March 2021 Update for Meyer’s K9 Law (Volume 2. No. 3)

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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from February 2021. (A caution here: some cases are unpublished (Unpub.) 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. We strive to provide up to date information that is targeted for K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has not only a review of the PSD relevant cases for the month, but often has an article that explores a specific issue in more depth. If you would like me to address a particular issue, please feel free to email, text or call me.

The return of full-time courts this month is reflected in the amount of cases that were available to review. While I usually review 20 to 25 cases, this month it was almost 40 (I review about 100 cases and about 10% go into this update). To get this out on time, I have not provided an article. However, California officers should take a look at People v. Van Steen (which puts forth a theory on marijuana cases in the 3rd District that I have been talking about and one that I think will be helpful to you) and Oregon officers should review State v. Soto-Navarro (it discusses a theory that is specific to Oregon; sniffs are limited not only by the duration and diligent pursuit of the mission of a traffic stop but also by the subject matter of a traffic stop). Both cases are reviewed for you in this update.

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

Corbarrubia v. Edwards (2021) 2021 U.S. Dist. LEXIS 36768 – Excessive Force; Heck Doctrine; Qualified Immunity
Commonwealth v. Grooms (Pennsylvania 2021) 2021 Pa. Super. LEXIS 79 – Smell of Marijuana as Probable Cause
Clemmons v. Cothron (2021) 2021 U.S. Dist. LEXIS 33469 – Heck Doctrine; Prolonged Detention; Qualified Immunity
Hope v. Taylor (2021) 2021 U.S. Dist. LEXIS 33281 – Accidental/Unintentional Bite; Qualified Immunity: Monell Liability
State v. Anderson (Louisiana 2021) 2021 La. App. LEXIS 211 – Smell of Marijuana as Probable Cause; Terry Frisk; Detention v. Arrest
Commonwealth v. Becker (Virginia 2021) 2021 Va. Cir. LEXIS 31 – Smell of Marijuana as Probable Cause
State v. Landor (Louisiana 2021) 2021 La. App. LEXIS 196 – Traffic Stop; Smell of Marijuana as Probable Cause
U.S. v. Williams (2021) 2021 U.S. Dist. LEXIS 31187 – Traffic Stop; Smell of Marijuana as Probable Cause
Scheck v. State (Maryland 2021) Md. App. LEXIS 137 – Traffic Stop; Smell of Marijuana as Probable Cause
Commonwealth v. Santos-Medina (Massachusetts 2021) 2021 Mass. App. LEXIS 114 – Smell of Marijuana as Probable Cause; Consent
Johnson v. Nocco (2021) 2021 U.S. Dist. LEXIS 30159 – Probable Cause for Arrest; Passenger ID; Qualified Immunity
Vargas v. Whatcom County S.O. (2021) 2021 U.S. Dist. LEXIS 28651 – Probable Cause for Arrest; Passenger ID; Qualified Immunity
U.S. v. Tuschoff (2021) 2021 U.S. Dist. LEXIS 29515 – Collective Knowledge Doctrine; Prolonged Detention; Ordering Out of Vehicle
People v. Sanchez (Illinois 2021) 2021 IL App (3d) 170140 – Traffic Stop; Prolonged Detention
Commonwealth v. Shaw (Pennsylvania 2021) 2021 Pa. Super. LEXIS 62 – Smell of Marijuana as Probable Cause
Jones v. United States (2021) 2021 U.S. Dist. LEXIS 28921 – Traffic Stop; Prolonged Detention
State v. Williams (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 260 – Traffic Stop; Smell of Marijuana as Probable Cause; Search of Container
Hyatt v. Miller (2021) 2021 U.S. Dist. LEXIS 27726 – Traffic Stop; Civil Rights Violations; False Arrest; Strip Search
United States v. Sims (2021) 2021 U.S. Dist. LEXIS 27119 – Reliability Foundation; Prolonged Detention; Collective Knowledge Doctrine
Russell v. Lewis (2021) 2021 U.S. Dist. LEXIS 27054 – Traffic Stop; Heck Doctrine
U.S. v. Williams (2021) 2021 U.S. Dist. LEXIS 4079 – Traffic Stop; K9 Entering Vehicle
State v. Riley (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 34 – Traffic Stop; Prolonged Detention
State v. Jones (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 40 – Traffic Stop; Reasonable Suspicion; Prolonged Detention
U.S. v. Goodin (2021) 2021 U.S. App. LEXIS 3881 – Traffic Stop; Prolonged Detention
State v. Lang (Nebraska 2021) 2021 Neb. App. LEXIS 38 – Traffic Stop; Prolonged Detention
State v. Soto-Navarro (Oregon 2021) 2021 Ore. App. LEXIS 143 – Traffic Stop; Prolonged Detention; Subject-Matter Limitation
State v. Mack (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 32 – Prolonged Detention
Maple v. State (Maryland 2021) 2021 Md. App. LEXIS 109 – Prolonged Detention
State v. Smith (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 255 – Traffic Stop; Smell of Marijuana as Probable Cause; Alert/Final Indication as Probable Cause; Spontaneous and Unforeseen Circumstances
Booker v. City of Lynchburg (2021) 2021 U.S. Dist. LEXIS 26538 – Excessive Force; Monell Liability
U.S. v. Watson (2021) 2021 U.S. Dist. LEXIS 27276 – Smell of Marijuana as Probable Cause; Reasonable Suspicion: Terry Frisk; Plain Feel Doctrine
Trent v. State (Indiana 2021) 2021 Ind. App. Unpub. LEXIS 84 – Traffic Stop; Smell of Marijuana as Probable Cause
U.S. v. Brooks (2021) 2021 U.S. App. LEXIS 3546 – Traffic Stop; Smell of Marijuana as Probable Cause
U.S. v. McIntyre (2021) 2021 U.S. Dist. LEXIS 22712 – Traffic Stop; Prolonged Detention
Ellis v. State (Texas 2021) 2021 Tex. App. LEXIS 692 = Traffic Stop; Prolonged Detention; Alert as Probable Cause
State v. Spratley (Ohio 2021) 2021-Ohio-262 – Traffic Stop; Prolonged Detention
U.S. v. Newell (2021) 2021 U.S. Dist. LEXIS 10850 – Plain View Doctrine; Alert as Probable Cause; Prolonged Detention
People v. Vansteen (California 2021) 2021 Cal. App. Unpub. LEXIS 1079 – Traffic Stop; Reliability Foundation


Corbarrubia v. Edwards (2021) 2021 U.S. Dist. LEXIS 36768

Excessive Force; Heck Doctrine; Qualified Immunity

Subject was wanted on a felony warrant and had a significant criminal history including history of weapons. She also had a history of playing possum when LE tried to contact her in her home in the hopes LE would go away. When she did not respond to police knocking at her door and yelling for her to come out peacefully, a K9 team was dispatched. Handler made several announcements outside with no response. Door was pried off its hinges and K9 team entered, handler giving further warnings and having his K9 bark. Handler then entered the trailer a step behind the K9 and directed the K9 through the rooms of the trailer. Handler adjusted the door of the bedroom so K9 could enter. Handler saw subject and ordered K9 to bite, which it did. Subject refused to obey commands and started fighting the dog. A skirmish ensued with handler and other LE trying to subdue subject and get her under control. Subject was finally pulled out of the bedroom into the living room to get enough space to handcuff her. She was armed with a 7-inch knife and steel toe boots. She later admitted probation violations of resisting a police officer and battery on a police dog.

Subject’s probation was revoked, and she was sentenced to county jail after admitting to various violations of her probation, including resisting an officer and battery on a K9 (Penal Code §§ 148 and 600). The prosecutor decided to pursue revocation of subject’s probation rather than charging her separately in a new criminal proceeding, but did list the factual basis for the violations of probation in the petition subject admitted. However, the factual basis did not distinguish between the factual bases behind the charge for resisting arrest and battery on a K9. The appellate court determined that while subject presumably resisted arrest for more than 20 minutes by refusing to exit the trailer when the announcements were made, the allegations that she was resisting arrest while being bitten for three minutes is not irrebuttable. LE’s declaration provided that: “Several attempts were made to get subject to step out of her residence, but she refused. Her door was removed/pried from its hinges and more K9 announcements were made, but she still refused to comply. K9 located subject on her bed where she still refused to comply. While K9 had a bite-hold to subject’s upper left arm, subject was actively kicking and punching K9 until we were able to place her in handcuffs.” The court then stated, “[v]iewing the evidence in the light most favorable to the nonmoving party, the Court finds that it is reasonable to infer that the subsequent conviction for § 148 was for the refusal to surrender to the deputies prior to being bitten by the K9, and that the conviction for the violation of § 600(a) was for battery on the K9 after the initial bite-hold. Accordingly, the factual basis for Plaintiff’s probation revocation is generally clear, and her remaining cause of action may be barred by the Heck doctrine.”

The court then applied the Heck doctrine to the charges subject admitted. Since the charge of battery on a K9 requires that the K9 was acting lawfully and that the battery was willful, malicious and without legal justification, subject cannot now claim that her attack on the K9 was justified, because that would contradict the facts subject admitted in her plea. Therefore, any claim of excessive force based on the initial bite is barred by Heck. However, the court determined that the argument that the duration of the bite was excessive, however, has merit, because the Heck doctrine allows the if the allegation of excessive force is “distinct temporally or spatially from the factual basis of the person’s conviction,” the allegation would not be barred by Heck so long as the use of force occurred after the conduct on which the conviction was based. Here, the sequence of events was that the canine was first deployed to bite Plaintiff, and then it continued to hold its bite for more than three minutes. While the initial bite is clearly subject to Heck bar, the duration of the bite after Plaintiff battered the K9 would not necessarily be barred, because the initial bite and the three-minute duration are distinct temporally. Thus, the claim that the duration of the bite-hold was excessive is not barred.

The court then addressed whether the handler was entitled to qualified immunity. The court found that there was a genuine dispute of the facts (basically revolving around whether the bite duration was excessive based on when subject was actually subdued) when resolving all factual questions in the subject’s favor and therefore cannot make a finding of qualified immunity at this stage.

Note: This appellate opinion is in response to LE and handler’s summary judgment motion, where the court is obligated to view the facts in the light most favorable to the subject. Given that standard, the court was required to make this finding. However, this summary judgment motion clearly narrowed the area in which the subject can proceed. When facing this type of allegation, it is important that the factual basis to which the subject admits in criminal court is clear, including that the duration of the bite is factually supported (both the prosecutor and LE should make sure the language covers the bases).

Commonwealth v. Grooms (Pennsylvania 2021) 2021 Pa. Super. LEXIS 79                                              Smell of Marijuana as Probable Cause

While on foot patrol, LE smelled marijuana from a particular car. They then used a slim jim to open the car and search it, finding cocaine, ecstasy and marijuana. As LE was completing their search, subject walked up with a female and eventually claimed everything was his. He was also in possession of over $1000 in cash.

The court held that, based on Pennsylvania precedent and the 2016 Medical Marijuana Act, the odor of marijuana alone does not always establish probable cause; rather, it is a factor that may contribute to a finding of probable cause when assessed under the totality-of-the-circumstances test. Therefore, the court reversed the suppression order because the police detected the smell of marijuana coming from an unoccupied, locked, and legally parked vehicle and the trial court erred in applying a per se rule for establishing probable cause as it was anchored in the conclusion that the police officers possessed probable cause to search appellant’s vehicle—which was unoccupied, locked, and legally parked in a mall parking lot—solely on the odor of marijuana emanating therefrom.

Note: Pennsylvania legalized the recreational possession of “dry leaf” marijuana in August of 2018, two months prior to this search. However, finding that legalized medical marijuana means that the smell of marijuana is down-graded to only a part of probable cause is a position that is a bit of an outlier. Make sure you know the law in your jurisdiction before proceeding.

Clemmons v. Cothron (2021) 2021 U.S. Dist. LEXIS 33469
Heck Doctrine; Prolonged Detention; Qualified Immunity

Traffic stop for speeding and lane violations. Driver was overly nervous when questioned about being on probation or parole or had any outstanding warrants. He had a Gangster Disciple tattoo, but he claimed he was no longer active. He denied consent to search. After getting identification and registration, LE called this in and also called for a K9 team. While waiting for dispatch and the K9 team to respond, LE checked two other criminal justice entities to see if there were any outstanding warrants for driver. Dispatch responded that driver’s license was valid 9 minutes into the stop, but the other entity re: warrants had not yet responded (unclear if they ever did). K9 team arrived 14 minutes into stop. Two minutes later, K9 alerted to vehicle. A gun was found and LE called into dispatch to see if driver had any prohibitors for gun possession. A further search of the vehicle did not locate any drugs at that time. When dispatch returned with driver’s criminal history, it was unclear whether he was prohibited. Further discussion with driver indicated that he was indeed prohibited. Driver was arrested about an hour into the stop. Handler then looked in the vehicle and found a small (“unseizable”) amount of marijuana under the passenger seat.

The prosecutor moved to dismiss gun charges because they were concerned about whether the stop and search was lawful; however, in this negotiated agreement, driver forfeited the gun because he was a convicted felon. Driver then sued for civil rights violations of false arrest, false imprisonment, and failure to intervene under section 1983 (other charges were abandoned before or during this motion for summary judgment).

The court first addressed the Heck Doctrine, finding it did not apply to this case because there was no conviction. The court then addressed the initial stop. LE claimed that driver drove over the lines on the road several times, while driver denied doing so. The LE camera footage does not show such lane violations (LE conceded this). Therefore, this issue was preserved for trial as there is a genuine dispute of facts.

Here, LE’s dash cam video reflects that LE, when they started questioning driver, almost immediately abandoned the task of ascertaining whether driver committed any traffic violations. In fact, LE never did ask driver about the alleged lane violations, but engaged driver in discussions of his gang tattoos and other criminal activities. The court, viewing the facts in the most favorable light for the driver, found that LE’s questioning weighs against a finding of diligence, but since it was relatively brief, the court did not put much weight on that issue. The court then went on to the issue of prolonged detention. Here, the court held there was a genuine dispute as to the facts. There was a gap of 2.5 minutes in which LE waited for the K9 team and did not proceed with a citation but LE was waiting for the last agency to respond about driver’s criminal history. Therefore, this issue survived summary judgment.

LE then argued that there was additional reasonable suspicion to extend the stop: [1] driver’s driving behavior prior to the initiation of the traffic stop; [2] nervous behavior when questioned about weapons or drugs being in the vehicle; [3] driver’s tattoo, which was known to LE to be associated with a gang; [4] driver’s admission to prior gang involvement; and [5] driver’s rigid posture and failure to make prolonged eye contact with LE. The court held the five factors on which LE relied to establish reasonable suspicion are entitled to little or no weight at this stage in the proceedings because the factors were all relatively minor and subject to significant interpretation. Therefore, at this point in the litigation, there was no reasonable suspicion that justified the extension of the traffic stop. Because the court could not find that there was no prolonged detention or any additional reasonable suspicion to justify the prolongation, the court also found there was no qualified immunity.

Driver then claimed that the K9 was not reliable and K9’s alert was not valid. The court found reliability based on the K9’s certification and the fact that driver presented no evidence that would impact that certification. As to the alert, driver complained that as a passive alert dog, only the handler could interpret an alert. However, it is clear from the video that the K9 sat near the door of the vehicle. Driver claimed handler jerked K9’s leash and driver claimed that K9 alerted because handler praised K9; video dispels these claims as well. Driver complains no drugs were found; court rejected this as an indictment of reliability stating that hindsight does not affect the admissibility of the alert. Finally, driver complained that smells from a nearby convenience store or motel distracted the K9 and he was alerting to those smells rather than the car. The court held this was speculative at best as driver presented no more evidence than the location of said businesses. Therefore, as to the claim of unreasonable search, the court ruled in LE’s favor.

Finally, the court addressed the failure to intervene claim. The only claim that was allowed to go forward here was against the partner officer of the officer who initially stopped the vehicle, since there was a viable issue of unlawful detention (the initial traffic stop was disputed by the parties). There were, then, three claims remaining for trial: (1) the Fourth Amendment unreasonable-seizure claim against LE for initiating the traffic stop; (2) the Fourth Amendment unreasonable-seizure claim against LE for prolonging the traffic stop through the arrival of the K9; and (3) the claim against partner officer for failing to intervene in these two asserted constitutional violations.

Note: Although this court didn’t find that the LE’s actions in contacting several criminal justice agencies was part of the prolongation, other cases have found that this can be a prolongation if the contact with the additional criminal justice agencies is not part of LE’s routine investigation of a traffic violation. Here, the court found that there was evidence of an lawfully prolonged stop because it could be argued the 2.5 minutes the original officer waited for information and the K9 team but didn’t continue to proceed with the traffic stop was an unlawful prolongation. The way to avoid that type of finding is to just continue with the duties of the traffic stop. If the K9 team doesn’t show up, you need to finish the traffic investigation, and if you can’t find any additional reasonable suspicion, driver must be released.

Hope v. Taylor (2021) 2021 U.S. Dist. LEXIS 33281
Accidental/Unintentional Bite; Qualified Immunity; Monell Liability

LE noticed a car that had tags that indicated the car was stolen. When LE attempted to stop the car, it fled. When it stopped, three young males (possibly juveniles) ran away. K9 was dispatched by handler off lead to apprehend them. One male ran to the residence of the plaintiff in this case. Handler claimed that plaintiff reacted by screaming and calling attention to herself. K9 stopped and turned his attention to her. Handler gave commands to K9 to stop and come back to handler. Plaintiff then tried to push K9 away from her with a chair which K9 interpreted as aggression and bit her arm. Within five seconds of the bite, handler grabbed the K9 and released plaintiff. Plaintiff’s story was that K9 lost his target, saw her and attacked her without provocation. She claimed not to hear any warnings or commands. Plaintiff claimed the bite duration was 3 to 5 minutes. This K9 had bitten an innocent bystander before and also was known to bite hard down to the bone and had to be physically removed from the bite.

In an action for unreasonable seizure and negligence against the handler and a Monell type claim against the agency, the court heard a summary judgment motion by handler and the agency. The handler claimed qualified immunity. The court held that releasing a K9 with orders to apprehend 3 fleeing suspects in a stolen car case was within the handler’s discretion as LE. Once this finding is made, the burden shifts to Plaintiff to show that 1) she was seized 2) unreasonably. This court determined that the actions of the K9 in biting plaintiff was indeed a seizure because “[o]nce deployed, a police-dog is generally unable to discriminate between suspects and innocent parties and is generally trained to bite whomever it encounters, facts suggesting the officer’s intention to seize whomever the dog ultimately does encounter.” Therefore, plaintiff established that she was seized by law enforcement.

The court then used the Graham factors to determine if the seizure was unreasonable. Court found that handler is entitled to qualified immunity for his initial release of K9 off lead to apprehend the 3 males. However, there were genuine issues of fact regarding the possible failure to warn and failure to give commands to release until handler physically arrived. Therefore, the claim of unreasonable seizure is limited to the disputed facts that handler used excessive force by failing to call off K9 once handler realized plaintiff was not a suspect.

Since plaintiff did not show that there was any violation of policy in the release of the K9, the Monell claim was dismissed.

Note: The only surviving claim is very narrow; whether handler waited too long to release plaintiff from K9’s bite. Plaintiff’s and handler’s stories vary wildly; there is no mention of body cam, but if there was, it would h0pefully clearly show who was telling the truth. Also, interviews of other LE on scene should have been included in the reports if any LE was able to see and/or hear what was going on. Having corroborating evidence, as we all know, is critical.

State v. Anderson (Louisiana 2021) 2021 La. App. LEXIS 211
Smell of Marijuana as Probable Cause; Terry Frisk; Detention v. Arrest

LE saw a group of people disperse from a convenience when they got out of their cruiser to get a drink. Defendant walked away at a fast pace and got into a car that was parked at the pumps. When LE approached on foot, LE could smell marijuana coming from the open window of the vehicle. Defendant was ordered out of the vehicle and was grabbing at the back of his pants. He was handcuffed because he wasn’t following instructions and he admitted to possessing a firearm which was in the back of his pants. Drugs were also found on him.

The court held that the initial contact was permissible because there was no evidence that LE did or said anything that would transform this contact into a detention. In addition, the smell of marijuana is probable cause to conduct a search. And finally, a Terry frisk was allowed because LE had articulable facts to support it, given the reluctance to follow instructions and the grabbing motions made by defendant to the back of his pants.

Further, once LE drew near to defendant, LE smelled an odor of marijuana emanating from the vehicle. Consequently, LE gained probable cause to detain and search both the vehicle and its occupants on suspicion that the crime of possession of marijuana was occurring before him. It was not until then that defendant was stopped and no longer free to leave. Defendant was ordered from the vehicle, and because defendant kept reaching for his back pocket, despite police instructions not to do so, he was handcuffed to ensure the safety of all parties. Upon telling officers he had a gun in his back pocket, the officers obtained additional probable cause to search his person for a weapon, again within the long-standing justification of officer safety. Therefore, the motion to suppress was denied.

Note: Louisiana has not legalized marijuana.

Commonwealth v. Becker (Virginia 2021) 2021 Va. Cir. LEXIS 31
Smell of Marijuana as Probable Cause

During a traffic stop for expired registration (LE also believed occupant(s) were involved in a drug transaction that LE witnessed), LE saw tobacco products. Driver asked out of vehicle and at that point, LE could smell unburnt marijuana on her but not in the vehicle. It was determined that all occupants were under the age of 21 so they were not in legal possession of tobacco. However, in Virginia, this was a non-arrestable offense punishable only by a civil penalty. Even so, LE searched the vehicle based on the smell of marijuana on the driver and the tobacco products in plain view.

Driver moved for suppression of the evidence. The court held that since the tobacco possession was only a non-arrestable offense with only a civil penalty, this could not be a basis for a probable cause search of the vehicle. In addition, because LE could only detect the smell of marijuana on driver, this did not provide probable cause for LE to search the vehicle as there was no probable cause to believe there was marijuana in the vehicle. At most, LE could search driver’s person. Motion to suppress was granted.

Note: This decision is in line with what we are seeing in other jurisdictions that have legalized marijuana in some form or are working on legalization.

State v. Landor (Louisiana 2021) 2021 La. App. LEXIS 196
Traffic Stop; Smell of Marijuana as Probable Cause

During a stop for failing to use his turn signal, LE obtained probable cause to search the vehicle including the trunk and a compartment in the trunk when LE smelled a strong odor of raw marijuana coming from the vehicle.

Note: Louisiana has not legalized marijuana.

U.S. v. Williams (2021) 2021 U.S. Dist. LEXIS 31187
Traffic Stop; Smell of Marijuana as Probable Cause

Subject pulled over for lane violations. LE called in driver’s information and began to write the warning citation. About 6 minutes into the stop, handler arrived with K9. Subject had recently been at a convenience store suspected for drug activity. Handler ordered both occupants out of the car and performed sniff. K9 alerted within 10 minutes of stop and during the time the original officer was still awaiting a return from dispatch. LE found a small amount of marijuana, paraphernalia and a gun.

Court held that LE had probable cause a traffic violation was committed and that no prolonged detention occurred. Motion to suppress denied.

Note: Textbook example of how to effectively utilize a K9 in a traffic stop situation. Interestingly, this officer’s computer was broken so he had to call information into dispatch and wait for them to come back. He also had to fill in the citation by hand, rather than through his computer. Although the broken computer slowed down the pace of the citation, the court was unconcerned and held that the situation at hand was the important issue, not the speculation that had the computer worked, the time for detention would have been shortened to the extent that the K9 would not have alerted before the traffic investigation was complete.

Scheck v. State (Maryland 2021) Md. App. LEXIS 137
Traffic Stop; Smell of Marijuana as Probable Cause

During a traffic stop for an equipment violation, LE could smell marijuana along with cigarette smoke. As driver was getting out at the direction of LE, driver admitted to possessing marijuana in the car and that he “did smoke.” LE searched the passenger compartment of the car, finding a roach in the ashtray which was under 10 grams. During this search, LE also found a container that he knew often contained contraband. He opened this container and found cocaine. LE then searched the entire car and found more evidence of sales of cocaine. Driver claimed the items as his.

Driver claimed that once LE found the roach, they had to stop searching because it was a non-criminal amount of marijuana unless LE could articulate additional probable cause for the rest of the vehicle. The court disagreed with this analysis, holding that precedent required the court to find that once marijuana was discovered, this provided probable cause for LE to believe more contraband existed and therefore permitted searching the rest of the vehicle including containers and the trunk, recognizing that evidence of a “legal” amount of marijuana is indicative of more serious crimes, such as the possession of more than 10 grams, driving under the influence and possession for sales.

Note: This result is different than the result would be in some California districts, because California’s law legalizing recreational marijuana specifically exempts a “legal” amount of marijuana from providing reasonable suspicion or probable cause. This, of course, results in the absurdity that a trafficker need only show LE a roach and, without more, is immune from additional search. However, please see People v. Van Steen below for a much more sensible approach. There’s hope, I think…. 

Commonwealth v. Santos-Medina (Massachusetts 2021) 2021 Mass. App. LEXIS 114
Smell of Marijuana as Probable Cause; Consent

Traffic stop for lane violation. As LE approached, a large cloud of smoke came from the car and LE smelled the odor of burnt marijuana. Driver, the sole occupant, was not licensed to drive in Massachusetts. LE asked driver if there was anything illegal and she said, “Not that I know of, you can look.” LE then searched the vehicle and found heroin, baggies and a scale in luggage. Driver denied knowledge and said that her friend’s boyfriend, who had been arrested for drugs, was driving the car and that her friend and the boyfriend told her to be careful because she didn’t have a license. At booking, driver admitted to possessing drugs on her person. A further search of the vehicle resulted in more drugs, an iPhone and cash.

Driver challenged the exit order by LE to get out of the vehicle as not being supported by probable cause. The court rightfully found that LE has the right to order all passengers to exit for officer safety, including situations where there was reasonable suspicion of criminal activity. Here, prior to the stop, LE saw driver’s car drift in and out of the breakdown lane at least twice. He then observed a large amount of smoke from recently burnt marijuana in the passenger compartment of the car. The smoke was so thick that LE could not see who was inside the car for about thirty seconds as the smoke cleared. Based on his observations, LE could have inferred that the driver — the car’s sole occupant — was actively smoking marijuana while driving on a major highway. These specific and articulable facts gave rise to a reasonable suspicion that the defendant was operating under the influence, justifying the exit order.

Driver then argues that even if LE reasonably suspected that she was operating under the influence, he took no steps to confirm or dispel his suspicion and therefore unlawfully prolonged the stop. But given his observations of the marijuana smoke in the car, LE did not impermissibly expand the scope of the stop by asking the defendant whether there was anything illegal in the car that he should be aware of. And in response to his question, the defendant “affirmatively offered the search.” Since driver did not present any evidence or argument that the consent was involuntary, the motion to suppress was denied.

Note: Nothing really new here, including a fairly unsophisticated defendant. It’s always nice to be given consent, but remember, consent can be limited or withdrawn at any time by the consenter. It’s good business to develop probable cause under a different theory if you can. In addition, remember to document the consent in some form via audio and/or visual recordings as  defendants can claim coercion or just deny they gave consent.

Johnson v. Nocco (2021) 2021 U.S. Dist. LEXIS 30159
Probable Cause for Arrest; Passenger ID; Qualified Immunity

Subject was a passenger in a vehicle and refused to identify himself. He was identified by his father who was the driver. Both occupants were ordered out and subject was arrested for resisting without violence based on LE’s understanding of Florida law. K9 alerted on vehicle and vehicle was searched without finding any contraband. Charges of resisting without force were dismissed.

The court determined that LE had a valid basis to require the driver of the vehicle to provide identification and vehicle registration. But LE did not have a valid basis to require passenger to provide identification absent a reasonable suspicion he had committed, was committing, or was about to commit a criminal offense. Pursuant to existing law on this point, passenger had no obligation to talk to or identify himself to LE. Because LE did not have a valid basis to require passenger to provide identification, he could not arrest passenger based on a failure or refusal to provide such identification. Therefore, LE’s motion to dismiss was denied as to this ground.

Passenger alleges that the Sheriff failed to “train [his] employees and agents in the requirements to make lawful arrests of individuals who refuse to provide their identification upon demand.” Passenger did not identify any relevant training program or policy. His issue did not seem to concern the manner in which LE was trained; instead, passenger only appears to challenge the Sheriff’s decision with respect to whether a training program should exist. In addition, the court held that all the factual allegations made by the passenger appear to show LE was acting in the scope of his employment. Therefore, the Sheriff is dismissed out of the lawsuit.

The court then turned to qualified immunity. Because passenger alleged that LE acted with malice, this was enough to require the court to allow the case to go forward (the immunity statute offers no protection to law enforcement officer defendant in context of malicious prosecution claim because an officer acting within the scope of his employment can be held liable if the officer acted in bad faith or with malicious purpose).

Finally, the court found that since there was no probable cause to arrest passenger, claims of false imprisonment and false arrest remain.

Note: Qualified immunity is a hot button issue these days and apparently in this jurisdiction, there is a statute that defines it. Since passenger is required to prove malice, he pled malice in his complaint which raised enough of an issue to force the court to allow the claim to go forward. These rulings were only at the summary judgment phase, leaving the remaining issues to be decided by a jury.

Vargas v. Whatcom County S.O. (2021) 2021 U.S. Dist. LEXIS 28651
Excessive Use of Force; Monell Liability

LE involved in tracking down an armed burglar. A witness was able to describe the involved vehicle, which was registered to one of subject’s co-conspirators. When they arrived at that house, subject fled by jumping out a window. The house was frozen awaiting a search warrant and a K9 team was summoned. The handler was told that subject had a felony arrest warrant, that he was a co-conspirator in the burglary, had fled out the window and that even though one of the gang had been armed with a firearm, that gun had not been found. In addition, it was not clear if subject was by himself. The K9 team then started a track, believing that this was a high risk situation as a gun could be involved, subject had a felony warrant, subject probably did not want to be caught and may use deadly force to prevent apprehension. Handler made several announcements during the track, including one just before handler ordered K9 to search the bushes where handler felt something was off. K9 bit subject and handler heard subject call out. Because subject was verbally complying and handler could see one hand, he called off the K9. Subject came out holding a cell phone in his hand. Subject claimed he was asleep and did not hear the verbal warnings.

The Sheriff’s Office policy allows for the use of a canine to locate and apprehend a suspect if the canine handler reasonably believes an individual has either committed or threatened to commit any criminal offense and if any of the following conditions exist: (1) a reasonable belief the individual poses an imminent threat of violence or serious harm to the public, any deputy, or the handler; (2) the individual is physically resisting or threatening to resist arrest and use of the canine reasonably appears necessary to overcome the resistance; or (3) the individual is believed to be concealed in an area where entry by other than the canine would pose a threat to the safety of deputies or the public. Also, absent a change in circumstances presenting an immediate threat, the use of a canine “should be conducted under such conditions that will minimize the likelihood that the canine will bite or otherwise injure the individual.”
Medical records show three to five bites with minor puncture wounds, only one of which required a stitch. Even though subject claimed horrific symptoms, the court found that the level of force used against him was not unreasonable.

The court balanced the gravity of the intrusion on subject’s constitutional rights against the need for that intrusion. Handler, through the K9, employed a significant, but not severe use of force and had a compelling interest in protecting himself and others against the risks posed by a known and suspected felon, who was evading arrest, fled into an obstructed area, did not respond to warnings, and may have had a handgun. Under these circumstances, handler’s actions were objectively reasonable and not in violation of plaintiff’s Fourth Amendment rights.

The court found that defendant does not dispute that he jumped out of a window to avoid arrest on a felony warrant. Nor is it disputed that, at the time of his flight, he was a suspect in an ongoing burglary investigation where a witness reported seeing a handgun, which police had yet to recover. For the lower court’s level-of-force assessment to be at issue, the undisputed circumstances surrounding Plaintiff’s flight would need be different or they would need be in dispute. See Chew v. Gates (9th Cir. 1994) 27 F.3d 1432 (reasonableness of police dog bite was a material disputed fact where K9 dragged the plaintiff up to ten feet and “nearly severed” his arm following plaintiff’s flight from a traffic stop because “a rational jury could easily find that [the plaintiff] posed no immediate safety threat to anyone”) (emphasis in original). Because the circumstances associated with subject’s flight are not disputed, subject’s objection fails to show error by the lower court.

The court then dealt with the Monell liability issues against the agency. Subject must show that a policy or custom of the agency led to his injury. He was unable to do so. Because the court held that subject’s Fourth Amendment rights were not violated, the Monell claims cannot stand.

Note: Part of the reason of the court dismissing the defendant’s claims was that fact that the handler called off the K9 almost immediately, prior to gaining complete control over the defendant. The take away here is to call off the K9 as soon as it is safe to do so. If the suspect starts to resist again, the K9 can be re-deployed pursuant to the Graham factors.

U.S. v. Tuschoff (2021) 2021 U.S. Dist. LEXIS 29515
Collective Knowledge Doctrine; Prolonged Detention; Ordering Out of Vehicle

Subject was under investigation by LE for drug trafficking for about 6 months, including a cell phone ping warrant. The ping information showed that subject had travelled to a location where LE suspected he had picked up methamphetamine and was on his way back. When subject’s vehicle was spotted, LE saw that his windows were darkly tinted, probably in violation of the law. A traffic stop was performed by one officer and at the same time, handler and K9 team arrived to perform a sniff. Subject was very nervous and handler told him to get out of the car for safety reasons while the K9 performed the sniff. Discussions ensued which ended with subject in handcuffs in the back seat of a LE cruiser. At that point, the first officer used a meter which showed the tint was too dark to be legal and the handler ran the K9 around the car. The K9 alerted. Subject’s vehicle was towed and later searched at a LE location. Meth and fentanyl were found. The K9’s alert was not challenged.

The prosecution proceeded on the motion to suppress under a theory of collective knowledge. However, the information that the two LE involved (the stopping officer and the handler) knew about the drug investigation was only relayed to the defense on the day prior to the hearing. Subject objected that this evidence was withheld and discovered too late. The court responded that the involved officers did not need to know about the investigation and the directive by the detective with knowledge of the investigation was sufficient to comply with the collective knowledge doctrine. In addition, the prosecution did comply with the federal laws regarding discovery and therefore the newly discovered evidence of the involved officers’ knowledge was admissible.

Note: Federal Rules of discovery only require a prosecutor to discover information when they become aware of it. State discovery rules may very well be more stringent. For example, in California, the prosecutor is imputed to have all the knowledge of the law enforcement agency, even if the prosecutor doesn’t actually have knowledge of the information. This is an incredibly high burden so please make sure you discover everything to the prosecutor’s office. Granted, they should be communicating with you and/or your agency as well, but both parties are responsible for getting discovery to the defense in a timely fashion (via the prosecutor’s office; LE should not be sending anything directly to the defense).

People v. Sanchez (Illinois 2021) 2021 IL App (3d) 170140

Traffic Stop; Prolonged Detention

During a stop for speeding, while the initial officer was involved in writing the citation, handler arrived and ran K9 around vehicle. K9 alerted. Court held that the sniff occurred during the processing of the citation and therefore was not unduly prolonged.

Note: Interestingly, the lower (trial) court held that the stop was prolonged, but that LE had a good faith exception (LE reasonably believed that the law allowed the sniff under these facts). Once convicted, defendant appealed, complaining that the trial court should not have denied his motion to suppress. The appellate court then decided, correctly, that that the stop was not unduly prolonged because the sniff occurred during the investigation of the traffic offense.

Commonwealth v. Shaw (Pennsylvania 2021) 2021 Pa. Super. LEXIS 62
Smell of Marijuana as Probable Cause

Traffic stop for lighting violation. AS LE approached the vehicle, he could smell marijuana. Driver was very nervous and said the vehicle belonged to a “friend.” Consent to search was denied, even though LE told driver that the smell of marijuana was probable cause to search in Pennsylvania. There was no marijuana on driver, but packaged marijuana in the vehicle. A motion to suppress was filed and denied at the trial court level. This appeal followed.

The Pennsylvania Supreme Court held that warrantless vehicle searches require both probable cause and exigent circumstances under their Constitution. The appellate court held that the trial court’s ruling conflicted with the PSC’s recent decision in Commonwealth v. Barr 2020 PA Super 236. In Barr, the court held that the odor of marijuana emanating from a vehicle during a police traffic stop, alone, is not sufficient to establish probable cause. This matter therefore had to be remanded to the trial court for the trial court to weigh whether there was exigent circumstances for the vehicle search, since their sole reason for the search was the smell of marijuana and the PSC held that this odor is not enough for probable cause, standing alone.

Note: As discussed in a previous note this month, Pennsylvania is a bit of a mystery in that they have decided that any hint of legally possessed marijuana without more is a get out of jail free card. This may well come back to bite them, but for now, that is the law in Pennsylvania.

Jones v. United States (2021) 2021 U.S. Dist. LEXIS 28921
Traffic Stop; Prolonged Detention

Traffic stop on speeding vehicle driven by subject whose license was suspended. Subject placed under arrest, removed from vehicle and put in a LE cruiser. Within seconds of subject being removed from the car, handler (not LE who stopped vehicle) conducted a free air sniff on the rear of the vehicle. Vehicle was searched and cocaine was found in the trunk lid.

Subject conceded that, although he believed this was a pretextual stop, there was a valid reason (speeding) for the stop. Subject claimed, however, that once he was arrested and placed in the cruiser, the mission of the stop was over and the K9 sniff unduly prolonged the stop.

Neither subject or his counsel could provide any authority for this unusual interpretation of the concept of prolonged detention. The motion to suppress was denied by the lower court and the appellate court confirmed.

Note: Good solid police work here and subject didn’t have much to work with.

State v. Williams (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 260

Traffic Stop; Smell of Marijuana as Probable Cause; Search of Container

Traffic stop for speeding. Subject was front seat passenger (there were four occupants total). LE could smell alcohol and raw marijuana. Subject was found to have marijuana on him in a cigarette box. He then admitted to having “dope”, meaning heroin, in his underpants, but refused consent for LE to retrieve it. LE was concerned that if the heroin contained fentanyl, subject’s health could be at risk if the heroin touched bare skin. LE pulled waistband out from subject’s body and retrieved a large amount of heroin from a pocket in subject’s underpants. LE could still smell marijuana so searched the vehicle, finding a roach and a large amount of cash in the passenger compartment. Still smelling marijuana, the trunk was searched and cocaine and a scale were found. During the motion to suppress, the court viewed the body cam footage submitted.

The lower court already granted a motion to suppress on the heroin found in subject’s underpants as LE did not follow proper procedure in performing what they described as a strip search. The exigency was not addressed. The State elected not to renew their objection to this ruling. The lower court also denied the motion to suppress for all other items.

Subject only objected to the motion being denied on the items in the trunk. The appellate court ruled that the motion to suppress was properly denied as LE had the appropriate training and experience to determine raw and burned marijuana and that the New Jersey courts have previously held that the smell of marijuana was probable cause to search. The automobile exception applied even though New Jersey has a two part test (“a police officer may conduct a warrantless search of a motor vehicle during a lawful roadside stop “in situations where: (1) the police have probable cause to believe the vehicle contains evidence of a criminal offense; and (2) the circumstances giving rise to probable cause are unforeseeable and spontaneous.” State v. Rodriguez (2019) 459 N.J. Super. 13, 22, citing State v. Witt (2015) 223 N.J. 409, 447-48. The court held that the smell of marijuana detected by LE was unforeseeable and spontaneous, therefore meeting both prongs of the Witt test.

The court went on to hold that, since LE could still smell marijuana after recovering the joint in the passenger compartment, LE was justified in searching the trunk. State v. Guerra (1983) 93 N.J. 146, 149-51 (upholding a car trunk search based upon an unexplained odor of marijuana not emanating from the car’s passenger cabin).

Note: New Jersey has a couple more hoops to jump through than California, namely that to search a vehicle, they not only need probable cause but proof that the “circumstances giving rise to the probable cause are unforeseeable and spontaneous.” This seems odd to me, because if LE used a pretext stop to pull the individual over, but had probable cause based on previous investigation, the court would not accept that search. In addition, it appears that New Jersey requires another level of scent before being able to look in the trunk or elsewhere. This is not the federal standard.

Hyatt v. Miller (2021) 2021 U.S. Dist. LEXIS 27726
Traffic Stop; Civil Rights Violations; False Arrest; Strip Search

After a traffic stop (LE having followed said vehicle from a house reported to have drug traffic), passenger consented to a search of his person. $1500 was located and LE smelled “crack cocaine” coming from passenger. While one LE wrote the citation for the traffic violation, handler conducted a free air sniff with his K9. K9 performed an alert but not a final indication. Subject and other occupants were handcuffed at that point so they wouldn’t do anything “crazy.” K9 then sniffed the interior, alerted and gave a final indication in the front passenger seat. No contraband was found in the vehicle. LE then applied for a search warrant to strip search the occupants, including passenger. While waiting, LE found residue in the vehicle that tested positive for cocaine. The search warrant application was amended to reflect the discovery and test. Once the search warrant issued, subject and another occupant was strip-searched in a gas station bathroom. No drugs were found. (There was another encounter with a third individual which was part of this opinion, but it is not relevant to K9 teams, so I am not reviewing that portion of the opinion here).

Subject then sued for civil rights violations, false arrest, false imprisonment and assault and battery. The Court first addressed whether there was reasonable suspicion to conduct a traffic stop. LE said the basis was the vehicle was quickly changing lanes without signaling; passenger denied that the driver did anything that would justify a traffic stop. Since there was a conflict in the versions of what happened, the court ruled that it could not grant summary judgment to LE nor could it find qualified immunity. The court went on to address whether summary judgment was appropriate on the other issues (sniff and resulting alerts and then searches of vehicle and persons) finding again that there was a genuine dispute in the facts. The court noted it reviewed the body cams in coming to this determination (body cam footage not dispositive as it did not capture everything that was in dispute). In addition, the claims against the Sheriff himself were allowed to go forward, as the claims made by passenger could be determined to show malice on the part of LE.

Note: Sometimes, there is no other way to settle a case than to go forward to trial. Here, even though there was body camera footage, it was not dispositive. If the jury finds LE credible, they will prevail; the opposite is also true.

United States v. Sims (2021) 2021 U.S. Dist. LEXIS 27119
Reliability Foundation; Prolonged Detention; Collective Knowledge Doctrine

LE received 911 calls where a woman reported that her kids’ father threatened to shoot her house up and that she was scared to go home. She also reported that he might have a weapon. Then she disclosed he was currently following her car in his car. She described him and his vehicle. LE contacted dad but could not confirm the reported violations. Several hours later, she called 911 again and reported that her kids’ father had shot up her house. Two other 911 calls were received, one from a neighbor who reported 6 or 7 rapid fire shots; the other call was from caller’s brother who reported he was in the house and that there were shots and now there were bullet holes in the residence. Dad’s car was found and stopped and LE engaged in a discussion of what to do with him. At that point, the K9 team arrived and sniffed the vehicle and alerted. The vehicle was searched and a handgun was found underneath the spare tire.

Dad complained his arrest was without probable cause as there was no independent individualized reasonable suspicion to justify the dog sniff, that the dog sniff was not a part of the investigation of the stop and that the detention was unduly prolonged. He also claimed that the alert was not reliable as there were no drugs found.

The court held that the separate 911 calls provided reasonable suspicion for the stop. In addition, the collective knowledge doctrine applied because LE was actively investigating a shooting incident and gathering evidence to add to the reasonable suspicion that dad had been involved in the shooting. The court went on to address the search of the car, which they held was legal under the automobile exception because LE had probable cause based on their investigation to that point. In addition, the K9 alert also provided probable cause. The court easily dismissed dad’s objections about the K9’s reliability finding that the handler’s extensive testimony (uncontroverted) established certifications and training sufficient to find reliability. Finally, the court held that there was no prolonged detention, given the extent of the investigation.

Note: Good work here. Clearly the court was not impressed with dad’s objections and LE testimony was unchallenged.

Russell v. Lewis (2021) 2021 U.S. Dist. LEXIS 27054
Traffic Stop; Heck Doctrine

Traffic stop for 2 blown stop signs. Driver denied failing to stop. Driver did not have any proof of insurance. Driver also refused consent to search the vehicle. While waiting for dispatch to return with information, LE got out his K9 and had him free air sniff the vehicle. K9 alerted and vehicle searched. Driver later pled guilty to an unlawful possession of a controlled substance. He then brought this case, claiming a violation of his civil rights.

The court found that for this civil rights case to go forward, driver would have to show that the initial stop was improper which would than undermine his conviction because all evidence would have to be suppressed which would in turn undermine his conviction. Driver’s Fourth Amendment claims based on the traffic stop are dismissed under Heck because a judgment in his favor on these claims would necessarily imply the invalidity of his underlying conviction for unlawful possession of a controlled substance. Until such conviction is reversed, expunged, or declared invalid, the plaintiff’s claims based on this stop are premature.

Note: This is why Heck exists. It would be farcical if driver could plead guilty, thereby admitting that the actions of LE were appropriate and then be able to turn around and claim LE actions were in violation of his Fourth Amendment rights and be able to collect damages.

U.S. v. Williams (2021) 2021 U.S. Dist. LEXIS 4079                                                                                      Traffic Stop; K9 Entering Vehicle

After being convicted of possession with intent to distribute 50 grams or more of methamphetamine, defendant appeals, claiming the search was unconstitutional. His first complaint was the K9 jumped inside his car before LE had established probable cause to search. The narcotics-sniffing dog jumping into defendant’s car before probable cause was established did not violate his Fourth Amendment rights because based on the totality of the circumstances and also, under an alternate theory, the police department had probable cause to search defendant’s car before the dog jumped into the window, so no unconstitutional search occurred. (Actual facts that comprise probable cause in this case are not detailed in the opinion).

Note: Even though this was a case in which a K9 invited himself into a vehicle, the court doesn’t bother to discuss the facts (who left the door open; did LE do anything to facilitate the jump inside) but just concludes that LE had probable cause based on the totality of the circumstances; therefore, the jump did not violate the Fourth Amendment.

State v. Riley (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 34
Traffic Stop; Prolonged Detention

Traffic stop for expired registration. Driver could only produce a dental insurance card; no license or registration. After writing her information down, LE asked if there was anything illegal in the vehicle. Driver answered no. LE said, “No marijuana, drug pipes, anything crazy like that?’ Driver again said no. This exchange took about 8 seconds per the body cam. LE then called for back up and was writing a citation until those officers arrived. LE then had conversations with those officers regarding his belief that driver was a user and he believed there were drugs in her car. A K9 alerted to the vehicle. The trial court then said that these conversations were unrelated to the traffic stop and found a prolonged detention and granted the motion to dismiss. The State appealed.

The appellate court found that the body cam footage clearly showed that the original officer was continuously writing the citation for the equipment violation during this time. It also found that conversations with other officers only took approximately 38 seconds. In addition, the 8 seconds it took for the officer to talk to the driver about the contents of her car was reasonable. Therefore, the motion to suppress was reversed and the case remanded for further proceedings.

Note: This case revolved on a specific factual finding by the trial court which was clearly erroneous (trial court claimed State failed to prove the length of conversations with other officers which was clearly wrong). Therefore, the ruling doesn’t really address the actual test of prolonged detention. This is an unpublished case and I can see why, since this issue is a narrow factual one.

State v. Jones (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 40
Traffic Stop; Reasonable Suspicion; Prolonged Detention

After noticing suspicious behavior at a check point, LE followed driver until she violated the law by impeding traffic (55 in 65) (driver slammed on the brakes when she saw LE and stiffened in her seat). LE approached the vehicle and explained the reason for the stop. LE observed that driver’s hands were shaking, her eyes were bloodshot, and she appeared nervous. While retrieving vehicle documentation, driver opened the center console where LE observed a knife and green material which appeared to LE to be marijuana fragments. Driver acted alarmed and shut the console quickly. Additional factors LE considered were that driver was driving a rental one way from California to Montana via Elko, Nevada. Even though it was winter, driver had no winter gear and was wearing sandals. After receiving the documentation from driver, LE returned to his vehicle, contacted dispatch, and then requested that a K-9 unit come to the site. LE then returned to Jones’ vehicle and, believing driver may be under the influence of marijuana, conducted field sobriety tests. During the investigation into impaired driving, the K-9 unit arrived and the drug dog alerted on the vehicle. Driver was arrested and a subsequent search of the vehicle revealed a pound of methamphetamine.

Driver complained that the stop was not supported by reasonable suspicion and that the extension of time to allow the K9 to sniff was also unconstitutional. The court made short work of the stop issue, holding that the reasons why driver was violating the lane were irrelevant, especially since she was not disputing she was impeding traffic. The court held that, under the totality of the circumstances, as outlined above, the observations made by LE were sufficient to justify suspicion that Jones was engaged in criminal activity, therefore expanding the traffic investigation into a drug investigation which allowed for time to have a K9 respond to the scene.

Note: Again, this opinion was short on facts, but the upshot is that LE was able to articulate enough reasons that, when taken in their totality, provided reasonable suspicion of drug activity such that LE was justified in calling for a K9 to sniff the vehicle.

U.S. v. Goodin (2021) 2021 U.S. App. LEXIS 3881
Traffic Stop; Prolonged Detention

While travelling on a drug corridor, driver was stopped for swerving. LE’s suspicions were aroused by a number of aspects of the traffic stop—driver immediately exited the car which was indicative to LE that he wanted to keep LE away from the car; the absence of a driver’s license; that the car’s registration was in someone else’s name and suspended; the criminal history associated with the Louisiana identification card in the name of Malchia Desha Douzart that the driver provided; the fact the driver claimed to reside in California but had a Louisiana ID; and nervous behavior. In addition, driver’s claim regarding his travel that day was pretty much impossible. LE called for a drug sniffing dog, which arrived about 15 to 20 minutes later and alerted on the car. Armed with probable cause to search the car, LE testified that he immediately smelled marijuana upon opening the car doors. When officers opened the trunk, they saw two wrapped gifts. As LE began unwrapping the boxes, the driver complained they were gifts for his mother and he did not want LE to mess with them. Nonetheless, LE unwrapped the “gifts” and found methamphetamine hidden inside a candle, a hammer to break open the candle, and disguised tea bottles with phencyclidine (“PCP”) inside them. After arrest, driver’s real identity was discovered from a driver’s license, and LE found $1,495 in cash in his wallet. LE then located an outstanding arrest warrant based on driver’s involvement in a methamphetamine distribution involving co-defendants (this was a joint appeal by all parties, but the driver was the only one who challenged the traffic stop and the K9’s involvement). Driver’s detention following a traffic stop pending the arrival of a drug dog was supported by reasonable suspicion under the Fourth Amendment because LE was able to articulate facts which, based on his training and experience, supported reasonable suspicion that driver was in possession of drugs.

Note: No really new information here. LE did a good job in documenting and then testifying to all the factors LE considered when calling for a drug dog. Note to crooks: don’t using a criminal’s ID when you want to fly under the radar.

State v. Lang (Nebraska 2021) 2021 Neb. App. LEXIS 38
Traffic Stop; Prolonged Detention

Vehicle, reported to be driving all over the road, was stopped by LE when observed to be driving on the shoulder in violation of law. Driver asked to sit in cruiser’s front seat. LE noticed signs and symptoms of drug use including track marks. The court held this was all part and parcel of the traffic investigation. LE completed the citation and then asked for consent to search the vehicle. LE testified that Lang was not free to go because he was going to detain him for a narcotics investigation, including having a K9 sniff the vehicle. When Lang refused, LE called for a K9 team to respond. K9 alerted to the vehicle.

The only issued challenged was the continued detention for a drug investigation. LE testified that he suspected Lang was involved in criminal activity based on several factors: Lang’s haggard appearance; the presence of injection sites on Lang’s arm; Lang’s demeanor during the conversation inside the patrol cruiser; and the knowledge that Lang had a criminal history involving controlled substances. He further testified that based on his training and experience, which included over two decades as a police officer and over 1,000 arrests of drivers in possession of controlled substances, the totality of the circumstances was consistent with an individual who abused controlled substances. The court held that the totality of these facts, even though there may be innocent explanations for the factors, were enough reasonable suspicion to extend the traffic stop to include a PSD team sniff.

Note: Nothing really new here, but a good recitation of all the things that made LE believe that Lang was involved in drugs. All factors should be listed; if there are more, but not in your report, that could cause credibility problems in court.

State v. Soto-Navarro (Oregon 2021) 2021 Ore. App. LEXIS 143
Traffic Stop; Prolonged Detention; Subject-Matter Limitation

Traffic stop for a rolling stop and taking a turn too wide. LE testified that they were on a street crimes mission, looking for narcotics and guns. A K9 team was assigned to this mission. Defendant was the passenger. When LE approached, LE told occupants to keep their hands where he could see them. The K9 team arrived about 30 seconds into the stop and sniffed the vehicle, alerting to it. Passenger was found in possession of drugs, cash, packaging materials and 8 cell phones.

Even though this stop met the federal standard for a K9 sniff during a traffic stop, the Oregon Supreme Court had held in State v. Arreola-Botello (2019) 366 Ore. 64 that all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations. That means that all such activities, including inquiries must be reasonably related to the purpose of the traffic stop or supported by an independent constitutional justification. The Oregon Supreme Court opined that this position was believed to cause LE to have less incentive to develop the requisite reasonable suspicion of that crime which ordinarily would be required to stop the individual for a temporary criminal investigation. By applying subject-matter limitations to investigative activities and questioning, Oregon law ensures that officers do not turn minor traffic violations into criminal investigations without a separate constitutional basis for doing so. The court then held that the deployment of the K9 had nothing to do with the reasons for the stop and was therefore unlawful.

The court then addressed whether the passenger was detained (if not, then no constitutional violated occurred). While the court acknowledged that not every stop necessarily results in the detention of the passenger, the facts in this case (LE approaching on both sides of the car and telling occupants to keep their hands in sight and obtaining identification information for both driver and passenger) dictated that the passenger was indeed detained.

Note: Oregon is an outlier based on this case as well as Arreola-Botello. There was no analysis of whether the sniff prolonged the stop because Oregon analyzes a different concept called subject-matter limitations. Since the stop was solely for a traffic violation, Oregon LE is limited to investigate only the traffic violations. The court did not say what would happen if, in the course of investigating a traffic violation, LE found evidence of additional crimes. In addition, the court ignored the federal precedent that a sniff is not a search and therefore should not implicate the Fourth Amendment. The court does not state the date on which this traffic stop occurred; therefore, I cannot determine if a good faith argument would have been helpful (LE could have been  unaware that the Supreme Court would deviate from federal precedent). This is a sticky wicket for Oregon LE, Hopefully, there will be additional cases that will give more guidance, but based on Oregon’s apparent stance to legalize all controlled substances, it may be that there will be more opinions that have little common sense. 

State v. Mack (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 32
Prolonged Detention

Traffic stop for following too closely and dark window tint. While driver was searching for registration, LE engaged the passenger in conversation. Passenger offered his identification and said that they were travelling from Washington to Arkansas (stop was in Idaho). There were several air fresheners in the vehicle. Driver denied any contraband was present in the vehicle. LE called in information and dispatch was unable to immediately process LE’s request. LE then measured the window tint. LE returned and found they had performed a check on the driver and his warrant status. LE then told dispatch he was going to deploy his K9. K9 then alerted to vehicle. Drugs were found, which the passenger claimed.

The only issue preserved for appeal was whether the K9 sniff added time to the stop. Here, after procuring the relevant licenses and registration, LE testified that he returned to his patrol car to run a driver’s check, but dispatch told him to stand by because of an emergency occurring simultaneously. When dispatch was able to receive LE’s driver’s check request, LE provided the relevant information for dispatch to conduct the check. A review of the video exhibit admitted at the suppression hearing shows that the officer told dispatch he would be on canine deployment and he immediately proceeded to conduct a K9 sniff of the car. The K9 alerted at the front passenger window, and LE testified that he “had not received a return from dispatch when the K9 was deployed and gave an active alert indication.” Whether LE checked on the return from dispatch does not change the fact that the officer had not received a return from dispatch at the time the K9 alerted on the vehicle. Therefore, substantial and competent evidence supported the district court’s finding that the officer performed the K9 sniff while he was waiting for the return from dispatch and dispatch did not provide the return until after the dog gave a positive alert the car. Consequently, the K9 sniff and positive alert occurred while the officer waited for a dispatch return on the driver’s check; thus, the K9 sniff did not add time to the stop. Because a positive K9 alert provides probable cause to conduct a drug investigation, the subsequent search was constitutional and the district court did not err in denying passenger’s motion to suppress.

Note: Ah, what a difference a border makes. Idaho borders Oregon, but the outcome in this case is basically the opposite of the outcome of the Oregon Soto-Navarro case (above). This case is in line with the federal precedent and this outcome is expected.

Maple v. State (Maryland 2021) 2021 Md. App. LEXIS 109
Prolonged Detention

Subject stopped by LE after he ran a red light. Subject was known to LE as involved with the drug trade. Subject did not stop immediately but finally pulled over in a parking lot. LE immediately called for a PSD team to respond based on subject’s actions and CI information on subject. PSD team arrived while first LE was writing the citation. The citing LE stopped writing the citation for a brief period to brief the PSD handler and to get subject out of the vehicle so the PSD could perform a free air sniff. PSD then quickly alerted to the vehicle.

The appellate court held that since the citation was on-going, there was no prolonged detention. “The notion that “any break from tasks related solely to processing the traffic violations constitutes abandonment of the traffic stop is both unreasonable and inconsistent with our prior decisions.” Indeed, this Court has held that officers may pursue investigations into both the traffic stop and another crime “simultaneously, with each pursuit necessarily slowing down the other to some modest extent.” Therefore, the original traffic stop had not ended, nor been impermissibly delayed or extended, when the K-9 alerted during a scan of Maple’s vehicle. Indeed, the alert occurred within the time that tasks tied to the traffic infraction were-or reasonably should have been-completed.

Note: This case closely followed the seminal precedent case of Rodriguez. It also explains that trivial or momentary delays are not fatal to a determination of whether the stop was unduly prolonged. This is the view of the Maryland courts; be sure you know the law in your state.

State v. Smith (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 255
Traffic Stop; Smell of Marijuana as Probable Cause; Alert/Final Indication as Probable Cause; Spontaneous and Unforeseen Circumstances

A motel that was known for drug activity was under surveillance by LE and LE saw activity that, based on LE’s ample training and experience, appeared to be a drug transaction. The subject drove off and LE followed, stopping the vehicle for a lane violation. LE smelled raw marijuana which subject admitted to possessing after trying to blame the smell on a cigar. The vehicle was searched and a large amount of marijuana, THC oil, cash and a loaded gun were found. Subject filed a motion to suppress. The trial court held that the smell of raw marijuana provided probable cause and once marijuana was found in the passenger compartment, that provided probable cause to search the trunk and under the seats. Subject claimed under State v. Witt (2015) 223 NJ 409 that because LE suspected that subject was involved in drug trafficking, LE should have obtained a search warrant instead of using the automobile exception. The appellate court held that in this situation, the facts met the “unforeseen and spontaneous” requirement.

The court held that Witt’s unforeseeable and spontaneous requirement merely requires police secure a warrant to search a car “when it is practicable to do so.” Witt, 223 N.J. at 449. As explained in Witt, “the inherent mobility of the vehicle” is one of the rationales for the automobile exception, recognizing that “‘it [may] not [be] practicable to secure a warrant’ given that ‘the vehicle [can be] quickly moved out of the locality or jurisdiction.”‘ Id. at 422 (quoting Caroll v. United States (1925) 267 U.S. 132, 153). However, when the probable cause over the vehicle is not connected to or threatened by the vehicle’s inherent mobility, police must secure a warrant to find and search the car. In other words, police may “not sit on probable cause and later conduct a warrantless search, for then the inherent mobility of the vehicle would have no connection with a police officer not procuring a warrant.” Thus, the unforeseeable and spontaneous requirement ensures that police officers who possess probable cause well in advance of an automobile search seek a warrant.”

Here, the detectives did not have probable cause in advance of encountering defendant, as they had no knowledge or suspicion of him before observing him at the motel. Rather, probable cause arose after the detectives “kept an eye on” a vehicle that aroused their suspicions and pulled over the vehicle when it was clear they had reasonable suspicion to do so. While stationed in the motel parking lot, the detectives first observed defendant engage in behavior that was indicative of a narcotics transaction, though they did not actually observe an exchange occur. Defendant drove off soon thereafter and committed a traffic violation while exiting the motel parking lot, which led the detectives to pull over his vehicle. The probable cause to search defendant’s car arose spontaneously during this investigative stop when a detective smelled marijuana emanating from defendant’s car. The court went on to state that it is clear that it would not have been practicable for the detectives to seek a warrant upon observing conduct that resembled a drug transaction because of the risk the vehicle would be driven away and its contraband removed. Moreover, a warrant would not have issued at that point because detectives had reasonable suspicion, but not probable cause to believe defendant’s car contained criminal contraband. Because the probable cause to search defendant’s car (smell of marijuana) arose spontaneously and unforeseeably during the valid traffic stop that followed, the motion judge did not err in finding the search comported with the requirements of the automobile exception.

Defendant also complained that LE had no probable cause to search the trunk of the vehicle. The court disagreed, stating the automobile exception applied which allowed LE to search any area where it was reasonable to believe the contraband was hidden. Here, the smell of marijuana was coming from the vehicle which defendant admitted to but failed to disclose the presence of a gun, so it was reasonable to believe defendant failed to disclose contraband in the trunk. Also, a search of the passenger compartment revealed a gun which then allowed LE to expand the search into the trunk. Finally, the court noted that defendant was not arrested at the time of the search, so that meant that there was a potential danger of defendant accessing the trunk to retrieve another undisclosed weapon and using it against the detectives. Thus, the police officers’ concern for their personal safety further permitted the search of the trunk.

Note: New Jersey apparently requires an additional element before LE can search a vehicle pursuant to the automobile exception and that is “unforeseen and spontaneous” fact(s) requirement. This is to eliminate LE using the automobile exception when they had enough evidence to seek a warrant prior to the search. Here, the court held that the smell of marijuana was unforeseen and spontaneous, and therefore sufficient to meet this additional element.

Booker v. City of Lynchburg (2021) 2021 U.S. Dist. LEXIS 26538
Excessive Force; Monell Liability

The defendant department’s policy states that police canines may be used as a means of: (a) physical restraint, (b) apprehending or subduing a person resisting arrest, (c) defense of any person, (d) crowd control, or (e) moving, removing or arresting any person who is obstructing a lawful police action in such a manner that the police action cannot be accomplished. Booker alleges that in this case the K9 was used to threaten, intimidate, attack, inflict pain, and to cause injury to him.

Booker also alleged that “[t]he K9 policy of the Lynchburg Police Department usually results in citizens getting injured by the K9, permitting officers to use excessive force under the policy” and that “part of the K9 policy for the Lynchburg Police Department is called ‘pain compliance’—having a K9 bite a suspect during arrests—which usually causes severe pain to the citizen and does not work.” The court held that these generalized statements are not grounded in any factual allegations, and the Court need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments. Since Booker cannot allege sufficient facts to sustain a charge that the policy of the department was unconstitutional as the basis for excessive use of force, the court dismissed this theory of liability.

The court then addresses the second theory of liability. Because Booker was able to plead that not only was he subjected to excessive force after being subdued, he was able to point to 4 other cases in which excessive force was used on allegedly subdued subjects. The court held that this theory of unconstitutional custom or practice was viable.

The third theory of ratification of bad acts by administration was denied as futile (Booker cannot plead sufficient facts) and dismissed.

The fourth theory was failure to train. “To make out a Monell claim for failure to train, a plaintiff must allege (1) that a specific training deficiency causes city employees to violate citizens’ constitutional rights and (2) that city policymakers had actual or constructive notice that the deficiency causes such violations.” Booker alleges that the officers lacked annual excessive force training. He also alleges that the City’s training in “tactics, handling situations utilizing the K9 element, and the use of force” was inadequate to prepare officers to “handle the usual and recurring situations with which they must deal.” He asserts that “[t]he failure of the City to provide adequate training caused the deprivation of Mr. Booker’s rights by the individual defendants,” and that “[t]he City was deliberately indifferent to the obvious consequences of its failure to train its officers adequately.”

Although these allegations, standing alone, may not suffice, Booker alleges sufficient facts to support these reasonable inferences and thereby state a plausible claim. He describes four prior instances of officers’ use of excessive force against individuals not resisting arrest or threatening officers. And he contends that the officers’ use of similar force against him in similar circumstances ran counter to the City’s express policies. Finally, Booker alleges that the City was aware of and investigated 53 use-of-force incidents in 2018 but either concluded that the use of force was constitutional or failed to reach any conclusion.

The court points out in both instances where the claim was allowed to go forward, that the standard is very low: Booker only needs to show a plausible claim at this early stage.

Note: This appeal only addressed the liability of the department, not the individual officers. This is because the department is the party with the deep pockets. To really get a payday, the complainant needs to find a deep pocket to go after. Here, the court shut down at least part of Booker’s claims.

U.S. v. Watson (2021) 2021 U.S. Dist. LEXIS 27276
Smell of Marijuana as Probable Cause; Reasonable Suspicion: Terry Frisk; Plain Feel Doctrine

LE was driving past a convenience store when they observed Watson holding what appeared to LE a cigar containing marijuana. LE was clearly identifiable when they approached Watson and told him to stop. Watson complied, putting his hands up. As the officers surrounded him, they noticed that his fanny pack appeared to have a heavy L-shaped object inside and suspected Watson was in possession of a firearm. They were right.

Watson complained that LE did not have reasonable suspicion to stop him; that they lacked probable cause for what he claimed was a de facto arrest; LE lacked reasonable suspicion to frisk him and even if they did have reasonable suspicion, they failed to obtain an necessary search warrant. The court found that — at the moment LE directed Watson to “stop” (which constituted a seizure at that point) — LE had reasonable suspicion to believe that the cigar contained marijuana. This reasonable suspicion is based on the fact that, while standing “pretty close” to Watson, and prior to telling him to stop, LE, already suspicious about the shape and wrapping of the cigar, began to detect the smell of marijuana. Therefore, they had reason to detain him and investigate the crime of possession of marijuana. Almost simultaneously, they developed a suspicion that Watson was armed with a gun, which allowed LE to perform a Terry frisk. The plain feel doctrine allowed LE to seize the gun.

Note: Recreational marijuana is illegal in New York although there is legislation pending.

Trent v. State (Indiana 2021) 2021 Ind. App. Unpub. LEXIS 84
Traffic Stop; Smell of Marijuana as Probable Cause

Traffic stop for equipment violation. LE smelled marijuana upon approach. LE told driver they were going to search the car. Driver got out and locked the car. Driver was allowed to walk away. LE had the car towed and a search warrant issued.

Driver complained that the search warrant did not state probable cause. The court held that the officer seeking the warrant stated in the affidavit that he had graduated from the Indiana Law Enforcement Academy (“the Academy”) and that he had “been trained and I have experience in identifying marijuana, the odor of marijuana, and items used to introduce marijuana into the body.” Additionally, LE described the circumstances of the traffic stop, including the observation that Trent was the sole occupant of the vehicle and the detection of a smell the officer recognized as marijuana. LE also stated that Trent had locked the vehicle door, and that Trent had a known history of drug convictions. The court held that the affidavit provided more than a “bare assertion that a substance was a prohibited substance and therefore, there exists a substantial basis for the magistrate’s conclusion that probable cause existed.

Note: This case shows the necessity of providing training and experience in the affidavit to support any conclusions you make. There were other issues in this case that I have not reviewed here because the issues are not relevant to my purposes here. 

U.S. v. Brooks (2021) 2021 U.S. App. LEXIS 3546
Traffic Stop; Smell of Marijuana as Probable Cause

During a traffic stop for seat belt violations, LE smelled marijuana and noted that Brooks was making a stuffing motion next to him as they approached. A search revealed a firearm stuffed between the seats next to Brooks. The court held that the smell of marijuana was sufficient to search the vehicle, but LE also saw the stuffing motion which added to probable cause.

Note: This is a federal case where marijuana is still illegal for all purposes.

U.S. v. McIntyre (2021) 2021 U.S. Dist. LEXIS 22712
Traffic Stop; Prolonged Detention

Traffic stop for lane violations. McIntyre was the only occupant. McIntyre appeared overly nervous with shaking hands. LE also observed while speaking with McIntyre that there were digital scales in the cupholder consistent with drug trafficking. LE also recognized McIntyre as a local meth dealer who was under active investigation by LE. Consent to search was denied, so LE called for a K9 team. While LE was waiting, LE check for warrants and also checked with the agency with the current investigation. Within 5 minutes the K9 team arrived and performed a sniff in which the K9 alerted twice to the car. At the time of the alert, LE had not completed their record check of McIntyre or issued an citation. The vehicle was searched based on the K9 alert and contraband was found, including cash and a gun.

Since McIntyre presented no evidence to the contrary, the court found that the stop was based on reasonable suspicion of a traffic violation. The court then held there was no prolonged detention. LE, upon approaching the vehicle, noticed black digital scales in the cupholder of McIntyre’s vehicle and knew that scales are often used in drug distribution and dealing. Further, LE observed Defendant’s nervous demeanor and shaking hand when he asked for his vehicle paperwork. LE also recognized McIntyre from previous drug-related investigations in the area and knew that McIntyre had a drug-trafficking history. Although a K-9 unit was called to the scene, LE did not extend the traffic stop unreasonably by doing so because they were still checking for warrants when the K-9 unit arrived on scene. However, even if the record and warrant check had been completed prior to the arrival of the K-9 unit, LE still had reasonable suspicion to extend the stop because the observation of digital scales combined with McIntyre’s nervous demeanor and known history of drug trafficking provided reasonable suspicion that illegal activity was taking place. The stop took a total of four to six minutes: clearly a reasonable time.

Finally, the court held that the first alert of the K-9 unit did not constitute a search and provided reasonable suspicion for the officers to search McIntyre’s vehicle. Generally, an alert by a drug-detecting dog provides probable cause to search a vehicle under Rodriguez, Here, the K-9 unit first alerted on the closed front passenger side door of the vehicle, giving LE probable cause to search the vehicle. Regardless of whether the dog’s jumping in the driver’s side door of the vehicle constituted a search, she had already alerted on the other side of the car where the door was closed, so there was probable cause for the search. Thus, LE’s stop of Defendant was reasonable in scope and based on reasonable suspicion, and their search of the vehicle was supported by probable cause. The motion to suppress was denied.

Note: The court’s conclusion that a 4-6 minute time period was reasonable is a little misleading. Remember, Rodriguez holds that the time doesn’t matter; it’s whether the sniff took place while the investigation of the traffic violation was ongoing or if there was additional reasonable suspicion to investigate other crimes. However, the court did find that 1) there was no prolongation because the sniff happened during the time in which the traffic investigation was ongoing and 2) LE had reasonable suspicion of drug criminality which expanded the time of the traffic investigation to encompass the investigation of drug violations. This analysis would pass muster under Rodriguez.

Ellis v. State (Texas 2021) 2021 Tex. App. LEXIS 692 (Unpub.)
Traffic Stop; Prolonged Detention; Alert as Probable Cause

LE was conducting surveillance on Ellis’ home when LE saw a red compact car leave the property. LE knew the car to be associated with Ellis. As LE followed the car, LE observed Ellis fail to signal a turn. In the vehicle were two people; Ellis was the driver. LE removed Ellis from the vehicle. LE then waited for back up (for safety reasons) before he got his K9 out to conduct a sniff. The K9 alerted to the car. A search of the car revealed methamphetamine. The court held that a pretextual stop is valid even if there is an ulterior motive for the stop.

Note: This issue was apparently the only issue that Ellis appealed on. I do note that LE waited for back up before running his K9 around the car. This raises some issues for me: unless you can articulate why you felt that your safety required you to wait for back up to conduct the investigation of the traffic stop, I don’t know that a court won’t find prolonged detention. This is not to say don’t be safe. Safety above all is paramount; if you lose the case on a suppression motion, he’ll be back. 

State v. Spratley (Ohio 2021) 2021-Ohio-262
Traffic Stop; Prolonged Detention

K9 handler conducted a traffic stop for excessive noise. Spratley was the passenger. LE asked both occupants for ID; they refused until LE told them why they were stopped. This went back and forth for a while and LE then called for back-up. Two other LE arrived. At that time, the discussion had been going on for 4 minutes. LE then ordered driver out of the car again and he complied. Spratley stayed in the car under the observation of a back up officer. Driver finally gave LE his SSN as ID; dispatch came back within a few minutes that driver did not have a driver’s license. At the point, it was clear that neither occupant could legally drive. LE’s ordinary procedure is to tow the vehicle, but since driver’s licensed girlfriend was in the area, driver was allowed to call her to pick up the car. Consent to search was then refused. LE then deployed his K9 which alerted to the vehicle on the passenger side. LE opened the passenger door and ordered Spratley out. He refused, was agitated and uncooperative, requiring LE to physically pull him out of the car. Spratley then resisted handcuffing and LE were forced to tackle him to the ground. The car was searched and a hand gun was found. There was residue of marijuana but it was not seized or photographed. On the way to jail, Spratley said the gun was his.

Spratley only challenged the alleged prolonged detention. The court first recognized that a sniff is not a search and therefore a sniff can be performed during a traffic stop as long as the stop is not impermissibly prolonged by the sniff. Here, the initial stop for excessive noise was expanded into an investigation of the license status of both occupants. That this process took nine minutes was the fault of both occupants refusing to identify themselves. Once LE found out that neither occupant could drive, LE then was charged with the task of either towing the vehicle or finding a licensed driver. These tasks were all related to the traffic stop. LE’s deployment of the K9 while waiting for the girlfriend to arrive meant that the deployment took place during the investigation of the traffic stop without impermissibly prolonging it.

Note: Nothing really new here. Good history of the histrioncs of the passenger and using his behavior against him. 

U.S. v. Newell (2021) 2021 U.S. Dist. LEXIS 10850
Plain View Doctrine; Alert as Probable Cause; Prolonged Detention

Traffic stop to arrest Newell on an arrest warrant. A K9 alerted on the car. Newell complained that the K9 did not perform a final indication. The handler explained that the K9 performed a final indication by sitting and looking at the vehicle after first attempting to get into the vehicle. This was consistent with K9’s training; if an odor was low to the ground, he was trained to lie down. If the odor was at approximately waist height, he was trained to sit. In any event, he was trained to get as close as possible. Based on the testimony of the handler in addition to the dash cam, the court held that the K9 did perform a final indication.

Subject then complained that the handler cued the K9 because the handler said he was going to find drugs in the vehicle. The court responded, “The dashcam video clearly shows that the dog alerted in the manner his handler testified he was trained to do. The fact that the handler may have cued the dog to initiate his sniff is not evidence that the handler cued the dog to alert, or more particularly where to alert. The study submitted by the Newell addresses the situation where a drug dog may actually alert to some cue reflecting his handler’s expectations rather than an actual odor. There is no evidence before the Court, however, to support such a finding here.” Handler’s statement was made earlier in the process and at a different location from the dog’s alert. Newell had the opportunity to cross-examine the handler about this but did not do so. He did not ask about the handler’s routine for initiating a sniff, or about his actions immediately before the dog’s alert. There is nothing apparent on the dashcam video to indicate that the dog alerted to handler’s earlier cue rather than the methamphetamine.

Newell also complained that the traffic stop was unduly prolonged. However, in this situation, the stop was to serve the arrest warrant. In addition, the driver was unlicensed so LE had to either arrange for a tow or wait for a licensed driver. The sniff was performed while these activities were going on.

Finally, the court found probable cause to search the vehicle based on the final indication of the PSD and the pipe in plain view.

Note: Since the mission of the stop was to serve an arrest warrant, the timeline was a little bit different. However, keep in mind that the prolonged detention argument is not limited to traditional traffic stops for vehicle violations. The court also made short work of the “cueing” argument, clearly understanding that an order by the handler to begin sniffing is not cueing. 

People v. Vansteen (California 2021) 2021 Cal. App. Unpub. LEXIS 1079
Traffic Stop; Reliability Foundation

Traffic stop for improper registration tags. Driver first consented to a search of the car, but then withdrew it. LE then deployed a K9 who alerted on a back pack through the open driver’s door. In a safe in the vehicle was a methamphetamine.

Driver complains that since the K9 could have been alerting on a legally possessed amount of marijuana, there was no probable cause to search the back pack and the vehicle.

The court held there was probable cause to search defendant’s truck. Aero, a trained and POST-certified narcotics dog, alerted to defendant’s backpack located in the truck. Under California law, this alert created a “fair probability” that defendant’s backpack contained contraband. The court went on to hold that California’s cannabis laws do not negate probable cause here. Though some possession of cannabis is legal after the voters passed Proposition 64, the possession of cannabis can still be illegal as “[i]t remains unlawful to possess, transport, or give away marijuana in excess of the statutorily permitted limits, to cultivate cannabis plants in excess of statutory limits and in violation of local ordinances, to engage in unlicensed ‘commercial cannabis activity,’ and to possess, smoke or ingest cannabis in various designated places, including in a motor vehicle while driving.” Further, all the other substances Aero is trained to detect, methamphetamine, cocaine, heroin and ecstasy, are illegal to possess in any quantity. Because Aero’s alert raised a probability or substantial chance that defendant’s backpack contained contraband, probable cause existed for the officer’s search.

Note: This is a great case for us. The 3rd District Court here points out that even if the K9 was alerting on marijuana, there are ways that marijuana possession is still illegal in California. In addition, the court indicates that the K9 could have been alerting on any of the other odors he was trained to detect, all of which are illegal in California. I am surprised this argument wasn’t raised before, but I’m glad it has. Hopefully, the Supremes will take this issue up and resolve it in the same manner as this case. It would make more sense legally for this to be the law in California.