May 2020 Case Law Update

May 2020 Update (Volume 1, Number 2)

[ View Archives ]

Note from Editor: Thank you all for doing the hard work of policing in this incredibly volatile and uncertain time. In this edition of the Update for Meyer’s K9 Law, I have covered new cases from April and May of 2020. (A note here: some cases are unpublished (Unpub.) so cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking and the arguments in them can be used; the case just can’t be cited.) In addition, since several of the cases I have reviewed this month involve the concept of curtilage, I have explored that concept in the article this month. It is very important that law enforcement (LE) understand the concept of curtilage and how the various courts view it because curtilage can define where you can and where you can’t perform a free air sniff.
I hope these case reviews and article help you. As always, if you have any questions or concerns, I’m just an email, text or phone call away.
(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. It is not legal advice.)
Index for June 2020 Update (This index includes the name of the case and a word or two about the relevant concepts in the case):
Article: “Curtilage: What is it, where is it, why should I care about it?”
Case Review: This issue will cover case law from April 2020 and May 2020.
Blankenship v. Commonwealth: Excessive Force and Restitution
Tolley v. Rockbridge Regional Drug Task Force: Conditions of Confinement
United States v. Hendrickson: Curtilage; Independent Source and Attenuation Doctrines
United States v. Flores: Consent
Giroux v. State: Consent by Third Party; Prolonged Detention
State v. $10,214.00: Currency Alert
Atsemet v. State: Prolonged Detention
Commonwealth v. Wiley: Failure of Government to Argue All Avenues of Admissibility
Contreras v. Conrad: Civil Liability for 4th Amendment Violation
State v. Colman-Pinning: Automobile Exception to Search Warrant
Iverson v. United States: Reasonable Expectation of Privacy
United States v. Orozco-Rivas: Consent; Prolonged Detention
Lucero v. City of Clovis Police Dep’t: Excessive Force
Sanchez v. Baker: Excessive Force
United States v. Wimbush: Final Indication v. Alert Behavior; Reasonable Suspicion
United States v. Kimmell: Curtilage
Recca v. Pignotti: Excessive Force
United States v. May-Shaw: Curtilage
Commonwealth v. Jimenez-Martinez: Probable Cause; No Final Indication
Davis v. State: Prolonged Detention; Reliability Foundation

Curtilage: What is it, where is it, why should I care about it?

Curtilage becomes relevant because people have the right to be free from unreasonable search and seizure by the government. Curtilage addresses the “reasonable” part of that right. Historically, the law has treated a person’s home as his/her “castle;” meaning that the home had the highest level of privacy in our system.

“The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself. The concept plays a part, however, in interpreting the reach of the Fourth Amendment. Hester v. United States (1924) 265 U.S. 57, 59, held that the Fourth Amendment’s protection accorded “persons, houses, papers, and effects” did not extend to the open fields, the Court observing that the distinction between a person’s house and open fields “is as old as the common law. (Citations).
“We reaffirmed the holding of Hester in Oliver v. United States (1984) 466 U.S. 170. There, we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. Oliver, at 180. We identified the central component of this inquiry as whether the area harbors the “intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.'” Ibid. (quoting Boyd v. United States (1886) 116 U.S. 616, 630.

United States v. Dunn (1987) 480 U.S. 294.

While it is fairly easy to determine a “home,” it is less simple to determine how far that “home” protection extends. In Dunn, the United States Supreme Court outlined 4 factors to be considered when determining whether an area is curtilage; that is, whether the area in question is so intimately tied to the home itself that it should be placed under the home’s umbrella of 4th Amendment protection. Dunn, at 301-302.

Those factors are:
(1) the proximity of the area to the home;
(2) whether the area is within an enclosure around the home;
(3) how that area is used;
(4) what the owner has done to protect the area from observation from passersby.

Courts have held that an enclosed attached garage enclosed on three side was in the curtilage (Collins v. Virginia (2018) 138 S.Ct. 1663: A detached garage was within the curtilage of a home because it was “within natural boundaries demarcated by the river and the heavy tree coverage…[and] the backyard and garage [were] not readily visible from the street….”” [and] the contents [of the garage] were only visible after a person entered the backyard and approached the garage.” (Daughenbaugh v. Cite of Tiffin (6th Cir. 1989) 150 f.3D 594, 601).

Other cases on curtilage include: United States v. Galaviz (6th Cir. 2011) 645 F.3d 347: A driveway adjacent to a house which was not enclosed by any barrier and which was directly adjacent to the public sidewalk was not curtilage: US v. Estes (6th Cir. 2009) 343 Fed.Appx. 97: An unenclosed driveway which was used as the point of entry to the residence and for which defendant did not taken any steps to protect it from observation by passersby was not curtilage: State v. Ware (Fla. 2020) 2020 Fla. App. LEXIS 3727: LE attempted a knock and talk on property that has been posted “No trespassing.” When there was no answer, an officer stepped over by the hog pen to urinate. As he did so, he saw in plain sight evidence that later became critical in a homicide. The court held that even though LE may have violated curtilage during the knock and talk, the hog pen was not curtilage.

In addition, the court will look to the location of LE during the observation of the evidence. In California v. Ciraolo (1986) 476 U.S. 207, the Supreme Court stated that Fourth Amendment protection of the home had never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor did the mere fact that defendant had erected a 10-foot fence around his yard preclude an officer’s observations from a public vantage point where he had a right to be and which rendered activities clearly visible. Defendant’s expectation that his yard was protected from observation was unreasonable and not an expectation that society was prepared to honor. This means both the handler and the PSD must be in a location outside the curtilage when the sniff is performed. See Earl v. State (Ala. 2020) 2020 Ala. Crim. App. LEXIS 44; Handler in the common courtyard of an apartment building allowing his PSD on a 15 foot leash to sniff the door seams of apartment is a violation of curtilage: and United States v. Hopkins (8th Cir. 2016) 824 F.3d 726; a PSD sniff 6 to 10 inches from an apartment door from a shared walkway was a violation of curtilage.

The seminal U.S. Supreme Court case that addresses curtilage in regards to a police services dog (PSD) trained to detect odors was Florida v. Jardines (2013) 569 U.S. 1. In Jardines, law enforcement (LE) had information that marijuana was being illegally grown at a target’s house. LE approached the house, stepped onto the porch and knocked on the door, ostensibly to perform a “knock and talk.” However, LE also brought a PSD team to the front door at the same time and allowed the PSD to sniff the base of the front door. PSD alerted and LE obtained a search warrant with that alert being at least part of the probable cause. The Supreme Court held that while there is an implied license to the public to come on to a home’s porch to knock on the door and attempt contact with the occupant, the Court declined to extend that invitation to trained PSD. The Court held there is no implied social license to bring a trained detection tool to the front door of a home and therefore, the sniff was a violation of the Fourth Amendment.

Cases that deal specifically with PSDs and curtilage are included below:
United States v. Jones (2nd Cir. 2018) 893 F.3d 66: A car parked in an apartment building’s parking lot which was a common area over which defendant did not have exclusive control was found not to be curtilage. Sniff by PSD along with additional investigation gave LE probable cause to search.
United States v. Perez (6th Cir. 2006) 440 F.3d 363: A PSD sniff of a car in a hotel parking lot was found not be curtilage.
McClintock v. State (Tx. 2017) 541 S.W.3d 63: PSD sniff of door of apartment above a business is a violation of curtilage.
People v. Lindsay (Il. 2020) 2020 IL 12289: PSD sniffed a motel room door from a public hallway. Since the defendant couldn’t prove he had standing in the motel room (an expectation of privacy) or exclusive control of the hallway (or the alcove in which the door of the room was), there was no violation of curtilage. (Editor’s note: I believe this case is an outlier and would not withstand constitutional muster if appealed further.)
United States v. Burston (8th Cir. 2015) 806 F.3d 1123: PSD sniff 6 to 10 inches from an apartment window was a violation of curtilage.
United States v. Kimmell (Nev. Dist. 2020) 2020 U.S. Dist. LEXIS 70493: Storage units do not have curtilage.
United States v. May-Shaw (6th Cir. 2020) 2020 U.S. App. LEXIS 11059: A apartment carport that is not enclosed and over which defendant does not have the right to exclude others is not curtilage.
United States v. Hendrickson (Utah Dist.2020) 2020 U.S. App. LEXIS2150: Sniff of a car 150 to 200 parked feet away from an apartment on the cul-de-sac is not a violation of curtilage.

In conclusion, the courts will apply the Dunn factors to determine whether curtilage has been violated. They will not look favorably on situations where the handler is outside the curtilage but the PSD is allowed into the curtilage to perform the sniff. Analyzing your case facts against the Dunn factors as well as making sure that both the handler and the PSD are outside of curtilage prior to deployment is imperative.

Case Review for April and May of 2020
Blankenship v. Commonwealth (Va. 2020) 2020 Va. App. LEXIS 65
Injuries to PSD; Restitution
Defendant was convicted of animal cruelty on a PSD among other charges. The case started out as a beef between two neighbors with defendant finally threatening to kill neighbor. LE was called and arrived with PSD and handler. PSD was trained to “hold and not let go.” Defendant was standing in the middle of the road when LE arrived. Defendant shook his fist at LE, and cursed at LE and said something about bodies being buried underneath a dog house when LE attempted to talk to him. LE suspected defendant was under the influence of a controlled substance or alcohol. Even though LE tried to calm him, defendant continued to get more amped up, screaming and yelling that they were not the police (although clad in uniforms and badges) and to fuck off and that there were dead bodies in the house. At one point, defendant told officers he had “weed” in his pocket and to “arrest me, motherfuckers.” Eventually, LE told defendant he was going to be arrested for public intoxication and defendant responded, “You’re not going to fucking touch me.” As LE moved in, defendant took a bladed stance and balled up his fists. LE moved back and tried again, with the same response, and defendant physically taking a step towards LE. Defendant given commands to get on the ground, and that PSD would be released if defendant did not comply. Defendant refused so pepper spray was deployed. Defendant started running away. PSD released with the command to apprehend. As soon as PSD was close enough to defendant, he turned and punched PSD in the head. PSD veered from his course, but corrected and again attempted to apprehend defendant. This time, defendant kicked PSD in the chest. PSD continued to chase defendant, and at some point, defendant tripped and fell. Defendant repeatedly punched and kicked PSD. PSD then backed off as if he didn’t want to engage anymore, which was not typical behavior and not what PSD was trained to do. About a week later, PSD was diagnosed with a digestive injury. Vet testified that when PSD was kicked and punched, PSD would have felt pain.
Defendant appealed, challenging the sufficiency of the evidence for the charge of animal cruelty. The statute made illegal willfully inflicting inhumane injury or pain, or cruelly or unnecessarily beating an animal. Defendant claimed that the evidence did not show that PSD experienced pain and that his actions were necessary to keep PSD from biting him. The court held that not only was the evidence sufficient for conviction, but reiterated that a person may not resist a lawful arrest effectuated with (accomplished by) reasonable force. In addition, the court cited Robinette v. Barnes (6th Cir. 1988) 854 F.2d 909, 913, which stated that LE may use PSDs as an instrumentality to effectuate an arrest, and the mere use of a PSD to apprehend the defendant does not render the use of force unreasonable. Thus, the court concluded, defendant had not right to resist the lawful arrest by punching and kicking the PSD and his actions were sufficient to support the conviction of animal cruelty.
Editor’s note: there is no mention in this opinion that restitution was sought for the veterinarian’s bill or any other costs associated with the injury. Be sure that you submit requests for restitution as soon as they are incurred and follow up with your prosecuting agency to make sure that restitution is ordered.

Tolley v. Rockbridge Regional Drug Task Force (West. Dist. Of Va.) 2020 U.S. Dist. LEXIS 85143
Conditions of Confinement
This was a section 1983 civil rights case in which a criminal defendant complained of a violation of his 8th Amendment right to be free of cruel and unusual punishment when LE transported him in a vehicle with what complainant characterized as an out of control, barking and growling PSD (and only being separated by a sheet of glass) after telling LE that complainant was afraid of dogs. The court corrected defendant’s pro se complaint to a claimed violation of the 14th Amendment (the Due Process Clause). The court indicated that this was not an excessive force claim, because complainant does not allege that any force was used against him. The only other avenue available for the claim to survive dismissal is to characterize it as a conditions of confinement claim. To have this action survive dismissal under review of an incarcerated pro se complainant, complainant must establish that 1) LE acted with an express intent to punish or 2) lack of a reasonable relationship to a legitimate governmental objective from which a punitive intent may be inferred. Since complainant alleges that he was transported in the PSD cruiser with the PSD when there were other ready alternatives for transportation, the court stated that it is at least plausible that, after being told complainant had an extreme fear of dogs, his transport in a K-9 vehicle instead of another police vehicle without a PSD court suggest an intent to punish, which would allow the claim to go forward. However, the court seemed skeptical of success of the claim.
Editor’s note: Since this claim was allowed to go forward, it probably would be best practice to transport people who express a fear of dogs in a vehicle without a PSD. However, if that is not available or practical, be sure to document why in your report.

United States v. Hendrickson (Dist. Of Utah 2020) 2020 U.S. Dist. LEXIS 2150
Reasonable Expectation of Privacy; Attenuation; Alert as Probable Cause; Sniff Not a Search; Independent Source Doctrine
LE received information that a theft had occurred in a local store by a male in a black sports car. LE located a black Pontiac Firebird in the area. LE observed two males exit the Firebird, leave and return. By that time, LE had received additional information as to identity and LE believed these two males matched the description. When LE went to talk to them, they left the area again. The vehicle was registered to defendant. His DL picture seemed to match the description given of one of the thieves. Inside the car were items that indicated to LE that occupants were involved in drugs and/or theft. LE opened the door to see if it was locked; LE immediately shut the door again. LE called for a PSD to conduct a free air sniff. It was also discovered that defendant was on parole. PSD arrived and alerted. Inside the vehicle were items associated with methamphetamine, indicia for defendant, and a gun with a full magazine.
Defendant was prosecuted for felon in possession of a gun. Defendant filed a motion to suppress the items found after the PSD alert. Defendant must first establish a reasonable expectation of privacy prior to a court hearing a motion to suppress.
Defendant claimed there were two searches; one when LE opened the door to determine if the car was locked and two, the search based on the PSD alert. Since there was no competent evidence submitted at the hearing proving defendant was on parole, the court did not consider defendant’s status as a parolee for the purposes of the motion to suppress. That meant after the defendant established a reasonable expectation of privacy, the government would have to legally justify the search of the vehicle.
The court first held that LE was not required to have justification prior to having a PSD sniff the vehicle. The court confirmed that a sniff by a PSD is not a search. However, if LE was in a place they were not allowed to be, then a violation of the 4th Amendment might have occurred. In this case, defendant first claimed that the vehicle was in a curtilage, but he introduced no evidence that would indicate the location of the vehicle was in a curtilage in which defendant would have a reasonable expectation of privacy. The court then moved on to LE opening the door slightly prior to the PSD sniff. The court held that since no evidence was found from opening the door slightly, there was nothing to suppress.
The court went on to hold that even if a 4th Amendment violation was found, the doctrine of attenuation would apply here. There are three factors in this doctrine that must be shown: 1) temporal proximity between the unconstitutional conduct and the discovery of the evidence to determine how closely the discovery of evidence followed the unconstitutional search; 2) the presence of intervening circumstances and 3) an examination of the purpose and flagrancy of the official misconduct. Even though the first factor weighed slightly in favor of the defendant, the other two factors were in favor of the government. For Factor 2, the PSD alert provides an intervening circumstance that attenuates the act of unlatching the door from the seized contraband. In analyzing Factor 3, the court found that there was nothing flagrant about the behavior of LE. The dash cam video clearly showed that LE were discussing in good faith their efforts to comply with the law. In addition, the items in plain view gave LE additional and unrelated information that the vehicle contained contraband unrelated to the reported theft. Finally, LE believed defendant was on parole which meant defendant had waived his 4th Amendment rights.
The court also analyzed the independent source doctrine. This doctrine allows trial courts to admit evidence obtained in an unlawful search if LE independently acquired it from a separate, independent source. Here, unlatching the door did not result in the discovery of any evidence. Even if it had, the independent source doctrine would apply because the evidence would have been found during the search pursuant to the PSD alert. Since exclusion is meant to discourage unlawful police conduct, if evidence was or would have been found by an independent source, there is no need to punish police.
Editor’s note: The court did distinguish this case from cases where LE deliberately left a car door open which enable PSD to enter the vehicle rather than being limited to sniffing the exterior of the vehicle. The act of facilitating a PSD’s entry into the vehicle constitutes an illegal search. That did not happen here.

United States v. Flores (5th Cir. 2020) 2020 U.S. App. LEXIS 10235
LE approached a home and performed and knock and talk; people were inside but did not answer. A few minutes later, defendant arrived (who had been contacted by someone inside the residence). After some wrangling, defendant consented to a PSD sniff around the front of the residence. PSD retrieved from cruiser and alerted near the front door.
Defendant complained that by bringing a PSD along with the knock and talk personnel was a violation of curtilage. However, the court rejected that argument because the PSD was not brought from the patrol car to the house until after consent. Defendant then tried to complain that he did not give voluntary consent for the sniff, but the court rejected that as well, saying that defendant clearly understood that he had the right to refuse, considering he limited the sniff to the front of the house. Denial of motion to suppress affirmed.

Giroux v. State (5th Dist. Tex.) 2020 Tex. App. LEXIS 3899 (Unpub.)
Prolonged Detention
Defendant was stopped on a drug corridor by a LE for equipment violation. Defendant could not immediately produce insurance registration and said the vehicle belonged to his boss. Defendant said he was in the area for the last two weeks, but when asked, could not tell LE the address of his job, nor did he have any tools of his trade in the vehicle that were visible. Defendant also displayed signs of previous methamphetamine ingestion and was overly nervous. Defendant was ordered out of the vehicle and LE noticed a pocket knife in defendant’s pocket. LE had defendant empty his pockets because they “were fixing to sit in my car to look up information.” When asked, defendant said he had been arrested for narcotics once, when the records check revealed several arrests for narcotics. Defendant was even more nervous. Consent to search vehicle was refused. A PSD was requested. Defendant was worried about being late for work and wanted to call his boss. LE agreed and asked to speak to employer; defendant agreed. LE asked employer who confirmed he owned the vehicle and, when asked, said nothing illegal should be in the vehicle. Now on speaker phone, LE asked owner for consent which employer gave.
LE decided to wait until PSD arrived as he wanted to have his suspicion confirmed that narcotics were in the vehicle. The wait for the PSD was about 43 minutes. PSD alerted on vehicle; search revealed methamphetamine.
The trial court ruled that LE had reasonable suspicion of narcotics offenses to extend the time of the traffic stop. Defendant disagreed with that and also disagreed that an owner who is not present can give consent to search. This court ruled that it is well settled law that third parties may consent to a search if they have authority and control over the property being searched and equal access to the property. See United States v. Matlock (1974) 415 U.S. 164, 170-171. Here, the court noted that defendant called his employer of his own accord which permitted the reasonable conclusion that employer had supervisory authority over the vehicle. In addition, when informed of the equipment violation, employer assured LE he would take care of the problem, which also showed responsibility for the vehicle.
The appellate court did not reach the issue that reasonable suspicion existed to extend the time for the traffic stop because they found valid consent. However, they were concerned that it took 43 minutes for the PSD to arrive from approximately 10 miles away. They did not further address the issue, however.
Editor’s note: Because the court was concerned with the response time, it does raise a best practice note. You should always note in your report when you contact the PSD team and note where they are responding from. If the PSD team takes longer than average time to respond, ask why and note in that your report.

State v. $10,214.00 (7th Dist. Tex.) 2020 Tex. App. LEXIS 2742
Alert on Currency
In a case where $10,214.00 was found in a vehicle belonging to a person who claimed an innocent reason for having the money, a PSD alert on the vehicle when money was found and a second alert from a second PSD on the currency after placing the currency in a cardboard box was not enough to show that currency was used or intended to be used in the commission of, or was the proceeds derived from, the delivery or possession of a felonious amount of marijuana (4 ounces). The court indicated that the alerts only showed that the currency at some point in time had been around illegal narcotics at one time. This was not enough to carry the government’s burden as previous case law indicated a positive alert was only one factor in making such a determination.

Atsemet v. State (11th Dist. Tex.) 2020 Tex. App. LEXIS 3744 (Unpub.)
Reasonable Suspicion; Prolonged Detention
Defendant appeals from conviction of felony possession of marijuana. The case arose out a car stop when LE saw backseat passenger smoking marijuana and sharing it with driver and other passenger. The vehicle also had a Colorado plate, which is a source state for marijuana. LE kept the car under surveillance and when it violated a traffic law, LE conducted a traffic stop. Occupants had a nonsensical story as to where they were headed and there were other discrepancies in their stories. When LE attempted to run ID and check registration, dispatch told LE to stand by and took almost 20 minutes to complete said check. The car was rented by defendant, so LE asked him to step out, intending to ask for consent. LE Terry frisked defendant and found a “big wad of money” in his pocket. Defendant claimed it as wages; he denied consent to search. Later, it was discovered that within the previous month or two, defendant had been charged with possession of a controlled substance.
A PSD team was called in and alerted several times on the vehicle. Two pad locked cases were found in the trunk. Keys to the trunks were later found in the possession of the front seat passenger. Inside was a felonious amount of marijuana, packaging, currency, a scale, a firearm and ammunition.
The other two occupants claimed the marijuana was theirs and actually pleaded guilty to possession of marijuana. Nevertheless, the jury convicted defendant of possession as well.
Defendant claimed that his motion to suppress should have been granted in the trial court. Since the traffic stop was not challenged, the appellate court moved on to whether there was prolonged detention under Rodriguez. Defendant claimed that 20 minutes was too long to detain him for a traffic violation. Defendant claimed that the additional 45 minutes waiting for the PSD team to arrive compounded the impermissibly prolonged detention. The appellate court held that the first 20 minutes were through no fault of LE because dispatch caused the delay.The court then went on to determine if LE had reasonable suspicion to prolong the traffic stop to investigate drug trafficking. LE knew before the stop that the occupants were smoking marijuana. At the time of the stop, occupants gave a nonsensical story about where they were headed (location did not exist). The occupants also gave conflicting stories about whether they were traveling. The vehicle was rented from Colorado, a source state. The appellate court also took into account the money found during the Terry frisk, stating that LE had an objectively reasonable safety concern as “roadside encounters are dangers and “weapons [are] part and parcel for the drug trade,”” and that plain feel allowed LE to remove the “big wad of money” from defendant. Therefore, the motion to suppress was correctly denied.
Editor’s note: Again, there is a long delay between calling for the PSD team and their arrival. While this court didn’t seem to care (and defendant didn’t complain about the length), the best practice would be to document why response took that period of time.

Commonwealth v. Wiley (Penn. 2020) 2020 Pa. Super. Unpub. LEXIS 1155
Reasonable Expectation of Privacy
While this is an unpublished case and therefore cannot be used for precedent, it is an important case to demonstrate what happens when not all elements available to the government are not challenged when confronted with a motion to suppress.
The 4th Amendment guarantees the right to be free from unreasonable search and seizure by the government. Part of the reasonable analysis is whether an individual has an expectation of privacy in a certain place or thing. The burden of this initial showing is on the defendant. In this case, the government did not require defendant to prove he had a reasonable right of privacy, so the court deemed that requirement waived by the government. Unfortunately, this oversight proved fatal for the prosecution.
The case involved defendant using a parked vehicle as a stash place for narcotics. He placed a bag in the trunk (unknown what was in the bag) and LE believed it contained narcotics. Defendant was arrested at his probation officer’s office. When the stash car was discussed, defendant claimed he owned it (even though he didn’t and couldn’t drive it because he was suspended) and he had a key to it on his person at the time of arrest. However, there was no official record of ownership presented to the court. Because defendant’s testimony was unchallenged, the court took this as a waiver by the government that they did not challenge whether defendant had a reasonable expectation of privacy in the vehicle. In addition, the government conceded they did not have probable cause to move the vehicle (they towed the vehicle to a garage as it had 3 flat tires). The government relied on the independent source doctrine; that is, a PSD alerted on the car in the garage. However, the car was located on defendant’s grandmother’s property and LE did not have permission to enter grandma’s property. Therefore, the court held that the sniff and subsequent search of the vehicle was unconstitutional.
Editor’s note: States’ attorneys and prosecutors should be aware that in all motions to suppress, all avenues of argument should be exploited. Even if you win at the trial court level, your work has to survive appellate review. When you concede elements that the evidence does not require you to, you preclude that argument at the appellate level. Never put all your (argument) eggs in one (theory of admissibility) basket. Always argue as many as are available to you via the facts of the case and the applicable law.

  • Contreras v. Conrad (Mid. Dist. Penn.) 2020 U.S. Dist. LEXIS 79521
    Prolonged Detention
    In this civil rights case under section 1983, both sides moved for summary judgment.
    LE stopped subject for speeding. It was determined that both subject and passenger had criminal records, but not narcotics history. Additional LE responded and at some point LE contacted an agency with additional criminal information. LE testified he does not always contact this agency, but he suspected trafficking. LE received a call back from this agency at some point later.
    An hour after the stop, subject was given a written warning for speeding. At that point, LE informed subject that he was calling for a PSD team. This was after subject refused consent to search. When subject asked if he was being detained, LE confirmed that he was. PSD arrived and alerted. Even though car was searched at the scene and then towed and taken apart, no drugs or contraband was found. The entire incident took 5 hours. In addition, subject and passenger were required to leave their cell phones in the car during the searches.
    A civil claim for damages lies whenever a constitutional right is violated. Here, subject claimed his right to be free from unreasonable governmental search and seizure was violated and his right to free speech. The court concluded that the evidence could be interpreted that subject’s rights were violated as LE extended the traffic stop beyond what was reasonably necessary to complete the mission of the traffic stop: specifically, contacting the additional agency to review criminal history was the beginning of the prolonged detention. Therefore, the only evidence gathered prior to that contact could be considered to determine if LE had reasonable suspicion to extend the time beyond that of the traffic stop. The court held there was not enough to create reasonable suspicion. (The items the government claimed to provide reasonable suspicion included that subject had an attitude; texting someone while talking with LE; passenger nervous and answering questions about the vehicle; driving on a known drug corridor; subject behaving in an “unusual” way for someone with a commercial driver’s license).
    The court then went on to determine if qualified immunity was appropriate in this case. As to the 1st Amendment action (not allowed to have their cell phones), the court held that, even though a 3rd Circuit case recently said that individuals have a 1st Amendment right to record LE conducting business in public, this was a recent change in the law, so it was not clearly established. Therefore, the 1st Amendment claim was dismissed in favor of LE.
    As to the 4th Amendment claim, the court held that LE was not entitled to qualified immunity because there were genuine issues of material facts. This claim was allowed to go forward.
    Editor’s note: Civil liability can attach when search and seizure rights are violated, even if there is no physical injury. It will be up to the jury to determine how much those rights are worth, but in this day and age, this is not the time to put yourself in that situation. Make sure you have valid reasonable suspicion before proceeding past the traffic stop investigation.
    State v. Colman-Pinning (Or. 2020) 302 Ore. App. 383
    Probable Cause; Automobile Exception
    During a narcotics investigation in which an informant told LE that subject was selling a significant amount of heroin regularly to informant, and where informant set up a buy from subject via text, a traffic stop was conducted on subject on his way to sell additional heroin to informant. LE intended to rely on the automobile exception to the search warrant requirement and did not get an anticipatory warrant. In Oregon, this is called a “Brown stop” pursuant to State v. Brown (1986) 301 Ore. 268), an Oregon Supreme Court case. Brown states there is a per se exception to a search warrant requirement provided (1) that the automobile is mobile at the time it is stopped by LE and (2) that probable cause exists for the search of that vehicle. LE indicated that even though a warrant was available via phone, they chose to follow the Brown precedent.
    Subject was removed from the vehicle and vehicle was sniffed by PSD, which alerted on the vehicle. Inside the vehicle was heroin and other controlled substances.
    Subject complained that LE made their own exigency by waiting until their informant made sure subject was in possession of controlled substances and then pounced in violation of subject’s 4th Amendment rights. The court said that subject focused on the wrong exigency. The exigency of the automobile exception is based solely on the fact that the automobile in question was mobile. In addition, even if subject’s analysis was correct, the exigency in this case crystalized only when subject confirmed via text to the informant that he was on his way to deliver. Therefore, the appellate court affirmed the denial of the motion to suppress.
    Iverson v. United States (West. Dist. N.Y. 2020) 2020 U.S. Dist. LEXIS 73714
    Implicit Consent
    In this appeal of criminal convictions, defendant complains that his attorney was ineffective in moving to exclude evidence taken in searches which involved a PSD.
    LE arrived at defendant’s house in response to a call made by defendant himself. The court held that LE had at least an implicit license to enter as well as bring a PSD to assist in the search for the suspicious person reported by defendant, particularly as defendant made no objection to the presence of the PSD. He cannot not now be heard to complain that PSD alerted as he has no legitimate or reasonable expectation of privacy in airborne particles bearing odors.
    Editor’s note: Good case of a PSD being in a place where appropriate to be and then using PSD’s alert.
  • United States v. Orozco-Rivas (10th Cir. 2020) 2020 U.S. App. LEXIS 12703
    Prolonged Detention
    Traffic stop for following too closely. Also, LE thought defendant was overly shocked upon seeing his cruiser. It took almost 2 minutes and 1 mile for driver to pull over; in the meantime, the passenger turned around and looked at LE 3 or 4 times before returning to his seat. In the bed of the pick up was a small white wheel inside a tire that was too wide for the rim of the wheel and that appeared to small for the truck. Defendant struggled to answer simple questions about her destination and her passenger gave inconsistent answers.
    Defendant was given a warning. As she exited the patrol car, LE asked if she had time for more questions. She answered affirmatively. LE told her to shut the door to the patrol car and asked if there was anything illegal in the truck. LE asked for consent, but defendant said passenger owned the truck so consent would have to come from him. LE told defendant to stay in the cruiser while LE approached passenger and asked for consent. Passenger refused. LE asked if he could get a dog to sniff the car and passenger did not answer. Passenger handcuffed and brought to cruiser, where LE requested a PSD team.
    PSD team arrived 51 minutes later and alerted to the truck within 5 minutes. Around 8 pounds of meth were found in the tire in the bed.
    Defendant claimed impermissibly prolonged detention. LE countered that he had reasonable suspicion based on 1) defendant’s overt surprise on seeing LE; 2) passenger’s repeated turning and looking at LE; 3) defendant’s delay in pulling over; 4) the white wheel and ill-fitting tire in the bed of the truck; 5) passengers extreme nervousness; 6) defendant’s failure to identify a specific location; 7) defendant’s inability to recall her uncle’s name; 8) inconsistencies between defendant and passenger’s stories and 9) LE’s experience in drug interdiction. Given the above, the court found LE had reasonable suspicion allowing for the prolonged detention. Addressing the 51 minute lag time for the PSD team to arrive, the court was satisfied that LE was diligent given the distance between the team and the location to be sniffed (45 miles).
    Editor’s note: The record reflected the time and distance needed to get a PSD team on site, in contrast to what happened in Giroux (see above). A good reminder to document everything.
  • Lucero v. City of Clovis Police Dep’t (Dist. N.M. 2020) 2020 U.S. Dist. LEXIS 39906
    Excessive Use of Force
    In a case of claimed excessive force, subject’s mother called LE because she believed her son was suicidal. When LE arrived, mother said subject had no weapons nor any access to them. The opinion also states that handler officer on scene intended to use force against subject immediately. However, LE delayed about 13 minutes before going into the apartment to check on subject. The court concluded that meant LE did not believe subject’s safety was in danger. Prior to entry, handler obtained PSD from cruiser. LE made contact with subject through a glass partition. Subject told them he was fine and he didn’t believe they were there to help him. Court states here that handler continued to prepare PSD for an attack. Subject agreed to come out and speak to LE after he put his shoes on. When he went inside to get his shoes, four LE officers entered, guns drawn and PSD was commanded to attack (court’s verbiage). There appeared to be a warning, but no indication of what period of time elapsed between the warning and the bite. When LE entered the apartment, subject was holding his shoes in one hand and nothing in the other. Command given for PSD to “Fass!” four times and PSD released. Bite duration was 33 seconds. Court states that handler then escalated the situation by yelling at subject to get on the ground, yelling at other officers to get him cuffed and to stop fighting the dog. The court opined that using the phrase, “Bad guy, stop fighting my dog,” was a command to further aggress the PSD. Subject was seriously injured.
    The court denied qualified immunity using the Graham factors. There was no crime at issue; his mother had reported possible suicidal ideation. There was no indication that subject posed any sort of threat to anyone, which was confirmed by the 13 minute delay in approaching the apartment. And finally, subject was not resisting or evading arrest at the time PSD released. He was complying with the agreement he made with LE to get his shoes and talk to them, he was visibly unarmed at the time, yet PSD was released anyway. The court added that the use of force continued while subject was on the ground. The court acknowledged that there were no 10th Circuit cases directly on point discussing the use of a PSD, but quoted case law in effect, “Lawfulness of force … does not depend on the precise instrument used to apply it. Qualified immunity will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel.”
    Editor’s note: This is a case of bad facts make bad law. During that 13 minutes, a Graham v. Connor analysis should have been undertaken, which would have clearly demonstrated that a PSD bite was not warranted here.
  • Sanchez v. Baker (Dist. N.M. 2020) 2020 U.S. Dist. LEXIS 75191
    Excessive Use of Force
    Subject sues for damages due to excessive force when, after he crashed his car speeding away from a traffic stop, fled on foot, and then walked slowly back to LE to surrender, LE released PSD, who bit and held subject for 30 seconds, causing serious injury.
    Subject was speeding and when lit up, rabbited. LE called off pursuit because he “had no reason to believe that the driver had committed a serious crime to justify a high-speed pursuit in a residential neighborhood.” However, subject quickly ran a stop sign and crashed into a concrete wall. Subject fled on foot, even though LE told him to stop. Handler heard about the pursuit over the radio and arrived in the area as back up. Handler spotted subject and told him to come out with his hands up and gave a PSD warning. Handler claimed he could not see subject clearly and feared he had a weapon. Handler also said he believed that subject was reaching towards his waistband where he might have had a weapon. Subject disputes this. Body camera footage was not dispositive (mainly because handler’s camera did not activate). Body camera footage does show subject walking slowly towards LE, moving his hands, for about 4 seconds before the PSD is released and latches onto subject. Bite duration was 35 to 37 seconds while other officers handcuffed subject.
    The court applied the Graham v. Connor factors and determined that all three weighed in subject’s favor (against law enforcement) with the evidence presented at this stage of the case. Therefore, there was a genuine dispute in facts and qualified immunity was not available to handler. Case was allowed to go forward.
  • United States v. Wimbush (Dist. N.J. 2020) 2020 U.S. Dist. LEXIS 65913
    Prolonged Detention; Automobile Exception
    A PSD sniff was performed at a traffic stop on a vehicle which had been involved drug trafficking and drive by shootings and was part of a wiretap investigation. PSD alerted on the vehicle but could not pinpoint the source of the odor (unclear if PSD actually performed final indication). A gun and ammo were found under one of the seats. Because there was an on-going “shots fired” investigation, LE towed the vehicle to a LE controlled location to be processed and photographed. Additional weapons, ammo and drugs were found.
    The court found that the traffic stop on the vehicle was supported by reasonable suspicion that the occupants were engaged in narcotics possession at the time of the stop. LE had observed one of the occupants get into the vehicle with a yellow bag that appeared to contain bricks of something, consistent with bricks of controlled substances, according to an officer that the court believed had the requisite experience and training to make that determination. He also was scanning the area hesitantly before entering the car with heavily tinted windows. In addition, LE had information that the vehicle may have been involved in a recent shooting. In addition, the doctrine of collective knowledge applied so that the court could consider what LE knew even if another LE officer performed the stop. Also, the heavily tinted windows allowed a traffic stop to investigate whether the tint was in violation of New Jersey law. A pat search of one of the occupants resulted in LE feeling a brick of heroin under the plain feel doctrine, extending the time period in which to investigate all the offenses mentioned above. The court also indicated that a 40 minute wait for a PSD was reasonable to continue the investigation. The court determined that the 3rd Circuit had routinely held that detentions of up to 80 minutes to be reasonable when drug activity was suspected. Finally, the automobile exception allowed for the search of the vehicle.
    Editor’s note: The court was very concerned with discrepancies and purposeful “falsehoods” it found in the records and testimony of law enforcement. Nevertheless, the court found enough to rule for LE. This should not stand as an example of the way to conduct an investigation, however. If there is a record that a court found an LEO to be less than purposefully false, that can be a basis for a Brady designation for that officer and that will follow that officer through the rest of his/her career. You want to never be that officer.
  • United States v. Kimmell (Dist. Nev. 2020) 2020 U.S. Dist. LEXIS 70493
    Curtilage of Store Unit
    Defendant complained that his trial counsel did not effectively represent him by not fully litigating a search of defendant’s storage unit, among other things.
    LE found out that defendant maintained a storage unit. LE brought a PSD who sniffed and alerted at the seam of the said storage unit. The court held that a storage unit does not enjoy the same protections as a residence and that the momentary touch of the PSD’s nose to the door of the storage unit does not implicate the 4th Amendment.
  • Recca v. Pignotti (Dist. Neb. 2020) 2020 U.S. Dist. LEXIS 73935
    Excessive Use of Force
    Subject filed an excessive force suit under section 1983. Subject claimed he was walking in a wooded area when he saw LE; he laid down on the ground to get out of the way of any police action; but a PSD bit him anyway severely injuring him. He also complained that other officers kicked and punched him while he was being bit by the PSD.
    LE brought a summary judgment motion. The facts the court considered were that a civilian reported two males attempted to steal his car and attempted to ram him. They drove off in a car that they described including the license number. One of the males matched the described generally of subject. LE located that car, determined it was stolen and saw inside a box of ammo and a spent casing. Other individuals on scene were watching LE and then disappearing when LE looked at them. LE saw 3 individuals, one of whom matched subject’s description, and told them to stop. They ran. PSD team and other officers pursued them. Handler considered whether it was appropriate to release PSD. Suspects were unknown; they fled from a stolen vehicle; they were wanted for auto theft and assault, both felonies; there was ammo and spent ammo in the car, so unknown whether suspects were armed; at least one of the suspects was a large male; they fled to area with a creek with running water, trees, trash, rocks and other debris; the area was dark; all of which added up to dangerous and poorly visualized terrain where suspects could find improvised weapons, set up an ambush, and could see LE coming. Handler made three announcements (in English and Spanish). After getting no response, handler released PSD. PSD found subject lying on the west bank of the creek with his shirt covering his head. PSD bit him in the armpit. Subject was told to stop fighting the dog and to put his hands up. Instead subject knocked PSD into creek. PSD reengaged biting subject on the leg. Subject punched PSD and grabbed its muzzle, holding it under water to drown it. Handler punched subject several times until subject stopped fighting and put up his hands. PSD was immediately released. During all of this, LE continued to tell subject to stop fighting the dog and put his hands up. Total bite duration was 15 to 30 seconds. Subject received stitches to his ear, arm and leg.
    The court held that LE actions were objectively reasonable under the circumstances by applying the Graham factors. All three weighed in favor of LE.
    Editor’s note: This was a well-documented case with a great witness who was very thoughtful and thorough in his approach to releasing his PSD which was very effective in court.
  • United States v. May-Shaw (6th Cir. 2020) 2020 U.S. App. LEXIS 11059
    Defendant complained that a PSD sniff of his vehicle parked in a carport was unconstitutional.
    Defendant was being investigated for drug trafficking by surveillance. LE put up a pole camera and also conducted in person surveillance (which included recording cameras) from a parking lot of an adjacent apartment complex via permission from the owner. Defendant lived in an apartment and parked his car in a carport provided in the apartment complex’s parking lot but there was no evidence that defendant was assigned that space or had to right to exclude others from it.
    It became clear from the surveillance that defendant used his car in his drug trafficking. A PSD was brought in to sniff defendant’s car while it was in the carport. The PSD alerted. A judge authorized a search warrant for the apartment and all of defendant’s vehicles based on the entire investigation. Narcotics and money were found.
    Defendant pleaded guilty and appealed the denial of his motion to suppress.
    The appellate court easily dismissed defendant’s objections to the pole camera and the in-person surveillance. The information was gained from vantage points in which the defendant had no 4th Amendment rights and therefore were not unconstitutional.
    Defendant also complained that the PSD sniff of his car in the carport was unconstitutional. The court pointed out that, because there was a search warrant, defendant had the burden to prove 1) he exhibited an actual (subjective) expectation of privacy in the thing or place searched; and 2) the expectation is one that society is prepared to recognized as reasonable. The court defined the defendant’s argument as one issue: whether the carport where the vehicle was parked constitutes the curtilage of the apartment. The protection provided the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened. See California v. Ciraolo (1986) 476 U.S. 207 at 212-213.
    The court outlined 4 factors that serve as guideposts as to whether an area is curtilage: 1) the proximity of the area to the home; 2) whether the area is within an enclosure around the home; 3) how that area is used; and 4) what the owner has done to protect the area from observation from passersby. (Dunn)
    Shared driveways have been held to not be curtilage. Neither were unenclosed driveways that were adjacent to a home and abutted a sidewalk or alley with no steps taken by the resident to obstruct the view of the public.
    Here, the carport was in an area which was open to all residents and not directly adjacent to defendant’s apartment. In addition, while the carport had a roof and two side walls, it was not in an enclosure around the residence nor was it enclosed within natural boundaries. Also, although defendant claimed to park there exclusively, there was no evidence presented that he had the right to exclude others. Finally, he did little to obstruct the area from the view of passersby. The court held he failed to carry his burden and affirmed the denial of the motion to suppress.
  • Commonwealth v. Jimenez-Martinez (Mass. 2020) 2020 Mass. App. LEXIS 350 (Unpub.)
    Probable Cause; Alert Behavior v. Final Indication
    LE had previously observed an unidentified Hispanic man selling drugs from a different car with the same license plate, registered to the defendant, at least twice in the prior 6 months. LE had an informant perform two controlled buys from defendant within the last 3 months. And just before defendant’s arrest, LE met with one of defendant’s customers who confirmed he just bought drugs from defendant. Finally, a PSD performed a head snap on the car, a preliminary, though not final, indication of the presence of narcotic odor in the car. These facts combined provided probable cause to search the car.
    Editor’s note: Because there was no final indication, and there were other indicators that narcotics were present in the vehicle, the court found probable cause. Preliminary indicators have been held in other cases to be the sole basis for probable cause and other cases indicate that preliminary indicators mean nothing. This is a subject I will be exploring in more depth in an upcoming Update.
  • Davis v. State (MD. 2020) 2020 Md. App. LEXIS 423 (Unpub.)
    Prolonged Detention; Reliability Foundation
    Defendant was stopped for a traffic violation and while LE was initiating driver’s license and registration checks, LE called for assistance from a PSD team. While the license was clear, there was confusion about the registration of the vehicle (rental contract had different make and model than the actual car). LE re-approached driver to question about this and while driver was scanning his emails to answer the question, the PSD team showed up and performed a free air sniff around the vehicle. PSD alerted before the registration issue was resolved. At the suppression hearing, LE conceded that the issue was ultimately his misunderstanding of the rental contract; however, that conclusion had not been reached prior to the alert from the PSD. The trial court found that LE’s confusion was not unreasonable, not misplaced and not demonstrative of bad faith. Therefore, since the traffic stop activity was diligently being pursued while the PSD alerted, there was no prolonged detention.
    The court also held that the alert provided probable cause to search the vehicle. Defendant challenged the sufficiency of the PSD’s training. The PSD had three “false positives” in the field, but the handler gave the court reasonable explanations for the false positives. The handler also described the behavior of the PSD including that the PSD attempted to sit (which was his trained final indication). The handler testified that the PSD’s behavioral changes including the attempt to sit was enough to conclude that there was a positive alert. The trial court found that credible and the appellate court agreed.