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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from April 2021. (A caution here: some cases are unpublished (Unpub.) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. In addition, the arguments in them can be used; the case just can’t be cited as precedent in court.)
This website is a year old already! Thank you for your membership, whether new or continuing. We appreciate your support so we can continue to provide easy to access, up to date information for you. 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 not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. This month, I have included an update of proposed or actual changes in marijuana laws around the nation. California officers should take note of People v. Moore (see below) which may indicate a trend back towards sanity. This opinion is not published so that means it cannot be cited, but is hopefully an indication that the courts are going back to the standards of search and seizure prior to legalization of marijuana. This is not an exhaustive list and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.
MARIJUANA LEGALIZATION UPDATE
In the Florida Senate, three bills to legalize and tax cannabis were introduced last month, days after similar measures were introduced in the state’s House of Representatives. The Florida Supreme Court struck a ballot measure that would legalize recreational marijuana, finding that the proposed ballot summary is misleading because it tells voters that the constitutional amendment would “permit” possession of marijuana without mentioning potential criminal liability under federal law.
Hawaiian lawmakers took steps toward joining the growing number of states that have legalized recreational cannabis.
An Indiana federal judge has denied a bid to block a pair of state laws restricting the sale and distribution of smokable hemp, saying the laws were not preempted by the federal farm bill that legalized the crop. Indiana state representatives passed a bill to cut back restrictions on production of hemp flower.
In Minnesota, a bill is working its way through the legislature to legalize recreational pot. Another bill to legalize recreational cannabis and impose gross receipts and use taxes on sales of cannabis products was approved by a state House of Representatives committee.
In Mississippi, the state Supreme Court is weighing whether to strike down legislation as violative of the constitution.
In Montana, a bill to implement voter-approved recreational marijuana has been approved by both chambers of the state Legislature.
In New Jersey, legislation was enacted to set up an adult-use recreational marijuana market that voters approved last fall and New Jersey Attorney General Grewal announced on Tuesday that he has directed local law enforcement officials to drop all outstanding marijuana cases that were based on the now-legal recreational use of pot.
New Mexico legalized recreational pot on April 12. This legislation also expunges certain pot convictions.
ln New York, the governor signed a law that legalized recreational marijuana.
North Carolina lawmakers are considering legalizing medical and recreational marijuana use.
North Dakota‘s state Senate killed bills that would have legalized and taxed recreational cannabis after the state’s House approved the measures last month.
In Rhode Island, lawmakers and the state’s governor each unveiled their own dueling proposals to legalize recreational cannabis last month.
A South Dakota state judge has ruled that a referendum to legalize recreational marijuana was unconstitutional. Gov. Kristi Noem notched a court victory against a ballot measure to legalize recreational marijuana in the state and said she will also be delaying implementation of a separate measure to legalize medical marijuana. Lawmakers rejected a proposal to speed up implementation of its voter-approved medical cannabis program in favor of the governor’s timetable.
In Virginia, under a bill passed by the state legislature, the state would legalize adult-use recreational cannabis sales and impose a 21% statewide excise tax to help support state programs and communities historically affected by drug enforcement and criminalization.
(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. I do not represent any individual or agency. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)
INDEX FOR REVIEWED CASES FROM APRIL 2021
Davis v. Commonwealth (Kentucky 2021) 2021 Ky. App. Unpub. LEXIS 262 – Plain Smell Doctrine; Traffic Stop; Odor of Marijuana as Probable Cause
United States v. Sheckles (6th Cir. 2021) 2021 U.S. App. LEXIS 12952 – Traffic Stop; Odor of Marijuana as Probable Cause; Reasonable Suspicion
Commonwealth v. Griffin (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 1148 – Traffic Stop; Odor of Marijuana as Probable Cause
United States v. Pacheco (8th Cir. 2021) 2021 U.S. App. LEXIS 12898 – Traffic Stop; Prolonged Detention; Alert as Probable Cause
United States v. Johnson (South Dakota 2021), 2021 U.S. Dist. LEXIS 52210 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine
Hinson v. Martin (5th Cir. 2021) 2021 U.S. App. LEXIS 12775 – Excessive Force
United States v. Pierre (Louisiana 2021) 2021 U.S. Dist. LEXIS 81917 – Traffic Stop; Odor of Marijuana as Probable Cause
State v. Moore (Oregon 2021) 2021 Ore. App. LEXIS 578 – Traffic Stop; Odor of Marijuana as Probable Cause
United States v. Melo (New York 2021) 2021 U.S. Dist. LEXIS 81123 – Traffic Stop; Prolonged Detention
United States v. Brooks (North Carolina 2021) 2021 U.S. Dist. LEXIS 81027 – Traffic Stop; LE Subjective Intent re: Traffic Stop; Odor of Marijuana as Probable Cause
In re D.D. (Maryland 2021) 2021 Md. App. LEXIS 353 – Odor of Marijuana as Probable Cause
People v. Moore (California 2021) 2021 Cal. App. Unpub. LEXIS 2697 – Traffic Stop; Odor of Marijuana as Probable Cause
Shoven v. State (Texas 2021) 2021 Tex. App. LEXIS 3163 – Traffic Stop; Odor of Marijuana as Probable Cause
United States v. Martin (7th Cir.) 422 F.3d 597 – Traffic Stop; Prolonged Detention
United States v. $50,000 (California 2021) 2021 U.S. Dist. LEXIS 80070 – Currency Sniff; Reliability Foundation
Puskas v. Del. Cty. (Ohio 2021) 2021 U.S. Dist. LEXIS 77385 – Excessive Force; Monell Liability of Agency
State v. Majalca (Arizona 2021) 2021 Ariz. App. Unpub. LEXIS 459 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine
United States v. Washington (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 77876 – Traffic Stop; Prolonged Detention; Dissipation of Reasonable Suspicion; Diligent Pursuit of Investigation to Confirm or Dispel Suspicion of Criminal Activity
McGough v. Penzone (Arizona 2021) 2021 U.S. Dist. LEXIS 77878 – Qualifying an Expert Witness
Mitchum v. City of Indianapolis (Indiana 2021) 2021 U.S. Dist. LEXIS 77174 – Qualifying an Expert Witness
United States v. O’Grady (Indiana 2021) 2021 U.S. Dist. LEXIS 75546 – Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause
United States v. Crawford (Nebraska 2021) 2021 U.S. Dist. LEXIS 76557 – Traffic Stop; Collective Knowledge Doctrine; Odor of Marijuana as Probable Cause
State v. Walton (North Carolina 2021) 2021-NCCOA-149 – Traffic Stop; Odor of Marijuana as Probable Cause; Alert as Probable Cause; Prolonged Detention; Foundation Reliability
State v. Barley (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 649 – Traffic Stop; Prolonged Detention; Alert as Probable Cause
Christophe v. Nunn (Washington 2021) 2021 U.S. Dist. LEXIS 74049 – Excessive Force
United States v. Carr (Maine 2021) 2021 U.S. Dist. LEXIS 73809 – Traffic Stop; Prolonged Detention
United States v. Cole (7th Cir. 2021) 2021 U.S. App. LEXIS 11013 – Traffic Stop; Prolonged Detention
State v. Robinson (Oregon 2021) 2021 Ore. App. LEXIS 496 – Traffic Stop; Odor of Marijuana as Probable Cause
United States v. Sanchez (9th Cir. 2021) 2021 U.S. App. LEXIS 10761 – Traffic Stop; Prolonged Detention; Reasonable Suspicion
State v. Turpyn (Ohio 2021) 2021-Ohio-1251 – Traffic Stop; Prolonged Detention
Cary v. City of Fond Du Lac (Wisconsin 2021) 2021 U.S. Dist. LEXIS 70098 – Traffic Stop; Fourth Amendment Violation of Civil Rights; Prolonged Detention
United States v. Mahan (Idaho 2021) 2021 U.S. Dist. LEXIS 69690 – Traffic Stop; K9 Entering Vehicle During Sniff; Collective Knowledge Doctrine
Warfield v. State (Maryland 2021) 2021 Md. App. LEXIS 305 – Traffic Stop; Prolonged Detention
State v. Mock (Oregon 2021) 2021 Ore. App. LEXIS 463 – Traffic Stop; Prolonged Detention
United States v. Hill (Ohio 2021) 2021 U.S. Dist. LEXIS 67281 – Traffic Stop; Prolonged Detention
People v. Hernandez (California 2021) 2021 Cal. App. Unpub. LEXIS 2251 – Traffic Stop; Prolonged Detention
State v. Ashbey (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 103 – Traffic Stop; Prolonged Detention
Orellana v. United States (Maryland 2021) 2021 U.S. Dist. LEXIS – Excessive Force; Accidental Bite; Qualified Immunity
State v. Alvaranga (Ohio) 2021-Ohio-1130 – Traffic Stop; Odor of Marijuana as Probable Cause
United States v. $252,140.00 (Coleman) (North Carolina 2021) 2021 U.S. Dist. LEXIS 64675 – Currency Sniff; Sniff as Probable Cause
T.L. Harvey v. Butcher (Utah 2021) 2021 U.S. Dist. LEXIS 63012 – Traffic Stop; Coordinated Stop; Qualified Immunity
REVIEWED CASES FOR APRIL 2021
Davis v. Commonwealth (Kentucky 2021) 2021 Ky. App. Unpub. LEXIS 262
Plain Smell Doctrine; Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for equipment violation. As LE approached the passenger side of the car, he noticed an odor of marijuana emanating from inside. Driver (Davis) admitted to having smoked marijuana in the vehicle. LE searched Davis’s person as well as the vehicle and discovered a pharmacopeia of drugs and paraphernalia.
Driver filed a motion to suppress, claiming this was a pretextual stop, thereby making all evidence seized fruit of the poisonous tree.
The court applied the plain smell doctrine, finding that because LE smelled marijuana, LE had probable cause to search the vehicle and driver.
Note: Kentucky has not legalized marijuana for recreational use (and only has limited medical use).
United States v. Sheckles (6th Cir. 2021) 2021 U.S. App. LEXIS 12952
Traffic Stop; Odor of Marijuana as Probable Cause; Reasonable Suspicion
Sheckles appealed the denial of his motion to suppress. A LE drug investigation led to Sheckles. He was a suspected distributor for a Mexican drug dealer. Using a ping warrant, they established that Sheckles was connected to an apartment which smelled like marijuana, according to a janitor and a LE officer who walked by. While in the process of obtaining a search warrant based on the information LE had, Sheckles left the apartment and LE performed a traffic stop. LE smelled marijuana upon approach and then waited for a K9 to arrive. The K9 alerted and a gun was found (Sheckles was a prohibited person due to prior felony drug conviction). About an hour later, the search warrants were approved and the apartment searched. This review will only address the traffic stop.
The government conceded that at the time Sheckles was stopped, he was seized as defined by the Fourth Amendment and asserted that the probable cause for the detention was the on-going investigation of Sheckles’ involvement in the drug conspiracy. The court held that at the very least, the drug investigation had given LE reasonable suspicion to conduct the stop (the correct burden of proof for a traffic stop) which was evidenced by the granting of search warrants under the probable cause standard (if you have probable cause, you have reasonable suspicion). In addition, the court followed the law that the subjective intent of law enforcement was irrelevant since there was reasonable suspicion for the stop (and probable cause as well).
The court then addressed the scope of the search. Since LE immediately smelled marijuana upon their approach to the vehicle, probable cause existed to search. Waiting approximately 48 minutes for a K9 team to confirm the smell was not violative of the Fourth Amendment. Then, upon discovering the firearm, LE had probable cause to arrest Sheckles.
Note: This is a federal 6th Circuit Court case and therefore, marijuana is still illegal in all forms.
Commonwealth v. Griffin (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 1148
Traffic Stop; Odor of Marijuana as Probable Cause
Griffin appealed the trial court’s denial of his suppression motion. LE stopped Griffin for driving a car with darkly tinted windows. LE could not see into the car until Griffen lowered his window. As Griffen was providing the requested documents, LE could smell the odor of burnt marijuana. LE had experience in the smell of marijuana. LE did not see any narcotics or paraphernalia in plain view. Griffin was very nervous, shaking and and breathing heavily. However, there were no signs of ingestion. LE had Griffin exit. Griffin claimed nothing was in the car but his passenger had a permit to carry. Griffin was patted down and placed in the back of the police cruiser. A search of the vehicle revealed a loaded firearm under the driver’s seat. When Griffin was removed from the cruiser, he ran from officers. He was soon captured.
The motion to suppress and the trial in this case preceded Commonwealth v. Barr and Commonwealth v. Grooms where the appellate court held that the smell of marijuana is only a factor in determining probable cause and is not, on its own, probable cause. Therefore, since the only reason LE searched Griffin’s car was the smell of marijuana, the motion to suppress was granted and the case remanded back to the trial court.
Note: The court stated that the trial court should determine if there were additional factors that would support probable cause to search the vehicle, including whether Griffin was considered armed and dangerous, which would allow LE justification to do a protective sweep for weapons. Pennsylvania has legalized medicinal marijuana and its determination that the smell of marijuana does not alone provide probable cause is based on the theory that marijuana use could be legal and therefore cannot provide probable cause. This is similar to one of the now competing theories in California and Florida. Meyer’s K9 Law will continue to monitor these issues and report as necessary.
United States v. Pacheco (8th Cir. 2021) 2021 U.S. App. LEXIS 12898
Traffic Stop; Prolonged Detention; Alert as Probable Cause
Pacheco was stopped for speeding. The car was a rental from California (he was stopped in Iowa) and looked as if Pacheco was traveling without many breaks. Even though he had been told he was only receiving a warning, he was very nervous and had a weird story re: his travel. LE had Pacheco wait in the cruiser as LE performed a K9 sniff of the car. K9 alerted and Pacheco gave consent to search the back seat of the vehicle. LE saw a spare tire in the back seat which LE believed to be unusual. When LE asked Pacheco, he claimed that the rental agency had changed the tire and put it in the back seat. LE thought that odd as rental cars are generally well taken care of and the tire would have been returned to its original position. LE was also aware that drugs were often concealed in a spare tire. LE also noted that there was minimal luggage, inconsistent with Pacheco’s story. LE then searched the trunk and found drugs in the spare tire compartment.
The appellate court affirmed the denial of the motion to suppress because LE had a reasonable suspicion of criminal activity that justified extending the traffic stop to conduct a canine drug sniff considering that the incongruity between Pacheco’s short rental period and his described travel plans to drive from one state to another and stay with friends for four to five days suggested that either he was lying about his trip or that he would be flying back, which in LE’s experience was unusually expensive. Moreover, Pacheco appeared very nervous, even though LE had informed him he would only be receiving a warning. The court further held that LE had probable cause to search the trunk of Pacheco’s vehicle considering the spare tire in the back seat was very suspicious and when asked about its presence, he gave an implausible explanation. Since under the totality of the circumstances LE had probable cause to search for evidence of drug activity, there was no prolonged detention as the K9 sniff was supported by additional reasonable suspicion, expanding the traffic investigation into a drug investigation.
Note: The court did not actually cite the K9 alert as part of the probable cause for the search, but it appears that it was presumed in the finding of the court. Note also that Pacheco limited the extent of the search; however, LE was able to demonstrate facts that provided probable cause for the other areas of the vehicle.
United States v. Johnson (South Dakota 2021), 2021 U.S. Dist. LEXIS 52210
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine
LE was conducting an ongoing multi-state drug trafficking investigation. Inmates were using prison phones to coordinate activities outside the prison where they were held. LE monitored these calls and discovered that a load of methamphetamine as imported into the state. LE also had reason to believe that some of the meth from this shipment was in the possession of a person outside the prison. This person’s identity and address were discovered during the investigation and he was placed under surveillance. When a vehicle left the residence, LE followed and performed a traffic stop and found meth. Meanwhile, Johnson’s (known to LE as an active drug scofflaw) Pontiac was seen at the residence. When it left the residence, a traffic stop was conducted for tinted windows. Johnson’s brother was the driver. When asked for his license, brother volunteered that it was suspended. While LE had brother come back to the cruiser, LE radio’d twice for a working tint meter (his battery had died). LE also found out that brother’s license was eligible for reinstatement and told brother he was going to be cited for driving without a license. However, LE was waiting for a tint meter prior to writing a warning for the windows. While waiting, LE told brother that he was also concerned about drug trafficking and obtained brother’s consent to search the passenger compartment of the vehicle, but not the trunk. After getting the reading, LE then called for a K9 team to respond (LE thought one was on the way, but apparently that was not the case). After discussion with the responding LE with the tint meter, LE finalized the citation. At that point, brother asked if he was going to be allowed to drive the car. LE told him he needed to get a licensed driver to the scene. Several minutes went by in waiting and in discussion with the K9 handler. The K9 was then deployed and alerted. The two citations were given to brother. The entire car was then searched based on the alert. In the trunk was a suspected meth cook (which turned out to be a really weird smoking device) along with meth and butane. Brother’s grandfather showed up to pick up brother’s dog (which was in the car) after brother was handcuffed.
A motion to suppress was filed claiming prolonged detention and unlawful search. The court found initially that there was not enough evidence to reasonably suspect that the vehicle contained contraband or that its occupant was involved in drug crimes. The court went on to hold that the stop was justified to investigate improperly tinted windows, but the stop was illegally prolonged as the mission of the traffic stop was delayed impermissibly by waiting for the K9 team. The court held that had LE exercised diligence, he should have completed all tasks tied to investigating the window tint violation before the K9 sniff of the Pontiac. However, the court also held that if complications arise in carrying out the mission of the traffic stop, LE may reasonably detain a driver for a longer period to address those complications. Here, brother knew he was suspended but did not ask immediately whether he would be able to drive or if he should get someone to come to the scene to pick up his dog. Ultimately, brother’s grandfather arrived after the K9 sniff and search. The court held that because brother was going to have to wait for grandfather, anything that took place prior to that was not a prolonged detention.
Note: Interesting evolution of facts. Nothing really played out as planned, but there was good footage from body cams and good reporting, so the court could make a determination in LE’s favor.
Hinson v. Martin (5th Cir. 2021) 2021 U.S. App. LEXIS 12775
LE knew that Hinson was wanted on a felony arrest warrant for armed robbery involving a firearm. He was presumed armed and dangerous, according to the warrant; a Crime Stoppers tip also indicated that he was likely armed. The tip described his vehicle and indicated that he was likely traveling with his pregnant girlfriend, Krystal Grigg. LE Martin spotted the vehicle, identified the driver as Hinson, and pursued. Hinson initially accelerated his vehicle to flee, but then pulled over and fled on foot into a wooded area. Martin deployed K9 Rex, and both pursued Hinson into the woods. After approximately 200 yards, Rex caught Hinson by the arm and took him to the ground.
The parties then dispute what happened next. LE said that although Rex had Hinson’s right arm, LE could not see Hinson’s left arm. Martin then held cover on Hinson until back up arrived. Once other LE was on scene, Martin released Rex from Hinson. Hinson claimed that Rex initially bit him on the wrist (not his arm) at which point he voluntarily went to the ground and submitted to arrest. Hinson claimed that despite this, Martin cursed at him, hit Rex and commanded Rex to bit Hinson several more times on the upper arm. After being handcuffed, Martin yanked on Rex’s choke chain causing Rex to bite Hinson again on his forearm.
Therefore, the court held, Martin’s appeal from the trial court’s ruling denying Martin’s motion to dismiss largely turns on a factual dispute—whether Rex bit Hinson more than once, especially whether Martin caused Rex to bite Hinson after Hinson had been subdued and handcuffed and no longer posed a threat.
The court ruled that the 8th Amendment (cruel and unusual punishment is prohibited) did not apply in this case and dismissed that allegation, and finding that Martin was entitled to qualified immunity on this issue.
The court then engaged in a Graham v. Connor analysis. The first factor favored LE as an armed robbery is a violent and serious felony. The second factor, at least through the initial bite and takedown, also favored LE. Although Hinson argued that he was, in fact, unarmed and that his passenger (girlfriend and baby mama) stated that Hinson was unarmed as Hinson was running away, Martin had a reasonable basis for his belief that Hinson should nonetheless be treated as armed and dangerous. Hinson was suspected of a crime involving a firearm, he was presumed armed and dangerous according to the warrant, the Crime Stoppers tip Martin had received indicated that Hinson was armed, and Martin was under no obligation to blindly accept passenger’s bare assertion that her boyfriend (and father of her unborn child) was unarmed. In other words, Martin reasonably believed he was chasing an armed and dangerous fugitive suspected of a violent felony through a wooded area, near residences. Martin had adequate cause to believe Hinson posed a substantial threat to himself, his fellow officers, and bystanders. Finally, as Hinson admitted and girlfriend confirms, Hinson was actively fleeing from police when Martin used Rex to apprehend him. He had attempted to evade capture in his vehicle, and subsequently fled on foot into a wooded area. The third factor favored LE.
Hinson was suspected of a violent felony involving a firearm, was presumed to be armed and dangerous, and was fleeing through a wooded area where LE could not clearly see him. It was objectively reasonable for Martin to deploy Rex to conclude Hinson’s evasion. Hinson therefore failed to establish that Martin violated his Fourth Amendment rights by using Rex to apprehend him, and the district court erred by denying Martin summary judgment based on qualified immunity as to Hinson’s claims insofar as they are based on the initial dog bite that brought him to the ground.
However, the courts are obligated to determine if, at any point during the use of force, the force became excessive. Courts have previously held that an unnecessary or unnecessarily prolonged dog bite would be unconstitutional. The law is also clearly established that, generally speaking, once a suspect has been handcuffed and subdued, and is no longer resisting, LE’s subsequent use of force is excessive. This means that, in the context of this motion, that there is still a disputed issue of fact regarding the alleged additional bite(s) as excessive force. Since this is well established in the law, qualified immunity does not apply to the alleged additional bite(s).
Note: This is motion for summary judgement based on qualified immunity and Martin won the first round; the bite taking Hinson down and the continuation of the bite until Martin had assistance in taking Hinson into custody was legal and therefore Martin was entitled to qualified immunity. However, because Hinson claimed there was force after the handcuffing, the court is compelled to deny the motion to dismiss at this stage. What’s good here is the determination that Martin was acting legally in taking Hinson down initially and also Hinson was required to show his hand in terms of what he was going to claim in court. This will allow Martin’s attorney to be able to address Hinson’s claims more effectively. Sometimes, litigation is a game of inches.
United States v. Pierre (Louisiana 2021) 2021 U.S. Dist. LEXIS 81917
Traffic Stop; Odor of Marijuana as Probable Cause
LE responded to a report of shots being fired at a local bar. Upon arrival, they observed a red Corvette in the parking lot with its engine running. The Corvette left the bar parking lot shortly thereafter. LE followed the Corvette and conducted a traffic stop for an observed traffic infraction.
Upon approaching the vehicle, LE smelled a strong marijuana odor emanating from the car. LE also observed that the Corvette had a compartment located behind the infotainment system which was closed. LE returned to his vehicle and requested backup assistance. When he returned to the Corvette, LE observed that the compartment behind the infotainment system had been opened. Driver ordered out and patted down. LE felt a large bulge in each of Pierre’s front pants pocket, which turned out to be cash. He also had a small amount of heroin. Consent to search the vehicle was refused. LE who arrived after the stop confirmed the smell of marijuana. A vehicle search revealed contraband and other incriminating evidence, which included written pay/owe records.
The court held that the smell of marijuana provided probable cause to search the vehicle. The small amount of heroin possessed by Pierre and the opened compartment furthered probable cause.
Note: Pierre tried to compare the pay/owe sheets to a cell phone as the Riley case requires a separate search warrant because it contains very personal information. But the court made short work of that argument and stated that the pay/owe sheets were a single physical object, not a repository of digital data like a cell phone.
State v. Moore (Oregon 2021) 2021 Ore. App. LEXIS 578
Traffic Stop; Odor of Marijuana as Probable Cause
Moore was stopped for speeding. LE Caldwell noticed a very strong odor of green marijuana coming from the vehicle. When LE questioned Moore, he said he had less than an ounce of marijuana in a container. LE asked for the container and Moore reluctantly handed it over. In LE’s opinion, there was “well more than an ounce.” Moore was prosecuted for illegal possession.
Moore claimed that the traffic stop was unlawfully extended when the trooper began questioning Moore about an odor of unburnt marijuana—questioning that the parties agreed was unrelated to the purpose of the traffic stop—without reasonable suspicion that Moore was committing a crime.
The appellate court said their task on review is to determine whether LE”s belief was objectively reasonable under the totality of the circumstances. The State contends that four facts contributed to LE’s reasonable suspicion: (1) Caldwell “has extensive experience investigating marijuana crimes and can recognize the odor of unburnt marijuana”; (2) Caldwell observed a “very strong” odor of marijuana coming from defendant’s vehicle; (3) Caldwell cannot smell “very small, minute amounts” of marijuana, such as “half a joint in an ashtray”; and (4) defendant became “sad” and “deflated” when Caldwell stated that he could smell marijuana.
The first three facts advanced by the state—i.e., Caldwell’s ability to recognize the odor of unburnt marijuana, his observation of a “very strong” odor of unburnt marijuana coming from defendant’s vehicle, and his inability to detect “very small, minute amounts” of marijuana—are interrelated. We conclude that those facts—without some additional indicia that an unlawful amount of marijuana might have been present—do not support a reasonable suspicion that defendant possessed an unlawful quantity of marijuana.
The court went on to hold that now that marijuana is no longer illegal in all forms, the odor of marijuana no longer has the significance it once had as a basis for reasonable suspicion. As the legal status of cannabis in Oregon has changed, so too does the role that the odor of marijuana plays in the reasonable suspicion calculus. A strong odor can signal the presence of marijuana, but not necessarily the presence in a quantity that is illegal for persons 21 and older to lawfully possess. For that reason, odor adds only that much to the calculus—that some amount of marijuana may be present.
The court then concluded that those facts “did not make it objectively reasonable to believe that the underage passengers” possessed any marijuana, and that, “considering that it is lawful for persons 21 and over to possess some amount of marijuana in Oregon, the odor of usable marijuana in the vehicle was unremarkable.”
The fourth and final fact advanced by the state— i.e., that Moore’s demeanor became “sad” or “deflated” when Caldwell asked about marijuana—deserved no weight in this case, according to the court. That is because Caldwell’s questions about marijuana were not reasonably related to the purpose of the traffic stop and could not be used to justify Caldwell’s extension of the stop to ask such questions.
Note: Oregon is on the forefront of decriminalizing drugs and their courts are on board with this trend. It seems that while the standard for reasonable suspicion was based on whether the item could be contraband has now flipped the burden for LE to disprove the contraband is legally possessed. This means, I believe, we are going to start seeing absurd results; a drug trafficker can possess a small amount of marijuana to camouflage the real cargo of heroin, meth, cocaine, etc. It’s a brave new world out there.
United States v. Melo (New York 2021) 2021 U.S. Dist. LEXIS 81123
Traffic Stop; Prolonged Detention
LE was investigating a drug trafficking organization and had a GPS location warrant on a phone believed to be being used by the participants. The phone was determined to be in a tractor-trailer truck occupied by two men (including Ramirez) who appeared to be involved. The trailer was dropped off and the tractor portion drove to a location near some stores. After about an hour, an Uber SUV drove up with Melo as the passenger. Ramirez got out of the tractor with a red bag and walked toward the SUV (which was out of sight of LE behind the stores). When Ramirez came back to the tractor, he no longer had the bag. The SUV was followed until it violated a lane change infraction. As LE followed the SUV, they could see Melo manipulating something and fidgeting around in his seat. The Uber driver consented to a search of the vehicle. LE opened the back door and saw the red bag next to Melo. A K9 team was called and arrived within 5 minutes. The K9 alerted and fentanyl was discovered.
First, the court established that LE had probable cause to believe that the tractor-trailer was engaged in the transportation of narcotics. The officers’ observation of the truck parked at the parking lot for an hour, apparently waiting for someone, was suspicious. The series of events that followed — the arrival of an SUV into the alleyway behind the building; Ramirez walking into the alleyway with a red bag; and Ramirez returning to the truck without the red bag as the SUV exited the alleyway — gave law enforcement strong reason to believe that a drug transaction had just occurred. The totality of these circumstances, together with the experience and training of the officers, provided probable cause to believe that evidence of a drug crime was contained in the SUV. Therefore, LE had probable cause to stop and search the SUV irrespective of any traffic infraction. Even if the totality of the circumstances established only “reasonable suspicion,” rather than probable cause, such suspicion ripened into probable cause as soon as LE saw the red bag next to Melo in the SUV. Probable cause justified LE in searching the vehicle and the suitcase even before the K-9 alerted the officers to the presence of drugs.
Note: Here, a traffic infraction was not necessary because LE had probable cause at the outset. However, it is always good to try to build in additional theories of admissibility if possible. We are not limited to arguing only one theory and it is best practice to develop and argue all theories.
United States v. Brooks (North Carolina 2021) 2021 U.S. Dist. LEXIS 81027
Traffic Stop; LE Subjective Intent re: Traffic Stop; Odor of Marijuana as Probable Cause;
In this review of a denial of a motion to suppress, Brooks was legally allowed only to challenge the findings of the lower court. Brooks was apparently pulled over for lane violations. In addition, there was a concurrent drug trafficking investigation and the lower as well as the appellate court held that LE had probable cause to stop and search Brooks based on that investigation alone. The court noted that the walled off stop was performed to protect the ongoing drug trafficking investigation. “The very idea that an officer would be required to disclose that he had probable cause to search, then immediately do so, would make walled-off stops and even consent searches while already having probable cause obsolete.”
Brooks also complained that not only was LE not credible when LE testified LE could smell an odor of marijuana coming from the vehicle, he claimed that if there was a smell of marijuana, it could have come from a legal source (here, Brooks seemed to suggest that since hemp and marijuana smell alike, smell could never be probable cause because the smell could be coming from hemp, a legalized substance). The court responded: ” In fact, [Moore’s] own argument cuts against finding in his favor. Assuming, arguendo, hemp and marijuana smell “identical,” then the presence of hemp does not make all police probable cause searches based on the odor unreasonable. The law, and the legal landscape on marijuana as a whole, is ever changing but one thing is still true: marijuana is illegal. To date, even with the social acceptance of marijuana seeming to grow daily, precedent on the plain odor of marijuana giving law enforcement probable cause to search has not been overturned. heretofore, if hemp does have a nearly identical smell to marijuana — and hemp was present — it would suggest to this court that LE was even more reasonable to believe evidence of marijuana was present.” Therefore, LE had probable cause to search based on the odor of marijuana and the presence of a small amount of marijuana in plain sight which then expanded the investigation from a traffic stop to a drug investigation.
Note: While marijuana is still fully illegal in North Carolina, the possession of less than half an ounce is a civil fine. This court recognizes the folly of the oft stated defense argument: that if LE can’t prove (without searching or questioning) that defendant is in possession of more than a legal amount of marijuana, LE is foreclosed from proceeding further. Rather, the more logical argument is that if there is a smell and/or a sighting of marijuana, this would provide probable cause to search and establish accurately whether the defendant is violating the law or not.
In re D.D. (Maryland 2021) 2021 Md. App. LEXIS 353
Odor of Marijuana as Probable Cause
D.D. was contacted pursuant to a call that complained there were males in the basement of an apartment building playing music and smoking controlled substances. When LE arrived, they saw a group of males coming up the stairs and smelled a strong odor of marijuana. LE detained them and tried to get information such as identity and where they lived. They were uncooperative and LE began to fear at least one was armed based on “being outnumbered,” “evasive body language” and “baggy clothing.” Males were frisked and one was found to have a BB gun. He was handcuffed and D.D. was frisked. A loaded handgun was found in his waistband.
The appellate court granted the suppression motion, stating, “[t]he odor of marijuana may, with other circumstances, provide reasonable suspicion that a person is involved in criminal activity. …[h]owever, because an officer cannot tell by the smell of marijuana alone that a person is involved in criminal activity, …the odor of marijuana, by itself, does not provide reasonable suspicion to conduct an investigatory stop. Accordingly, LE did not have reasonable suspicion of criminality to support the stop [and frisk], and it was unreasonable under the Fourth Amendment.”
Note: Maryland has decriminalized less than 10 grams of marijuana, but over 10 grams is just a civil penalty. Medical marijuana has also been legalized. This conclusion is, once again, in my opinion, not based in common sense. However, LE is bound by the courts’ rulings and must follow it.
People v. Moore (California 2021) 64 Cal. App. 5th 291
Traffic Stop; Odor of Marijuana as Probable Cause
LE searched a backpack which Moore left on the passenger side floorboard during a traffic stop. Moore appeals the denial of his motion to suppress, claiming that the odor of marijuana was not enough to provide probable cause for search.
LE’s testimony established: (1) the area was a high-crime area; (2) Moore was leaning into the open passenger’s side door of a parked Jeep (based on LE’s training and experience he believed this could be a hand-to-hand drug transaction); (3) upon seeing LE, Moore walked away from the Jeep; (4) when LE approached the vehicle, driver opened the driver’s side door and there was a strong smell of fresh marijuana; (5) driver appeared to be nervous; (6) when asked about the smell of fresh marijuana, driver claimed the smell came from him because he had recently smoked; (7) driver also indicated that the odor might be from an empty mason jar with what appeared to be marijuana residue inside; and (8) when asked if there were illegal items in the Jeep, driver responded “[n]ot that I know of,” arousing further suspicion. LE testified that his extensive training and experience allowed him to conclude that the residue in the mason jar was not the source of the strong smell of fresh marijuana and neither was the driver (who claimed to have smoked marijuana).
The appellate court concluded that together with LE’s training and experience, the following facts established probable cause: LE’s observations when he arrived at the Jeep, parked in a high-crime area with Moore leaning into the passenger side of the Jeep, suggested to LE that there was a potential drug transaction occurring in the Jeep; Moore leaving the Jeep when LE approached only added to LE’s level of suspicion. While the court agreed with Moore’s assessment that these facts alone would not have supplied LE with probable cause to search the Jeep for contraband, they are relevant circumstances that must be considered along with what came next, specifically the strong odor of fresh marijuana emanating from the Jeep when LE reached the driver’s side and began his encounter with driver, coupled with driver’s implausible explanation for that smell. The court then credited LE’s training and experience allowed LE to determine that driver’s assertions re: the odor of marijuana were not true. In addition, driver was acting nervously and instead of denying that drugs were in the vehicle, driver said “[n]ot that I know of,” an equivocal response.
Moore then claimed that since it is now legal to possess up to 28.5 grams, or about one ounce, of marijuana, LE lacked probable cause to search the Jeep based on driver’s admission of having recently smoked, and driver’s presentation of an empty mason jar that appeared to contain marijuana residue. In making this argument, the court held that Moore did not acknowledge the highly regulated status marijuana maintains in California law (in other words, there are still a lot of circumstances in which marijuana is illegally possessed).
Based on the totality of the circumstances, the court concluded LE possessed probable cause to search the vehicle for an unlawful quantity of marijuana. The encounter occurred in a “high crime, high drug activity park.” Moore was leaning into the open passenger’s side door of the vehicle and walked away as LE approached the vehicle. Driver opened the driver’s door and the strong smell of “fresh marijuana” emanated from the interior of the car which was inconsistent with driver’s explanation that the source of the smell was due to his recently having smoked and/or an empty mason jar with what appeared to be marijuana residue. Based on LE’s extensive experience and training, he reasonably believed that driver was lying about the source of the smell. Driver was nervous, and when asked if there was anything illegal in the Jeep, he responded “[n]ot that I know of,” which raised additional suspicion in LE. Finally, the court held that under well established law, once there was probable cause to search the vehicle, there was probable cause to search containers; i.e., the backpack.
Note: This case cites Lee and concludes that while the smell of marijuana with only the admission of legal use and evidence of legal possession is not enough probable cause to search the vehicle, the totality of the circumstances is the universe in which all factors are to be considered. This means that LE’s training and experience will be important. Be prepared to testify about how you know what the smell of marijuana is (both burnt and green), approximately how many times you have smelled marijuana, and what type of paraphernalia or other evidence would indicate to you that subject is in possession of an illegal amount of marijuana. Even though this is an unpublished case, it demonstrates the direction in which at least this District is going.
Shoven v. State (Texas 2021) 2021 Tex. App. LEXIS 3163
Traffic Stop; Odor of Marijuana as Probable Cause
Driver was stopped because LE ran his plate and found out that the registration was expired and insurance coverage was unconfirmed (both vehicle infractions). As driver was pulling over, LE saw her making furtive gestures. Driver had to open the driver’s door to talk to LE because the window did not work. When she did so, LE immediately smelled a strong odor of green marijuana. Driver also admitted she had warrants. Driver admitted to smoking marijuana which did not explain the “green” odor.
Since there were three people in the car, LE called for backup. During the wait, LE spoke with the front seat passenger, Shoven. Unlike the other occupants, Shoven did not calm down and was overly nervous. Shoven took a knife out of his pocket and put it on the dashboard. He also pointed out a blunt. Shoven was removed and frisked. Shoven started to hink up when LE got to his ankles. LE felt a lump (and was concerned, since in his experience, people keep weapons and contraband in their socks) and handcuffed Shoven. A baggie of meth was found in his sock. LE also saw green marijuana flakes in the vehicle passsenger compartment.
The appellate court held that not only did LE have the basis for a Terry frisk, but had probable cause to search not only the vehicle but its occupants for drugs. Even though the officer stopped the vehicle for a traffic violation, it became immediately apparent that there was marijuana in the vehicle because, according to LE, he immediately smelled a pretty strong odor of green marijuana coming from the open driver’s door as he stood next to the vehicle. In addition, before LE had searched Shoven, the driver had admitted to LE that she had smoked marijuana and Shoven had told LE that there was marijuana in the car and that he knew the marijuana’s location.
Note: Marijuana is not legalized in Texas, but as of 2019, can be used medicinally under very strict limitations.
United States v. Martin (7th Cir.) 422 F.3d 597
Traffic Stop; Prolonged Detention
Traffic stop for speeding in Indiana. Martin was the driver. Passenger was his baby mama. Martin was unable to produce a license even though he looked for several minutes in the vehicle including looking in the trunk. Martin left the trunk open. LE told Martin to never mind and come back to the cruiser for LE to run Martin using verbal information. LE found out that the car was a rental and that Martin was not authorized to drive it. LE was able to confirm that Martin had a license in Illinois. During this time, LE asked questions of Martin and his answers were vague or contradictory. Another officer rolled up who told LE that Martin was a drug dealer in Indiana. This officer talked to passenger and she was also vague and evasive. About 15 minutes into the stop, LE then called for a K9 team which alerted about 20 minutes later. Vehicle searched on the basis of the alert. A gun and drugs were found.
The appellate court held that the failure of Martin to produce his driver’s license initially extended the stop. The additional facts as described above created enough evidence to allow the investigation to be extended by calling and waiting for a K9 team to perform a sniff. The alert then provided probable cause for the search.
Note: This case is out of Indiana which has only legalized hemp with CBD in a very small amount.
United States v. $50,000 (California 2021) 2021 U.S. Dist. LEXIS 80070
Currency Sniff; Reliability Foundation
Subject was traveling on a one way ticket purchased the day prior from Dallas to LA. Both cities are known drug cities. Subject’s companion was stopped for having a large amount of currency. She indicated that the money might be subject’s. When subject arrived in LA, he was detained for questioning. He claimed he was in LA to purchase a designer puppy. Consent was obtained to search his luggage and he had a large amount of currency as well. Subject then claimed the money in the companion’s luggage as well. His story could not be backed up. K9 alerted to the odor of narcotics on the currency in subject’s possession.
Subject filed a motion to dismiss the complaint against the currency for failure to state a claim. The court held that the government had alleged sufficient facts to establish probable cause (the standard at this point in the litigation) that the money was tied to drug trafficking.
The court held that the government had alleged sufficient facts to establish probable cause that currency was tied to drug trafficking in general. First, subject was carrying a large sum of money in cash. The Ninth Circuit had previously found that possession of a large amount of cash, in connection with other facts, is “strong evidence that the money was furnished or intended to be furnished in return for drugs.” Further, subject purchased a one-way ticket to Los Angeles the day before the seizure and planned to return to Dallas the day after. The timing and substance of subject’s alleged travel plans were consistent with a drug courier profile. Although drug courier profiling by itself is insufficient to establish probable cause, courts may use it as a factor in considering the totality of the circumstances. Additionally, a K-9 alerted to an odor of narcotics emanating from the currency. A “sophisticated” dog’s positive alert to a large sum of money is strong evidence in determining probable cause. A dog is sophisticated if it alerts only to currency that has recently been in contact with drugs. Subject claimed that K9 was not sufficiently trained (or “sophisticated”). However, the government established that K9 alerts only to currency that has recently been in contact with narcotics. Therefore, the court found the inference that K-9 does not alert to currency unless it has been in recent contact with drugs. Accordingly, the government has sufficiently alleged that K-9 was a sophisticated dog, and his alert supports a finding of probable cause.
Note: “Sophisticated” in this context means the K9 is reliable and accurate. It’s just a different way to say this. The foundation of the reliability of your K9 is always at issue, so be prepared to defend K9’s training, certification and field performance.
Puskas v. Del. Cty. (Ohio 2021) 2021 U.S. Dist. LEXIS 77385
Excessive Force; Monell Liability
Subject was acting irrationally and wife called LE. When they arrived, subject was uncooperative. K9 released but got distracted by a shirt subject had just discarded. When K9 was redirected to subject, subject picked up a gun case and tried to get a gun out. LE then shot subject, killing him. The family of the deceased floated the issue that the only reason subject was trying to get a gun was to defend himself from the K9.
The appellate court was not impressed. Among other things, subject’s family alleged that the County failed to train or supervise the DCSO K-9 units. The Supreme Court has determined that “there are limited circumstances in which an allegation of a ‘failure to train’ [police officers] can be the basis for liability under § 1983.” Those circumstances arise “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” The Sixth Circuit instructs that a failure to train or supervise requires a showing that (1) the training or supervision was inadequate for the tasks performed; (2) the inadequacy was the result of the municipality’s deliberate indifference; and (3) the inadequacy was closely related to or actually caused the injury.
As to the first, the family fails to adequately allege any facts showing that the K-9 unit supposedly went un-trained or that the County’s K-9 unit training was inadequate for the tasks performed. As to the second element, the family also fails to allege the County’s deliberate indifference. “‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” A plaintiff most often shows deliberate indifference by identifying “[a] pattern of similar constitutional violation by untrained employees.” However, where, “in light of the duties assigned to specific officers[,] . . . the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [municipality] can reasonably be said to have been deliberately indifferent to the need,” a single instance of injury may suffice. Finally, the family does not identify any other instance in which a Delaware County K-9 unit has caused injury. Even accepting that a failure to train police officers provided with canines on their proper use falls within the “narrow range of circumstances” in which the County “could be liable under § 1983 without proof of a pre-existing pattern of violations,” the complaint falls short as it does not allege how or why the training program in place is so deficient as to reflect a deliberate indifference on the part of the County.
Note: A good discussion of Monell type liability in an excessive force case for supervisors and policy makers.
State v. Majalca (Arizona 2021) 2021 Ariz. App. Unpub. LEXIS 459
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine
Majalca was under surveillance by LE based on information from an informant that Majalca was in possession of a large amount of narcotics in a small black hand-held safe. The informant also described Majalca’s vehicle. LE saw Majalca leave a suspected drug house with a small black box which Majalca put in the trunk prior to driving away. LE called for a K9 team and followed Maljaca. LE observed many violations of the vehicle code, consistent with countersurveillance techniques (or a “heat run”). A uniformed LE stopped the vehicle for an independently observed violation. This officer went through the process of writing a citation, but once informed of the other violations observed, went back to Maljaca and checked him for signed of intoxication. At that point, Maljaca lied about where he was coming from. Officer then tried to print the citation, but the printer jammed. Before officer was able to unjam the printer and reset it, the K9 team arrived and performed a sniff after directing Majalca out of the vehicle. The K9 alerted to the vehicle and contraband was found in a subsequent search of the vehicle.
Majalca complained that the HGN test and multiple records checks were unnecessary for the mission of the traffic stop and, thus, the officer unconstitutionally prolonged the time required to complete it. The trial court ruled that “to the extent the stop was delayed for unrelated reasons, it appears that such delays were de minimis,” finding that the records checks and HGN test prolonged the traffic stop “by no more than two . . . minutes.” But as Majalca points out, Rodriguez rejected the “de minimis” standard and the “[a]uthority for the [traffic stop] ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” However, the appellate court pointed out, even if they were to conclude Majalca was detained longer than allowed by the traffic stop’s mission, there was a valid, independent basis for detaining Majalca: the officers’ reasonable suspicion that Majalca was involved in illegal drug activity. Unlike in Rodriquez and Sweeney, the traffic stop in this case was not “justified only by a police-observed traffic violation,” and, as the state argues, officers had independent reasonable suspicion to detain Majalca to wait for the canine unit to arrive based on the totality of the circumstances. Using a totality of the circumstances standard, the appellate court held the officers’ testimony as to the circumstances—separate from the observed traffic violations—supporting reasonable suspicion that Majalca may have been involved in transporting narcotics included (1) information received about Majalca’s involvement in the sale of narcotics; (2) the surveillance conducted February through August 2018 that confirmed the tips received, including the officers’ observation of a “black safe” associated with Majalca, the location of his residence, and the description of his car; (3) Majalca had taken the safe into a suspected narcotics residence located in a “high crime area,” which was relayed by radio to the CRT; (4) his driving patterns consistent with that of a “heat run”; and (5) his evasive responses to questions about his whereabouts and the alleged traffic violations, which were inconsistent with the officer’s own observations.
The appellate court held it was reasonable for the officers, based on their training and experience, to infer from these facts that Majalca was involved in criminal activity. Therefore, the court concluded that the officers had reasonable suspicion to believe Majalca was engaged in drug-related activity, justifying the call for the K9 unit and the dog sniff. And, the uniformed officer had sufficient information to detain Majalca for the time it took for the canine unit to arrive.
Note: Good example of law enforcement teamwork.
United States v. Washington (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 77876
Traffic Stop; Prolonged Detention; Dissipation of Reasonable Suspicion; Diligent Pursuit of Investigation to Confirm or Dispel Suspicion of Criminal Activity
Washington was driving in a vehicle stopped for lane violations and braking hard. When LE approached, Washington already had his license in his hand and had an odd look on his face. Washington provided vague answers, never made eye contact, and appeared to be making stuff up. He claimed he was staying at a hotel that had a reputation of drug deals and prostitution. Washington’s criminal record indicated he was involved in the heroin trade. At that point, LE called for back up. When back up arrived, Washington was taken out and Terry frisked. Consent was refused, so LE called for a K9. The K9 team arrived about 45 minutes into the stop. The K9 alerted and the vehicle was searched, finding a gun and marijuana shake.
The court found that the stop was appropriate for the actions, because LE had a reasonable suspicion that the law had been violated, even if there was a mistake of law on the part of LE.
Washington then complained that the traffic stop was impermissibly prolonged by waiting for the K9 team. The appellate court held that when the first officer called for back up, he was acting outside the tasks necessary for the traffic violation. However, the court went on to hold that, under the totality of the circumstances including the training and experience of LE, LE had reasonable, articulable suspicion of criminal activity to justify the extended traffic stop.
The Government claimed the following facts give rise to a reasonable suspicion of criminal activity: (1) Washington’s “extended braking” after the observation of police; (2) Washington “had his paperwork prepared”; (3) Washington’s nervousness, as “reflected in his facial expression”; (4) the manner in which Washington answered LE’s questions; (5) Washington’s actual responses to LE’s questions; (6) LE knew the location of Washington’s hotel “to be a place where illegal drug sales and prostitution have taken place”; (7) Washington’s multiple convictions related to narcotics; [*27] (8) Washington’s home address was listed on his driver’s licenses as Elizabeth, New Jersey, which LE was familiar with as “a source location for controlled substances”; and (9) Washington was traveling on Interstate 80, which LE considers “a common drug corridor.”
LE testified to Washington’s extended braking after passing his patrol car, having his license in hand when LE approached his vehicle, his nervous behavior exhibited through his facial expression, his vague and evasive responses to basic inquiries, a trip to a location LE knew was connected to drug activity, Washington’s prior narcotics-related felony convictions, his license hometown of Elizabeth, New Jersey, which he knew to be a drug source city, and the fact that he was traveling on Interstate 80, a highway LE knew as a drug corridor. LE stated that based on his experience in law enforcement, each of these observations was an indicator of criminal activity. When these facts observed by LE are considered in totality, taking into account his nine and a half years LE experience, which includes particular training in highway interdiction, the Court finds that LE possessed reasonable, articulable suspicion of criminal activity to justify extending the traffic stop.
Washington then complained that this reasonable suspicion “dissipated” prior to the arrival of the K9 team. The Supreme Court has explained that an investigative detention must be temporary and last no longer than is reasonably necessary to effectuate the purpose of the stop. Moreover, it is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. Once reasonable suspicion has been dispelled, even a very brief extension of detention without consent or reasonable suspicion violates the Fourth Amendment. An investigative stop must therefore cease once reasonable suspicion dissipates. Here, Washington claimed dissipation occurred when the two officers were talking to each other, waiting for the K9 team and also because Washington was able to be more articulate in explaining his travel. The court held that previous dissipation cases involved a situation where facts could be confirmed in a reliable way. That did not happen here; LE did not learn of any objective facts during the casual conversation with Washington in his patrol car that provided confirmation that the details given by Washington regarding his travel and employment during their initial conversation were accurate. Washington provided additional subjective information while in the patrol car, but no facts were objectively verified. Therefore, there was no dissipation.
Washington then complained that the 30 minutes spent waiting for the K9 team meant that LE was not pursuing their investigation diligently. The government put on evidence that the K9 team was off-duty when they received LE’s call, they had to travel from his residence to the scene and “we get there as fast as we can.” He also testified more generally about geographic and personnel factors in response time: the K9 Unit covers multiple counties and numerous jurisdictions within those counties; it can take an hour or more to get to certain parts of his coverage area; and a K9 Unit from another area would take longer to get to the scene. The court held that this was a diligent effort on behalf of LE.
Washington then challenged the reliability foundation and/or the alert of the K9. The court held there was a sufficient reliability foundation based on the fact that the K9 was certified at the time and had certified every year during his career. The certification provided the court with the presumption that the K9 was reliable. Washington then presented an expert to challenge the alert behavior and/or the handler’s interpretation of it. The court was not impressed with the “expert” and found that the K9 had alerted properly.
Note: 1) This court used the word search when describing the K9’s sniff. Language discipline is key for handlers; a “sniff” does not implicate the 4th Amendment, where a “search” does implicate the 4th Amendment. 2) This was a full court press on the government’s case, challenging every issue presented. The prosecutor and LE worked well together to counter all these points.
McGough v. Penzone (Arizona 2021) 2021 U.S. Dist. LEXIS 77878
Qualifying an Expert Witness
In this excessive use of force case, the government filed a motion to exclude McGough’s expert. The appellate court did not repeat the facts, so this opinion only addresses the law and the facts pertaining to McGough’s expert. First, the government wanted to exclude the expert because he did not have sufficient experience, training, or education to render opinions on the use of force involving a K9. The claimed expert was not a certified canine handler or officer, has published no materials on canine deployment, and has no experience as a canine officer. McGough asserted that his proferred expert had more than 50 years experience in law enforcement. The expert’s report reflects that as a sheriff, he developed policies “for the application of police K-9’s for tracking, drug interdiction, as well as for force, following the ‘bite and hold’ procedures.” He also represents that as a police officer, he worked as a K-9 assisting officer and participated in K-9 training and suspect apprehension. He has also served as a regional, statewide, and nation trainer on “‘Use of Force’ seminars for which policy and procedure for K-9 deployment” were his topics, and has taught in the area use of force involving K9s, including jail and prison procedures involving use of K-9s. Finally, he stated that he has been qualified as an expert in several federal courts to testify regarding K9 “bite and hold” and “surround and bark” procedures and tools. The Court found that the expert was qualified to testify as an expert on use-of-force involving a K9. The government’s objection as to his lack of particularized expertise “goes to the weight of the testimony, not its admissibility,” and was not a basis for his exclusion.
However, the court did exclude the testimony on other theories: 1) His opinion would not assist the jury because the expert’s opinions are not helpful in this regard: they simply articulate his subjective version of the events at issue and improperly make credibility determinations about witnesses. Expert testimony does not help where the jury has no need for an opinion because the jury can easily reach reliable conclusions based on common sense, common experience, the jury’s own perceptions, or simple logic. In addition, the jury has the sole duty to determine the facts, especially in a case where the two sides oppose one another. 2) The expert’s report contains impermissible legal conclusions, which is the sole responsibility of the court. 3) The court found that the expert’s testimony was lacking in reliability because he failed to articulate the policies or industry standards that form the basis for his opinions. The expert’s report contains no discussion of policies or procedures or what a hypothetical reasonable officer would have done in the handlers position. The unreliability of these statements justifies exclusion of this testimony.
Note: A rather long case, but it clearly explains why this charlatan could not be qualified as an expert. As all handlers can be qualified as an expert (and should be), this case is a good lesson on what not to do when a prosecutor is attempting to qualify you as an expert.
Mitchum v. City of Indianapolis (Indiana 2021) 2021 U.S. Dist. LEXIS 77174
Qualifying an Expert Witness
This case arose when LE was searching for a subject in a neighborhood. Mitchum was sitting in his back porch when a K9 came up on the porch and bit him. Mitchum hired two experts for his civil case and the government objected to them.
The legal standard to introducing an expert opinion is if the witness has the requisite “knowledge, skill, experience, training, or education.” Anyone who has relevant expertise and can offer opinion testimony that is helpful to a judge or jury may qualify as an expert witness.
The proposed expert was Kyle Heyen. Mr. Heyen was a police officer in Wyoming from 1979 through 1987. He was a trainer of law enforcement dogs and their handlers for over twenty-five years, during which time he trained over 500 service dog teams in areas such as tracking and drug detection, before he retired in 2004. Now, he is the owner of Detector Dogs International, Inc., through which he is a private consultant providing expert witness testimony on various issues related to law enforcement dogs. Mr. Heyen has experience evaluating service dog teams based on internationally recognized standards. The Court acknowledged that Mr. Heyen has not attended continuing education and has been retired from law enforcement for many years; those points, however, go to the weight given to Mr. Heyen’s testimony, rather than to whether he is qualified to testify. The Court was satisfied that Mr. Heyen is qualified to testify to the relevant issues. The second expert was Tim Hartsock. Mr. Hartsock had over 20 years of experience in canine training, both civilian and law enforcement dogs. He has over twelve years of experience in training law enforcement canines in tracking and trailing. Mr. Hartsock spent seven years with the Indiana Department of Homeland Security running classes and seminars on canine training.
The Court acknowledged the government’s concerns that Mr. Hartsock has never been a law enforcement officer, does not handle apprehension with law enforcement dogs, and has not tracked or trailed a live suspect for a police department. Mr. Hartsock also testified, however, that he has been part of thousands of canine tracks and has trained approximately one hundred law enforcement dogs. The Court was satisfied that Mr. Hartsock is qualified to testify to the relevant issues in this case.
The court then addressed whether the experts’ opinions were reliable. As to Mr. Heyen, the court found him reliable to testify. The fact that he had no recent law enforcement experience, that he was not a member of any K9 associations, and his lack of continuing training went to his credibility which was a determination for the jury. As to Mr. Hartsock, the court found that Mr. Hartsock’s extensive experience in training law enforcement and civilian dogs and his review of the relevant documentation in the case provided a sound basis for his opinion on the training and behavior of the K9 at issue. The court then found both experts to be relevant to the issues in the case.
Note: Interesting that we have two expert cases coming out this month. Keep in mind that qualifying as an expert is a different standard than being accepted by the jury as an expert. Even though the court ruled these experts could testify, it’s clear that they have some weak points which the government can exploit on cross examination. Often, destroying the opposition’s expert is more powerful than offering your own expert.
United States v. O’Grady (Indiana 2021) 2021 U.S. Dist. LEXIS 75546
Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause
O’Grady’s vehicle was stopped by LE for a lane violation and speeding. As this was Superbowl Sunday. LE was concerned about DUI. When talking to O’Grady, LE could smell marijuana and asked O’Grady about it. O’Grady blamed it on a previous passenger. LE decided to search the vehicle based on the odor and told O’Grady who then confessed there was a little bit in the car. O’Grady was talking on his cell phone to his mother, rejected LE’s request to hang up and LE engaged in the conversation with Mom. LE then noticed a bulge in O’Grady’s right front pocket and was concerned it was a gun. LE then touched the object and confirmed it was a gun. When LE asked, “What’s this?”, O’Grady told his mother, “I’m going to jail.”
O’Grady complained that LE was not justified in prolonging the stop to investigate for drug offenses. The court addressed the vehicle search. The odor of marijuana gave LE probable cause to search the vehicle and LE was legally allowed to extract O’Grady prior to that search. O’Grady then claimed that the stop was impermissibly prolonged and that the frisk was illegal. The court held that prior to O’Grady’s eventual arrest, LE did not unreasonably delay the traffic stop. The total interaction between O’Grady and LE, prior to when O’Grady was handcuffed, took roughly six minutes. During that time, the only questions asked by LE pertained to the traffic stop and the smell of marijuana. If anything prolonged the encounter, it was O’Grady continuing to speak with his mother on the phone. In any event, the brief extension of time spent asking about the marijuana was not unreasonable. Finally, O’Grady’s contention that the “pat-down” was outside the scope of a normal traffic stop missed the point, according to the court. The pat-down did not happen until LE spotted a bulge in O’Grady’s pocket. This was sufficient to allow for a Terry frisk or pat-down.
Note: The court made much about how calm and non-confrontational LE was until the point of suspecting O’Grady was in possession of a gun. This allowed the court to find that the contact was only a detention up until that point. It’s important to be able to ascertain when the contact turned from a detention to an arrest because that distinction expands the scope of the investigation. Any show of authority can transform a detention into a seizure.
United States v. Crawford (Nebraska 2021) 2021 U.S. Dist. LEXIS 76557
Traffic Stop; Collective Knowledge Doctrine; Odor of Marijuana as Probable Cause
LE was engaged in an investigation which included a CI who was performing controlled buys. CI was able to do 2 controlled buys with Bradley who was in a black Tahoe. The passenger on the first buy was the driver on the second buy, later identified as Crawford. LE was surveilling the area of the buys just prior to the second buy and saw an unidentified male approach the Tahoe and perform what looked like a hand-to-hand buy. LE then observed the CI buy from Bradley. The Tahoe left the area and was followed by LE. It was observed to commit several short in duration quick stops, consistent with drug dealing. Later, when LE was driving a marked unit, LE observed the Tahoe had a dark window tint and attempted to pull it over. It did not immediately yield and LE could see the occupants moving around a lot. The Tahoe then rolled slowly for a half block before actually stopping. As LE approached, there was more frantic movement, including moving packaging from plain sight to a hidden area. LE then smelled the strong odor of marijuana (could not remember if it was burnt or green). Crawford was the driver. Another passenger was found to have a felony warrant for assault. A window tint meter proved the windows were too dark. Contraband was found in the vehicle during search.
Crawford first complained that the stop was illegal. The court held that the window tint violation was enough to effect the stop, but also held that LE had reasonable cause to believe that the occupants of the Tahoe were involved in drug crimes, given the CI information that Bradley was selling out of the Tahoe and that a CI made two controlled purchases from Bradley in the Tahoe. In addition, LE saw what they reasonable believed to be a hand-to-hand sale from the Tahoe. Crawford then complained that the search was not supported by probable cause, claiming LE could not have smelled marijuana. The court held that not only did the smell of marijuana provide probable cause, the drug investigation information against Bradley provided additional probable cause as well as the behaviors during the stop.
Note: Good reminder that even though a wall stop was utilized, the additional information of the concurrent drug investigation can be used (as long as it won’t detrimentally affect LE investigations).
State v. Walton (North Carolina 2021) 2021-NCCOA-149
Traffic Stop; Odor of Marijuana as Probable Cause; Alert as Probable Cause; Prolonged Detention; Foundation Reliability
Traffic stop for speeding and window tint. Walton was the driver. When LE approached, LE noticed that the windows weren’t tinted but were instead darkened by electric window shades. LE also noticed a slight odor of marijuana that seemed to be covered up with some type of cologne. While LE started the process of checking Walton’s status to driver and whether he had any warrants, LE called for a K9 team to respond. Another officer was also dispatched to act as a cover officer. LE returned to the vehicle to conduct field sobriety testing and noticed that the marijuana/cologne smell had gotten stronger. Walton passed the FST, but denied the smell of marijuana. While LE was writing up the citation, the K9 team arrived and alerted to the vehicle.
The court held that the initial stop was valid and that any extension of the stop was justified by the smell of marijuana. However, since the sniff and alert were accomplished prior to LE finishing the citation, the court held that there was no prolonged detention.
Walton also challenged the reliability of the K9. The State presented evidence that the K9 had been certified a total of five times by two different organizations, with three certificates prior to the search in this case and two certifications between the time of the search and the suppression hearing. Although Walton argues that one of the prior certifications was expired at the time of the search, Walton makes no argument that the substance of the certification was deficient. The certification in this case similarly expired less than one year before the search at issue. Furthermore, the dog in this case did still have one non-expired certification still in effect. There was also a lapse in training for about 3 weeks in over a year following the stop. The court correctly held that the totality of the circumstances test applies to the reliability foundation as well. Accordingly, there was sufficient evidence of the dog’s certification and training for the reliability analysis.
Note: There were some issues with the training records of the K9 team, but Florida v. Harris makes it clear that as long as the K9 can be proved reliable by the totality of the records, the evidence of the alert will come in. It’s a good reminder though to have a consistent policy on training and then to consistently attend those trainings. The goal is to reduce the amount of issues the defense can come up with and to explain the issues they do raise.
State v. Barley (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 649
Traffic Stop; Prolonged Detention; Alert as Probable Cause
Traffic stop for equipment violations. LE ran his credentials, checked for outstanding warrants, and performed a search of Barley’s criminal history in light of his suspicious behavior (“why the fuck are you pulling me over” after being told the reason for the stop; darting in and out of a store without purchasing anything; signs of anxiety when asked if there was anything illegal in the vehicle). The criminal history search revealed Barley had a history of narcotics distribution offenses. LE requested consent to search Barley’s vehicle, which he declined. Barley called 9-1-1 to request a supervisor come to the scene. LE requested K-9 team and they arrived about 12 minutes later. LE escorted Barley to the rear of one of the patrol cars so K9 could conduct an exterior scent sniff of the Nissan. A sniff resulted in an alert. Guns, phones and dope were found. Barley had packaging material on his person.
Barley concedes that LE had an articulable, reasonable suspicion to stop him; namely, for the tinted windshield and front side windows and the tinted-out rear tag cover. But Barley argues the actions undertaken by LE, including checking defendant’s criminal history and requesting a K-9 sniff, unlawfully prolonged the stop longer than necessary to issue the two motor vehicle violations summonses.
The trial court found the K-9 sniff did not prolong the stop because “[t]he twenty-seven minute period” between the time Officer Borelli obtained defendant’s record from dispatch and the arrival of the K-9 officer “was a reasonable delay under the circumstances.” The trial court’s findings in this regard were not an abuse of discretion and comported with precedent.
Note: Oddly, court does not address whether the trial court’s finding that LE had reasonable suspicion based on Barley’s weird behavior. This is possibly because it wasn’t really developed at the trial level and wasn’t needed here. This raises an issue though; it’s always best practice to plead all avenues of admissibility at the trial court level to prevent being able to raise those theories on appeal.
Christophe v. Nunn (Washington 2021) 2021 U.S. Dist. LEXIS 74049
Nunn alleged he was bitten by a police K9 when he was laying on the ground, face down, with his hands cuffed behind his back. During discovery, Nunn made several statements regarding what actually happened. Based on those statements and evidence offered by involved LE, the government (including the handler) filed a motion of summary judgement to get the case dismissed.
The evidence from the handler and other LE at the scene established 1) Nunn was never bitten by a K9; 2) the photos submitted by Nunn only show an old scar and not a recent bite; 3) Nunn claimed in his deposition that he was certain that handler and K9 were on Nunn’s right side before the K9 bit him; 4) Nunn acknowledged at the same deposition that if the K9 team were on Nunn’s right side, there was no way that the K9 could have bitten Nunn on his left side; 5) A photo of the clothes he was wearing showed no sign of a K9 bite; 6) Nunn said he could not testify under oath that he heard the handler say “Let’s show his black ass what we do to runners” (even though he alleged it which indicates he was lying in his complaint).
Under the rules of summary judgement, the court can dismiss the case if there is no genuine dispute as to the facts. Here, the only facts presented by Nunn were self-serving statements that were not supported by any other evidence (including any medical records of treatment). In addition, the evidence provided by LE indicated that the same serving statements were false, especially when considered in the light of Nunn’s deposition testimony.
Since Nunn alleged evidence existed to support his claim but failed to produce that evidence despite sufficient time to do so, he left LE’s evidence unrefuted. On the record before the Court, no reasonable jury could conclude that Nunn was bitten by the K9. Summary judgement was granted and case dismissed.
Note: In a perfect world, this case should never have gotten this far as it was clearly based on lies. However, that’s not how our system works. Once a complaint has been filed against LE, LE must respond and prove that there is no basis for an award of damages. This costs time and money, which is why a low ball nuisance settlement offer is often made at an early stage. Frustrating, but everybody gets their day in court, even liars.
United States v. Carr (Maine 2021) 2021 U.S. Dist. LEXIS 73809
Traffic Stop; Prolonged Detention
LE performed a traffic stop on Carr for a lane violation. After obtaining Carr’s driver’s license and asking about their travel plans, LE asked Carr to come back to the cruiser to receive a warning citation. Both occupants objected to this. LE called for back up and tried again to get Carr to exit. While looking into the vehicle, LE saw a narcotics pipe. Carr finally complied after being allowed to bring her cell phone to record. Carr noticed there was a K9 in the back of the cruiser. About 22 minutes into the contact, additional LE showed up. Original LE then got his K9, removed passenger and had the K9 sniff the vehicle which resulted in an alert. Contraband was found in the vehicle and the vehicle was towed to a safer location where a continued search found more contraband.
The court found there was sufficient evidence to expand the traffic stop into an investigation of drug trafficking based on the plain view detection of the narcotics pipe. Once the K9 alerted, LE had probable cause to search the vehicle.
Note: Nothing new here. Good observation by LE of the pipe. This LE was extremely patient with a belligerent 18 year old, so things did not get out of hand. Well done.
United States v. Cole (7th Cir. 2021) 2021 U.S. App. LEXIS 11013
Traffic Stop; Prolonged Detention
Cole was stopped by LE for following too closely. LE gathered appropriate documents from Cole and then had Cole sit in the cruiser. In the 10 minutes the roadside stop took, 8.5 minutes were taken up by LE asking Cole about his residence, employment, travel history, vehicle history and registration information. LE told Cole that he wanted Cole to move his vehicle to a nearby gas station to complete the warning citation out of fears for their safety. This was not entirely true; suspecting that Cole was a drug courier, LE had already decided that he wanted to search Cole’s car for drugs. While both cars were en route to the gas station, LE called for a K9. Once at the gas station, LE found out that Cole had a 15 year old drug offense. At this point, LE finally asked for insurance information. LE continued to ask questions about his travel, etc., and Cole became more incoherent and contradictory. After 30 minutes had passed from the time Cole was pulled over, LE told Cole he was not free to leave because a K9 was coming to sniff the car. The K9 team arrived about 10 after that and alerted after a sniff. Contraband was found.
The court found that the initial roadside questioning prolonged the stop without the reasonable, articulable suspicion necessary to justify this delay. At the outset of the seizure, LE had at best only a hunch that Cole might be a drug courier. Even the information drawing his attention to Cole’s car was just that the car was suspicious (another officer alerted LE that the car was suspicious). The appellate court also seems to suggest that LE purposefully failed to obtain proof of insurance initially so that the stop could be prolonged (LE already had checked on the insurance before stopping the vehicle and was aware that the information was incomplete). LE admitted that he delayed collecting those necessary materials (for investigating the tailgating and Mr. Cole’s driving) because he “was trying to piece together Mr. Cole’s story, which was—as we all heard, was kind of inconsistent. Changed each time.” LE then compounded the illegal delay by decamping to the gas station to give LE time to call for a K9. The court held that the information gained by LE in the first discussion (he was from a large American city, drove cautiously on a major interstate highway, owned a popular brand of car, sat with good posture, and had empty fast-food wrappers in the passenger compartment) was not enough to provide additional reasonable suspicion to extend the traffic stop into a drug investigation. Because the court found that the violation took place in the first 10 of the stop, the fact that Cole gave incriminating answers later did not factor into the analysis.
The dissent disagreed, saying that the fact that Cole had a license in one state, the car was registered in another state and Cole lived in a third, and gave a confusing and vague reason for why that was in addition to the fact that he was unusually nervous, gave LE sufficient reasonable suspicion to extend the investigation. The dissent complains that the majority opinion creates a new rule that as soon as LE asked about Cole’s itinerary which is not consistent with the USSC in Arizona v. Johnson and Rodriguez.
Note: This appears to be a close case, but the fact that LE came up with a ruse to physically extend the stop (the trip to the gas station) so as to call for a K9 and also to allow time for the K9 team to arrive appears to be what ticked the court off. It does seems a bit much. If you truly believe that there are drugs, but can’t get in the car because the K9 is not available, there is nothing wrong with cutting the person loose and then attempting another stop when the K9 is available (to perform a sniff simultaneously with the traffic investigation). Just make sure you do not impermissibly prolong the first encounter. If you are unsure, still kick him loose. It’s better to lose out on the arrest (and making sure the info you gathered is shared with appropriate agencies and officers) then to potentially violate the law and get a bad ruling.
State v. Robinson (Oregon 2021) 2021 Ore. App. LEXIS 496
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for speeding on interstate corridor. Vehicle was in Oregon but had Washington plates. Robinson did not immediately stop; he continued for approximately one mile, exited the freeway, and made several right-hand turns before coming to a complete stop in a Burger King parking lot. This concerned LE that he might be stashing something or preparing to elude. As LE approached the passenger window, LE smelled a very strong odor of fresh marijuana. LE was able to differentiate for the court a slight smell v. a strong one. Robinson presented a CA ID and said the car was a rental. While Robinson was looking for the contract, LE noticed a baggie of loose marijuana on the front seat and more marijuana on the back floorboards that appeared to be 4 to 5 ounces. Robinson explained that his brother rented the car and he had been in Washington, drove to California and was now driving back to Washington (even though he lived in California). These factors indicated to LE that Robinson was a drug courier. LE then requested back up. Consent was granted then retracted. LE searched the car anyway based on the above factors.
The appellate court held that the trial court did not err when it denied defendant’s motion to suppress because the extension of the traffic stop was lawful, as the officer had reasonable suspicion of the criminal import/export of marijuana; there was a long delay between the time the officer activated his overhead lights and the time that defendant stopped, defendant did not have a driver’s license, defendant claimed the car was a rental but could not produce the agreement, the officer could see several ounces of marijuana in plain view in the car, and the officer smelled the odor of marijuana coming from the car.
Note: While drugs are legal in Oregon, importing or exporting them to another state over certain quantities is illegal. Here, LE had extensive experience in marijuana and was able to credibly explain how the very strong odor indicated to him that there was more than an illegal amount of marijuana in the vehicle. Therefore, in combination with the other factors cited by the court, a very strong odor of marijuana was reasonable suspicion to extend the traffic stop and probable cause to support the search.
United States v. Sanchez (9th Cir. 2021) 2021 U.S. App. LEXIS 10761
Traffic Stop; Prolonged Detention; Reasonable Suspicion
Sanchez was stopped by LE (also K9 handler) in Montana for following too closely. The car was rental which Sanchez obtained in California and it was one day overdue. Sanchez was confused as to where he was coming from and where he was going. He also said he was driving to North Dakota and flying back to California. This made no sense to LE, unless Sanchez was a drug courier. At that point, two other LE arrived. A warning citation was prepared and given to Sanchez. At that point, LE asked for consent to search and it was granted. There was a tire in the back seat which Sanchez claimed belonged to the rental company. LE thought that was weird, so he deployed his K9 and the K9 alerted on the tire. An “echo test” confirmed there was something inside the tire other than air. Sanchez consented to go to a tire store and have the tire removed from the rim. At the store, drugs were found.
Sanchez complained that LE impermissibly prolonged the stop by talking to him and asking for consent after the mission of the traffic stop was complete. The appellate court held that the information that LE developed during the ordinary incidents of the traffic stop was more than sufficient to provide reasonable suspicion that Sanchez was involved in drug trafficking. Although the rental car was overdue no matter what Sanchez’s purpose was, his claimed itinerary—several days with family in Idaho followed by a trip to Yellowstone—was hard to square with the fact that he had only rented the car for two days in the first place. Moreover, Sanchez’s story that he was headed east all the way to Bismarck, ND, in order to fly west back to Sacramento made little sense. And Sanchez’s initial confusion about what State he had departed from (Oklahoma versus Idaho), and his need to consult his cell phone to say where he was headed to in North Dakota, strongly suggested that he was making up the details of his story on the fly. Collectively, these facts created a reasonable suspicion that Sanchez was involved in illegal activity, most likely the possession of narcotics or other contraband. Accordingly, the “period of detention was permissibly extended because new grounds for suspicion of criminal activity continued to unfold.”
Sanchez also claimed that LE’s search of the rental car’s spare tire exceeded the scope of Sanchez’s consent to search the car. The court rejected this position, saying the “standard for measuring the scope of a suspect’s consent [to a search] under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Here, a reasonable person would have understood the spare tire to be included within the scope of Sanchez’s verbal and written consent to search the rental car. Finally, Sanchez complained that the search of the tire was not legal. However, when asked about it, he did not claim it as his, saying it was the rental company’s. Therefore, it was reasonable to conclude that he had no objection to the tire being examined, especially in light of his consent to go to the tire store with LE.
Note: Interesting case. LE got some really great information to begin with and built on it from there. The consent gave him carte blanc to search, but remember, consent can be limited or withdrawn at any time.
State v. Turpyn (Ohio 2021) 2021-Ohio-1251
Traffic Stop; Prolonged Detention
Turpyn was stopped because he was driving under the speed limit and committed multiple lane violations. Turpyn was asked out of the vehicle because he had two large dogs in the vehicle. Turpyn’s hands were shaking uncontrollably, he was trembling and uncommonly nervous. He claimed he was coming from several music festivals. LE then called for a back up K9 team per policy. When asked about anything illegal, Turpyn said if a K9 was deployed, the K9 would likely alert because he had been around people who were smoking marijuana. Seven minutes into the stop, the other K9 team arrived and sniffed the vehicle which resulted in an alert. Turpyn said, “Let me cut to the chase.” He went to the vehicle and produced pipes and marijuana. A search of the vehicle revealed a smorgasbord of drugs; cocaine, meth and LSD.
The appellate court first held that the stop was legal. Turpyn then challenged the reliability of the K9. Having stipulated to the K9’s certificate and training, he claimed that his two dogs, still in the vehicle at the time of the sniff, could have distracted the K9 and the government had put on no evidence that the K9 was trained to ignore such distractions. The appellate court did not address this issue directly, but held that since Turpyn voluntarily showed LE drugs, this provided probable cause for the search of the vehicle. Turpyn also complained that the stop was impermissibly prolonged by calling for a K9 team to sniff the vehicle. The court held that there was no evidence in the record that LE could have completed the citation before the alert or before Turpyn himself provided incriminating evidence. There was no prolonged detention.
Note: Nothing really new here. Odd policy issue that a K9 team performing a traffic stop had to call another team to do the sniff, but the court did not seem fazed by it.
Cary v. City of Fond Du Lac (Wisconsin 2021) 2021 U.S. Dist. LEXIS 70098
Traffic Stop; Fourth Amendment Violation of Civil Rights; Prolonged Detention
Traffic stop for no front plate. Cary, the driver, at some point during the traffic stop, ingested a large amount of cocaine and died as a result. His family sued LE for violating Cary’s rights by subjecting him to an illegal search and seizure by improperly extending the traffic stop. LE moved for summary judgment.
The court found the following facts: “The stop began at 9:31 and LE approached the vehicle at 9:32. LE noticed that Cary was not wearing a seat belt and he said he did not have a license or ID and that he did not own the car so could not provide insurance information. He provided his name and address. At 9:33, LE returned to cruiser. She then attempted to ID Cary by obtaining a picture of him through official channels. These databases did indicate that Cary had an extensive criminal history including violence and drugs. At 9:37, LE requested a K9 team. She was informed a team would be available soon. At 9:43 LE was able to confirm Cary’s ID and was informed that Cary was on bond for a pending felony case. At this point, LE requested back up and began preparing the citation which she printed at 9:46. She then moved onto the warning citations. Back up arrived and there were discussions about Cary’s address. At 9:52 Cary confirmed his address. LE printed the warning citations 9:58 at the same time that the K9 team arrived. LE explained what was happening and then asked Cary to exit. He initially refused, but finally submitted. The K9 team immediately deployed and alerted. Cary started to hink up and he was frisked and handcuffed. Cary was in possession of cash and there were drugs in the vehicle.
Cary’s family complains that the stop was impermissibly extended in 6 ways: 1) requesting a K9; (2) communicating with dispatch about the K9; (3) talking amongst themselves; (4) talking with K9 handler; (5) printing two copies of the citation; and (6) ordering Cary to get out of the car. The court was not impressed with these claims, holding that the discussions between dispatch and other LE were de minimus and/or reasonable. The court stated that “[g]iven that it is well-established that a police officer can nominally extend a traffic stop by asking questions unrelated to the purpose of the stop, [LE] certainly can nominally extend a traffic stop by requesting a police dog to conduct a suspicionless search. Because any communication would presumably cause some delay, [Cary]’s argument would amount to a requirement that a police officer have at least reasonable suspicion of drug activity before she could request a police dog to come to a traffic stop” and that is not the law. “Overall, the video reflects [LE] diligently pursuing the mission of the traffic stop and proceeding consistent with the constitutional limits.” As a matter of law, the stop was of a reasonable length and not unreasonably extended. Therefore, it is unnecessary to assess whether O’Donnell had reasonable suspicion to extend the traffic stop. LE was entitled to summary judgment.
Note: I did not review the Terry frisk portion of the opinion, but the appellate court also found that to be reasonable under the circumstances.
United States v. Mahan (Idaho 2021) 2021 U.S. Dist. LEXIS 69690
Traffic Stop; K9 Entering Vehicle During Sniff; Collective Knowledge Doctrine
Traffic stop for speeding and lane violations by a task force which had Mahan and others under surveillance. LE knew that another drug dealer had made payments to Mahan. Mahan was the driver. LE approached on the passenger side and talked to both occupants after passenger rolled the window down at the direction of LE. Mahan was directed out and pat searched. About 7 minutes later, a K9 team arrived and began a sniff. K9 almost immediately jumped in the open passenger window and alerted to a bag inside the car. Both occupants were then handcuffed. Lots of contraband found.
Mahan now moves to suppress the evidence seized from the vehicle alleging the officers violated his Fourth Amendment rights by prolonging the detention in violation of the 4th Amendment.
The court held that, “[i]n short, there was no delay here because officers were conducting a drug investigation from the outset of the stop.” In addition, because of the drug investigation, LE had reasonable suspicion under the collective knowledge doctrine to extend the traffic stop into a drug investigation.
Mahan also claimed that the K9 unlawfully trespassed in the vehicle when he jumped through the open passenger-side window to search the interior. K9’s jump through the window is not contested, but Mahan argues that it was done with the aid of law enforcement while the Government argues that K9’s entrance was merely a “response to his sniffing an odor he is trained to detect and was not facilitated by his handler.” There are no Ninth Circuit cases identified by either party on this issue, but other courts have found that the instinctive actions of trained drug dogs do not expand the scope of an otherwise legal dog sniff to an impermissible search without a warrant or probable cause. The Court agreed that instinctive actions of the dog do not expand the scope of the sniff.
Mahan also challenged the K9’s reliability. However, the K9 was certified and had completed 100s of hours of training, rendering him sufficiently reliable.
Note: I haven’t addressed the arrest in this case, but the appellate court held that the K9 alert in addition to the drug investigation was probable cause to arrest Mahan.
Warfield v. State (Maryland 2021) 2021 Md. App. LEXIS 305
Traffic Stop; Prolonged Detention
Warfield was stopped by LE for running a stop sign. As LE approached, Warfield lit a cigarette which LE believed was an attempt to mask smells within the vehicle. In addition, Warfield was very nervous, more so than normal. LE saw the makings of a blunt and called for a K9 team to respond. The K9 arrived about 12 minutes later and alerted; contraband was found.
Warfield filed a motion to suppress, complaining there was a prolonged detention and LE had abandoned its traffic mission. The appellate court stated, “But, the Supreme Court has stated that “the use of a well-trained narcotics-detection dog . . . during a lawful traffic stop generally does not implicate legitimate privacy interests.” In addition, the court stated, … that a “continued detention is considered a second stop for Fourth Amendment purposes” only “[o]nce the officer completes the tasks related to the original traffic stop or extends the stop beyond when it reasonably should have been completed.” Since the entire stop was 17 minutes until his arrest, there was no prolonged detention.
Note: Time is not the actual measure of whether a stop is impermissibly extended so this court is a little off in its analysis. However, it does appear that the alert happened before the traffic investigation was complete, so the conclusion is correct.
State v. Mock (Oregon 2021) 2021 Ore. App. LEXIS 463
Traffic Stop; Prolonged Detention
During a drug investigation in which LE was monitoring Mock’s house, they saw foot traffic consistent with drug activity and those people were known to LE as active in the drug world; mainly users. LE spotted Mock driving away from town and followed him. He did some evasive maneuvers which LE believed was designed to check for police involvement. LE opined since this was a small community and the vehicle LE was using had been in service for 12 years, it was known to the drug community as a police vehicle. A traffic stop was initiated for several undescribed traffic violations. When LE approached the vehicle to ask for appropriate documents, LE noted that there was no luggage (even though it appeared Mock was headed out of town). Also, Mock was extremely nervous, displaying stomach tremors, smoking cigarettes and not making eye contact. Mock’s license turned out to be suspended. However, instead of starting citations, LE questioned Mock about his travel. Mock said he was going to a destination that LE believed is a location for obtaining drugs and was going to spend the night. Foil in small sizes was spotted which LE believed was for using drugs. LE asked Mock if there were drugs in the vehicle and LE noticed a behavioral change in Mock (undescribed). When asked if a K9 would alert, Mock said, “It shouldn’t,” which LE found suspicious. A K9 team was called which arrived within minutes. K9 alerted and contraband was found.
During the suppression motion, the government highlighted (1) the detectives’ observations at defendant’s home weeks earlier, when they had witnessed known drug users visiting for short intervals; (2) defendant’s behavior of briefly leaving the interstate, believed to be a “heat check”; (3) defendant’s nervous demeanor, exhibited by lack of eye contact, stomach tremors, and smoking; and (4) the fact that defendant had no luggage. The state also argued three additional factors that LE did not learn until after he had asked Mock where he was headed: Mock’s answer that he was headed to the Wildhorse Casino, Mock’s response when asked if he had drugs in the car, and LE’s observation that there were aluminum foil rolls in the car.
While the state argued that these factors provided reasonable suspicion to extend the investigation, the court dismissed these factors and held that the fact that since the first question by LE was about Mock’s travel, the stop had already gone into an impermissible drug investigation.
The appellate court then looked at all the factors known to LE prior to the questioning about travel and found they did not amount to reasonable suspicion to extend the investigation to drugs. The motion to suppress was granted.
Note: One issue that is not developed at all is the fact that Mock was suspended. If the state had argued that the investigation had to be extended to deal with a vehicle without a driver, they may have had additional “traffic stop” time in which to conduct the drug investigation or at least get the K9 on scene.
United States v. Hill (Ohio 2021) 2021 U.S. Dist. LEXIS 67281
Traffic Stop; Prolonged Detention
Hill was stopped by LE for speeding. Upon approach, LE noticed that Hill did not have his seatbelt on, that he avoided making eye contact and had an elevated breathing rate, causing LE to think he was nervous and that he might be in possession of drugs or have a warrant out for him.
Hill handed over his license and as LE was walking back to the cruiser, he remembered that a fellow officer had encountered a person with the same name in possession of a firearm. LE radioed for back up and a K9 team. After running information through dispatch, LE began handwriting the citation. About 9 minutes later, LE approached Hill and talked to him, but LE did not remember what it was about. Back up arrived after that, and the K9 team came on scene about 7 minutes after back up. Hall was directed to exit and was patted down. The K9 team was then deployed and alerted. Contraband was found, including a loaded firearm. The entire encounter from stop to alert was 19 minutes and LE testified it takes from 12 to 20 minutes to complete a citation. The trial court found that LE was in the process of completing tasks related to the traffic stop, such as obtaining driver’s license and registration, speaking with Hill, requesting backup and a K-9 unit, running Hill’s information through the “CAD” system with dispatch, briefing back up when he arrived to the scene, and writing up the ticket, which included two different violations. There is no evidence that those tasks were completed prior to the K9’s alert on the vehicle. Therefore, the duration of the stop until the K-9 alerted during the drug sniff was within the range of time LE testified a typical traffic stop takes. On this record, the appellate court found that the stop was not unnecessarily prolonged. The court also found that the K9 was properly trained and reliable.
Note: LE consistently and diligently proceeded on the citation until the alert, so the court found there was no prolonged detention. A job well done.
People v. Hernandez (California 2021) 2021 Cal. App. Unpub. LEXIS 2251
Traffic Stop; Prolonged Detention
Traffic stop for window tint. Hernandez was the passenger. He volunteered that the car belonged to his mother. LE had the driver exit and checked her for weapons. He then asked her about her AZ license. She explained that she had just moved to California. Hernandez was then questioned and his answers did not conform to driver’s. Hernandez was directed out and Terry frisked. Both were then seated on the curb. Both were very nervous and Hernandez was breathing heavily. Using information given to him by Hernandez, LE was able to confirm Hernandez’ identity. By this point, a K9 team had arrived and the K9 promptly alerted on the vehicle; the K9 was then allowed into the vehicle and alerted on trash bag full of meth. Additional contraband was found.
The court initially determined that once LE knew of Hernandez’ driver’s license status, the traffic stop mission was over. Therefore, there had to be additional reasonable suspicion to extend the investigation into a drug investigation.
The fact that neither had a California driver’s license in their possession, that the car belonged to Hernandez’ mother but the person with the out of state license was driving, the conflicting stories, and the fact that they were overly nervous during the contact were all factors considered by the court. They concluded that, considering all of the circumstances known to LE, the court was convinced there was reasonable suspicion for him to detain Hernandez and driver until the drug-sniffing dog alerted on their car. After that, LE had probable cause to lawfully search the vehicle, and therefore their decision to do so did not violate the Fourth Amendment.
Note: Nothing new here. Good outcome.
State v. Ashbey (Idaho 2021), 2021 Ida. App. Unpub. LEXIS 103
Traffic Stop; Prolonged Detention
A night-shift officer received a report that a vehicle with two individuals just left an apartment from which Ashbey was reportedly selling drugs. The officer located the vehicle and stopped it for a turn-signal violation. The officer then received identification from the vehicle’s two occupants and recognized the passenger as Ashbey. After observing a metal pipe that could serve as an improvised weapon, the officer ordered the driver to exit the vehicle and obtained permission to search her person. While searching the driver, the first officer instructed a second officer who had responded to the scene with a drug dog to conduct a drug-dog sniff of the vehicle after removing Ashbey. While the first officer monitored Ashbey and the driver to ensure the second officer’s safety, the drug dog alerted to the presence of drugs in the vehicle. A search of the vehicle yielded a plastic baggie with what appeared to be trace amounts of methamphetamine.
A motion to suppress was filed complaining that the traffic stop was unlawfully prolonged. The state argued that there was reasonable suspicion at the time of the stop from not only the tip that Ashbey was selling drugs, but the nervousness and conflicting stories and odd circumstances regarding the driver’s licenses. The court dismissed the tip regarding the sales of drugs by Ashbey because the officer could not identify who the “street sources” were who supplied the tip. Since this was an uncoroborated tip, the court held this was not a factor in favor of reasonable suspicion.
Even when considered in conjunction with the other facts the officers learned during the course of the traffic stop, there was not reasonable suspicion to extend the stop for a drug investigation. According to Ashbey, the officer who initiated the traffic stop “suspended his traffic mission to act as cover for the dog sniff,” rendering his actions “no longer justified by the reasonable suspicion of the traffic violation.”
Officers cannot deviate from the original purpose of a traffic stop to take precautions incident to investigating other crimes without independent reasonable suspicion. That is what the first officer did while monitoring Ashbey and the driver during the drug-dog sniff. The motion to suppress was granted.
Note: A conviction of bringing contraband into the jail was affirmed (based on another arrest). Here, I guess the court concludes that officer safety falls victim to the need to scribble a citation. this is at odds with other jurisdictions. Odd that no one cited the case law that providing safety monitoring by officers is part and parcel of the investigation. I suppose the appellate court would say that the monitoring was only because of the K9 sniff; therefore, it was outside of the mission of the traffic stop. Still, this is a bad outcome.
Orellana v. United States (Maryland 2021) 2021 U.S. Dist. LEXIS
Excessive Force; Accidental Bite; Qualified Immunity
Orellana lived with her boyfriend, Trinidad and their infant. Trinidad’s mother, Menendez and younger sister also lived there. LE came to the home to enforce a misdemeanor warrant against Trinidad. Menendez answered the door and spoke to LE. She stated that Trinidad was currently asleep in the basement with Orellana and their infant child, and that her daughter (Trinidad’s sister) was asleep in a bedroom on the main floor. After waking and detaining Ms. Menendez’s daughter, LE proceeded downstairs to the basement where they encountered a locked door that partitioned the basement from the staircase leading to the main floor of the home. They broke down the locked door and without first providing a verbal warning, handler released K9 from his tether, allowing him to enter the main living quarters of the basement. K9 quickly proceeded to a back bedroom where Orellana and Trinidad were sleeping with their child. The bedroom door was cracked or slightly open allowing K9 to enter the room. Upon entering, K9 “viciously” attacked Orellana, biting her upper left leg. Orellana and Trinidad screamed for help and for the dog to be released. LE then entered the bedroom, ordered K9 to release Orellana, and called for an ambulance. Orellana was transported to the hospital where she received 45 stitches in her upper left leg.
The court allowed the case to proceed stating that LE had direct knowledge that Orellano and her infant child were asleep in the basement bedroom of the residence and yet, without providing any warning, intentionally released an attack dog which, in LE’s words, “was trained to  bit[e] the first person he encountered[.]” The court went on to say that this conduct could very well be found to be intentional or reckless conduct. The court also denied qualified immunity.
Note: This is a disturbing deployment as it did not meet the Graham v. Connor use of force elements. Based on a misdemeanor warrant (less serious crime by definition), and knowing that an uninvolved female and infant were possibly in the path of the K9, the K9 was deployed off leash without warning and not released until victim started screaming. I don’t know how this could be worse, other than to say at least the infant wasn’t injured. This will be a big settlement or a really messy trial for LE. Either way, not good for the industry as a whole.
State v. Alvaranga (Ohio 2021) 2021-Ohio-1130
Traffic Stop; Odor of Marijuana as Probable Cause
911 received an anonymous call that a particular car was driving recklessly. LE was dispatched to that location and started following a car that matched the description. LE observed the car to commit lane violations. In addition, LE smelled marijuana coming from the vehicle. It was the only vehicle around and even when other cars passed, the smell remained. The car’s passenger window was open and LE surmised that is where the smell was coming from. The driver Alvaranga had red/bloodshot and glassy eyes. He flunked FSTs. He was arrested for impaired driving.
The appellate court held that the trial court did not err when it determined that LE obtained reasonable, articulable suspicion to conduct a traffic stop of Alvaranga’s vehicle because there was sufficient evidence to cause a prudent person to believe that Alvaranga was driving while impaired as LE testified that he followed directly behind Alvaranga’s vehicle when he detected an odor of raw marijuana, defendant’s vehicle was the only vehicle in front of him when he first noticed the odor and the smell did not dissipate when other cars passed. In addition, LE saw the same lane violations as described by the tipster. Therefore, there was sufficient evidence to stop the vehicle.
Note: Interesting that the LE officer could smell raw marijuana from his car, but it is potent stuff and his testimony was thoroughly tested during cross examination. There was no indication if the car was searched or if Alvaranga was in possession of any drugs. Rather odd case.
United States v. $252,140.00 (Coleman) (North Carolina 2021) 2021 U.S. Dist. LEXIS 64675
Currency Sniff; Sniff as Probable Cause
This was a hearing to determine if there is a preponderance of the evidence in support of seizure of the above funds by the government as proceeds of drug trafficking. Coleman was stopped for having a large amount of currency in his luggage. Coleman consented to a search and LE found the above amount of cash. It was packaged in a manner consistent with drug trafficking. A K9 alerted on the money. The money was seized and tested by the government using an Ion Scan and it was found to have traces of cocaine. At the time of the seizure, Coleman presented a letter that purported to be money belonging to a charity run by Shumake and Coleman had been hired to transport it, even though the signator on the letter claimed diplomatic immunity. Turns out Shumake did not have diplomatic immunity and it was asserted that there were two donations of $100,000 each which still didn’t explain the full amount of the money. Shumake and the charity he claimed it was for both filed claims to get the money back. The Government contended that the positive K-9 alert and ion scan were probative evidence supporting summary judgment. However, the claimants disputed the expert testimony related to the K-9 alert and ion scan. The Court, as a result, found genuine issues of material fact that would permit, but not require, a reasonable jury to return a verdict in favor of the charity. Therefore, the Government did not met its burden of establishing by a preponderance of the evidence that the currency constitutes proceeds from the exchange of a controlled substance. The evidence proffered by the Government to show a substantial connection between the currency and any underlying criminal activity fails to resolve genuine issues of material fact. Accordingly, Motion for Summary Judgment is denied.
Note: This is a prelimiary type hearing and it is certainly not the end of the case. It will now proceed. It would be interesting to know if anyone is going to take responsibility of a $100,000 donation as that would cause interest from other entities like the IRS. I’m sensing a settlement in LE’s favor.
T.L. Harvey v. Butcher (Utah 2021) 2021 U.S. Dist. LEXIS 63012
Traffic Stop; Coordinated Stop; Qualified Immunity
After a first stop for tinted windows resulted only in a warning, LE contacted another officer and described the vehicle and its location and indicated that based on a conversation with the driver (Harvey), he thought that the car might have drugs. The second officer was a K9 handler and the first officer told him that the K9 might alert. The first officer released Harvey.
Based on this conversation, the handler was able to find and stop Harvey for tinted windows. Handler was unaware of Mr. Harvey’s race until he approached the car. Handler maintains he advised Mr. Harvey he stopped him because his window tint violated Utah’s statute, but Mr. Harvey disputes this. Mr. Harvey did tell handler he had just been stopped for a window tint violation. Handler asked for Mr. Harvey’s license and car registration, then returned to his patrol car to run checks on Mr. Harvey and his vehicle. While the checks were running, handler walked his certified K9 around Harvey’s car. At the back of Harvey’s car, the dog alerted to the presence of narcotics. However, Harvey saw no behavior by the dog which, in his opinion, indicated an alert. After the dog’s alert, handler asked Harvey to step out of his car so handler could search it. Mr. Harvey did so but asked for a supervisor to be present before handler searched the car. A supervisor arrived about 20 minutes later. In the interim, handler offered to allow Harvey to wait in the back of his patrol car—an invitation Harvey declined. Instead, Harvey waited outside in the “frigid cold.” After the supervisor arrived, he also offered to allow Harvey to sit in his car, but Harvey again declined. Handler spent no more than thirty-one minutes searching Mr. Harvey’s vehicle, finding no drugs.
Harvey complained that the first stop was because of his race but the tint was so dark the first officer couldn’t see the driver until he approached and the window was rolled down. He claimed the second stop was ordered by the allegedly racist first officer to the handler who ultimately ran his K9 around the car which alerted. The court disagreed and held that the first stop was constitutionally appropriate and the questioning from the first officer did not extend beyond the confines of the traffic stop. The second officer also stayed within the confines of the constitution, having stopped Harvey for equipment violation (the dark tint). Even though handler’s subjective intent was to run his K9 around the car, the stop for the equipment violation was valid. Since the sniff took place during the investigation the window tint, there was no prolonged detention. The alert then gave handler probable cause to search the vehicle. It was also clear that neither officer knew the race of Harvey until they approached because of the tint.
The court also addressed Harvey’s contention that both officers ran record checks which meant that the checks were redundant and therefore unlawfully prolonged the second stop. The court held that this argument assumed that the knowledge gained by the first officer was imputed to the second and that was unreasonable. Both officers were entitled to qualified immunity and the case was dismissed.
Note: Pretextual stops have long been under attack by the defense. This opinion capsulizes the arguments for why pretextual stops are allowed. Some legislatures are now promulgating laws that make pretextual stops illegal. I will keep reviewing cases on this issue and update the website with new cases.