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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 2023 (included are cases that were decided in the previous month; however, my search program only retrieves cases that are published and sometimes that takes a month or two. That then causes a delay in my having access to the case). Also, a caution here: some cases are unpublished (“Unpub.” or “U”) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. Also, the arguments in these cases can be used; the case just can’t be cited as precedent in court.
I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list as things are always 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.)
Delaware decriminalized adult-use recreational cannabis. Adults can haveone of the following: up to an ounce of leaf, 12 grams or less of hash and other forms of concentrate, and up to 750 milligrams of edibles, such as gummies.
Washington made psilocybin (hallucinagenic mushrooms).
Texas legislators greenlighted an expansion of the state’s low-THC program.
New Hampshire came closer to legalizing adult-use cannabis.
Kentucky’s governor signed into law a bill legalizing medical cannabis.
A pair of newly introduced bills in the U.S. House of Representatives are aimed at paving the way for the federal legislation of cannabis, with one authorizing a commission to craft regulations and another seeking to let cannabis businesses make federal tax deductions.
United States v. Jones (Kansas 2023) – Traffic Stop; Marijuana Odor as Probable Cause
Dixon v. State (Texas 2023) 2023 Tex. App. LEXIS 2192 (Unpub.) – Traffic Stop; Prolonged Detention; Alert as Probable Cause
King v. Commonwealth (Virginia 2023) 2023 Va. App. LEXIS 213 (Unpub.) – Traffic Stop; Odor of Marijuana as Probable Cause
Pearce v. State (Texas 2023) 2023 Tex. App. LEXIS 2222 – Traffic Stop; Prolonged Detention
People v. Mallery (Illinois 2023) 2023 IL App (4th) 220528 – Traffic Stop; Odor of Marijuana as Probable Cause
United States v. Crawford (West Virginia 2023) 2023 U.S. Dist. LEXIS 71226 – Traffic Stop; Odor of Marijuana as Probable Cause; K9 Alert as Probable Cause; Prolonged Detention
United States v. Wells (Minnesota 2023) 2023 U.S. Dist. LEXIS 73428 – Traffic Stop; Odor of Marijuana as Probable Cause
Gibson v. United States (South Carolina 2023) 2023 U.S. Dist. LEXIS 67603 – Odor of Marijuana as Probable Cause
Shelton v. Morris (Indiana 2023) 2023 U.S. Dist. LEXIS 64906 – Traffic Stop; Excessive Force; Monell Claim
United States v. Modeste (Alaska 2023) 2023 U.S. Dist. LEXIS 67937 – Traffic Stop; Reliability Foundation
State v. Edwards (North Carolina 2023) 2023 N.C. App. LEXIS 188 (Unpub.) – Dog Tracking Evidence
United States v. Ramirez-Rivera (11th Cir. Florida 2023) 2023 U.S. App. LEXIS 10325 (Unpub). – Traffic Stop; Prolonged Detention
United States v. Rederick (8th Cir. South Dakota 2023) 2023 U.S. App. LEXIS 9374 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine
Davis v. Allen (Wisconsin 2023) 2023 U.S. Dist. LEXIS 64550 – Excessive Force; Duration of Bite
Commonwealth v. Mann (Pennsylvania 2023) 2023 Pa. Super. Unpub. LEXIS 1056 – Traffic Stop; Odor of Marijuana as Reasonable Suspicion
People v. Perkins (California 2023) 2023 Cal. App. Unpub. LEXIS 2156 – Traffic Stop; Odor of Marijuana as Probable Cause and/or Reasonable Suspicion
Willingham v. State (Delaware 2023) 2023 Del. LEXIS 139 (Not finalized) – Traffic Stop; Prolonged Detention; Search Incident to Arrest
United States v. Ali (Oklahoma 2023) 2023 U.S. Dist. LEXIS 62293 – Traffic Stop; Sniff as Probable Cause; Additional Reasonable Suspicion; Secondary Site Search
State v. Folsom (North Carolina 2023) 2023 N.C. App. LEXIS 172 – Traffic Stop; Odor of Marijuana as Reasonable Suspicion and/or Probable Cause; Prolonged Detention
Kowalskey v. State (Indiana 2023) 2023 Ind. App. Unpub. LEXIS 483 – Traffic Stop; Prolonged Detention; Alert as Probable Cause
United States v. Lauderdale (Indiana 2023) 2023 U.S. Dist. LEXIS 61463 – Traffic Stop; Prolonged Detention
United States v. Jones (Kansas 2023) 2023 U.S. Dist. LEXIS 57535
Traffic Stop; Marijuana Odor as Probable Cause
Traffic stop for a license plate that was covered with a clear plate and not visible to LE. LE followed Jones to his home where he pulled into a parking spot. LE then turned his lights on and contacted Jones. Jones had gotten out of his car, locked it and started walking away. When LE called him back, LE smelled the odor of burnt marijuana. When asked, Jones could not produce ID or insurance. Jones then lied about his name. At that point, LE told Jones to put his keys and phone in the center console and step out of the car. Jones was handcuffed and put in a cruiser. Jones then provided another false name along with a birth date. No match came up so LE asked Jones why was he lying. Jones said he had warrants.
LE then searched the car for marijuana based on the odor detected by LE. There was a fully loaded handgun on the passenger floorboard, cocaine, ammo and drug paraphernalia were found in a back pack and loose marijuana was found between the driver’s seat and center console.
LE then ordered a tow for the vehicle based on the LE policy that once a driver is arrested, LE tows the car and does an inventory search. Here, the driver was arrested, there was no information about the owner and Jones had lied to police twice. However, it was conceded that the car as legally parked, LE could ensure it was locked and Jones said his girlfriend owned it. That turned out to be accurate.
First, Jones brought an expert who claimed he did a bunch of experiments with a license plate that was covered with a clear cover and claimed that it was readable within 50 feet (the language of the statute). The court was not impressed and found that LE had reasonable suspicion sufficient for contact and investigation of the infraction.
Next, the court moved on to the issue of probable cause for search. The court held that LE’s testimony about the odor was credible and that the back pack searched was of a size that it could contain contraband.
Note: Kansas just legalized adult-use marijuana. Kansas LE should be in touch with their local prosecutors to see what that means in terms of policing in the field. In addition, because the court found that LE had probable cause based on the odor of marijuana alone, it did not reach the issue of inevitable discovery based on the inventory search. The court did say that was a closer call because there was no public safety/community care reason for towing the car. It would have been towed by policy only. If your agency has such a policy, it should be reviewed. Here, the owner was present and even though the car contained evidence, once it was found, there was no need to further impound the vehicle. There was also an allegation that LE was targeting Blacks (Jones was black), but Jones relied solely on statistical evidence which did not convince the court that there was any discriminatory policing going on. 
Dixon v. State (Texas 2023) 2023 Tex. App. LEXIS 2192 (Unpub.)
Traffic Stop; Prolonged Detention; Alert as Probable Cause
Dixon drove away from a nightclub that was being watched for an “uptick” in shootings and drug dealing. LE located it and followed it. It had an Oklahoma license plate, but it did not come back with registration information. LE watched the vehicle as it committed 3 moving violations; stop sign, failed to signal at an appropriate distance and then failure to signal at all. The dash cam corroborated at least the third violation.
Dixon was cagey when approached. He would not maintain eye contact and was argumentative. Dixon did not have a driver’s license, but he handed LE his ID and claimed he had a warrant. When run through the database, Dixon had no warrants but priors for stealing and drug possession. Dixon claimed he was coming from his girlfriend’s house which was a lie. He also claimed he had no history of drug arrests. This was also a lie.
Permission to search was denied. A drug K9 was already on scene and was deployed. The K9 alerted so a search of the vehicle was done. At that point, the traffic investigation was not complete and ultimately, LE decided to issue warnings.
The trial court held that the stop was valid and corroborated by the dash cam. In addition, there was no prolonged detention or excessive intensity during the contact. Since Dixon admitted he did not have a driver’s license as required by law, the officer’s continued investigation was justified, plus the deployment of a drug dog within 10 minutes of the stop was supported by reasonable suspicion and did not unduly prolong the traffic stop.
Note: This idea of intensity of contact has been flirted with a little bit over the years. One way I have seen this come up is if LE does a deeper dive than normal into the background of the defendant. If you need to vary from your regular routine, that’s not a problem as long as you can explain why. Here, Dixon was a liar and a law breaker which would allow for a longer extension of the stop. However, the K9 was deployed within 10 minutes and alerted which then extended the time to investigate the new offenses; drug possession.
King v. Commonwealth (Virginia 2023) 2023 Va. App. LEXIS 213 (Unpub.)
Traffic Stop; Odor of Marijuana as Probable Cause
LE saw King asleep in his car at a gas station. After the car door was opened, LE smelled the odor of burnt marijuana on King. Based on that smell, the car was searched and marijuana along with use and sales paraphernalia were found.
The court held here that the odor of marijuana provided probable cause to search the car for marijuana. At the time, marijuana was contraband , and the officer could localize the smell of marijuana to defendant, so it was reasonable for him to believe the defendant possessed marijuana and that searching the vehicle would yield marijuana, which it did.
Note: Marijuana at the time of this investigation had been decriminalized and was only punishable by a fine. However, marijuana possession was made legal about a year later by legislation. It’s interesting that this Virginia court talked about marijuana only being not contraband after a statute declared the possession of which to be legal, while other states used “decriminalization” as a reason to hold there was no probable cause based on the odor of marijuana alone. Make sure you’re on the same page as your local prosecutor. They may be getting this kind of information much later than you are.
Pearce v. State (Texas 2023) 2023 Tex. App. LEXIS 2222
Traffic Stop; Prolonged Detention
LE and his trainee were on patrol when they saw Pearce stop after the limit line at a stop sign. Pearce was nervous and said he was on parole for previous drug charges. LE also saw what he believed was drug paraphernalia; Pearce denied possessing drugs and refused a search. LE called for a K9 and while waiting for the K9 to arrive, LE started writing a citation. However, LE felt he needed to spend a considerable amount of time watching Pearce. LE was concerned for his trainee’s safety because Pearce was not handcuffed. In addition, he felt Pearce seemed inclined to flee. Handler arrived with his K-9 approximately half an hour after the stop began. The K9 alerted, and Pearce admitted he had contraband. A subsequent search of the vehicle revealed a bag of methamphetamine.
The court first found that the stop was supported by reasonable suspicion. The court then moved on the prolonged detention issue. LE testified that Pearce appeared excessively nervous during the stop: his carotid artery was pulsing, he transitioned between giving too much eye contact to not enough, he fumbled trying to retrieve his license and registration, he stuttered, he began smoking, and he made an extended phone call. In addition, Pearce stated that he observed rolling papers and a bag of plastic bags in the vehicle and a butane lighter in Pearce’s hand. While all of these items are legal to own, LE testified that they are also consistent with drug paraphernalia. This suspicion was strengthened by the fact that Pearce was seen in a high-crime area and admitted he was previously arrested and on parole for drug charges. Therefore, when Pearce refused consent to search his vehicle, LE called for a K9 sniff.
While waiting for the K9 officer to arrive, LE began filling out the warning form. However, he testified that he had to keep an eye on Pearce while attempting to fill out the paperwork. LE stated that Pearce seemed inclined to flee. In addition, Pierce was standing outside the vehicle and was not handcuffed. Therefore, LE testified he kept a watchful eye on Pearce to ensure the safety of his trainee. Pearce also made a lengthy phone call to his mother during the stop. LE testified that the phone call was lengthy enough that he had to tell Pearce to get off the phone. Since there were limited K9s available, LE had to call 2 handlers. The second one was at home, so after he got dressed, loaded his K9, and drove to the location, it was 29 minutes later.
The court acknowledged that LE had factors that could arise to additional probable cause of drug crimes, but also stated that the length of the stop was in part caused by Pearce’s behavior. The lengthy phone call and Pearce’s behavior indicated to LE that Pearce might attempt to flee, so LE had to divide his attention between monitoring Pearce and writing the citation. The court held that, based on the evidence that LE attempted to conduct a  K9 sniff as fast as possible, coupled with LE’s reasonable suspicion, the wait time is within constitutional limits.
Note: It is interesting to see how different jurisdictions view the requirements of a constitutional detention. Here, the actions of Pearce were interpreted as one, if not the main, reason that extended the time needed for the traffic investigation. Other jurisdictions may not be so forgiving. However, here, there was clear evidence of drug crimes and therefore the stop was extended based on that additional crime being investigated. 
People v. Mallery (Illinois 2023) 2023 IL App (4th) 220528
Traffic Stop; Odor of Marijuana as Probable Cause
Handler conducted the underlying traffic stop after observing the vehicle at issue with a broken taillight and failing to signal at an intersection. The vehicle had three occupants, and Mallery was its driver. During the stop, handler decided to conduct a free-air sniff with K9 because he had previous knowledge of Mallery and the other occupants of the vehicle and drug use. K9 had a positive alert on the vehicle at the location of the passenger’s side front door. Because K9 alerted, handler searched the vehicle. During the search, he located a bag at Mallery’s feet, which contained “a green, metal pipe, that’s typically used to smoke cannabis with some burnt residue in the end of it, a digital scale, and two metal spoons that had a white residue on top of them.” The white residue was determined to be methamphetamine.
Handler testified he received K9 in October 2015, and they “trained through January 2016.” He stated K9 was certified by an accredited training facility and since January 2016, their training was maintained on a monthly basis. The monthly training involved meeting with other K9 handlers at different locations and hiding narcotic substances along with “distracting odors.” Handler stated the K9s would then be “taken through those areas to confirm that they [were] alerting to the narcotics and not” the other odors. Handler also conducted his own research to “stay on top of the law.” He testified that to lawfully transport cannabis in a motor vehicle, the cannabis must be “inside of a sealed tamper-evident, odor-proof container.”
Despite changes in the law regarding cannabis, there had not been changes with respect to K9’s training. Handler testified the cannabis used for training was packaged the same way it had been since he began training with K9 in 2015, and K9’s training did not involve the use of any odor-proof containers. Handler stated he was familiar with “sealed containers that come from a dispensary that are supposed to be odor-proof.” He noted that he had located such containers “on traffic stops where K9 ha[d] been deployed.” However, during such stops, “open cannabis” was also always present. Handler stated there had never been an occasion when K9 alerted on a vehicle and the only thing “found was a sealed, odor-proof container” with cannabis. Additionally, handler testified that, from his training, he had experience encountering the odor of cannabis, including raw or burnt cannabis. When interacting “with the vehicle” at issue during the underlying traffic stop, he did not smell the odor of cannabis.
Mallery asserted that because a K9 trained to detect the odor of cannabis could be alerting to an odor stemming from legal behavior, the odor of cannabis, alone, may not be deemed sufficient probable cause for a vehicle search.
The trial court agreed, but the appellate court reversed and found in favor of LE.
The court held that simply because cannabis may be legal in some circumstances, does not mean that it is not unlawful in others. Regardless of recent changes in the law legalizing possession of small amounts of cannabis, there were still, among other things, (1) illegal ways to transport it, (2) illegal places to consume it, and (3) illegal amounts of it to possess. One of the requirements of the possession law is that if it is being transported in a vehicle, it must be in an odor-proof container, so that if there is any odor of marijuana, it is almost certain that there has been a violation of the Vehicle Code. “[A]n officer who smells cannabis in a vehicle is almost certain to discover a violation of the Vehicle Code because the cannabis must be stored in a sealed, odor-proof container—in other words, the cannabis should be undetectable by smell by a police officer.”
Mallery challenged the above statement from previous opinions on the issue on the basis this court “offer[ed] no scientific evidence” to support it. However, the plain language of the Vehicle Code is clear and unambiguous. It requires cannabis to be stored in a sealed container from which the odor of cannabis cannot be detected. The appellate court noted that before the trial court, Mallery raised the suggestion that it “very well might be that there’s no such thing as an odor-proof container, especially as it relates to” K9s, whose noses are “highly sensitive.” However, as the moving party on the motion to suppress, Mallery had the burden of establishing both the factual and legal bases for her motion. At the hearing on the motion to suppress, she presented no evidence to support such a claim. To the extent she raises it on appeal, it is without factual support and must be rejected.
Previous opinions indicated that a K9 could detect lawful activity such as the scent of cannabis on clothes and therefore, as K9s had superior odor detecting skills, this would mean that innocent activity would result in an alert and therefore probable cause. This appellate court, however, held that such potential innocent explanations were not fatal to a finding of probable cause. The court held that probable cause requires only that the facts available to the officer—including the plausibility of an innocent explanation—would warrant a reasonable man to believe there is a reasonable probability “that certain items may be contraband or stolen property or useful as evidence of a crime.
The final interesting argument advanced by Mallery is that K9s are a “tool” capable of detecting legal activity similar to a “thermal-imaging camera” and, thus, the K9’s alert alone cannot provide probable cause for a vehicle search. See Kyllo v. United States (2001) 533 U.S. 27, 29. However, in Illinois v. Caballes (2005) 543 U.S. 405, 410, the Supreme Court contrasted the circumstances at issue in Kyllo with situations involving  K9s capable of detecting narcotics, finding a “dog sniff” that occurred during a lawful traffic stop did not violate the Fourth Amendment. It concluded that “the use of a well-trained narcotics-detection dog—one that does not expose noncontraband items that otherwise would remain hidden from public view, [citation]—during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Id. at 409.
The issue developed and presented here by the parties concerned only whether the K9’s positive alert, by itself, was sufficient to establish probable cause for the vehicle search by handler. To establish probable cause, it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that the automobile contains contraband or evidence of criminal activity.
Evidence in the trial court established that the K9 was certified and trained to detect five narcotic substances—cocaine, crack cocaine, heroin, methamphetamine, and cannabis. His positive alert on the vehicle in this case established a fair probability that drugs or evidence of a crime would be found in the vehicle. This is true despite recent changes in the law regarding the legalization of small amounts of cannabis as “there are still, among other things, (1) illegal ways to transport it, (2) illegal places to consume it, and (3) illegal amounts of it to possess.” Accordingly, probable cause for the vehicle search existed based upon the canine’s positive alert, and the trial court erred in finding otherwise.
Note: Illinois legalized medical cannabis use in 2014. In 2016, Illinois decriminalized the possession of less than 10 grams of cannabis and deemed it to be a civil law violation. Then in 2019, Illinois legalized the possession of small amounts of cannabis for recreational use. It also became legal to transport cannabis if it is placed in a sealed, odor-proof, and child-resistant cannabis container. This case took place in 2021, so all these changes in the law were in effect at the time of the stop.
In addition, the court held that Mallery was responsible to raise defenses at the trial court level. This may be true in some jurisdictions, but generally, it is the government that must show the basis for the search in a vehicle exception search.  
Not only did this appellate court hold that the alert of a marijuana detecting K9 was sufficient for probable cause, it held that the possibility of legal possession of marijuana did not indicate there was no basis for probable cause. This position is the opposite of Colorado case law and some California case law (there is a split in authority at this time), but this makes a lot more sense than the defendant’s position. Probable cause is a pretty low barrier, and the alert supplies that probable cause because there is a possibility that any cannabis would be possessed illegally as well. And the argument that the K9 could be alerting on several scents or a scent that was not marijuana is not even reached. I think that argument would hold weight if only the government representatives would advance it. 
United States v. Crawford (West Virginia 2023) 2023 U.S. Dist. LEXIS 71226
Traffic Stop; Odor of Marijuana as Probable Cause; K9 Alert as Probable Cause; Prolonged Detention
During a drug trafficking investigation that included trackers on vehicles and a pen register on phone numbers, investigators asked local police to “wall” stop a 4runner which was involved the investigation. Local LE then stopped the vehicle for following too closely and lane violations. The K9 handler was also informed of this mission.
The driver was Crawford. Passenger only had a temporary license, so LE tried to get secondary information to confirm his identity. He claimed he did not have his wallet and was observed to be excessively nervous. LE also detected the smell of marijuana. The two had diverging stories as to why they were in the area.
LE then tried to run Crawford’s license and determined that the license was “cancelled.” A K9 team was asked to respond. When the K9 team arrived, LE was still investigating the status of Crawford’s license. Both occupants were taken out of the car and during a free air sniff of the vehicle, the K9 alerted. Occupants were informed of the alert and claimed that there might be a small amount of marijuana. However, this K9 was not trained on cannabis. Heroin, methamphetamine and fentanyl were found in the air filter of the engine under the hood.
The appellate court first found that the stop was supported by reasonable suspicion of a traffic violation and that once LE detected the odor of marijuana, there was probable cause to search the vehicle, including any container or compartment, including the engine compartment and air filter container.
In addition, the court held that the extension of the stop until the K9 arrived was reasonable, and the K9’s positive alert also created probable cause to search the vehicle. Also, the court held that the approximately 10 minutes that elapsed before the K9 team arrived were also spent in LE attempting to investigate the temporary license of Crawford. The delay here was reasonable and justified, and officers were diligent in their active investigation. When the K9 positively alerted, officers had probable cause to search the entire vehicle, including the air filter container.
Note: Again, a much more sensible approach to analyzing the evidence. Interestingly, this K9 was NOT trained on marijuana, but the human LE officer did smell marijuana which provided separate probable cause to search which was affirmed when the K9 alerted. 
United States v. Wells (Minnesota 2023) 2023 U.S. Dist. LEXIS 73428
Traffic Stop; Odor of Marijuana as Probable Cause
While stopped at a traffic signal, LE noted a vehicle with illegally tinted windows. LE testified that he had received training in window tinting and how to use a tint meter. He was able to explain the law that he determined the tint of the vehicle was illegal.
However, he continued on patrol and saw the vehicle again by coincidence. As LE was in the area, the vehicle appeared to attempt to evade LE, so LE stopped it for the tint issue. Wells was the driver. When he asked for Wells’ license, LE detected the odor of marijuana. He testified to his training and experience with marijuana and its odor.
LE was able to determine that Wells was clear of any issues. He then asked Wells if there was any weed in the car and Wells ultimately said there was some marijuana in the ashtray. Wells was removed from the vehicle and LE searched the vehicle based on the odor of marijuana and the roaches in the ashtray. LE also Terry frisked Wells for weapons and did not find any. Wells was being walked to the cruiser to be detained and he tried to run. He was apprehended at a gas station bathroom.
Inside the vehicle was a fully automatic handgun and a “felony” amount of marijuana. The tint meter indicated that the windows were illegally tinted.
Wells complained that the stop was unlawfully extended when 1) the tint issue was not immediately investigated and 2) he was ordered out of the vehicle and detaining him.
The court first held that the stop was supported by reasonable suspicion. The court then held that the odor of marijuana detected when LE was investigating the traffic violation by LE provided probable cause to search the vehicle.
At the point of detecting an odor of marijuana, LE properly extended the stop for the purposes of the Fourth Amendment from the traffic violation to the possession of marijuana. This odor, in conjunction with Wells’ admission that the smell of marijuana was coming from roaches in the vehicle. All this information gave LE further probable cause to search the vehicle and therefore remove Wells from the vehicle.
Wells argues that his removal from the vehicle based on the smell of marijuana and roaches cannot lead to the suspicion that Wells violated the law, because Wells could have possessed the marijuana legally. However, the standard is probable cause and it is determined by weighing the totality of the circumstances, LE had the requisite probable cause to believe that a search of the car would reveal a criminal amount of marijuana.
Based on the totality of the circumstances, the facts available to the officers, and the reasonable inferences drawn from those facts, the court concluded that the first expansion of the stop to include a search of the car was justified.
Note: Another state with a more coherent approach to probable cause. Be sure to stay in touch with your local prosecutor to make sure where the law stands as the marijuana laws are constantly changing. 
Gibson v. United States (South Carolina 2023) 2023 U.S. Dist. LEXIS 67603
Odor of Marijuana as Probable Cause
During a traffic stop, LE detected the odor of marijuana. The vehicle was searched based on that odor and LE found a loaded firearm, cocaine, crack, marijuana, scales, baggies, a cutting agent, cash, and four cell phones.
The appellate court ruled that the odor of marijuana provided probable cause to search the vehicle.
Note: At the time, marijuana was illegal without exception in South Carolina. It still is, but there is legislation being proposed that could change that. 
Shelton v. Morris (Indiana 2023) 2023 U.S. Dist. LEXIS 64906
Traffic Stop; Excessive Force; Monell Claim
During a traffic stop, LE took and ran Shelton’s information. When LE came back to Shelton, LE told Shelton to get out of the car. Shelton asked why and LE allegedly told Shelton LE was going to search Shelton and Shelton’s car. Shelton rolled up his window part way and called his mother so he had a witness. Shelton also asked for a “white shirt” (which I presume was a supervisor since a Sergeant arrived shortly). Shelton also asked for a citation for the alleged speeding and to be let go.
Once the sergeant arrived, things escalated. Sergeant threatened to break the window and “sic” a K9 on him and told him that LE didn’t need a reason to search the vehicle. Shelton told LE that he was getting out, but asked to have the K9 put away. At that point, Sergeant broke a window and sprayed pepper spray. LE then pointed his gun at Shelton and told him to get the fuck out of the car. Shelton did so and was forced aggressively to the ground.
Shelton claimed he was lying on his stomach and had his hands behind his back to be cuffed and was not resisting. Nevertheless, handler ordered K9 to bite Shelton and kept the K9 on the bite for 30 seconds after handcuffing. LE then searched the vehicle and him. When Shelton verbally protested, he was sprayed in the face with pepper spray. He was ultimately released without charges, but suffered bruises, a broken bone and an open wound on his foot, and injuries to his shoulders and arms.
Here, Shelton alleges that he was not speeding and did not otherwise commit a traffic violation that would justify the traffic stop. Since there was a distinct difference in the positions of Shelton and LE, this issue must go to the jury and cannot be resolved at summary judgement. It must be resolved by the finder of fact, as the evidence will need to be examined and determined which party is telling the truth.
Shelton further contends that the force used against him during the stop was excessive under the Fourth Amendment. Excessive-force claims that occur during the course of an arrest or apprehension of a suspect are governed by the Fourth Amendment’s ‘reasonableness’ standard, which turns on the totality of the circumstances confronting LE viewed from the perspective ‘of a reasonable officer on the scene. In analyzing these claims, the Court must “consider the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses 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.” Even the use of deadly force may be reasonable if an officer has probable cause to believe the suspect is armed and poses a threat of physical harm or is about to escape. An officer’s use of force is unreasonable if, judging from the totality of the circumstances at the time of the arrest, the officer uses greater force than was reasonably necessary to effectuate the arrest. Again, giving Shelton the inferences to which he is entitled at this stage, he states a plausible Fourth Amendment claim against Sergeant  for pepper spraying him twice and against handler for instructing the dog to bite him.
Shelton does not identify what the alleged unconstitutional policy or custom was or include factual content plausibly suggesting the existence of an official policy or widespread practice that caused him injury. Shelton must provide allegations of constitutional violations beyond his one-time interaction with the police to support a plausible Monell claim.
Note: At the summary judgement stage, if there is a plausible difference in evidence, that means that the case cannot be resolved prior to trial and the issues have to go before the jury. It does not appear that LE had body cams in this case or at least they were not mentioned by the court. Lately, body cams have been very helpful in determining whether an allegation happened or not. As long as you are acting within the scope of the law, a body cam is your best friend. 
United States v. Modeste (Alaska 2023) 2023 U.S. Dist. LEXIS 67937
Traffic Stop; Reliability Foundation
In June 2019, following a traffic stop by the Kenai Police Department and a K9 sniff by Division of Alaska State Troopers (“AST”) K9, LE found alleged drugs and a gun in Modeste’s vehicle.
Modeste filed a motion to suppress on all evidence obtained from the search of Modeste’s vehicle, arguing that (1) K9’s reliability was questionable and (2) the government failed to meet its discovery obligations under federal law. The Motion further seeks dismissal of the case based on various alleged constitutional violations.
The appellate court found that the reliability of the K9 was proved, even though the handler’s record-keeping was not exemplary. He did not record the “blank searches” he conducted with K9, but this did not mean that K9 was unreliable based on these omissions alone. The evidence regarding K9’s training and certifications, including her performance during certification runs, outweighs any ambiguity about her reliability that stems from handler’s records.
In addition, the fact that the training records implied that the K9 team trained for 400 hours in a month did not show that the certification of the K9 was fabricated. The record shows that AST is a bona fide organization, one that certified K9 as a drug detector dog on multiple occasions after July 2018—including in May 2019, about a week before the search of Modeste’s vehicle. In her 2019 certification run, K9 passed with an “average” score. Modeste does not dispute this evidence, which provides a strong measure of K9’s reliability that is undisturbed by any lingering questions about the July 2018 certification.
Note: Even though these records were incomplete and apparently somewhat haphazard if not erroneous, the court found that the K9 was still reliable. Do not take this as a green light to not keep adequate and up to date records. When you are called as a witness, do yourself a favor and present your up to date and accurate records so opposing counsel has no ability to challenge your K9’s reliability. 
State v. Edwards (North Carolina 2023) 2023 N.C. App. LEXIS 188 (Unpub.)
Dog Tracking Evidence
Edwards was suspected of an armed robbery of a gas station/convenience store where he brandished a gun and made the clerk give him the money from the register. Clerk recognized him as a regular but did not disclose this to Edwards. Edwards had distinct tattoos that were visible on the robber. He fled and clerk called police.
When LE responded, a handler and a tracking K9 team were also dispatched. Handler instructed K9 to lay down at the last location Edwards had been standing. K9 then began to track the suspect through an opening in the fence, through a trailer park, turning right onto Church Street, taking a left at a roundabout, and continuing until handler and K9 heard dogs barking. K9 lost the track at the intersection of Nesbit and Mills, specifically at 355 Nesbit Avenue.
After the track was complete, LE checked the three houses in close proximity to where K9 lost the scent, including 361 Nesbit Avenue, and two others which were subsequently ruled out. When police knocked on the door of 361 Nesbit Avenue, no one answered the door. Shortly thereafter, LE was able to confirm the robber’s identity as Edwards based on his tattoos. Edwards’ girlfriend lived at 361 Nesbit.
LE later contacted girlfriend at 361 Nesbit and she confirmed that Edwards had stored things there. She gave consent to search and a replica handgun as well as a sweatshirt the clerk described the robber as wearing.
At trial, handler testified during voir dire (exploratory questioning by the defense to test whether a witness has the appropriate training and experience to testify as an expert) to K9’s training, education, certification, experience, and reliability in tracking human scent. Handler testified that he had traveled to Alabama with K9 for a six-week handler’s course, which included tracking. Handler also documented that he trained K9 in human tracking five times over a six-month period, along with personal training at home. K9 performed “strongly” in training events hosted by the United Police Work Dog Association (“UPWDA”). Handler further testified that (1) K9 displayed qualities of acuteness of scent and power of discrimination, (2) K9 was accustomed to and trained to pursue a human track, (3) K9 had the power of discrimination to distinguish human scents from other scents, and (4) K9 was found to be experienced and reliable in the track of human scents. Handler’s records reflected that only one time in the six months prior had K9 executed a human track, which did not lead to an identification of the suspect. After hearing evidence during voir dire, the trial court ruled the testimony admissible, noting Edwards’ concerns with the evidence “would go certainly to any weight in this case rather than the admissibility.”
Edwards claimed it was error for the dog-tracking evidence to be admitted during the trial.
The appellate court stated that the North Carolina Supreme Court laid out a four-part test to establish admissibility of dog-tracking evidence. It must be properly shown that the dog in question:
(1) [is] of pure blood, and of a stock characterized by acuteness of scent and power of discrimination;
(2) possess[es] these qualities, and have been accustomed and trained to pursue the human track;
(3) [has] been found by experience reliable in such pursuit; and
(4) in the particular case [was] put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.
More recent cases have reduced emphasis on the requirement that the tracking dog be a pure-blood breed so long as the dog has proper training, experience, and proven ability in tracking.
1. Pedigree
K9 is a Belgian Malinois. It is not dispositive that K9 is not a pure-blood bloodhound because, today, our courts place greater emphasis on a dog’s training and ability than its pedigree. The admissibility of the tracking evidence, therefore, turns on the remaining three prongs of the McLeod test.
2. Characteristics and Training
Handler testified during voir dire to K9’s training, certification, and reliability in tracking human scent. Specifically, handler testified that K9 displays qualities of acuteness of scent and power of discrimination and has been accustomed and trained to pursue a human track.
In early 2018, handler was assigned as K9’s handler. Handler and K9 initially attended a six-week handler’s training course in Alabama. The team is certified in patrol, apprehension, tracking, and narcotics. K9 is recertified in all the patrol aspects of K-9 once a year. Handler testified that he trains K9 in human tracking at least two or three times a month, completing one to three tracks during each session. Handler’s testimony was sufficient to show K9 possessed the requisite characteristics of a tracking dog, and K9 has been accustomed and trained to pursue the human track.
3. Experience and Reliability in Pursuit
In the six months prior to 14 October 2019, K9 was only involved in one human-tracking event, involving an individual who stole a bicycle. On that occasion, K9 did not locate the suspect.
Handler’s reports show K9 had been formally trained in human tracking five times in the six months prior to the track at issue. Handler also testified, however, that he trained K9 in human tracking many times at home, which would not be recorded on his logs. The at-home training involves handler, using himself, a friend, or a relative, laying a track for K9 to locate and follow. Additionally, K9 demonstrated strong performances in the UPWDA’s training events. Handler further testified most of K9’s on-duty involvement is related to drugs, and at least nine out of ten calls that they receive are based on drugs.
K9 had been a tracking dog for less than two years at the time of the robbery in this case. Given the nature of the calls Mooresville Police Department primarily receives, K9 had few opportunities to engage in human tracking outside of training sessions. K9 was trained both formally and informally in tracking human scent and has performed strongly in UPWDA training events. Experience and reliability can be derived from both on-duty tracks and training. A shortage of on-duty opportunities for K9 to track humans, therefore, does not preclude the admission of the tracking evidence in this case. Handler’s testimony was sufficient to satisfy this prong.
4. Identification
Where the guilty party is unknown, it is sufficient if the K9 is laid on the trail at a point where the circumstances tend clearly to show that the guilty party has been. Additionally, it is not required that a K9 be exposed to an article carrying a suspect’s scent before tracking begins. Furthermore, tracking evidence may be admitted even if a track did not result in a positive identification; so long as a reasonable inference as to defendant’s guilt arises on the facts, the evidence is for the jury to determine.
Handler testified that after K9 picked up a scent from the place Edwards was last seen, K9 tracked the scent through an opening in a nearby fence, across a trailer park, along various nearby streets, and finally to the intersection of Nesbit and Mills. At that point, K9 stopped tracking, distracted by dogs barking behind 355 Nesbit Avenue. When handler attempted to restart the track at the intersection, K9 “kind of just circled around,” indicating he was no longer on the track. Subsequently, handler called off the track. Handler then told the other officers that the robber was in the vicinity of the intersection which included 4 houses.
In this track, other corroborating evidence in this case supports the conclusion that Edwards was the suspect K9 was tracking. First, the clerk recognized Edwards as a regular customer with distinctive tattoos. LE pursued a lead which connected Edwards to the address of 361 Nesbit Avenue—a house near the intersection where K9’s track ended—and obtained descriptive information about Edwards from a law-enforcement database that appeared to match the clerk’s description of the suspect. While officers were surveilling the house at 361 Nesbit Avenue, Edwards arrived with girlfriend, who also lived there. LE obtained consent to search the premises and found both a teal hoodie and a silver BB pistol in the master bedroom.
The particular circumstances of the case, including that K9 tracked the suspect’s scent to an intersection near 361 Nesbit Avenue, Edwards was later found to reside there with his girlfriend, and a teal hoodie and silver BB pistol were found in that residence, constitute “substantial assurance” that Edwards was the suspect K9 was tracking. Although K9’s track itself did not immediately lead to the identification of a suspect, a reasonable inference of Edward’s identification arises on the facts, and therefore, the evidence is for the jury to determine.
As the trial court properly noted, any concerns with the dog-tracking evidence, which Edwards had a full and fair opportunity to explore on cross-examination, go to weight, not admissibility. Accordingly, the trial court did not abuse its discretion in admitting the dog-tracking evidence for the jury to consider.
Note: This handler did not keep records of the trainings at home, but this is a must do. This did not effect the finding of reliability, but having the records is much better than just your testimony. In addition, keeping complete and up to date records allows you to refresh your recollection for testimony.
United States v. Ramirez-Rivera (11th Cir. Florida 2023) 2023 U.S. App. LEXIS 10325 (Unpub).
Traffic Stop; Prolonged Detention
A car that did not have proper license plate illumination was stopped by LE. Ramirez-Rivera was a passenger in that vehicle. The court held that LE had reasonable suspicion to stop the vehicle. In addition, the K9 sniff took place simultaneously with the traffic investigation (LE was waiting for information to come back on a routine records check while handler ran the K9 around the car). Therefore, there was no prolonged detention.
Note: There were two LE on scene; the investigating officer and the handler. This is ideal, although for many agencies, not practical. Remember, if you are the investigating officer and the handler, there may be short amounts of time where the K9 could be deployed. Or you’ll have to develop reasonable susipicion of other crimes. 
United States v. Rederick (8th Cir. South Dakota 2023) 2023 U.S. App. LEXIS 9374
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine
Rederick was under investigation for suspected drug activity. As part of that investigation, Rederick’s cell phone location was monitored. There was an indication that Rederick was going to meet a person LE knew to be involved with the sale of narcotics. Investigators asked uniformed officers to stop the car, preferably with independent reasonable suspicion, but if not, stop the car to investigate the drug activity.
Rederick was driving a pickup truck which was towing a sedan on a flat bed trailer. The trailer’s plate was not illuminated which was a violation. Uniforms pulled Rederick over. LE then spent 16 minutes writing a citation. Within the first 12 minutes, LE called for a K9 team. Twenty-two minutes into the stop, the K9 team arrived and deployed. K9 alerted to both the truck and the sedan, taking about 5 minutes to perform the sniff. There was meth in the trunk of the sedan.
The appellate court held that LE had two lawful bases to stop Rederick; the traffic violation and the collective knowledge of the existing drug investigation. The collective knowledge of LE conducting an investigation is sufficient to provide reasonable suspicion, and the collective knowledge can be imputed to the individual officer who initiated the traffic stop when there is some communication between the officers. The investigator communicated the facts from his investigation to the uniform, who then stopped Rederick. This meant that the time to investigate included not only a traffic investigation, but a drug investigation as well.
Rederick then challenged the K9’s reliability, claiming that the K9’s alert was insufficient because video footage does not show the full alert, and because the methods used to train K9 were unreliable. Rederick’s expert, Dr. Mary E. Cablk, testified that K9’s training program—based on the Utah Peace Officer Standards and Training (POST) training model—produces unreliable results because it does not use double-blind studies and is based on outdated psychology for dog training. Dr. Cablk also criticized the training records for K9, claiming they were confusing and incomplete.
LE testified that the training used by his department is double blind and training methods have been update (although the manual has not been updated). The training records showed that K9 was certified in 6 different controlled substances after receiving passing scores in 7 real-world scenarios. The K9 team completed 16 hours of training each month until K9’s retirement due to injury.
Handler also testified that K9 alerted on the sedan by changing his breathing and wagging his tail faster. The court held that K9’s accuracy can be deciphered because the training records indicate scores for positive identifications. In addition, the defendant’s expert could not specifically say whether the dog used in Rederick’s case was reliable or unreliable.
Note: Interesting that they would hire an expert who waffled on the ultimate question. Here again, there are records issues. While it is often irritating to have to keep records, complete and up to date records will probably save you from having to testify about them since the defendant can see that your K9 was properly certified and trained. 
Davis v. Allen (Wisconsin 2023) 2023 U.S. Dist. LEXIS 64550
Excessive Force; Duration of Bite
LE was dispatched to Davis being at the property of a known drug offender. Davis had multiple warrants for his arrest, including armed robbery, possession of methamphetamine, strangulation and suffocation, false imprisonment, aggravated battery, disorderly conduct and bail jumping. LE responded with several officers along with a K9 team. When LE arrived, Davis was sitting in his car. When he saw LE, he got out and ran.
LE believed he ran to a residential trailer, based on the direction he ran. The resident denied that Davis was present or had been on the property. LE told resident they were going to search his trailer based on resident’s probationary terms. Resident then conceded he was lying about having not seen Davis.
LE was concerned Davis could be armed, given his past history. The inside of the trailer was a small, cluttered space with a narrow hallway and items strewn about, such that K9 could access spaces that the officers could not readily see. As a result, LE and handler decided to send K9 into the trailer first to search for Davis, who had indeed gone into the trailer and by then had gone into a bedroom located in the back of the trailer and lay down on a mattress on the floor.
Before releasing K9 into the trailer, however, handler yelled: “Sheriff K9. Announce yourself now or I will send the dog in the house. You will be bit.” After a pause, handler again yelled: “Sheriff K9. Final warning. If you’re in the house you need to announce yourself now or you will be bit. Final warning.” After handler received no response, he gave K9 the command, “Find him,” then released K9 into the trailer.
According to Davis, he heard Allen’s announcement from the bedroom where he was hiding, but decided not to respond or leave the bedroom. Although unbeknownst to the officer at that time, Davis claimed that instead, he lay face down on the bedding, with his head pointed towards the door of the bedroom, his hands behind his head and his fingers interlaced. He also admits hearing K9 moving about the trailer, but still failed to announce his presence to the officers.
Within a few seconds, K9 found Davis in the bedroom and bit him on his upper left arm between his elbow and shoulder. K9 was trained in a “bite and hold” technique, which meant that he would not release Davis’s arm until ordered to do so by his handler. Davis began to yell, “Help, help, help me,” to which handler responded, “Show me your hands. Do not fight my dog. Show me your hands. Do not fight my dog. Come out to me. Come out to me.” Davis continued to shout for help, yelling, “Help me please, help I can’t, I need your help.” Handler and LE then entered the trailer and moved through the kitchen and into a narrow hallway toward the back bedroom, continuing to command Davis to come out. While moving through the hallway, LE also told handler that he had seen a knife in the trailer, and both officers drew their firearms. As the officers approached the bedroom door, handler saw glimpses of Davis through the door, such that handler could alternatively see Davis’s face, one of his hands, and at times, his face and one of his hands. However, the entry and view into the bedroom were obstructed by a large box spring standing on end and protruding into the doorway.
Handler had a better view of Davis once he reached the threshold of the bedroom door, which was open about 12 inches. However, the parties dispute how much the officers could see of Davis through the bedroom door. Handler concedes that once he reached the door, he was able to see both of Davis’s hands, at times, but that Davis’s body was obscured by piles of clothing and bedding on the mattress where he lay. Davis says that he was on top of the clothing and bedding, not under them, and that his hands were raised behind his head and clearly visible to handler from the doorway. It is clear from the bodycam footage that once handler reached the doorway, Davis continued to yell for help and yelled, “please make him stop, my arm,” “look what he is doing to me,” and “look what he is doing to my muscle, help, help me please.”
Due to the box spring obstructing the doorway, the officers could not enter the bedroom without removing their Kevlar vests. Handler and LE attempted to push the box spring out of the way but were unable to do so. They decided to remove their vests so that they could enter the bedroom, with Handler entering first and LE providing cover with his firearm. When LE and handler reached Davis, they could see that both of his hands were raised and on or near the back of his head. Allen then grabbed K9’s collar, ordered him to release Davis, and placed him on a leash. At that point, approximately two minutes had elapsed between the time K9 first took hold of Davis and the time handler commanded K9 to release Davis.
LE handcuffed Davis and led him out of the trailer, after which a tourniquet was applied to his arm. He was then transported to a local hospital by ambulance, and subsequently flown by helicopter to a hospital in Eau Claire. As a result of the canine bite, Davis’s arm is disfigured and permanently disabled and he claims he is in constant and severe pain.
Davis filed a section 1983 4th Amendment action against handler. Handler filed a motion for summary judgement.
The court explained that handler’s order for K9 to “bite and hold” was a significant use of force, “at the higher end of the spectrum,” meaning that the government’s intrusion on Davis’s rights was significant. Accordingly, the court must balance this significant intrusion with the government’s interests at stake. Handler argues that his actions were objectively reasonable, based on the information he had at the time: (1) Davis had outstanding arrest warrants for multiple felonies, including crimes involving weapons and violence, which meant he could be armed with one or more deadly weapons; (2) he had bolted from his car and fled from law enforcement; (3) he was ignoring instructions to surrender; and (4) the trailer was small but cluttered, making it unsafe for officers to search without the assistance of a K9.
The court agreed that these circumstances made handler’s initial decision to direct K9 into the trailer to search for and detain Davis objectively reasonable under the Fourth Amendment, especially when Davis may have been armed and dangerous, had already evaded officers, and was hiding in a location difficult for officers to approach safely. However, given the parties’ disputes of fact, it is a closer question whether those same circumstances justify handler’s failure to order K9 to release Davis earlier than he did so, and potentially mitigate the significant injury to Davis’s arm and related pain.
Specifically, Davis contends that handler should have ordered K9 to release Davis as soon as handler heard Davis screaming for help. Davis further contends that it was objectively unreasonable to order and expect Davis to “come out” with K9 locked on his arm. In support of his argument, Davis cites to the report of his police practices expert, who opines that a reasonable and well-trained deputy would not have permitted a canine unit to bite a suspect for two minutes after the dog had located the suspect. Instead, the expert opines that a reasonable officer would have recalled the dog and ordered Davis to exit the bedroom with his hands up or, if that failed, a reasonable officer would have used a SWAT team to create a perimeter around the trailer in which Davis was confined, then used pepper spray or a taser (or otherwise attempted) to persuade Davis to surrender. At the very least, Davis argues, handler should have recalled K9 once he had proceeded to the hallway (or at least to the bedroom door) and could see that Davis was lying prone with his hands above his head and suffering from a severe wound inflicted by K9.
As the Seventh Circuit has explained, “as the threat changes, so too should the degree of force.” Thus, even if a police officer is justified in using force against a suspect initially, the officer cannot continue to do so if the individual has been subdued and no longer poses a threat.
Of course, whether the officers perceived that Davis had been subdued and no longer posed a sufficient threat to justify continuing K9’s bites are material issues of disputed fact that a jury must resolve. For example, while a reasonable jury could not conclude that handler acted with excessive force in employing K9 to find and bite Davis under all the circumstances here, that same jury could find that as soon as handler heard Davis screaming in pain and begging for help, a reasonable officer would have known that Davis could not comply with orders to come out while being actively bitten, and so, should have recalled K9 and reassessed the situation. Likewise, the jury could conclude that upon seeing Davis laying on his stomach, with his hands raised and suffering from a serious injury, a reasonable officer would have ordered K9 to release Davis.
Handler’s arguments to the contrary are persuasive, but ultimately also dependent on material disputed issues of fact. For example, handler argues that he could not always see Davis’s hands, and that he appeared, at times, to jerk his arm away from K9. He also points out that the location of the bedroom presented a particularly dangerous situation for the officers. However, Davis responds that his arms were always visible and above his head, and as discussed above, there were other less significant options available to the officers than continuing the infliction of such significant force. Similarly, handler argues that Davis might still have been armed, and until under the officers’ physical control after being handcuffed, he presented an ongoing risk of accessing a weapon on his person or around his bedding.
As the Seventh Circuit has explained, however, “in every arrest there is a possibility that the individual is armed and that does not justify allowing [a police dog] to continue to bite [the suspect] while [the officer] . . . handcuff[s] him.” Further, handler was himself armed and was not alone: LE was in the trailer with handler, with an AR15 rifle drawn to provide backup.
Thus, there is a reasonable argument, which Davis’ expert makes, that “this is not the case of a single officer attempting to control and detain multiple suspects.” Moreover, if a jury believed Davis’s version of events, they could find that by the time two officers reached the bedroom door, they clearly saw Davis’s hands above his hand and would have known that Davis no longer presented a risk of harm to the officers or the public. Thus, taking the facts and reasonable inferences in the light most favorable to Davis, a reasonable jury could find that handler used excessive force by not calling off K9 sooner.
There are genuine and material factual disputes about whether handler’s failure to recall K9 at an earlier point during the encounter amounted to the use of “significant force” against a “subdued” or, at most, “passively resistant” suspect. Given these factual disputes regarding the circumstances and timing of handler’s decision to release K9 from his hold on Davis, handler is not entitled to qualified immunity on this record. Of course, this does not foreclose the court still applying the doctrine of qualified immunity to handler at or after a full airing of the facts at trial.
Note: The court said, “As the threat changes, so to should the degree of force.” This is huge and this needs to be practiced in the field. This was a unique situation but I have to agree with the court: there are material issues of fact that leave the handler open to being liable for the duration of the bite. In addition, the handler told Davis to come out to him, but the facts show that not only is it difficult to move with a bite trained dog attached to you, both LE and handler had difficulties getting into the room which would indicate that the order to come out was not appropriate. Parsing out what injuries go to what time period will be a other issue, should it come to that. Remember, you can always call your K9 off, move in and if the suspect doesn’t comply, re-deploy. Had this been the case here, summary judgment might have been granted and handler would have been free and clear.
Commonwealth v. Mann (Pennsylvania 2023) 2023 Pa. Super. Unpub. LEXIS 1056
Traffic Stop; Odor of Marijuana as Reasonable Suspicion
While on patrol, and stopped at a red light, LE noticed that the car next to him smelled of burnt marijuana. This meant to LE that an occupant was currently smoking or had just smoked. There were no other cars in the vicinity. LE stopped the vehicle after the light turned green. The stop was solely based on the fact that LE smelled the odor of burnt marijuana.
Mann was the passenger. LE saw a baggie of marijuana in Mann’s hand. Mann was arrested and searched. Heroin was found in one of his pockets. In the car was a half-smoked blunt.
The trial court granted Mann’s motion to suppress. The government appealed. The appellate court dealt with two issues as framed by the government: I. Did LE have reasonable suspicion to conduct a traffic stop based on the odor of freshly burnt marijuana emanating from a moving car? II. Where the investigative detention was legal, was the additional evidence recovered fruit of the poisonous tree?
Therefore, the first issue to be decided was whether the odor of burnt marijuana was reasonable suspicion for a traffic stop.
Bearing in mind that the Pennsylvania Supreme Court held that after the passage of the Medical Marijuana Act and legalization of marijuana, the odor of marijuana is no longer probable cause in and of itself, the appellate court said. The court must look at the totality of circumstances.
The court held that the trial court erred in concluding LE did not have reasonable suspicion to stop the vehicle at issue. LE, a three-year veteran who was familiar with the smell of burnt marijuana v. raw marijuana, was on routine patrol around 9 p.m. Based on his experience, the odor of burnt marijuana indicated that someone was currently smoking or had just smoked.  His vehicle was located in the left traffic lane, waiting for a green light, with his windows down when he smelled “an odor of burnt marijuana coming from a Honda” that was located “less than a car length” from his vehicle in the right lane. Once the light turned green, he activated his emergency lights and conducted a traffic stop. There were no “other vehicles in or around the vicinity of” his car or the vehicle that was subjected to the stop. He could not see into the Honda because of his position. There were no medical marijuana dispensaries in that area. Therefore, LE had more than just the smell of marijuana; he reasonably believed the scent was coming from the only vehicle in the vicinity. The reasonable suspicion that marijuana was being smoked illegally was sufficient for the stop.
Note: The marijuana laws are constantly changing, so please be in touch with your local prosecutor. 
People v. Perkins (California 2023) 2023 Cal. App. Unpub. LEXIS 2156
Traffic Stop; Odor of Marijuana as Probable Cause and/or Reasonable Suspicion
LE spotted a vehicle in a high crime area and ran its plate. The vehicle came back with Perkins as the owner and expired registration. After Perkins came out of store and moved his car, LE approached him. Perkins got out of the vehicle with a black satchel. Perkins gave consent to search it; there was no contraband found. LE asked for a driver’s license, but Perkins said he did not have it with him. Perkins was extremely nervous. While talking to Perkins, LE saw a beanie that looked like it was placed between the driver’s seat and the console which he believed was deliberately placed there. LE also smelled the odor of raw marijuana coming from inside the car. He also saw a small amount of shake on the floorboard. Perkins also waffled on whether there was marijuana in the car. After getting Perkins out, LE searched the car and found 171 grams of marijuana and a gun under the beanie.
In his motion to suppress, Perkins contends the smell of marijuana does not support a finding of probable cause. The court held that Perkins is correct in so far as the smell alone may not support a finding of probable cause. The smell of fresh marijuana, combined with other circumstances, however, is sufficient to find probable cause. Here, Perkins was was stopped in a known high-crime area; Perkins was nervous; and he changed his story about the presence of marijuana in his car while stopped, presumably to avoid a search.
In addition, while LE only saw a small amount of loose-leaf marijuana on the car’s floorboards, he knew based on his experience that if he could smell the unburnt marijuana, it was likely to be a large, and therefore illegal, amount. He was entitled to rely on his experience to make that inference.
Defendant also contends LE could not establish probable cause to search the car based on LE’s “assumption” that Perkins was hiding a gun in his car. Defendant’s contention overlooks LE’s experience, which renders LE’s inference that defendant was hiding a firearm in the car more than just a bare “assumption.” As noted above, police officers are allowed to rely on their “training and experience in drawing inferences from the facts he [or she] observes.”
Here, based on his training and experience, LE knew Perkins may be armed with a firearm, but he quickly learned that firearm was not concealed in Perkins’ satchel or on his person. LE then saw the beanie stuffed between the driver’s seat and center console, which based on his experience, was another likely place for Perkins to conceal a firearm. Perkins’ efforts to keep LE away from the beanie only served to reinforce the inference that he was hiding a firearm.
In short, based on the totality of circumstances, including the neighborhood, the smell of unburnt marijuana, the likelihood Perkins was armed, and Perkins’ own behavior, the appellate court concluded there was sufficient evidence to support the trial court’s order finding probable cause to search Perkins’ car and denying Perkins’ motion to suppress.
Note: There is a split of authority in the California state appellate courts and the nuances are too many to name here. Basically, it appears that just the odor of marijuana is no longer probable cause in itself which would allow for a search. However, based on this case (which is unpublished), it is apparent that certain districts are leaning more toward supporting government searches in these marijuana situations. Be sure to be on the same page as your local prosecutor. 
Willingham v. State (Delaware 2023) 2023 Del. LEXIS 139 (Not finalized)
Traffic Stop; Prolonged Detention; Search Incident to Arrest
While on patrol, LE saw a vehicle with heavily tinted windows. As it drove past, LE smelled the odor of marijuana. The plate indicated that the registration was suspended. Before LE could make a traffic stop on the vehicle, it stopped at a convenience store and the driver went in. LE waited until he came back out and contacted him. Willingham was the driver.
As LE approached, he could smell marijuana and noticed that a marijuana blunt was on the center console. Willingham admitted to possessing marijuana. He was detained and his car searched. Willingham had a small amount of marijuana on his person and $415 in cash. In a bookbag that was on the front passenger seat, LE found 51 small orange containers of suspected crack cocaine, 19 small blue containers of suspected methamphetamine, and a digital scale. In the pocket of the driver’s side door, LE found a loaded .223 rifle magazine wrapped in a plastic bag and rubber gloves. In the trunk of the car, LE found a large amount of personal property, including clothing, shoes, and toys. Behind the personal property, in the section of the trunk behind the rear passenger seat of the car, they found an unloaded Ruger Sturm .223 rifle. DNA from the rifle matched Willingham.
Willingham complained that the police search of his person and vehicle were unconstitutional, and the resulting evidence should have been suppressed. Specifically, he argued that the searches exceeded the “scope and initial justification” of the traffic stop, without probable cause for the warrantless searches.
Police may lawfully search a vehicle without a warrant if the police have probable cause to believe that the automobile is carrying contraband or evidence of criminal activity. “Probable cause determinations are made by evaluating the totality of the circumstances.” The record reflects that LE smelled an odor of marijuana emanating from the car that Willingham was driving and of which he was the sole occupant; that LE observed a marijuana blunt on the center console when he approached the car; that when LE asked Willingham if he had marijuana, Willingham admitted that he did. These facts are sufficient to establish that Officer Scullion had probable cause to believe that Willingham’s vehicle contained contraband or evidence of criminal activity, including consumption of marijuana in a moving vehicle in violation of Delaware law.
As to the search of Willingham’s person, police may search a suspect incident to a lawful arrest. “While a search typically occurs after an arrest, this Court has held that where the arrest and search are nearly contemporaneous, the search may precede the arrest, so long as the police do not use the search to establish probable cause for the arrest.” Willingham arguably was not under arrest when LE searched him and found $415, but “he was arrested shortly afterwards” and the police did not use the $415 to establish probable cause to arrest him. Rather, the police had probable cause to arrest Willingham based on the drugs and rifle that they found when they searched the vehicle.
Note: Since under Delaware law one cannot consume marijuana in a moving vehicle, and there was a blunt on the center console, as well as the odor of marijuana and LE’s training and experience, the court found the search to be incident to arrest and therefore constitutional. 
United States v. Ali (Oklahoma 2023) 2023 U.S. Dist. LEXIS 62293
Traffic Stop; Sniff as Probable Cause; Additional Reasonable Suspicion; Secondary Site Search
LE stopped Ali and his passenger Jabril for speeding in a construction zone. Ali was asked to get out and come back to the patrol vehicle. Ali complied. He presented his driver’s license and told LE that Jabril rented the vehicle, but he was an authorized driver. Ali’s explanation of his travel plans did not make sense. Ali was fidgety and nervous. LE told Ali to stay put while he asked Jabril about the rental agreement. Jabril started searching for the agreement and Jabril’s travel plans did not match Ali’s. The car was several days overdue. Jabril seemed excessively nervous as well.
LE returned to Ali and had him sit in the backseat of the cruiser. LE then radio’d for a K9 team to respond. LE then began to run their licenses. While LE was waiting for verification on Ali’s license, the K9 team arrived. Two minutes after that, dispatch told LE that Ali’s license was unable to be verified. LE then questioned Ali about his license and whether there was any contraband or weapons in the car. Ali said no, but would not consent to a search.
The K9  subsequently sniffed the vehicle and alerted. A vehicle search ensued. There were several pounds of pills found and marijuana shake.
The Appellate Court found that the traffic stop was reasonable—LE observed and paced the vehicle for more than two miles at 60 miles per hour in a construction zone with a speed limit of 45 mph. Moreover, LE’s general inquiry into occupants’ travel plans did not unreasonably prolong the stop as he noticed significant discrepancies in travel narratives while pursuing the traffic-based mission of the stop. Inconsistencies in travel plans may give rise to reasonable suspicion. Paired with Ali’s “furtive movements,” Jabril’s nervousness, and the fact that the rental vehicle appeared to be overdue to be returned, the Court concluded that an objectively reasonable officer would have reasonable suspicion of criminal activity.
Additionally, the Court found that LE detained occupants for a reasonable time to allow for handler to arrive—eleven minutes into the stop—and deploy K9 to conduct the dog sniff.
Although occupants contend that K9’s alert was “so subjective that only the handler [was] able to identify it,” K9 plainly stopped at the front passenger-side door and “pointed” for about thirty seconds signaling an alert. The Court concluded that the state-certified canine’s alert was reliable and that the officers had probable cause to search the jeep.
Note: LE had stopped the vehicle on a busy interstate and when they found pounds of pills, they wanted to take the vehicle to a safer location to continue the search. The court held that this situation indicated that the search was legally extended to that second location. However, best practice is to get a search warrant if you move a vehicle to a secondary location to either continue a search or start a new one. 
State v. Folsom (North Carolina 2023) 2023 N.C. App. LEXIS 172
Traffic Stop; Odor of Marijuana as Reasonable Suspicion and/or Probable Cause; Prolonged Detention
LE stopped Folsom when LE ran the plate and found that the status of the registration was expired. While approaching the vehicle, LE detected the odor of marijuana. Folsom was in the passenger seat. LE asked for both IDs and the registration. Back up arrived shortly after the actual stop. Back up called for a K9. The K9 team was across the street and took about 15 seconds to respond. A free air sniff was performed and the K9 alerted to the vehicle. LE asked Folsom to exit. LE noted that Folsom had a straw sticking out of his pants pocket. LE believed this was drug paraphernalia. A Terry frisk revealed the straw and a packet of cocaine. A search of the vehicle revealed a marijuana pipe in the glove box.
Folsom argues the stop was unduly and unlawfully prolonged without reasonable suspicion of further criminal activity. Folsom asserts the scent of marijuana cannot form the basis of reasonable suspicion because the smell is indistinguishable to hemp, which possession thereof has been legal in North Carolina since 2015. However, when LE detects the odor of marijuana, the law supports a finding of additional reasonable suspicion to allow LE to investigate further. This allowed for the contact with the K9 team and ultimately, the K9’s alert provided probable cause to search under the automobile exception.
Note: The appellate courts seems to be dealing with the smell of marijuana mostly like a part of probable cause and not as probable cause. Here, the human LE smelled the marijuana and a K9 was deployed who also alerted. It would be interesting to know if the K9 was trained on marijuana. In addition, the fact that K9s alert on the substances they are trained to do so on, means the K9, whether trained on marijuana or not, could be alerting to other controlled substances. This doesn’t seem to be an argument that is gaining any real traction, unfortunately. 
Kowalskey v. State (Indiana 2023) 2023 Ind. App. Unpub. LEXIS 483
Traffic Stop; Prolonged Detention; Alert as Probable Cause
LE initiated a traffic stop for tinted windows. As LE approached, he could not tell if there were any passengers due to the dark tint. He knocked on the passenger’s window and someone lowered the window. There were a total of 5 occupants. Kowalskey was the middle passenger in the back seat. Everyone exhibited signs of drug use. Only the driver could produce a license, so LE had the passengers write down their names and dates of birth. While they were doing that, LE went to run the driver’s license. The license was valid so he returned to the vehicle, returned the driver’s license and told him he would be getting a warning. LE also collected his notepad from the passengers. All but Kowalskey did so quickly and Kowalsky seemed to struggle with the task. Ultimately, Kowalskey wrote down a false name. A passenger also wrote the name of her sister, probably to avoid arrest on her warrant. As LE investigated the information on the passengers, he could not verify Kowalskey or the female passenger. Kowalskey maintained his false identity, so LE called for back up because he believed Kowalskey to be lying about his identity. Kowalskey had $4500 in cash on his person. Back up officers started evaluating the other occupants to determine if they were under the influence of drugs.
While the investigations into the crimes of Kowalskey and driver were ongoing, the K9 team arrived and conducted a free-air sniff around the car. K9 alerted to the odor of narcotics in the car, and LE then searched the car. When K9 alerted, he gave the officers further probable cause to search the vehicle under a valid warrant exception. An alert from a dog sniff gives police probable cause to search a vehicle, triggering the automobile exception to the warrant requirement.  In the trunk, they found a Pittsburgh Pirates bag, which contained lying passenger’s identification, Kowalskey’s identification, male clothing and male hygiene items, two boxes of new syringes, a loaded syringe, an envelope containing 10.4 grams of methamphetamine, and an envelope containing over 100 pills with markings that made them appear to be Xanax but were later determined to be Clonazolam. Kowalskey’s fingerprints were on the envelope and he had a matching pill in his pocket.
Kowalsky complained that the stop was unduly prolonged to wait for the K9 team. However, the court disagreed. Although approximately fifty-one minutes elapsed between the initial traffic stop and the dog sniff, the traffic stop was not complete when K9 began his sniff because the identity deception and operating while impaired investigations were still ongoing. Although Kowalskey argues that the tasks related to the initial traffic stop should have been completed well before K9 arrived, this argument ignores that he affirmatively extended the traffic stop by providing false identification information to LE that necessitated further investigation. He also asserts that the investigation into driver’s impairment did not extend the stop because driver was simply allowed to leave the scene; however, the testimony reflected that LE began performing field sobriety tests on driver but decided to transport him to a police station to complete the investigation due to weather conditions. Under the circumstances, the traffic stop was not extended due to dog sniff, but instead, by the conduct of driver and Kowalskey, which necessitated further independent investigation. We, therefore, conclude that subsequent search of the car was not unconstitutional.
Note: This case presented an entire smorgasbord of law violations. The investigations into these additional violations extended the traffic investigation (tinted windows) into an investigation of false identification and driving under the influence at least. Since the K9 team was on scene and alerted before these investigations were complete, there was no prolongation. 
United States v. Lauderdale (Indiana 2023) 2023 U.S. Dist. LEXIS 61463
Traffic Stop; Prolonged Detention
Handler stopped Lauderdale for speeding, which was corroborated by body cam and other evidence. In addition, the sniff did not prolong the stop: at no point did the police stop working on writing a ticket, and the sniff revealed drugs before the ticket was complete. Handler’s body-cam shows that he discussed the traffic stop with Lauderdale and announced his intent to let him off with a warning for speeding. Handler then went back to his squad car to process the ticket; he worked on the ticket for about four minutes and ten seconds, during which time he is seen scanning Lauderdale’s license, entering information from the vehicle registration, and scrolling through records on the onboard computer. A backup officer arrived, and handler instructed him to take over work on the ticket. While that officer worked on the ticket, handler prepared and conducted the dog sniff of Lauderdale’s vehicle. The dog alerted to drugs almost immediately upon approaching the vehicle. The backup officer was still working on the ticket. So even if handler had not done the drug sniff, at that point Lauderdale would still have been detained—the drug sniff did not “prolong” the stop.
Note: Since this was an appeal, there is no real description of the facts. However, the appellate court made short work of the appeal by Lauderdale and found there was no prolongation at all.