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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 2022. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.)
As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.
Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has a review of the K9 relevant cases for the month, and often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.
(Disclaimer: I do not represent any individuals, handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)
MARIJUANA UPDATE FOR APRIL 2022
FEDERAL
U.S. Customs and Border Protection reminded Americans in April that possession of any amount of marijuana is still illegal under federal law (however, USAG Garland also indicated that low level (personal possession) marijuana crimes remain a low priority for his office).
A D.C. Circuit panel grilled attorneys for a hemp industry trade group to identify what exactly about U.S. Drug Enforcement Administration regulations they found unlawful, while the agency reaffirmed its position that the rules were in sync with the federal statute legalizing hemp.
House lawmakers unveiled a bipartisan bill to create a regulatory framework for federal oversight of a fully legalized national adult-use cannabis industry, which the bill’s authors described as something that is “inevitable.” The bill would remove marijuana from the controlled substances list and leave it up to states to set their own laws regulating the drug. It would also release people incarcerated on cannabis-related offenses of less than 30 grams and expunge criminal penalties associated with those who manufacture, distribute and possess it. The bill will probably not survive in the Senate.
The U.S. House of Representatives approved a bipartisan bill to expand scientists’ access to cannabis to research its potential medical benefits.
Congressional researchers have filed a new report that highlights the growing Federal/State marijuana “policy gap.” Given Justice Thomas’ recent comments in a dissent, it appears that this report will be used to support federal legalization of marijuana.
STATES
The New Hampshire Senate rejected two House-passed bill that would have legalized marijuana: one to simply allow possession and home cultivation for adults without a sales component and another to create a state-run cannabis market. The noncommercial legislation was defeated in a 9-15 vote after members discussed and rejected an amendment that would have removed the home grow option and added a per se THC limit for impaired driving. The other bill that would have created an adult-use market operated by the state’s Liquor Commission was subsequently defeated on a voice vote. It was rejected by a Senate committee earlier this month, but it still advanced to the floor under the legislature’s rules.
A campaign to put marijuana legalization on Ohio’s November ballot may be in jeopardy. A legal challenge was filed regarding the necessary amount of signatures and the timing of the filing of said signatures.
The Oklahoma Supreme Court said two proposed initiatives to amend the state’s constitution by ballot measure to revamp marijuana policy were lawful and could proceed.
The ACLU of Nevada is backing a new legal challenge to push the state’s drug regulator to remove cannabis from its list of Schedule I substances, saying the position is unconstitutional and at odds with voters’ clear directives to legalize the drug for medical and recreational use.
Delaware legislators nudged their adult-use legalization bill forward.
An organization aiming to legalize recreational cannabis in North Dakota filed a petition to allow adults 21 and older to possess cannabis and purchase it from registered establishments, with the goal of qualifying the proposal for the November 2022 ballot. North Dakota’s secretary of state has approved the language of that proposed ballot referendum.
Kansas House lawmakers laid out their plan and proposed compromises for medical marijuana legalization in the state, moving the legislature one step closer to enacting the reform following the appointment of a bicameral conference committee that’s been charged with reaching an agreement on the issue. The bill’s passage may be imminent.
Georgia voters will get a chance to decide on a marijuana legalization question; “Should marijuana be legalized, taxed and regulated in the same manner as alcohol for adults 21 years of age or older, with proceeds going towards education, infrastructure and health care programs?” There are a total of 9 non-binding, advisory questions placed on the ballot this year, with the hope of gaining perspective on what issues voters care about most to inform legislative policy priorities.
Activists in Denton, Texas say they’re confident that they’ve collected enough signatures to place a marijuana decriminalization initiative on the local ballot. Meanwhile, as Denton activists pursue the midterm election in November, the campaign Ground Game Texas successfully put cannabis decriminalization on the Austin ballot for next May.
A initiative in Washington has survived a court challenge and will be on the ballot in the next election. The initiative is described as follows: This measure would fund substance use disorder prevention, outreach, recovery, training, study, and public education; decriminalize drug possession but allow seizure and forfeiture; authorize vacation of certain drug-related convictions; and amend related laws. Should this measure be enacted into law?
South Carolina‘s House committees approved a medical marijuana bill which is now heading to the floor.
INDEX OF CASES REVIEWED FROM APRIL 2022
United States v. Juarez-Sanchez (Maryland) 2022 U.S. Dist. LEXIS 75668 – Traffic Stop; Prolonged Detention
United States v. Peck (Nebraska) 2022 U.S. Dist. LEXIS 75951 – Curtilage; Alert as Probable Cause; Search Warrant; Good Faith Exception
Thornburg v. Williamson Cnty. (Texas) 2022 U.S. Dist. LEXIS 76301 – Excessive Force; Monell Liability
United States v. Washington (Kentucky) 2022 U.S. App. LEXIS 11511 – Alert as Probable Cause; Automobile Exception
Smith v. Lee (Louisiana) 2022 U.S. Dist. LEXIS 74025 – Excessive Force; Bystander Liability; Monell Liability
United States v. Burnette (North Carolina) 2022 U.S. Dist. LEXIS 74810 – Traffic Stop; Prolonged Detention; Reliability Foundation
United States v. Young (Virginia 2022) 2022 U.S. Dist. LEXIS 72985 – Traffic Stop; Alert as Probable Cause; Reliability Foundation
Hughes v. Rodriguez (California 2022) 2022 U.S. App. LEXIS 10788 – Excessive Force; Qualified Immunity
Commonwealth v. Decarlo (Pennsylvania) 2022 Pa. Super. Unpub. LEXIS 934 – Traffic Stop; Alert as Probable Cause; Inevitable Discovery Doctrine
People v. Maybon (Illinois) 2022 Ill. App. Unpub. LEXIS 640 – Traffic Stop; Prolonged Detention
United States v. $142,140.00 (Ohio) 2022 U.S. Dist. LEXIS 69489 – Currency Sniff; Package Sniff
Barney v. State (Wyoming) 2022 WY 49 – Traffic Stop; Attenuation Doctrine; Prolonged Detention (as an afterthought)
Carpenter v. Itawamba Co. Jail (Mississippi) 2022 U.S. Dist. LEXIS 66463 – Excessive Force; Prisoner Lawsuit (Pro se); Qualified Immunity
United States v. Fickas (Minnesota) 2022 U.S. Dist. LEXIS 67598 – Traffic Stop; Prolonged Detention; Sniff as Probable Cause
United States v. Frazier (Utah) 2022 U.S. App. LEXIS 9912 – Traffic Stop; Prolonged Detention
Commonwealth v. Judge (Massachusetts) 100 Mass. App. Ct. 817 – Alert as Probable Cause; Strip Search; Reliability Foundation
United States v. Miles (Indiana) 2022 U.S. Dist. LEXIS 64649 – Curtilage; Alert as Probable Cause; Good Faith Exception
United States v. Perez (North Dakota) 2022 U.S. App. LEXIS 9405 – Traffic Stop; Inventory Search; Reliability Foundation
United States v. Hunter (Delaware) 2022 U.S. App. LEXIS 9067 (Unpub.) – Traffic Stop; Prolonged Detention
United States v. Visintainer (Ohio) 2022 U.S. Dist. LEXIS 62876 – Traffic Stop; Search Incident to Arrest; Prolonged Detention; Inevitable Discovery
Creller v. State (Florida) 2022 Fla. App. LEXIS 2518 – Traffic Stop; Removing Passengers From Vehicle; Prolonged Detention
People v. Babadzhano (New York) 2022 N.Y. App. Div. LEXIS 2126 – Traffic Stop; Odor of Marijuana as Probable Cause; Retroactivity
United States v. Frazier (Alabama) 2022 U.S. App. LEXIS 9234 (Unpub.) – Alert as Probable Cause; Reliability Foundation
McFadden v. City of Boynton Beach (Florida) 2022 U.S. Dist. LEXIS 60907 – Excessive Force
CASES REVIEWED FROM APRIL 2022
United States v. Juarez-Sanchez (Maryland) 2022 U.S. Dist. LEXIS 75668
Traffic Stop; Prolonged Detention
LE observed a Honda with Indiana tags traveling at a distance too close to the vehicle in front of it. LE stopped the Honda and approached on the passenger side. The occupants only rolled the window down slightly. Driver said he did not have his license and he had lost his passport. Driver started digging for the registration. LE asked driver to step out. Driver explained that the car belonged to his girlfriend’s friend and that the friend had allowed him to use the vehicle to travel from Indiana to New York. The driver made mention of some connection to Mexico and to the fact that eventually the girlfriend’s friend would allow for transfer of the car’s title. LE noted that the driver’s hands were trembling and that his forehead appeared to glisten from perspiration.
Driver ID’d himself as Gavino Perez-Aguilar born on July 19, 1992. Driver could only recall the first name of the passenger. LE returned to his vehicle and called for a K9 team to meet him. He then radioed the Honda’s license plate information to a dispatcher for a records check. As LE waited for the dispatcher’s response, back up arrived, including the K9 team.
Before conducting the K9 sniff, LE had the passenger step out of the Honda, patted him down, and instructed him to wait with the driver. While officers conducted the open-air sniff, LE learned from the dispatcher that the Honda’s Indiana tags were expired. The K9 alerted. Approximately 13 minutes had elapsed from the initial stop of the Honda to the positive K9 alert. Contraband, cash and phones were found. Driver was found to be Juarez-Sanchez who had already been deported 3 times prior.
The appellate court first held that the traffic stop was legitimate at its inception as LE observed a traffic violation. The court went on to hold that there was no prolonged detention.
In this case, LE encountered a driver who had neither a driver’s license nor any other form of identification. The driver was not able to readily identify the owner of the vehicle. The driver’s hands trembled, and his forehead perspired as he answered LE’s questions. Based on the forgoing, LE called in a K9 team while he reported the Honda’s tags to a dispatcher to run a search. As the K9 team was completing its sniff, the dispatcher informed LE that the Honda’s tags were expired. LE could not have allowed the driver, who had no driver’s license, to leave the scene in the Honda, which bore expired tags. The traffic stop would have been extended whether or not LE called in a K9 team. The alert then gave LE the probable cause to search the Honda under the automobile exception.
Note: This was a well handled case. The court held that there was justification to prolong the traffic stop because of the issues with ID and registration. LE was dealing with those issues when the K9 team arrived, sniffed and alerted. The court could have also concluded that the traffic stop was not over because ID and registration are always part of a traffic stop and that the K9 actions happened concurrently with the traffic investigation. Either way, same result.
United States v. Peck (Nebraska) 2022 U.S. Dist. LEXIS 75951
Curtilage; Alert as Probable Cause; Search Warrant; Good Faith Exception
LE obtained a search warrant for a sniff of an apartment door from a common hallway.
Peck appealed the trial court’s conclusion that the K9 sniff outside his apartment door from a common hallway did not constitute an unlawful search under the Fourth Amendment. The appellate court applied the US Supreme Court’s US v. Dunn factors: [1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by. The appellate court concluded that Peck’s door, as accessed from the common hallway of his apartment building, was not curtilage. First, the area sniffed by the K9 was immediately next to Peck’s home; the K9 alerted to the presence of drugs at the outside threshold or jambs of the door into Peck’s apartment. Therefore, the first factor weighed heavily in favor of finding that area to be curtilage, but the remaining factors were not so favorable to Peck. The area was not surrounded by an enclosure, and there was no evidence that Peck used the surrounding area for anything other than a means of entering his apartment. Nothing about the hallway or exterior of Peck’s door suggested it was an area to which the activity of home life extends. As to the fourth factor, there was evidence that the exterior of the apartment building was locked to ordinary passersby, but the hallway—which held at least eight other apartments—was completely open to and used freely by other tenants, neighbors, visitors, and apartment management.
As to Peck’s other objections, the Court agreed with the trial judge’s analysis. Here, the K9 sniff was also not a search in violation of the Fourth Amendment under the reasonable-expectations test per existing Eighth Circuit law. The Court similarly agreed with the trial judge that probable cause existed to support issuance of the search warrant, but even if it did not, the good-faith exception precludes suppression of the evidence.
Note: This result was based on the 8th Circuit’s interpretation of the USSC’s Jardines case and its progeny. The court found that there were no 8th Circuit cases on the point of an apartment door from a common walkway, so the court applied the Dunn factors to analyze the specific facts in the case. In another jurisdiction, this could and has gone the other way. Be sure you know where the literal curtilage line is in your jurisdiction.
Thornburg v. Williamson Cnty. (Texas) 2022 U.S. Dist. LEXIS 76301
Excessive Force; Monell Liability
LE responded to a DV where Thornburg told his wife that he was suicidal and told her to leave if she did not want to die with him. The wife had put two weapons in the trunk of her car and waited to call 911 until Thornburg went to sleep. Her 81 year old mother-in-law was also present in the house. LE decided that force was necessary to apprehend Thornburg.
According to Thornburg, a veritable army was dispatched to his home, including a K9 team. He claimed he walked outside with his hands up and was told to get on the ground (although no one told him he was under arrest). As he was complying, he heard an unidentified deputy yell, “Release the dog!” The K9 bit him in his groin, thighs and torso. He also alleged that he was knocked unconscious by a rifle butt blow to his head. The blow also broke his orbital socket. He also claimed to have been tased and shot with bean bags.
Thornburg’s contention was that Williamson County Sheriff was being filmed for Live PD which emboldened LE to be more violent faster. (Interestingly, Live PD was not present at this call). He claimed that the supervisors and the responding officers conspired to use excessive force, watched the K9 deployment happen and did nothing to intervene.
(LE said that Thornburg made threats against his wife, resisted arrest and injured the police dog. However, since these are pretrial motions for summary judgment, the court must accept Thornburg’s version).
The court first addressed the liability of the supervisor on scene. The court held that Thornburg has alleged sufficient facts to support his claim that supervisor performed the specific act that formed the basis of the alleged constitutional deprivation by ordering an unconstitutional use of force on him (the K9) during his arrest (Release the dog!) In addition, the court held that Thornburg had alleged sufficient facts to permit a finder of fact to determine that using unreasonable excessive force on citizens was or should have been a highly predictable consequence of the County’s decision to provide its staff no training regarding the Constitution’s constraints on the use of excessive force when seizing a person who is unarmed, not fleeing, and not resisting arrest.
Therefore, Thornburg had alleged sufficient facts for a Monell claim of liability to go forward as well as a bystander liability theory.
Several LE were dismissed out of the case for statute of limitations violations by Thornburg. However, the supervisors and a handful of LE remained in the case. Qualified immunity did not apply because under the summary judgement facts (Thornburg’s version), a jury could find LE liable.
Note: It is impossible to tell if the handler was ever named in the case or if any claims remained against the handler. This case is really a Monell liability case because the county is the deep pocket. It appears that Thornburg filed a bare bones complaint just 2 days before the statute ran and didn’t name all the LE that was involved. Therefore, when he tried to add those LE to the complaint, the court dismissed those LE. Possibly the handler was in that group of people.
United States v. Washington (Kentucky) 2022 U.S. App. LEXIS 11511 (Unpub.)
Alert as Probable Cause; Automobile Exception
LE flipped three low level dealers on their client, Washington. One said he was about to buy another pound of meth from Washington at a motel. LE then corroborated Washington’s identity by viewing official records and surveillance footage. The informant kept LE advised of what Washington was driving and who he was with. When Washington and his passenger arrived at the motel and knocked on the door the informant supplied, they were arrested. Washington was searched and no contraband was found.
Washington was detained while a K9 sniff the vehicle in which he arrived. When K9 alerted, LE found a pound of meth.
The appellate court held that there was probable cause to search the vehicle. LE knew Washington was coming to the motel in a specific vehicle for the purpose of selling methamphetamine to informant. LE observed the vehicle as it arrived, and LE identified Washington as he exited the vehicle via his photograph and walked to the room. When they found no drugs on Washington’s person, the K9 on-site alerted to the presence of drugs in his vehicle. This alert along with the rest of the information from the investigation provided probable cause for the vehicle search.
Washington then complained that the automobile exception (warrantless search of a vehicle) did not apply in this circumstance because he, the driver, was detained. The court held that this is not the standard employed by the automobile exception. The US Supreme Court has been clear that a lesser expectation of privacy applies to vehicles even in cases where an automobile was not immediately mobile. Because the K9 sniff gave LE probable cause to search Washington’s vehicle, the automobile exception applies even though Washington’s detention made it unlikely to be moved in the immediate future.
Note: This was a well executed investigation. It is helpful to remind us what the US Supreme Court standard is regarding the automobile exception to obtaining a search warrant to search a vehicle. You should know, though, states can enact stricter requirements and several states do require additional exigency before a vehicle can be searched without a warrant. Check with your local prosecutor to make sure you know the standard that applies in your jurisdiction.
Smith v. Lee (Louisiana) 2022 U.S. Dist. LEXIS 74025
Excessive Force; Bystander Liability; Monell Liability;
LE was looking for Combs to execute an arrest warrant for second degree murder. LE received information that Combs could be at one of two addresses on State Street. LE determined that 1913 State Street was the address where Combs was. A perimeter was established and LE attempted contact. Smith came to the door. She claimed she did not know Combs and that no one else was there. She met with LE on the driveway during this exchange. The K9 team then covered the open front door. Three K9 warnings were given. Handler entered with K9 and ordered the K9 to find the man. The K9 encountered Mr. Stewart, a guest of Smith who had been sleeping. The K9 bit Stewart. The handler had difficulty removing the K9, so the bite duration was about 1 minute. Combs was not found in the house. It was unclear from the facts whether Smith was lying about Stewart’s presence or if she was unaware he had returned and gone to sleep. (No debate whether she said no one was present; it was unclear if she was lying or if Stewart had returned and gone to sleep without her knowing). Smith and Stewart sued.
The appellate court addressed the entry by the K9 team into the home. There was no warrant authorizing the entry of the team. However, LE alleged that Smith consented to their entry, at least impliedly.
Viewing this case in the light most favorable to the Plaintiffs, the Court had to assume the truth of the following facts. LE arrived at Smith’s house looking for Combs. Smith told LE that Combs was not there and she did not know who he was. LE required Smith to leave her house and stand in the driveway. The house was surrounded by law enforcement. Smith knew the police were on the hunt for Combs, and she watched as they established and maintained a perimeter around her house. Handler then went to the front door, entered the home, and released his K9 inside, while Smith stood by in the driveway. Crediting Smith’s version of events, LE did not seek consent to enter her home.
First, the appellate court refused to find an implied consent to enter. In the instant case, LE essentially want consent to exist where they decide on a course of action and the homeowner fails to stop them. However, the act of remaining silent despite knowledge of what LE intends to do falls short of establishing one’s consent. Therefore, the theory of implied consent is not applicable here.
Accordingly, handler’s entry into the home without a warrant and without consent—either explicit or implicit—constituted a violation of Smith’s Fourth Amendment rights. Handler was not entitled to qualified immunity for his actions, as the law was clearly established at the time of this incident that, in the absence of a warrant or an exception to the warrant requirement, he needed to obtain actual consent before entering a person’s residence. Summary judgment was denied as to this unlawful entry claim.
LE then moved for a finding of qualified immunity on Stewart’s claim of excessive force based upon K9’s bite(s). Under qualified immunity, the appellate court had to consider whether, viewing the facts in the light most favorable to Stewart, handler’s actions violated Stewart’s Fourth Amendment right to be free from excessive force.
When construed in Stewart’s favor, the facts are that without a warrant, without consent, and without any other legal justification, handler entered Smith’s home to search the house for Combs. Handler released a K9 into Smith’s home not knowing if anyone else was inside and he did so with the intent for the K9 to bite whomever it encountered. Smith did not know Stewart had returned to the home and could not warn officers that he was inside. Stewart, an innocent elderly man, was in the bedroom asleep and/or with a television on and did not hear any warnings issued by handler. Upon hearing a commotion, Stewart left his bedroom and was attacked in the hallway by K9. Handler did not or could not K9 to immediately release the bite, and Stewart suffered multiple bite wounds in an encounter that lasted at least one minute.
The Court considered the Graham factors of the severity of the crime at issue, whether Stewart posed an immediate threat to the safety of the officers or others, and whether he was actively resisting arrest or attempting to evade arrest by flight. Application of these factors confirms that handler’s conduct was objectively unreasonable, as not a single factor weighs in favor of the application of force. First, Stewart was suspected of no crime whatsoever; indeed, he was an innocent bystander. Second, it is undisputed that Stewart posed no threat to the safety of the officers or others. As to the third factor of whether Stewart was actively resisting arrest or attempting to evade arrest, here again, there is no dispute—Stewart was neither resisting arrest nor attempting to evade an arrest. He was simply in the home in which police released a K9 and was consequently attacked by the K9. In sum, the Graham factors suggest that the use of force was excessive. Even if the initial use of force, i.e., the initial bite, could be deemed reasonable under a version of the facts more favorable to LE, handler still acted unreasonably in allowing K9 to bite multiple times over an extended duration.
Furthermore, the Fifth Circuit has stressed that a relevant consideration in determining whether an officer’s force was excessive to the need is the “speed with which an officer resorts to force . . . .” If he resorts to force quickly before employing other negotiation tactics or attempting “measured and ascending” responses commensurate with the plaintiff’s conduct, then those circumstances militate against a finding of reasonableness. There is a genuine dispute of fact as to whether handler’s warnings, if they were given, were sufficient to constitute proper negotiation tactics before sending in a police dog.
As to the second prong of the qualified immunity doctrine, the Court found that the law was clearly established as of the events in this case in 2018 that LE cannot commit an unauthorized entry into a private residence and then release a K9 on whomever happens to be inside.
The court then addressed municipal (agency) liability (Monell liability). A LE agency may be sued if it is alleged to have caused a constitutional tort through a policy statement, ordinance, regulation, or decision officially adopted and promulgated by LE of the agency. Here, there was a claim by Stewart that the LE agency failed to properly train its officers, including handler. This claim in a civil rights lawsuit requires proof of three elements: (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose “moving force” is the policy or custom.
In this case, Stewart alleges the agency failed to provide: maintenance training in accordance with the U.S. Canine Industry Standard; training where innocent bystanders are present; training in the find and bark method which is less excessive than the find and bite procedure; and training that would have forced handler to release Stewart immediately rather than having to resort to a choke hold. For purposes of this Monell claim, the Plaintiff must present evidence that the City had a policy or custom of failing to train K9s and K9 handlers such that their conduct would result in the deprivation of constitutional rights.
Deliberate indifference requires actual or constructive notice that a particular omission in a training program causes city employees to violate citizens’ constitutional rights, yet the agency nevertheless chooses to retain that program. Here, the court held that Stewart had not offered sufficient or specific facts regarding the agency’s actual training procedures for its K9 unit, how those procedures were deficient, or how those alleged deficiencies were the moving force behind this particular constitutional violation. Moreover, Stewart offered no evidence regarding prior incidents similar to those that occurred in this case. Without a pattern of constitutional violations or some other indication of the agency’s knowledge of the training deficiencies, Stewart cannot demonstrate that the agency acted with deliberate indifference. This claim therefore was dismissed.
Finally, Smith and Stewart filed state claims of battery and trespass under theories of negligence and strict liability. The only state law claim LE independently address is the strict liability claim based on K9’s bite based on Louisiana law, which states that the owner of an animal is answerable for the damage caused by the animal. However, the owner is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. LE argued either that K9s are not subject to the strict liability in this type of situation. The appellate court did find a previous case which indicated that LE K9s are governed under this statute if the K9 bites another person. The court ended up denying the motion for summary judgment on the state law counts indicated LE had not provided legal support for their positions.
The Court did locate a Louisiana appellate decision which, at the very least, confirms that LE K9 are governed under this provision if the K9 bites another person. LE has not directed the Court to any authority for their conclusory statement that Plaintiffs cannot pursue a strict liability claim, and the Court has located no authority to corroborate the LE’s contention. Thus, the Court did not dismiss on this basis.
Note: The case remains alive because there are two versions of what happened that are in conflict so a finder of fact will have to make the decision. This is a good reminder to 1) engage your body cam at the beginning (it appears there was no cam footage in this case) and 2) understand the court will assess the use of force at every juncture. In addition, the issue of what type of liability is available at the state level is a sticky one. Each state has their own dog bite statute and some states actually make a distinction between civilian dogs and K9s. Be sure to understand what is the law in your jurisdiction by checking with your representation (those attorneys that represent LE within your agency).
Another issue to keep in mind. It appears that this K9 was deployed into a house without physical control by the handler. We are seeing, more and more, that courts don’t look upon those deployments with favor. Handler control is the best policy; it may be a bit slower, but deploying a K9 into an area where it’s likely there may be humans can really be a liability, as you can see from this case.
United States v. Burnette (North Carolina) 2022 U.S. Dist. LEXIS 74810
Traffic Stop; Prolonged Detention; Reliability Foundation
There was an ongoing drug trafficking investigation and LE identified William Craig as a source of supply of methamphetamine. Burnette was identified as a suspected wholesaler.
A traffic stop was made on Carver who ran a stop sign. A K9 was sniffed and alerted on the vehicle. Methamphetamine was found in the vehicle and on Carver’s person. She claimed that she got the meth from Craig and was delivering it to Burnette who had already paid for it. The meth found on Carver’s person was given to her by Craig in payment to Carver for acting as an intermediary. There were texts between Carver and Craig but none involving Burnette. Carver did have contact info for Burnette in her phone.
A day later, a second traffic stop was performed on Burnette after a CI told LE that Burnette would be meeting Craig at a particular Taco Bell to purchase 2 ounces of meth. Burnette was to be driving a black Jeep belonging to his girlfriend. Surveillance at the Taco Bell resulted in no sightings so LE went Burnette’s house where they saw the black Jeep. They waited for the Jeep to be driven away and followed it. Two sets of LE paced Burnette speeding and he was stopped by LE. Burnette was the driver and his girlfriend was a passenger. LE was aware of Burnette’s criminal drug history and had interacted with him for years. LE requested the appropriate documents and returned to the cruiser to start investigating the traffic stop. LE stated over the air that he hoped a K9 team was on the way. Burnette seemed a little shaky which was unusual for Burnette based on previous interactions. After investigating the documents and the occupants, LE started to write the citation. While this was happening, the K9 team arrived and LE told the K9 team that he wanted to complete the citation before deploying the K9. About 12.5 minutes into the stop, LE served Burnette with the citation and asked for consent to search, which was denied. LE then had occupants and their dog exit for the sniff which then resulted in an alert. After a final indication on the outside of the vehicle, LE let the K9 into the vehicle who then alerted on the console. Meth and other contraband was found. Girlfriend had meth in her purse. When Burnette was searched, a firearm was found in his pocket along with meth.
Burnette did not challenge the traffic stop, but claimed that the stop was impermissibly prolonged.
When LE stopped Burnette, LE was aware of the previous stop of Carver, the discovery of a significant amount of suspected methamphetamine during that stop, and Carver’s statements that she had picked up the methamphetamine from Craig and was delivering it to Burnette, who had previously purchased the methamphetamine. LE was also aware of the larger drug trafficking investigation and the confidential informant’s information that Burnette would be meeting with Craig to purchase additional methamphetamine. Further, LE testified that he had known Burnette personally for 50 years (went to school together), and that when he approached the Jeep on the traffic stop, Burnette seemed more nervous than he had been during past encounters.
Under these circumstances, the court held that the totality of the information available to LE prior to the time the tasks ordinarily associated with the traffic stop were completed or reasonably should have been completed provided reasonable suspicion to extend the stop.
The court then addressed the K9 sniff and alert. Burnette questioned the reliability of the K9 claiming insufficient training. Handler testified that he is the first and only handler that K9 has had and, at the time of the hearing, had been with K9 for more than seven years. He and K9 have been certified every year since 2015 and participated in regular K9 training for approximately 240 hours per year. K9 has been deployed 318 times, and on average approximately 4 times per month. In the instances in which K9 has alerted, narcotics have been found approximately 90% of the time. The government also submitted training certifications for the years 2015 – 2021 for the team. This evidence sufficiently supports the government’s position that K9 was appropriately reliable to conduct the dog sniff. Burnette presented no affirmative evidence to rebut the government’s evidence.
With respect to the events of the traffic stop, handler testified that, on his first pass around the Jeep, K9’s behavior changed around the open window on the driver’s side, and that he gave a final passive alert (by sitting on the ground) after smelling the seams of the passenger’s side door. Then, on the second time around the Jeep, the K9 would not leave the window on the driver’s side. Considering the information regarding the K9’s training and certification, the court found that K9’s alerts were sufficiently reliable to support probable cause to search the Jeep.
Finally, the court addressed Burnette’s claim that the search of his person was not supported by probable cause. The court held that, given the information of the CI was mostly true, that Carver claimed she was attempting delivery of meth to Burnette the day before, that Burnette was overly nervous based on LE’s long association with him, and that meth was found in a location that was accessible to both occupants (along with pills that Burnette did claim), there was sufficient probable cause for the search of Burnette’s person.
Note: This case was a mash up of an ongoing drug investigation and a couple of traffic stops. Since there was communication between the officers about the investigation and that the search of the vehicle based on the probable cause of the alert/final indication, the court had no problem with any of the searches. There is also the theory of search pursuant to arrest given that both occupants were going to be arrested for drug offenses. It’s always a good idea to put forward multiple theories of admissibility.
The decision of LE to wait to conduct the sniff until after the citation would cause unlawful prolongation in a normal traffic stop, so the only time LE should do that is when there are other indicators sufficient to supply reasonable suspicion to investigate more crimes than the traffic violation.
United States v. Young (Virginia 2022) 2022 U.S. Dist. LEXIS 72985
Traffic Stop; Alert as Probable Cause; Reliability Foundation
During an investigation into drug trafficking, a paid confidential reliable informant (CRI) told LE that Young was an associate of a gang member (Staples) and that Young was dealing drugs and was always armed with a gun on his waist, an AR and another pistol in his car. CRI gave LE a vehicle description (Kia) and a location where Young was supposed to be at a certain time. LE then set up surveillance and saw Young in the Kia. A Lincoln pulled into the parking lot near Young’s Kia. Young went to the Lincoln and got in the front passenger seat. Young then got out of the Lincoln and returned to his car. A man then walked out from a different part of the apartment complex to the parking lot. The driver of the Lincoln got out of his car and walked with that man to a nearby breezeway before returning. LE believed this was a “middle deal,” a hand to hand purchase with a middle man. LE also saw that Young had a balled up fist which he held inside the Lincoln, consistent with a reward for being the go-between for the drug purchaser and the drug dealer. The Lincoln left and Staples arrived in his SUV and met with Young at his Kia. Because there was a warrant for Staples’ arrest, LE moved in and arrested Staples’ and detained Young. Staples was in possession of heroin and crack cocaine.
While Staples’ car was being searched, a K-9 arrived and was “run” on Young’s person, alerting by sitting at his leg. Young was then Terry frisked, which revealed that he was carrying approximately $1700 in currency but no weapon and no drugs. K9 was then run on Young’s car. Young disputed whether K9 alerted on his car in any meaningful way, while handler claimd that K9 alerted at the seam of the rear passenger-side door and underneath the trunk.
Footage from handler’s body-worn camera showed K9 acting erratically while being led around the Kia sedan. K9 repeatedly lunges back toward Young, runs in circles around handler, and jumps on adjacent cars. Though handler testified that K9’s behavior was sufficiently focused for handler to determine that K9 had alerted at two places, that determination stands in contrast to K9’s failure ever to sit at a spot along the car the way she sat when alerting on Young’s leg and in contrast to handler’s comment recorded at the end of the footage that she “can’t get [K9] to focus.”
Handler told her colleagues that K9 had alerted on the Kia. A search of the sedan revealed suspected crack cocaine and heroin as well as a firearm and ammunition. Young was arrested and moved to suppress the evidence from the Kia sedan, arguing that the government lacked probable cause.
Government claimed that the totality of circumstances provided probable cause; the elements they cited were 1) a high crime area; 2) CRI tip; 3) LE surveillance evidence; and 4) K9 sniff. The court examined all of these elements. (I only will address the K9 sniff/alert element for this update.)
Handler testified that she had worked with K9 since November 2020. Handler testified that, as a handler’s relationship with a K-9 unit develops, the officer learns “[to] watch how the dog changes” in response to detecting the odor of narcotics. Handler further testified that K9’s indicators are that “she starts to breathe in a lot quicker” and that, while “her tail wags fast pretty much most of the time,” when she detects an odor “[the tail wag] becomes significantly faster than just normal tail wag.” Additionally, K9 will “become focused on that one specific area” and “tends to stay in that area to try and get as close to the odor as possible.” As to K9’s temperament, handler testified that she is “a very hyper dog but also very focused,” and that she “wants to do as much as she can and she’s all over the place a lot of times, but just still a very hardworking dog.”
The appellate court started their analysis by addressing the first alert on Young’s leg. The government characterized the K9 behavior as focused and well-behaved when alerting on Young’s leg. Even Young concedes that K9’s alert on his leg was by all appearances a normal, valid alert. Though LE did not find any drugs on Young’s person in their pat-down search, the alert made some marginal contribution to the probable cause analysis: though there are innocent explanations for why a K9 might have alerted on Young’s pant leg, the alert is most probative of the proposition that Young had at some point recently been in the vicinity of drugs. And that proposition was itself probative of the truth of the CRI’s claim that Young had drugs in his possession in the Kia sedan.
The court moved onto the second alert on the Kia. The erratic behavior captured in the body-worn camera footage is attributed to K9’s general excitability and desire to return to Young after having alerted on him. (Thus handler’s statement, in the body camera footage, “I can’t get her to focus because she’s fixated on him.”) The government further emphasizes that K9 did eventually seem to give particular attention to the seams of the rear passenger-side door and under the trunk–both places where handler suggested there might have been greater air leakage from the car. The government also leans on handler’s claim that K9 may alert simply with changes in breathing–an indication not readily discernible in the camera footage viewed at the first suppression hearing but, according to handler, discernible to an experienced handler familiar with the dog’s mannerisms. In reviewing the body-worn camera footage of K9 being run on Young’s car, handler stated that K9 “show[ed] a lot of attention on the seam of the door,” which handler noted as a “one of the changes in behavior.” The other change of behavior handler testified to noticing was when K9 was “pulling underneath the trunk,” which handler described as being an indicator that the odor of narcotics was “dropping” down from the car. Handler testified that that change in behavior was “sufficient in [her] mind” to consider K9 to have alerted on the trunk.
Young claims that the issue in determining whether a K9’s alert is whether all the facts surrounding a K9’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test. That means that even assuming a K9 is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause. Even where a K9 is fully certified, a court’s presumption that an alert provides probable cause is subject to any conflicting evidence offered. Here, Young is right that there are significant reasons to be doubtful that K9 was generating reliable information given her highly erratic and uncontrolled behavior while being run on the Kia. Most significantly, handler herself says in the body-worn camera footage that she could not get K9 to focus on the car because she was distracted by wanting to go back to Young. That assertion seems well-substantiated by handler’s having repeatedly to tug K9 back to Young’s car as K9 lunged toward the adjacent car and toward Young. What is more, though handler testified that K9’s crawling under the trunk of the car constituted a “hit” on that spot, in the video handler merely jerks K9’s leash to pull her out from under the car and turns to the nearby officer to state that she cannot get K9 to focus–after which she ends the search. That stands in contrast to hanlder’s behavior when Ki more clearly hit (and sat) on Young’s shoe. It also stands in contrast to handler’s statement that other officers can identify when K9 has hit on an odor because handler praise[s] her up like that [i.e., as she did for the hit on Young’s leg]. Handler does not appear to give K9 praise in for a hit on the car, nor does she appear to give any other indication in the video that she regards K9 as having hit on the car. In her testimony, she states that K9’s digging under the trunk of the car was treated as a hit, but in the video handler appears to be attempting to redirect K9’s attention to the seam of the trunk while K9 is under the car. That behavior is in tension with the claim that K9’s crawling under the car was indicative of a hit. Finally, handler testified that, when K9 smells something, she tends to stay in that area to try and get as close to the odor as possible. But none of K9’s behavior while being led around the car clearly corresponds to that description of how K9 behaves when alerting.
The court stated that it is a delicate matter for a court to second-guess the opinion of an expert on some issue within their domain of expertise. But an expert is not insulated from scrutiny in virtue of their expertise, particularly when their opinion can be measured against their own testimony as to their methods and practices.
Here, without calling into doubt handler’s skill as a K-9 handler, or her credibility generally, several observations constrained the Court to conclude that K9 cannot be treated as having validly alerted on the Kia sedan. First, K9’s behavior when alerting on Young’s leg was dramatically different than K9’s behavior when being run on the car. Second, while handler treated K9 as having alerted on Young’s leg by enthusiastically praising her (which she described in her testimony as itself being part of the K9’s training), she exhibited no such reaction to K9’s behavior when being run on the car. Third, handler’s various descriptions of behaviors that correspond to an alert do not clearly match anything visible in the video. K9 does not sit and does not focus on any one place on the car, except perhaps when digging under the trunk. But that action seems in the video to handler’s tugging K9 away and attempting to redirect her to the seam of the trunk. Fourth, handler’s own statement in the video that she could not get K9 to focus on the car is reason in itself to doubt the probative value of K9’s behavior. Finally, while the Court cannot interpose its own judgment of K9 behaviors in place of a trained expert’s, there is the residual fact that K9’s behavior in the body-worn camera footage is to all appearances uncontrolled. She repeatedly spins handler in circles; she lunges on other cars and at Young; she noses at trash. The only descriptions of handler’s of K9’s behavior when alerting that do not seem contradicted by the video evidence are the claims that her breathing and tail-wagging both quicken. Those behaviors are, in practice if not in principle, not verifiable. The Court could not find it reasonable to view K9’s behavior when being run on the Kia as constituting a proper alert when every verifiable indicator suggests that she was so unfocused and erratic that she was unable to perform her proper function.
To conclude otherwise would prove far too much. At the second hearing on the Motion, the government argued for a standard that would essentially insulate a K-9 handler’s judgment from judicial oversight when the K-9 unit in question was properly certified. But scientific rigor requires commitment to standards by which a practice may be measured. Here, K9 exhibited virtually none of the behaviors that handler testified to be indicative of an alert. And the Court simply cannot hold that unconditional deference must be given to a K-9 handler’s judgment, even in the face of a mountain of contravening evidence that calls into doubt the reliability of a particular K9 alert. The Court therefore found that for the purposes of the probable cause analysis here, K9 can be treated as having alerted on Young’s leg but not on the Kia sedan.
Without the evidence of a K9 alert on the car, this was a close case for probable cause. But the information that LE gathered that day, in aggregate, was sufficient for a reasonable officer to conclude that it was likely that drugs and a firearm would be found in the sedan.
LE’s observations found that Young was doing something “consistent with” drug activity. That partially corroborated the CRI’s tip, as did Staples’ presence and the drugs that were found in Staples’ car before the search of Young’s car. Finally, K9’s alert on Young’s leg made it still more probable that Young had recently been handling drugs, and that provided LE with even greater justification to believe there to be drugs in the car. Additionally, the government said little about the evidence gathered from Staples. But Staples was found to be in possession of narcotics and a firearm, and Young had been seen interacting with Staples. Those facts supported the already partially-confirmed claims made by the CRI. All of those facts, taken together, cross the threshold of creating probable cause.
Note: The court ultimately upheld the search, but was skeptical of the second alert based on comparing the handler’s testimony in contrast to the video evidence. From what I read, it seemed that K9 was super high energy and that sometimes the handler had difficulty in getting the K9 to focus. Obviously, that needs to be addressed in training as well as possibly changing up what pre-shift routine the K9 has so as to bleed off some energy. If there is something that you believe is distracting your K9, think about how you can remove that distraction. (For example, why wasn’t Young moved into a cruiser or taken further away from the Kia?) Finally, if your K9 does not alert or you can’t get her to focus, say that. Had this handler said that her dog could not focus enough to give a reliable alert, LE could have called for another K9. Here, this would not have been a problem because the court found that LE had enough without the alert on the Kia to search the Kia. You must tell the truth, even if that means your K9 needs remediation and you cannot deploy her on the call. You never want a court to make a finding that the video evidence and your testimony contradict each other, which was the case here. That is getting way to close to a “Brady” designation and a smart defense attorney will unearth that and you will find yourself being impeached by your previous testimony every single time you take the stand. That limits your and your K9’s usefulness to your agency. That is not a position you want to be in.
Hughes v. Rodriguez (California 2022) 2022 U.S. App. LEXIS 10788
Excessive Force; Qualified Immunity
Hughes escaped from a San Joaquin County Jail highway work crew and lived on the lam for three weeks. During the investigation into recapturing Hughes, LE learned the following facts about Hughes: (1) Hughes had prior convictions for possession of a stolen vehicle, weapons possession, and evading a peace officer with disregard for safety; (2) Hughes was affiliated with a violent street gang; (3) Hughes had training in mixed martial arts; and (4) Hughes was possibly under the influence of methamphetamine. These facts led LE to conclude that Hughes posed a danger to the public and the arresting team. LE went to a home where Hughes was reportedly hiding out. The tenant confirmed that Hughes was inside and gave the keys to LE after he exited the residence. Multi-agency LE created a perimeter and got air support to do a flyover. Loudspeaker announcements were made to Hughes to exit. After no response, an entry team which included a K9 team gathered in the residence’s front entryway.
At this point, the factual accounts diverge. Hughes testified at deposition that he was sleeping in the back bedroom of the home when he heard officers yelling at him from the front door to come out. He shouted back repeatedly at a loud volume, “Hold on, I’m coming out!” until he was just ten feet away from the front door. Hughes walked from the back bedroom with his hands up in a gesture of surrender. He kept his arms up and peered around the corner and made eye contact with handler. It was only after Hughes made eye contact and showed his empty hands that handler released K9, which immediately attacked him, causing Hughes to collapse into the hallway.
Once he was on the ground, LE piled on top of Hughes while K9 continued to bite. Hughes testified that he did not resist arrest, but that he moved involuntarily in response to K9 biting and pulling at his limbs. After only a few seconds, LE had Hughes face-down with his hands cuffed behind his back. Once Hughes was handcuffed and subdued, Hughes was punched in the head and face, and K9 continued to bite Hughes, for “two minutes, if not more.”
The LE account differed substantially. Bodycam footage from handler and another LE shows the law enforcement team assembled just outside the home’s open front door. In the footage, handler can be seen and heard shouting twice, “Stockton P.D., come on out or you’re going to get bit by a police dog!” However, there is no audible reply from Hughes. The camera, pointed precisely where Hughes claims to have been standing with his hands up, shows only an empty hallway. Hughes’s face and arms are not in the officers’ view. Hughes does not appear in the camera’s frame until K9 attacks, and Hughes tumbles onto the floor and into the hallway. This footage flatly refutes Hughes’ claim that he was standing in the hallway with his arms up in surrender mode. Handler then engaged in a physical struggle with Hughes. Handler testified that his bodycam was kicked off of his chest, and while the footage does not depict the kick, handler’s bodycam does turn off suddenly. Handler admits to punching Hughes in the head before Hughes was handcuffed because Hughes was grabbing his groin area, near the gun on his belt.
The footage also clearly refutes Hughes’s claim that he was beaten for “two minutes if not more,” as no more than a single minute elapses between the moment handler releases the dog and the moment Hughes is taken into custody. Importantly, however, the footage does not clearly and unmistakably depict whether punches were thrown before or after Hughes was handcuffed. LE argues that the audio from another officer’s bodycam contains the unmistakable sound of handcuffs snapping on Hughes’s hands, after which Hughes can be heard shouting “Okay! Okay!” and an off-camera officer announces that Hughes is in custody, after which the scene goes quiet, and no sounds of beating or dog biting can be heard. LE argues that the series of events indicated by this audio necessarily rebuts Hughes’s testimony that he was beaten after he was handcuffed.
The appellate court held in this case that the bodycam footage and audio did not blatantly contradict all of Hughes’s testimony. The parties disputed what happened at three key moments during the apprehension of Hughes: (1) whether Hughes shouted to officers that he would exit peacefully, (2) whether Hughes made a gesture of surrender to the officers before handler released K9 into the home, and (3) whether handler punched Hughes in the head and face, and allowed K9 to bite Hughes, even though Hughes was handcuffed and subdued. The first two claims were clearly shown to be false based on the body camera footage, leaving the issue of whether LE punched Hughes before or after he was handcuffed. In addition, while the initial use of the K9 was clearly proportional to the threat posed by Hughes before he was handcuffed, whether the post-handcuff beating and dog-biting occurred, and whether it was proportional to the threat handler reasonably perceived by a handcuffed Hughes, were questions for trial in front of the trier of fact. Therefore handler was not entitled to qualified immunity as to this issue.
Because Hughes was an escaped prisoner, the court also addressed his alleged 8th Amendment claim (cruel and unusual punishment where Hughes had to prove the actions were malicious and sadistic). First, the court examined the extent of Hughes’s injuries. Here, Hughes testified that he suffered dog bites to his left leg, abrasions to his head and face, and bruising on his upper right thigh. He claims he has scarring and residual soreness in his left leg, but he makes no allegations that these injuries interfere with his work or daily life. The court concluded that these injuries were relatively minor, and this factor weighed slightly in favor of the defendant law enforcement officers. LE here did not know whether Hughes was armed and, given his prior convictions for weapons possession, had reason to suspect that he was. Hughes “remained defiant, having ignored [the officer’s] warning that he was about to release a police dog.” “Under these objectively menacing circumstances,” handler was “entitled to assume” that Hughes “posed an immediate threat to his and to the other deputy’s safety.” “Given the gravity of the risk to law enforcement,” the court concluded that these factors weigh heavily in favor of the officers. Finally, the court looked at efforts made to temper the severity of LE response. Hughes had three weeks to turn himself in. On the morning of his apprehension, LE used loudspeakers urging Hughes to come out of hiding. LE knocked on the door of the residence repeatedly. When LE opened the front door to the home, handler gave Hughes two warnings to come out or face a K9. Hughes did not avail himself of any opportunity to turn himself in, respond to any of LE’s attempts to make their presence known, or heed any warning that force was coming. Thus, this factor weighed heavily in favor of LE. While the initial use of the K9 was clearly proportional to the threat posed by Hughes before he was handcuffed, whether the post-handcuff beating and dog-biting occurred, and whether it was proportional to the threat handler reasonably perceived by a handcuffed Hughes, are questions for the trier of fact. . And “no particularized case law is necessary for a deputy to know that excessive force has been used when a deputy sics a canine on a handcuffed arrestee who has fully surrendered and is completely under control.”
Dissent argued that the audio should have been granted the same status as the body cam footage and based on the lack of sounds of pain and biting after the distinctive click/click of the handcuffs, that should have been sufficient that Hughes’ version was false.
Note: “Attack” is not a court word for the government, so don’t use it to refer to your K9’s actions. K9s are deployed; they engage the suspect; they release. Word discipline is really important in this area of the law because the push by the criminal defense and personal injury industry is to portray K9s as wild meat missiles focused on destroying the target. That is not a word picture we want to promote nor is it the truth. Instead, your highly trained partner obeys commands from you that are appropriate, especially the command to release.
The Eighth Amendment argument is added because Hughes was technically a prisoner (although an escaped one). The only remaining issue is whether thee was any force applied after Hughes was subdued. Everything up to the point of the handcuffing was found to be lawful.
The dissent was talking about what evidence should be used to make a summary judgement decision. While there was precedent that body cam footage could be used, there was no precedent on whether the audio could be used. This judge wanted to make that decision, but the rest of the panel was unwilling to go that far. This is another good reason for body cam. More often than not, it supports the actions and decisions of LE; or shows that that the decision were inappropriate and the necessary actions can be taken (such as agency discipline, remedial training, etc.)
Commonwealth v. Decarlo (Pennsylvania) 2022 Pa. Super. Unpub. LEXIS 934
Traffic Stop; Alert as Probable Cause; Inevitable Discovery Doctrine
Traffic stop of a rental Kia for speeding by interdiction LE. As LE came up behind the Kia, it slowed to the speed limit. Driver also had his window unrolled and his hand was tapping on the roof near the seam of the door. The driver yielded at 1324 hours. LE saw that there were two cell phones, one in driver’s hand and one near the gearshift. Driver said that he was coming from New York. LE returned to the cruiser at 1329. Driver had drug and weapons crimes on his record, although he was clear of wants and warrants. LE prepared a warning for the speeding. At 1339, LE approached the vehicle with the completed citation. The gear shift cell phone was gone. Based on the foregoing, LE believed driver was involved in drug trafficking. LE got driver out of the car to talk to him. LE asked about drugs and driver denied. Driver then consented to a Terry frisk. Nothing was found. LE asked for consent to search the Kia and driver refused. LE then called for a K9 team about 1342. At 1421, the K9 team arrived and at 1428.
During the K9 sniff (court uses the word search which is not accurate), K9 moved left to right around the Kia. As handler reached the rear of the Kia, K9 stopped his left to right movement and turned his head towards the rear, driver’s side portion of the Kia. Handler testified heard deep, audible nose breaths at the same time. Handler took K9 around the Kia again and K9 alerted a second time on the rear, driver’s side portion of the Kia along the seam of the trunk. K9 also attempted to belly crawl under the Kia. Handler testified that this is not typical behavior and that K9 was attempting to locate the source of the odor. At 1429, handler informed driver that the dog alerted to the back corner of the Kia near the trunk area. A search of the Kia at 1430 revealed contraband.
At the time of the search of the Kia, one standard of law was in effect regarding warrantless vehicle searches. While LE acted in accordance with applicable law when he performed a warrantless search of the Kia based solely on probable cause, Decarlo was entitled to the benefit from the change in law pursuant to Alexander. This meant that there had to be additional exigent circumstances for the car to be searched and the court found that there were no exigent circumstances in the case.
The court also shot down a good faith exception. The evidence was excluded.
Note: This seems wrong, but depending on your state, generally any change in law that accrues to the benefit of the defendant, that change is retroactive as applicable to the defendant. I think this is a wrong decision, given that the court recognizes LE was lawfully acting on the state of the law at the time. Good faith should have saved this because the exclusionary rule is to deter bad behavior. There is no appropriate deterrent effect when LE are punished for acting in accordance with existing law.
People v. Maybon (Illinois) 2022 Ill. App. Unpub. LEXIS 640
Traffic Stop; Prolonged Detention
Traffic stop for speeding. Maybon was the passenger. A K9 team responded as back up. Driver couldn’t tell LE their destination and Maybon supplied conflicting information. Their stories continued to diverge as LE interacted with them; driver was in a police cruiser while LE was working on the citation. Both officers were communicating about the stories via text and computer. About 7-8 minutes into the stop, K9 was deployed and alerted. Large quantities of cocaine and pot as well as cell phones. The citation was not finished at the time of the alert.
Maybon complained that LE improperly prolonged the traffic investigation to have the K9 perform a sniff. The court rejected Maybon’s arguments and concluded that the stop was not unreasonably prolonged. First, the stop was brief. LE stopped driver’s vehicle at 12:20 p.m., K9 team arrived at the scene at 12:26 p.m., the K-9 alerted at 12:29:20 p.m., and LE completed writing the warning between 12:32:00 and 12:32:45 p.m., when he told driver that he would print it out for him. A 12-minute stop is generally not unreasonably long. The court also held that LE diligently processed the warning and that questions about travel destinations did not extend the processing of the traffic investigation. LE questioned driver about his travel plans while also processing the warning, including running a warrant check and checking on the validity of driver’s licenses. Throughout their conversation, he kept driver updated on his checks. During the processing, the K-9 performed the free-air sniff. LE testified that he did not call for handler to come, and handler testified that he was in the area, learned that LE had initiated a stop, and drove there to assist. Driver’s car was stopped at 12:20 p.m., the K9 alerted at 12:29:20 p.m., Melzer finished the written warning (but had not printed it) at 12:32:00 p.m. And, although completed, the warning still needed to be printed. Under the totality of the circumstances, LE was diligent and did not impermissibly prolong the search.
Note: This court went into some mathematical gymnastics to determine the actual “Rodriguez” moment, but the upshot was that the alert happened before the completion of the traffic investigation and LE was diligent in pursuing that investigation. Those are your two elements for determining prolonged detention: 1) Was there no diversion from your traffic investigation at any point (prior to the K9 alert) and 2) Did you diligently pursue the traffic investigation until the K9 alert? If the answer to both is yes, you should be good.
United States v. $142,140.00 (Ohio) 2022 U.S. Dist. LEXIS 69489
Currency Sniff; Package Sniff
Shaw presented two carry-on bags and 1 checked bag to the TSA for pre-flight screening. The checked bag alerted for a bulk mass. Inside the lining of the bag was a large amount of currency in small bills rubber-banded into stacks. Shaw was contacted at his gate and taken to the office for questioning about the currency in his checked bag. Shaw claimed the money and asked for an attorney. LE told Shaw he was not under arrest and was free to leave at any time. Meanwhile, a K9 team was deployed and the K9 sniffed the checked bag and alerted for the presence of narcotics. In his carry-ons, five cell phones were found, and one had trafficking texts.
Shaw moved to dismiss the complaint and regain his money. At this stage, the government is required to show why it believes the money had been used or will be used in drug trafficking. The appellate court found that the government met their burden. The complaint alleges numerous facts that, taken together, satisfy the requirements, including the following: (1) TSA screening detected the presence of a bulk mass in Shaw’s suitcases, (2) a search of Shaw’s luggage revealed over $140,000 in U.S. Currency: (3) the seized Currency was concealed in the interior lining of Shaw’s bags and rubber banded together in small bills; (4) a certified canine alerted to the presence of narcotics on the seized Currency; (5) LE found five cell phones, including two burner phones in Shaw’s briefcase; (6) the cell phones contained suspicious text messages and multiple contacts with known felons; and (7) one of the phones contained pictures of large marijuana plants.
When viewed in the aggregate, the above allegations are sufficient, at the pleading stage and viewed in a light most favorable to the Government, to support a reasonable belief that the United States could establish by a preponderance of the evidence that the currency was properly subject to forfeiture and had a “substantial connection” to illegal drug trafficking activities.
In addition, while a K9 alert may not be sufficient standing alone, many courts (including the Sixth Circuit) have nonetheless found that K9 alerts to the presence of narcotics may contribute to a finding that forfeiture was warranted under certain circumstances.
Note: There is a lowered expectation of privacy at airports as the need for secure operations is heightened. In addition, passengers are informed that their bags will be searched and their remedy is to not fly. That allows for the search of the checked bag. Then the government met its preponderance burden that the money was proceeds from drug trafficking in part by the alert of the K9 that the money smelled like controlled substances.
Barney v. State (Wyoming) 2022 WY 49
Traffic Stop; Attenuation Doctrine; Prolonged Detention (as an afterthought)
Barney was stopped for speeding. The car was a rental but Barney was unable to produce the rental agreement so that handler could make sure the vehicle was not stolen. Barney searched his phone for information about the agreement while handler asked questions about his travel and whether he had any weapons or anything illegal in the vehicle. Barney denied this. Eleven minutes into the stop, handler spoke with a back up officer who had arrived in the meantime. Handler told the back up that Barney did not have a rental agreement and due to the lack of same and his answers to questions, handler wanted to deploy K9 for a sniff. Handler gave back up Barney’s license and discussed how to obtain the rental agreement.
Barney was still looking in his phone when handler told Barney he was going to conduct a free air sniff. Barney denied consent. While this was happening, back up was calling in Barney’s license. K9 alerted on the vehicle. At this point, there was still no evidence of a rental agreement but the dispatcher was still attempting contact with the rental company.
Handler informed Barney that the K9 alerted and told Barney to exit so that LE could search. Barney refused, locked the doors and took off when LE approached the car to break the window. Mr. Toad’s wild ride ended with Barney in a ditch. There were footprints leading away from the crash and ending at a cache of marijuana.
The appellate court did not hold whether the LE conduct was constitutional. Rather, it held that since LE conduct of attempting the search was attenuated by Barney’s flight, it was not subject to suppression.
The attenuation doctrine is an exception to the exclusionary rule. Under the attenuation doctrine, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.
The court considered three factors in determining whether the attenuation doctrine applies. The first factor examines the ‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional conduct. The second factor considers the presence of intervening circumstances. The third factor examines the purpose and flagrancy of the official misconduct.
As applied here, the court held that the first factor favors suppression because a “substantial time” did not elapse between the alleged unlawful police conduct and when the evidence supporting Mr. Barney’s charges was obtained. Handler initiated the traffic stop around 4:36 p.m. The challenged police conduct occurred within the first 20 minutes of the stop (the questioning of Barney, the attempt to obtain information about the rental agreement, etc.) Barney refused to exit his car for the next 30 minutes. Though it did not contain a video of the high speed chase, the record as a whole strongly suggested the entire incident, from start (traffic stop) to finish (marijuana discovery), lasted no more than a couple hours. Consequently, substantial time did not pass between the alleged unlawful conduct and when the evidence supporting the charges was obtained.
The second factor, on the other hand, strongly favored attenuation. When Barney voluntarily fled, his conduct reflected new, distinct crimes, including aggravated assault and battery, interference with a peace officer, aggravated fleeing or attempting to elude, and reckless endangering, and seriously endangered public safety. He placed LE in danger, as both had to move out of the way of his car when he fled. Finally, during the high speed chase, he placed LE and the public at risk, driving in the dark with no headlights, driving over 100 miles per hour on the interstate, forcing other vehicles off the interstate, and running several stop signs after leaving the interstate. The appellate court held these intervening circumstances supported attenuation.
The third factor also favored attenuation. The exclusionary rule exists to deter police misconduct. The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.
One of Barney’s primary contentions on appeal is that handler unconstitutionally prolonged the traffic stop by asking back up officer, who did not have a computer, to check his driver’s license and whether he had a valid rental agreement. Barney may not raise this issue for the first time on appeal. Not only did the district court not address the issue, but the record is undeveloped for our review. Mr. Barney assumes an officer with a computer could more quickly verify a driver’s license and conduct a rental car agreement check than a dispatcher could perform the same task, but the record contains no such evidence. Therefore, this was not misconduct. Next, Barney argued handler expanded the scope and duration of the stop by asking him questions about drugs and conducting a K9 sniff. Barney may raise this issue on appeal but its constitutional support is weak, as his continued detention following the traffic stop to verify his authority to operate the rental vehicle appears constitutional under the circumstances. Handler detained him only for a period of time sufficiently necessary to issue the traffic citation and to complete his investigation into Barney’s authority to possess and operate the rental car. The questioning and the K9 sniff both occurred before dispatcher confirmed Barney had a valid rental car agreement approximately 51 minutes into the stop.
Finally, Barney asserted handler prolonged the stop by not looking at his rental emails or taking him up on his offer to call the rental company. These issues on appeal, too, lack support. As to the emails, Barney never located his rental agreement. In addition, Barney’s statements to handler about his emails were equivocal, justifying handler’s decision to verify the rental. As to the phone call, Barney cites no authority that LE must use the offered services of stopped drivers to locate rental agreements. Nor does he explain how a call from him would have made the verification faster than dispatcher’s call.
However, even if the Fourth Amendment issues Barney preserved on appeal amounted to constitutional violations, there was little to suggest handler’s conduct was purposeful or flagrant. Purposeful and flagrant misconduct is generally found where: (1) the impropriety of the official’s misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed in the hope that something might turn up. That handler may have violated Barney’s Fourth Amendment rights does not satisfy the standard. Handler’s questioning was not purposeful or flagrant under the circumstances of this traffic stop.
The appellate court then concluded that Barney’s flight and the circumstances surrounding his flight broke the causal connection between the alleged unlawful police conduct and the evidence supporting his charges. The evidence is therefore admissible and we affirm the district court’s order denying his motion to suppress.
Note: The actual holding is that the attenuation doctrine permitted the admission of the evidence (marijuana). To get there, though, the court had to address whether there was purposeful or flagrant conduct, which it found that there wasn’t on the part of the handler. The court did not go on to determine whether there was any Fourth Amendment violation, but in my opinion, there was not because the sniff took place simultaneously with the on-going traffic investigation.
Carpenter v. Itawamba Co. Jail (Mississippi) 2022 U.S. Dist. LEXIS 66463
Excessive Force; Prisoner Lawsuit (Pro se); Qualified Immunity
Carpenter alleged in his civil rights complaint that LE beat him, let a K9 attack him and tasered him multiple times.
The facts presented by LE were that they were dispatched to a panic alarm at a residence. When LE entered the house, they encountered the elderly victim in a recliner with her throat cut. She was deceased. LE cleared the residence. Neighbors gave LE a description of a man with a knife who was seen earlier. Investigators arrived and asked LE to clear another building which they did. When LE returned to the scene, they heard a male voice yelling, “Lord (or God) forgive me.” A perimeter was set up and a K9 team responded.
The K9 team was deployed near where the male voice was heard. Handler made two K9 announcements. LE heard more yelling so they moved in. LE then saw Carpenter and told him to get on the ground and show his hands. K9 handler gave more K9 warnings. Carpenter started backing away, so handler released the K9 to apprehend him. As K9 started to apprehend Carpenter, he kicked towards K9. At that point, K9 bit Carpenter on his lower leg. Carpenter then tried to get K9 off his leg by hitting him; K9 then released Carpenter’s leg and bit his arm. K9 then went back to Carpenter’s leg. There is no evidence that handler acted to prolong K9’s interaction with Carpenter; instead, Carpenter’s continued vigorous resistance to arrest extended the encounter. Although K9 had Carpenter by the leg, he continued to be combative, resisting arrest. At that point, handler took out his Taser and deployed it in an attempt to subdue Carpenter. This initial shot was ineffective, however, because one of the probes did not stick. Another LE was able to deploy a successful Taser shot. Carpenter nonetheless kept fighting and resisting. In their attempts to subdue and arrest Carpenter (a potentially armed murder suspect), LE began with verbal commands, then tried the K9, then the Taser. None of these methods had any effect. Instead, LE had to physically subdue an extremely combative suspect. Eventually, it took several LE to get Carpenter in handcuffs.
Carpenter claimed LE used excessive force to effect his arrest. LE claimed qualified immunity.
To overcome the qualified immunity defense, Carpenter must meet a two-pronged test. He must first allege a violation of a clearly established constitutional right. Carpenter must also allege facts showing that LE’s conduct was objectively unreasonable in the light of the law established at the time of the incident. It is Carpenter’s burden to rebut the defense of qualified immunity by establishing a genuine fact issue as to whether the official’s allegedly wrongful conduct violated a clearly established law.
Since Carpenter did sustain injuries, the court first addressed whether the use of force by LE in this case was objectively reasonable both the initial bites and then the continuing bite until Carpenter was handcuffed.
Use of K9 Force to Apprehend Carpenter
In the present case, considering the totality of the circumstances from the perspective of a reasonable officer at the scene, handler’s use of K-9 force to initially subdue Carpenter and keep him subdued until he was fully handcuffed – was reasonable. The first Graham factor – severity of the crime – weighs in favor of the use of K9 force. Handler was one of the first Deputies on the scene – and found the deceased victim of a horrific murder whose throat had been cut. As such, all other law enforcement officers at the scene were aware that Carpenter was a murder suspect. This Graham factor clearly favored LE.
The second factor – whether Carpenter was an immediate threat to the officers and to the public – also favored handler. LE was aware that Carpenter was both violent and potentially armed.
Further, Carpenter had absconded into a wooded area behind the home, leaving LE to search for him on unfamiliar ground. When they located him, after repeated announcements of police and K9 presence and commands to get on the ground or put his hands up, Carpenter still acted in an aggressive manner, threatened LE, backing up. Under these circumstances, any reasonable officer could have perceived Carpenter to be an immediate threat to the deputies. Under these facts and circumstances, it was objectively reasonable for handler to initially release K9 to subdue Carpenter.
In respect to the third Graham factor, Carpenter actively resisted arrest and attempted to evade arrest by fleeing. LE reported that Carpenter continued to resist arrest until he was properly cuffed and subdued. Handler made many announcements regarding LE’s presence – and that he had a K9 and that Carpenter was subject to being bitten. Despite the many specific warnings, Carpenter did not comply. When Carpenter saw LE, including K9, he refused to raise his hands higher than his waist, took an aggressive posture, threatened LE, and began to retreat. Further, he tried to kick and fight the K9 – and made no attempt to comply or surrender to LE. This factor weighed in favor of handler’s use of K-9 force.
Use of K-9 Force to Subdue Carpenter Until He Was Cuffed
It was also objectively reasonable under the circumstances for the K9 to continue contact with Carpenter until he was secured and handcuffed. After K9 made initial contact, Carpenter still tried to kick him and was actively resisting arrest. Further, LE still did not know if he was armed – and had reason to believe that he was still in possession of a knife. As such, handler could reasonably believe that if K9 was called off before Carpenter was handcuffed, he could have harmed an officer. As such, it was also reasonable to believe that Carpenter might have attempted to flee once released by the dog.
Handler’s use of K9 force to initially apprehend Carpenter – and continue to subdue him until he was handcuffed – was an objectively reasonable use of force when considering the totality of the circumstances during the arrest. Certainly, this was not a case where LE were “plainly incompetent or … knowingly violate[d] the law.” Carpenter had not proved a Fourth Amendment constitutional infringement, and handler was entitled to qualified immunity on this claim.
Note: The court used the same analysis to determine that the use of the Tasers was objectively reasonable as well. In addition, injuries were not severe, which indicates the level of force was not great. This is not necessarily a factual thing (minor injuries mean minor bite) but big injuries trigger further assessment on the excessive force continuum.
Haldorson v. United States (North Dakota) 2022 U.S. Dist. LEXIS 67359
Sniff as Probable Cause; Curtilage
Two controlled buys were made from Haldorson by a CI. After the second buy, Haldorson was stopped by LE. LE made up excuses to buy time until the drug investigators could arrive and take over.
When they did, Haldorson’s car was searched and it contained drugs, fireworks and suspected pipe bombs. The explosives were rendered safe by ATF. Haldorson said he lived with his parents and LE responded to the parents’ residence. They explained what was going on and asked for consent to search the residence for additional explosives. There were narcotic related items but no explosives. The parents then told LE that Haldorson was living with a woman and gave a general description of the area and apartment. At the apartment, Haldorson’s roommate gave consent for LE to search the common areas, but LE also searched Haldorson’s room via plain sight, using keys from Haldorson. They found explosives, then backed out and obtained a warrant. Finally, LE went to some storage garages which were in the gates of an apartment complex. A K9 sniffed in front of the garages and alerted on both. A warrant was obtained and explosives and firearms were found. Haldorson was convicted and appealed, claiming, among other things, that his attorney failed to file a suppression motion to exclude evidence found in the storage garages and therefore, his counsel was ineffective.
The one appellate ground that is applicable to this update is the assertion that the search warrant was invalid because it was based on information received from a warrantless police dog sniff search of the garage.
Haldorson argued that the garage evidence should have been suppressed as fruit of the warrantless K9 sniff search of the garage. The appellate court applied the US Supreme Court case of Florida v. Jardines which relied on a trespass on the curtilage theory (people do not expect LE to bring a drug sniffing K9 to their homes to sniff the door jamb).
Here, the appellate court held that Haldorson could not show a violation of his Fourth Amendment rights under the trespass theory because LE did not trespass upon a constitutionally protected area. Haldorson contends that the area in front of his garages, like the front porch in Jardines, constituted the curtilage of his home. However, to determine the scope of curtilage, courts look to the factors enumerated in the Supreme Court’s decision in United States v. Dunn. These factors are (1) the proximity of the area to the home; (2) whether the area is in an enclosure surrounding the home; (3) Haldorson’s use of the area; and (4) whether steps have been taken to protect the area from observation. Id. The first factor, proximity to the home, weighed against Haldorson’s position. The garages and the area in front of them were not close to his apartment but rather were detached and in the parking lot of the apartment complex. Nor were the garages in an enclosure surrounding his apartment as required in factor 2. For factor 3, the court looked to Haldorson’s use of the area, which was not activities intimately linked to the home, but instead was a common space where residents could go and access their garage units. Finally, the court held that there were no steps taken to protect the area (the area in front of the garage) from observation.
Weighing all of the Dunn factors, the Court concluded that the area in front of Haldorson’s garages was not within the curtilage of his home and therefore there was no trespass and no 4th Amendment violation. Finally, the court held that Haldorson could not have a privacy interest in the garages such as he would in his home because the garages were located in the common parking lot of an apartment complex. The accessibility of the area where the K9 sniff was conducted in Haldorson’s case makes it more akin to a sniff of a car on the street or luggage at an airport than a sniff of an apartment.
Therefore, since the motion to suppress would not have succeeded, trial counsel was not ineffective and this ground for appeal was denied.
Note: This is a good case to refresh the understanding of curtilage as it applies to K9 sniffs. There were a bunch of other grounds for appeal, but I have not addressed them here as they are not relevant to the purposes of this update.
United States v. Fickas (Minnesota) 2022 U.S. Dist. LEXIS 67598
Traffic Stop; Prolonged Detention; Sniff as Probable Cause
Vehicle followed because LE/handler believed the driver was a person wanted on an active domestic violence warrant (and vehicle was registered to the victim and there was a female passenger). Driver stopped for turn signal violation. When LE activated the emergency lights, the occupants of the vehicle engaged in furtive movements while looking back at LE. Driver indicated with his arm out the window that he was going to pull into a parking. LE followed driver as he did that.
Driver was instructed to show his hands through the open driver’s window. Driver complied. When LE approached, he immediately recognized that the occupants were not the DV warrant suspect and the DV victim, but Fickas and a female passenger. Fikas was asked to get out of the vehicle. and gave his identifying information to LE. He was handcuffed and put in a cruiser. LE then attempted to remove the passenger, but there was a struggle and LE spotted paraphernalia in the door pocket while this was happening. After getting the passenger subdued, handler then deployed K9 to sniff the vehicle for drug detection. Between the driver’s door and rear-passenger door of the Acadia, K9 alerted the officers to the presence of the odor of narcotics and gave a final indication. Without obtaining a warrant, the officers then searched the interior of the Acadia in its entirety except for several bags located in the trunk of the car. Contraband was discovered and the vehicle was towed and more thoroughly searched via search warrant.
The court first addressed the initial stop. The court held that since LE knew the vehicle belonged to the DV victim and he reasonably believed that the driver was the DV perpetrator (driver had extensive tattoos that LE could see prior to the stop, similar to DV perpetrator) and the passenger was believed to be the DV victim, the initial stop was valid to ensure that the DV order was not being violated.
However, since the testimony was that the reason for the stop was solely the investigation into the DV restraining order (not sure why LE didn’t mention that the stop was also for the signal violation), the court held that once LE determined that the occupants were not the people named in the order, the reason for the stop expired and they should have been released at that time. The court found that not one of the justifications for extending the stop beyond the identification of the occupants of the vehicle constitutes reasonable suspicion for doing so. The motion to suppress was properly granted.
Note: If there was turn signal violation (driver signaled left and then made a lane change to the right), that could have been a traffic violation and another ground for investigation. However, that wasn’t argued, forcing the government to argue that there were other indicators of unlawful conduct which allowed for prolongation which were not very convincing. If there was a traffic violation, it should have been testified to and argued as part of the reason for the stop, and that the traffic investigation would have allowed for investigation into that crime which would then allow LE to have all occupants exit and lead to the discovery of the contraband. Arguing all the avenues of admissibility is always good.
United States v. Frazier (Utah) 2022 U.S. App. LEXIS 9912
Traffic Stop; Prolonged Detention
LE saw a black man driving a white SUV with Kansas plates headed north on an Interstate. The vehicle was slightly speeding, about 5 mph over the limit. LE pulled out and followed, noting over several miles that the vehicle drove anywhere from 5 mph over to 8 mph over. There was also a signal violation for a lane change. LE confirmed that the vehicle was not stolen, but pulled the vehicle over anyway.
When LE approached, he saw 2 bags in the back, one of which was a duffle bag that looked somewhat new. Driver, Frazier, was reluctant to roll his window down, but did lower it about 6 inches total. There was a bottle of spray deodorizer in the center console. Frazier produced an Iowa license, even though LE believed he had another license in his wallet. It was actually an ID card from Missouri. The vehicle was a rental, but Frazier did not have a copy of the rental agreement. While he was looking on his phone for the agreement, LE broke off and looked into the back of the vehicle. LE then asked his travel plans. Frazier responded but LE repeated his questions. LE asked additional questions about his travels and then went back to his cruiser to radio for a K9 team. He made several attempts and finally had dispatch contact them and have them respond. This took about 3 minutes and then LE started the citation at that point. LE then called in for Frazier’s criminal history and also found out from the plate reader system where the vehicle had been in the last few days. Frazier was in Kansas, headed west, and 3 days later was stopped in Utah headed north. The rental company confirmed that Frazier was lawfully in possession of the vehicle. The K9 arrived, Frazier was removed and Terry frisked (a knife was found), and the K9 alerted on the vehicle. Frazier did have a 2006 conviction for manslaughter, but nothing since then. Another search of Frazier revealed a .22 caliber pistol in his pants pocket. The vehicle was searched and the non-duffle bag held cocaine and fentanyl.
At the suppression motion, LE testified that the duffle bag made him suspicious because he had seen “a lot of large loads of narcotic that have just been one duffle bag sitting in the back.” LE said he also believed that Frazier was slow in answering his questions as if he was searching for the answers instead of just answering them. He also believed that Frazier was trying to mask odors in the case with the spray. LE then admitted that he smelled no air freshener or drug smell when the window was rolled down. The license plate information solidified his suspicion of drug trafficking because a short turnaround on a long trip was indicative of illegal activity.
Frazier complained that LE impermissibly prolonged the stop, first, by spending several minutes trying to arrange the dog sniff before beginning to work on the citation, and then by interrupting his work on the citation to search the license plate reader database.
The appellate court held that LE’s efforts to arrange for a K9 sniff diverted from the traffic-based mission of the stop and therefore impermissibly extended the duration. The government did not argue otherwise so they were left with trying to establish additional probable cause that would justify the request for a K9 team. The court first held that they could only consider the facts known to LE before the diversion to call for a K9 team. The court held that the duffle bag was not a valid basis for this conclusion and that although there was air freshener and the reluctance to roll the window down all the way, there was no smell of air freshener or controlled substance. Frazier’s actions and responses to questioning was not unusual/or explainable by the fact he was simultaneously searching his phone for the rental information. The appellate court held that LE’s suspicion was based solely on his subjective interpretation or in other words, a hunch. Even taking into account his two IDs (which had the same information on them, just issued by two different states) and the fact that the vehicle was a rental, the court held that even under the totality of the circumstances there was no additional reasonable suspicion that allowed for the prolongation. The court additionally commented that the license plate reader search also exceeded the scope of the traffic investigation because a license plate reader search is aimed at detecting evidence of ordinary wrongdoing rather than ensuring the safe operation of vehicles on the road. Therefore the court held that LE clearly diverted from his traffic-based mission when he ceased working on the citation to consult the database.
Note: Because it was clear that LE was not working on the traffic investigation when he took 3 minutes to try to find a K9 team, the motion to suppress was granted. The fact that LE also consulted the plate reader just added to the court’s holding of prolongation. Best practice is to start the investigation by investigating the information necessary in a traffic investigation, and while waiting for answers, summon a K9 team. Just an aside, because the court found a violation, they also concluded that the license plate reader information was not part of the traffic investigation. That is problematic, which is what happens when you have bad facts: you get bad holdings. A plate reader database consultation should be a common investigative tool for all traffic stops. Now this jurisdiction has an appellate decision that says it is not.
Commonwealth v. Judge (Massachusetts) 100 Mass. App. Ct. 817
Alert as Probable Cause; Strip Search; Reliability Foundation
LE on patrol in an area near a particular hotel that LE knew to be a hot spot for drug activity. LE sees 5-6 people in the parking lot so he parks and observes. For the next hour, LE observes that the people stay in the parking lot but members of the group would occasionally enter two vehicles — a Chevrolet Impala and a Honda Pilot — either to retrieve an object or to sit inside. LE saw a woman exit the Impala and then reached into the trunk with Judge standing next to her. She obtained a small handbag, looked around as if they were looking for something or someone (counter surveillance), and then handed the handbag to Judge. Judge got into the driver’s seat of the Impala while the woman waited outside. When Judge got out, the woman got into the driver’s seat. LE thought this appeared to be a drug deal. The group started to break up, and back up had not yet arrived, so LE drove into the lot and parked near the Impala, illuminating the area with his cruiser’s white lights. LE got out of his cruiser and walked over the Impala. Looking through its windows, LE saw a white powdery substance on the center console. LE ordered the members of the group and the occupants of the car to put their hands on the hood of the Impala. When back up arrived, all were handcuffed and put in cruisers. A K9 team was then requested.
When the K9 team arrived and conducted a sniff of Judge. The K9 alerted to his backside. Judge was transported to the police station where he was strip searched. A packet of cocaine was between his butt cheeks.
Judge complained first that the initial seizure by LE was when LE shown white lights on the area. The government argued that the seizure did not occur until LE told Judge to put his hands on the hood of the Impala. LE did not block the Impala’s path, Judge was not in the Impala when LE pulled up, and the use of white lights to illuminate the area did not constitute coercive police power. Therefore, the court held that seizure did not occur until LE ordered Judge to put his hands on the hood.
The court then addressed the justification for the stop/seizure. Here, the officer knew from personal experience that the hotel was a common location for suspected drug transactions. The officer observed the Judge and his companion conduct “counter surveillance” while the two retrieved an item from the Impala’s trunk. Each then took a turn sitting in the driver’s seat with that item. Based on this unusual sequence of events, it was reasonable for the officer to believe that he had just witnessed a drug transaction. This suspicion strengthened into probable cause when, prior to the moment of seizure, the officer observed white powder on the Impala’s console adjacent to where the defendant had been sitting just moments before. At that time, the facts known to the officer established probable cause to believe that the defendant had engaged in a street-level drug transaction. Therefore, the seizure (stop) was legally justified.
The court then addressed the validity of the strip search. The court first found that LE had sufficient probable cause to arrest Judge on drug charges. A strip search of an arrestee, however, constitutes a substantial intrusion on one’s personal privacy rights, and is constitutionally impermissible absent a particularized indication of concealment. Thus, LE had to possess probable cause to believe that Judge was concealing contraband that LE could not reasonably expect to discover without forcing the arrested person to discard all of his or her clothing. Probable cause for a strip search requires some affirmative indication that drugs or other contraband are being concealed in areas such as the crotch or groin.
Therefore, since the government relied solely on the alert by the K9 on Judge’s backside, the court addressed first whether the K9 was sufficiently reliable so as to be able to depend on his alert. The court held that the K9 had undergone 480 hours of original training, properly trained and up to date on bimonthly trainings. The handler testified to her alert behaviors in this case. Here, K9 was asked to sniff another person present and gave no alert. That person was removed and Judge was presented to the K9 for sniff. K9 then displayed her usual alert behaviors and finally sat on the ground with her nose nudging Judge’s buttocks.
Judge complained that because the K9 was not certified, K9 was not reliable. However, the government presented evidence that K9 and handler had received extensive training from an independent program even prior to being put to work for the police department as a drug-detecting team. The training culminated in certifying, in a controlled setting, that the team could successfully detect drugs. The team had worked together for three years prior to the suppression hearing, and during that time, had engaged in bimonthly continuing education trainings through the police department. Finally, due to the dog’s food reward system, her accuracy in detecting drugs in a controlled setting was established on a daily basis.
The court then held that the K9’s alert to Judge’s buttocks area provided probable cause for a strip search because the State provided evidence of the dog’s reliability, including the dog and its trainer’s extensive training and the procedure followed during the dog’s search at the scene, which included seeing the white powder on the center console.
Note: This is an interesting case. I am not sure whether this K9 was solely a drug detection K9 or if it was a dual purpose K9. If a K9 is dual purpose, a handler should be very careful about having that K9 sniff a person. Also, there was no mention of the K9 sniffing the vehicles. It would make sense to sniff both vehicles first and then determine whether the individual(s) needed to be sniffed.
United States v. Miles (Indiana) 2022 U.S. Dist. LEXIS 64649
Curtilage; Alert as Probable Cause; Good Faith Exception
Investigation into drug trafficking included controlled buys by a CI. A search warrant was obtained for the residence where the buys took place. On the third and final buy, CI met with Miles and a female on the porch of the residence. The search warrant included any vehicles on the premises. The search warrant was executed and a K9 was called in to sniff vehicles on the premises. The K9 alerted on all the vehicles, but only one had contraband, for which Miles claimed ownership.
The Court found that the search warrant was valid when it described any vehicle on the premises could be searched (since vehicles were being used in the drug trafficking investigation by the target). The court also found probable cause to search the Honda resulting from the K9 sniff. Miles tried to claim that the sniff violated the curtilage, but LE was already on the premises based on the authority the search warrant conveyed. Therefore, there was no curtilage argument.
Finally, the government argued that even if the warrant to search any vehicle was invalid, the good faith exception applies. Here, the court held, the officers who executed the search had a reasonably good faith belief that a search of “any vehicles on said premises” was in accord with the Fourth Amendment. The officers in good faith believed they had a valid search warrant based on their controlled buys and the Magistrate Judge’s determination that any vehicle on the premises could be searched. The Court found that “the warrant on the whole was not so deficient in establishing probable cause as to preclude reasonable, good-faith reliance on it by the police.” So even if the warrant provision to search any vehicle were invalid, the good faith exception would apply.
Note: Violation of the curtilage is not an available defense theory when LE has permission (warrant, consent, etc.) to be in what would be a curtilage without the permission. Therefore, the cars on the property were fair game. The good faith exception is another theory of admissibility. Always include all theories so that if one fails, you have a back up.
United States v. Perez (North Dakota) 2022 U.S. App. LEXIS 9405
Traffic Stop; Inventory Search; Reliability Foundation
A driver told LE that a red sedan was being chased. LE went in the reported direction and saw a red Impala at a rest area. The windows were darkly tinted. LE stopped the Impala for the window tint.
The driver was Perez. LE measured the tint and it violated the law. LE asked Perez for ID, registration and insurance. Perez said he had no ID because it was suspended. He could not provide any of the other documentation requested. The two passengers were no help and all three gave discrepant answers as to the Impala’s ownership.
LE told Perez to exit and come back to his cruiser. As Perez got out, LE believed he was holding something in his hands. Perez showed his hands when instructed and a consensual Terry frisk revealed a knife in the front pants pocket and multiple phones with Perez’ Texas DL taped to one of the phones. Conversations with Perez and passengers continued to demonstrate they were not on the same page. LE got confirmation that Perez’ license was suspended and that he had a non-extraditable Colorado warrant. LE then decided to cite Perez for driving on a suspended license. LE asked for back up and told Perez he was going to cite him for the tinted windows. Perez denied consent for K9 sniff. At this point, a female drove up and wanted to drive its passengers home in the Impala and then she would come back for her car later. LE denied her request. LE then told Perez he was under arrest for driving on a suspended license. A third pat-down revealed a pistol holster and bullets in a handkerchief. Back up arrived and all passengers were ordered out. K9 then deployed and alerted. A search of the Impala revealed a contraband, packaging, a computer and ID’s that did not belong to any of the occupants of the car. A shotgun was located on the back floorboard along with a loaded .45 caliber handgun. There were also multiple cell phones and the roof of the Impala appeared to be damaged by shotgun fire.
Since there was no registered owner present, LE was instructed by his superior to impound the Impala. An inventory search revealed no additional contraband (however it was dark and the search was cursory). The Impala was towed to a lot and secured. It was then discovered that the owner of the Impala had not given permission for the occupants to use the Impala.
Four days after the traffic stop, LE searched the Impala again at the tow lot because he didn’t want to risk anything of value not being accounted for or noted during the first search. Two additional handguns, meth and a cell phone were found. LE then applied for a search warrant and found more contraband.
Perez contended, among other things, that (1) the Impala was impermissibly seized, (2) the Impala was illegally impounded and searched following impoundment, and (3) K9 lacked the requisite accuracy and reliability to establish probable cause for the search of the Impala conducted after her sniff.
The court first held that LE did not illegally seize the Impala because LE justifiably extended the traffic stop because LE discovered additional information that raised a reasonable suspicion that additional criminal activity was afoot. As for the impoundment, the court held that the impoundment was permissible because LE followed proper protocol when he impounded the Impala and had it towed on the basis that there was no registered owner on site, which is different than impounding the vehicle for suspicion of evidence of additional crimes. The court also held that the second inventory search 4 days later was reasonable because it was done in accordance with the general police routine of taking an accounting of items in police custody to protect the owner’s property and also to protect the police against disputes over unaccounted-for property and the first search was less than thorough given the situation.
As to the K9 reliability foundation, the court held that, though not trained by an outside organization, K9 was certified and had been trained in a 200 hour training which is the North Dakota standard. K9’s reliability also passes muster because the record shows that before her certification tests, other dogs proofed the search area by ensuring that no other odors of controlled substances were present beyond what the certifying official had placed there.
In addition to challenging K9’s certification, Perez argued that her sniff was unreliable because she has previously falsely indicated the presence of drugs during training. Her degree of accuracy, however, is higher than the accuracy rates of other drug-sniffing dogs which have been deemed reliable (80% or higher in training). This K9 team were recertified annually, which further supported a finding of K9’s reliability.
Finally, Perez also argues that handler impermissibly cued K9 to lay down by tapping the passenger side of the Impala. K9 expert for the government testified that tapping on a car is “just a way of guiding the dog to where they want that dog to search” as part of the systematic, detailed search portion of a sniff. Here, the handler allowed the K9 to walk around the vehicle without any communication from him. Then he used his hand to direct the sniff so that K9 was not missing any part of the vehicle. The appellate court found that there was no impermissible cueing and in addition, LE/handler’s suspicions about Perez that developed before K9’s sniff contributed to the circumstances which, viewed through the lens of common sense, would lead a reasonable person to believe that a search would reveal contraband or evidence of a crime.
Note: The issue of cueing again raises its ugly head, but here, the handler was careful to explain his process. If it’s something you do every single time and it’s part of your trained routine with the K9, be sure to explain that. The best practice is to get away from using physical gestures or tapping to focus your K9. Work on getting the K9 to focus at the start of the deployment and trusting the K9 to tell you that she is in odor. If it’s there, a well-trained K9 will alert.
United States v. Hunter (Delaware) 2022 U.S. App. LEXIS 9067 (Unpub.)
Traffic Stop; Prolonged Detention
Hunter was under surveillance in an investigation into drug trafficking. LE saw what they believed was Hunter engaging in a drug deal. Later, he was seen in a vehicle without wearing a seat belt. The vehicle was stopped for this reason. One LE approached and obtained the appropriate information. As he was walking back to his cruiser to run the information, another LE was requesting a K9 team. While the K9 team was on its way, LE discovered that Hunter’s driver’s license was suspended and there was a warrant for his arrest.
The K9 team arrived and occupants were directed out of the car. Hunter hesitated, stepped out, reached back into the car, grabbed something and fled on foot. Officers chased Hunter and Tasered him. He fell onto the object he grabbed which was a bag containing heroin, crack, marijuana and digital scales.
The appellate court held that the stop was valid, even though LE had an ulterior motive for the stop. If there is a valid traffic violation, it does not matter if LE is investigating another crime. In addition, the appellate court held that there was no prolonged detention. LE was still processing the citation and performing normal checks associated with a traffic stop when the K9 team arrived. At the time that Hunter fled the scene, LE was still completing this process. There was no evidence to suggest that LE deviated from the mission of his traffic stop or that he purposefully delayed completing those tasks. LE did not have the opportunity to pursue any off-mission tasks before Hunter fled and thereby interrupted the process. Accordingly, the stop was not prolonged for the K9 unit.
Hunter pointed to the fact that the citations were not actually issued until approximately seven hours after the initial stop. Contrary to Hunter’s argument, that does not suggest that the stop was prolonged so that officers could conduct a K9 sniff. LE testified that he had to stop his process when Hunter fled to assist the other officers, causing him to delay processing of the citation.
Hunter further contended that the fact that LE did not remove the occupants from the car until the K9 unit arrived suggests that the stop was unconstitutionally prolonged. This does not undermine the trial court’s central conclusion — that the Rodriguez moment in this case was not reached because Hunter fled before LE, who was carrying out his ordinary citation activities, could complete the citation. And in any event, LE testified that he had to have the occupants step out of the car because the driver had an outstanding warrant. That would necessarily interrupt and delay his ability to complete the citation.
Note: No problems here, mainly because one officer handled the traffic investigation while the others handled the occupants and the sniff. As long as the sniff happens before the traffic investigation is completed, the sniff is permitted.
United States v. Visintainer (Ohio) 2022 U.S. Dist. LEXIS 62876
Traffic Stop; Search Incident to Arrest; Prolonged Detention; Inevitable Discovery
Visintainer and others were involved in drug trafficking and were under investigation. LE saw a Nissan that was known to be regularly operated by a member of the conspirators. It was parked outside Visintainer’s residence. LE saw Visintainer and others leave the residence and drive off in the Nissan. LE saw that Visintainer put a dark colored bag on the floorboard directly behind the driver’s seat. Later, LE saw that the Nissan was not equipped with a working license plate light and stopped the Nissan. Other officers arrived to assist.
It was discovered that Visintainer had an active warrant. He was directed out of the Nissan and arrested. He was searched pursuant to that arrest and two hypes and some white powder were found in his pocket. Visintainer confirmed the white powder was fentanyl.
A K9 then sniffed the Nissan and alerted. The bag contained more contraband and a gun was found under the passenger seat.
The court found first that the traffic stop was valid in that LE observed a traffic violation, the non-functioning license plate light.
The court then moved on to the search of the Nissan. First, they held that Visintainer’s initial seizure and eventual arrest were pursuant to a valid arrest warrant. Given this lawful arrest, LE was permitted to conduct a search of Visintainer’s person as well as the area within his immediate control. Accordingly, the contraband found on Visintainer’s person–two hypodermic syringes and a wrapper containing a white powder–was validly seized.
The court then addressed whether there was impermissible prolongation of the detention to utilize the K9. However, the court focused on the fact that LE had sufficient probable cause to search the vehicle given the contraband validly seized from Visintainer’s person, pursuant to the automobile exception. As probable cause existed, the extension of the initial encounter beyond the time needed to complete the traffic stop was permissible. The extension of the initial encounter to include a K9 unit and a subsequent search of Visintainer’s vehicle was, therefore, supported by probable cause considering the contraband found during a search incident to a valid arrest.
Second, the evidence was not barred because, even without probable cause, it fell under an exception to the suppression remedy–the inevitable discovery exception. Under this doctrine, if the circumstances are such that the evidence would have been found in any inventory search that inevitably followed seizure of a car, the evidence can be introduced. That is precisely what occurred here. As there was a valid arrest warrant, and LE found contraband on Visintainer’s person during the search incident to arrest, Visintainer’s vehicle would have been lawfully impounded, following which LE would have discovered the remaining evidence. Accordingly, even were this evidence unconstitutionally seized, it is admissible as it would have been inevitably discovered by lawful means.
Visintainer then claimed that the K9 was not sufficiently reliable to depend on its alert as probable cause. First, the Court had already found probable cause existed independent from the K9’s open-air sniff. Second, Visintainer did not produce any evidence which would show the unreliability or unsuitability of this K9. The government, meanwhile, offered evidence showing that handler and K9 have received certifications from both state and national training programs. And, precedent dictates that “[t]here is probable cause to justify a warrantless search of a vehicle once a properly trained and reliable drug detection dog alerts positively to the presence of drugs.” Further, federal courts have generally rejected arguments that state legalization of medical marijuana eliminates any probable cause gained from a trained and certified drug detection dog’s alert.
Note: This was a federal case so marijuana remains illegal. In addition, the court recognized several theories of admissibility which it used to justify the admissibility of the evidence found on Visintainer and in the vehicle. Well done.
Creller v. State (Florida) 2022 Fla. App. LEXIS 2518
Traffic Stop; Removing Passengers From Vehicle; Prolonged Detention
LE saw Creller cutting through a business parking lot to avoid a red light. LE was in an unmarked car so radioed for a marked unit to stope Creller. Back up arrived one minute later and had Creller stopped within the next two minutes. Both officers approached and Creller refused to consent to a search. After collecting the appropriate documentation, LE returned to his unmarked vehicle and called for a K9 team. The uniformed officer waited with Creller. LE instructed the uniformed officer to start the traffic citation. He went to his cruiser to start that process. While the uniform officer was completing the citation, the K9 team arrived (within 4 minutes of the call) and after asking for consent, sniffed the vehicle after asking Creller to exit. Handler explained that leaving Creller in the car during the sniff was dangerous as he could not monitor the K9 and Creller at the same time. Creller refused and ultimately all 3 officers were needed to subdue him. Creller was arrested and a baggie of methamphetamine was found on him.
In the trial court, the judge touched on the officer safety aspect of the removal of Creller but ultimately concluded that there was independent proof of reasonable suspicion of drug trafficking that alllowed for the removal of Creller so a K9 sniff could be performed.
The appellate court addressed whether the stop was unduly prolonged. Here, the officers’ testimony supports the trial court’s conclusion that the vehicle sweep did not prolong the stop. Only five to ten minutes elapsed between the time the officers stopped Creller and his arrest. The uniformed officer testified that it typically takes around five minutes to complete a traffic citation. Nothing presented by Creller supports the argument that this amount of time is unreasonable. The attempted vehicle sweep conducted here did not cause the traffic stop to become “‘prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a warning ticket.” The court also said that the fact the traffic ticket was never completed was not relevant because Creller’s actions caused that.
However, because the drugs were recovered as a result of a search incident to Creller’s arrest, the trial court’s analysis should not have concluded with an assessment of the duration of the stop based on Rodriguez. Creller was arrested for his failure to exit the vehicle for the officers to conduct the vehicle sweep. As such, a necessary inquiry is whether that command to exit the vehicle constituted an unreasonable seizure in violation of the Fourth Amendment.
In this case the LE testimony indicates unequivocally that officer safety did not necessitate driver removal until the traffic stop evolved into a narcotics investigation.
The first point in time at which an officer asked Creller to exit the vehicle was when the K9 handler asked him to do so out of concern for the officer’s safety and that of his dog so that he could conduct the vehicle sweep. No such request or command was made when the plain clothes officer originally approached the vehicle or when the K-9 unit officer arrived and asked Creller for consent to search. In light of that chronology and the K-9 unit officer’s explication of why driver-removal is crucial to safety during a vehicle sweep, it is clear that the safety issue was not related to the issuance of the traffic citation but rather to the vehicle sweep.
Nothing indicates that removal from the vehicle was necessary to ensure the safety of the officers to complete the traffic stop. Thus, the K-9 unit officer’s command for Creller to exit the vehicle would need to have been justified by probable cause to believe that narcotics would be found in the vehicle. But no other justification was argued, much less supported by testimony. Rather, the testimony left no doubt that it was the vehicle sweep alone—not the issuance of the traffic citation—that gave rise to a threat to officer safety.
Here, the record indicates that the vehicle sweep necessitating the removal of Creller from his vehicle was random—it was not motivated by any suspicion of the presence of contraband. In other words, it was the traffic infraction that was supported by probable cause, not the existence of illegal drugs in the car. And the record affirmatively establishes that removal from the vehicle was not necessary to ensure officer safety for the purpose of issuing a traffic infraction. The officers made it clear that they asked the driver to step out of the vehicle to accommodate an arbitrary investigative sweep admittedly based on no suspicion of criminal activity whatsoever.
Note: I think the Florida court got this wrong. However, there could have been a better presentation of the facts. Unfortunately, the facts as presented and the court’s fundamental misunderstanding of Mimms and its progeny were fatal here. Best practice is to remove occupants as soon as possible as well as have the original officer testify as to why he left the occupants inside. For example, a solo officer may want to leave occupants inside because they outnumber him. The fact that a back up arrives may not change that analysis. Finally, when the K9 arrives, the removal of the occupants is finally safe because there are enough officers on scene to manage the occupants should they be uncooperative or combative. This is only Florida Appellate law, but if you’re a K9 team in Florida, you need to know this case.
People v. Babadzhanov (New York) 2022 N.Y. App. Div. LEXIS 2126
Traffic Stop; Odor of Marijuana as Probable Cause; Retroactivity
Babadzhanov was pulled over by LE because he did not signal when pulling away from the curb. Babadzhanov did not stop right away but pulled into a gas station. As LE approached the vehicle, Babadzhanov did not roll his window down until LE shook the car. When Babadzhanov opened the window, LE smelled the strong odor of raw marijuana. When asked, Babadzhanov said there was marijuana in the car and showed LE two baggies of marijuana in the console. These were seized along with about $1,000 cash from his person. After the marijuana was removed from the passenger compartment, LE continued to smell marijuana, so searched the trunk where he found a loaded firearm.
Babadzhanov asserted that the newly enacted Marihuana Regulation and Tax Act, which became effective during the pendency of this appeal. The new law legalized the possession of a specified amount of marijuana by persons 21 years or older. It further provided that “no finding or determination of reasonable cause to believe a crime has been committed” can be based “solely on evidence” of “the odor of cannabis” or, with limited exception, “the odor of burnt cannabis”; the possession of cannabis in an authorized amount; or “the presence of cash or currency in proximity to cannabis.” Babadzhanov argued that this new statutory provision should be applied retroactively to conclude that LE’s detection of the odor of marijuana in Babadzhanov’s car and his recovery of marijuana and cash did not justify the further search of the vehicle during which the weapon was found.
The appellate court held that since this new law did not contain a provision for retroactive application, it could not be applied retroactively (didn’t apply to Babadzhanov’s case).
Note: This standard can be different in each state. In California, for example, it is generally assumed that any change in the law that benefits the defendant will be applied retroactively. Be sure to check in with your local prosecutor as to what the standard is in your state.
United States v. Frazier (Alabama) 2022 U.S. App. LEXIS 9234 (Unpub.)
Alert as Probable Cause; Reliability Foundation
Frazier and his partner Block were under investigation for drug and firearm trafficking. Frazier was a county employee and drove an assigned pick up truck owned by the county.
A CI indicated that he could purchase narcotics from Frazier and a large controlled purchase (audio and video recorded) was completed from Frazier and Block after phone calls between the CI and Frazier in which LE was able to identify Frazier’s voice. At the buy, Frazier was in his county issued truck and dropped the methamphetamine out of the door of his truck and drove away. CI then picked up the two bricks of methamphetamine.
10 months later, on two occasions, a K9 team sniffed this truck in a lot with other county trucks and alerted both times on Frazier’s truck alone.
Frazier, at trial, moved to exclude the evidence of the alerts on his truck by the K9, claiming that identity was not an issue because CI was going to identify Frazier as the drug dealer and that admissions of the alerts would be inadmissible character evidence (make the defendant look bad in front of the jury). However, the government said the K9 evidence was necessary as they expected Frazier to impeach the CI. Since Frazier was unwilling to stipulate that he was the person who dropped the meth outside of his truck, the government wanted to use the evidence of the alerts.
At trial, the defense indeed attempted to discredit the CI and claim that CI was trying to frame Frazier. However, prior to video being shown of the sniffs of Frazier’s work truck, the court instructed the jury to only consider this evidence if they found that this was a “signature” crime, “…that is, the acts in these videos, you may use this evidence to help you decide whether the similarity between the acts in the videos and the ones charged in this case suggest that the same person committed all of the acts. You cannot use this evidence to consider that the defendant has bad character, and you cannot use it to convict the defendant simply because you believe he may have committed the acts shown in this evidence that is not charged.”
In his motion for a new trial, Frazier asserted, among other things, that the admission of the K9 alerts was unduly prejudicial as it was inadmissible character evidence. The appellate court applied Rule 404(b), which allows for evidence of other crimes to be admitted in trial for identity (among other things) but cannot be admitted to attack a defendant’s character.
The appellate court applied the Miller test, an 11th Circuit case. Under that test, evidence of other acts is admissible if: (1) the evidence is relevant to an issue other than the defendant’s character; (2) as part of the relevance analysis, there is sufficient proof so that a jury could find that the defendant committed the other acts; and (3) the probative value of the evidence is not ‘substantially outweighed by its undue prejudice, and the evidence meets the other requirements of the rule, which permits a court to exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
As to the first prong of the Miller test, Frazier’s having narcotics in his county-issued work truck on two other occasions within ten months of the controlled buy was relevant to whether Frazier delivered the methamphetamine to CI in his work truck during the controlled buy. Although Frazier argued that his possession of some unknown quantity and type of narcotics in his work truck is not sufficiently similar to his delivery of methamphetamine to CI on the day of the drug deal to be relevant, the court concluded Frazier’s use of his county-issued work truck provided sufficient similarity to mark the offenses as the handiwork of the accused. The use of a county work truck to carry drugs would not be so commonplace that anyone could have done so. In short, the K9 inspection evidence could be used by the government to show a signature trait—that Frazier used his work truck to carry narcotics—and therefore Frazier was the person who delivered the methamphetamine to CI during the controlled buy.
The second prong of the Miller test was also satisfied. Handler testified that his K9 detected the presence of narcotics (either current or very recent) in Frazier’s work truck during two separate inspections occurring twelve days apart. During each inspection, K9 picked Frazier’s work truck out of at least three, and as many as five, work trucks in a parking lot. According to handler, K9 had a 100% success rate in training situations and was “the best” K9 handler had ever seen. The two videos show handler leading K9 around the outside of three trucks and K9 sitting—his alert to the presence of narcotics—at the door of the third truck. From this evidence, a jury could find that Frazier possessed narcotics in his truck on two occasions in August 2020.
Finally, as to the third prong, the court could not say the probative value of the K9 inspection evidence is “substantially outweighed” by unfair prejudice. The two positive alerts had probative value as to the primary contested issue at trial—whether it was Frazier who delivered the drugs to Thomas during the controlled buy. Because the government lacked other strong evidence of Frazier’s identity as the delivery person, the government’s case rested almost exclusively on the testimony of CI.
In light of Frazier’s defense that CI set him up and there was another person who was actually responsible, the K9 evidence—indicating that on at least two other occasions roughly ten months after the controlled buy, Frazier had possessed narcotics in his work truck—was an important component of the government’s case. Indeed, on appeal Frazier admits the government needed the evidence, stating that at trial there was “no evidence, independent of CI’s testimony, that anyone in any white municipal work vehicle dropped off the drugs.” The K9 evidence was necessary to prove to the jury Frazier’s identity as the driver of the work truck.
The court found no prejudice that amounted to an unfair trial. Specifically, the district court instructed the jury to consider the video evidence of the K9 only to determine whether Frazier was the person who committed the charged offense and not to determine Frazier’s bad character. It further warned the jury that it could convict Frazier of only the offense charged and could not find Frazier guilty merely because he may have committed the other acts of drug possession established by the drug-dog inspections. The courts must presume the jury followed the district court’s limiting instructions.
Note: While the reliability foundation of the K9 was a bit of an issue at trial, the handler’s testimony as to the reliability of his K9 was not challenged by any evidence or testimony. As to the character evidence argument, that is basically trial stuff. However, the involvement of the K9 team was very helpful here, especially because the K9 was shown to be a stellar K9 and the sniff itself was in a good location which included basically identical trucks that the K9 ignored. This case also demonstrates how a K9 can be utilized in an untypical fashion to bolster an investigation. The more you can make your K9 useful, the better.
McFadden v. City of Boynton Beach (Florida) 2022 U.S. Dist. LEXIS 60907
Excessive Force
LE responded to a shopping center parking lot in response to an unidentified female’s call to 911 reporting a domestic dispute in which a black male and black female were “beating the crap out of each other” in a white SUV. When LE arrived, they found a couple in an SUV in a heated argument. McFadden drove away from the scene when he saw LE arrive. LE followed him and attempted to pull him over. He failed to stop for lights and sirens and as he was driving, LE could see the female passenger throwing hypodermic syringes out of the SUV.
A K9 team joined the chase and made a K9 announcement over a PA system. McFadden was driving around 80 mph. There were two passengers, both female. The back seat passenger had her hands raised above her head. McFadden refused all announcements to pull over and finally exited the freeway where he almost rear-ended another car. The back seat passenger tried to get out of the SUV while she was signaling for help. Dispatch was able to speak to McFadden on the phone and he said he was running because he did not want to go back to prison. McFadden claimed that he wanted to surrender but he was scared so he asked the dispatcher to relay that he would surrender but did not want to be hurt. Another 30 minutes went by, until the SUV got stuck in traffic and LE approached using felony stop procedures. Handler exited with his K9. Multiple commands were given to McFadden to get out. McFadden refused to comply. Handler approached with his K9 and saw that McFadden had an unidentified object in his hands which were raised near his face. McFadden claimed he did not hear these commands. McFadden told LE that he could not get the door open so K9 was released (bite duration 25 seconds). Traffic eased up, giving McFadden an escape route. Handler deployed K9 who jumped through the driver’s window and bit McFadden’s hand. LE was able to extract all occupants. The bite wound was stitched up and healed completely.
There was testimony that the deployment of the K9 in this situation was consistent with agency policy.
McFadden sued under state law for battery by handler and the agency and also for civil rights violation under section 1983. The court first addressed whether there was an excessive use of force. In determining whether handler’s conduct in this case was reasonable, the Court must analyze the totality of the circumstances as viewed by the officers in the heat of the moment. In this case, the totality of the circumstances requires consideration of not just when the K9 was deployed but when the officers first attempted to stop McFadden. First, prior to arrest, McFadden was being pursued on suspicion of abduction of two females following the report of a domestic dispute. Second, just as the officers arrives on the scene to investigate, McFadden fled and eluded the police officers for more than thirty minutes. Third, McFadden’s recklessness in evading capture posed great danger to both the officers pursuing him and other civilians; he drove at excessive speed, almost rear-ended another motorist, and kept driving even as the female passenger in the rear seat of his vehicle attempted to exit the vehicle. Fourth, McFadden resisted arrest by refusing to exit his vehicle and held an unidentified object in his hands, which reasonably led the officers to believe that he might be holding a weapon. Fifth, McFadden was a flight risk, as shown by the high-speed chase, his ongoing refusal to pull over, and his vehicle, although stopped at a busy intersection, remained operational with a path of escape if McFadden chose to flee. Finally, K-9 was deployed for approximately twenty-five seconds as a means of getting McFadden to exit the vehicle and the injury from the bite resulted in no permanent disability to McFadden’s hand.
Based on the foregoing, no reasonable officer in possession of the facts and circumstances in this matter would find that the force used to arrest McFadden was excessive. K9 apprehended McFadden for only twenty-five seconds under circumstances where McFadden failed to surrender after repeated instructions to do so by the officers. Here, the amount of force used was no greater than the amount needed to get McFadden to exit the SUV. McFadden was at a busy intersection, failed to comply with the officers’ commands, and was suspected of having a weapon. When balanced against the officers’ suspicion that the female passengers in the car were being abducted, McFadden’s fleeing and eluding the officers for more than thirty minutes across two counties, the harm posed to the occupants of McFadden’s vehicle and the motoring public, and the non-permanent injury suffered by Plaintiff, the use of K9 to apprehend McFadden was a use of reasonable force. The use of K9 to apprehend McFadden did not violate the Fourth Amendment. Accordingly, McFadden’s state law battery claims and §§ 1983 and 1988 claims fail and Sohn and the City are entitled to a grant of summary judgment on their claims.
Taking the facts in the light most favorable to McFadden the Court concluded that a reasonable officer would believe that the amount of force utilized by handler/K9 was reasonable. K9 was deployed for no more than 25 seconds to aid in removing McFadden from the vehicle to effect McFadden’s arrest. At the time, McFadden had not complied with multiple orders to exit the vehicle. Thus, the force was reasonable under the circumstances, does not violate the Fourth Amendment, and handler and agency are entitled to qualified immunity. Case dismissed.
Note: This was a measured and appropriate use of the K9. Releasing the K9 when McFadden said he couldn’t open the door may seem premature or posturing on McFadden’s part, but it showed that the handler was responding to the facts as they were unfolding. The K9 was released, but had McFadden not complied, the K9 could have been redeployed. The courts are looking more and more closely at bite duration and nature of injuries, so its important that if a K9 can be released without endangering the situation, the Ki should be released. This does not bar a handler from re-deploying the K9 should the suspect not comply.
