, in this case, the court did not specifically address whether a PSD sniff of a motel room door was a violation of “curtilage”, even though the trend in other cases, state and federal, would indicate it would be a violation. Be sure you know what is applicable in your state.