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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 2023 (included are cases that were decided in the previous month; however, my search program only retrieves cases that are final. Sometimes a court will delay in finalizing a case and that causes a delay in my having access to the case). Also, a caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. 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 as 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.)
MARIJUANA UPDATE FROM FEBRUARY 2023 FOR MARCH 2023 UPDATE
STATES
Lawmakers in New Hampshire advanced a bill to legalize adult-use cannabis.
A bill to legalize medical marijuana in North Carolina swiftly advanced through multiple committees in the state Senate this week, with lawmakers voting Wednesday to push the legislation to the rules committee after favorable votes in the judiciary and finance committees.
Virginia Republicans in the House of Delegates on Tuesday killed a bill that would have created a regulated marketplace for legal cannabis sales.
Minnesota voters elected enough Democrats to the Senate and secured the governor’s office again, allowing them to gain the trifecta for the first time in 10 years. Now, with the Democratic-Farmer-Labor Party in control, a bipartisan legislative push to legalize adults’ use of marijuana may finally gain enough traction to become law.
A number of recently filed bills in Texas signal serious momentum for the state’s anemic medical cannabis program.
A pair of Maryland bills filed this week would establish the regulated adult-use cannabis market that voters approved by ballot initiative on Election Day.
INDEX OF CASES REVIEWED FROM FEBRUARY 2022 FOR MARCH 2023 UPDATE
State v. Ricks (Idaho 2023) 2023 Ida. App. LEXIS 4
Traffic Stop; Alert v. Final Indication as Probable Cause;
Snyder v. State (Maryland 2023) 2023 Md. App. LEXIS 80 (Unpub.)
Traffic Stop; Prolonged Detention
Hudson v. Chapman (Michigan 2023) 2023 U.S. Dist. LEXIS 18870
Explosives Detection K9; Reliability Foundation
State v. Gray (Ohio 2023) 2023-Ohio-338
Alert as Probable Cause
United States v. White (Idaho 2023) 2023 U.S. Dist. LEXIS 19427
Traffic Stop; Prolonged Detention
Hall v. Miami Corr. Facility (Indiana 2023) 2023 U.S. Dist. LEXIS 20279
Excessive Force; Inmate as Victim
Ellis v. Pierce Cnty. (Washington 2023) 2023 U.S. Dist. LEXIS 20565
Monell Liability
United States v. Tu Anh Nguyen (Iowa 2023) 2023 U.S. App. LEXIS 3036
Traffic Stop; Prolonged Detention
White v. Clarke (Virginia 2023) 2023 U.S. Dist. LEXIS 22196
Excessive Force; Eighth Amendment Violation; Monell Liability
State v. Griffin (Wisconsin 2023) 2023 Wisc. App. LEXIS 161 (Unpub.)
Traffic Stop; Prolonged Detention; Alert as Probable Cause
Ochoa v. Cnty. of Kern (California 2023) 2023 U.S. Dist. LEXIS 28349
Excessive Force; Fourth Amendment Violation; Unreasonable Seizure
United States v. Batara-Molina (10th Cir. Wyoming) 2023 U.S. App. LEXIS 4059
Traffic Stop; Reasonable Suspicion; Alert as Probable Cause
Chauncy v. State (Indiana 2023) 2023 Ind. App. LEXIS 58
Traffic Stop; Prolonged Detention
Swain v. State (Indiana 2023) 2023 Ind. App. Unpub. LEXIS 210
Traffic Stop; Alert as Probable Cause; Automobile Exception; Inventory Search
State v. Lavenz (Iowa 2023) 2023 Iowa App. LEXIS 83 (Unpub.)
Traffic Stop; Prolonged Detention; Automobile Exception
United States v. Anderson (Kansas 2023) 2023 U.S. Dist. LEXIS 28727
Traffic Stops; Automobile Exception; Alert as Probable Cause; Trespass by K9
State v. Lapointe (Minnesota 2023) 2023 Minn. App. Unpub. LEXIS 143
Traffic Stop; Prolonged Detention
Lundy (Plaintiff) v. Pierce Cnty. Sheriff’s Dep’t (Washington 2023) 2023 U.S. Dist. LEXIS 32314
Excessive Force; Monell Liability; Negligence; State Law Claims
People v. Moses (Illinois 2023) 2023 Ill. App. Unpub. LEXIS 172
Traffic Stop; Prolonged Detention
CASES REVIEWED FROM FEBRUARY 2022 FOR MARCH 2023 UPDATE
State v. Ricks (Idaho 2023) 2023 Ida. App. LEXIS 4
Traffic Stop; Alert v. Final Indication as Probable Cause;
Ricks was stopped for an expired registration. His license was also suspended. LE prepared a citation and had Ricks step out of the car for an explanation of the citation. While LE was explaining the citation, handler and K9 showed up and did a free air sniff of the car. During the sniff, K9 jumped on the rear-passenger door, jumped on the front-passenger door, and then inserted his nose into the open front-passenger window. After entering the vehicle, K9 gave a final alert when he “sat and began to stare at the window and then back at handler. A subsequent search of the vehicle revealed narcotics and drug paraphernalia.
The trial court found that based on handler’s testimony that K9 will sniff wherever handler points, unless K9 detects the odor he was trained to detect and then K9 is trained to follow that odor to its source. The handler also testified that when K9 jerked past his hand and went to the passenger side of the car, this change in behavior signaled that K9 was in odor. (This apparently happened prior to K9 sticking his nose into the open window).
The appellate court framed the question as: “[W]e consider whether substantial evidence supports the district court’s conclusion that probable cause existed for a warrantless search before the dog’s nose entered Ricks’ vehicle, even though the dog had not yet given its final indication identifying the odor’s strongest source.” The court first held that the reliability foundation of the K9 was sufficient, the government having produced evidence that the K9 was reliable, including certification and training records. The court then went on to the more tricky part of the determination of probable cause and that is when K9 breached the plane of the car (stuck his nose in the open window).
“Like courts in other jurisdictions, we conclude a dog’s signaling behavior of a general alert–such as the dog’s breathing, posture, body movements, and verbal responses–can constitute probable cause.” The court then concluded that substantial evidence supported the trial court’s probable cause finding in this case. During the suppression hearing, handler testified that he previously worked for six years “in the K9 unit” in another state; is certified in Idaho “as a K9 handler” and “as a team” with his drug dog; has trained with the dog for about 160 hours; passed the Idaho POST Narcotics Detection Standards; has confidence in the accuracy of his dog, who is trained to detect the odors of marijuana, cocaine, heroin, and methamphetamine; has not had any problems with the dog giving “false positives”; and trains a minimum of four hours a week with his dog and “K-9 instructors,” who monitor their actions. As the district court noted, Ricks did not challenge this evidence proving the dog’s reliability.
Additionally, evidence of the K9’s signaling behavior generally alerting to the odor of drugs emanating from the vehicle before he entered the vehicle supported the district court’s probable cause finding. Handler testified about his K9’s “distinct change of behavior” as an alert. According to handler, this signaling behavior can include “a head snap,” “whining,” “breathing,” tail movement, and excitement. Handler explained that in conducting a dog sniff, handler either starts at the front or the back of the vehicle and has the dog sit “to reset” him and to let him know “we are gonna be doing a search.” Further, handler explained his dog is trained to sniff at the points at which handler indicates, unless the dog detects the odor of drugs, in which case he follows the odor to its source. Regarding the dog sniff at issue, handler testified that when he pointed to the rear bumper for the dog to sniff, the dog “blew past” the cue; the dog moved to the vehicle’s passenger side as the dog’s “whining” and “excitement” “began to increase”; and as the dog approached the open passenger window, handler “could hear [the dog’s] excitement building, his tail, the intensity.” According to handler, this behavior signaled the dog was alerting on the odor of drugs before the dog entered the open window. Like the district court, we conclude handler’s testimony about the dog’s signaling behavior provided objective evidence of the dog’s general alert to the presence of the odor of drugs emanating from the vehicle before the dog entered the vehicle and supports a probable cause finding.
Note: This was a great case from the trial court because the government through the handler laid a really good foundation about the K9 and its training. “Cueing” is becoming a defense argument (when the handler taps or indicates a specific area and the K9 does a final indication at that cue). This could have happened here but this was not raised. However, it is a good case to see how the handler explained his cueing (his word, interestingly enough) was just to guide the K9 and the K9 would ignore it if in scent, which is what the dog did here. Don’t forget language discipline; here, the handler testified the K9 was going to be doing a search rather than a sniff. That is not accurate. It wasn’t a big deal here, but it could be in another circumstance.
Snyder v. State (Maryland 2023) 2023 Md. App. LEXIS 80 (Unpub.)
Traffic Stop; Prolonged Detention
LE saw Snyder (driver) and Nagy (passenger) sitting “stiff as a board” and looked over at him as they drove by. This was suspicious to LE because it was different than other drivers who had passed him that day. LE followed Snyder to see if he could find a vehicle code section violation. LE thought he saw Snyder cut off a truck because as Snyder pulled in front of it, it appeared to have to brake quickly and hard. LE then conducted a stop for unsafe lane change.
Snyder then took an exit and drove into a gas station and parked at the pumps. LE got out and told Snyder to move the car to the other side of the mini mart and Snyder complied. He and Nagy handed over his document and he and passenger were visibly shaking and breathing hard. During a check of both backgrounds, including a judicial case search and found that Nagy had previous drug charges and Snyder had pending drug charges. Another LE chimed in on the radio and said that Nagy had fled before on a drug related investigation. LE called for a K9.
After that, Snyder showed LE his insurance card on his cell phone. They talked about how Snyder’s insurance was about to lapse and that he should address that issue with his insurance company. A written warning was issued. After that, LE questioned both Snyder and Nagy about their travels and their stories did not match. LE then returned to his vehicle and waited for the K9 team to arrive. When the team arrived, K9 sniffed the free air around the vehicle and alerted. Some contraband was found; when told he was going to be searched at the jail, he gave up a baggie of narcotics that had been hidden in his groin.
The appellate court addressed both the initial stop and the prolonged detention. The parties agreed that the initial stop was valid. It was apparent to the parties that the traffic investigation was over when LE issued the warning.
However, the wait for the K9 team was an extension of the stop that was impermissibly prolonged as the mission of the traffic stop was completed. Therefore, LE had to have reasonable suspicion of drug crimes to extend the mission of the investigation. Here, the government relied on six observations to establish reasonable suspicion: Snyder and his passenger did not look over at LE’s police car as they drove by; Snyder made an improper lane change after LE merged into traffic; after being instructed to pull over, Snyder drove very slowly and passed “multiple safe locations” before stopping at a gas pump at the Jiffy Mart; LE observed movement inside the car by both the passenger and the driver; Snyder appeared nervous when interacting with LE; and, finally, that the judiciary case search revealed that Snyder had pending charges related to the possession and distribution of a controlled dangerous substance. The government argued that these details, taken together, created reasonable suspicion for LE to detain Snyder to await the arrival of the K9 unit.
The court held that it is not enough for a police officer to note that a driver stood out because their behavior differed from the other travelers around them. The constitutional test is not whether actions are peculiar or unusual, but whether they suggest criminal activity. For Snyder’s continued detention to have been constitutional, LE had to be able to explain with some particularity not only why he chose to detain Snyder, but also how those factors, “when viewed in the context of all the other circumstances known to [him], [were] indicative of criminal behavior.” Having reviewed the record of the suppression hearing and evaluated the totality of the circumstances, the court concluded that “the combination of factors, viewed in their totality, are no more indicative criminal activity than any one factor assessed individually.” LE had no more than an inchoate hunch that Snyder was involved in any sort of criminal activity. “A hunch, without more, does not rise to the level of reasonable suspicion.” Therefore, the motion to suppress was granted.
Note: These factors cited by the government were fairly innocuous and could easily be explained as non-criminal behavior, even viewed under the totality of the circumstances. Inchoate means “not fully formed or developed,” so the court was saying these factors could support reasonable suspicion with something more. What that is, ultimately, would be fact dependent.
Hudson v. Chapman (Michigan 2023) 2023 U.S. Dist. LEXIS 18870
Explosives Detection K9; Reliability Foundation
Hudson was convicted of murder. One piece of evidence was a sweatshirt that an explosives-detection K9 alerted to and a witness identified as having been worn by Petitioner. The handler testified that the K9 alerted in the manner he had been trained to do when some sort of explosive residue had been detected. Hudson argues that this evidence should not have been admitted.
The state court noted that the handler’s testimony established that he and the K9 were trained and tested annually and the K9 would not qualify for the program if he did not test at 100% accuracy for at least two years.
Hudson also argued that his lawyer was ineffective because she failed to make a pretrial motion to suppress evidence concerning the Derringer and the sweatshirt and failed to object when the evidence was given at trial. The prosecutor established a proper foundation for the admission of the sweatshirt. Failing to object to admissible evidence does not amount to ineffective assistance. The Derringer, in contrast, had no relevance and may have been precluded had there been an objection. The failure to object, however, could have been a matter of trial strategy. While it is true that the jury could have inferred from the Derringer that Hudson had a propensity to commit crimes with guns, it seems just as likely that the jury would view it as exculpatory because the expert testimony established absolutely that it was not the murder weapon and it was the only weapon found. Hudson, therefore, has failed to overcome the presumption that his lawyer’s decision was a matter of sound trial strategy.
Note: This was a writ of habeas corpus, which is a type of “Hail Mary” pass at the appellate level. Hudson, under the rules of this writ, has a heavy burden to overcome to get his day in court over this writ. Hudson failed in this effort. However, the case was interesting from the standpoint that it involved an explosives K9 and that the court found that the reliability foundation was met by the handler’s testimony.
State v. Gray (Ohio 2023) 2023-Ohio-338
Alert as Probable Cause
LE started an investigation into jail calls because inmate Lawter was talking to his girlfriend about a drug supplier named Faris. LE then started surveilling girlfriend. She drove to a storage facility where she met with Faris. They loaded something into girlfriend’s car. Both cars were stopped and a K9 alerted to girlfriend’s car. Girlfriend’s car had 5 pounds of marijuana and Faris was in possession of about $14,700 in cash.
Faris flipped on his supplier, Gray, telling LE that Gray had a warehouse in Indiana containing 100 pounds of marijuana. Faris and LE set up a controlled buy of the 100 pounds with Gray. On the appointed day, Faris kept LE up to date in real time and told them that the controlled buy would only be for 50 pounds since Gray sold the other 50 already. LE saw Gray arrived at the appointed place and open his trunk. He was arrested at that point, handcuffed and detained in a cruiser.
K9 team sniffed the free air of the vehicle and alerted. The car contained about 50 pounds of marijuana and $15,000 in the trunk.
The court analyzed whether the search of the car was legal. They first stated that there was not a stop or a seizure when LE approached Gray because the car was already stopped and parked. Gray argued that the automobile exception to a warrant was not applicable in this case because marijuana had been legalized. However, the court stated that an alert by a well trained K9 is sufficient to establish probable cause to search the car and its containers, including the trunk. This K9 not only showed alert behavior but performed his final indication by sitting next to the car. In addition, the initial investigation with the informant also was applicable to the finding of probable cause. No warrant was required because of the automobile exception.
Note: Well done investigation which resulted in a fairly large dealer being caught, a lot of dope off the streets and money taken out of the hands of drug dealers. Gray flailed about a bit, trying to find an argument that could assist, but ultimately failed.
United States v. White (Idaho 2023) 2023 U.S. Dist. LEXIS 19427
Traffic Stop; Prolonged Detention
White was a passenger in a car being driven without plates. When stopped, White was not wearing a seat belt and was sweating profusely. White provided his information when asked. This initial contact took about 3 minutes. White had a warrant for his arrest. LE stopped working on the citation so that White could be arrested. White was then ordered out of the car and Terry frisked. He was then placed in the cruiser. There was a container in the car in plain sight that looked like it contained narcotics. Around this same time, a K9 team was requested which arrived in about 10 minutes.
When the K9 team arrived, LE had the driver step out and the K9 sniffed, then alerted on the vehicle. A search revealed methamphetamine.
White’s sole challenge to the constitutionality of the stop was that it was unlawfully extended in two ways. First, he alleged that LE requested a K9 unit shortly after White was arrested. Second, he argued LE refrained from issuing a citation because of White’s outstanding warrant. Together or alone, White argued these events unlawfully extended the traffic stop. The appellate court held that he was wrong.
While a K9 sniff conducted after the completion of the traffic stop is per se unreasonable, a K9 sniff conducted after a lawful arrest has taken place is not. Likewise, it is irrelevant that LE stopped issuing a citation to arrest White. In both of these instances, any delay was not unlawful because the officers were performing routine background checks and then detaining White pursuant to a valid warrant. Any delay was de minimis at best and the necessary result of police work.
What’s more, said the appellate court, because these actions did not unlawfully prolong his detention, White has no standing to challenge the subsequent K9 sniff and positive indication. Even though passengers can challenge the initial stop of a vehicle, despite having no possessory or ownership interest, passengers have no reasonable expectation of privacy to challenge a search of the car. White has failed to show that he was anything more than a temporary occupant of the Jetta, so he had no reasonable expectation of privacy allowing him to challenge the search.
Note: While this jurisdiction has language in their precedent authority that a passenger does not have standing to challenge a search, the federal standard is different and does recognize that a passenger has some standing to object to a search of the vehicle. Make sure you are in contact with your local prosecutor to make sure you are up to speed on what the law is in your jurisdiction.
Hall v. Miami Corr. Facility (Indiana 2023) 2023 U.S. Dist. LEXIS 20279
Excessive Force; Inmate as Victim
According to inmate, he was told to shut up by a correctional officer when he was lodging a complaint with another correctional officer. Inmate Hall told CO to stop talking to him and Hall was then ordered back to his cell. Hall ignored this order and continued walking to the dining room. At that point, according to Hall, he was attacked by a K9 and also tased. The first bite missed but the taser did not. He fell to the floor and then the K9 was redeployed and bit him in the genitals, on purpose Hall claimed. He was not resisting or doing anything other than lying on the floor.
The “core requirement” for an excessive force claim is that the correctional officers “used force not in a good-faith effort to maintain or restore discipline, but maliciously and sadistically to cause harm.” Several factors guide the inquiry of whether an officer’s use of force was legitimate or malicious, including the need for an application of force, the amount of force used, and the extent of the injury suffered by the prisoner.
The court held that it can be discerned from Hall’s allegations that he disobeyed an order to return to his cell, making it appropriate for the officers to use some level of force to gain his compliance. However, Hall claimed that when he was lying on the floor after being shocked with the taser, he did not pose a threat, but yet the officers continued to shock him with the taser and caused the K9 to bite him in the genitals. It can be plausibly inferred from these allegations that the officers used more force than was necessary under the circumstances. Hall will be permitted to proceed against the officers.
Note: This is a preliminary hurdle that an inmate must clear before going forward with his case. The merits of the case will be fought about at later hearings using the standard set forth above. It will be interesting to compare the LE side of things against Hall’s interpretation.
Ellis v. Pierce Cnty. (Washington 2023) 2023 U.S. Dist. LEXIS 20565
Monell Liability
In an excessive force case regarding the deployment of a K9, the court stated that Monell liability attaches when implementation of official policies or established customs inflicts the constitutional injury. To conclude otherwise would undermine the Supreme Court’s instruction that a municipality can be liable under § 1983 (civil rights violations claims) only where its policies are the moving force behind the constitutional violation. To survive a summary judgement motion, the bitee (Ellis in this case) must show that an agency had a constitutionally policy, custom, or practice. Alleging that the one bite against Ellis showed a pattern of constitutionally deficient deployment without more is not enough.
Liability for improper custom may not be predicated on isolated or sporadic incidents. A municipality cannot be held liable solely because it employs a wrongdoer—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory (agency employee did it so the agency is responsible). There must to be an allegation that the agency’s actions or policies created an atmosphere where constitutionally deficient deployments of K9s was acceptable.
Note: We see Monell liability alleged often in excessive force cases, but Monell liability requires more than just the actual bite. Monell liability means that the person bit can go after the agency, but they have an additional hill to climb and that is that they must prove that the agency’s actions or policies created a culture of excessive force of its K9s. In this case, the agency was dismissed out, but the handler remained in the case because Ellis alleged that handler deployed the K9 to “teach her a lesson,” and also that handler deployed the K9 because she might go to a certain place. Handler did not explain why he didn’t just wait for her to return and arrest her then. There are some troubling facts here, but this case mostly dealt with appellate issues so I don’t know the full story on the deployment. But this case helps by explaining Monell liability.
United States v. Tu Anh Nguyen (Iowa 2023) 2023 U.S. App. LEXIS 3036
Traffic Stop; Prolonged Detention
There were 3 traffic stops in three different states at issue; one in March, one in December and the final one in February of the next year. In the first stop, which was not challenged, over $100K and THC cartridges were found and no one claimed ownership. In the second stop, there was money and cartridges again, but lesser amounts. No one challenged this stop either.
The third stop was of a pick up truck towing a trailer. Tran was driving a pickup with Nguyen as a passenger. The pickup had a tinted windshield and windows and was pulling an enclosed trailer with Washington plates, a California commercial vehicle sticker, but no USDOT number. An experienced Iowa Highway Patrol Trooper trained and assigned to perform commercial vehicle inspections noticed these features and stopped the vehicle for commercial inspection. Based on answers by the parties, the Trooper concluded that Tran was operating commercially, and that the load was obviously over the 10,000 pound limit. Because of this, the trooper was able to conduct a Level II inspection, which extends generally to all paperwork and safety equipment, including load securement, that can be observed without physically going beneath the vehicle.
Trooper quickly determined that very little about the situation was normal. Tran (as the driver) and the truck and trailer combination (as the vehicle) were out of compliance with regulations such that they were subject to being placed temporarily out of service. First, Tran did not have a log book. This alone placed Tran out of service as a driver. Tran was able to provide bills of lading. The bills of lading, however, were irregular in that they did not contain full information of a type normally included with bills of lading such as details as to what was to be picked up and delivered (rather than vague listings) and precise locations and instructions as to where items were to be picked up and delivered. And the information that was provided on the bills of lading did not match Tran’s description of his destination. Further, Tran’s explanation of his destination did not make sense to trooper as a matter of commercial operations. Finally, trooper was unable to confirm federal licensing for the firm Tran identified or for the vehicle.
On the vehicle exterior, trooper noticed that the trailer’s break-away braking connection was incorrectly attached rendering it non-functional. This violation made the vehicle subject to being placed out of service pending correction. The officer also confirmed the window tinting exceeded permissible limits for commercial vehicle windows.
While outside the trailer, the officer noticed the smell of bleach. Tran confirmed that he too smelled bleach but denied hauling bleach or other hazardous substances. Trooper then asked to see safety equipment. Tran opened the enclosed trailer to show trooper a fire extinguisher and safety cones. Trooper also checked load securement and discovered a disheveled load without reasonable securement. At this time trooper’s suspicion grew again because items were not being treated in a manner consistent with the insured value as would be expected of a commercial shipper.
Other observations during the commercial vehicle inspection increased trooper’s suspicion that criminal activity was afoot. Trooper noticed three two-way radios in the cab of the truck. He viewed this as suspicious because such radios are usually sold in pairs and are often used by a trailing or lead vehicle when illegal contraband is being transported. In addition, the officer viewed the entire scene as a misplaced attempt to appear in compliance with commercial trucking regulations whereas Tran seemed largely unaware of requirements. In light of the smell of bleach and the other irregularities, the officer called for assistance from a drug detection K9. The K9 team quickly responded. On the first pass, the K9 did not alert. On the second pass, the K9 alerted without focus on a particular spot. On the third pass, the K9 alerted on the trailer’s rear door. A search of both the truck and trailer revealed almost 500 pounds of marijuana, a gun and ammo and documentation implementing a third co-defendant in the multi-state conspiracy.
Nguyen challenged the traffic stop, claiming that the stop was prolonged to have a K9 sniff the vehicle and trailer. The court first addressed the escalation from a traffic stop to a Level II inspection. Interstate commercial trucking qualifies as a closely regulated industry for which a variety of regulatory inspections may be performed without a warrant. Constitutional protections are provided by limiting the inspection to certain items and places that involve the transportation of the load. This trooper was an expert in these commercial transportation laws and legally performed that inspection until the K9 arrived. In addition, there was sufficient evidence that the K9 team was certified and had extensive training, proving the reliability foundation of the K9.
Nguyen also focused on the number of passes prior to the K9’s final indication. The court held that this narrow focus did little to detract from the reliability of the indication or the finding of probable cause as a whole. Although defendants may challenge the K9’s reliability on any basis, the question—similar to every inquiry into probable cause—is whether all the facts surrounding a K9’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. Armed with the suspicion developed in the course of the regulatory inspection and with the K9’s indication of drugs, officers did not conduct an unreasonable search when they entered the trailer and look in sealed boxes.
Note: Interesting case as I don’t see many cases that revolve around the commercial transportation rules of the road. There is a lessened privacy interest because the state has an interest in making sure that cargo is legal, the driver is not over hours, the load is not too heavy for safety reasons and for road destruction, etc. Also, the court did not specifically say that the final indication by the K9 was probable cause in and of itself, but part of the evidence that proved probable cause. That is not really a problem, but something to be aware of: any time there is an erosion of what the final indication proves is not good for us. Prosecutors need to be aware of this and make sure they use appropriate language discipline so the court will do the same.
White v. Clarke (Virginia 2023) 2023 U.S. Dist. LEXIS 22196
Excessive Force; Eighth Amendment Violation; Monell Liability
In this K9 bite case in prison, inmate White sued the handler, the warden and the director of the prison. Defendants handler, warden and director filed a motion for summary judgement.
Inmate White used one of the prison phones and another inmate objected to that, apparently snatching the phone out of White’s hand. A squabble ensued. White claimed he felt physically threatened so he punched inmate Johnson and backed him up about a foot or so. Then other inmates got involved and dog-piled White. White said he could not get away and they punched him until he passed out. Shortly after White regained consciousness, handler ran in and threw his K9 on White without warning. He was bitten 3 times in three areas. White claimed he had scars where the K9 bit him. However, the medical records only show that there were 3 small areas of broken skin. One was treated by Dermabond as it was in his elbow and the other two were treated with disinfectant and band-aids. White later claimed nerve damage in his arm, but he had full range of motion, no swelling, and the wounds were healed. White was given pain medicine and did not seek out any further medical attention. He then claimed he had suffered trauma from the incident.
White and other inmates claimed that there was no warning prior to deploying the K9. However, COs stated that the inmates were warned by intercom, by warning buzzer, by one round of a 40mm single launcher, by another warning, then 6 more rounds were fired without affect. K9 team called for and handler gave several warnings to stop fighting or he would release the K9. Other inmates stopped and lay prone on the floor as instructed but White and another inmate continued to fight. K9 was deployed, he bit White in the armpit and handler gave another order to stop fighting. White disengaged but the other inmate continued to fight. The K9 adjusted his bite to other inmate’s lower back. Both then disengaged and were handcuffed. The K9 was removed immediately upon obtaining compliance from the inmates. Video confirmed for the most part the LE account and not the inmates’. There were some areas where it was unclear what happened and therefore the appellate court is required by law to accept White’s version for this motion.
The court addressed the 8th Amendment argument for the warden and the director. In order to do that on a theory of supervisory liability, White must allege facts sufficient to show that (1) the supervisor “had actual or constructive knowledge that [a] subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) the supervisor’s response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and (3) there was an affirmative causal link between the director’s and warden’s conduct and White’s particular constitutional injury. The court stated that since there was a finding that handler did not violate White’s constitutional rights, there was no theory left as to a finding of liability of the warden’s or director’s parts.
The court addressed the cause of action against the handler and concluded that the handler was entitled to summary judgment (dismissal of the case). The Eighth Amendment prohibits prison officials from inflicting unnecessary and wanton pain and suffering on prisoners. To succeed on an excessive force claim, White must show that the prison official (1) used “nontrivial” force (objective component), and (2) acted with wantonness in the infliction of pain (subjective component). In the prison context, analysis of the subjective component ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Whether the force was necessary or intentionally aimed at inflicting unnecessary physical harm depends on factors such as the need for the application of force, the relationship between the need and the amount of force used, the extent of injury inflicted, the extent of the threat to the safety of staff and inmates reasonably perceived by responsible officials, and any efforts made to temper the severity of a forceful response.
The court stated that in viewing the facts in the light most favorable to White, the court concludes that the Whitley factors favor handler. First of all, there was clearly a need for the application of force, as prison officials have an obligation to take reasonable steps to protect inmates from violence at the hands of other inmates, and other efforts to stop this particular fight had failed. There was a fairly significant threat to the safety of staff and inmates, as well. An entire pod of inmates was out of their cells, and a fight between inmates can spread (as it initially had here). Thus, there was a threat to the inmates involved in the fight, a threat to staff if they tried to intervene directly, and the potential for other inmates, none of whom were restrained, to re-engage or use the distraction to harm other inmates or staff.
The facts also reflect that there were efforts made to temper the severity of the response, including multiple verbal warnings from COs and the filing of multiple impact rounds, at least one of which hit one of the fighting inmates. While it is true that OC spray could have been used before engaging a K9, as White suggests, White has not cited to any authority stating that the Constitution requires escalating through all levels of possible force in a given situation, nor is the court aware of any. Furthermore, while it would have been preferable to give a warning about the K9 specifically before engaging it, White likewise has not cited to any authority in the prison context suggesting such warnings are required. Furthermore, the response also was tempered in that the K9 engaged on White only until he complied and stopped fighting. Then, it was engaged on another inmate who was still fighting, but only until he stopped attacking White. This, too, supports that the purpose of the engaging the K9 was in an effort to restore order, not maliciously and sadistically for the very purpose of causing harm.
The relationship between the need and the amount of force used also supports handler. The fight had continued for thirty seconds before K9 engaged on White. Particularly after repeated direct orders to stop fighting, the fighting inmates, including White, knew they were being directed to stop. Notably, lethal force was not used, and the force discontinued immediately once White complied with orders to stop fighting. Thus, the force was proportionate to the need to stop the threat.
The nature of White’s injuries also favors handler, although only slightly. The court recognizes that engaging a K9 on a human being is—or at least can be—a significant use of force. And while engagement by a well-trained K9 should not lead to significant injuries or death, both can result. The court does not doubt that White now has an extreme fear of dogs, as he claims. But White did not suffer significant physical injuries, as evidenced by the photos of those injuries and White’s medical record. This conclusion also is supported by the fact that his injuries did not require him to go to the hospital, spend time overnight in the medical unit at the prison, or obtain any significant follow-up treatment.
In short, handler testified that he engaged K9 “in a good faith effort to restore discipline in response to Inmate White’s failure to obey orders.” That assertion is supported by the factors above, as applied to the undisputed facts. The court thus concludes that White has failed to produce “significantly probative” evidence from which a reasonable jury could return a verdict in his favor.
Note: This is a prison case and there are different standards in determining excessive force. Here, the only cause of action was an 8th Amendment violation, not a violation of unlawful seizure by excessive force. It would have been a stretch to file a 4th Amendment cause of action given his very minor wounds and the quick reaction of the handler and the quick obedience by the K9 to release.
State v. Griffin (Wisconsin 2023) 2023 Wisc. App. LEXIS 161 (Unpub.)
Traffic Stop; Prolonged Detention; Alert as Probable Cause
LE stopped Griffin for not wearing a seat belt. LE collected the appropriate paperwork and went back to his cruiser to wait for dispatch to get back to LE about Griffin’s status. He also requested a K9 team to respond. LE discovered from dispatch that Griffin did not have a valid driver’s license and had a nonextraditable warrant from another state. The K9 team arrived and started the sniff while LE was completing the citation. The K9 alerted and handler told LE about the alert. LE was still processing the citations at this point.
Griffin complained that the citation writing was over by the time handler got the K9 back into his vehicle. However, the court held that the moment of the alert is the controlling factor because once that alert happens, LE has probable cause under the automobile exception to search the vehicle. Therefore, the traffic mission and the mission of the sniff were simultaneous and therefore, there was no prolongation.
Note: This is a case in which the K9 team responded quickly and did their job well. There were also other avenues that could have been explored; Griffin was driving without a license so the car may have been subject to tow which would allow an inventory search. However, the court made it easy on the government and only addressed the most logical argument and stopped there.
Ochoa v. Cnty. of Kern (California 2023) 2023 U.S. Dist. LEXIS 28349
Excessive Force; Fourth Amendment Violation; Unreasonable Seizure
A hostage situation came to LE’s attention. Ochoa was accused of felony spousal assault and he was keeping his daughter and two others hostage in their home. Ochoa, in fact, had a no-bail warrant for felony spousal assault. It was unknown if Ochoa had access to any weapons.
When LE arrived outside the residence, they announced their presence and gave numerous commands and warnings to Ochoa to come out and submit to arrest. Handler saw a female in a window in the house. He instructed the female open the window to escape, but she was unable to do so. She appeared frightened. LE believed “there were people inside that house that were not able to leave and being held against their will.” The responding officers waited for wife to arrive with the house key, which they used to gain access inside the home.
LE was able to get three people out of the house, but were unsure if Ochoa had other hostages. Ochoa had locked himself in a bathroom. More warnings were given through the bathroom door but there was no response. Handler told his K9 to bark so Ochoa would know there was a K9 present. Since there was no response, LE breached the bathroom door. Ochoa was sitting on the toilet with his shorts pulled up, screaming and with his hands near his waistband. LE could not see all of the bathroom, nor did they know if Ochoa was in possession of any weapons. More commands were yelled. No response so LE shot him with a 40mm, aiming for the torso but hitting him in the testicle. LE was able to get him face down but he would not comply with orders and was struggling to get away. K9 deployed and bit him on arm and shoulder. LE was finally able to physically arrest Ochoa and the K9 was released.
A jury found in favor of LE and handler. Ochoa appealed stating that the jury’s verdict was against the clear weight of the evidence on the Fourth Amendment issue of unreasonable seizure. The court applied an objective reasonableness assessment of a particular use of force which required a three-step inquiry. It necessitates evaluation of (1) the type and amount of force used; (2) the government’s countervailing interests in the need to use that force; and (3) a balancing of steps one and two to determine the overall reasonableness under the circumstances. The reasonableness of force used is ordinarily a question of fact for the jury.
Ochoa contends the deployment of the police canine amounts to “intermediate” to “severe” use of force, given the type of wounds Ochoa sustained. K9 bit Ochoa on his arm and shoulder, leaving puncture wounds and lacerations. Ochoa sustained bite injuries to the area but did not assert that he lost any function of the arm. Handler testified he deployed K9 only a few feet away from Ochoa and remained in command of K9 during the encounter. The circumstances surrounding the deployment of K9 do not amount to the severity of risk posed or actual harm caused by the K9 in Chew v. Gates. However, they rise above the minimal injury sustained and contact made in Lowry v. San Diego. For the purposes of this motion and without opposition from LE on this matter, the Court concludes the deployment of K9 amounts to intermediate force, requiring a strong governmental interest for the use of force.
Regarding Ochoa’s resistance after LE shot Ochoa and immediately prior to handler deploying his K9, substantial evidence supports a conclusion that Ochoa physically resisted the officers. Ochoa contends that prior to deployment of K9, LE was “straddling” Ochoa, who was lying face down. The deputies’ testimony explains that while in this position, Ochoa physically struggled with the officers against their attempts to arrest him. Handler testified that Ochoa was lying face down with his hands over his head, pushing up against the bathroom wall, with his elbows driving his hips upward and kicking his feet. Because Ochoa’s actions include a physical struggle, they do not constitute merely passive resistance as a matter of law.
Given Ochoa’s consistent attempts to evade arrest, the use of human hostages to further his avoidance of the officers, and the physical struggle he engaged in with officers in the bathroom, the jury may have reasonably concluded that Ochoa actively resisted arrest. The governmental interests in subduing and capturing Ochoa was high. The court and jury could properly consider the entire incident in determining this, and was not limited to the facts between Ochoa being shot and the decision to deploy K9.
The court then moved on to the Graham v. Connor factors. Here, the severity of the crime was high and favored LE. He was holding people hostage and had failed to appear on a felony spousal abuse case. Therefore, he was a violent criminal who may have access to weapons. In the second factor, Ochoa was found on the toilet, uncooperative, and the bathroom could not be completely seen by LE. There was a reasonable suspicion by LE that Ochoa had access to weapons and was armed. Therefore, it was reasonable to assume he was an immediate danger to LE and the public. Finally, it was clear that he continued to resist arrest even after being shot by a 40mm less than lethal round. Therefore, the third factor also weighed in favor of LE.
Viewing the totality of the evidence, the Court concludes that a reasonable jury could have found that these strong governmental interests justified intermediate to significant uses of force, including the 40 mm less-than-lethal round and deployment of K9. Even though a reasonable jury may have conversely found Ochoa’s version of events credible—that he was simply passively sitting on the toilet and posed no threat or resistance to officers other than failing to comply with commands—it was equally appropriate for the jury to discount Ochoa’s testimony and believe the deputies’ version of the facts.
Note: There really wasn’t anything to argue about except Ochoa wanted another opportunity to try his case. However, the appellate court wasn’t having it and found that LE were reasonable in their use of force.
United States v. Batara-Molina (10th Cir. Wyoming) 2023 U.S. App. LEXIS 4059
Traffic Stop; Reasonable Suspicion; Alert as Probable Cause
Molina was stopped for speeding. When handler contacted him, the vehicle had a strange odor that LE associated with a new car smell or fruity or perfumy which he believed was a cover odor. Molina could only provide his license because the car was a rental. He started looking through his phone to find the rental contract. Molina said he and his girlfriend (passenger) were going to “See Ox Falls for vacation.” LE: “Do you mean Sioux City Falls?” This made it clear to handler that Molina was, at the very least, unfamiliar with where he claimed he was going. There was also a vape pen in plain sight. Molina then found the rental agreement and showed handler. The rental contract indicated that the car had to be back in California in two days, but Molina said he was going to extend it. As handler was walking back to his car, he told an on-site fellow officer about the scent, the fast travel plans and a vape in the car while he was writing the citation. Handler then passed off the citation to LE and told him to get the needed information and to tell Molina to roll up his windows. As LE was walking toward Molina’s car, handler got his K9 out of the vehicle. LE had Molina exit and continued with the citation. As LE was completing the citation, the K9 alerted on the vehicle. 14 pounds of meth were found in the trunk.
The appellate court went directly to the issue of additional reasonable suspicion and did not address whether the stop was prolonged. The court held that the facts of the cover odor, the 3rd party rental agreement and the imminent expiration of the rental contract were sufficient to provide additional probable cause to deploy the K9 to sniff the free air around the vehicle. The court eliminated the other factors in its analysis, but held that under the totality of the circumstances, there was “barely” enough reasonable suspicion to allow for an extension of the traffic investigation.
Note: Even though the appellate court stated they considered the evidence under the totality of the circumstances, they clearly did not as they eliminated 5 of the 8 factors cited by the government by analyzing them separately. This is frustrating because it flies in the face of the US Supreme Court’s required test of totality of the circumstances. In addition, it strikes me as odd that the court wouldn’t even entertain the issue of prolonged detention and just assumed that the stop was prolonged. It wasn’t, but that is not a basis for the ruling for the government here. This is a federal court, so Molina may want to take it further and this court has already eliminated one argument for the governmentby refusing to address it. Very frustrating.
Chauncy v. State (Indiana 2023) 2023 Ind. App. LEXIS 58
Traffic Stop; Prolonged Detention
Chauncy was a passenger in a vehicle that was stopped for a turn signal violation. The driver appeared nervous, vague and hesitant. LE obtained her license and registration. Chauncy also gave her ID to LE. Neither had any warrants but both had a history of drug involvement.
LE went back to the car and asked driver to exit. She refused. LE asked if there were any drugs or weapons. Driver said no drugs but she had a knife in her purse. LE then told her he was going to issue a warning and went back to his vehicle. On the walk back, he radio’d for a K9 team to assist. LE continued his trip back to the vehicle and attempted to print the warning, but the computer was slow. While LE entered information into his computer, the K9 team arrived and instructed both occupants to get out because the K9 is aggressive. Handler started the sniff and K9 immediately put his paws on the bumper. Handler directed him down and started again. K9 then jumped up to the open window and stuck his head in for a few seconds and then performed his final indication by sitting. Seconds later, the citation finished printing.
LE searched the car and found meth, scales and pipes.
Chauncy first complains that there was insufficient reason to pull the car over. However the LE video corroborated LE’s position that driver did not signal until at the intersection when she was supposed to signal at least 200 feet before the turn. Therefore, the stop was valid.
The court then went on to determine if the stop was unconstitutionally prolonged. The court held there was no prolongation when LE asked her if she had any drugs or weapons in the car, holding that that type of inquiry was within the scope of a reasonable detention, such as this one. Moreover, he asked these questions before he called for the K9 team which would indicate that he did not ask the question for purposes of delay. Since the K9 team’s arrival and deployment and indication all happened before the warning citation was written, there was no prolonged detention.
Note: Here, LE used the time while he was walking back to the patrol car to call for the K9 team. This wasn’t addressed but that is smart, strategically, because there is no way to argue that there was a stop in the citation investigation because LE was doing two things at once. This is not always the case, but here it worked nicely.
Swain v. State (Indiana 2023) 2023 Ind. App. Unpub. LEXIS 210
Traffic Stop; Alert as Probable Cause; Automobile Exception; Inventory Search
LE called out numerous times for a noise violation, On one of these call outs, Officer Todd noticed that a vehicle belonging to Swain was plated with the wrong plate. Several hours later, Todd saw the vehicle driving and stopped it for the registration violation. Swain claimed to have just bought it but didn’t have time to register it or insure it. Swain produced a receipt but it just had a zero balance and while it came from a dealer, it was unsigned. While this was happening, back up arrived which included a K9 team. LE knew from previous drug investigations that Swain had large amounts of cash and from social media, LE knew that Swain had access to firearms. Swain had a large bulge in his front pant pocket. Swain was ordered out for a K9 to do a free air sniff. Swain refused, rolled up his window and locked the car. LE told him the car had to be towed because of the registration issue and Swain said he would wait in the car until the tow truck arrived.
About this time, a large group of people had gathered across the street and started to protest LE’s actions. When the tow truck arrived, Swain got out of the car and started to walk away. Todd told him to come back for his citation. In the meantime, the K9 sniff and alerted on the vehicle. Todd told Swain to put his hands on his head and attempted a pat down search because the K9 had alerted. LE reached into Swain’s front pant pocket and he tried to get away. He was put in a patrol car and found to have over $4K in cash in his pocket. He refused to give LE his car keys so they had it towed and applied for a search warrant for the vehicle. Cocaine and handgun were found.
The court first addressed the cash that was seized from Swain’s pocket. The appellate court found that the trial court did not err in denying the Motion to Suppress because LE had reasonable suspicion that Swain might be armed and dangerous. It is uncontested that Swain was legally stopped because the vehicle he was driving was improperly registered and uninsured. In addition, LE were aware of Swain’s criminal history, that he had been the subject of a prior narcotics investigation, and had been seen possessing firearms in recent social media posts. Further, LE stated that he observed a large bulge in Swain’s front right pant pocket, and Swain immediately refused to exit the vehicle, rolled up the windows, and locked the doors upon learning that a K9 sniff was going to occur. Finally, when the K9 indicated the presence of controlled substances and Todd began his search, Swain pulled away and had to be restrained and handcuffed. The court concluded that the pat-down of Swain’s outer clothing was supported by the specific facts, numerous inferences, and the officer’s experiences that Swain might be armed and dangerous.
The court then turned to the seizure of the cocaine and handgun. Once the K9 alerted to the vehicle, there was probable cause to search the vehicle under the automobile exception. There is also the inventory exception to the warrant requirement. Police are permitted to conduct a warrantless search of a lawfully impounded vehicle if the search is designed to produce an inventory of the vehicle’s contents. The rationale for an inventory search is three-fold: (1) protection of private property in police custody; (2) protection of police against claims of lost or stolen property; and (3) protection of police from possible danger. Evidence of an established procedure is necessary to ensure that the inventory is not a pretext for general rummaging in order to discover incriminating evidence. Further, in Indiana, a police officer is authorized to impound a vehicle “until the proper certificate of registration and license plates for the vehicle are procured . . . .”
The court held that the trial court did not err in denying the Motion to Suppress regarding the cocaine and handgun that were seized. Again, it was uncontested that Swain was lawfully stopped for registration violations and that the vehicle was readily movable. The officers did not need to provide any degree of suspicion regarding the K9 sniff. Once the K9 indicated the presence of controlled substances, the officers had probable cause to search the Jeep. In addition, because the Jeep was improperly plated and uninsured, the officers had authority under Indiana Code to impound the vehicle. Pursuant to established Police Department policy, a warrantless vehicle inventory search would have been permissible.
The court also addressed the law from the standpoint of the Indiana State Constitution. Here, because of the unregistered car, the behavior of Swain and the alert from the K9, the factors weigh in the favor of LE. Second, while there is a privacy interest in a vehicle, it is not absolute. Here, the car was improperly registered and therefore subject to tow and inventory search. The degree of intrusion on Swain’s privacy rights was therefore low. Finally, the needs of LE were relevant. Here, LE used a K9 to sniff the exterior of the Jeep and LE had probable cause that the Jeep contained controlled substances. In addition, LE had information regarding Swain’s criminal history and his involvement in a prior narcotics investigation. The need for an immediate search was high to combat suspected drug trafficking. In addition, LE needs were high because Swain could have left the scene in an uninsured and improperly registered vehicle.
Considering all the factors, the appellate court found that LE acted reasonably in searching Swain’s person and vehicle, even if a warrant had not been procured. Further, because the searches conducted in this case were permissible under multiple exceptions to the warrant requirements of both the Fourth Amendment and Indiana’s Constitution, the court had no need to address Swain’s claims that the warrant was defective.
Note: Some jurisdictions require that there be a community care-taking component to seize and inventory prior to towing. This is when other exceptions don’t apply. These LE officers were clearly patient and were able to control the scene effectively. As to the K9 sniff, since it took place while LE was busy with getting Swain back to the scene, there was no prolongation argument and none was made.
State v. Lavenz (Iowa 2023) 2023 Iowa App. LEXIS 83 (Unpub.)
Traffic Stop; Prolonged Detention; Automobile Exception
Traffic stop for no license plates. Lavenz was the driver and LE confirmed that the passenger had felony warrants for her arrest. LE then asked for another officer to assist in taking her into custody. LE then found out that the car’s title was not properly signed and Lavenz had no proof of insurance.
The police chief arrived to assist and called out a K9 team. The K9 team arrived and did a free air sniff of the vehicle. The K9 alerted so LE searched the vehicle. In the back seat area, there was a black coat which Lavenz claimed. There was meth and narcan and a key. LE was able to access the trunk from the back seat and they found a book bag. The key in the jacket opened the bank bag and inside were coins, syringes and 35g of methamphetamine.
Lavenz claimed that there was an unconstitutional prolongation of the stop to allow the K9 to sniff the car. The court went through the timeline. It took LE three minutes to identify and take the passenger into custody. Then LE began investigating the registration issue. When Lavenz admitted to not having insurance, LE decided to cite him for that. LE asked for a check on his license and the VIN and while LE was waiting for return information, the K9 team showed up and alerted.
Finally, the government relied on the automobile exception to a warrant when searching the car and the bank bag. This was proper.
Note: Nothing really new here but great example of good teamwork.
United States v. Anderson (Kansas 2023) 2023 U.S. Dist. LEXIS 28727
Traffic Stops; Automobile Exception; Alert as Probable Cause; Trespass by K9
This search was part of a larger investigation. A car involved in the investigation was followed by LE until they lost sight of it. When they found it again in short order, the car was empty. A civilian said the driver ran away. A K9 team was called and it responded about 20 minutes later. During the sniff, K9 put his paws up on the driver’s door momentarily. The K9 then alerted on the car by performing his final indication. Handler opened the rear driver’s side door to allow K9 in the interior of the car. The K9 again indicated near the front center console of the car between the front seats. A marijuana roach or two were found along with a set of keys which were not the keys to the vehicle. This information was used in a search warrant.
There was another K9 sniff in the case. A Chrysler that was involved in the investigation was followed to a repair shop where the driver was arrested on a bench warrant. There was a female in the car as well. A K9 team came to the repair shop about 32 minutes later and performed a free-air sniff of the vehicle.
Handler walked around the car first to identify any hazards for the K9. He also looked through the front driver’s window. The driver’s door was ajar at that point, but it was shut 30 minutes earlier. There was no evidence as to who opened the door, but driver and passenger were eliminated because they were under police control at the time.
After completing his walk around the car, handler walked over to K9 and gave him a find command, directing the K9’s attention up and down along the passenger side of the vehicle while moving toward and around the front of the car. K9 appeared to lightly touch the passenger side of the car as he sniffed around it. When K9 reached the driver’s side near the driver’s door, he stopped, laid down, and almost immediately sniffed and focused underneath the car. Handler testified – and the evidence showed – that the K9 indicated at that point that he detected the odor of a controlled substance. K9 briefly got up and sniffed toward the back of the car, but quickly laid down again and continued sniffing under the car, this time working his way on all fours back toward the midline of the car, just under the rear part of the driver’s door. K9 partially crawled under the car and was clearly focused on a point under the car. He made contact with the underside of the car as he crawled under it. LE reached under the car to photograph and remove what turned out to be a box attached by magnets to the underside of the car. LE opened the box and found what appeared to be controlled substances.
The court first took up the issue of the Cadillac, the first car stopped. Suspect argued LE unlawfully conducted “at least five trespass-based searches” of the Cadillac, including by allegedly opening or touching one of the car doors before the K9 arrived, and by having K9 touch the Cadillac exterior and sniff inside one of its windows during the initial K9 sniff. However, the US Supreme Court has held that a trespass on effects (personal property, not real property) is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass. This was a case where LE put a GPS tracker on a car without a court order, which was much different than a K9 sniffing the free air of a vehicle. The use of a well-trained K9 – one that does not expose noncontraband items that otherwise would remain hidden from public view – during a lawful traffic stop, generally does not implicate legitimate privacy interests. Finally, suspect ran from the scene, leaving the car behind which was registered to his brother. Therefore, suspect did not have standing to object to the search of the Cadillac.
Suspect claimed there were more touchings of the Cadillac. However the state of the evidence did not support those claims. There were no touchings of the Cadillac until the K9 team responded and deployed. Suspect also claimed K9 stuck his nose into the car. However, the video showed that the K9 never broke the plane of the car. The government (through the K9) was engaged at the time in a search for information, but that search was unquestionably permissible insofar as the car was not touched. And the results of the search would have been no different had the K9 not touched the car at all. It momentarily touched the car with its paws, but the government achieved no information from that trespassory act. Trespass alone does not qualify, but there must be conjoined with that an attempt to find something or obtain information. The K9’s inconsequential touching of the car with its paws, which disclosed no information to the government, was not a Fourth Amendment search. Once the K9 alerted, the subsequent search was valid.
Suspect also complained about the search of the Chrysler and claimed at least 3 trespass-based searches: 1) When the K9 touched the car; 2) when LE removed the magnetic box from the underside of the car and 3) when LE opened the glove box. The court first stated that the incidental touch of a K9 on a car is not a trespass because there was no evidence obtained by that touch. Therefore, this was not a 4th Amendment violation. The K9 alerted after that and the two other “trespasses” were supported by the probable cause supplied by the alert.
As noted previously, although the driver’s door of the Chrysler was slightly ajar at the time of the K9 sniff, the evidence shows that the probable cause from the K9’s alert was obtained independently of any search of the car interior and was in no way tainted by it. The K9 immediately and emphatically alerted on the underside of the vehicle where the magnetic box was located, and the fact that the driver’s door was slightly ajar at that point clearly had no impact or effect on the K9’s alert. Moreover, handler’s report indicates his assistance was first requested at 1:10 p.m., when the evidence suggests the driver’s door was still completely closed, such that the request for his assistance was in no way related to any entry into the Chrysler. In sum, notwithstanding the door issue, the drugs found in the magnetic box under the car were the product of a reasonable search under the Fourth Amendment and are not subject to suppression.
Note: These investigations were part of a much larger investigation, but clearly were valid searches under the constitution. The issues of the K9 touching the car as an unreasonable search is a stickier wicket. Here, this court said that since there was no protected information gained by the touching, it’s no harm, no foul. Other cases come to a different conclusion. This is a newer argument, so we’ll keep you up to date on it.
State v. Lapointe (Minnesota 2023) 2023 Minn. App. Unpub. LEXIS 143
Traffic Stop; Prolonged Detention
Traffic stop for tinted windows and weird driving pattern, including not signaling a lane change. As LE got closer, he could hear the exhaust was too loud as well. As the car was pulling over, LE learned from the plate that the probable driver Lapointe was on probation for controlled-substance crime and had previous contacts involving drug possession and drug sales. LE had Lapointe exit and told him he was not going to write him a ticket. LE went to speak with the passenger. Lapointe kept up a running commentary of LE harassing him and killing people and was noticeably irritated that LE was contacting the passenger. There was discussion about the window tint and what was in the car and a refusal of consent. A K9 team was unavailable so LE released Lapointe.
Shortly after Lapointe pulled away, dispatch indicated that a K9 team was now available. LE went after Lapointe and ultimately found him on a local road, parked with the hood up. Lapointe was still argumentative. LE told him this was a continuation of the previous stop and he was not free to leave. They waited about 20 minutes for the K9 team which alerted after a sniff. 76g of meth was found.
The court had to determine whether there was enough reasonable suspicion of other crimes to delay Lapointe around 15 minutes at the first stop and 20 minutes at the second stop. LE must have reasonable, articulable suspicion of drug-related criminal activity to justify the use of a K9 sniff to determine if there are controlled substances present. Here, the totality of the circumstances include that LaPointe slowed down and changed lanes after seeing the police car pull out behind his car with lights on, had a fast pulse, was confrontational during the traffic stop, and had a prior conviction and contacts with law enforcement involving controlled substances. LaPointe’s driving conduct did not amount to a deliberate attempt to evade law enforcement. And neither LaPointe’s driving conduct nor behavior during the stop offer meaningful evidence to suggest that LaPointe was involved in drug-related criminal activity. Additionally, LE did not express any suspicion that LaPointe was under the influence of substances at the time of the stop.
The strongest factor supporting a suspicion that LaPointe may have been involved in drug-related criminal activity comes from LaPointe’s prior conviction for controlled-substance crime. But to conclude that this alone establishes reasonable suspicion to conduct a K9 sniff simply sets too low a bar. As discussed above, prior caselaw suggests that a conviction may be used to buttress reasonable suspicion when an individual is suspected of a crime similar to the prior conviction. It does not follow that evidence of a prior conviction for controlled-substance crime provides reasonable suspicion that an individual may be involved in drug-related criminal activity when the individual was stopped for equipment and moving violations and has engaged in some mildly suspicious behavior not specific to drug-related activity.
The court also concluded that the totality of the circumstances does not justify the expanded duration of the stop in this case. LE informed LaPointe that he would not be writing a ticket for the equipment and moving violations shortly after approaching the car. Nonetheless, an additional 15 minutes passed before the police officer told LaPointe he was free to go. After LaPointe left the scene, the officer learned that there was a K9 unit available to conduct a K9 sniff. The officer then relocated LaPointe and told him it was a continuation of the traffic stop from before. After the officer relocated LaPointe, an additional 20 minutes passed before the canine unit conducted the dog sniff.
Each incremental intrusion during a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the stop permissible. Here, there were multiple incremental intrusions, including the prolonged duration of the stop, investigatory questions about whether there was contraband in the car, and the K9 sniff.
The state offers no support for LE’s decision to reseize LaPointe as a “continuation” of the prior stop. The initial stop lasted 15 minutes, during which time the officer explained the reasons for the stop, informed LaPointe that the officer was not going to issue any traffic tickets, questioned LaPointe after asking him to step out of the car, and only then told LaPointe that he was free to go. Based only on the fact that LE found out that a K9 unit was available, LE searched for LaPointe and reseized him, telling LaPointe that this was a continuation of the original stop. LE’s conduct in relocating and reseizing LaPointe after unequivocally telling LaPointe that he was free to go and ending the traffic stop was a significant intrusion that was unreasonable under the circumstances here.
Note: A tandem stop like this is only feasible if you don’t violate suspect’s constitutional rights on the first stop. Here, there was a delay on the first stop of about 15 minutes until the suspect was told he was free to go. Then, to add insult to injury, he’s tracked down again and told he is being detained as a part of the previous stop and again there is a delay of 20 minutes. This was too much for the court and the motion to suppress was granted. Sometimes it’s best just to let them go and know that they’ll come back around sooner or later.
Lundy (Plaintiff) v. Pierce Cnty. Sheriff’s Dep’t (Washington 2023) 2023 U.S. Dist. LEXIS 32314
Excessive Force; Monell Liability; Negligence; State Law Claims
The plaintiffs allege that they were apprehended and arrested on probation violations. They were found in a neighbor’s garage with the assistance of a K9 team. They claim that after they were found and determined to be unarmed and were attempting to comply with LE orders to leave their hiding place, handler released his K9 and made it attack the plaintiffs in violation of the constitution and other state law claims.
In assessing the excessive force claim, the appellate court stated that they would view the evidence as a reasonable officer on the scene, rather than with 20/20 hindsight. The first consideration, then, was the level of intrusion on the plaintiffs based on the type and use of force inflicted. Secondly, the court evaluated the governmental interest in light of the 3 Graham factors.
According to plaintiffs, they had both hidden themselves in their neighbor’s garage, P1 under a truck and the other inside a cabinet. The garage was cleared of other persons who were in the area and secured when two deputies and K9 entered. P1’s hiding place was discovered, and he was ordered to come out from under the truck. He did not respond immediately, so the officers began moving items in the area, exposing his head and upper torso to their view. He was not armed, made no threatening gestures, and made no further efforts to resist or evade arrest. Plaintiff one began to extricate himself from beneath the truck as directed. Nevertheless, handler ordered K9 to attack. Similarly, P2 was discovered lying horizontally in a cabinet near the truck but did not immediately respond to the deputies. Handler opened the doors of the cabinet: P2’S face and arms were clearly visible, and the two made eye contact. P2 was not armed, made no threatening gestures, and made no further effort to resist or evade arrest. K9 was permitted to sniff P2 before handler closed the doors and directed K9 to “get him, boy, get him” through a small opening in the cabinet near P2’s head. The K9 bit P2’s head, piercing his temples and causing him to black out. When he regained consciousness, the K9 still had his mouth clamped on P2’a head. P2 rolled out of the cabinet, and handler repeated his commands to “get him.” P2 tried to protect his head, but the deputies struck his hands away and accused him of resisting. K9 continued to bite Jacob’s head, arms, and hands until handler pulled him away.
The allegations of the plaintiffs, taken as true, raised a plausible inference that handler used excessive force against plaintiffs. Plaintiffs were suspected of violating a condition of community custody and, by the time they were found, they had put themselves in compromised positions. Plaintiffs were unarmed and posed no immediate threat to the safety of the officers or others. Plaintiffs were not resisting or evading arrest at the time force was used. Other factors that are relevant to the evaluation of a use of force support the same conclusion. “Whether an officer warned a suspect that failure to comply with the officer’s commands would result in the use of force is another relevant factor in an excessive force analysis.” While the deputies were not silent in this case, there is no indication that they warned plaintiffs that release of the dog was imminent. “[A]n additional factor that we may consider in our Graham analysis is the availability of alternative methods of capturing or subduing a suspect.” Construing the allegations in favor of plaintiffs, this factor, too, supported an inference that excessive force was used.
Plaintiffs also allege that the Department is liable for their injuries because there was a pattern of similar conduct on the part of officers, deputies, or administrative staff that was effectively ratified by supervising officers and/or because the need for training regarding K9 engagement was obvious and the Sheriff’s Department was negligent or grossly negligent in its supervision, training, and monitoring of the K9 units to prevent the excessive force used against plaintiffs in this case. The first allegation is entirely conclusory and little more than a recitation of relevant case law. No examples of similar conduct are provided, nor are there any details regarding a policymaker’s knowledge and ratification of unconstitutional conduct. The second allegation is not only conclusory, but, even if it were deemed an allegation of fact and presumed to be true, neither negligence nor gross negligence is sufficient to establish a § 1983 claim. In short, plaintiffs allege nothing more than that an officer violated their constitutional rights and that his conduct must have been the result of inadequate training. To allow the claim to proceed would effectively collapse § 1983 municipal liability into respondeat superior liability. Plaintiffs have not adequately alleged a viable § 1983 claim against the Pierce County Sheriff’s Department.
The due process claim was also dismissed as it was subsumed by the § 1983 claim as it alleged the same facts. Also, the negligence claim was dismissed against the handler because plaintiffs did not allege adequate facts to sustain the claim. However, the negligence claim against the department remains because plaintiffs alleged that the department had a duty to train its K9 handlers and to supervise their use of force, that it breached those duties, and that plaintiffs were harmed thereby. Plaintiffs do not allege that the Pierce County Sheriff’s Department is liable by dint of being handler’s employer, but rather that the Department’s own actions in failing to train K9 handlers, failing to require accurate use of force reports, and/or failing to adequately review the use of force reports provided breached a duty owed to plaintiffs. Strict liability remained as well.
Note: The court kept indicating that neither plaintiff was armed, but doesn’t address the fact that they were both in small areas which could not be fully visualized by LE. This may be because this is a summary judgement motion and the court is required to accept the Plaintiff’s version of the facts in which both Plaintiffs said they were unarmed. In any event, if this goes to trial, I would expect that argument from the government. The agency remained in the case because the plaintiffs alleged negligence in supervising adequate training and inadequate supervision. This is why it is very important to have an engaged supervisor who is on top of training and record keeping. This evidence is what will prevent the agency from being held liable.
People v. Moses (Illinois 2023) 2023 Ill. App. Unpub. LEXIS 172
Traffic Stop; Prolonged Detention
Moses and his wife were in a rental car traveling from St. Louis, MO to Cincinnati, OH. A drug interdiction K9 team was parked on the side of the road. As Moses approached, he signaled a lane change even though there were no cars to pass. Handler decided to follow the car and ultimately pulled him over for speeding and crossing the fog line. LE approached on the passenger side and said he stopped them for the violations because they could be indicative of fatigue (around 1 am) or DUI. Moses gave handler his license and the rental agreement. Moses said he was nervous and handler told him he was only going to give him a warning and make sure he wasn’t DUI or anything like that.
Moses was directed out of the rental and into the police cruiser to fill out some paperwork. Moses agreed, and showed his waistband with his arms up when handler asked about weapons. As handler was contacting dispatch about 3 min and 53 seconds into the stop, he asked if Moses had any outstanding warrants and what they were doing in St. Louis. At this point, dispatch confirmed that Moses had a valid license. Handler got out a warning ticket and asked why Moses was in St. Louis. It was now 5 inutes and 10 seconds into the stop. Moses replied that they were at a family gathering but left due to a conflict. There was more discussion about Moses’ past criminal record and his employment now. Moses also asked if a warning ticket would put points on his license.
Handler started filling out the warning ticket at 7 minutes and 18 seconds. Moses asked a question and handler paused to answer it. Handler went back to writing the citation. At 8 minutes, 34 seconds in, handler asked if there was anything illegal in his car. Moses said no. When asked about a large amount of money, he hesitated and was vague in his answer. Moses finally indicated that there was about $4K.
At this point, at 10 minutes and 14 seconds in, handler begins to enter the written information into his computer. Handler asks about the same subjects above plus asking about the event in St. Louis. 13 minjutes and 21 seconds into the stop, handler had finished the top part of the citation and then stopped and asked more questions about the St. Louis event and Moses’ family.
17 minutes and 9 seconds into the stop, back up arrived and handler told Moses that the back up officer would finish the citation to allow handler to sniff Moses’ car as well as verify the VIN. Moses consented to handler opening the front driver’s door to do that. Handler told wife that he was going to open the door to get the VIN (not required for the citation). Handler then asked questions of the wife and she said a different reason for being in St. Louis (Moses said wedding and wife said funeral). Handler then had her exit and ran his K9 around the car and it alerted.
Behind a carpeted panel was $27,000 in cash and a bundle of cocaine.
Handler testified that the citation took about 2 more minutes.
In the present case, the court found that handler did not act diligently in completing the warning ticket. From the beginning of the stop, handler indicated to Moses that only a warning ticket would be issued. LE testified that it would have only taken, at most, a couple of minutes to complete a warning ticket. According to the body camera footage, 13 minutes and 30 seconds into the stop, handler had only finished filling out the top portion of the warning ticket. At this point, he needed only to check the violation boxes, fill in the speed, and sign his name and badge number. Thus, the traffic stop reasonably should have been completed very shortly after handler finished the top portion of the warning ticket.
Instead of diligently completing the warning ticket as he originally informed Moses, handler stopped filling out the warning ticket to ask Moses about the wedding he was supposed to have attended and included questions about Moses’. Handler then commented that there was “so much paperwork than there used to be” and claimed that he had to put “all this information in” his computer. Handler also asked Moses about what kind of business he owned, although Moses had previously explained his business to handler earlier in the stop. Next, handler claimed he was looking for the VIN on the rental agreement paperwork, even though the VIN was not required to complete the warning ticket. The court acknowledged that handler testified that he typically verifies the VIN with the information on his computer; however, the tasks here were not related to completing the warning ticket. Thus, the court was not persuaded that handler was doing anything other than prolonging the detention of the defendant until the second officer arrived.
Handler also testified that he could not conduct a free air sniff of Moses’ vehicle until the second officer had arrived, even though the K9 was in handler’s vehicle from the outset. The second officer did not arrive until 17 minutes and nine seconds into the stop, nearly four minutes after the time handler reasonably should have completed the mission of the traffic stop. Had handler worked diligently, the traffic stop would have been completed before the second officer arrived. The free air sniff did not even occur until 21 minutes and 16 seconds into the stop, nearly nine minutes from the time handler should have reasonably completed the warning ticket. Thus, under the circumstances in this case, the court found that handler unreasonably prolonged the traffic stop.
The court then turned to deciding whether handler had enough additional reasonable suspicion to justify the delay. Handler testified that the following circumstances gave rise to his reasonable suspicion: (1) Moses changed lanes and slowed down upon seeing the officer; (2) the speeding and improper lane use violations; (3) Moses’ statement that he had previously been arrested for drug charges; (4) Moses’ repeated response of “no” when asked about narcotics; (5) Moses’ increased nervousness, with increasedbreathing and shaking hands, when asked about cocaine; (6) Moses’ explanation as to why he and his wife had $4K; and (7) handler’s conversation with Moses’ wife, wherein she indicated they had
been to a funeral rather than a wedding.
The seventh reason stated by handler, however, was not learned until after he unreasonably prolonged the stop and the second officer arrived on the scene. Information learned after the officer unreasonably prolongs a stop cannot be considered in evaluating whether a reasonable suspicion existed to prolong the stop. Subsequently learned information may not be bootstrapped in an attempt to establish a reasonable suspicion. Accordingly, the court only used the first six factors to determine whether the other circumstances gave rise to a reasonable suspicion.
Handler indicated that prior to speaking with Moses’ wife, he believed there was a “possibility” that he would conduct a free air sniff with his K9 based on his conversations with Moses. In other words, handler only had a hunch of criminal wrongdoing, which was legally insufficient to prolong the stop. Handler’s lack of a reasonable suspicion was highlighted by the fact that he did not conduct the free air sniff immediately after the second officer arrived. Instead, he claimed he needed to verify the VIN and spoke with Moses’ wife. It was not until after his discussion with Moses’ wife that handler conducted the free air sniff. Handler testified that his “final decision” was not made until he received an inconsistent reason for travel to St. Louis from Moses’ wife, which, as the court had stated, cannot be considered in forming the basis for handler’s reasonable suspicion.
Note: This court was willing to pick things apart based on the body camera footage which gave the court specific times for each event in the stop. This is the new reality so make sure you are moving forward with the stop investigation as you are gathering information about additional reasonable suspicion or until you find a window of a few minutes to run your K9 that won’t extend the traffic investigation impermissibly. Here, handler said he had to wait for a second officer to run the K9. This may have been a policy of his department and if so, he was bound to follow that procedure. In addition, it was unclear from the opinion whether the back up officer was on scene the whole time or if he had just pulled up. If he had been on scene the entire time, handler could have used the short window of time when he was waiting for dispatch to hand off the citation and then deployed the K9.
