JUNE 2021 UPDATE FOR MEYER’S K9 LAW (Vol. 2, No. 6)

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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from May 2021. (A caution here: some cases are unpublished (Unpub.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. In addition, the arguments in them can be used; the case just can’t be cited as precedent in court.)

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 not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. As I did last month, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.


Montana and Alabama legalized medical marijuana in May.

Mississippi’s Supreme Court on Friday overturned a voter-approved measure to legalize medical cannabis, ruling that the election law governing ballot referendums in the state has been out of date for nearly 20 years.

Oklahoma once again defended its residency rules for medical cannabis licensees, telling a federal judge on Wednesday that there can be no constitutional protections for interstate marijuana commerce because the drug is federally illegal.

Several Florida bills meant to legalize and tax recreational cannabis died in committee, killing legalization hopes in that state this year. The Florida Supreme Court on Thursday backed key elements of the state’s medical marijuana regulatory framework and said it disagreed with lower courts’ findings that a license applicant had shown it was likely to succeed with several constitutional challenges to licensing rules.

Connecticut’s House majority leader said Tuesday a deal on cannabis legalization and taxation legislation is close.

New Mexico regulators have released proposed rules for commercial cannabis producers and opened a public comment period on the rules, more than a month after Gov. Michelle Lujan Grisham signed off on legislation that legalizes (recreational) marijuana for adult use.

Rhode Island’s legislature has proposed a new bill to allow adults 21 and older to purchase and possess up to one ounce of marijuana in public as well as grow up to six cannabis plants at home, with a maximum of 12 plants allowed in residences where more than one adult lives. This may not come to a vote prior to the summer recess so may be taken up again in September.

In Louisiana, the House last week approved legislation to decriminalize possession of small amounts of marijuana and in a separate bill, the legislation would give the state’s existing medical marijuana patients access to cannabis flower and permit them to lawfully smoke it. Both bills are in front of the Senate for approval.

Texas lawmakers sent bills to the governor’s desk that would expand the state’s medical marijuana program and require a study into the therapeutic potential of certain psychedelics for military veterans. However, legislation to reduce penalties for possessing cannabis concentrates and update the state’s hemp program that had been advancing failed to cross the finish line by key deadlines.

Tennessee’s governor signed off on  legislation that will allow patients with qualifying conditions to possess CBD oil that contains no more than 0.9 percent THC, which is three times greater than the federal definition of hemp.  But in order to obtain the medicine, Tennesseans will have to go out of state or obtain it illegally, as there is currently no means to lawfully purchase cannabis within the state.

In federal news, for the second time this year, the Biden administration’s acting solicitor general has asked the U.S. Supreme Court to uphold a ruling allowing the IRS to seek information about Colorado pot businesses, saying federal law is clear that pot is illegal.

The U.S. Drug Enforcement Administration’s recent decision to broaden scientists’ access to marijuana for research has the potential to expand knowledge of the drug and help clear a path to the end of federal prohibition.

Congressional Democrats on Friday reintroduced a bill to decriminalize (by de-scheduling) marijuana at the federal level.


Peterich v. Columbia County & Columbia County Police (Oregon 2021) 2021 U.S. Dist. LEXIS 101610 – Excessive Force; Sufficient Warnings; Monell Liability; Qualified Immunity

Hyer v. City & County of Honolulu (Hawaii 2021) 2021 U.S. Dist. LEXIS 100416 – Excessive Force; Monell Liability

United States v. Jourden Tairee Shepard (North Carolina 2021) 2021 U.S. Dist. LEXIS 100405 – Traffic Stop; Prolonged Detention; Reliability Foundation

State v. Ouverson (Iowa 2021) 2021 Iowa App. LEXIS 428 – Traffic Stop; Smell of Marijuana as Probable Cause

I.W. v. City of Clovis Police Dep’t (New Mexico 2021) 2021 U.S. Dist. LEXIS 98324 – Excessive Force; Monell Liability; Qualified Immunity

State v. Greenwood (Nebraska 2021) 2021 Neb. App. LEXIS 145 – Traffic Stop; Search of a Passenger; Detention of a Passenger; Reasonable Suspicion; Prolonged Detention

People v. Ochoagomez (California 2021) 2021 Cal. App. Unpub. LEXIS 3404

State v. Hubbard (Ohio 20921) 2021-Ohio-1740 – Traffic Stop; Smell of Marijuana as Probable Cause

State v. Byrd (Tennessee 2021) 2021 Tenn. Crim. App. LEXIS 228 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Williams (Indiana 2021) 2021 U.S. Dist. LEXIS 96856 – Traffic Stop; Alert as Probable Cause; Prolonged Detention

People v. Butler (New York 2021) 2021 N.Y. App. Div. LEXIS 3323 – Traffic Stop; Sniff of Person; Alert as Probable Cause

United States v. Saxton-Smith (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 95842 – Traffic Stop; Odor of Marijuana as Probable Cause

Stichter v. Hyatte (Indiana 2021) 2021 U.S. Dist. LEXIS 94628 – Excessive Force; Standard for Use of Force in Custody

People v. Jackson (Illinois 2021) 2021 IL App (1st) 180927-U – Detention; Odor of Marijuana as Probable Cause

State v. Parker (North Carolina 2021) 2021-NCCOA-217 – Traffic Stop; Sniff of Person; Alert as Probable Cause

State v. Forest (Tennessee 2021) 2021 Tenn. Crim. App. LEXIS 222 – Traffic Stop; Prolonged Detention; Alert as Probable Cause

Miles v. State (Maryland 2021) 2021 Md. App. LEXIS 415 – Traffic Stop; Odor of Marijuana as Probable Cause

Foshee v. Zuniga (California 2021) 2021 U.S. Dist. LEXIS 92474 – Border Sniff/Search; Alert as Probable Cause

Martinez v. United States (California 2021) 2021 U.S. App. LEXIS 13888 – Border Sniff/Search; Alert as Probable Cause

State v. Joseph (Rhode Island 2021) 2021 R.I. Super. LEXIS 42 – Traffic Stop; Prolonged Detention; Racial Disparity in Traffic Stops

State v. Junjie Li (Rhode Island 2021) 2021 R.I. Super. LEXIS 41 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Spikes (Colorado 2021) 2021 U.S. Dist. LEXIS 88589 – Traffic Stop; Alert as Probable Cause; Reliability Foundation; Prolonged Detention

Castro v. Martin (Oregon 2021) 2021 U.S. App. LEXIS 13781 – Excessive Force

State v. Escudero (Oregon 2021) 2021 Ore. App. LEXIS 595 – Traffic Stop; Prolonged Detention

State v. Roth (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 257 – Welfare Check (or Public Safety Exception); Alert as Probable Cause; Plain Sight

State v. Best (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 138 – Consensual Encounter; Prolonged Detention; Alert as Probable Cause

United States v. Vick (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 86531 – Traffic Stop; Prolonged Detention

People v. Ponder (New York 2021) 2021 N.Y. App. Div. LEXIS 2988 – Traffic Stop; Odor of Marijuana as Probable Cause; Search of Containers (including Trunk)

Mahaffy v. Wyoming (Wyoming 2021) 2021 WY 63 – Traffic Stop; Prolonged Detention

United States v. Wilson (West Virginia 2021) 2021 U.S. Dist. LEXIS 86164 – Traffic Stop; Prolonged Detention

United States v. King (West Virginia 2021) 2021 U.S. Dist. LEXIS 85255 – Traffic Stop; Standing

Commonwealth v. Moore (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS – Automobile Exception to Search Warrant

State v. Arrizabalaga (Kansas 2021) 2021 Kan. LEXIS 50 – Traffic Stop; Prolonged Detention; Reasonable Suspicion


Peterich v. Columbia County & Columbia County Police (Oregon 2021) 2021 U.S. Dist. LEXIS 101610
Excessive Force; Sufficient Warnings; Monell Liability; Qualified Immunity

During a bank robbery, subject passed a note to a teller while concealing one hand inside his jacket, giving the appearance of being armed. Shortly thereafter, subject was seen driving and was identified by LE as the robber, based on his physical appearance and vehicle description. When LE tried to pull over subject’s car, subject failed to stop and attempted to evade arrest, leading LE on a high speed car chase for about 45 minutes which ended when subject driving on a dirt road through a heavily forested area, drove off the road and into some underbrush. Subject then fled on foot into thick underbrush in the forest.

K9 team was in pursuit which was recorded on body cam. Upon arriving at the spot where Plaintiff had abandoned his vehicle and fled on foot into a forest, handler released his dog from the patrol car, instructing the dog multiple times to “park it” or “parkin,” once to “get him,” and again to “park it.” These commands are referred to as the “search and bite” commands in handler’s written report about the incident. The K9 ran in circles near handler but had not yet begun to search the forest.

Handler then yelled out, “Sheriff’s office, you’re going to be bit by a dog,” into the area he believed subject to be hiding. Handler then released the K9 and instructed the K9 to “find him.” The K9 then ran into the forest. Handler instructed other officers over his radio to “hold” and that the K9 would find subject. Handler then remained quiet. Whether subject verbally tried to surrender, no such surrender can be heard on the body camera footage. About 47 seconds after handler issued his verbal dog bite warning, handler heard subject begin to scream. Handler yelled “dog bite, dog bite” and ran in the direction of the noise that subject was making. After making his way through underbrush and trees for about 20 seconds, handler came upon subject and instructed subject to show his hands. Handler’s body camera shows subject behind a large bush, on the ground with the K9’s mouth attached to subject’s right arm.

Subject was arrested, read his Miranda rights, and taken into custody. He is seen on camera walking out of the forest with several law enforcement officers, when subject acknowledges that the vehicle on the side of the dirt road was his car and that he was the person driving during the car chase. Subject was treated on the scene by paramedics for the dog bite on his right arm and was then transported to a hospital for further treatment.

The court held that subject’s motion to amend his complaint to add handler is futile because under the facts alleged and construed in the light most favorable to subject, handler is protected under the doctrine of qualified immunity because he did not violate a clearly established constitutional right. “The doctrine of qualified immunity protects government officials from liability for civil damages.” (Citations omitted). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” (Citation omitted). “Whether qualified immunity can be invoked turns on the ‘objective legal reasonableness’ of the official’s acts. And reasonableness of official action, in turn, must be ‘assessed in light of the legal rules that were clearly established at the time [the action] was taken.'” (Citations omitted). “The privilege is an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.” (Citations omitted). For this reason, the Court has “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” (Citations omitted). Even though determining whether LE is entitled to qualified immunity is a two step process, regardless of whether the constitutional violation occurred, LE should prevail if the right asserted by subject was not clearly established or LE could have reasonably believed that his particular conduct was lawful. (In other words, either factor can be considered first and LE only has to prevail on one factor).

The court held here that there was no clearly established right that was violated by handler’s use of his K9 to locate and apprehend subject under the facts before the court. Courts in the Ninth Circuit have generally found that a police officer who uses a K9 to locate and apprehend a criminal suspect will have qualified immunity, except when there are circumstances significantly mitigating the risk that the suspect poses to officers.

Some cases have found that it is not objectively reasonable to allow a K9 to continue attacking after a suspect has been apprehended and is found to be unarmed. Subject here, however, has raised no allegations about excessive duration. Subject also has not alleged that handler’s verbal warning was insufficient. Even if he had brought such an allegation, however, courts in the Ninth Circuit have not clearly established a constitutional right to a certain form or duration of warning prior to a K9’s release. Instead, this is a factor that may be considered when a court is evaluating the objective reasonableness of the use of force. Under current case law, it is not clearly established that issuing a verbal warning and then using a K9 to locate a possibly armed suspect who fled on foot and hid in a wooded forest after a high-speed car chase, when three or four officers are present but dispersed, is unconstitutional. Therefore, handler is entitled to qualified immunity and cannot be individually liable for civil damages stemming from the dog bite. Thus, any amendment to add handler as an individual defendant would be futile and was denied.

Subject has not identified any policy, practice, or custom as the moving force for handler’s use of force on subject. The Court granted subject an extension of time and allowed additional briefing for subject to specify the basis for his Monell claim. Subject, however, did not use this opportunity to identify any agency’s policy that could be considered the moving force behind the alleged constitutional violation. Because Plaintiff has identified no such policy or custom , the agency cannot be held liable in this case.

Note: While this was a case where the K9 was released apparently without a lead and outside of the handler’s sight (a situation that Meyer’s Police K9 Training does not advocate unless the facts warrant it under a Graham v. Connor analysis), the court held that the particular facts warranted such a release. Keep in mind, though, that courts are more and more mandating handler control of the K9 at all times.

Hyer v. City & County of Honolulu (Hawaii 2021) 2021 U.S. Dist. LEXIS 100416
Excessive Force; Monell Liability

This case arose out of a seven hour standoff (after reports of erratic behavior and threats which were heard by LE) between Hyer and LE, which ultimately ended in Hyer’s death. After consulting with a psychologist who instructed LE to take Hyer in for evaluation, Hyer refused to cooperate. Hyer was seen with a knife in his hand through a glass door and LE heard him tell them to just kill him. A Taser was deployed but had no effect in allowing LE to take Hyer into custody. Tear gas didn’t work either. When LE saw that Hyer had barricaded himself in a room with a bow and arrow, LE instructed handler to prepare K9 to aid in detaining Hyer. LE told Hyer, “This is the Police, give yourself up now or I’m sending in my dog and he will bite.” Hyer refused to comply with LE’s orders. K9 was released and bit Hyer on his left arm. Hyer was armed with a bow and arrow and stabbed Zero multiple times in the head. While Hyer was stabbing K9, LE instructed Hyer to drop the weapon. LE observed Hyer load an arrow into the bow and began to pull the arrow to the rear. LE reported he fired three rounds in succession, causing Hyer to immediately drop the bow and arrow and he fell. Hyer died at the hospital.

The court thoroughly discussed Monell liability and finding none, granted LE’s motions to dismiss.

Note: Claim against officer for excessive force was not addressed on this appeal of a summary judgment and therefore was not discussed. This Monell liability discussion is a good read for supervisors and policy makers. 

United States v. Jourden Tairee Shepard (North Carolina 2021) 2021 U.S. Dist. LEXIS 100405
Traffic Stop; Prolonged Detention; Reliability Foundation

LE observed Shepard, who was driving a Dodge Charger, pull into a particular property (under surveillance by LE and known to be a drug hot spot), exit the vehicle, speak with someone, return to the vehicle, and drive off. LE in an unmarked vehicle followed Shepard to the parking lot of a fast-food restaurant and called out Shepard’s vehicle’s license plate over the radio to other LE. Shepard proceeded into the drive-thru lane. By this time, LE handler was in the restaurant’s parking lot. She observed and ran the license plate, and it returned to a Dodge Durango. As Shepard left, handler pulled behind him on the highway. She activated her blue lights to conduct a traffic stop. Shepard did not immediately pull over, but continued driving for approximately one-quarter of a mile.

Handler stopped her vehicle behind Shepard’s and approached the driver window. She asked Shepard for his license and registration. Shepard provided her with his license and the registration card for a Durango registered to Shepard and his grandmother. Shepard told handler that the day before, he had purchased the Charger from a car dealer, and although the vehicle title was put in his grandmother’s name, it was in fact his. He further stated that he transferred the license plate between the vehicles and that the car dealer informed him “he would take care of everything.” Handler requested paperwork to confirm the transaction.

At this point, two to three minutes into the stop, Deputy arrived on scene. He approached the passenger window, which Shepard had rolled down. Handler explained to Deputy what had occurred, and Shepard handed handler a sealed envelope containing paperwork from the car dealer. She then asked Shepard to step out of the vehicle, which he did while on his cell phone with the car dealer. Defendant handed his phone to handler. The car dealer informed her that Shepard had purchased the Charger. She could not, however, confirm the identity of the person with whom she was speaking because the phone number associated with the call did not show a name or business. She, along with Shepard and Deputy, walked to the back of Shepard’s vehicle, which was in front of her vehicle.

Handler handed all documents Shepard had given her to Deputy and asked him to check the license, check for warrants, and look through the car dealer paperwork. She then walked to her vehicle to get her K9.

After patting down Shepard and confirming he had no weapons, Deputy told Shepard that handler had a K9 and to not get the K9 excited because the K9 was a “bite” and “chase” dog. Leaving Shepard outside between Shepard’s and Sergeant’s vehicles, Deputy returned to his own vehicle to perform tasks associated with the traffic stop. K9 directed to sniff and alerted to the vehicle. Handler then opened the passenger door and had K9 enter and sniff. Another alert was noted. Deputy was notified of the positive alert, who then got out of his vehicle and informed Shepard of the alert and that they were going to search his vehicle. Handler returned K9 to her vehicle and searched Shepard’s vehicle, where she found narcotics, cash, and a gun in the center console.

Because the court concluded that the suspected traffic offense alone justified the stop (detention), the court did not consider whether Shepard’s leaving the property, either alone or in conjunction with the traffic offense, separately justified detention.

The court then turned to the sniff itself. Handler testified to the qualifications of the team and that K9 was certified by two organizations and had been annually recertified each year after that. The defense complained that her court testimony was not exactly as her report, but the court deemed handler a credible witness, and, given all the facts, concluded K9 was sufficiently reliable and that K9’s alerts were probable cause for search of controlled substance in which K9 had been trained.

The defense then complained that the stop was impermissibly prolonged. Relying on a five-minute lapse from when Deputy confirmed there were no outstanding warrants for Shepard to when handler reported to dispatch that the K9 had alerted and on the contention that reasonable law enforcement personnel would not have left Shepard outside unguarded during the K9 sniff, Shepard argued that handler did not actually deploy K9 until after Deputy confirmed there were no warrants. Therefore, Shepard contended, LE extended the stop after the usual incidents of the traffic stop had been completed and in violation of the Fourth Amendment. The court disagreed. Handler and Deputy consistently testified that Deputy was still in his vehicle when K9 alerted. Contrary to defendant’s argument, the court did not find it unusual under the circumstances here for LE to have left Shepard outside between vehicles while handler conducted the K9 sniff and Deputy conducted the tasks associated with the traffic stop. The officers had confirmed by virtue of the pat-down that defendant had no weapons on him. Also, Deputy had warned Shepard about the K9 being a “bite” and “chase” dog. Therefore, it was unlikely Shepard would harm the officers or flee. Further, Deputy testified that just because Shepard had no outstanding warrants does not mean the traffic stop ends. Considering the totality of the circumstances, the court concluded the officers acted reasonably and did not extend the traffic stop to conduct the K9 sniff.

Note: Good result here and a nice example of how teamwork can get you an opportunity to deploy without having to find additional reasonable suspicion.

State v. Ouverson (Iowa 2021) 2021 Iowa App. LEXIS 428
Traffic Stop; Smell of Marijuana as Probable Cause

Traffic stop for what LE believed was an improper turn. LE made contact with the driver and single passenger. Driver lit a cigarette as LE approached. LE thought the occupants might be trying to mask some other odor in the vehicle. LE also saw signs of intoxication as well as detected the faint smell of marijuana, “mixed with the odor of a strong cigarette smell. LE testified that, at this point, he determined he would be conducting a marijuana investigation. So he “asked about marijuana, drinking, things of that nature.” LE retrieved the occupants’ information and paperwork and returned to his cruiser to run record checks, pursuant to which he learned passenger was on probation for marijuana possession and carrying weapons. Based on this information and his observations, LE radioed for another unit. LE began preparing a warning for the improper turn. His backup arrived before he completed the warning.

Both officers then approached the vehicle and had both occupants step out. LE testified he wanted them out of the vehicle to investigate the smell of marijuana coming from the vehicle or their persons. Passenger denied the presence of marijuana or paraphernalia in the vehicle. LE then approached driver to provide him his warning, at which point he observed marijuana shake on driver’s pants. LE questioned how much marijuana was in the vehicle, and driver responded “a small amount.” LE initiated a search of the vehicle and found a marijuana grinder, marijuana in the center console, and more marijuana contained in a bag also containing passenger’s wallet. Both occupants were read their Miranda rights, after which both admitted to possessing and consuming marijuana.

Driver complained that LE had completed the purpose of the traffic stop and issued a warning to him prior to instructing the vehicle occupants out of the car for additional seizure and search. He contends this violated both the federal and state constitutions. The court held that it is true a traffic investigation must end when the activities of that traffic investigation are completed, but LE here obtained individualized reasonable suspicion of other criminal activity before prolonging the stop; driver lit a cigarette, he smelled marijuana, and observed OSIs. The specific and articulable facts, taken together with rational inferences from those facts, amounted to reasonable suspicion that further investigation was warranted. Therefore the stop was legally extended to include a marijuana investigation.

Note: Marijuana is still completely illegal in Iowa.

I.W. v. City of Clovis Police Dep’t (New Mexico 2021) 2021 U.S. Dist. LEXIS 98324
Excessive Force; Monell Liability; Qualified Immunity

Responding to a report of a stolen vehicle, handler found the car in an alley. I.W., a juvenile, was present with a knife which he admitted to using to try to disable the vehicle’s GPS device. (Juvenile claims the knife was in the car and was not in his hand.) Handler identified himself as LE and juvenile fled into the back yard of a residence. Handler parked his cruiser, and put K9 on a leash. Handler announced the K9. Instead of complying, juvenile fled again, this time toward handler. Handler announced the K9 again several times and ordered juvenile to stop running. Juvenile attempted to climb the gate to get out of the backyard. (Juvenile claims he surrendered). K9 deployed and bit juvenile; while juvenile was on the ground and being given orders, K9 bit juvenile again (it is not clear from the case whether K9 was instructed to bite again or if he lost his grip and reattached without orders from handler). Juvenile also contends that K9 bit him for almost 30 seconds, 15 of which were after LE had full control of juvenile.

Juvenile sued for excessive force and LE (including the agency who was being sued under Monell) filed a motion for summary judgment. The Court considered each of the Graham factors in determining whether handler’s use of his K9 to apprehend juvenile was an excessive use of force and, therefore, violated juvenile’s Fourth Amendment right to be free from unreasonable seizures.

1. Severity of the Crime

When handler commanded K9 to bite I.W., he suspected I.W. of receiving or transferring a stolen vehicle, which is a fourth-degree felony under New Mexico Law. A state 2021 case determined that any felony would resolve the first Graham factor in LE’s favor. Since a stolen vehicle is a felony, the Court found that the first Graham factor favored LE.

2. Degree of the Threat

Handler argued he reasonably believed I.W. posed a threat to the safety of officers, the community, and “the residence of the backyard he was in,” because handler observed him with a knife when he fled on foot and “did not know whether [I.W.] had disposed of it.”

This factor, according to the court, largely turned on handler’s allegation that he reasonably believed I.W. may have possessed a knife at the exact moment handler decided to release K9 into the backyard. I.W. disputes this fact. At his deposition, I.W. testified that before he exited the vehicle, he threw a knife onto the floorboard, which handler later found during a search of the vehicle. I.W. contends Officer Aguilar never saw a knife in his possession, but rather concocted a post-hoc justification for his use of force when he found the knife inside the vehicle after the encounter had ended. In the Court’s view, the parties’ dispute over this fact is genuine and material such that the video evidence could be construed to support either version of this fact. Therefore, because this was a summary judgment motion, the Court was required to accept juvenile’s version and found that the second factor favored juvenile.

3. Active Resistance or Attempts to Flee

While both parties agree that I.W. initially fled from LE, the parties dispute whether I.W. was continuing to flee or resist arrest at the moment he was behind the gate and handler released K9. In the seconds before handler released K9 into the backyard, his lapel video shows I.W. jogging toward the gate-toward handler. As I.W. reaches the gate, the view of him becomes obstructed. Another LE’s lapel video, which captures a clear but distant view of I.W., shows him coming to a stop at the gate. It is unclear, though, whether I.W. begins attempting to climb the gate while handler is trying to open it. A reasonable jury could conclude that I.W. had slowed and then come to a stop at the gate, effectively surrendering before handler released K9 into the backyard. As such, viewing these facts in the light most favorable to I.W., the Court finds that a reasonable jury could conclude that I.W. was not actively fleeing or resisting arrest at the time of the incident and thus this factor weighed in I.W.’s favor.

The Court therefore found, on balance, two of the three Graham factors, including the most important second factor, weigh against qualified immunity. I.W. had committed a fourth-degree felony property crime and had evaded CPD officers on foot, but, viewing the evidence in the light most favorable to I.W., he appeared to have no weapon on his person at any point during the encounter, and he appeared to be surrendering to officers the moment before handler released K9 into the backyard. A reasonable jury could conclude handler had a momentary window of time to recognize I.W. posed no immediate danger to officers or others and likely was no longer fleeing. Thus, I.W. has shown sufficient facts to demonstrate a reasonable jury could conclude that handler’s decision to release K9 violated his Fourth Amendment rights.

Therefore, the court believed a jury could conclude that a reasonable officer in handler’s position would have known that releasing K9 into the backyard and allowing the attack to continue for thirty seconds violated the Fourth Amendment. Qualified immunity was denied.

Monell claim denied as I.W. has failed to establish that the previous cases involving handler are similar enough such that the agency would have had “notice that its action or failure to act [wa]s substantially certain to result in a constitutional violation” as a result of handler’s use of K9, and that “it nonetheless consciously or deliberately cho[se] to disregard the risk.”

Note: Here, the body camera did not assist the court in determining whether it was undisputed that I.W. had a knife in his hand. Part of that determination by the court was the fact that handler was not heard on body camera instructing I.W. to drop knife/weapon. Since body cams are here to stay, it’s probable good practice to say out loud what is happening; whether a suspect is armed and/or warning to suspect to drop the weapon, for example.  That could have helped here. Even though a motion for summary judgment was denied, I.W. still will have to prove his allegations in court. Hopefully, the somewhat contradictory statements of I.W. will prove to be his downfall.

State v. Greenwood (Nebraska 2021) 2021 Neb. App. LEXIS 145
Traffic Stop; Search of a Passenger; Detention of a Passenger; Reasonable Suspicion; Prolonged Detention

In this appeal of a denial of a motion to suppress, handler testified to his team’s qualifications and certifications as a narcotics detection K9 team. Handler conducted a traffic stop for equipment violations. The vehicle was slow to pull over. 3 occupants were in the vehicle. Handler’s dash cam was recording. Driver did not have a license or proof of ownership of vehicle. Greenwood was the center front passenger. She was in possession of a large backpack. Handler was aware from previous contacts that all three occupants had prior drug convictions. While waiting for information to return, handler saw Greenwood moving around and fidgeting. Greenwood got out of the vehicle and handler contacted her to tell her to stay put. He also told her to put her backpack and waist pack on the ground and to have a seat. At some point, another LE showed up on scene. Handler finished the citation, gave it to the driver, and asked for consent which was refused. Handler instructed driver out (other passengers were already out) and a drug pipe fell out of the vehicle which driver immediately claimed. LE also smelled marijuana. Based on these observations and the below reasoning, a search was conducted of the vehicle and of Greenwood’s bags which had contraband. Handler’s reasons for wanting to deploy K9 included Greenwood’s “adamant” behavior with respect to leaving the scene to buy cigarettes before the smoke shop closed, even though “there were other convenience stores open that she could have easily went to and purchased cigarettes” and her taking her backpack with her to put the cigarettes in, since the backpack was “quite full” and he “didn’t feel that you could fit any more in there.” Handler also testified that he was concerned about Greenwood’s conduct while she was seated inside the pickup truck, because “[t]here was a possibility she was trying to conceal something or take something out and put it somewhere else.” His reasoning also included his knowledge that all three of the truck’s occupants had prior convictions involving controlled substances. Based upon these factors, handler believed that he had reasonable articulable suspicion to deploy K9 prior to the physical findings when getting the driver out. However, the K9 was never deployed.

Greenwood reasons that “if there are no factors supporting an officer’s suspicion of drug activity, and a well-trained drug detection dog is in the possession of the Officer, but not deployed,” then probable cause must not exist. However, there were factors supporting LE’s suspicion of drug activity. Moreover, Greenwood’s argument overlooks the fact that a positive indication from a drug detection dog is not the sole method by which probable cause to search a vehicle may be obtained.

Although Greenwood argues that a search of the pickup truck and her bags could not have been supported by probable cause unless the K9 was deployed, this contention is inconsistent with established Nebraska law. At the suppression hearing, LE testified that as the driver was exiting the pickup truck, a “pot pipe” fell to the ground and, simultaneously, LE smelled the odor of burnt marijuana. Based on these two factors, LE correctly determined that a canine sniff search was unnecessary, because he had already established probable cause to conduct a search of the pickup truck pursuant to the automobile exception to the warrant requirement.

Greenwood only challenged the extension of the traffic stop into a drug investigation. The Nebraska court held that Greenwood was detained at the point handler told her put her bags down and sit down. Under Nebraska law, detaining a passenger during a traffic citation investigation is legal and here, Greenwood’s detention occurred while handler was still investigating the traffic violation. In addition, the court held that there was a reasonable suspicion that Greenwood was involved in additional criminality which justified the detention. In addition, the court held that the search of Greenwood’s bags was supported by probable cause because of a Nebraska case that determined the search of a purse was justified as it had been in the vehicle initially.

The court held that Greenwood was a passenger in the pickup truck at the time it was stopped. The only reason her bags were not still inside the vehicle at the time officers established probable cause to search it was because Greenwood had failed to obey LE’s orders to remain seated inside the truck. At the time probable cause was developed, Greenwood was lawfully detained. On this record, the location of Greenwood’s backpack and waist pack at the time they were searched does not change their character as containers that were inside a vehicle that officers had established probable cause to search.

Note: Good result, but dependent on the quirks of Nebraska law. Please see my article in the Frequently Asked Questions portion of the website on whether a passenger can be searched.

People v. Ochoagomez (California 2021) 2021 Cal. App. Unpub. LEXIS 3404
Traffic Stop; Prolonged Detention

Appeal of denial of motion to suppress. Handler initiated a traffic stop of OchoaGomez’s vehicle for violations of the Vehicle Code. After both handler and OchoaGomez exited the freeway and parked, handler approached the right front passenger side door of the car and obtained the appropriate documents. OchoaGomez’s hands were trembling as he handed over his documents and handler noticed a “strong odor of air freshener emitting from the interior of the vehicle.” These facts made handler suspect additional drug crimes. For the first 8 minutes of the traffic stop, handler was involved in the process of investigating the traffic stop and the driver. 8 minutes in, handler requested a warrant check and filled out a consent to search form. Handler had not started writing the citation because he was waiting for the warrant information. Three minutes after that, handler returned to OchoaGomez’s car, directed him to exit, and frisked him. He then led OchoaGomez back toward his patrol car and asked him what he was doing in Bell Gardens (a known crime zone), if he had any firearms, and whether he was on probation. OchoaGomez said he had been on probation for a gun charge when he was younger. Handler then asked OchoaGomez if he would consent to a search of his vehicle with the K9. OchoaGomez replied, “whatever . . . go ahead.” This occurred approximately 12 minutes and 15 seconds into the stop, at which point handler “was still waiting for the warrant check to return.” Handler then confirmed OchoaGomez could read and understand English, and asked him to review the consent form, and stated “if you have any [sic] understanding you can ask me some questions.” OchoaGomez indicated that he had read and understood the form, but refused to sign. Handler wrote “‘declined to sign the consent form'” across the form.

Handler then retrieved his K9 from the patrol car and began an exterior sniff of the car. He walked the dog around the car, and the K9 looked in the open right front window and sat down. Based on the K9’s training and handler’s experience with him, handler understood sitting to mean the K9 detected the presence of drugs. At this point—approximately 15 minutes into the traffic stop and approximately six and a half minutes after handler had asked dispatch to check for outstanding warrants—the body camera footage does not reflect that LE had received a response to the warrant check. Handler then searched the vehicle including the trunk which contained contraband. The warrant information still had not come back.

The court found that, based on the factual findings supported by substantial evidence in the record, the detaining officer was diligent in his efforts to complete the mission of the traffic stop and had not yet completed that mission at the time his K9 alerted him to the presence of drugs in OchoaGomez’s vehicle.

In any event, nothing in the record suggests LE’s stated reason for not immediately writing a citation was disingenuous. OchoaGomez does not cite any authority suggesting that, as a general rule, waiting for the results of a warrant check before writing a citation reflects a lack of diligence in pursuing the mission of a traffic stop. Nor does OchoaGomez cite any authority suggesting that the amount of time LE waited for the results of the warrant check was so long that it might render his decision not to start writing the ticket unreasonable.

Note: The court also says that the 15 minute total of the stop prior to finding the contraband was not in itself an unreasonable amount of time for a traffic investigation. The court also declined to find that handler’s request regarding warrant information was justified and the fact that the investigation veered off into a drug investigation was driven by the additional information gathered by handler as the traffic investigation progressed.

State v. Hubbard (Ohio 20921) 2021-Ohio-1740
Traffic Stop; Smell of Marijuana as Probable Cause

Traffic stop for speeding and equipment violations. LE testified that he could not discern how many people were inside the vehicle until he approached the front driver’s side window, which had been rolled down. There were three people in the car; Hubbard was in the rear driver’s-side seat in the vehicle. LE also testified that, upon approaching the open driver’s-side window, he immediately detected the scent of raw and burnt marijuana. LE observed a green leafy substance on Hubbard’s lap, on the front and back floorboards of the vehicle, and on the center console. Based upon his experience with drug interdictions and investigations, LE believed that there was additional contraband in the vehicle.

LE found that the driver had a protection order against her. LE then returned to the subject vehicle and asked the driver to exit the vehicle. The driver complied and informed LE that she had a carrying a concealed weapon (“CCW”) permit and that there was a firearm in the vehicle. The driver also informed LE that there was marijuana inside the vehicle that they brought to Ohio from Michigan. LE testified that, under Ohio law, if the driver of a vehicle has a CCW permit, he or she is required to immediately inform the officer of that fact and of whether the individual has a firearm.

LE then ordered everyone out of the vehicle for the following reasons: 1) the driver indicated that there was a firearm in the vehicle but did not inform the officer where the gun was located; 2) the odor of raw and burnt marijuana emanating from the vehicle; 3) the observation of marijuana inside the vehicle; and 4) the driver’s informing LE that there was marijuana inside the vehicle that had been transported from Michigan to Ohio. LE then patted Hubbard down for safety because he had been informed that there was a firearm in the vehicle, but he did not know where it was. During the pat down of Hubbard, LE located a pill bottle containing marijuana in his pocket. After searching the vehicle, including the trunk, the officers located a loaded firearm and illegal contraband. Hubbard was arrested and taken into custody.

The court found initially that LE had a legitimate reason for stopping the vehicle based on the violations of law committed by the driver. The court then addressed whether LE had probable cause to search the vehicle, holding that LE did not rely on the odor of bunt marijuana emanating from the vehicle’s passenger compartment, standing alone, to justify the search of the vehicle’s trunk. Rather, LE relied upon the following factors in addition to the smell of marijuana coming from the vehicle in order to justify his search of the trunk: 1) the presence of raw marijuana in Hubbard’s lap, 2) the driver’s failure to immediately inform him that she had a CCW permit and a loaded firearm in the vehicle, 3) the discovery of large amounts of money in the possession of the driver and front seat passenger; and 4) the driver informed LE that there was marijuana inside the vehicle that they had transported from Michigan to Ohio. The trial court reasonably concluded that LE had probable cause to open the backpack found in the trunk of the vehicle as an officer conducting a warrantless search with probable cause may “search every part of the vehicle and its contents, including all movable containers and packages, that may logically conceal the object of the search.”

Note: While the case law used in the case stands for the general proposition that once you have probable cause to get into the car, you also get into the trunk, there is apparently an odd Ohio case (Farris) that stands for the proposition that if LE only smells burnt marijuana coming from the passenger compartment, only the passenger compartment can be searched because the trunk and the passenger compartment are subject to different standards of probable cause to search. This is not the federal standard nor the standard in most states, but a good reminder to make sure you are in communication with your local prosecutor to make sure you are up on the law in your jurisdiction.

State v. Byrd (Tennessee 2021) 2021 Tenn. Crim. App. LEXIS 228
Traffic Stop; Odor of Marijuana as Probable Cause

Byrd was a passenger in a vehicle which was involved in a collision. LE investigating the crash smelled a strong odor of raw marijuana on Byrd’s person so they took him into custody, searched him and arrested him after finding contraband. Byrd filed a motion to suppress which was denied, and he appealed that ruling to this appellate court. LE testified that when he smelled the strong odor of marijuana, he asked Byrd to wait a minute. At that point, Byrd put his hands in his pockets and started to back away. LE then grabbed him and told him to wait a minute. Byrd was handcuffed and Terry frisked and then searched more thoroughly, finding contraband. Based on the evidence presented at the suppression hearing and at trial, the officers clearly had not only reasonable suspicion sufficient to detain and frisk the Defendant, but also probable cause to arrest the Defendant and search him incident to his arrest under the totality of the circumstances, which included not only Byrd’s raw marijuana odor, lack of identification, and furtive behavior but also driver’s purported ignorance about Byrd’s identity and the ownership of the wrecked vehicle. Therefore, regardless of whether the search that uncovered the contraband was a Terry frisk for officer safety or a more thorough search incident to arrest, the appellate court concluded that the trial court properly overruled Byrd’s motion to suppress.

Note: Tennessee only allows certain medical patients to possess a high CBD, low THC cannabis oil. Otherwise, marijuana is illegal.

United States v. Williams (Indiana 2021) 2021 U.S. Dist. LEXIS 96856
Traffic Stop; Alert as Probable Cause; Prolonged Detention

Traffic stop. Driver failed to pull over right away and then rolled for several seconds. LE could see furtive movements by passenger. Driver got out of the vehicle because the driver’s window would not roll down. Driver was nervous and untruthful with LE. Driver was unable to produce a license or registration. Driver instructed to take a seat in LE’s cruiser so LE could identify him. LE’s K9 was barking from the back seat. Driver then lies about his identity. Driver and passenger had conflicting stories, but passenger ID’d driver as Williams. LE returned to Williams, gave him a Miranda warning. Williams then admitted there was a little weed in the car. LE (also a handler) retrieved his K9 and sniffed the car. K9 alerted and contraband was found.

The court held that as Williams admitted that he had no license, the length of detention was driven by LE’s attempt to ID him. Regarding Williams’ implication that Trooper Miller’s questions prolonged the stop, the questions were reasonable and limited in scope. Here, the objective facts that LE observed gave him a reasonable basis for believing that criminal activity was afoot, and his question regarding identification, where Williams was headed and other small talk did not cause unreasonable delay. In addition, Williams admitted to possession of marijuana and that provided probable cause to search. The alert from K9 provided additional probable cause.

Williams admitted that he had “a little weed” in his car. His admission was clearly evidence of criminal activity, and probable cause to search the vehicle. In addition, the K9 indicating the existence of drugs in the vehicle provided additional probable cause to search the vehicle. See Florida v. Harris (2013) 568 U.S. 237 (determining that an alert from a reliable drug-detection dog can support a finding of probable cause). LE had probable cause to search Williams’ vehicle, therefore, the search was constitutional.

Note: Marijuana is not legal for recreational use in Indiana and possession is a misdemeanor.

People v. Butler (New York 2021) 2021 N.Y. App. Div. LEXIS 3323
Traffic Stop; Sniff of Person; Alert as Probable Cause

Traffic stop of a vehicle involved in what LE believed to be a hand to hand sale of drugs. Driver did not have a license and gave inconsistent explanations of his travels. Driver told to exit vehicle. Driver complied, leaving the driver’s door open. Consent to search was denied. Handler retrieved his K9 to conduct an open sniff of vehicle. As handler conducted sniff, driver saw that the K9 was in odor as the K9 pulled handler by the leash and then jumped in the open driver’s door. Handler then had K9 sniff driver. K9 put his nose in the groin/buttock area of driver and then sat, indicating that he had found odor of controlled substances. Handler told other officer on scene that K9 “has got something” and driver bolted (but quickly apprehended).

Driver asserted that K9’s contact sniff of his person intruded upon his personal privacy as secured under both the Fourth Amendment of the US Constitution and the NY Constitution. The question presented to the appellate court was whether the “search” ran afoul of either constitutional provision and what standard applies to make that assessment — an issue of first impression for this appellate Court.

The court concluded that, considering the context of a vehicle traffic stop and how events unfolded, a reasonable suspicion standard should apply, not one of probable cause. A K9 sniff is a minimal intrusion compared to a full-blown search of a person, intended only to detect the possession of narcotics. Without prompting from handler, K9 twice was “in odor” of its own accord (outside the vehicle and inside the vehicle), providing a reasonable and articulable basis for handler to suspect that driver possessed narcotics on his person. Given the necessity for prompt action, it was not unreasonable for handler to allow K9 to approach defendant. There was contact between K9 and driver’s person, but the record suggests that contact was brief and K9 quickly alerted. In these circumstances, we conclude that the search was valid and the suppression motion properly denied.

Note: This is a good ruling for the government. A reasonable suspicion standard is a much lower standard than probable cause. Here, there was clearly reasonable suspicion that driver was involved in drug crimes (hand to hand transaction, 2 alert behaviors from K9, inconsistent information from driver), but even if a probable cause standard had been used, the two alerts from K9 would have gotten LE in the vehicle and then a search of driver whether or not contraband was found in the vehicle. In California, given the tenor of the courts, the standard used will most probable be probable cause for a sniff of a person. In addition, it’s a risk to use a dual purpose K9 to sniff a person. It’s not indicated whether this was a single or dual purpose K9.

United States v. Saxton-Smith (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 95842
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for lane violation by LE well trained on drug trafficking and hidden compartments. Vehicle was slow to pull over. LE smelled an overwhelming odor of burnt marijuana coming from the vehicle. Driver was informed the vehicle was going to be searched based on the smell. In addition, LE believed they had probable cause to search the vehicle based on indicators of drug trafficking he observed.

LE explained that he concluded that the vehicle had an after-market hidden compartment, and that he had cause to cause to search the vehicle, because there “were factors present that I observed prior to stopping that vehicle. And then there were more factors present after stopping it and speaking with the operator and the passenger. Those factors independently mean nothing; those factors in totality mean a lot.” He testified that vehicles that have after-market hidden compartments are generally “five to ten years old, but they have an appearance that they are a new vehicle. Generally, these vehicles are newly registered, which you can observe that by looking at the registration plate. They’re fairly plain. They want to blend in with traffic. They’re not going to have any identifiers to make this vehicle stand out. They want to blend in with traffic.” In addition, the vehicle was owned by a third party and the title was a reconstructed title (similar to a salvage title). The court found LE a reliable witness and ruled that LE had probable cause to search based on the smell of burnt marijuana. The court also found there were additional factors that rose to the level of probable cause in addition to the smell of marijuana. Found in the vehicle was $16,200 in cash.

Note: The court in its ruling described the smell of marijuana as burnt, but the initial testimony of LE was the smell of marijuana (no indication of raw or burnt). While this distinction may be important in jurisdictions where marijuana is legal to some extent, in this federal jurisdiction, any marijuana possession is illegal, so I don’t put a lot of store in this distinction in this case.

Stichter v. Hyatte (Indiana 2021) 2021 U.S. Dist. LEXIS 94628
Excessive Force; Standard for Use of Force in Custody

This case is an appellate review of whether an inmate has filed a complaint that states a claim upon which relief (money in this case) can be granted. (a very low bar). Inmate Stichter claimed that after peacefully talking to Sergeant LE, Mr. Stichter says he turned to walk away and “was viciously attacked by handler’s K9 partner, taking Stichter to the ground. Handler ordered his K9 partner to release Stichter from his attack. While Stichter was on the ground, Handler ordered his K9 partner to attack Stichter once again.”

The “core requirement” for an excessive force claim is that the defendant “used force not in a good-faith effort to maintain or restore discipline, but maliciously and sadistically to cause harm.” “[T]he question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers (1986) 75 U.S. 312, 320-21. Here, inmate’s complaint, if found to be true, plausibly alleges handler used excessive force in violation of the Eighth Amendment.

Mr. Stichter also alleges, “Defendant Sergeant stood idly by and watched as handler’s K9 partner attacked Stichter both times, when he had the opportunity to prevent the attack from ever happening, which he should have done.” A prison official “can be held liable under § 1983 if [he] (1) had reason to know that a fellow officer was using excessive force or committing a constitutional violation, and (2) had a realistic opportunity to intervene to prevent the act from occurring.” Here, the complaint presents no facts from which it can be plausibly inferred that Sergeant could have known the dog was going to attack Mr. Stichter the first time. Neither does it contain any facts demonstrating he could have known the second attack was likely after the dog had been called off. Moreover, “[a] prison guard, acting alone, is not required to take the unreasonable risk of attempting to break up a fight . . . when the circumstances make it clear that such action would put her in significant jeopardy.” Physically intervening to stop the dog would have been an unreasonable risk to Sergeant. Since Sergeant was not the dog’s partner, the complaint does not plausibly allege the dog would have responded to commands from Sergeant. The complaint thus did not state a claim against Sergeant.

Three other parties, including the Captain and the Superintendent of the facility were also dismissed out as inmate did not properly state a claim against them.

Note: It’s interesting to see a federal jail case. I have rarely run across these and I can only speculate as to why. Note the differing standards for excessive force and requirements for intervening. Much different than what is required in the field.

People v. Jackson (Illinois 2021) 2021 IL App (1st) 180927-U
Detention; Odor of Marijuana as Probable Cause

LE was in uniform on routine patrol alone in a marked squad car when he saw Jackson walk through a parking lot of a night club. LE had an unobstructed view of Jackson. According to LE, Jackson “learned of LE’s presence,” ran to a parked SUV, removed something from his waistband, opened the rear passenger door, and placed the item inside. LE did not see what Jackson put in the SUV; the lot was “fairly dark.” Jackson closed the door, opened the front passenger door, and retrieved a can of “Fix-a-Flat.”

When LE saw Jackson remove the item from his waistband, he called for assistance. LE drove past the SUV, made a U-turn to face the rear of the SUV, and continued to watch Jackson as he closed the passenger door and moved to the “rear hatch” of the SUV. After assistance arrived, LE approached Jackson on foot and asked what he was doing. Jackson said he was putting air in his tires. Before patting Jackson, LE did not see a weapon or illegal substance on Jackson; LE patted Jackson down and did not feel a weapon. The court held this was a detention at this point. LE asked Jackson if he had anything illegal, and Jackson replied he did not. LE asked if he could search the SUV, and Jackson said no.

A minute or two later, LE called for a canine unit, which arrived in about a minute. Jackson then admitted he had marijuana in his pockets. LE removed suspect marijuana from Jackson’s right pocket. The dog sniffed Jackson’s SUV, and LE recovered a large freezer-sized Ziploc bag of suspect marijuana from inside the rear hatch. The bag was not visible to LE before the dog arrived. Police also recovered a 9-millimeter high point semiautomatic handgun from under a towel or shirt below the rear passenger seat, where LE had seen Jackson open the door and put something inside. LE later testified that he called the K9 team within a minute of speaking to Jackson because he smelled an odor of marijuana on Jackson and Jackson said he smoked it inside the club.

At trial, LE’s testimony indicate he smelled marijuana either immediately after or contemporaneously with the frisk. Most importantly, LE’s only stated justification for the frisk was to check for weapons, not drugs, suggesting he did not yet have concerns about the presence of narcotics. LE also testified that he asked Jackson about “illegal narcotics” on his person, then told him he smelled marijuana leading to Jackson’s admission about smoking earlier in the day. After the suppression hearing, the trial court found that Jackson’s seizure occurred before he made any admissions. In other words, the best evidence the appellate court had from the testimony at the suppression motion was that LE smelled marijuana after the seizure began. The odor, therefore, cannot be used as justification for the seizure.

The appellate court when on to explain that when it comes to the totality of the circumstances used to justify Jackson’s seizure they were left with two facts: (i) running to get out of the way of parking lot traffic and (ii) putting an unknown object into the backseat of an SUV. Even taking these facts together, LE had only a hunch that Jackson may have engaged in criminal behavior. As a hunch is insufficient to justify a Terry stop, we reverse the trial court’s denial of Jackson’s motion to suppress.

Note: The appellate court seemed to key in on when the odor of marijuana was perceived by LE and concluded since the detention began when LE first frisked Jackson for weapons, the odor of marijuana cannot be used as probable cause to search. There was a plethora of additional indicators of criminal activity, but those apparently weren’t relied on by the government or the court to determine whether LE had probable cause for his search. Best practice to is argue all avenues of admissibility at the trial court level because the government (and the defense) will be limited to the evidence brought out at the motion hearing.

State v. Parker (North Carolina 2021) 2021-NCCOA-217
Traffic Stop; Sniff of Person; Alert as Probable Cause

Traffic stop for no seatbelt. There were two occupants. As LE was speaking to the driver, LE could smell the odor of burnt marijuana coming from the vehicle. LE also noted a large amount of cash scattered across driver’s lap. LE returned to his vehicle to request back up. LE then returned to the occupants and told them about the smell and if they just handed over what they had, he would write a citation and occupants would be released. Passenger admitted to smoking and handed over a roach. Vehicle and occupants were searched and contraband was found in the vehicle. 14 year veteran LE testified he believed it was marijuana, not hemp, based on his training and experience. Driver’s theory of suppression during the motion hearing was that LE could not distinguish between the smell of burnt illegal marijuana and burnt legal hemp (a recent change in the state law).

The appellate court held that the trial court properly denied driver’s motion to suppress evidence because a police officer LE possessed probable cause to search the vehicle. There were three pieces of evidence supporting the officer’s probable cause to search driver’s vehicle, the scent of what LE believed to be burnt marijuana emanating from the vehicle, the passenger’s admission that he had just smoked marijuana, and the partially smoked marijuana cigarette the passenger produced from his sock.

In their review of this case, the appellate court stated that prior to the legalization of hemp, the law in North Carolina was that the odor of marijuana and/or the visual identification of marijuana was probable cause to search. The appellate court did not reach the issue of hemp v. marijuana because the passenger had admitted to smoking marijuana and produced a marijuana roach. The court held those two factors, in addition to the odor of burnt marijuana was sufficient probable cause to conduct a search. Also, the court gave credence to LE’s opinion that the smell was marijuana because even if he was mistaken, it was still his subjective belief it was marijuana.

Note: The court here still used the odor of burnt marijuana/hemp as at least a factor in probable cause. This is a case of first impression, so it will be interesting to monitor North Carolina as these issues wind their way through the courts. It’s difficult to say which way the court will jump when the only evidence to support probable cause is the odor of marijuana.

State v. Forest (Tennessee 2021) 2021 Tenn. Crim. App. LEXIS 222
Traffic Stop; Prolonged Detention; Alert as Probable Cause

Traffic stop for speeding. In addition, the vehicle and driver were under suspicion of drug trafficking as both were spotted at a drug house several times. Each time after one of driver’s short visits, foot traffic increased dramatically. LE believed they had probable cause based on the drug investigation, but used a traffic stop to contact driver. Driver was nervous in his breathing and his movements. He produced a license but no registration. Driver also provided a handgun carry permit. When driver produced his license, LE could a couple hundred dollars in his wallet. LE returned to the cruiser to check the license and check for outstanding warrants. Driver also lied about where he was coming from. As LE was returning to the vehicle, a K9 team arrived. LE had by then obtained the registration for the car from driver and went to check that document. Driver was then issued a warning. Consent was refused, so K9 sniffed and alerted on the vehicle. LE agreed in testimony that when the K9 team arrived, LE abandoned the traffic investigation and pursued the drug investigation.

The court held that LE had probable cause for a traffic stop after observing driver driving 60 miles per hour in both a 55 mile per hour zone and a 50 mile per hour zone and the trial court properly denied driver’s motion to suppress because LE did not detain driver any longer than necessary to conduct the stop, which concluded once driver received the warning, at which time the K9 circled the vehicle and the request to search defendant’s vehicle was appropriate because the K9 indicated that there were illegal drugs inside the vehicle. LE had by that time received information about the license, but no information regarding the warrant check (this issue is not revisited). The court held that the stop concluded once driver received the warning, at which time the K9 circled the vehicle and the request to search the driver’s vehicle was appropriate under the circumstances.

Note: It appears to me that the appellate court applied the wrong standard. The issue is whether there was prolongation and if so, if there was additional reasonable suspicion to warrant an extension. Here, the court said that the sniff occurred after the traffic stop was concluded but upheld the denial of the suppression motion anyway. It should have come to the same conclusion by ruling on whether the drug investigation provided additional probable cause to expand the traffic investigation into a drug investigation based on the information gathered prior to the traffic stop.

Miles v. State (Maryland 2021) 2021 Md. App. LEXIS 415
Traffic Stop; Odor of Marijuana as Probable Cause

Miles was the front seat passenger in a vehicle that was stopped for speeding. During the stop, two LE independently smelled the odor of marijuana inside the vehicle. Based on the odor of marijuana they conducted a “probable cause” search of the vehicle and its contents. During the search of a backpack that was found on the floorboard of the front passenger seat, LE recovered contraband in a backpack and in the vehicle. Miles subsequently waived his Miranda rights and claimed ownership of all the contraband found. The court denied the motion to suppress finding that LE had probable cause to search the vehicle and its contents based on their having smelled the odor of marijuana inside the vehicle.

Miles appealed, contending that the “brief smell of marijuana did not justify the police officers search of the vehicle, and for that reason, the evidence recovered from the vehicle must be suppressed as the fruit of an unlawful search.” However,  in a recent Maryland appellate court case, it was held that, despite the recent decriminalization of marijuana, the odor of marijuana emanating from a vehicle provides probable cause for law enforcement officers to conduct a warrantless search of the vehicle. And “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” See United States v. Ross. Moreover, “[a] passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are ‘in’ the car” for the purposes of a search pursuant to the automobile exception. See Wyoming v. Houghton. Therefore, the search of the vehicle, and the search of the backpack located on the floorboard of the vehicle, was justified under the “automobile exception” to the warrant requirement.

Note: Recreational marijuana in Maryland has been decriminalized (still illegal but no jail time available). Medical marijuana use is allowed.

Foshee v. Zuniga (California 2021) 2021 U.S. Dist. LEXIS 92474
Border Sniff/Search; Alert as Probable Cause

This case is appealing the rulings of the trial court regarding motions in limine of the parties (pre-trial motions to either exclude or include certain evidence). There is no factual basis provided, but it appears that Foshee is accused of resisting arrest and that a K9 was deployed during this encounter and bit Mr. Foshee at the direction of the handler. In the only motion that is relevant to this update, Foshee wanted to exclude the handler’s expert on police practice, Brad Smith. Foshee’s principal objection is that Smith relies on and proposes to testify about purported facts that are inconsistent with the evidence, or that merely reflect his interpretation of disputed facts. In addition, Foshee objects to Smith’s proposed testimony regarding matters that are not at issue in the case or not within his area of expertise. This motion was granted in part and denied in part as explained below.

First, Smith’s opinions must be limited to matters relevant to the issues remaining in the case. Because the question of probable cause to arrest Foshee is not at issue, Smith may not express any opinions on that question. Likewise, because Foshee no longer asserts a Monell claim against the City of Gilroy, Smith may not express any opinions regarding whether the City’s policies were or were not unconstitutional. Smith must limit his testimony to matters relevant to whether handler used excessive force in deploying a K9 to bite Foshee. These opinions may include (to the extent they are disclosed in Smith’s expert report): (1) the standards that govern the use of K9s in the circumstances presented in this case, and (2) whether handler’s deployment of K9 was consistent or inconsistent with the applicable standards. It may also be appropriate for Smith to provide an opinion regarding whether the City of Gilroy’s policies at the time were consistent with applicable standards, but only as such policies may bear on the particular conduct at issue, and not for purposes of addressing the City’s liability or lack thereof, as the Monell claim has been dismissed.

Second, Smith’s opinions must be limited to matters within his domain of expertise. Smith’s expert report indicates that his qualifications are in the area of canine training and deployment for law enforcement purposes; he does not have medical training. Accordingly, he may not give opinions on the nature or seriousness of Foshee’s injuries, or the timeliness of the medical attention he received.

Third, Foshee’s objections to Smith’s proposed testimony regarding whether deployment of K9s by police as a general matter is “reasonable” force and not “deadly” force raises more difficult questions. Expert testimony that concerns an ultimate issue for the jury to decide is not per se improper. However, an expert may not give an opinion that amounts to a legal conclusion or testify regarding what the law requires. Here, Smith (and any other expert) must avoid using specialized legal terms, such as “excessive force” in testifying about the events in this case, so as not to suggest to the jury the conclusion they should reach on Foshee’s claim. If Smith proposes to testify that use of a K9 is always “reasonable” force, and therefore cannot be deemed “excessive” force, the Court will not permit this testimony. If Smith instead proposes to testify that, according to accepted police practice and procedure, deployment of a canine generally is considered to be less-lethal or non-lethal force, he may do so, as long as that opinion is properly disclosed in his expert report.

Fourth, Smith may not testify regarding his view or assessment of what actually occurred. Foshee identifies eight statements from Smith’s expert report that Foshee says are either misstatements of fact, speculation about the facts, or Smith’s own interpretation of the facts. The Court agrees with Foshee. Mr. Smith has no personal knowledge of the facts. As an expert, he may testify only regarding matters as to which he has specialized knowledge, skill, experience, training, or education, and as to which his testimony may assist the jury. The jury does not need assistance in making findings as to what actually happened. More to the point, Smith’s proposed statements are at best merely his interpretation of evidence that may be introduced. Smith may not testify to any of the eight statements. Nor may he testify generally to his view of what happened or suggest that one interpretation of the evidence is more credible than another.

As noted above, the Court will permit Smith to testify regarding (1) the standards that govern the use of K9s in the circumstances presented in this case, and (2) whether handler’s deployment of K9 was consistent or inconsistent with the applicable standards, to the extent those matters are disclosed in Smith’s expert report. Ordinarily, an expert witness may explain the factual bases for his conclusions. However, the Court will not permit Smith to testify in a manner that conflicts with the Court’s conclusion above that an expert witness may not testify as to his view of what happened. Smith’s expert report appears to contain a number of statements, beyond the eight identified by Foshee, that purport to tell the jury what happened. If handler intends to call Smith to express an opinion on whether the deployment was consistent or inconsistent with standards, the Court requires clarification regarding how such testimony will be delivered.

Note: No really earthshattering conclusions here, but this is a rare look at the machinations that go on outside the presence of the jury and usually without any LE present. It’s a good read from that standpoint. You can see how nitpicky some of these rulings are and it explains why sometimes witnesses are limited in what they will be allowed to testify to. I only reviewed the one motion in limine that dealt directly with the handler’s expert. You might be interested in some of the others.

Martinez v. United States (California 2021) 2021 U.S. App. LEXIS 13888
Border Sniff/Search; Alert as Probable Cause

Martinez left Mexico with his family to go shopping in Arizona. At the first checkpoint, a narcotics K9 apparently did not alert on the vehicle. However, LE at the first checkpoint called his counterpart at the second checkpoint and told him that Martinez was transporting drugs in the vehicle. Another K9 team sniffed the vehicle at the second checkpoint and this K9 alerted twice to the front of the vehicle. An outside inspection of the vehicle did not disclose the location of the source of the odor. During a more detailed search, LE found the windshield wiper fluid contained methamphetamine or amphetamine. Martinez then “confessed” so LE would release his family. A confirmatory test indicated no controlled substances and Martinez was released after 40 days in custody and sued for false imprisonment, among other things.

The court held when LE arrested Martinez, the second K9 had alerted twice to the vehicle, indicating the presence of an illegal substance that the K9 was trained to detect. At least one field test kit used on the vehicle’s windshield wiper liquid tested positive for methamphetamine. And LE knew from his training that drugs are sometimes smuggled across the border in windshield wiper fluid. These facts are reasonably trustworthy information that are sufficient to lead a reasonable person to conclude that Martinez, who drove the vehicle, was in the process of bringing drugs across the border. LE therefore had probable cause to arrest Martinez and there was no false imprisonment.

Note: Remainder of opinion addresses whether the treatment Martinez received under interrogation was in violation of the law which I did not address in this analysis. Also, there was no argument made about the first K9 not alerting, a situation which can create an argument that probable cause has dissipated. Of course, it would be a much stronger argument if the first K9 alerted and the second did not. Best practice in that case is to believe your K9 and proceed rather than getting another K9 out to “confirm” it.

State v. Joseph (Rhode Island 2021) 2021 R.I. Super. LEXIS 42
Traffic Stop; Prolonged Detention; Racial Disparity in Traffic Stops

Traffic stop for lane violations and almost hitting another car. There were additional lane violations after LE initiated stop. LE handler approached and saw three occupants. Joseph was the front seat passenger and a female was the other occupant. While driver was gathering the requested documentation, handler indicated that driver had a near miss which driver acknowledged (but blamed the other car). Handler noted signs of extreme nervousness and that driver’s information did not add up. Driver instructed to get out and come back to the cruiser. Driver continued to be nervous and was pacing as if he was thinking about fleeing. Driver could not remember either passenger’s last name (even though the female was supposedly his girlfriend for the past 5 months). Another LE rolled up and handler handed off the documentation to him and asked him to perform the necessary checks. Handler then went back to the vehicle and talked with the passengers. Their stories conflicted with driver’s. Meanwhile, LE was having trouble confirming Joseph’s ID, so Joseph said he had been arrested in Massachusetts with a court date coming up. This led LE to find a Joseph with a different first name, leading LE to believe Joseph was lying about his identity. Driver’s license came back clear. Consent by the driver was refused. At that time, occupants removed and K9 was deployed and alerted. The occupants said they had been smoking marijuana, but when LE looked on the place indicated, there was no marijuana present. Confronted with that information, Joseph said that he had smoked earlier and the wrapper was in the trunk. Joseph opened the trunk and showed LE the wrapper. However, LE saw a bullet proof vest and ammo also and immediately Terry frisked all three occupants. The vehicle was then searched finding a gun and illegal ammo.

Joseph and driver brought a motion to suppress, arguing that the stop was illegally prolonged to allow for K9 sniff. The appellate court first held that the traffic stop was justified. Then the court addressed whether handler’s decision to perform a dog sniff added time to the stop of the vehicle. The court found that, despite the State’s contention that the stop in this case was generally longer than the average traffic stop because it took the troopers more time to confirm the identities of Joseph and female, the length of Joseph’s detention was still concerning to this Court given that the occupants were only stopped for a minor traffic violation. Furthermore, the United States Supreme Court was clear in Rodriguez that “[a] seizure justified only by a police-observed traffic violation . . . becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.” The court further found that handler deviated from his traffic enforcement mission of issuing driver a ticket for a traffic violation when he decided to conduct the dog sniff after the law enforcement checks of occupant’s identities were completed (however, the statement of facts do not indicate if a citation was ever issued or when the accurate identity of the occupants was obtained). The Court felt constrained to make this finding because rather than writing driver a ticket for the driving violation, which would have allowed handler to complete the mission of the stop, handler decided to pursue a narcotics investigation. Thus, given that the length of occupants’ detention exceeded the bounds of a regular traffic stop and that handler decided to conduct a K9 sniff rather than complete the mission of the stop, the Court is constrained to conclude that performing the K9 f added time to the traffic stop, and therefore, handler prolonged the stop.

The court then addressed whether there was additional reasonable suspicion of another offense to justify the prolongation. Here, the court acknowledged that previous cases looked at factors such as were present in this case and found probable cause when taken in totality. The court then proceeded to eliminate the factors in this case one by one (in direct opposition to this acknowledged precedent), leaving only the fact that Joseph lied about his identity. The court held that this did not have anything to do with drugs so the decision to deploy the K9 illegally extended the stop.

Therefore, handler’s extension of the traffic stop beyond its original scope was unreasonable under the circumstances because handler did not have independent reasonable suspicion to prolong the traffic stop of the vehicle.

Note: The appellate court analyzed data apparently provided by the defense at the beginning of the opinion relating to the racial make up of arrestees in traffic stops and concludes the data “provides valuable insight in determining whether there are racial disparities in traffic stops and searches conducted throughout the State” and also concluded that the US Supreme Court’s decision in Whren and its progeny have created an inadvertent consequence of more minorities than whites being stopped for a pretext. “This Court is unable to ignore that race and implicit bias may be a consideration in the initiation of traffic stops and a law enforcement officer’s decision to perform a warrantless search of a vehicle. Accordingly, the Court is mindful of these issues as it evaluates the issues presented.” However well intentioned the Court might have bee, in my opinion, this court announced at the beginning of the opinion that they were going to find some way to make this search illegal and decided to make the case about racial disparity in traffic stops so they could conclude that LE acted badly. However, the opinion never informs us of the occupants’ racial make up or whether this was a factor in the stop. This is a good example of the type of data and mind set that LE will be confronting more and more.

State v. Junjie Li (Rhode Island 2021) 2021 R.I. Super. LEXIS 41
Traffic Stop; Odor of Marijuana as Probable Cause

The court started off the opinion with a long statement about the legalization of marijuana. It cited eastern states which have legalized marijuana and therefore have found that the odor of marijuana is only a part of probable cause and not probable cause in and of itself. The court then noted that while Rhode Island has currently decriminalized marijuana, it has pending legislation that will legalize marijuana and therefore, if the legislation passes, the court expects to see a rise in the already increasing number of traffic stops where the odor of marijuana is detected in motor vehicles.

Traffic stop for no seatbelt on sleeping front passenger. LE observed that both occupants were nervous when he asked for license and registration. LE also smelled the slight odor of fresh marijuana. LE asked Li the driver to come back to the patrol car while he ran the documents. LE testified that Li was not free to leave his patrol car because he wanted to separate the parties, question Li further without delaying the traffic investigation and for LE’s safety. LE then called for a K9 team. One of LE’s questions was about the possession of marijuana. Li made a “target glance” at the vehicle, claimed he did not know what marijuana was and then said no. When the team arrived, LE left Li in the cruiser and had passenger step out. LE then smelled fresh marijuana on passenger. K9 alerted to the vehicle. LE found nearly 100 pounds of marijuana in the trunk.

The parties posed that the only legal question before the appellate Court is whether LE possessed reasonable articulable suspicion that criminal activity was afoot, thus warranting the prolonging of the motor vehicle stop to conduct the K9 sniff. The Court believed that it must also address whether LE requesting Li to exit his vehicle and sit in the front passenger seat of the police cruiser was proper. This inquiry was relevant and necessary because it will assist the Court in deciding at what point in time the stop was prolonged. It was also significant because the State urges the Court to consider LE’s questioning of Li as well as Li’s target glance, all of which occurred in LE’s cruiser, in its analysis of whether LE had reasonable suspicion to prolong the traffic stop.

The court first analyzed whether LE was legally able to ask Li to exit the vehicle. Completely ignoring Mimms and its progeny, the court uses a Terry type analysis and concludes that because LE could not describe any safety issues specifically, the order to exit was in violation of the 4th Amendment. “[LE] clearly shifted his focus to a narcotics investigation because he not only called for a dog sniff, but he exploited Li’s detention in the vehicle to gain more information about possible criminal activity as evidenced by his line of questioning concerning the presence of different types of contraband in the vehicle. Therefore, the Court believes that [LE] removed Li from the vehicle under the pretense of a safety precaution in order to facilitate a detour from the traffic violation mission of the traffic stop and to perform on-scene investigation into narcotic trafficking. This belief is further buttressed by LE’s statement that once Li was seated in his police cruiser, he was not free to leave. Thus, the court concluded that removing Li from the vehicle was a deviation from the traffic enforcement mission of the stop, and therefore, LE prolonged the stop when he removed Li from the vehicle.”

“While our Supreme Court has not yet addressed how the odor of marijuana affects the reasonable suspicion or probable cause determination in light of the decriminalization of marijuana, the Superior Court in Cabrera and Petty held that the odor of marijuana can be a factor in the totality of the circumstances test for probable cause to search a vehicle because marijuana, despite its decriminalization, is still contraband. However, the current case before this Court is considerably different from Cabrera and Petty because the court was not confronted in either of those cases with the slight odor of marijuana, nervousness, and the location of the stop as the only articulable facts for probable cause.”

Thus, having found that the nervousness of the occupants as well as their route of travel are of minimal relevance to this Court’s analysis of reasonable suspicion, the Court concludes nervousness, coupled with the slight odor of marijuana and the location of the traffic stop being in a known drug trafficking corridor, is insufficient to establish reasonable suspicion to prolong the traffic stop of Defendant’s vehicle. The Court felt constrained to come to this conclusion because LE never followed up on the slight odor he detected. He did not ask whether either Li had a medical marijuana card. He also did not ask if either of the occupants had been smoking marijuana that day. In the court’s opinion, these questions would have allowed LE to develop his suspicions during the stop and in increase the scope of his investigation by degrees, so he could properly shift his focus from the traffic violation to a criminal narcotics investigation.

The court held that LE did not have sufficient evidence to transform the traffic stop into a narcotics investigation.

Note: This court was determined to interject itself into the “odor of marijuana as probable cause” debate. The court did not 1) find that directing an occupant to leave his vehicle is allowable for any reason because the courts wish to promote officer safety (see Pennsylvania v. Mimms and its progeny); analyze the facts under Rodriguez using a totality of the circumstances standard (instead taking each fact and dismissing it without considering everything as a whole) and 3) did not analyze whether the traffic portion was finished prior to the K9 alert. I disagree with the analysis, but given the limited factors, an analysis under the totality of the circumstances might come down the same way. But there is still no indication that the traffic stop was delayed or prolonged by the K9 sniff. This case is a good indication that the courts are going to be carving out exceptions to long standing rules to benefit the marijuana industry.

United States v. Spikes (Colorado 2021) 2021 U.S. Dist. LEXIS 88589
Traffic Stop; Alert as Probable Cause; Reliability Foundation; Prolonged Detention

During a surveillance of a motel known for drug trafficking, LE saw a Charger pull up and Spikes get out of the driver’s side. Spikes spoke briefly to a person in the parking lot before walking into room #205. There was a lot of foot traffic in and out of room 205. LE followed Spikes as he got back in the Charger and left the motel. Spikes was then pulled over for having illegally tinted windows. After running Spikes’ license and registration, LE asked Spikes to step out to await the arrival of another officer who had a working tint meter. During this wait, a K9 team arrived and deployed. K9 alerted on the vehicle, both inside and outside. Handler testified, “I deployed K-9 ‘Puck’ around the exterior of the vehicle starting at the rear driver side bumper. K-9 ‘Puck’ alerted to the passenger side door, by rising onto his hind legs, and intense sniffing at the door seam and door handle. This alert indicated to me that the odor of a controlled substance was present within the vehicle. K-9 ‘Puck’ again alerted to the driver side door by rising onto his hind legs, a severe head whip and intense sniffing at the door seam and door handle. This alert again indicated to me that the odor of a controlled substance was present within the vehicle. I deployed K-9 ‘Puck’ on the interior of the vehicle. K-9 ‘Puck’ spent most of the time focused on the front passenger seat and front dashboard and center console area of the vehicle. K-9 ‘Puck’ alerted in this area with intense sniffing, and then indicated on the front center console and dash near the glove box and front passenger seat by stopping and staring. This is an indication that the odor of a controlled substance is present within the specific area.” A search of the vehicle turned up packaging material and a locked glove box. The vehicle was impounded and a search warrant sought. The search pursuant to the warrant revealed contraband. After the deployments of the K9, additional LE arrived with the tint meter which showed that the windows of the Charger were in violation of the law. Spikes was issued a citation for the windows and allowed to leave (but was arrested later on charges stemming from the contraband).

In his motion to suppress, Spikes argues that “officers did not have reasonable suspicion to expand the scope of Spikes[‘s] detention into a narcotics investigation by requesting a K-9 search and unlawfully prolonged the detention by waiting for the K-9 search to occur.” Spikes’ contention that LE unlawfully prolonged the traffic stop by waiting for a K-9 to arrive to the scene is contradicted by the record. At the time that handler arrived to the scene with K-9 Puck, LE was waiting for a tint meter to arrive, which would then be used to determine the percentage of light being transmitted through Spikes’s vehicle windows to complete his investigation into the suspected traffic violation. Critically, K-9 Puck’s sniff of Spikes’s vehicle occurred before LE arrived with the tint meter. As such, the Charger was not improperly seized while waiting for K-9 Puck’s sniff. Likewise, the tint meter arrived within approximately fifteen minutes, which is a reasonable amount of time to complete the initial purpose of the traffic stop.

As such, the Court concludes that the traffic stop was not unnecessarily prolonged to further an investigation and instead lasted only as long as necessary to confirm the suspicion that justified the initial stop of the 2019 Charger.

Spikes also claimed that in Colorado, because marijuana has been legalized, LE needed probable cause to justify a K9 sniff before the sniff could occur. Just as Fourth Amendment analysis does not turn on California’s recognition of a right to privacy in garbage, nor can it turn on Colorado’s recognition of an expectation of privacy in the lawful activity of possessing marijuana. See also United States v. Hayes (Tennessee 2020) 2020 U.S. Dist. LEXIS 71818 (rejecting argument that state legalization of hemp eliminates probable cause gained by drug detection dog’s alert under federal law); United States v. Hicks (Mich. 2010) 722 F. Supp. 2d 829, 833 (holding that “[i]t is indisputable that state medical-marijuana laws do not, and cannot, supercede federal laws that criminalize the possession of marijuana”).

As such, because the Fourth Amendment does not recognize a right to privacy regarding the odor of marijuana, the Court concludes that handler did not need probable cause before deploying K-9 Puck to sniff the 2019 Charger and that K-9 Puck’s sniff did not violate Spikes’s Fourth Amendment rights.

Spikes also challenged K9 Puck’s reliability as well as claimed Puck did not alert. Handler testified that not only was Puck certified each year under the Utah POST criteria, but that the team does approximately 4 hours of training a week. Puck never gave a false alert in the field. Spikes’ expert claimed that Puck’s training was deficient because the Utah POST criteria was found to be deficient in 2020 in the Jordan case (see April Update of 2020 for more on this case). However this court found that, unlike the version of the Utah POST program analyzed by the Jordan Court, K-9 Puck’s certification process involved 15 single-blind hides, which minimizes the possibility for handler cuing or bias, as neither K-9 Puck nor handler knew where narcotics were hidden (or if narcotics were present in a simulation at all). As such, the Court finds that K-9 Puck’s certifications can be taken as proof that K-9 Puck is qualified to reasonably detect, and communicate his detection of, narcotics.

Note: I included the handler’s testimony of Puck’s alert behaviors so that you can see how to describe the physical behavior of your K9. The court will want to know what you observed and you will need to be able to describe it in physical terms rather than opinion. Also, this case framed the issue of whether there is a 4th Amendment expectation of privacy in the odor of marijuana, rather than the odor of marijuana cannot provide probable cause to search, in an apparent departure from previous Colorado cases. 

Castro v. Martin (Oregon 2021) 2021 U.S. App. LEXIS 13781
Excessive Force

LE executed a residential search warrant to arrest Castro, who was suspected of aggravated assault and strong-arm robbery. A K9 team was part of the search warrant team. Castro fled when the officers arrived at the residence but was soon apprehended on the roof of a neighboring home. LE commanded Castro to both “stop” and to get off the roof; when Castro did not immediately leave the roof, LE shot Castro twice with a Taser. The impact of the Taser caused Castro to fall off the roof, at which point four officers tackled him. Castro contends that he did not resist while face-down on the ground and that officers grabbed his hands behind his back, maintaining full control over him. LE counters that Castro resisted arrest by locking his arms and hands underneath his torso and by kicking.

Handler, who was observing the encounter, later testified that he believed Castro presented a danger to officers because Castro was allegedly resisting arrest and because handler thought Castro might be concealing a firearm in his pants. Handler therefore decided to deploy his K9 as a “pain compliance tool” to assist in the arrest, and he commanded the K9 to bite Castro’s leg. Body camera video footage appears to show that Castro was successfully handcuffed about 25 seconds after the K9 began its bite (or sooner), and that another 12 to 26 seconds elapsed between Castro’s handcuffing and the release of the bite. Castro’s injuries from the bite required multiple surgeries and prolonged physical therapy.

Castro sued handler under 42 U.S.C. § 1983, alleging that the K9 bite constituted excessive force. He also sued the State for handler’s alleged battery and intentional infliction of emotional distress, as well as for the other officers’ alleged gross negligence, on a vicarious liability theory. LE moved for summary judgment. The district court, pointing to the video showing the delay between Castro being “handcuffed and subdued” and the end of the K9 bite, held that genuine disputes of fact precluded summary judgment and qualified immunity on all claims.

Although the parties make various arguments about the legality of the entire exercise of force, this appeal turns solely on the 12 to 26 seconds that passed between when Castro was “handcuffed and subdued” and when the K9 released its bite. “Our caselaw is clear that an officer cannot direct a police dog to continue biting a suspect who has fully surrendered and is under the officer’s control.” The evidence, viewed in Castro’s favor, thus supports a violation of clearly established law and therefore, LE’s summary judgment motion was denied.

Note: The court was apparently fine with the “pain compliance” deployment, just not any continuation of a bite after handcuffing. Interesting. In today’s culture, “pain compliance” deployments need to be carefully considered under Graham v. Connor and you may want to think about change in vocabulary. “Pain compliance” to a civilian sounds bad.

State v. Escudero (Oregon 2021) 2021 Ore. App. LEXIS 595
Traffic Stop; Prolonged Detention

In a traffic stop and investigation for DUI, LE called for a K9 team eight seconds into the stop. Driver argued that LE unlawfully extended the permissible duration of the traffic stop when he called for the K9. During the stop, it was learned that driver was on probation for a drug possession conviction. The K9 team arrived about five minutes later while LE was writing the citation. Handler contacted driver and noted he was very nervous. Eventually, consent was given for a K9 search by the driver and passenger. There was an alert. The stop continued for the DUI investigation. At oral argument, the state conceded that LE’s call for a K9 was unlawful, but argued that the “the alleged police illegality did not taint the challenged evidence and thus there was no basis for applying [the] exclusionary rule.” That is, the state suggests that, “even assuming that LE’s brief call for a drug dog unlawfully extended the traffic stop at that point, the evidence discovered as a result of occupants’ activities was not tainted by the preceding police illegality.”

Because this attenuation argument is raised for the first time on appeal, the trial court never engaged in the fact-specific inquiry on whether the state carried its burden of proving that defendant’s consent was independent of, or only tenuously related to, the unlawful police conduct. Accordingly, because the record may have developed differently with respect to the attenuation analysis, we decline to consider the state’s alternative basis for affirmance.

Note: So basically, the court said that since the State conceded that the call for the K9 team was indeed a prolonged detention, the court was bound to accept that. In addition, the State raised a new argument on appeal (the court called it the attenuation doctrine), the court would not consider it. I’m not sure why the State folded its tent on the argument of prolonged detention based on the actual summoning of the K9 team. It seems to me that that radio call could only be a couple of seconds and it was done as LE was in the process of investigating the traffic stop. In addition, this traffic stop transformed into a DUI investigation and the sniff and alert happened prior to those investigations were completed. Perhaps the lower court record/transcript could shed some light on why the appellate court came to this outcome. 

State v. Roth (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 257
Welfare Check (or Public Safety Exception); Alert as Probable Cause; Plain Sight

LE contacted Roth in a legally parked vehicle after receiving a call from a concerned citizen and noticing that he appeared to be asleep for about 2 hours. Concerned that Roth had overdosed, LE checked on him and saw in plain sight a syringe for ingestion of controlled substances (Roth claimed that it was insulin for his son, even though it was uncapped, with something inside and Roth dropped it between the seats when he saw LE). Roth was seatbelted and the keys were in the ignition, indicating that he drove himself to the location. K9 team requested and arrived about 10 minutes later. K9 alerted. Search revealed methamphetamine.

Subject claimed that LE went outside the scope of a welfare check by asking for subject’s identification (driver’s license).

The appellate court held that Kansas courts employ scrutiny carefully when applying this public safety rationale to ensure that the protections of the Fourth Amendment are not rendered meaningless. A three-part test helps to define the contours of a valid welfare check: First, an officer has the right to stop or investigate when there are objective, specific, and articulable facts to suspect that a person needs help or is in peril. Second, if the person needs help, the officer may take the appropriate steps to render assistance. And third, when the officer believes that the person is no longer in need of assistance, any further actions constitute a seizure.

Under the first part of the welfare check test, LE’s initial contact with Roth was plainly justified by safety reasons based on specific and articulable facts—the call by a concerned citizen to the police after seeing Roth apparently asleep in his automobile for two hours. Roth did not contest that LE was rightfully dispatched to check on his wellbeing or the court’s findings that LE “would not have been doing his duty had he not checked to see if [Roth] was safe as far as from a health standpoint.”

Turning to the second prong, whether LE took appropriate action to render assistance, Roth contended that LE did not make sufficient efforts at ascertaining his wellbeing. The court stated, however, the evidence shows that LE awakened Roth to check on his welfare and promptly noticed that Roth slurred his words and had difficulty communicating with LE. This benign colloquy was consistent with a lawful encounter by the officer to ascertain Roth’s wellbeing.

Finally the court held that the mere fact that LE asked to see Roth’s driver’s license did not constitute a seizure, and there was no evidence that LE was unlawfully attempting to extend the welfare check beyond its permissible limits.

Roth also maintains the attempt to obtain his driver’s license was a fishing expedition and unreasonably extended the welfare check. However, the voluntary encounter was not extended based on LE’s request for identification. Rather, the voluntary encounter transformed into a criminal investigation when LE saw Roth drop the uncapped syringe filled with a substance while attempting to locate his driver’s license. Based on LE’s training and experience, Roth’s slurred speech and difficulty in communicating, coupled with his possession of the syringe clearly suggested the presence of both illicit drugs and drug paraphernalia. As a result, LE’s request for identification did not impermissibly extend the welfare check. Roth’s unusual behavior and discovery of the syringe at the time LE asked Roth for his driver’s license transformed the welfare check into a criminal investigation.

Apart from LE’s testimony regarding Roth’s apparent inebriation, the court found that the sight of the uncapped, filled needle provided reasonable suspicion to detain Roth and request a K-9 unit. According to the district court, the K9’s alert then provided probable cause to conduct a warrantless search of the automobile.

In conclusion, LE conducted a valid public safety welfare check. Shortly after waking and conversing with Roth, and upon asking him to provide his driver’s license, the officer observed Roth drop an uncapped filled syringe inside the car. Under the circumstances, given the officer’s training and experience with methamphetamine users, there were specific articulable facts warranting a brief investigatory detention. Lastly, the K9’s detection of illegal substances in the automobile provided probable cause to search it without a warrant and recover the contraband.

Note: Interesting discussion on Kansas’ public safety requirements. Here, the court found that the welfare check was valid and the investigation quickly turned to a drug investigation when Roth dropped the syringe in plain sight which then justified in calling for a K9 and performing a sniff.

State v. Best (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 138
Consensual Encounter; Prolonged Detention; Alert as Probable Cause

While on patrol shortly after midnight, LE observed a white car drive past his patrol car and park on a street in a residential neighborhood. LE parked his patrol car at least 100 feet away where he continued to observe the car. LE watched the driver (Best) exit the car, wander around its driver’s side, and walk away from it. LE found this behavior to be suspicious. Without activating his overhead lights or siren, LE drove closer and radioed dispatch to report that he was investigating a suspicious car at that location. LE parked approximately twenty-five feet behind the car and approached on foot. Using a flashlight, LE looked in the car’s windows and observed a small butane torch, which he knew from training and experience is sometimes used to ingest illegal drugs. Around this time, Best approached and asked LE what he was doing. LE and Best engaged in conversation a few feet apart. LE asked Best if the car was his, but before Best could answer LE noticed an item on Best’s hip and told Best not to reach for it.

Around this time, a K9 team arrived and LE asked handler to conduct a sniff of the exterior of Best’s car. Best protested, telling the officers that they did not have his permission to execute a K9 sniff. LE’s responses were “ok, well, you can explain that in court.” “Is that your vehicle?” “Whose vehicle is that?” Best began to walk away from the scene. While Best was walking away, LE continued to ask questions, such as, what Best was doing in the area and where he lived. Best stopped briefly and answered LE’s questions.

When Best began to walk away again, LE asked “ok, where are you going now?” Best responded that it was none of LE’s business. Best told LE to “have a good day” and continued to walk away. At approximately this moment, the K9 gave a positive alert on Best’s car. LE told Best that he was no longer free to leave. When Best resisted and tried to walk away, LE placed Best in handcuffs.

Here, given the totality of the circumstances, prior to the K9’s alert on Best’s car, not only would a reasonable person in Best’s position have felt free to end the encounter with LE, but Best, himself, felt free to end the encounter and walk away. Without activating his overhead lights or sirens, LE parked at least 100 feet away from Best’s car and observed Best get out of his car, wander around it, and then walk away. Thereafter, without activating his overhead lights or sirens, LE drove closer, parked his car twenty-five feet away, and approached the unoccupied car on foot. LE was investigating when Best approached LE at which time LE asked Best “is this your vehicle?” Best’s behavior indicated that, at least at first, he desired to be involved in a conversation with LE.

During the ensuing ninety seconds, LE asked Best general questions and permitted him to walk away from the area on multiple occasions. Although LE used a flashlight during the encounter and told Best to not reach for the item on his hip, a reasonable person would have understood these circumstances related to LE’s safety concerns as it was dark outside, LE was the only officer at the scene at the time, and Best approached with an unknown item on his hip. A reasonable person would have felt free to disengage from the encounter, as Best did. Further, LE’s statement that Best could explain his concerns with the use of the K9 “in court” conveyed simply that if the drug dog alerted and the officers found drugs in the car, Best could raise his concerns related to the use of the drug dog in court. LE did not couple this statement with an action or statement that suggested that Best was not free to leave the scene at that point. The video footage from LE’s body camera shows that Best felt free to end the encounter and walk away as evidenced by the fact that he did so several times. Finally, that LE asked questions when Best began to walk away did not indicate that Best was seized because it is appropriate for an officer to ask questions of an individual during a consensual encounter, even if no obvious criminal activity is taking place.

The court held that this consensual encounter did not transform into a detention, invoking the Fourth Amendment. Instead, Best understood that he was not detained, demonstrated by his walking away. There was no indication that LE conveyed to Best that he was not free to end the encounter. LE did not display weapons, physically touch Best, block any exit routes, explicitly or implicitly command Best to stay at the scene, or use language or a tone of voice to indicate that Best was to comply with any perceived demands. Best walked away from the scene multiple times, thereby undermining any argument that he did not feel free to end the encounter. Because Best was not seized until after the K9 alerted on his car and LE told Best that he was no longer free to leave, Best failed to show the district court erred in denying Best’s motion to suppress.

Note: Even though Best did not consent to the K9 sniff, he doesn’t have to. Best’s car was in a public place and therefore the K9 team was able to sniff the vehicle without any legal reason. If the encounter had changed into detention prior to the sniff, then the outcome would have been different.

United States v. Vick (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 86531
Traffic Stop; Prolonged Detention

Traffic stop for moving violations. Vick was the passenger. LE approached on the passenger side and observed a female driver and Vick, apparently asleep. Driver tried to convince LE that her erratic driving was because she had to go to the bathroom. When LE asked for her license she could not immediately provide any. Passenger (who apparently woke up) produced upon request a North Carolina drivers license. LE ran an identification check on the driver’s license and subsequently discovered that Vick was on federal probation. Driver eventually showed LE a photo of a license on her cell phone under a name that was not hers. Upon running that name, LE found no outstanding warrants.

By this time, LE had asked for handler to respond to the scene. LE testified that it took approximately ten minutes for handler to arrive. Once he did, LE briefed handler on the reasons why he believed reasonable suspicion existed. Driver was then asked to get out of the vehicle in order to review her travel plans with her. Driver’s explanation at that time conflicted with her earlier information. Vick, questioned separately, also had information that conflicted. He was then asked to step out. He was Terry frisked. At this point, LE testified he believed 100% that criminal activity was going on.

K9 team deployed at that point and the K9 alerted to several areas on the vehicle. Contraband was found in the vehicle and money was found on Vick.

Vick claimed that the traffic stop was prolonged to include the K9 sniff. The Court found that the Rodriguez moment occurred upon the completion of running driver’s license through county control, which was the last task incident to the purpose of the traffic stop. At that point in time, the record supports the conclusion that LE possessed reasonable suspicion to extend the stop. Even if the Rodriguez moment occurred earlier, specifically once LE requested handler’s assistance at the scene, the Court still agreed with the finding that reasonable suspicion existed based on the vehicle’s evasive driving at approximately 3:30 in the morning, driver’s nervous behavior upon being stopped, her inability to initially provide LE with identification, and the visible lack of luggage for a long-distance trip. When viewed in totality, LE’s observations-which were later bolstered by the inconsistent itineraries provided and the discovery that Vick was on supervised release-warranted extending the stop until handler arrived and thus did not infringe upon the Defendant’s Fourth Amendment rights.

Note: Defendant argued that the conversation re: driver’s travels extended the stop. Some courts have agreed with this analysis. However, the court here basically blew past that argument, implying that such questioning is routine in traffic stop, which is the position of other courts. Check in with your prosecutor and make sure you know what your state determines to be the Rodriguez moment (when the traffic investigation is complete).

People v. Ponder (New York 2021) 2021 N.Y. App. Div. LEXIS 2988
Traffic Stop; Odor of Marijuana as Probable Cause; Search of Containers (including Trunk)

Traffic stop for no lights during darkness. LE smelled a strong odor of burnt marijuana and saw that the interior of the vehicle was smoky, as if the occupants just finished smoking marijuana. A subsequent search of the vehicle passenger compartment revealed a baggie that contained a small amount of unburnt marijuana. LE did not find evidence of burnt marijuana, joints or ashes. LE then searched the trunk and found in a container a loaded firearm.

Defendant asks this Court to reject a per se rule that the search of the entire vehicle, including the trunk, is permissible in every circumstance where police have probable cause to believe that the occupant of the car has committed a crime. Defendant argues that the automobile exception to the Fourth Amendment’s rule prohibiting warrantless searches requires a fact-specific probable cause analysis and a factual nexus between the criminal activity suspected and the area searched. The court agreed with defendant and found that in this case, the odor of marijuana, together with a de minimis (very small) amount of marijuana found in the center console of the vehicle, did not furnish the requisite probable cause to search the trunk of defendant’s vehicle and that there was no factual nexus between the possession of an amount of marijuana consistent with personal consumption and a search for contraband in the trunk of the vehicle.

Note: This court jettisons the federal case law (Carroll v. US; US v. Ross) that clearly provides that once there is probable cause to search the passenger compartment, there is probable cause to search all areas, including the trunk. It also ignored some of its own cases that held the same result as the federal cases. This court makes a distinction that since this was a marijuana case with only the smell of burnt marijuana and a small amount of unburned marijuana found in the passenger compartment, LE was not entitled to search the trunk because the only conclusion LE could legally come to was that if marijuana was possessed, it was only for personal use, which would not allow for a search of the trunk. Again, another conclusion where marijuana is being treated differently than other types of contraband. As of March 2021, New York had legalized marijuana for recreational use (even though the regulatory structure to buy and sell it has not been put into place).

Mahaffy v. Wyoming (Wyoming 2021) 2021 WY 63
Traffic Stop; Prolonged Detention

Mahaffy was the passenger in a car driven by his wife when he threw a lit cigarette out the car window in front of LE’s patrol car. LE activated his body camera, turned on his overhead lights, and pulled the car over. LE approached the driver’s side of the car, explained the reason for the stop, and obtained the car registration, proof of insurance, and Mr. and Mrs. Mahaffy’s driver’s licenses. Because the driver appeared very nervous, LE called for a drug dog on his way back to his car. He then proceeded to write the citation for the burning cigarette. While he was completing the citation, handler arrived.

About twelve minutes into the stop, Mr. Mahaffy was asked to get out of the car. Eleven seconds later, LE completed the citation and asked Mr. Mahaffy, “Is there a reason you guys are so nervous while I’m talking to you?” That discussion lasted approximately thirty seconds. LE then proceeded to explain the citation. At thirteen minutes, fourteen seconds, the body camera shows the handler walk behind Mr. Mahaffy and nod, which meant that the K9 alerted. Twenty-three seconds later, LE completed his explanation and began to inquire about drugs in the car. The officers searched the car and found methamphetamine and a pipe.

The appellate court applied the two-part inquiry from Terry v. Ohio to determine whether a traffic stop and resulting seizure was reasonable: “(1) whether the initial stop was justified; and (2) whether the officer’s actions during the detention were reasonably related in scope to the circumstances that justified the interference in the first instance.” Mr. Mahaffy did not dispute the initial traffic stop was justified; he focused on the second part of the Terry test.

“The second part of the Terry inquiry is the reasonableness of the detention.” The “investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop, and the scope of the detention must be carefully tailored to its underlying justification.” When “the initial reason for [the] stop has been resolved,” the officer needs “specific, articulable facts and rational inferences giving rise to reasonable suspicion that another crime has been or is being committed to justify a continued detention.” Mr. Mahaffy concedes the Fourth Amendment does not prohibit use of a K9 so long as it does not extend the duration of the stop. The State does not contend LE had reasonable suspicion prior to learning the K9 had alerted.

The appellate court held that the district court apparently based its ruling on its finding that the extension of the stop was de minimis, when it held the “conversation between LE and Mr. Mahaffy took approximately one and a half minutes, and the K9 free-air sniff required only a fraction of that time.” But the United States Supreme Court soundly rejected the argument that a de minimis extension of a stop is acceptable in Rodriguez. LE unlawfully extended the duration of the traffic stop after he had completed the citation by asking unrelated questions about nervousness.

Note: I may be reading this opinion wrong, but it seemed clear to me that LE was still in the process of explaining the citation to Mr. Mahaffy when the K9 alerted. It seems to me that if this was the case, then there would be no prolonged detention. This odd ruling may have been because Mr. Mahaffy argued a different aspect of prolonged detention and only mentioned this theory in passing in the trial court. This could mean that the State did not have an adequate opportunity to brief this issue as raised in the appellate court. When a different issue is raised in the appellate court and the appellate court allows the defendant to argue it anyway, the State should be asking for a remand to present evidence on the new issue to avoid this type of situation (courts don’t always do what you ask them, however).

United States v. Wilson (West Virginia 2021) 2021 U.S. Dist. LEXIS 86164
Traffic Stop; Prolonged Detention

During interdiction activities at the Greyhound bus station, LE saw Wilson get into a vehicle after acting suspiciously. During a traffic stop for expired registration, LE made contact with the driver of a vehicle as well as passenger Wilson. Wilson provided his name and date of birth but stated he did not have ID with him. Driver stated that he had a concealed carry permit and a handgun in the vehicle. LE asked him to exit the vehicle and accompany him to his cruiser so that he could secure the gun and run it through NCIC. He asked driver about his passenger, and driver was unable to identify him. Driver stated that he had come from Williamson, West Virginia, to pick up Wilson at the request of a friend. LE wrote a warning ticket for the expired registration and completed his computer checks.

LE returned to the vehicle to speak with Wilson. When asked what state he had come from, Wilson stuttered a bit, said “Toledo” then stuttered a bit and said “Michigan,” before saying “Toledo, Ohio.” LE returned to speak with driver and request consent for a search, which driver denied. Hander had arrived with his K-9 soon after the traffic stop began, and LE asked Wilson to exit the vehicle so that a K9 sniff search could take place. Wilson permitted LE to search his person. He had a bus ticket in his pocket in another name. He explained that someone else had purchased the ticket for him. LE indicated that tickets purchased in other names, or tickets that conceal the true original or destination city, are indicators of potential drug trafficking activity.

Meanwhile, handler observed a positive alert from K9 at the front passenger side of the vehicle at approximately 10:46 p.m., about 11 minutes after the commencement of the stop. He testified that a positive alert could be any obvious change in behavior, such as tail wagging, sitting, intense sniffing, or excitedness. His recollection is that K9 alerted by sitting down outside the front passenger side of the vehicle. He then let K9 into the vehicle, and he alerted in the back passenger area by sniffing at the bags and may have also sat down. When a K9 alerts, it receives verbal praise and/or a toy. K9 was certified in detecting certain controlled substances, including heroin.

Based on K9’s alert, LE searched the bag. They opened lotion bottles that were bulging and found plastic bags containing prescription opiates.

The court held that after completing all tasks necessary to effectuate the purpose of the traffic stop—citing driver for his expired registration—the officers had no further justification for continuing the seizure of driver and Wilson. At the point that LE had completed the purpose of the stop and returned to the truck to further question Wilson, the seizure was impermissibly prolonged. At that juncture, further questioning was not necessary to either complete the purpose of the stop or to insure officer safety. Its purpose was to investigate an unrelated criminal matter.

The court further found that although K9 was already present and the K9 sniff extended the stop by only minutes, Rodriguez is clear that prolonging a traffic stop to investigate unrelated matters without reasonable suspicion is impermissible. Upon his return to the truck, LE’s suspicion was based on Wilson’s arrival on a bus that had previous stops in source cities, with a history of being used as transportation for drug traffickers, his behavior in quickly standing and exiting the bus, and driver’s inability to identify Wilson whom he had driven approximately an hour and a half to pick up. Those facts do not constitute reasonable suspicion and, therefore, are not sufficient to support a continued seizure.

The Court found it unnecessary to reach the issue of whether K9’s alert was sufficiently reliable to permit the search. The motion to suppress should be granted.

Note: There are two ways to get a K9 sniff in during a traffic stop; 1) perform the sniff while the duties of the traffic stop are ongoing (simultaneously) or 2) find additional reasonable suspicion to extend the stop. Here, the court found that there was not enough evidence to find additional reasonable suspicion and since there was clear prolongation, the evidence had to be suppressed. I agree with the court’s analysis on prong 1 (the K9 sniff was not simultaneous with the traffic investigation), but am of the opinion that the facts testified to that drug trafficking was going on were sufficient to establish reasonable suspicion such that the sniff could be performed. Perhaps there was not enough explanation in the record for the appellate court to determine that the facts were indicative of trafficking. No way to know for sure.

United States v. King (West Virginia 2021) 2021 U.S. Dist. LEXIS 85255
Traffic Stop; Standing

Subject under investigation for drug trafficking in which LE had four controlled buys into him. A GPS, authorized by search warrant, was placed on his vehicle. LE then received a tip that subject would be travelling to Cleveland, Ohio to bring back “stuff,” which the CI took to mean drugs. Subject was located driving in a Tahoe and noted that a Chevy Traverse was travelling in tandem with subject. Both vehicles were pulled over for speeding. LE searched subject’s car and found only a small amount of marijuana. No charges came out of this stop. During the stop of the other car LE immediately requested a K-9 unit respond to that stop. According to subject, driver of the Traverse initially gave consent for officers to search the Traverse but then withdrew consent shortly thereafter. The K-9 unit then responded and indicated the presence of drugs on the right rear passenger door of the Traverse. Driver then told officers that there were narcotics in the vehicle. In the search that followed, officers discovered over 400 grams of methamphetamine and over 80 grams of crack cocaine in a plastic grocery bag near the rear seats. Trial theory was that subject put the drugs in the Traverse (which the jury agreed with as they convicted subject).

Subject claims he should have standing to argue for suppression of the evidence obtained during the stop of the Traverse because it was fruit of the allegedly unlawful placement of the GPS tracker on subject’s Tahoe.

The court found that subject had no standing to assert that driver’s Fourth Amendment rights were violated. The Fourth Amendment only protects the victim of the search, and there is no evidence subject was the victim of the search of the Traverse, other than by use of the evidence obtained against him. The test of whether subject was a victim of the search is whether he had a legitimate expectation of privacy in the Traverse and the court found that subject did not. There is no evidence that subject owned the Traverse, was a passenger in the Traverse, or regularly used the Traverse. Subject does not contend otherwise. The only argument subject makes to suggest he may have had some minimal privacy interest in the Traverse is that, according to him, driver told officers during the stop that subject “placed luggage in the back of her vehicle.” Therefore, subject argues, “at the very least, [he] has an expectation of privacy in the luggage placed in [the Traverse].” However, the contraband found was in a grocery bag near the rear seats, not in luggage.

Note: Standing can be a bit of a sticky wicket for the defense. Defendant has to claim ownership and/or control of the item before they can claim a 4th Amendment right to privacy in the item. This is because the 4th Amendment protects persons’ rights, not items. Once they claim that ownership/control in the suppression motion, then that information can be used against them in trial (you said you owned/controlled the item in the hearing prior to the trial), thus setting themselves up to the jury finding possession of the items which are contraband (which is required for conviction) by defendant’s admission. It was my practice to never waive standing (unless it was clear that standing was met) as it is a threshold issue and it is the defendant’s burden to overcome it.

Commonwealth v. Moore (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 1179
Automobile Exception to Search Warrant

During mobile surveillance of an area where a recent rash of shootings and drug complaints were reported, LE stopped a vehicle for turn signal violation. Prior to the vehicle actually stopping, LE observed Moore (passenger) place a backpack behind the driver’s seat. LE approached the passenger side of the vehicle and another officer approached the driver’s side. Both law enforcement officers smelled a strong odor of marijuana emanating from the vehicle. Both occupants of the vehicle were removed from the vehicle and Terry frisked. The driver was cooperative and admitted that she had been smoking marijuana. She removed a baggie of marijuana from her bra and gave it to LE. Upon being removed from the vehicle and being patted down, Moore refused to identify himself. LE began searching the vehicle, observing marijuana “roaches,” or burnt marijuana cigarettes, in the vehicle. Soon, Moore’s mother and brother arrived on the scene of the traffic stop and all three engaged in shouting at LE that LE could not search Moore’s bag. Moore started to walk away from the site of the traffic stop. He was ordered not to leave. As the officers approached the backpack, Moore left the scene of the traffic stop and entered a residence. The backpack contained a pistol, marijuana, ammunition, and ripped baggies used for drug sales.

Significantly, during the pendency of this appeal, on December 22, 2020, the Supreme Court of Pennsylvania decided Commonwealth v. Alexander (Pa. 2020) 243 A.3d 177, which overruled Commonwealth v. Gary (Pa. 2014) 625 Pa. 183, 91 A.3d 102 and its progeny. Gary had held that the search-and-seizure provision of the Pennsylvania Constitution provides no greater protection than does the Fourth Amendment of the United States Constitution with regard to warrantless searches of automobiles. Gary continued that the only prerequisite for a warrantless search of a motor vehicle is probable cause to search, with no exigency required beyond the inherent mobility of a motor vehicle. However, in Alexander, the Pennsylvania Supreme Court thereby re-affirmed and reinstated the pre-Gary line of cases that required police to have both probable cause and exigent circumstances before conducting a warrantless search of an automobile. Therefore, the case was remanded back to the trial court for it to decide if there were exigent circumstances sufficient to allow for the search of the backpack.

Note: This really only applies to our colleagues in Pennsylvania. The federal standard, which most states (including California) follow, is that the fact that the automobile is inherently moveable is the exigency that justifies the exception.

State v. Arrizabalaga (Kansas 2021) 2021 Kan. LEXIS 50
Traffic Stop; Prolonged Detention; Reasonable Suspicion

Traffic stop for slow speed and following too closely. When lit up, the vehicle immediately almost came to a stop in the traffic lane before pulling quickly to the shoulder. LE noted cardboard boxes and luggage in the van. LE could smell strong air freshener which he knew was often used to mask the smell of marijuana. The information about the route of travel of this rented van was “puzzling” because the occupants of the van were headed into a hurricane which most Floridians were fleeing. There were additional odd statements by driver. Driver had a prior arrest for a stolen vehicle and one for felony marijuana possession. LE completed the citation and had driver sign it and then asked if LE could ask driver a few more questions. Driver agreed. In response to the questions, driver denied any contraband but claimed his felony marijuana arrest was just a citation for smoking marijuana (not true). Driver then consented to a search of the vehicle, which was then withdrawn prior to LE starting the search. LE then detained driver on suspicion of drug crimes and called for a K9 team. The team arrived 24 minutes after consent was withdrawn and 22 minutes after LE called for the team. Within a minute, the K9 alerted to the vehicle. A subsequent search revealed over 100 pounds of marijuana.

The court held that the initial contact and traffic stop were justifiable and completed when LE had driver sign the citation. The encounter then became a consensual encounter when driver agreed to answer questions and that encounter ended when driver withdrew his consent. After withdrawal of consent, LE seized driver’s keys and detained him to wait for a K9. This appellate court adopted the lower court’s finding that this detention was supported by “objectively reasonable suspicion” of other criminal activity.

Driver then complained that, even if there was additional reasonable suspicion, a 24 minute wait for the K9, even with an objectively reasonable suspicion of drug crime, was a prolonged detention and not allowed under the Fourth Amendment. The appellate court reversed the lower court’s ruling that LE did not diligently pursue the drug investigation because waiting 24 minutes for a K9 team was not a diligent effort. The court here held that, even though there can be an unconstitutional delay even with reasonable suspicion of another crime, that was not the case here. The court noted that only when consent was withdrawn did the need for a K9 team arise. The court also recognized that any attempt to get driver to cooperate after consent was withdrawn could be viewed as non-consensual and coercive and therefore, the only course open to LE was to wait for a K9 team. The court held that under the circumstances existing that night, waiting 24 minutes for a fellow officer to arrive with a K9 was reasonable and diligent. The prudent course of action was the one taken. LE first sought cooperation through additional questions and consent to search. He called for a K9 only after less intrusive investigative methods failed. The district court, and the intermediate appellate court, erred by concluding that suppression of 111 pounds of marijuana seized from defendant’s vehicle was warranted because the officer who initiated the stop called for a K9r less intrusive investigative methods failed, and under the circumstances, waiting 24 minutes for a fellow officer to arrive with a drug dog was reasonable and diligent.

Note: This case hit all the appellate courts on its way to Kansas Supreme Court and the decision went back and forth on the way. Fortunately, this court used a common sense approach that recognized the realities of policing as well as protected the rights of the driver.