Meyer’s K9 Law

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 Also, a caution here: some cases are unpublished (“Unpub.”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

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

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

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

MARIJUANA UPDATE FROM MAY 2023 FOR JUNE 2023 UPDATE

STATES

Minnesota would legalize the possession and sale of adult-use cannabis and impose a tax structure on products under a bill passed by the Legislature.

Nebraska marijuana reform activists have kicked off an effort to put medical cannabis legalization on the 2024 ballot, following unsuccessful attempts in the two previous elections.

New Hampshire Gov. Chris Sununu called for a bipartisan effort to legalize marijuana in the state, saying it is an “inevitable” outcome even as the state Senate killed a bill that would have allowed for sale and possession and established a state regulatory commission

INDEX OF CASES REVIEWED FROM MAY 2022 FOR JUNE 2023 UPDATE

Bruton v. City of Grand Forks (North Dakota 2023) 2023 U.S. Dist. LEXIS 79322 – Traffic Stop; Heck Doctrine; Removing Occupants from Vehicle; Prolonged Detention; K9 Entry into Vehicle

State v. Harris (Ohio 2023) 2023-Ohio-1544 – Traffic Stop; Asking Occupants to Leave the Vehicle; Standing; Prolonged Detention; Alert as Probable Cause

People v. Flora (Illinois 2023) 2023 IL App (4th) 220926-U – Traffic Stop; Alert as Probable Cause; Marijuana

People v. Prince (Caliifornia 2023) 2023 Cal. App. Unpub. LEXIS 2700 – Inventory Search; Alert as Probable Cause; K9 Entry into Vehicle

State v. Oliver (Ohio 2023) 2023-Ohio-1550 – Traffic Stop; Good Faith Exception; Odor of Marijuana as Probable Cause; Terry Frisk; Inevitable Discovery

People of the Virgin Islands v. Phipps (Federal 2023) 2023 VI SUPER 22U – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. McDonald (Ohio 2023) 2023 U.S. Dist. LEXIS 83227 – Traffic Stop; Marijuana in Plain Sight

State v. Bell (Ohio) 2023-Ohio-1588 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Lincoln (Texas 2023) 2023 U.S. Dist. LEXIS 83522 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

City of Mesquite v. Wagner (Texas 2023) 2023 Tex. App. LEXIS 3251 – Excessive Force; Immunity; Unintentional Bite

United States v. Moses (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 84247 – Traffic Stop; Curtilage; Odor of Marijuana as Probable Cause

United States v. Williams (6th Cir. Michigan 2023) 2023 U.S. App. LEXIS 12077 – Traffic Stop; Reasonable Suspicion; Prolonged Detention

Wesley v. City of Lynchburg (Virginia 2023) 2023 U.S. Dist. LEXIS 87969 – Excessive Force; Failure to Train; Failure to Supervise; Monell Liability

United States v. Vanderpool (Kentucky 2023) 2023 U.S. Dist. LEXIS 88957 – Traffic Stop; Prolonged Detention; Reliability Foundation; Alert as Probable Cause; Collective Knowledge Doctrine

United States v. Frater (Nebraska 2023) 2023 U.S. Dist. LEXIS 89950 – Traffic Stop; Prolonged Detention; Reasonable Suspicion

United States v. Plancarte (Wisconsin 2023) 2023 U.S. Dist. LEXIS 90338 – Traffic Stop; Marijuana Legality

United States v. Gutierrez (11th Cir. Florida 2023) 2023 U.S. App. LEXIS 12811 (Unpub.) – Traffic Stop; Prolonged Detention

United States v. $200,000 in U.S. Currency (California 2023) 2023 U.S. Dist. LEXIS 92896 – Currency Sniff; Reliability Foundation

Moore v. State (Indiana 2023) 2023 Ind. App. LEXIS 159 – Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

United States v. Vining (Michigan 2023) 2023 U.S. Dist. LEXIS 93677 – Consensual Encounter v. Detention v. Arrest; Abandonment

N.J. in re S.H. (New Jersey 2023) 2023 N.J. Super. Unpub. LEXIS 840 – Traffic Stop; Prolonged Detention

Hale v. Commonwealth (Kentucky 2023) 2023 Ky. App. Unpub. LEXIS 291 – Traffic Stop; Prolonged Detention

State v. Thobe (Ohio 2023) 2023-Ohio-1431 – Traffic Stop; Prolonged Detention

United States v. Hamlet (West Virginia 2023) 2023 U.S. Dist. LEXIS 76568 – Traffic Stop; Prolonged Detention; Probable Cause; Inevitable Discovery Doctrine

State v. Rodriguez (Minnesota 2023) 2023 Minn. App. Unpub. LEXIS 369 – Traffic Stop; Reasonable Suspicion; Prolonged Detention

CASES REVIEWED FROM MAY 2022 FOR JUNE 2023 UPDATE

Bruton v. City of Grand Forks (North Dakota 2023) 2023 U.S. Dist. LEXIS 79322

Traffic Stop; Heck Doctrine; Removing Occupants from Vehicle; Prolonged Detention; K9 Entry into Vehicle

Bruton was stopped by LE for an improper turn. According to Bruton, LE asked him to get out of his car. He did so, and at the same time, showed LE his cell phone which confirmed his insurance coverage. At that point, Bruton alleges that LE rushed him to the police cruiser quickly to prevent him from closing his driver’s door. Once he was placed in the cruiser, he saw one LE looking through the open driver’s door. Handler then walked a K9 around the vehicle. When the team reached the driver’s open door, Bruton alleges that the handler encouraged the K9 to go inside the vehicle. The K9 stayed for several seconds, then exited the vehicle and was guided by his handler around the outside of the vehicle. There was no alert.

When Bruton asked about the response for an improper turn, he alleges that LE (not the handler) told him they can sniff any car they want and don’t need probable or reasonable suspicion or even a reason.  Bruton also alleged that an officer that was right behind this one said he did not see an improper turn. Bruton was cited for improper turn and released. In a court trial, the violation of improper turn was upheld.

Bruton then filed a lawsuit for violation of civil rights by unlawful seizure, unlawful search and unlawful arrest.

First, Bruton claimed that his right to be free of unlawful seizure was violated twice; once when he was pulled over with no reasonable suspicion; and secondly, when LE unlawfully prolonged the stop. The appellate court held that the Heck Doctrine barred Bruton from challenging the traffic stop itself as he had previously been found guilty of an improper turn.

The appellate court found that handler deployed a drug-sniffing K9 near Bruton’s vehicle with the driver’s side door open and handler then assisted the K9 in entering the vehicle. Handler allowed the dog to stay inside the vehicle for several seconds and the K9 only exited when it completed its search of the interior of Bruton’s vehicle. Handler also searched the interior of the vehicle on his own. When the handler deployed the drug-sniffing K9 inside of Bruton’s vehicle, they had no probable cause to support searching the interior of the vehicle.

The court then addressed the prolonged detention issues. The handler was alleged to have led the K9 around the car several times and to have alleged the K9 to enter the vehicle to sniff inside. This supported a reasonable inference that the alleged unlawful seizure was prolonged to accommodate the search of the vehicle, as opposed to the amount of time it would reasonably take to complete a traffic stop for an improper turn. LE is alleged to have taken Bruton to the back of a police cruiser to facilitate the search of the vehicle and is alleged to have prevented Bruton from closing the door to his vehicle. As alleged, this is participation in the unlawful seizure. Taking these allegations, and the complaint as a whole, Bruton has alleged a plausible unlawful seizure claim as to all the LE on the grounds that the traffic stop was unlawfully prolonged, and the motion to dismiss is denied as to that specific claim.

The claim of unlawful search was then addressed. There was no probable cause for searching the interior of the vehicle and since there were sufficient facts pled that indicated the LE and handler were working together to accomplish this, the motion to dismiss this charge was also denied.

Finally, the court held that each of the LE officers and handler are alleged to have participated in the purported unlawful arrest by either seizing Bruton for longer than necessary, showing force, ushering him to the back of the police cruiser, or by prolonging the seizure into an unlawful arrest by unlawfully searching the vehicle. These allegations are sufficient to plausibly assert the unlawful arrest claim as to the individual Officers, and the motion to dismiss is denied on that claim.

State v. Harris (Ohio 2023) 2023-Ohio-1544

Traffic Stop; Asking Occupants to Leave the Vehicle; Standing; Prolonged Detention; Alert as Probable Cause

LE watched a vehicle leave a house that was under surveillance for drug crimes and stopped it for failing to signal before changing lanes. A uniform was requested to stop the vehicle for the violation. The uniform ordered all occupants out of the vehicle. Harris was a backseat passenger. The driver was ordered to sit in the patrol car as the uniform filled out the citation. The uniform also called for a K9 team. While the citation process was on-going, the K9 team arrived and alerted on the vehicle.

During the search of the vehicle, a black bookbag was discovered in the back seat. Harris had been previously seen leaving the home under surveillance with a black bookbag. Inside was a firearm and controlled substances. Harris also had $1624 in his pocket.

The court addressed standing first. Even though Harris initially denied possession of the bookbag, since Harris had been in possession of it and it was found near where his feet would have been in the vehicle, he had a reasonable expectation of privacy in the bookbag.

Harris conceded the traffic stop was lawful, but argued the traffic stop was merely a pretext to search the interior of the vehicle for drugs, and further argues the uniform had no cause to order him out of the vehicle for anything other than issuing a traffic citation. According to Harris, the uniform could only issue a traffic citation and send the men on their way, not expand the stop to include a drug investigation and ultimately the search of the bookbag.

The court first rejected that any subjective intent on the part of LE regarding the stop of the vehicle is irrelevant. Therefore, any claim of pretext is worthless, even though the uniform knew of the reason for the on-going surveillance.

Harris then claimed that the uniform could not order all occupants out of the car. The court held that this order is legal and is well-settled law.

Harris complained that the traffic stop was unreasonably extended to included a drug investigation. The court held that in this type of situation, the K9 sniff is not a Fourth Amendment search. Therefore, the uniform need not have formed reasonable suspicion that drug activity was occurring before calling for a K9. He nonetheless testified he called for a K9 sniff due to the nervousness of the driver of the vehicle, his knowledge that Harris and his companions were coming from a suspected drug house, and his knowledge of an active investigation focusing on that house. K9 arrived and alerted on the vehicle 12 minutes and 6 seconds into the stop and while the uniform was still in the process of issuing a warning to the driver of the vehicle. The entire encounter in this matter took place in less than 15 minutes which the court found was not unreasonable.

People v. Flora (Illinois 2023) 2023 IL App (4th) 220926-U

Traffic Stop; Alert as Probable Cause; Marijuana

A vehicle in which Flora was a passenger was stopped for failing to signal a lane change. This stop was not challenged. LE (one officer and one handler) was familiar with both the driver and Flora as being associated with the trafficking of methamphetamine. While the officer was running their information through dispatch, handler had his K9 sniff the vehicle and it alerted. The occupants of the vehicle were removed and searched but no contraband was found. A search of the vehicle revealed methamphetamine in the trunk. Flora started acting very nervously when LE opened the trunk. He came up to LE and told them that there was nothing in the trunk and then volunteered there might be a pipe. There were several pipes and the residue tested positive for methamphetamine. There was no prolonged detention argument.

The trial court held that since the K9 alert could have been for a legal substance, it was just not enough for a ‘reasonable’ officer to conclude considering all the surrounding circumstances that contraband or evidence of a crime was present (small amounts of marijuana had been legalized).

The appellate court determined that the trial court was wrong. Here, both the driver of the searched vehicle and Flora, the passenger, were known to handler as having a history of methamphetamine possession and delivery. We find that knowledge, along with the K9 alert by a trained and certified K9, is sufficient for a reasonably prudent person to think a search would reveal evidence of methamphetamine, which is indisputably contraband.

The court went on to hold that even if only the K9 alert was the basis for probable cause, this court recently found a positive alert by a K9 certified and trained to detect five narcotic substances, including cannabis, was sufficient to establish probable cause. This court reached that conclusion despite the recent changes in the law regarding the legalization of small amounts of cannabis. Thus, there was probable cause based on the K9 alert alone.

People v. Prince (California 2023) 2023 Cal. App. Unpub. LEXIS 2700

Inventory Search; Alert as Probable Cause; K9 Entry into Vehicle

A car was seized and was going to be towed for expired registration. The officer towing it ran his K9 around the car and allowed the K9 inside the vehicle (he couldn’t remember if the K9 alerted on the outside of the vehicle first). His agency’s policy did not allow for using a K9 in the inventory search (which is for determining if there is anything of value that needs to be protected and the condition of the car prior to towing). Inside the car, the K9 alerted to the center rear arm rest. Handler searched the area (he had not started the inventory search) and found an unusable white, powdery coating. Then the handler searched the entire car. He found a hide-a-can with methamphetamine, cash and a black backpack in the trunk with controlled substances and other indicia of trafficking in it.

The car was then towed to the tow yard. About an hour later, handler remembered seeing cell phones and went to the tow yard to retrieve them. The black backpack was searched more thoroughly and more meth and a gun was found along with indicia for Prince.

On a later date, handler saw Prince driving a different car with expired tags. He had Prince exit the vehicle and asked if he had anything illegal. He said he had meth and a pipe. Handler’s K9 alerted on the trunk. Inside was a backpack and inside that was meth and a pipe along with other indicia of trafficking. Prince also had a pay/owe sheet and some cash.

The court first found that handler had authority to impound the vehicle due to the expired registration. Handler’s testimony indicates he did not open the Hide-A-Can or the bags in the trunk pursuant to any standardized department policy; but, rather based on K9’s alert in the car and handler’s conclusion that there were narcotics in the car and Prince was involved in narcotics sales. That is, after K9 alerted inside the car, handler’s search turned into ‘a purposeful and general means of discovering evidence of crime. Moreover, in the absence of a standardized policy regarding opening closed containers and using K9 in inventory searches, opening the Hide-A-Can and the bags in the trunk was not sufficiently regulated to satisfy the Fourth Amendment. With no probable cause to support the K9 search (once the K9 was unlawfully inside the vehicle, the sniff becomes a search) of the Mercedes, and no standardized policy regarding opening containers or using K9s in an inventory search, the trial court improperly denied the motion to suppress the evidence found in opening the Hide-A-Can (methamphetamine) and the bags in the trunk of the Mercedes (methamphetamine and handgun) both from the initial search and the search at the tow yard.

State v. Oliver (Ohio 2023) 2023-Ohio-1550

Traffic Stop; Good Faith Exception; Odor of Marijuana as Probable Cause; Terry Frisk; Inevitable Discovery

Oliver was driving a vehicle with passengers when he was driving over lane lines on both sides. LE stopped him, suspecting impairment. However, Oliver showed no signs of impairment and denied drinking. However, LE immediately smelled an odor of raw marijuana coming from the open driver’s side window. LE then decided to detain all five people in the car and radio’d for back up to do that. Then LE learned Oliver did not have ID or a license. The car was registered to the front seat passenger but Oliver was driving because she was tired. When asked, the other passengers indicated that they had ID. That was the extent of inquiry at that point.

LE believed that Oliver was nervous because his hands were shaking. Oliver denied being nervous and the body cam footage was inconclusive on this issue. When back up arrived, he advised them in code that he smelled marijuana. LE then removed Oliver from the vehicle and searched him, finding a marijuana grinder and a loaded gun. After a search of the other occupants and the vehicle, only minute particles of marijuana were located. Oliver was charged with felony gun charges.

The appellate court first addressed the legality of the initial traffic stop. The court held that LE may have thought the driver was impaired, but after a brief inquiry, there was no more investigation to determine whether Oliver was impaired. However, after a long and boring argument, the court held that the reason for the traffic stop (lane violations) was sufficient to conduct the traffic stop.

The court then moved on to the search of Oliver. At the trial court level, the government relied on the odor of marijuana to justify the search. At the appellate level, the government advanced a Terry frisk argument as well.

At the time of this stop, certain amounts of marijuana could be possessed in certain situations. However, the appellate court held that search of a person requires that probable cause must be established with particularized evidence with respect to that person. Here, the odor of marijuana was coming from the car; there was no evidence at the trial court level that Oliver smelled like marijuana. Therefore, when LE searched Oliver, he did not have particularized probable cause for Oliver’s person. The court agreed with Oliver, because there was no evidence given in the lower court that would justify a suspicion that Oliver was armed and/or dangerous to allow for a Terry frisk.

Finally, the court refused to hear an inevitable discovery argument as well, as it was not raised in the trial court (procedural error).

People of the Virgin Islands v. Phipps (Federal 2023) 2023 VI SUPER 22U

Traffic Stop; Odor of Marijuana as Probable Cause

There was a robbery attempt where suspect tried to take a necklace off the victim. They wrestled and a second robber came up with a gun told victim to leave his friend alone and both robbers took off with victim’s necklace. Victims were unable to identify the robbers.

The get away vehicle was registered to a person who said that the vehicle was at her home, unoperable. She checked and the license plates were missing. During patrols in the area, a vehicle that matched the description of the robbers’ vehicle was found. Phipps was the driver and his mother was the registered owner. The vehicle was stopped for an inoperable taillight. There was an odor of marijuana coming from the vehicle. The car was searched and the victim’s necklace was found.

Phipps made the decriminalization argument. However, marijuana has not been fully legalized in the Virgin Islands. Therefore, all marijuana is still considered contraband and the odor indicates there is probable cause that marijuana would be in the vehicle.

United States v. McDonald (Ohio 2023) 2023 U.S. Dist. LEXIS 83227

Traffic Stop; Marijuana in Plain Sight

LE in the traffic stop testified that he had experience with illegal window tint and that, in his experience, when he could not see occupants in a vehicle due to tint, the tint was illegal. Because things cascaded from there, LE never actually used a tint meter on the car.

On the day of the traffic stop, another detective indicated that he had seen a hand to hand transaction (controlled substances) between a person and persons in a car that matched the description of the vehicle stopped for window tint. However, LE acknowledged that this alone was not sufficient to stop the vehicle and that’s why they were looking for a vehicle violation to pull the vehicle over.

When LE approached the vehicle, they noted a blunt in the center console. Driver McDonald also was less than cooperative, initially only rolling the window down 1/4 of the way and leaving the car in drive. There was also suspicious movements by McDonald after the stop but before police contact. He was taken out of the car and Terry frisked. The vehicle was searched and contraband along with a gun were found.

McDonald first claimed that LE did not have credible probable cause to stop him. In addition, since one of the LE officers testified he would not have arrested McDonald on the window tint and the blunt alone, McDonald claimed it was unlawful to stop McDonald.

The appellate court correctly found that the standard for the traffic stop is reasonable suspicion and therefore, based on the testimony of the officers, the stop was valid for tinted windows. McDonald tried to claim it was a pre-textual stop, but again, the court rightfully dismissed this argument as irrelevant.

The appellate court then went on to the issue of the search of the vehicle. Even though the two minor misdemeanors of window tint violation and possession of a blunt were not issues on which LE could arrest McDonald, the court held that once LE saw the blunt, they then had probable cause to search the vehicle when the facts of the hand-to-hand transaction were considered along with the observations of LE.

State v. Bell (Ohio) 2023-Ohio-1588

Traffic Stop; Odor of Marijuana as Probable Cause

Here, LE saw Bell’s car being operated without a required county identification sticker on the license plate. Regardless of LE’s subjective motivation, Bell does not dispute that the officer was entitled to make a traffic stop based on this violation of the law. After making the stop, LE approached Bell’s car and smelled raw marijuana. This fact entitled the officer to conduct a brief investigation to determine whether a drug offense had been committed. During that investigation, which lasted just minutes, Bell produced a Tupperware container of marijuana that was being stored in violation of Ohio’s medical-marijuana regulations. Bell also consented to a full search of his car, which resulted in the discovery of methamphetamine and other contraband. Under these circumstances, the trial court did not err in finding no constitutional violation and overruling Bell’s suppression motion.

United States v. Lincoln (Texas 2023) 2023 U.S. Dist. LEXIS 83522

Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

A drug task force was using a CI to get into a dealer for kilo quantities. The CI had identified the source as Blue. The phone Blue used was Lincoln’s phone. The CI was instructed to order up a kilo of meth. The CI did so and got the price ($3800) and a location to meet. A surveillance team set up to watch the transaction. CI, who was wired, went into the residence and came out with a kilo of cocaine (not sure why the different drug, but that’s what the opinion stated). The CI said the kilo of cocaine was given to him by Lincoln.

LE set up a second controlled buy with CI and Lincoln. LE was able to hear the arrangements between Lincoln and CI as to the location of the transaction. When Lincoln left his residence to go to the rendezvous, he was stopped by the highway patrol (HP) at the request of the drug task force. He was stopped for speeding. Lincoln handed over a credit card by mistake and said he would have to call his girlfriend for the proof of insurance. Highway patrol took his license and registration to run them. HP heard the motor start, so went back to Lincoln and told him to turn off the car and get out. Lincoln claimed the car started automatically. Lincoln said he had no recent arrests or any trouble.

HP found out that Lincoln was on supervised release but refused to consent to search (actually refused to answer the question). HP then called for a K9 team which arrived about 14 minutes into the stop. The K9 alerted and the car was searched. There was almost 2 pounds of methamphetamine in a large grocery bag behind the passenger seat.

Lincoln claimed that by calling for the K9 team, the HP unlawfully extended the traffic stop. He did not challenge the initial traffic stop.

The appellate court took up the question of prolonged detention. At the outset, it is not obvious that the traffic stop was prolonged longer than necessary to investigate the speeding violation. Police officers effectuating a lawful traffic stop may permissibly examine the driver’s license and proof of insurance, inquire about the purpose and itinerary of the trip, and run a computer check for outstanding warrants. Here, the K9 sniff occurred less than fifteen minutes from the beginning of the traffic stop, while Lincoln was still attempting to contact his girlfriend to provide proof of insurance. Moreover, HP had not yet issued any warning tickets. These circumstances suggest that the speeding investigation remained ongoing when the K9 sniff occurred.

But even assuming Lincoln was detained slightly longer than necessary to investigate the initial traffic violation, the Court finds that the detention was supported by reasonable suspicion. Lincoln’s argument might be more persuasive if the speeding violation was the sole basis for the traffic stop. But that is not the case. As described above, taskforce officers specifically instructed HP to stop Lincoln on a traffic violation, if possible, because they suspected he was transporting drugs. HP testified during the evidentiary hearing that he and other officers observed Lincoln’s apparent participation in a controlled drug transaction earlier that day. Lincoln was then recorded stating that he was enroute to meet the confidential source to make a second delivery. Those observations provided reasonable suspicion to believe Lincoln’s vehicle contained methamphetamines at the time of the traffic stop. Under the collective knowledge doctrine, that reasonable suspicion was imputed to HP. The collective knowledge doctrine applies so long as there is “some degree of communication” between the acting officer and the officer who has knowledge of the necessary facts. Moreover, the doctrine applies whether or not HP knew the specific investigative facts that gave rise to the other officers’ reasonable suspicion.

HP’s own observations during the traffic stop further bolstered this reasonable suspicion. An objective reasonable suspicion is based on a flexible, practical assessment of the “totality of the circumstances.” “[F]actors which by themselves may appear innocent, may in the aggregate rise to the level of reasonable suspicion,” and due weight must be given to the reasonable inferences drawn by an officer in light of his experience. At the evidentiary hearing, HP credibly testified that Lincoln exhibited nervous indicators, including by initially providing a credit card instead of a driver license. Lincoln also started his car engine (intentionally or not) in the middle of the traffic stop. HP also deemed it suspicious that Lincoln failed to disclose his probation status in response to being questioned whether he had recently been in trouble. While each of these facts alone may be insufficient, when coupled with the collective knowledge of the narcotics investigators, and considered in the light of HP’s experience, they amount to additional reasonable suspicion that justified prolonging the initial traffic stop.

Finally, the Court will address the lawfulness of the search of Defendant’s vehicle that followed the positive canine alert. HP had reasonable suspicion based on his communication with taskforce agents, coupled with his own observations, to prolong the traffic stop and conduct the sniff test. K9 quickly alerted to the odor of drugs within the vehicle. A K9 sniff of a vehicle’s exterior is not a “search” within the meaning of the Fourth Amendment. Nonetheless, once a K9 alerts to the presence of drugs within a vehicle under suspicion, probable cause to search the vehicle is established. Moreover, “[i]n a vehicle stop on a highway, the fact of the automobile’s potential mobility supplies the requisite exigency.” For these reasons, the Court found that HP had probable cause to search Defendant’s vehicle.

City of Mesquite v. Wagner (Texas 2023) 2023 Tex. App. LEXIS 3251

Excessive Force; Immunity; Unintentional Bite

Wagner was bitten during his apprehension after allegedly committing a burglary. The City claimed immunity and Wagner claimed the actions of LE including handler waived immunity.

In Texas, governmental immunity for official actions falls under statute section 101.021(2) of the Texas Tort Claims Act (TTCA). Wagner pleaded negligence as a theory of liability. The City responded by claiming statutory immunity under TTCA. The factors were: (1) Hander is entitled to official immunity and his immunity extends to the City, (2) the claimed injury was not caused by the use of tangible personal property, as required to invoke the waiver of immunity under the TTCA, (3) the claim arises from intentional, rather than, negligent acts, and (4) Handler was responding to an emergency at the time Wagner was injured.

Wagner pointed to a portion of handler’s report that stated: “As I passed by (other LE) and was watching the officers running in front of me, I failed to properly control my lead and K9 darted from my left side to my right side and bit Mr. Wagner. When K9 passed in front of me, I tripped over him and fell to the ground. . . . . Per my body-worn camera it appears approximately 10 seconds elapsed from the time K9 bit him to the time he was off the bite. . . . . The extremely dark environment, my belief that I had allowed enough room to safely get by Mr. Wagner, and my fall over K9 when he cut in front of me all contributed to this outcome. That being said, the conditions and distance are things I should have anticipated and accounted for.”

The appellate court addressed whether the actions of LE including handler waived the governmental immunity granted by statute. A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith. The appellate court only address the good faith prong of the test as they ruled it was dispositive. The appellate court held that in order to prove handler acted in good faith, the City had to prove that a reasonably prudent officer, under the same or similar circumstances, could have believed that no further safeguards other than those employed by handler were necessary in the handling of K9 during the pursuit. The City simply put forth handler’s affidavit in which he stated:

“I intentionally deployed K9 with an extended length lead as he and I were trained to do in situations such as this. A reasonable K9 officer in my place would have used a similar leash as this is standard practice in those circumstances. Therefore, my use of that leash was in good faith.”

This statement did not address what the circumstances were and the bare statement about the leash use was not sufficient to rise to the level of the court finding as a matter of law that handler acted in good faith. From his report, it was clear that there were additional events that unfolded that were not addressed by this statement.

In addition, the appellate court addressed whether the deployment of the K9 was the use of “personal property” by the handler which would show that handler was not deploying the K9 in good faith. Here, the injury was caused by K9 who was being directed by handler. K9 was assisting handler in his police duties by helping track and locate burglary suspects. Handler was the only person in possession of K9 when he bit Wagner; only the governmental unit was itself the user. Accepting Wagner’s pleadings as true and viewing the evidence presented in his favor, we conclude handler was using K9 within the meaning of the TTCA’s property waiver of immunity. Finally, handler could not use exigent circumstances as a way to avoid liability. Handler admitted in his memorandum, dated the day of the incident, that he “failed to properly control [his] lead” on K9, that he believed he “had allowed enough room to safely get by Wagner,” but that he should have “anticipated and accounted for” the “conditions and distance,” including the “extremely dark environment” and Wagner’s proximity. In addition, in his affidavit, attached to the City’s plea to the jurisdiction, handler stated K9 “tripped me as he cut in front of me while we were attempting to move to the left of the parties on the ground” and indicated that he “was unable to control K9 for several seconds. . . . (10 seconds or less).” Viewing this evidence in the light most favorable to Wagner, the appellate court concluded the evidence raises a fact issue as to whether handler acted with conscious indifference or reckless disregard for the safety of Wagner.

United States v. Moses (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 84247

Traffic Stop; Curtilage; Odor of Marijuana as Probable Cause

Moses was driving a vehicle with illegally tinted windows. When Moses passed by LE, LE smelled marijuana. LE turned around to follow Moses, suspecting the tint was illegal and that the driver might be DUI. LE ran the registration first. While that was happening, Moses pulled into a driveway. After Moses signaled his turn into the driveway but before he pulled in, LE activated his lights. LE pulled in behind Moses. LE learned that the vehicle was registered to that address. As LE approached, LE could smell marijuana and the scent got stronger as Moses rolled his window down. Moses had red eyes and as he gave LE his driver’s license, LE asked if Moses had any more weed in the vehicle. Moses pulled a baggie out of his pocket.

The vehicle was searched pursuant to LE’s detection of the odor of marijuana. In the center console was a gun which turned out to be stolen.

The area where Moses’s vehicle was parked was clearly visible from the yard of the neighbor to the left, from a vehicle approaching from the left, and from directly in front of the property on Hamilton Drive. LE could see through the shrubs into the neighbor’s yard on the right. Large portions of the shrubs were not covered with greenery, and the shrubs were 6 feet tall.

The court first addressed curtilage and held that the driveway where the vehicle parked was not curtilage. There are four factors relevant to the curtilage inquiry: [1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by. The central component of the inquiry is whether the area harbors intimate activity associated with the sanctity of a person’s home and the privacies of life. There was a picture in the opinion that was taken from LE’s body cam that showed the driveway was not blocked in at all and for packages to be delivered to the front porch, for example, the deliverer would have had to walk the length of the driveway to do so.  The court therefore held that the first factor weighed in favor of Moses (mostly because the government did not contest that issue); the second factor did not weigh in Moses’ favor because there was no enclosure; the third factor, usage of the area, was not in Moses’ favor; and the fourth factor, since no measures were taken to obstruct the view of the driveway by the residents, this indicated that the area was not curtilage. Since the factors over all weigh against Moses’ position, the area was found to not be curtilage.

The court went on to hold that since LE had a right to be on the driveway with the vehicle (as it was not in the curtilage), the automobile exception applied to the search and LE did not have to get a warrant to search the vehicle. In addition, the court held that the odor of marijuana establishes probable cause to search the vehicle.

United States v. Williams (6th Cir. Michigan 2023) 2023 U.S. App. LEXIS 12077

Traffic Stop; Reasonable Suspicion; Prolonged Detention

Williams was pulled over for following too closely. Bloom was his passenger. They both had hinky stories and behaved strangely. Bloom was found to be on probation.

What LE heard and saw during those initial seven minutes after the stop clears the not “particularly high” hurdle of reasonable suspicion. There were numerous oddities and inconsistencies regarding defendants’ travel. Before the stop began, LE knew the rental car had been in Houston the morning before, almost a 19-hour drive away. Driver told LE that he was on vacation in Indiana, but immediately thereafter produced a business card and explained that he was a laborer. Putting aside the peculiarity of this mixture of business and pleasure, LE knew that any R&R could only have lasted a few hours, given the distances involved. What is more, driver claimed to be headed to Detroit, but was several hours off the most direct route between Houston and that city. And then consider the fact that driver never proffered any information about Houston. Taking all of this together, driver’s “dubious travel plans” are a weighty factor in establishing reasonable suspicion to extend the stop.

Entitled to somewhat less weight, though still relevant to the overall reasonable suspicion inquiry, are the other facts that LE learned before re-entering her cruiser. They include that defendants were traveling between what LE testified to be a known source and destination for drug trafficking, their use of a rental car, and the oddity of passenger not making eye contact when he handed over his driver’s license. While this could be categorized as weak evidence, weak support is support nonetheless, particularly when considered as part of a single mosaic along with the   unusual travel evidence.

The discovery that Bloom was on probation cemented LE’s burgeoning reasonable suspicion. Probation ordinarily restricts an individual’s ability to move out of state, at least without prior notice to a probation officer. Recall that LE pulled defendants over roughly 35 miles from the border, on an interstate highway, headed deeper into Michigan. So she was within constitutional limits to exit her cruiser and to inquire of passenger whether he was in compliance with his probation conditions.

Subsequent conversations with Bloom and Williams added another layer to this mountain of reasonable suspicion, warranting LE’s extension of the stop through the point when K9 sniffed defendants’ car. Almost immediately, passenger added to the “dubious[ness]” of driver’s earlier statements when he told LE that he was going home to Saginaw, with a stop in Detroit—though driver had mentioned only Detroit. The picture became no clearer when LE asked for additional details about passenger’s travel history. He told her, without elaboration, that driver had picked him up “somewhere around the Indiana-Michigan border.” And when LE reapproached driver, he refused to answer whether passenger accompanied him in Indiana or where he had picked passenger up, instead becoming increasingly defensive. Putting all of these pieces together, LE had reasonable suspicion sufficient to delay the traffic stop a few minutes further while handler led his K-9 through a sniff of the car’s exterior. The search of the vehicle, which turned up controlled substances, was valid.

Wesley v. City of Lynchburg (Virginia 2023) 2023 U.S. Dist. LEXIS 87969

Excessive Force; Failure to Train; Failure to Supervise; Monell Liability

Wesley claimed he was attacked twice by K9s, both times unconstitutionally. He also alleged three other bites against others under similar circumstances that he claimed were also unconstitutional. He sued the department under a Monell liability theory.

Wesley has sufficiently alleged that the department condoned a practice so persistent and widespread as to constitute a custom or usage with the force of law. The Fourth Circuit recognizes custom by condonation, and “[u]nder this theory of liability, a city violates § 1983 if municipal policymakers fail ‘to put a stop to or correct a widespread pattern of unconstitutional conduct.'” Further, the Fourth Circuit has elaborated that, for such a claim to survive a motion to dismiss, “[t]he recitation of facts need not be particularly detailed, and the chance of success need not be particularly high.” Wesley has alleged three examples that could be construed as excessive use of force by canines similar enough to Wesley’s alleged two experiences that “municipal employees could reasonably infer from [them] tacit approval of the conduct at issue.” Indeed, this Court previously found, in one of the examples Wesley provides—that “[o]n July 18, 2018, LPD officers used a police canine against Larry Booker without justification, thereby causing him injuries”—”Booker ha[d] stated a plausible claim based on an unconstitutional custom of excessive use of force.” And courts within the Fourth Circuit have allowed claims regarding an unconstitutional custom or practice by police to proceed when plaintiffs have alleged a similar number of incidents demonstrating such a custom or practice. Thus, Wesley’s § 1983 claims brought based on a theory of unconstitutional custom or policy will survive the motion to dismiss.

Wesley has also sufficiently alleged facts supporting Monell liability based on a failure to train theory. For such a claim to survive at the motion to dismiss stage, factual allegations must support that “city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights.” If so, “the city may be deemed deliberately indifferent if the policymakers choose to retain that program.” Wesley alleges that “[t]he LPD maintains a facially constitutional policy that limits t[he] use of police canines to cases in which a physical threat or violence is imminent,” but “LPD officers are not adequately trained to comply with their own facially constitutional use of force policy.” The Fourth Circuit has recognized that training deficiencies can include “tacit authorizations” of unconstitutional conduct. The City did not specifically challenge the failure to train claim, and Wesley’s allegations, if true, support reasonable inferences that the City was “put on notice that a new [training] program is called for.” Thus, his failure to train claims will survive the motion to dismiss.

The Court turns next to Wesley’s failure to discipline claim. “When addressing a failure to discipline claim, ‘an unconstitutional policy or custom based on evidence of a failure to discipline generally requires a showing of a pattern of misconduct in which there has been such a failure.'” The City did not specifically challenge this claim either. And the Court concludes Wesley has sufficiently alleged that officers “were tacitly encouraged to continue self-developed practices of [excessive force] by the deliberate failure of responsible municipal officials to exercise discipline or corrective supervision to halt the widespread, known practices.” Thus, his failure to discipline claims will also survive the motion to dismiss.

Further, Wesley has alleged sufficient facts for claims based in the City’s ratification of the officers’ actions, his final theory of Monell liability. Wesley contends that the City ratified its officers’ acts by determining they were “within policy”. “[I]n enacting § 1983, Congress did not intend to impose liability on a municipality unless deliberate action attributable to the municipality itself is the ‘moving force’ behind the plaintiff’s deprivation of federal rights.” And “being the ‘moving force’ does not necessitate that a plaintiff allege that the [municipality] have knowledge of, or involvement in, the alleged constitutional violation from the outset.” Though the City contends that it cannot have been a moving force behind the alleged excessive force in this case because the LPD’s alleged determination occurred after the use of force, the Fourth Circuit’s precedent forecloses the argument. There, the Fourth Circuit held that a school board, in approving a suspension for a student allegedly uttering protected speech, acted as the “‘moving force’ behind the constitutional violation.” Similarly here, Wesley alleges that the LPD Chief, the LPD’s final policymaker, “conducted a review of the use of force against [Wesley] . . . and concluded that all of its officers acted within LPD policy.”

United States v. Vanderpool (Kentucky 2023) 2023 U.S. Dist. LEXIS 88957

Traffic Stop; Prolonged Detention; Reliability Foundation; Alert as Probable Cause; Collective Knowledge Doctrine

During a drug trafficking investigation, LE saw Vanderpool meeting with someone who was a target of the investigation. In addition, LE saw Vanderpool drop off a passenger while stopped in the street, a common behavior of an individual engaged in a drug transaction. Uniforms were asked to follow Vanderpool and stop him for any observed traffic violations.

While following, LE learned that the vehicle was not registered to Vanderpool, but showed an arrest warrant for the owner of the vehicle and a notation to check for insurance as none was on file. After Vanderpool failed to signal a turn twice, a traffic stop was performed. As LE approached, Vanderpool reached down behind the passenger seat, reach under the seat and also reach into the center console. These motions are consistent with someone hiding something or retrieving a weapon. Vanderpool was ordered out of the vehicle and refused; two LE removed him.

Vanderpool gave LE an Ohio driver’s license and stated that he lived at the residence for the last two years where he was seen earlier in the day. However, he never got a Kentucky license. He also failed to reinstate his Ohio license. Handler then had his K9 sniff the vehicle and the K9 alerted.  LE found $26,000 cash, and a cornucopia of controlled substances, including LSD, MDMA, DMT, and ketamine.

The first question is whether the K9 sniff of Vanderpool’s vehicle happened “within the proper duration and scope of a traffic stop.” At the beginning of the traffic stop, the officers’ actions were within the proper scope and duration of the stop. The officers initiated the traffic stop of Vanderpool because he had failed to signal twice leaving the Kroger parking lot. Handler testified that Vanderpool was removed from the vehicle because he saw Vanderpool making movements through the car windows and was concerned for his safety. Following Vanderpool’s removal, LE ran Vanderpool’s license through dispatch. But after completing those activities, handler initiated the K9 sniff. LE was present for the duration of the K9 sniff, but did not do anything related to the underlying traffic stop while the sniff was occurring. Therefore, there was no dead time while LE was completing a task related to the traffic violation during which the K9 sniff could have happened concurrently. Because the K9 sniff did not happen concurrently with anything related to the traffic stop, it prolonged the duration of the stop. Instead of continuing with normal activities related to the traffic stop, the officers “had abandoned the traffic stop to investigate [Vanderpool’s] drug-related activities, an investigation that required a source of reasonable suspicion unrelated to the traffic stop.”

The appellate court went on to hold that the officers had reasonable suspicion to continue the stop. A police officer may briefly detain “a person or property for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity has occurred or is about to occur. Reasonable suspicion requires more than a hunch, but less than a preponderance of the evidence. The Sixth Circuit evaluates whether an officer had reasonable suspicion to support detention by examining the “totality of the circumstances.” A court must “determine whether the individual factors, taken as a whole, give rise to reasonable suspicion, even if each individual factor is entirely consistent with innocent behavior when examined separately.”

Here, the Government points out that the DEA had shared information with LE and handler Vanderpool’s suspected drug transactions. This alone would “cause the officer[s] to have a  articulable suspicion that criminal activity [was] afoot.” Second, handler observed Vanderpool digging around in the passenger side, center console, and backseat of his vehicle indicating that he was either searching for a weapon or trying to hide evidence. The combination of the information from the ongoing drug trafficking investigation combined with Vanderpool’s activity inside his car after the officers stopped his vehicle supports a finding of reasonable suspicion to continue his detention.

The court then moved on to the K9 sniff. Vanderpool’s second argument for suppressing the evidence found in his vehicle is that the K9  sniff did not provide probable cause for the officers to search the vehicle. A K9’s “alert” is an untrained response to an odor the dog is trained to detect. It is a behavioral change such as a change in breathing, gait, tail wagging, or body posture. In contrast, a K9’s “indication” is a trained response to an odor the K9 is trained to detect. An indication can be passive, like sitting or lying down at the spot where the K9 smells the odor, or active, like scratching or biting to try and get to the source of the odor.

Vanderpool argues that the K9 either did not alert, or that the circumstances of the sniff made the alert unreliable. The argument that the K- did not alert stems from Vanderpool’s expert’s report, which simply said, “K9  did not alert during the sniff of Defendant Vanderpool’s vehicle.” Defense expert relied on video footage from handler’s body camera in coming to that conclusion and was not present for the search. As the Government’s rebuttal expert John Brannon noted, the K9’s handler is in a much better position to determine when the K9 exhibits a change of behavior that could signal an alert.

Vanderpool also challenges the circumstances of the sniff. Specifically, he says that the K9 showed no narrowing or intensity during the sniff, and had to be redirected back toward the vehicle because he kept pulling away to go in some other direction. When assessing the reliability of drug dog alerts, the Sixth Circuit focuses on the dog’s accuracy rate and whether there is a history of false alerts. Here, the testimony showed that the K9 had never had a false negative in the field, and his accuracy rate is greater than 95%. Therefore, his alert in this case was held to be reliable and provided probable cause to search the vehicle.

Vanderpool next argues that the K9’s indication rate fell from 80% to 4% in the time after completing his certification, indicating that the K9 was not completing “maintenance training” to maintain its reliability. He suggests that allowing police to conduct searches based only on a K9 alert, without an indication, would allow police to act on hunches. But the Supreme Court has said that an alert is sufficient to provide probable cause. Vanderpool does not provide any case law that requires K9 units to indicate at a certain threshold to be reliable. Instead, he simply asserts that the K9 did not receive “proper” maintenance training to give objective indications, and therefore he cannot provide the officers with information to establish probable cause. While Vanderpool did provide an expert witness in K9 training, the expert testified that he does not follow the standards set by national organizations like NAPWDA because he does not agree with their methodology. Instead, his opinions were based on standards from the German police. Further, the expert has not served in a law enforcement role since 1991, and could not identify any law enforcement organizations that used his preferred methods. In contrast, the United States sufficiently rebutted the expert’s testimony with that of their own expert, a former K-9 handler with experience as recent as 2016. This expert also testified to the reliability of NAPWDA standards.

Until the Supreme Court or the Sixth Circuit requires K-9 units to indicate, or otherwise holds that a K9 alert is not enough to establish probable cause, this Court must find based on the facts presented and existing case law that the K9 alert was sufficient. The fact that the K9 alerted to narcotics in Vanderpool’s vehicle, rather than indicating, is not sufficient to grant his Motion to Suppress.

United States v. Frater (Nebraska 2023) 2023 U.S. Dist. LEXIS 89950

Traffic Stop; Prolonged Detention; Reasonable Suspicion

Traffic stop for lane violations by handler. The car was a rental and Frater was from Canada. Frater fumbled around looking for the rental agreement even though it was in his lap the whole time. Frater claimed to have flown into California and traveled to Las Vegas. The rental contract said the car was rented in LA and it was due in four days at La Guardia. Frater said he would fly from New York home to Canada. Handler noted that there was evidence that Frater was driving hard (fast food containers, etc.). Handler had Frater come with him to his cruiser while he completed his warning citation.

Handler thought all of this was suspicious, so he ran his K9 around the vehicle while pausing writing the citation. K9 alerted and back up searched the car, finding controlled substances.

Handler claimed that the purpose for the traffic stop had not been completed by the time the K9 sniff occurred. Even though handler acknowledged that he had all the information necessary to complete the citation, it appears from the video that handler was still in the process of completing the warning citation when the K9 sniff occurred. An officer cannot delay completing a citation just to complete a k9 sniff without reasonable suspicion. In this case, however, by the time the drug K9 was deployed, handler had reasonable suspicion of criminal activity. Mainly, the travel itinerary did not make sense unless driver was involved in nefarious activities. This, in conjunction with the handler’s many years of experience, meant that handler had additional reasonable suspicion to extend the stop to perform a K9 sniff.

United States v. Plancarte (Wisconsin 2023) 2023 U.S. Dist. LEXIS 90338

Traffic Stop; Marijuana Legality

Plancarte was riding in the backseat of a Buick in an area of La Crosse, Wisconsin, known for the sale and purchase of drugs. Because of the way the driver of the vehicle looked and the way the vehicle was moving, LE directed officers to stop the vehicle for violating a prohibition on tinted windows. Once stopped, the passenger in the vehicle further provided officers inconsistent answers and behaved suspiciously. Thus, when handler and his K9 partner arrived on the scene, he commanded K9 to sniff the Buick, and K9 gave a positive alert for drugs at the trunk of the Buick. At that point, officers opened the trunk and recovered a backpack that contained 10.9 pounds of methamphetamine.

First, the trial court found that an alert from an adequately trained and reliable K9 supports a finding of probable cause. The trial court found that the evidence presented at the hearing showed that K9 was adequately trained and reliable in the field after comparing K9’s 90% success rate in the field to the 59% success rate of the dog challenged in a previous case.

The court then moved on to the argument that K9 could have been alerting on a legal substance (hemp and THC had been decriminalized/legalized prior to this case). This K9 had been trained to detect marijuana, but had never alerted on hemp and maybe alerted to CBD oil once; this team had not encountered anyone possessing only hemp or legal CBD; and in handler’s experience, his cases seldom involved unlawful marijuana. The evidence of what handler considered in deciding to stop and search the Buick were compelling: the driver’s reaction to seeing a state trooper on the interstate; the Buick was driving from a methamphetamine source in an area in Minneapolis, Minnesota, to a well-known drug zone in La Crosse, Wisconsin; the unusual maneuvers by the vehicle that were consistent with a drug courier looking for or waiting for a contact; and once the vehicle was pulled over, the passenger’s inconsistent answers and nervousness. Thus, the court concluded that even accounting for the “slim possibility” K9 might be alerting to hemp or CBD oil, the other information before handler provided probable cause to conduct a search, noting that “[p]robable cause does not require officers to rule out a suspect’s innocent explanation for suspicious facts.”

United States v. Gutierrez (11th Cir. Florida 2023) 2023 U.S. App. LEXIS 12811 (Unpub.)

Traffic Stop; Prolonged Detention

LE stopped Gutierrez and his wife in a semi-truck towing a trailer of car because the license plate was not visible as required by Florida law. The stop was at 8:55 and LE started writing the citation at 9:01. The citation took longer than usual because the truck, trailer, and license were from 3 different states. During this time, back up arrived and called for a K9 team. The K9 team arrived at 9:12 while the citation was still being processed. This officer paused from the citation to tell the K9 team what was happening. The K9 team sniffed the car and the K9 alerted while the citation was still being prepared. Contraband was found in a tool box on the driver’s side of the truck.

The appellate court first held that there was reasonable suspicion for the initial stop. Gutierrez argued that there was not reasonable suspicion that his license plate was unlawfully obscured. The district court found that the license plate was obscured. The district court examined a photograph of the license plate from LE’s dash-camera and concluded that at least part of one number was blocked. And it credited LE’s testimony that, from his perspective when Gutierrez drove by, as opposed to the more favorable angle the dash-camera offered, the license plate was even less visible. Gutierrez failed to explain why the district court’s finding was clearly erroneous.

Gutierrez also argued that LE unlawfully extended the stop to allow a K9 sniff. He contended that the tasks relevant to the license-plate violation for which he was stopped were completed at 9:01 a.m., when, according to Gutierrez, LE finished preparing the written warning. He argued that he should have been released then but was instead detained for another eleven minutes until a K9 came and triggered the search that produced the evidence used against him at trial.

The appellate court held that Gutierrez misread the record. As the district court explained, LE started preparing the written warning at 9:01 a.m. but was still working on it when the K9 arrived. He did not extend the stop after the completion of the written warning; the warning was incomplete when the K9 detected the drugs in Gutierrez’s car. Gutierrez’s brief did not acknowledge this finding, let alone explain why it was clearly erroneous, so his sole challenge to the suppression ruling failed.

United States v. $200,000 in U.S. Currency (California 2023) 2023 U.S. Dist. LEXIS 92896

Currency Sniff; Reliability Foundation

During an involved and convoluted investigation, LE determined that Claimant (the party that wants the money and therefore has to be able to rebut the government’s case that the proceeds were not from the illicit sales of controlled substances) via an informant was involved in drug trafficking. He was stopped and found to have $200,000 in cash which was seized. Later, a K9 alerted on the money. Claimant filed a motion to get the money back.

Among other things, the Claimant challenged the validity of the K9 sniff, asserting that the Ninth Circuit  has cast significant doubt on the reliability of such searches:

“If greater than seventy-five percent of all circulated currency in Los Angeles is contaminated with drug residue, it is extremely likely a narcotics detection dog will positively alert when present with a large sum of currency. . . [and thus] the probative value of a positive dog alert in currency forfeiture cases in Los Angeles is significantly diminished.”

The government cited two more recent cases, one from the Ninth Circuit and one from a district court within. Indeed, in United States v. 42,500.00 in U.S. Currency, 283 F.3d 977, 982 (9th Cir. 2002), the Ninth Circuit determined that “a sophisticated dog alert, where the dog reacts only to ephemeral by-products of narcotics and not to commonly circulated currency, is an important factor in determining probable cause.” And in United States v. $225,800.00 in U.S. Currency, No. CV 03-6582 GPS (CWX) 2004 U.S. Dist. LEXIS 35131, 2004 WL 7333425, at *3 (C.D. Cal. Sept. 27, 2004), the district court held that a “dispute over the nature of the canine alert is a genuine issue of material fact that defeats summary judgment.”  At the motion to dismiss stage, this battle of the caselaw is, again, premature. The K9 alert is but one piece of evidence that, in the aggregate, is sufficient to satisfy the government’s burden. This does not mean that Claimants’ contention about the efficacy of K9 narcotics detection is incorrect—it is just early.

Moore v. State (Indiana 2023) 2023 Ind. App. LEXIS 159

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

The car was stopped because the plate was expired and on the wrong vehicle. Moore was the driver and LE immediately smelled the odor of marijuana. During a search of the vehicle, cash and marijuana were found.

Moore claimed that the stop was prolonged without justification. Moore conceded that LE had the right to stop him based on the plate violations, but claimed that LE did not have additional reasonable suspicion to search the vehicle.

The car was a rental and Moore attempted to obtain the registration information. He was very nervous and pale and his hands were shaking. The court held that this information, along with the detection of an odor of marijuana, coupled with LE’s extensive experience with marijuana, meant that LE had additional reasonable suspicion to detain Moore.

Moore then asserted there is no distinction between the odor of legal and illegal cannabis-derived substances and argues that the mere odor of marijuana is thus no longer a sufficient basis for a warrantless search of a vehicle. The appellate court held that they were required to apply the test of “fair probability” to the facts before us. Although it was equally possible that the strong odor emanating from the vehicle and detected by LE was hemp as it was marijuana, these circumstances created a fair probability—that is, “a substantial chance”—that the vehicle contained contraband. Therefore, LE’s detection of the odor of marijuana immediately upon his arrival at the open window of the car driven by Moore provided probable cause for him to search the car.

United States v. Vining (Michigan 2023) 2023 U.S. Dist. LEXIS 93677

Consensual Encounter v. Detention v. Arrest; Abandonment

Vining arrived at the Greyhound Bus Station (“the Station”) in Detroit, Michigan carrying a bag. Vining was first spotted by a detective working a drug interdiction operation, who was stationed in a covert location near the front entrance of the Station. Detective saw Vining, a Black man wearing a yellow construction vest, hurrying into the Station after he exited a vehicle that pulled up to the front door. Detective communicated his observations and a description of Vining to officers inside the Station. From inside the Station, FBI Agent observed Vining as he “quickly walked into the bus station carrying a bag and looked around.” According to Agent, Vining’s “last-minute arrival” increased the officers’ suspicion, “as this is a common tactic used by narcotics traffickers to limit their time to be observed by law enforcement.” Consistent with security video footage presented at the evidentiary hearing, Agent testified that after Vining entered the Station, he witnessed Vining approach the front window of the building and knock on the glass, attempting to attract the attention of someone outside. Agent communicated this observation to the other officers who had been watching Vining since Detective first reported his late arrival.

Based on these observations, two officers approached Vining, who then allegedly set his bag down “near the exit door from the interior of the bus station . . . and said he was going to go get a ticket.” The officers attempted to talk to Vining as he walked to the ticket counter, but Vining “kept repeating the same question and was looking all around the bus station.” Vining did not respond to the officers’ questions as to why he left his bag by the door and why he needed a ticket when the officers could see he already had one in his hand. According to the officers, Vining appeared nervous and evasive, behavior they found “consistent with subjects who are attempting to traffic narcotics when they come in contact with law enforcement.”

At that point the officers made the decision to “detain” Vining by placing him in handcuffs and asked him whether he had any illegal narcotics in his bag. Vining responded that he had “approximately 5 pounds of Marijuana.” The officers then moved Vining to a nonpublic area of the Station used by police officers for surveillance, interrogations, searches, and detention of suspects and arrestees.

After Vining was handcuffed and moved to the nonpublic area, handler retrieved a narcotics K9 stationed at the scene to conduct a sniff of the bag. The K9 positively alerted to the presence of narcotics. Handler proceeded to search Vining’s bag and found a total of 2,156 grams of methamphetamine and 285 grams of fentanyl.

In his criminal case, Vining filed a motion to suppress, claiming that LE did not have reasonable suspicion to detain him, and searched his bag without probable cause.

The appellate court first addressed the issue of the detention and whether it was a seizure that would implicate the Fourth Amendment. The court held that the initial contact was a consensual encounter (a reasonable suspicion standard) but the handcuffing and moving Vining to another location was a de-facto arrest which required them to have probable cause. The court held they had reasonable suspicion because of the inculpatory statement by Vining that he was in possession of 5 pounds of marijuana.

The court moved on to whether the K9 alert was probable cause and held it was. However, it was then searched without a warrant and the government bears the burden of establishing a legal exception for searching without a warrant. The government first offered that Vining had abandoned his bag when he put it down and walked away from it. However, the court held, Vining made no statements regarding an intention to abandon the bag or a denial of ownership or possession of the bag. Because the contact moved swiftly to handcuffing and moving Vining to another area, he had no meaningful opportunity to abandon the bag.

The government then asserted that the bag was searched incident to arrest. However, the court did not buy this argument. In this case, Vining’s bag was nowhere near his immediate control at the time he was arrested nor when the bag was searched. Vining left his bag in the bus loading area from the moment he was approached by the officers. By the time he was temporarily detained, and then arrested, he had been moved to the nonpublic area and long separated from his bag. At that point, the officers had independently retrieved Vining’s bag and taken full control of it. There was no chance that Vining could access the bag either to retrieve a weapon or destroy evidence. Under these facts, the Government cannot rely on the search incident to arrest exception to justify the warrantless search. The evidence was suppressed.

N.J. in re S.H. (New Jersey 2023) 2023 N.J. Super. Unpub. LEXIS 840

Traffic Stop; Prolonged Detention

A vehicle in which S.H. was a back seat passenger was stopped for driving a vehicle with heavily tinted windows. However, as the vehicle was yielding to LE, LE could see occupants in the car moving around. As LE approached, he detected the odor of raw marijuana. The driver could only provide LE with a temporary registration and identifying information. Another officer arrived and indicated that he, too, could smell marijuana and that there was an issue with firearms in this vehicle because there was a shooting the night before of a friend of S.H. and there was talk of a retaliation shooting. Consent was denied by both S.H. and the driver so LE called for a K9 team. About 20 minutes later, the K9 team arrived and alerted on the vehicle. A search revealed a couple of small bags of marijuana and a handgun.

The only issue legally raised and addressed by the appellate court was whether the stop was unduly prolonged waiting for the K9 team. Here, the trial court believed LE when they testified they detected the odor of marijuana which then provided the independent reasonable suspicion to further investigate by requesting a K9 team.

Hale v. Commonwealth (Kentucky 2023) 2023 Ky. App. Unpub. LEXIS 291

Traffic Stop; Prolonged Detention

Traffic stop for violations. During the time the citing officer was working on the citation, another officer said to take your time, we have a K9 coming. However, the citation was finished and served and the driver told he was free to go. When the citing officer was reminded that they were waiting for a K9 team, he went back to Hale and ultimately told him to hang on a minute. This was also because Hale found his insurance and wanted to have that portion of the citation voided. LE went back to his car to write a new citation. The K9 team arrived and alerted before the second citation was completed.

Hale contended the traffic stop was prolonged by another officer delaying the write-up of the original citation to allow time for the K9 unit’s arrival and further detaining him after the original citation was provided to him. The Commonwealth countered that the traffic citation and the drug investigation were pursued concurrently without any prolongment since the K9 unit’s alert and the subsequent vehicular search occurred while LE was reissuing the traffic citation to void the no proof of insurance charge.

The appellate court was particularly dismayed by the statement to slow down because there was a K9 coming to the scene. This indicated that there may have been some manipulation of the length of the citation investigation in order to get a K9 on scene. The court that even if this represented a de minimus delay, that was enough to find that the stop was unduly prolonged. In addition, the court found the citation investigation was over when Hale was told he was free to go. Based on these concerning issues, the court found the traffic stop was unduly prolonged.

The court then addressed the Commonwealth’s position that they had reasonable suspicion of drug trafficking prior to the stop. However, the court held, LE observed Hale make two brief stops in areas associated with drug activity during daylight hours. During these stops, Hale was respectively observed speaking with an unknown male subject, both inside and outside of his vehicle, and later entering a residence wherein he repeatedly locked his vehicle. While conceding he did not witness anything transactional, LE testified the short nature of Hale’s stops was consistent with drug trafficking activity in the area and based on his experience as narcotics investigator. Additionally, Hale’s repetitive locking of his vehicle was viewed by LE as “odd” and “not a common thing to do.”

The appellate court agreed with the trial court that LE’s prior observations of Hale did not amount to reasonable suspicion of drug activity. Hale’s observed behavior was not inherently indicative of criminality, and the only factor which provided some indicia of criminality was the fact it occurred in an area of suspected drug activity. However, even in that context, it was insufficient.

The Commonwealth also pointed out that Hale was showing signs of excessive nervousness and was untruthful about his travels. However, the court held that these two factors did not tip the scales enough for LE to have reasonable suspicion of drug trafficking that would have allowed an extension of the stop.

State v. Thobe (Ohio 2023) 2023-Ohio-1431

Traffic Stop; Prolonged Detention

There was an extensive drug trafficking investigation into Thobe. Based on this and a patrolman’s curiosity, Thobe was stopped for loud exhaust and an illegible license plate. As Thobe was coming to a stop, patrolman radio’d for a K9 team to respond. The patrolman immediately got out and contacted Thobe. He obtained Thobe’s documents and spoke to Thobe about the exhaust and the license plate. Thobe volunteered he was supposed to have an interlock device and was perhaps suspended as well (wording not clear in opinion). About 6 minutes into the stop, patrolman went back to his cruiser to write up the citation. There was an indication that the wrong plate was on the vehicle and that required additional discussion with Thobe. Four minutes later, patrolman started working on the citation again. He completed one citation and started on another when the K9 team arrived.   While the patrolman was still working on the citation, handler had his K9 sniff the vehicle. The K9 alerted before the citation was completed. Contraband was found.

The appellate court cited Rodriguez: “The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.” There was no indication in this case that time was added to the stop. At each stage of Patrolman’s interaction with Thobe, he learned information that reasonably required further investigation such as Thobe’s driving privileges and his license plate issue. “Beyond determining whether to issue a traffic ticket, an officer’s mission during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Therefore, there was no prolonged detention.

United States v. Hamlet (West Virginia 2023) 2023 U.S. Dist. LEXIS 76568

Traffic Stop; Prolonged Detention; Probable Cause; Inevitable Discovery Doctrine

An experienced drug interdiction officer saw a vehicle, in which Hamlet was the front seat passenger, speeding and missing one headlight. LE pulled out and followed the car with lights and siren. The driver continued for about 5 minutes before pulling over. As it pulled over, the three occupants were scrabbling around in the car. LE first ran the plate and found that the car was registered to a known drug offender and this heightened LE’s suspicion that the occupant(s) could be involved in drug crimes.

When LE approached and the driver rolled down the window, LE could smell the slight odor of marijuana. As she looked into the passenger compartment, LE saw the barrel of a handgun in Hamlet’s pocket. The other two occupants had arrestable warrants. At some time later, a K9 team responded and alerted.

The one issue raised by Hamlet in his appeal that is relevant to our discussion here is that he claimed that the stop was unduly prolonged while waiting for a K9 to respond. However, the appellate court held that here, the minor delay caused by K9 unit was not unreasonable. LE was entitled to detain the vehicle and its occupants for as long as it took to perform the traditional incidents of a routine traffic stop, including determining the status of the occupants’ outstanding warrants. While LE was able to obtain information about the occupants’ criminal histories relatively quickly through NCIC checks, the out-of-state hit requests for other occupants required additional processing time. It is unclear when exactly LE received the hit request results, but she had not yet received them when she called for a canine unit at 9:13 PM. Thus, she was still performing the ordinary tasks associated with a traffic stop when she requested a canine sniff. Approximately thirty (30) minutes later the K9 unit arrived and quickly performed a perimeter search. The K9 alerted on the passenger side, where Hamlet had been seated and the Igloo cooler was located.

Given this timeline of events, LE did not unreasonably delay Hamlet’s detention for the sole purpose of conducting a canine sniff. Instead, the interaction was extended in the ordinary course of the traffic stop. Any delay related to the canine sniff lasted, at a maximum, thirty (30) to thirty (35) minutes, the time it took for the canine unit to arrive on scene and perform a perimeter sniff. This is not an unreasonable amount of time given that the troopers continued to diligently pursue their investigation during the wait.  Accordingly, the extension of the traffic stop until the K9 unit arrived was reasonable, and the K9’s positive alert provided additional probable cause to search the vehicle.

Hamlet also contends that because he was not actually prohibited from possessing a firearm, he should have been permitted to leave with the Saturn while the hit requests for the other occupants were processed. However, LE reasonably believed, based on the information in his Hamlet Triple III report and NCIC check, that he was a person prohibited from possessing a firearm and that there was probable cause for his immediate arrest.

Probable cause to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed an offense.

Based on Hamlet’s prior firearm convictions and the Triple III report’s warning that he was disqualified from possessing a firearm, LE had an objectively reasonable belief that Hamlet was committing a crime by possessing a handgun. Because probable cause existed for Hamlet’s arrest, any delay in his detention caused minimal intrusion upon his rights. And, even if no probable cause existed for his arrest, LE had a reasonable suspicion to continue Hamlet’s detention to investigate ongoing narcotics activity. It would have been nonsensical for her to allow Hamlet to leave in the vehicle during an investigation involving that vehicle and before she could determine whether the other occupants would be arrested on out-of-state warrants.

Finally, the appellate court held that the inevitable discovery doctrine would have applied. The Government argued that the disputed evidence would have been inevitably discovered because LE had probable cause to arrest all three of the occupants and the vehicle would have been searched then towed. Hamlet, however, asserted that the inevitable discovery doctrine does not apply in this case because LE lacked probable cause to arrest Hamlet and could have permitted him to leave the scene in the Saturn rather than have it towed.

Hamlet’s argument was unpersuasive. LE testified that upon receiving Hamlet’s NCIC and Triple III reports, she decided to arrest him for the unlawful possession of a firearm. As discussed above, she had probable cause for this arrest. LE also testified that, even if Hamlet had not been arrested, she would not have permitted Hamlet to leave in the vehicle due to its defective equipment. Thus, it is inevitable that the vehicle would have been towed and that the troopers would have found the controlled substances in the Igloo cooler during their mandatory inventory search.

State v. Rodriguez (Minnesota 2023) 2023 Minn. App. Unpub. LEXIS 369

Traffic Stop; Reasonable Suspicion; Prolonged Detention

Rodriguez was reported as driving erratically. LE caught up to him and saw him traveling at a slow speed and cross both the fog and lane-dividing lines. LE pulled Rodriguez over. He claimed he was looking for an address. Rodriguez’ phone had area motels on the screen.

There was a discussion between LE officers where they said they didn’t think Rodriguez was under the influence and then called for a K9 team. While waiting, LE had Rodriguez step out of the car and had him complete a PAS with registered a 0.0. LE then directed Rodriguez to open his trunk which he did. There were some indicators that could mean Rodriguez was trafficking drugs. About 30 minutes later, the K9 team arrived and alerted. A search of the car revealed cocaine, methamphetamine and cash.

The testimony at the trial court level was that LE determined within four minutes that the driver was sober, but then called for a K9 team. This is a prolonged detention as there was no suspicion that the driver was under the influence. The appellate court called the suspicions that Rodriguez was involved in drug trafficking a hunch and granted the motion to suppress.

United States v. Jenkins (West Virginia 2023) 2023 U.S. Dist. LEXIS 74739

Traffic Stop; Reliability Foundation; Inevitable Discovery Doctrine

There was a traffic stop of Jenkins which was not challenged. The parties also agreed that LE had reasonable suspicion that Jenkins was armed and therefore a Terry frisk was justified. However, the court held that LE did not conduct the frisk appropriately (manipulated an object and the pocket it was in prior to removing it). Therefore, the evidence was suppressed.

On appeal, the government asserted the inevitable discovery doctrine because after the Terry frisk, a K9 alerted on the car. However, the government did not produce any evidence into the record of the K9’s reliability.

The appellate court held that the inevitable discovery doctrine does not apply because the Government has produced no evidence of the narcotics dog’s reliability.