MARCH 2022 UPDATE FOR MEYER’S K9 LAW (Volume 3, 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 2022. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.)

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

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

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


Lawmakers in South Dakota and Maryland advanced multiple proposals for legalizing adult-use cannabis, while Utah lawmakers sent a psychedelics bill to the governor’s desk.

New York Gov. Kathy Hochul signed into law a new adult-use cannabis cultivator license program, allowing hemp farmers across the state to apply for licenses to grow cannabis for the anticipated adult-use recreational market.

Legislators in Wyoming, Missouri and Kentucky debuted bills to legalize cannabis in some form.

Two Washington state cannabis trade organizations have told a federal judge in a proposed friend-of-the-court brief that federal law has effectively allowed regulated marijuana markets to flourish and that constitutional protections and rights should apply to the industry. (This is a fascinating and out-of-the-box argument; I will track this case as it proceeds through the system.) The marijuana organizations are challenging Washington State’s residency requirement for cannabis businesses, which blocks the same access to capital that all other legal businesses may participate in (pot companies can’t get bank funding). Washington and Alaska are alone among legal cannabis states in blocking access to capital for legal cannabis businesses. Their court filing argues that Washington should not be allowed to violate the federal constitutional rights of citizens in its licensing of cannabis businesses or regulation of the cannabis industry (in other words; non-marijuana businesses and industries get bank funding; why shouldn’t they?)


United States v. Green (Pennsylvania 2022) 2022 U.S. Dist. LEXIS 33933 – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. McCarley-Connin (Ohio 2022) 2022 U.S. Dist. LEXIS 33992 – Package Sniff; Alert as Probable Cause

State v. Jones (Ohio 2022) 2022-Ohio-561 – Traffic Stop; Odor of Marijuana as Probable Cause; Non-Use of K9 When Marijuana Smell Detected by Handler

United States v. Imhoff (California 2022) 2022 U.S. App. LEXIS 5232 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause

Manna v. Calloway (Indiana 2022) 2022 U.S. Dist. LEXIS 31574 – Excessive Force; Bystander Liability

Bonneau v. City of Portland (Oregon 2022) 2022 U.S. Dist. LEXIS 31074 – Luggage Sniff; Alert as Probable Cause

Commonwealth v. Lomax (Pennsylvania 2022) 2022 Pa. Super. Unpub. LEXIS 414 – Traffic Stop; Odor of Marijuana as Probable Cause

Givens v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 140 – Traffic Stop; Prolonged Detention

Collik v. Pohlabel (Ohio 2022) 2022 U.S. Dist. LEXIS 26656 – Traffic Stop; Prolonged Detention; Alert as Probable Cause

United States v. Johnson (Indiana 2022) 2022 U.S. Dist. LEXIS 27793 – Traffic Stop; K9 Alert as Probable Cause; Reasonable Suspicion

State v. Keller (Louisiana 2022) 2022 La. App. LEXIS 247 – Odor of Marijuana as Probable Cause

Michoff v. El Dorado County (California 2022) 2022 U.S. Dist. LEXIS 28459 – Excessive Force; Heck Doctrine

United States v. McDonald (North Carolina 2022) 2022 U.S. Dist. LEXIS 28667 – Excessive Force; Detention/Arrest as Violation of 4th Amendment

State v. Stevens (Iowa 2022) 2022 Iowa Sup. LEXIS 13 – Traffic Stop; Alert as Probable Cause; Search of Passenger

United States v. Brown (South Dakota 2022) 2022 U.S. Dist. LEXIS 17867 – Traffic Stop; Reasonable Suspicion; Prolonged Detention

United States v. Martinez (Louisiana 2022) 2022 U.S. App. LEXIS 2887 – Package Sniff; Prolonged Detention; Alert as Probable Cause

United States v. Lackey (Pennsylvania 2022) 2022 U.S. App. LEXIS 2964 (Unpub.) – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Green (Georgia 2022) 2021 U.S. Dist. LEXIS 252464 – Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

United States v. $487,025.00 in United States Currency (Kansas 2022) 2022 U.S. Dist. LEXIS 20582 – Traffic Stop; Currency Sniff; Expert Witness


United States v. Green (Pennsylvania 2022) 2022 U.S. Dist. LEXIS 33933
Traffic Stop; Odor of Marijuana as Probable Cause

During an investigation of an opioid death, LE used an informant to do a controlled purchase heroin from a silver Lincoln. After the purchase, Green got into the Lincoln about 15 minutes later. The vehicle was followed by LE to a known drug supply area. LE saw smoke coming from the Lincoln and when it stopped at a traffic light, LE smelled marijuana. A traffic stop was performed by a marked unit based on the controlled buy. The Lincoln stopped and when LE approached, the Lincoln took off and shortly thereafter collided with another car. The driver fled and LE pursued. LE also noted bricks of heroin in plain view on the driver’s floorboard. Green was detained (passenger) after hiding under a nearby vehicle and attempting to walk away.

Green claimed that LE did not have reasonable suspicion for the initial stop (he had other claims but none are relevant for these purposes). The court first addressed the initial stop; driver and Green only submitted momentarily to LE’s authority before driving off. According to the court, Green was only seized for 4th Amendment purposes when he was detained after hiding under another car and trying to walk off.

The court then held that, at the time Green was seized, there was reasonable suspicion to conduct a traffic stop of the Lincoln on three independent grounds: (a) the attempted flight of the Lincoln; (b) LE’S knowledge about the controlled purchase of heroin from Green by the informant and their reasonable suspicion that Green was replenishing his heroin supply; and (c) the observations of marijuana smoke and odor. The flight gave LE the reasonable suspicion to pursue it as they reasonably believed such flight was against Pennsylvania law. In addition, the controlled transaction gave LE reasonable suspicion to believe that the occupants in the Lincoln were involved in drug trafficking and that the Lincoln contained controlled substances. Finally, the court held that the presence of marijuana smoke and odor was reasonable suspicion to detain the Lincoln and its occupants.

The court held, therefore, that the above, in addition to the visual evidence of the bricks of heroin, were sufficient probable cause to search the vehicle.

Note: Pennsylvania has not legalized marijuana for recreational use but does recognize some medical use (no one claimed medical use possession here).

United States v. McCarley-Connin (Ohio 2022) 2022 U.S. Dist. LEXIS 33992
Package Sniff; Alert as Probable Cause

Postal Inspectors were conducting parcel interdiction and seized a package that they suspected might be connected to drug trafficking. based on the appearance of the packages and their training and experience. They exposed the package to a drug detection K9. The K9 alerted to the scent of unlawful controlled substances. On opening the package, Inspectors found $19,440 wrapped in magazines. There was another package addressed to the same address which also had similar characteristics. This was also sniffed by the K9 and 1250 grams of fentanyl were found.

A search warrant was sought for the address to which both packages were addressed and LE conducted a controlled delivery by putting a tracking device in the box. McCarley-Connin looked out of the door and a female (Roberts) took the box inside. Both were followed as they left. The female was in possession of the tracking device and McCarley-Connin was found in a sandwich shop. A search of the house netted more cash, guns and ammo. There was additional information given by a phone call (see below).

The court held there was sufficient probable cause for the arrest of McCarley-Connin because 1) McCarley-Connin was the sender of a parcel post package; 2) the circumstances of its mailing were common in the drug trade; 3) a trained drug detection dog had alerted when exposed to the package; 4) the package contained slightly less than $20,000 in cash; 5) McCarley-Connin and the addressee both had no known association with, respectively, the return and delivery addresses; 6) the IP address of a computer that had checked the tracking information on the package traced back to another resident at 228 E. Tiffin St.; 7) the IP address of another computer used to track the package traced back to a California address; 8) both computers had tracked a package en route from California to 228 E. Tiffin St.; 9) Roberts, who identified herself as the addressee’s girlfriend, had called the Postal Service about the possibly missing package that McCarley-Connin had sent; 10) when asked, the caller stated that the value of its contents was more than $20,000; 11) a male later identified as McCarley-Connin was seen looking out from 2228 E. Tiffin St. proximate to the controlled delivery; 13) shortly thereafter, a woman, later identified as  oberts, took the package inside; 14) almost immediately thereafter, the tracking device alerted, thereby telling the officers that the package had been opened; 15) that alert, in turn, made the officers aware that it was more than likely that McCarley-Connin and Roberts knew that law enforcement officers knew of their attempt to obtain and distribute a kilogram of Fentanyl; 16) within eight minutes of the controlled delivery, both left the premises; and 17) by the time they apprehended McCarley-Connin, they knew his identity (probably by running his plate).

Note: The alerts by the K9s supplied at least part of the probable cause here. In addition, this was a well-presented investigation with lots of layers to it (pack sniffs, phone calls, computer searches, etc.)

State v. Jones (Ohio 2022) 2022-Ohio-561
Traffic Stop; Odor of Marijuana as Probable Cause; Non-Use of K9 When Marijuana Smell Detected by Handler

Jones was stopped by LE for window tint violation and a defective brake light (also, Jones’ driving was hinky). LE approached and noted that Jones and his passenger were overly nervous. LE detected the smell of raw marijuana coming from the vehicle. LE searched the car based on that smell and located a magnetic box on the undercarriage that contained cocaine. There was a K9 on scene but was not utilized.

At the trial level, the presiding judge asked if the defense (Jones) had any issue with the probable cause for the stop and counsel said no, the only issue was whether or not the officer had reasonable suspicion that additional criminal activity was afoot (in addition to the traffic violations). The appellate court questioned whether they had jurisdiction over the issue of the stop, but held that in any event, LE had reasonable suspicion to stop the vehicle on the window tint (later tested) and the defective light. Jones then complained that the stop was prolonged.

The court then held that the smell of marijuana supplied probable cause for the search of the vehicle, which expanded the investigation to investigate the smell and therefore the stop was not prolonged.

The court then went on; “We note appellant’s concern that (LE) should have used the on-site drug-detection dog rather than conduct a manual search of the vehicle. Jones has not, however, cited any authority to support his assertion that law enforcement officers must use a drug-detection dog if the dog already is on site before the officers may manually search a vehicle. We further note that (LE) stated that he “never” uses the drug-detection dog once he detects the odor of marijuana.” Additionally, a few other Ohio courts and the 6th Circuit have rejected similar challenges.

Note: Interesting issue regarding the non-use of the K9. It’s a smart position to take if the handler detects the smell of marijuana to not use a marijuana trained K9 so as to not muddy the legal waters, given the continuously changing legal landscape on marijuana. At the time of the stop, Ohio had only legalized medicinal marijuana.

United States v. Imhoff (California 2022) 2022 U.S. App. LEXIS 5232
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause

This case is a review of a lower court’s decision, so the factual basis is not recited. The court based its decision on the following: “During the suppression hearing, LE testified that Imhoff provided a rental contract indicating that the vehicle was rented in Las Vegas, Nevada, two days prior to the traffic stop, for a five-day period. Imhoff informed LE that he was traveling to the oil fields in North Dakota for work, which LE found inconsistent with the five-day rental agreement. LE also observed that the vehicle contained “a trash bag,” “a small day pack,” “cigarettes, coffee drinks, [and] fast-food wrappers,” but “no visible luggage.” These observations generated a reasonable suspicion that Imhoff was engaged in narcotics trafficking rather than traveling for work.

“LE further testified that, due to indications of “possible criminal drug activity,” he asked dispatch for a criminal history check “while [he was] filling out the [traffic] warning card,” and “[a]t no point did any detention last longer than it took to fill out the warning card.” The trooper also related that Imhoff “could never specifically say where he was going,” and Imhoff “changed his story three different times” concerning his residence in North Dakota.”

The court held that based on the totality of circumstances, LE had reasonable suspicion to further investigate Imhoff’s potential involvement in drug trafficking and did not impermissibly prolong the traffic stop. LE requested a criminal history check and posed questions to Imhoff about his destination and background based on his suspicions that Imhoff was engaged in narcotics trafficking due to the items in the van, and discrepancies between the work schedules in the North Dakota oil fields and the rental agreement, viewed in light of LE’s extensive experience and training in drug interdiction. Therefore, the lower court properly concluded that the K9 sniff did not prolong the detention because there was additional reasonable suspicion to suspect Imhoff was engaged in drug trafficking.

Note: Nothing really new here, but this case does demonstrate that making a record of the reasons that support your prolongation of the traffic stop to conduct a K9 sniff requires substantial articulation of the facts as well as the training and experience of the handler (or other officer if the K9 team is called in and was not the detaining officer).

Manna v. Calloway (Indiana 2022) 2022 U.S. Dist. LEXIS 31574
Excessive Force; Bystander Liability

Prisoner Manna alleged that handler and two other LE violated his Eighth Amendment rights by subjecting him to excessive force. Specifically, he alleged that during an altercation with LE, where two LE had placed him in shackles and cuffs and were holding him down, handler released and ordered his K9 to attack him. Manna asserts that because LE used physical force to restrain him and a taser had been deployed, there was no reason for handler to order his K9 to attack him. He states that LE allowed him to be assaulted because handler ordered them to move off of his legs and out of the way so handler could deploy his K9. Id. Manna sustained a leg wound from the attack and still suffered from sharp pain and stinging sensations in his leg.

The court explained that under the Eighth Amendment, prisoners cannot be subjected to cruel and unusual punishment. The “core requirement” for an excessive force claim is that LE “used force not in a good-faith effort to maintain or restore discipline, but maliciously and sadistically to cause harm.” The use of a dog can constitute excessive force on the part of the dog’s handler. The court then held that giving Manna the inferences to which he is entitled at this stage of the proceedings, he had stated a plausible claim against handler for ordering his K9 to attack him in violation of the Eighth Amendment.

To the extent Manna alleges LE did nothing to prevent the K9’s attack, the court explained that state actors “who have a realistic opportunity to step forward and prevent a fellow [state actor] from violating a plaintiff’s rights through the use of excessive force but fail to do so” may be held liable. It can plausibly be inferred that LE had sufficient opportunity to intervene and prevent the K9’s attack on Manna because handler ordered them to move out of the way before he released his K9. Therefore, Manna has stated a claim for failure to intervene against these two bystanding officers.

Note: This is a very early stage of the case when the court reviews a prisoner’s complaint to see if there is a properly pled claim. At this stage, courts must take the prisoner’s statements as true. If this case proceeds, then LE will be able to respond with their position. Remember that bystander liability is a real issue, especially now post-George Floyd.

Bonneau v. City of Portland (Oregon 2022) 2022 U.S. Dist. LEXIS 31074
Luggage Sniff; Alert as Probable Cause

Bonneau arrived home by train in Portland after staying a week in New York City. His luggage contained a vape marijuana pen. As he disembarked the train, he saw LE searching a passenger’s luggage and a handler with a drug detection K9 (trained on marijuana) standing by. As he walked by, Bonneau veered away from LE. As Bonneau passed, K9 showed interest. K9 walked up to Bonneau’s luggage and alerted. All this was without command by the handler. Bonneau was stopped and informed of the K9’s alert. Bonneau was nervous and evasive. Consent was refused. Bonneau was then informed that he could leave his luggage with LE with a receipt to reclaim it after a search warrant was issued and the luggage searched. Bonneau refused and LE arrested him. After finding out from the prosecutor that they believed they had enough evidence to seek a warrant from a judge, LE told Bonneau this and again asked for consent. With this new information, Bonneau consented with the proviso that Bonneau would hold each item up and replace it in the luggage. LE agreed to this procedure and no contraband was found. Bonneau was held for 5 to 6 hours total. Bonneau then sued for illegal search and seizure.

The court found that the investigatory stop was valid because LE had reasonable suspicion of drug activity, holding that an alert from a certified drug police dog provides probable cause to stop, investigate and search. The additional factors considered were the facts that traffickers often take the train rather than a plane to avoid the heightened level of inspection at airport, that Bonneau tried to veer away from LE, and that he was nervous and evasive.

Bonneau’s arrest did not violate the Fourth Amendment because LE had probable cause to believe that Bonneau possessed illegal drugs or proceeds from the sale of illegal drugs in his luggage. LE knew that K9 was certified in detecting the scent of illegal drugs and that K9 had turned his head toward Bonneau when he walked by and then followed and sniffed Bonneau’s luggage. LE  also knew that Bonneau’s short trip by train was consistent with typical behavior of someone who had travelled to sell illegal drugs. Further,  LE knew that Bonneau had tried to avoid LE when walking down the platform and had been nervous and evasive when responding to their questioning. Thus, the totality of circumstances suggests that there was a fair probability that Bonneau had committed a crime, providing LE with probable cause to arrest Bonneau.

Note: While Oregon has a line of cases regarding the legal v. illegal possession of marijuana that holds that a K9 alert is not probable cause for drug offenses, this was a federal case because the officers involved were from the Department of Homeland Security policing transit systems. Since this case was brought in federal court, federal rules apply. The court also held that the consent to search was valid, but that isn’t really relevant to our purposes here.

Commonwealth v. Lomax (Pennsylvania 2022) 2022 Pa. Super. Unpub. LEXIS 414
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for window tint violation and defective tail lights. Upon approach, LE detected the odor of fresh, unburnt marijuana in the car. LE did not detect any signs of impairment and Lomax was calm and cooperative. LE obtained the necessary documents from Lomax and had him exit the vehicle. Lomax denied having smoked marijuana and showed LE a medical marijuana card. Asked again, Lomax admitted to smoking about 4 hours prior to the stop. After field sobriety tests, Lomax was arrested for driving under the influence of marijuana. LE testified at the suppression hearing that there was no driving and no symptoms that indicated impairment at the time of the first contact.

The court held that once LE had Lomax exit the car and started questioning him about marijuana possession and use, this transformed a reasonable suspicion based traffic stop into an independent investigative detention to investigate additional potential illegality (beyond what the stop was for). However, LE did not have the necessary additional reasonable suspicion of additional criminal activity to do so. The only item LE had at the time he started questioning Lomax about marijuana possession and use was the smell of fresh marijuana (the court found that the bloodshot/glassy eyes were only discovered after telling Lomax to get out of the car). The court held, then, that absent any other indicia of wrongdoing the smell cannot objectively suggest anything more than the possession of a substance that many Pennsylvanians can legally possess. As such, it cannot, on its own, establish the kind of reasonable suspicion necessary to initiate an investigative detention.

Note: The government didn’t challenge the holding that the smell of marijuana was not enough to investigate further than the traffic violations. They instead argued that LE was in possession of additional reasonable suspicion to justify the investigation into marijuana possession/use. There was no discussion about the federal standard that LE has the right to require all occupants of a vehicle to exit. Perhaps, had the government argued that the exit from the vehicle was in furtherance of the traffic stop, the court would have ruled differently, as the stop morphed into a DUI investigation. 

Interestingly, Pennsylvania still prohibits recreational marijuana. Apparently, this court believed that possible medical possession is enough to find that the smell did not rise to reasonable suspicion (let alone probable cause). California, in contrast, didn’t start holding that the odor of marijuana was not enough for further investigation until recreational marijuana was legalized.

Givens v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 140
Traffic Stop; Prolonged Detention

During a surveillance of a home suspected to be involved in drug trafficking, Givens drove away from the home in his black SUV and was pulled over for speeding.

LE obtained Givens’ driver’s license and registration. LE returned to his cruiser and input Givens’ information into his computer to check the validity of Givens’ driver’s license and to determine if Givens had any outstanding warrants. Finding no issues, LE decided to write Givens a warning rather than a citation. LE was out of warning forms, so he had to obtain a warning form from another officer who had arrived to assist. As LE was writing the warning, handler arrived at the scene of the traffic stop with his K9. After LE finished writing the warning, he approached Givens’ SUV. LE asked Givens to step out of the SUV, at first explaining that he needed to explain the violation and warning to him and subsequently explaining that a K9 sniff was to be performed on the SUV. Givens refused and, after several minutes of discussion, he was forcibly removed from the SUV. After Givens was removed from the SUV, K9 alerted to the vehicle. A gun and marijuana were found.

Givens did not dispute that he was validly stopped for a traffic infraction, or challenge the K9 sniff and alert. However, Givens did claim that the stop was impermissibly prolonged for the K9 sniff. Givens contended that his traffic stop was unconstitutionally extended because the K9 team arrived as LE approached the SUV to give him the written warning and to ask him to step out of the vehicle. Givens further contended that the traffic stop was already complete at that time because LE had finished writing the warning and all LE had to do to complete the stop was to return the documentation. In light of these facts, Givens argued that “since the purpose of the traffic stop was complete[,] it would be unreasonable to allow officers to arbitrarily extend the time of the stop by merely holding onto documents owned by the driver[.]”

However, the appellate court held that the trial court specifically found that the K9 team were present at the scene before LE approached the SUV to explain the written warning and to ask Givens to step out of his vehicle, and it further found that LE did not delay or dawdle in effectuating the purposes of the traffic stop. Therefore, to credit Givens’ arguments about the timing of the arrival of the K9 team and LE’s arbitrarily retaining his documentation would be to ignore the standard of review which requires the appellate court to defer to the trial court’s factual findings and to refrain from reweighing the evidence. The appellate court also held that an officer’s additional act of explaining to Givens the reasons for the traffic stop and the warning are a valid part of a traffic stop which do not impermissibly extend the stop. Here, LE, who still had to return Givens’ documentation, had not even begun his explanation of the violation and written warning when he asked Givens to step out from the SUV. Therefore, the traffic stop was not prolonged as the purposes of the traffic stop were still ongoing when LE asked Givens to exit his SUV.

Note: Interesting approach on appeal by the defense; argue that the facts produced in the trial court were not true. That is not strategically sound as this is not how our system works. The opportunity to make the legal record is in the trial court. That record is then what the appellate court must base its findings on. That’s why it is so critical that the trial court level proceedings are fully litigated and all evidence is presented. There will be no other opportunity to augment the record.

Collik v. Pohlabel (Ohio 2022) 2022 U.S. Dist. LEXIS 26656
Traffic Stop; Prolonged Detention; Alert as Probable Cause

LE saw Collik’s vehicle and noted that the windows were tinted. In addition, Collik slowed without braking and leaned over the steering wheel and looked away from LE. LE decided to follow and run the plate. Collik then committed a lane violation, so LE stopped the vehicle. (The dash cam showed Collik’s tires touching the fog line, but not going over the fogline). It also took about a mile for Collik to pull over, even though a car in front of Collik pulled over in response to the lights and siren while Collik was still driving.

Collik was instructed to get out and come back to the cruiser. Collik was patted down via consent and then instructed to get into the passenger seat of the cruiser. There ensued a discussion of Collik’s travels, the condition of the vehicle and Collik’s job history. Based on everything to that point, LE believed something other than traffic violations was going on and called for a K9 team to respond. LE then pursued the traffic violations by asking additional questions and filling out the citation. While this was going on, the K9 arrived and alerted. The vehicle was searched and Collik was detained for about an hour total.

During this time, K9 team arrived and conducted a free air sniff of Collik’s vehicle, resulting in an alert.  The officers then searched Collik’s vehicle (including its trunk), which resulted in Collik being detained for a total duration of over an hour (apparently nothing of interest was found).

Collik filed a violation of civil rights complaint by unlawful seizure and search. As to the stop, Collik claimed that he did not violate the law because his tires never crossed the entirety of the fog line. The court held that the fact that LE reasonably thought that Collik committed a lane violation was enough probable cause to conduct the traffic stop. This legal issue was up in the air when Collik was stopped and therefore, the court held, LE was entitled to qualified immunity even if the facts were as Collik alleged because the law was not clearly established on this point (whether the violation required all of the tire to be over the fog line).

The court moved on to the issue of the prolongation of the stop. The court held that the body cam footage showed there was no prolongation of the stop. LE questioned Collik in part because he was concerned that Collik was falling asleep while driving. The few moments that LE made inquiries unrelated to the stop’s mission (and that occurred prior to him having reasonable suspicion that Collik was trafficking contraband) did not prolong the stop “beyond the time reasonably required to complete the mission.” “In other words, the reasonable suspicion arose within the permissible duration of the initial stop because any earlier time spent on unrelated investigations was far shorter than the amount of time reasonably necessary to complete the remaining tasks tied to the traffic infraction. . . . In short, the video demonstrates that reasonable suspicion existed prior to the time when the “tasks tied to the traffic infraction … reasonably should have been” completed.” Therefore, LE was entitled to qualified immunity on this issue as well.

Note: This court was less harsh in determining whether there was any prolongation than other courts. Keep in mind the test: are you doing or saying anything that is not transactionally related to the traffic stop? If so, you need to be investigating to determine if there is any additional reasonable suspicion.

Also, the court was unconcerned about the lack of evidence found even though the K9 alerted. The standard of probable cause (in this case, to search the vehicle) is less than reasonable doubt, which would require finding actual product. The court recognized this (reliable K9’s alert is PC) and determined even without the alert that LE had probable cause to handle the situation as they did.

United States v. Johnson (Indiana 2022) 2022 U.S. Dist. LEXIS 27793
Traffic Stop; K9 Alert as Probable Cause; Reasonable Suspicion

Handler stopped Johnson for displaying expired registration. Handler also noticed Johnson appeared to be trying to hide his face from LE. During the contact, handler discovered Johnson was also suspended (a misdemeanor). Handler decided to arrest Johnson and call for a tow to impound the vehicle. Handler also called for back up at this point. A consensual pat down search of Johnson revealed a large amount of cash. K9 deployed for a sniff; K9 alerted several times to the vehicle. A search of the vehicle revealed guns, ammo and drugs hidden in “natural voids” in the interior of the vehicle.

Johnson filed a motion to suppress. Johnson conceded that the stop was valid as the registration was expired and conceded that LE had the right to remove him from his vehicle. Johnson did complain that being seated in the patrol car without handcuffs prior to the K9 sniff was tantamount to an arrest and at that point, LE did not have probable cause sufficient to arrest him. Based on Arizona v. Gant, the court held that at the time, Johnson was only subject to arrest for the misdemeanor suspended license. However, the court points out, the search of the vehicle was based on the probable cause arising from the K9 alert. The court went to hold that the sniff did not unconstitutionally prolong the investigation because 1) Johnson was already in custody on a misdemeanor and not free to go and 2) the vehicle was going to be towed. These two factors allowed for the sniff to happen which then resulted in probable cause to search the car. The court also held that Johnson trying to hide his face, he was in possession of a large amount of cash and that he took a little bit longer to pull over than handler thought he should have was enough reasonable suspicion to allow for a K9 sniff.

Note: It’s interesting that a case as clear cut as this one actually made it to the appellate court. This is a text book example of facts that clearly support the deployment of the K9 and the subsequent search based on that probable cause as well as K9 deployment during the investigation of the misdemeanor (and therefore, not an unlawful prolongation). 

State v. Keller (Louisiana 2022) 2022 La. App. LEXIS 247
Odor of Marijuana as Probable Cause

LE was dispatched to a home to assist the owner of a car in which the keys had been locked inside. When LE arrived, LE met with the owner and obtained permission to open the door. When LE opened the door, LE could smell the odor of marijuana coming from inside. LE then entered and searched the vehicle in an attempt to determine where the smell was coming from. A marijuana cigarette was found in the ashtray and illegal firearms were also found.

The appellate court held that LE was justified in conducting a warrantless search of the vehicle and in seizing the guns contained therein. LE was called to the private property to assist with unlocking a vehicle. The owner of the vehicle specifically requested his assistance and was present when LE unlocked and opened the door. As LE did so, LE smelled burnt marijuana. The odor of marijuana provided LE with sufficient probable cause to conduct a warrantless search of a vehicle. Therefore, the search was valid and the motion to suppress denied.

Note: Louisiana passed a law that allows for “smokable forms of marijuana” to be legal for medicinal use. Louisiana has not legalized recreational marijuana.

Michoff v. El Dorado County (California 2022) 2022 U.S. Dist. LEXIS 28459
Excessive Force; Heck Doctrine

Michoff alleged that handler ordered his K9 to attack Michoff on two different days, both times when Michoff had submitted to being arrested by lying on the ground with his hands and arms extended. He also alleged that two bystander officers did not intervene.

In the first incident, LE were looking for Michoff because he had a felony warrant for burglary and a criminal history that included possession of firearms. Michoff drove by his mother’s house and noted that LE was present. LE saw him as well and attempted to pull him over. After about a 1/2 mile, the driver’s door opened and Michoff started to get out. This allowed LE to confirm the driver was Michoff. Michoff then closed the door and continued driving until he turned down a dirt road and foot bailed. He had an item in his hand that could have been concealing a firearm. He was ordered to stop, but he didn’t. A perimeter was set up. Handler was contacted and responded to the scene with K9. Handler was familiar with Michoff from previous contacts and knew him to be a felon and was suspected of stealing guns from a residence. K9 was deployed and after about a mile of tracking K9 caught Michoff’s scent. Five K9 warnings were given. Michoff admitted to hearing two of these warnings, but did not respond because he would be arrested. K9 was deployed down an embankment and handler then heard yelling. He approached the source of the yelling and saw K9 biting Michoff on his hip. Michoff only raised one hand when told at gunpoint to show his hands. When he finally complied with both hands, K9 was released.

Michoff was bailed out and there was another felony warrant. Again, there was intelligence that Michoff might be in possession of a gun. This time when they went to mom’s house, the K9 team was with them. While LE was knocking and announcing at the front door, Michoff was going out the back of the house and scampering into some bushes. Handler said that he gave a warning and Michoff ran out of sight. K9 was then deployed and again, Michoff started yelling. Handler immediately went to the scene and found K9 attached to Michoff’s arm. He was fighting the dog. Handler did not release the K9 until both Michoff’s hands were visible. Handler then immediately released the K9. Michoff claimed that he did not run away but came out to greet LE and immediately got down on the ground and submitted but was attacked by the K9 anyway.

Applying the Graham factors to the first incident, the appellate court first considered the nature and quality of the force used against Michoff in the first incident. The undisputed material facts demonstrate that Michoff was bitten on his right hip by a K9 and held until handler could travel a distance of 15 feet in order to see both of Michoff’s hands. Ultimately, Michoff required stitches for his injuries, but no hospitalization or ongoing medical care. Based on the undisputed evidence, the court found that the type and amount of force used did not result in a particularly grave intrusion on Michoff’s Fourth Amendment rights.

Next, the court considered the governmental interests at stake, mindful of the three factors identified by the Supreme Court in Graham. First, this court considered the severity of Michoff’s crimes. Michoff had an outstanding felony arrest warrant. The government has a legitimate interest in apprehending criminal suspects, which is even stronger when the crime at issue is a felony. Thus, this factor strongly favored LE. Second, Michoff posed an immediate threat to the safety of the officers or others, given that he could have had a firearm, based on his criminal history. This evidence in combination with Michoff’s outstanding felony warrant and the wooded terrain where Michoff was hiding suggests that officer safety was at risk in this case. As a result, this factor tilted in favor of LE, although it is not dispositive. Third, was Michoff actively resisting arrest or attempting to evade arrest by flight? The undisputed material facts indicated that Michoff first fled from police in a stolen vehicle, then he evaded arrest on foot, and actively hid in a wooded area near his mother’s home. Thus, this factor tipped heavily in favor of LE. Therefore, all Graham factors weighed in favor of LE on the first incident.

The court then considered whether the force that was applied was reasonably necessary under the circumstances after balancing the gravity and the need for the intrusion on Michoff’s Fourth Amendment rights. Even when viewed in the light most favorable to Michoff, all of the factors suggest that the use of the K9 to bite and hold him was objectively reasonable and his Fourth Amendment rights were not violated by handler. Therefore, a motion for summary judgment by LE on the first incident should be granted on the first incident.

The court then turned to the second incident. During the course of the second arrest, the undisputed material facts demonstrate that all of the force applied by the K9 lasted for no more than 35 seconds. Michoff merely disputes whether he was running away from LE or whether he was attempting “to greet” LE at the front of the house when this happened. On this occasion, plaintiff’s injuries were more severe and required not only stitches but ongoing physical therapy. However, even on this occasion, the type and amount of force is still far less than that described in previous K9 cases. Therefore, based on the undisputed evidence, the court finds that the intrusion on Michoff’s Fourth Amendment rights was limited considering the nature and quality of force used by LE.

The court then found that the majority of the Graham factors concerning the government’s interest in the use of force weighed in favor of LE. Michoff had an outstanding felony warrant and posed an additional risk to officer safety based on the prior history and LE’s knowledge of him, including the fact that he had been unable to search Michoff for any weapons at the time that he released his K9. The court emphasized the fact that the outstanding felony warrant for Michoff’s arrest on this occasion was obtained less than three months since Michoff’s last arrest by handler. The serial nature of Michoff’s outstanding felony warrants weighed heavily in favor of LE. The material facts concerning whether Michoff was actively resisting arrest or attempting to evade arrest by flight on this occasion was disputed at the point in time in which handler released his K9. Even assuming arguendo that this third factor favored Michoff, it is still not enough to tip the scale in his favor. After balancing all of the factors concerning the government’s interest in the use of force, the court concluded that this tipped slightly in LE’s favor due to the outstanding nature of the felony warrant which LE was attempting to serve.

Once again, after reviewing the Graham factors, the court concluded that the undisputed material facts demonstrate that the use of K9 to apprehend Michoff was objectively reasonable and that his Fourth Amendment rights were not violated. Therefore, the undersigned recommends granting LE’s motion for summary judgment for this incident as well.

Note: The court dismissed the Heck doctrine claim as the underlying criminal case did not have a factual basis in the record that described the behavior which Michoff pled to as part of his plea disposition. This is unfortunate and avoidable. By writing a full factual basis in your report that covers all the behaviors by the defendant that were a part of his violation of the law, you give the prosecutor a road map of what to say to make an appropriate record, even if the defendant is pleading to a misdemeanor. If the factual basis is adequately a part of the record in criminal court, the Heck doctrine will bar civil litigation. Be sure that this is all communicated to the prosecutor taking the plea. 

United States v. McDonald (North Carolina 2022) 2022 U.S. Dist. LEXIS 28667
Excessive Force; Detention/Arrest as Violation of 4th Amendment

LE had multiple warrants for a gang member who was charged with aggravated assault among other things. This gangster was also posting live video of himself and others brandishing firearms. When LE approached the residence where they believed the gangster to be, they saw the gangster standing next to a vehicle with occupants, including McDonald. There were others standing with McDonald and another vehicle near by, which was unoccupied. As LE pulled up, gangster pulled a pistol from his pants and an occupant also pulled his gun and opened the door of the vehicle he was sitting in. LE exited their vehicle and gangster took off running. One LE went after him, leaving a lone officer at the scene. The vehicle was now revving its engine and there was a lot of movement in the vehicle, causing LE to believe the occupants may be reaching for guns. LE ordered McDonald to shut off the car and to all occupants to show their hands. LE smelled marijuana as soon as he exited his cruiser and believed it to be coming from the occupied vehicle. Occupants were becoming uncooperative and taking their hands out of sight multiple times. LE approached and saw a digital scale. LE asked McDonald if he had a weapon and he looked down, which indicated that a weapon might be under his seat. All occupants were ordered out and McDonald was Terry frisked and handcuffed. When other LE arrived, the vehicle was searched and a gun as well as marijuana and paraphernalia was found. McDonald had cocaine on his person.

McDonald complained that LE did not have any reason for detaining him when they arrived and parked their cruiser in front of his vehicle. However, the court found, there was no submission to detention by McDonald until LE pointed his gun at him and ordered him to shut off his engine. At that point, LE knew two of the people were armed with guns and were interacting with the others at the scene; LE heard McDonald rev his engine which he inferred that McDonald was trying to leave the scene; he smelled marijuana; and he saw occupants reaching around which could have been an attempt to arm themselves or hide evidence.

LE reacted quickly by pointing his gun, taking cover, and issuing commands. He then approached the vehicle and frisked McDonald. The court held that these actions were consistent with the limited scope of a Terry stop and reasonable under the circumstances, since LE had a reasonable suspicion that McDonald was involved in criminal activity and a rational fear that McDonald would attempt to evade capture by either driving through LE or retrieving a weapon from under his seat. Thus, the court found that LE’s seizure of McDonald was reasonable and lawful under the Fourth Amendment.

As to the search of the vehicle, LE smelled the odor of marijuana coming from the vehicle, which alone can provide probable cause to believe that marijuana is present in a particular place. Therefore, the search of McDonald’s person and his ultimate arrest were likewise supported by ample probable cause.

The motion to suppress was denied.

Note: North Carolina had not legalized marijuana for any reason, but has decriminalized (only a civil fine can be imposed as punishment) a small amount possessed for personal use.

State v. Stevens (Iowa 2022) 2022 Iowa Sup. LEXIS 13
Traffic Stop; Alert as Probable Cause; Search of Passenger

LE Clausen followed an Audi leaving a suspected drug house. While following the vehicle, Clauson noticed a middle brake light was out and called a uniformed police officer to perform a traffic stop. Uniformed LE Thompson received the call and pulled over the Audi. Thompson also requested assistance from K-9 team based on Clausen’s report that the vehicle left a suspected drug house.

There were two people in the car. Stevens was in the rear passenger-side seat, and his brother Kyle was driving. Thompson explained the purpose for the stop and requested identification from both men. While Thompson waited for his computer system to provide the status of Kyle’s driver’s license, Clausen ordered Stevens to exit the vehicle so the K9 could sniff the outside of the car. With Steven’s consent, Clausen patted him down for weapons and felt only cigarettes, car keys, and what Stevens identified as ChapStick. Meanwhile, Thompson learned that Stevens did not have a valid license and returned to the car. He ordered Stevens out of the vehicle and ultimately arrested him.

Once both occupants were away from the car, handler deployed K9 around the vehicle. This K9 was a passive alert dog which sits when she is in odor. As the K9 worked around the car, she jumped up on the driver’s door where the window was open and sat after sniffing inside. Handler then opened the driver’s door to allow her in the car. K9 entered and exited the car twice. While inside the car, K9 was most interested in the passenger’s side in both the front and back seat, but as handler testified, it is difficult for a passive dog to alert by sitting when inside of a vehicle. After exiting the vehicle the second time, K9 sat outside the driver’s side of the empty car. Handler testified he was concerned with the passenger side based on K9’s actions inside the vehicle, so he told Clausen to “get in his pockets,” meaning to search Stevens.

Clausen asked Stevens if he knew why the K9 would alert on the car, and Stevens responded he did not. Clausen then asked if Stevens had anything illegal on him, and Stevens looked at him without responding. Clausen told Stevens he was going to search his person. Stevens put both his hands in his coat pockets, and Clausen told him to take them out. Clausen again asked Stevens if he had anything illegal, and Stevens mumbled something unintelligible and reached toward his right coat pocket. Clausen stopped him and reached inside Stevens’ pocket himself, pulling out a bag containing a crystal-like substance that later field-tested positive for 0.51g of methamphetamine. Thompson subsequently found a similar user quantity of drugs in Kyle’s pocket during a search incident to his arrest for driving without a license. Stevens told the officers he and his brother had each purchased $30 worth of methamphetamine but refused to say more. Handler later searched the car by hand and did not find any drugs.

Stevens filed a motion to suppress. The court held that the search of the vehicle was valid but the search of the person of Stevens was not. The court first addressed the issue of search incident to arrest. If there is probable cause to arrest a person, their person can be searched incident to arrest. In assessing probable cause to make a warrantless arrest, the grounds for the reasonable “belief of guilt must be particularized with respect to the person to be searched or seized.” Due to this particularization requirement, probable cause to search a car does not justify the search of a passenger without something more to create a reasonable belief of wrongdoing specific to the p assenger. Precedent recognized that aK9’s positive indication that drugs may be present in a car by itself is insufficient in itself to support probable cause to arrest a passenger of the car without a reasonable belief of wrongdoing particularized to the passenger. Even when considering the additional facts that the vehicle was seen leaving a drug house (there was only the conclusion on the record and no testimony about why LE thought it was a drug house), the K9’s heightened interest in the passenger side of the car and Stevens’ mumbling (unknown what he was saying) when he was asked if he had anything illegal, this did not rise to the level of probable cause to search Stevens as there was no connection to Stevens personally. The court concluded that the cocaine was found after he was arrested without probable cause and searched him. Therefore, the motion to suppress was granted.

Note: This handler testified that his K9 is an all or nothing dog. She either does her final indication of sitting or she doesn’t. This testimony hemmed the government in a little bit. If this is true, then obviously the handler needs to testify that way. However, I don’t think I have seen a K9 go from sniff to a final indication without some alert behavior in between. A handler needs to be able to testify about all of the K9’s behaviors and what those behaviors mean to the handler, who is the expert in the K9.

The search incident to arrest theory did not work here because there was no contraband found in the car. The only contraband found was in Stevens’ pocket after the arrest. Stevens was a passenger and therefore, based on this jurisdiction’s precedent, was not searchable until LE had a reasonable belief of wrongdoing particularized to the passenger. Other jurisdictions have different rules, so make sure you check with your local prosecutor on this issue. 

United States v. Brown (South Dakota 2022) 2022 U.S. Dist. LEXIS 17867
Traffic Stop; Reasonable Suspicion; Prolonged Detention

Handler stopped Brown for a turn violation. Brown was the driver and there was a female passenger. LE told them he was going to issue a warning citation and asked Brown to come back to his cruiser. Back up had arrived at that point. Handler told Brown that his K9 was in the car and Brown skittered away from the car, telling LE that he was afraid and didn’t want to go in the cruiser. Handler reassured Brown and told the K9 not to bark. Brown sat in the front passenger seat but still showed fear, telling the dog “Don’t.”

Handler asked Brown about his activities that day and his travels. Handler discovered that the car belonged to Brown’s brother and Brown lived in a neighboring state, but had been staying with his brother. Brown was driving on a suspended license and handler asked him if he knew his license was revoked. He did not, and handler told him that even though he could take him in, he decided to just give him a ticket.

Then, while still working on the ticket for driving with a revoked license, handler said, “Like I said, my dog’s back there, so is there anything in the vehicle [unintelligible] needs to know about at all?” Brown said there was not, and then handler told Brown that if there was just a weed pipe or less than an ounce of weed, he would only get a ticket, not go to jail, and Brown said nothing like that was in his car. Handler asked about pills, and Brown disclosed that he had painkillers with him and began to take them out of his pocket, but handler indicated he was not concerned about that type of pill.

Handler then specifically asked if Brown was in possession of heroin, cocaine or methamphetamine. Brown said no to each one and denied consent to search because it was 2 in the morning and they were just trying to get to their motel. Handler then put his unfinished ticket for the revoked license on the dash and asked for consent to deploy the K9. Brown again refused.

Handler then deployed his dog around Brown’s vehicle, and the dog indicated to the odor of drugs at the driver’s side door. Based on that indication, handler told Brown that he was going to search his vehicle. Handler then explained to Brown that he asked him about drugs because “your carotid was going, you’re breathing heavy, you’re rigid, . . . you’re bringing up other conversation, you’re changing the topic, stuff like that.” Brown asked him to “say that again,” and handler repeated the first three of these reasons, adding “you probably don’t even realize it because it’s physiological stuff, that’s it.” A gun was found in the vehicle. Brown claimed to possess the weapon legally. Eventually, the citation was completed and handler released Brown from the scene.

While the trial court believed that Handler had sufficient reasonable suspicion for drug crimes, the appellate court disagreed. Handler relied on Brown’s nervousness for the most part for reasonable suspicion, but Brown could have been showing these symptoms solely because he was legitimately afraid of dogs. In addition, the LE video of the scene did not show the symptoms that handler testified about. The court also indicated that the clothing Brown was wearing would have prevented handler from seeing the pulse in his neck and the rapid rise and fall of his chest. This just was not enough for the court to find additional reasonable suspicion and therefore, the court found that the sniff prolonged the detention.

Note: The appellate court basically said that the handler was not truthful. This is unusual, because generally witnesses are given the benefit of the doubt. Whether this was a case where the appellate court justices were trying to send a message (whatever that may be) or that they truly believed the handler was not truthful, I don’t know. This case drives home the point that all the evidence in the case that is relied on for reasonable suspicion needs to dovetail; not completely match, of course, because that’s not possible or reasonable, but be supportive of the conclusion. Here, that didn’t happen. I encourage LE to write their reports after they have viewed the available video. Some agencies prohibit that and LE must follow their agency’s policies. But there were times in this case when someone should have caught the inconsistencies (if they truly did exist) and could have aborted prosecution. Because of this, I smell a civil suit on the way and possible discipline for LE. In California, if there is a finding that an LE lied, this must be disclosed by the prosecution each time the LE is a witness in a case. The fact that the LE has previously been found to be lying basically makes that officer useless to the prosecution and could actually tank an entire case. Given that, an agency could well fire that officer. 

United States v. Martinez (Louisiana 2022) 2022 U.S. App. LEXIS 2887
Package Sniff; Prolonged Detention; Alert as Probable Cause

A postal employee reported two suspicious packages at El Centro, California: the packages were paid for by cash; info on shipping labels were handwritten; the handwriting appeared the same although the return addresses were different; both were being sent to Shreveport although different addresses and the man who shipped and paid for them appeared to be anxious or nervous and did not engage the postal employee in conversation. Based on this information, the postal inspector, Arias, requested that the packages be forwarded to him at the San Diego field office for further investigation.

Two days later, Arias received the packages. He examined the outside of the packages and observed that the size, shape, and appearance of the packages were consistent with USPS drug package profile characteristics. He too observed (like the postal employee) that the handwriting on the shipping labels of the two packages appeared identical, yet the senders’ names, as well as the recipients’ names, on the labels were different. Utilizing the USPS database, Arias learned that someone with an Internet Protocol (“IP”) address originating in Mexico was tracking both packages. Specifically, from the time the packages were intercepted, there were several attempts to track both packages from the same Mexican IP address. Through his experience and training, Arias knew that drug traffickers use the USPS because the tracking website allows them to search for their packages.

Arias also used a database to check the names and addresses written on the shipping labels of the two packages. Although the database was able to locate the addresses, it was unable to associate the names to those addresses. This information indicated to Arias that that the names provided on the labels did not receive mail at and were not otherwise associated with the addresses. From his experience, Arias knew that persons using the USPS system to ship controlled substances will enter false or fictitious sender names and/or sender addresses in order to avoid detection by law enforcement. They will also use recipient names not associated with the destination address.

Almost a week later, Arias contacted a border patrol officer to perform a K9 sniff of the packages. Arias was unable to arrange for a K9 sniff prior to that date because he had to work on other cases, and he missed work due to illness. The K9 alerted to both packages, indicating that the odor or aroma of one or more controlled substances emanated from the packages.

After the K9 sniff, Arias was again pulled away to work on other cases. He began drafting the affidavits in support of search warrants for the two packages on a Friday, two days later. The following Monday, however, Arias had to take another sick day. When Arias returned to work the next day, he finished the search warrant applications and sent them on to the United States Attorney’s Office for the Southern District of California. He obtained search warrants for the packages about 17 days after the packages were pulled from the mail, and searched the packages the next day. Arias discovered 2,222 grams of methamphetamine inside.

Martinez complained that the government did not have reasonable suspicion to detain the packages and that the 17 day delay between the detention of the packages and their search was unreasonable.

The court held that based on this aggregate of factors, the postal employee had reasonable suspicion to detain the packages.

The court then addressed the 17 day delay. The above facts establish that Arias was diligent in his investigation of the two packages after receiving them. Furthermore, the eight-day delay in obtaining K9 sniffs of the packages to establish probable cause was not unreasonable. It was undisputed that during those eight days, which included a weekend, Arias was required to work on other cases and missed work due to illness. Under these facts, the eight-day delay in obtaining probable cause to search the packages did not amount to an unreasonable seizure.

The court then examined whether the additional eight-day delay between the establishment of probable cause and obtaining the search warrants was unreasonable. Again, the factors this Court examines in determining reasonableness are investigatory diligence, the length of the detention, and whether there were circumstances beyond the investigator’s control.

After the K9 alerted to the packages, and probable cause was established, Arias was again pulled away to work on other cases. He began drafting the affidavits on Friday, March 22, 2019, but had to take another sick day the following Monday. When Arias returned to work the next day, he finished the search warrant applications and sent them on to the United States Attorney’s Office. He obtained search warrants for the packages on Thursday, March 28, 2019, and searched the packages the next day, March 29, 2019.

Under these circumstances, the court held that the eight-day delay between the establishment of probable cause and obtaining the search warrants was reasonable. The above facts establish that Arias was diligent in drafting the applications for the search warrants after the K9 alerted to the packages. It was undisputed that during those eight days, Arias was required to work on other cases, he took a sick day, and the delay included a weekend. Under these circumstances, the eight-day delay between the establishment of probable cause and obtaining the search warrants was reasonable. The motion to suppress was denied.

Note: The courts have recognized that when one puts something into commerce (the mail in this case), your expectation of privacy is lessened. Therefore, the postal employee was able to detain the packages based on the above discussed factors and the timeline for getting a K9 sniff, obtaining a search warrant and actually searching the parcels was extended, in large part because of that lessened expectation of privacy.

United States v. Lackey (Pennsylvania 2022) 2022 U.S. App. LEXIS 2964 (Unpub.)
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for lane violation and failure to yield such that a LE had to slam on his brakes to avoid a collision. Lackey drove a short distance away and parked. LE pulled up behind and activated his lights. LE asked Lackey if he knew why he was being contacted and he said, “It was my fault.” LE asked to see the appropriate documents. While Lackey was trying to gather them, he was fidgeting in his seat, moving around a lot, and otherwise appeared nervous. Eventually, he produced an ID and an expired registration. LE asked the passenger for ID and he produced a drivers license. He appeared nervous as well. Back up arrived and noticed that the passenger was someone who was wanted by LE. LE could smell air freshener and marijuana coming from the car. When the information was checked out, passenger had a warrant. He was placed under arrest after being asked to exit the vehicle. A search incident to arrest found cash, cell phone and marijuana on passenger’s person. LE then did a search of the vehicle. There was a pistol and cocaine in the center console and a baggie of marijuana between the seat and the console.

The court held that the smell of marijuana alone was probable cause but other factors supported probable cause as well; Lackey and Simmons appeared nervous during the stop and the passenger was in possession of marijuana.

Note: Pennsylvania still prohibits recreational marijuana, but has decriminalized small amounts.

United States v. Green (Georgia 2022) 2021 U.S. Dist. LEXIS 252464
Traffic Stop; Odor of Marijuana as Probable Cause; Prolonged Detention

LE was patrolling when he observed a vehicle, driven by Green, with a license tag that read “Test Drive”. LE was familiar with standard personal license plates, dealer plates, and temporary operating permits in the state of Georgia, and Green’s plate did not appear to be any one of these permissible tags. LE also noticed that one of the license plate lights was out. Therefore, he initiated a traffic stop.

It took Green about a block and a half to stop, and he was moving his hands towards the rear, passenger side of the vehicle. LE believed this was an indication that Green was trying to either conceal or retrieve something, possibly drugs or weapons. LE engaged Green about the plate and also found out the identity of a passenger. While conversing, LE smelled marijuana (he couldn’t remember if it was burnt or fresh).

Green provided appropriate documents and LE returned with them to his cruiser where he called for back up. Once back up arrived, LE had both occupants exit the vehicle. LE then searched the vehicle based on the smell of marijuana. A firearm, among other things, was found.

Green complained that the paper plate that said “Test Drive” was not sufficient probable cause that a law was being violated and therefore, the stop was not valid. The court disagreed and found that LE’s observation of a paper plate without the requisite tags was probable cause for a traffic stop.

The court then addressed the prolonged detention argument. The court held that LE did not improperly prolong the traffic stop. He testified that he smelled marijuana emanating from the car as soon as Green initially rolled down the passenger window. At that point, he had not just reasonable suspicion, but probable cause to search the vehicle. This was based on 11th Circuit precedent. The motion to suppress was denied.

Note: Georgia has only legalized marijuana for very limited medical use. Otherwise, possession of marijuana is illegal.

United States v. $487,025.00 in United States Currency (Kansas 2022) 2022 U.S. Dist. LEXIS 20582
Traffic Stop; Currency Sniff; Expert Witness

During a traffic stop, a K9 was deployed and alerted. The subject currency was discovered. During the pendency of the forfeiture proceedings, the government intended to use the handler of the K9 to testify to the behavior of the K9 and other issues relevant to the deployment. The claimant (the person who wanted the money back) alleged that the government failed to give him proper notice that the handler was going to testify as an expert. According to the 1st Circuit, the dog handler was appropriately qualified as an expert under the federal rules of evidence because he necessarily relied on his training and his experience in working with drug-sniffing dogs in order to give that testimony.

The appellate court found that this handler will “necessarily [rely] on his training and his experience in working with drug-sniffing dogs” to provide opinion testimony in this case. The Court also agreed that most jurors will not have “experienced similar scenarios” or have completed similar training. Thus, handler’s testimony will rest “‘upon an experience confessedly foreign in kind to [the jury’s] own.'” In other words, for purposes of this motion, the Court found that handler’s specialized knowledge as a dog-handler will potentially “help the trier of fact to understand the evidence or to determine a fact in issue.” Therefore, the government was required to produce the requisite statement and discovery as required by the federal rules of evidence.

Note: This is really an opinion that is more instructive to prosecutors, because it tells them what their duty is when they intend to call a handler to testify about his/her K9. The court clearly found that a handler is an expert based on the test lined out in the opinion. Make sure that your prosecutor designates you as an expert. It telegraphs to the jury that you have more knowledge (the court describes you as an expert) and it is also a designation that goes on your hero sheet (I have been designated an expert witness in ____  County/ies (number) of times).