NOVEMBER 2020 UPDATE FOR MEYER’S K9 LAW (Volume 1, No. 6)
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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from October of 2020. (A caution here: some cases are unpublished (Unpub.) so cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. In addition, the arguments in them can be used; the case just can’t be cited as precedent in court.)
If you are new to the website, thank you for becoming a member! Please feel free to browse through the previous updates. Each update has not only a review of the PSD relevant cases for the month, but often has an article that explores a specific issue in more depth. If anyone would like me to address a particular issue, please feel free to email, text or call me.
You’ll note in several of October’s cases that a firearm was found. This is one of the reasons why it is so important to proceed with searches lawfully; you never know when you are going to run into evidence of additional crimes. While none of October’s guns were involved in a homicide or other horrific crime, that scenario has been true in other cases. You don’t want to be the one who botches the search which found a weapon or other evidence in a major case.
I hope this update is of assistance to you. Meyer’s K9 Law is here to assist you in fighting the good fight of responsible and effective policing. As always, if you have any questions or concerns, I’m just an email or text or phone call away.
(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. It is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)
ARTICLE
Five more states have decriminalized marijuana and Oregon has decriminalized personal possession of all major controlled substances/drugs of abuse; what does that mean for PSD teams?
You are probably already aware that five more states have legalized recreational marijuana or at least decriminalized it (meaning the punishment is just a fine and labeled a civil offense so it does not carry any jail time). Those states are Arizona, Montana, Mississippi, New Jersey and South Dakota. In addition, Oregon voters passed a ballot measure that decriminalizes personal possession of heroin, methamphetamine, LSD and other hard drugs. Oregon will also allow medical use of psilocybin mushrooms. Oregon has made personal possession punishable by a $100 fine or the user can attend one of Oregon’s new addiction recovery centers funded by the tax revenue being generated from Oregon’s legalized, regulated marijuana industry. The new laws will take effect on February 1, 2021 and the recovery centers are to be available by October of next year.
Finally, the federal government is getting closer to decriminalizing marijuana. The MORE Act would federally de-schedule cannabis, expunge the records of those with prior marijuana convictions and impose a federal five percent tax on sales. The legislation would also create a pathway for resentencing for those incarcerated for marijuana offenses, as well as protect immigrants from being denied citizenship over cannabis and prevent federal agencies from denying public benefits or security clearances due to its use.
Tackling the issue of marijuana first: the California courts have concluded, for the most part, that if LE only finds evidence of a “legal” amount of marijuana, that legal amount cannot be the basis of probable cause to search. H&S § 11362.1(c) (enacted November 8, 2016) clearly provides that marijuana possessed under lawful circumstances is “not contraband nor subject to seizure,” nor does a subject’s lawful conduct pursuant to section 11362.1(a) “constitute the basis for detention, search, or arrest.” However, the courts have recognized that if there is any evidence of additional crimes (for example, the odor of burnt marijuana may be probable cause because smoking marijuana while driving is still illegal), LE can use the “legal” amount as one factor in developing probable cause with additional factors. See People v. Fews (2018) 27 Cal.App.5th 553.
Other states that have decriminalized marijuana have come to similar conclusions. The gist of all of this is that unless you have additional information that indicates the possession is illegal is some form (in the relevant state) or additional factors that allow you to show probable cause, a search will not be allowed.
Oregon, however, has upped the ante in the election held earlier this month by decriminalizing most, if not, all drugs of abuse, including cocaine, PCP, methamphetamine and opiates (both street and pharmaceutical). There have been no cases regarding this change in law yet because the law had not yet taken effect. However, when it does, where does that leave PSD teams?
In my opinion, based on the way court have treated the decriminalization of marijuana, in Oregon, a positive alert by a PSD will require additional evidence to provide probable cause for a search. There are situations in which drugs of abuse are still illegal; if you are able to articulate probable cause for any illegal possession, then the courts should find probable cause. I suggest you stay in touch with your prosecuting agency and find out how they intend to move forward on drug cases and also be in contact with organizations like California Narcotics Officers Association or the equivalent in your state. In addition, DISA.com has a list of the current laws affecting your state so that may be a good place to start. I will continue to monitor and report on the cases that come from these new laws and keep you informed.
INDEX FOR REVIEWED CASES FROM SEPTEMBER 2020
In Re I.I. (California 2020) 2020 Cal. App. LEXIS 7227 – Odor of Marijuana as Probable Cause
Johnson v. Louisville-Jefferson County Metro Gov’t (Kentucky 2020) – Monell Liability; Negligent Training and Supervision
Rhoton v. Commonwealth (Kentucky 2020) – Traffic Stop; Prolonged Detention
State v. Taylor (Ohio 2020) Odor of Marijuana as Probable Cause; Traffic Stop; Search of Compartments in Vehicle
United States v. Barrera (South Dakota 2020) Traffic Stop; Prolonged Detention
Commonwealth v. Salim Abdul Akbar (Pennsylvania 2020) Reasonable Expectation of Privacy (Standing); Traffic Stop; Odor of Marijuana as Probable Cause; Alert as Probable Cause
United States v. Ingram (Florida 2020) Traffic Stop; Prolonged Detention; Alert as Probable Cause; Collective Knowledge Doctrine; Reliability Foundation
In re I.O. (Texas 2020) Search of Student/Juvenile
Commonwealth v. Little (Pennsylvania 2020) Traffic Stop; Prolonged Detention; Alert as Probable Cause; Reliability Foundation
Nuzzo v. Devine (Connecticut 2020) Excessive Use of Force
State v. Davis (Ohio 2020) Traffic Stop; Odor of Marijuana as Probable Cause
Harper v. State (Maryland 2020) Traffic Stop; Odor of Marijuana as Probable Cause
Morton v. State (Maryland 2020) Traffic Stop; Odor of Marijuana as Probable Cause
United States v. Martinez (Wisconsin 2020) Traffic Stop; Prolonged Detention; Reasonable Suspicion
United States v. Paholsky (West Virginia 2020) Traffic Stop; Prolonged Detention; Reliability Foundation
United States v. Tochihara Sheh (Idaho 2020) Traffic Stop; Odor of Marijuana as Probable Cause
State v. Macrae (New Jersey 2020) Prolonged Detention; Odor of Marijuana as Probable Cause
Moya v. City of Clovis (New Mexico 2020) Excessive Use of Force
Holifield v. Kulwich (Wisconsin 2020) Odor of Marijuana as Probable Cause
United States v. Sanders (Indiana 2020) Traffic Stop; Alert as Probable Cause; Prolonged Detention
REVIEWED CASES FROM OCTOBER 2020
In Re I.I. (California 2020) 2020 Cal. App. LEXIS 7227
Odor of Marijuana as Probable Cause
LE saw a juvenile jay walking in a residential area about 0030. This jurisdiction had a curfew for minors. California allows only adults to possess recreational marijuana. Juvenile stopped near a vehicle whose doors were open. Two males were in the front seats and two juvenile females were standing near the vehicle. LE could smell the odor of burnt marijuana coming from the vehicle as they approached. Juvenile saw LE and grabbed the front of his waistband. LE interpreted that, based on training and experience, to mean juvenile was concealing a weapon. Juvenile started to walk away and LE grabbed his arm detaining him and asked if he had anything illegal. Juvenile denied and clutched again at his waistband. Terry frisk revealed a loaded handgun. The court held that the totality of the circumstances of this case caused the detaining officer to have a reasonable suspicion that criminal activity was occurring or about to occur.
Note: In California, the smell of burning marijuana is not, in itself, reasonable suspicion for a detention. However, when combined with additional facts and the training and experience of LE, this situation can still rise to reasonable suspicion. Make sure your investigation records all facts that are relevant to your determination of reasonable suspicion as the LE officer did here (juveniles out past curfew, vehicle in the dark in the middle of the night with additional juveniles in additional to the smell of marijuana).
Johnson v. Louisville-Jefferson County Metro Gov’t (Kentucky 2020) 2020 U.S. Dist. LEXIS 202863
Monell Liability; Negligent Training and Supervision
Subject filed a lawsuit claiming constitutional violations (unreasonable search and seizure) and damage to his vehicle caused by a PSD. Subject was pulled over for traffic violations and the vehicle was sniffed by a PSD who scratched and damaged the interior. No contraband was found. The moving violations were dismissed and subject did not admit to probable cause.
The court upheld a Monell claim against the agency because subject alleged that the agency had an illegal policy or custom of targeting African Americans for pretextual stops and searches of vehicles. The court also upheld a failure to train claim against the agency because subject alleged that the agency customarily engaged in federal rights violations by targeting African Americans for pretextual stops and searches of vehicles. Subject also provided newspaper accounts of similar stops; therefore, it can be plausibly inferred that the agency ignored these alleged violations and did not take action to address it. The court also upheld claims of negligent supervision and training and negligence. The court also indicated that it was too early in the process to rule on qualified immunity.
Note: While this may seem like a bad case for us, it is actually just too early in the process to know all of the facts. The court must construe the facts in the most favorable light to the subject which in this case means to ignore the LE side of it. The case does bring an interesting issue to light, however. You’ll note that the moving violation charges were dismissed by the prosecutor with prejudice and the subject did not admit probable cause. Had subject admitted probable cause in the case prior to dismissal, that could have precluded this lawsuit (although in this case, it appears that they wanted to file the suit and were just waiting for the right set of facts to go forward). Each case is unique based on its facts, but obtaining a stipulation to probable cause in exchange for dismissal is something the prosecutor can do. Why this didn’t happen in this case, I don’t know. But if you believe that you had probable cause for your actions, you could contact the prosecutor and ask for a stipulation of probable cause prior to dismissal or reduction.
Rhoton v. Commonwealth (Kentucky 2020) 2020 Ky. LEXIS 402
Traffic Stop; Prolonged Detention
LE was patrolling a high drug crime area when LE observed a car with an unbelted passenger. During the traffic stop, LE saw canisters that, based on training and experience, believed them to contain controlled substances. Driver denied having any drugs in the vehicle and refused a request to search. LE took information from driver and returned to his cruiser to start the citation. LE radioed for a PSD team to respond. LE was still working on the citation when PSD team arrived (passenger had an unrelated arrest warrant). The original LE officer then assisted the PSD handler in getting occupants out of the vehicle to conduct the sniff. PSD alerted to the driver’s door; once the door was opened, PSD alerted on driver’s seat. Contraband was found during the search of the vehicle.
The court held that even though this stop took about 10 minutes longer than usual, the fact that the passenger had a warrant provided independent probable cause to extend the time of the stop to address the warrant. The court also went on to say that even though LE could have handled the citation first and cut driver loose prior to dealing with the passenger, LE may decide to detain all persons involved until the stop is completed, as long as the original and the secondary purpose (in this case, the warrant) are diligently pursued. Because the court held that discovery of the warrant provided new probable cause to extend the stop, the court determined that they need not address the issue of whether the metal cannisters (and/or or other things observed before the warrant was discovered) created additional reasonable suspicion to extend the purpose of the traffic stop.
Note: This decision appears to address a novel way of addressing prolonged detention in Kentucky. While this specific issue has not been addressed in other states, it could be that the passenger’s warrant status could confer additional probable cause to extend the traffic stop.
State v. Taylor (Ohio 2020) 2020-Ohio-5079
Odor of Marijuana as Probable Cause; Traffic Stop; Search of Compartments in Vehicle
During a valid traffic stop, LE smelled the odor of burnt marijuana coming from the vehicle. Once LE entered the vehicle, LE noticed contraband indicative of use and trafficking of controlled substances. In the center console, LE noticed the molding was displaced, and that based on LE’s training and experience, that meant the console could be concealing additional evidence of drug crimes. In fact, it did; a large amount of heroin and a firearm.
Subject complained that the search of the console was overly intrusive and exceeded a search of the passenger compartment. The court held that the search of the console was valid. Starting with the premise of Wyoming v. Houghton, the court indicated that once there is probable cause to search a vehicle, LE may search all packages and containers for the item(s) for which LE has probable cause. In addition, the court affirms that in Ohio, the smell of marijuana supplies probable cause to search a vehicle for marijuana. The court, therefore, held that in this case, since LE detected the odor of marijuana during a lawful traffic stop, LE had probable cause to conduct a warrantless search of the interior of the vehicle and its contents that may conceal the object of the search, including behind a visibly displaced panel that is located within the vehicle’s passenger compartment. If, during the search, LE discovers marijuana or other indicia of criminal activity in the vehicle, LE possesses additional probable cause to search other areas of the vehicle and its contents that could contain items for which LE has probable cause.
Note: Ohio has not legalized recreational marijuana. Medical marijuana is approved in limited circumstances.
United States v. Barrera (South Dakota 2020) 2020 U.S. Dist. LEXIS 199721
Traffic Stop; Prolonged Detention
During a valid traffic stop, LE observed that the rear windows were partially down, which was unusual for the very cold weather. LE opined that based on training and experience drug traffickers were known to drive with the windows down to dissipate the odor of drugs. As LE approached, driver was moving around, appearing to hide something between the seats or in the center console. LE smelled the overwhelming odor of air freshener. Inside the vehicle was one air freshener tree and a spray bottle of air freshener readily accessible to driver on the passenger seat. Driver was not wearing any winter clothing, and none was visible in the passenger compartment. LE informed driver he would be getting a warning and went back to cruiser to write citation. LE also called for a PSD team to come and perform a sniff. LE testified that when he questioned driver about the presence of drugs, driver’s voice changed, but the recordings of the contact do not support that. Driver also explained that the car belonged to his brother. LE then asked if LE asked for permission to search, what would driver’s response be? Driver said, “Yeah, that’s fine.” However, it was not clear if driver was agreeing with the statement or actually giving consent to search (based on the way the question was asked). LE then told the PSD team he had consent. PSD team responded they were on their way. About a minute later, driver revoked his consent twice. LE then completed the warning citation. However, LE continued to question driver about subjects unrelated to the traffic stop. Driver said again he wanted to leave and LE said he was going to wait for the drug dog who was just down the road. Driver then said he did not want his trunk searched because he had a lot of luggage and he did not want it torn apart. It took another 10 minutes for the PSD team to arrive, which was a total of 22 minutes into the stop. The court was not impressed with the reasoning of LE regarding the additional reasonable suspicion that would have allowed for additional detention time. The court actually engaged in what other cases have prohibited: taking each factor and applying a non-criminal explanation for it. After that analysis, the court found prolonged detention.
Note: This is a frustrating case for me because a court is engaging in individually explaining away factors that should be considered as a totality of circumstances. It appeared that this court had a bias against LE in this case; the court was not impressed with the factors noted that LE argued were factors that supplied additional probable cause; the court also noted that the LE officer admitted to avoiding giving the ticket to the driver until the drug dog got there. This should be a warning to LE; if you think you’re delaying the stop, you probably are. You should cut the driver loose at that point to preserve constitutionality and have another LE pick him up down the road when he commits another vehicle infraction. It’s important, though, in this scenario that the first stop does not become unconstitutional because then the second stop would be unconstitutional as well through the fruit of the poisonous tree doctrine.
Commonwealth v. Salim Abdul Akbar (Pennsylvania 2020) 2020 Pa. Super. Unpub. LEXIS 3337
Reasonable Expectation of Privacy (Standing); Traffic Stop; Odor of Marijuana as Probable Cause; Alert as Probable Cause
Traffic stop for expired registration. As LE approached, they could smell the odor of marijuana. Driver said the car was rented by his sister and he did not have the rental contract. The car was due back that day. One of the three other occupants was in possession of a burnt blunt. Driver was discovered to have a suspended license. All occupants were removed from the vehicle. PSD conducted a sniff and alerted between the font and rear passenger side of the vehicle. The vehicle was searched and marijuana and a handgun were found.
At the suppression hearing, driver testified that the renter of the vehicle was not his “real” sister, but he had permission from this person and driver believed the rental contract was ending a few days after the stop. Driver did acknowledge that he had since seen a copy of the contract and it had already expired. The renter did not testify. The trial court held that the driver had no reasonable expectation of privacy in the rental car (“standing”) that LE had probable cause to search the car.
The appellate court came to the same conclusions. To demonstrate “standing”, the driver must be able to show that he had a legitimate expectation of privacy in the area searched. Such an expectation of privacy is present when driver, by his conduct, exhibited a subjective expectation of privacy and that subjective expectation is one that society is prepared to recognize as reasonable in light of all the surrounding circumstance. Under Commonwealth v. Jones (Pennsylvania 2005) 2005 Pa. Super. 166, the appellate court held that the driver of a rental car does not have a reasonable expectation of privacy in that car when he is not the renter or named as a driver on the contract and the contract has expired. Here, the driver argued that the US Supreme Court case of Byrd v. U.S. (2018) 138 S. Ct. 1518 overruled Jones. Byrd stated that “As a general rule, someone in otherwise lawful possession or control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.” However, driver in the present case was not the sole occupant; the rental contract had expired, meaning that the vehicle was not legally on the road; and driver had a suspended license. Driver offered no proof that he was given permission to be in possession of the car other than his testimony that his not real sister gave him permission. The court found that lack of evidence compelling. The court found that driver had not demonstrated that he had standing, or a reasonable expectation of privacy in the vehicle. The court went on to hold that, even if standing had been shown, LE had probable cause to search the vehicle because LE smelled burnt marijuana and PSD alerted on the vehicle. The court rejected the argument that once LE saw the burnt blunt in a passenger’s hand, he was not legally able to continue looking for marijuana. The court indicated that the PSD alert added reasonable suspicion because he alerted to a different area of the vehicle from where passenger was seated. The court found that this alert indicated there was additional evidence in a different area of the vehicle (which there was).
Note: While at first glance this case appears to be helpful to PSD teams, I would caution using the argument that where the PSD alerts is where the controlled substance is. Since the PSD is alerting to the smell and not the presence of controlled substances, the alert should allow LE access to search the entire vehicle based on the many cases that come before this one. We do not want to legally limit searching the in area of the alert alone because that does not reflect the actual reality of what the PSD is alerting to.
United States v. Ingram (Florida 2020) 2020 U.S. Dist. LEXIS 195066
Traffic Stop; Prolonged Detention; Alert as Probable Cause; Collective Knowledge Doctrine; Reliability Foundation
During a drug trafficking investigation, subjects were identified as members of the organization. LE had information that subjects were going to make another interstate run to pick up drugs in a rental car. LE, including two PSD teams, surveilled subjects and then directed a marked unit to conduct a traffic stop. While that officer checked on licenses and rental car information, subjects were removed from the vehicle while a PSD team conducted a sniff. One of the subjects appeared to be wanting to run or fight. LE who conducted the stop saw this behavior and got out of his cruiser and stood by with the subjects while the PSD team worked. PSD alerted either during or after dispatch returned with the information that the licenses and rental contract were clear. Cash and drugs were found in the vehicle.
The appellate court held that the stop for speeding was valid. In addition, ordering subjects out of the vehicle was legal under Maryland v. Wilson (Maryland 1997) 519 U.S. 408, 415. Finally, the appellate court held that the stop was not prolonged, because the sniff took place during the first LE’s attempts to check on the licenses and the rental car (10 to 15 minutes). There was no evidence that the subjects were detained beyond the time that the tasks tied to the traffic infraction would have otherwise been concluded had the dog sniff not occurred. In addition, the court held that even if the stop had been prolonged, LE had reasonable suspicion of additional wrongdoing. The court cited the long and intensive investigation already conducted by LE prior to the stop as well as information developed during LE’s investigation of this particular drug run. Consequently, the collective knowledge of all LE involved in the operation is considered in determining whether there was reasonable suspicion to extend the traffic stop, and the court found that LE had more than sufficient basis to know that the subjects were involved in drug trafficking. Finally, the court found that, in spite of subject’s objections, there was no evidence that the PSD was inadequately trained, cued or manipulated into an alert or that other circumstances negated the reliability of the PSD’s alert.
Note: While this court did not address this issue, the citing officer stood by during the sniff and arguably prolonged the detention. However, other courts have said that officer safety is an integral part of a traffic stop and that LE standing by while sniff occurs to make sure the PSD team is safe is not a prolonged detention.
In re I.O. (Texas 2020) 2020 Tex. App. LEXIS 8276
Search of Student/Juvenile
When the school has a tip from an unidentified, but know student, that a particular juvenile (also a student) had provided the tipster with controlled substances the day before and that the juvenile arrived late to school under the influence in the company of two other students who were under the influence and smelled of marijuana, the school is justified in searching the juvenile. Schools have a different standard to justify searching the person of a student. Accommodating both the privacy interests of students and the substantial need of school authorities for freedom to maintain order in the schools does not require strict adherence to the requirement that searches based on probable cause to believe the subject of the search has violated or is violating the law. Rather, the legality of a search in this instance depends on its reasonableness under all of the circumstances. New Jersey v. T.L.O (1992) 459 U.S. 325. This situation requires a two prong test: 1) are there reasonable grounds at the time of the search to suspect that the search will reveal evidence a student has violated or is violating the law or rules of the school; and 2) the actual search must be conducted in a manner that is reasonably related in scope to the circumstances which justified the search in the first place (not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
The juvenile only challenged the first prong of the test. The court held that the tip in question was from a female student who was unidentified at the suppression hearing but who was known to school officials. Since the tipster approached the school officials, the reliability of her information is increased. In addition, the school officials noted that the juvenile was under the influence and had the odor of marijuana on his clothing. The two other students who were with juvenile also were under the influence. The court held that the totality of these circumstances created reasonable grounds to suspect that the search of the juvenile would reveal evidence that juvenile was breaking the law or school rules by possessing controlled substances.
Note: Searches in schools are unique because the safety of the entire student body is at issue. Therefore, the standard for searching the person or belongings of a student are relaxed; LE just must meet the above two prong standard.
Commonwealth v. Little (Pennsylvania 2020) 2020 Pa. Super. Unpub. LEXIS 3225
Traffic Stop; Prolonged Detention; Alert as Probable Cause; Reliability Foundation
Traffic stop for window tint. LE observed in the vehicle four air fresheners, one in each of the vents in the dash of the vehicle. Driver provided his license but had difficulty producing the registration and proof of insurance. Driver said the car belonged to his aunt. Driver instructed to get out of the vehicle, but he refused, continuing the look for documents (LE opined that driver was stalling and was avoiding eye contact). It took 3 requests for driver to comply. Driver consented to a Terry frisk. LE continued to question driver about his travels and driver became more evasive. LE observed that driver was driving a third party vehicle, air fresheners were in every vent, the dark tint of the windows, the fact that driver said he was travelling from New York to Roanoke (a high crime area and a destination city for drugs) on a drug corridor, and the lack of any luggage or clothing one would expect for an overnight business trip were all were consistent with drug trafficking. Due to driver’s demeanor, LE requested back up. In the meantime, LE discovered that driver had been previously charged with drug and gun crimes. LE asked if there was anything illegal in the vehicle, and when driver said no, asked if driver would consent to a search. Driver refused and became more defensive and argumentative. About 45 minutes into the stop, a PSD team arrived in response to the call for back up and performed a free air sniff around the vehicle. PSD alerted to the driver’s door. Driver was removed and LE performed a search, noting that there were signs that there were compartments concealed from view. PSD placed in vehicle and alerted on the rear floorboard. LE found a compartment, but did not have the appropriate tools to obtain access. Driver and vehicle were taken to police barracks where a scope was used to look inside the compartment. Inside was cocaine and a cutting agent stored with dryer sheets. Also found were car maintenance receipts signed by driver.
Driver filed a motion to suppress and alleged that LE gave handler had a treat to put in his pocket to excite PSD and obtain a fabricated alert, which was denied by LE. The handler testified on cross that PSD has a fantastic alert but he is not always perfect and can get overly excited. Handler was not asked about the treat situation. Driver did not contest the stop. The court held that LE had specific and articulable facts that raised a reasonable suspicion of additional criminal activity to extend the stop to investigate, including the PSD sniff. Driver also challenged the sniff, but the court held that once PSD alerted to the driver’s door, LE had probable cause to search the vehicle. The court gave short shrift to the treat theory.
Note: Handler testified to the reliability of PSD, including PSD’s certifications and training. Handler was not questioned about the whole treat theory and since that was really the only challenge put up by the driver, the court found the PSD to be reliable. While this attempt at showing the PSD to be unreliable and only responding to treats seems ludicrous, it was important to counter that assertion with testimony and evidence of PSD’s training and certification which was done here. When a case is appealed, the appellate court only looks at the record of the lower (trial) court and can only judge from the evidence that came in during the lower court hearing. It is therefore important that a full record be made so the appellate court is not distracted by nonsense.
Nuzzo v. Devine (Connecticut 2020) 2020 U.S. Dist. LEXIS 189832
Excessive Use of Force
Subject was mentally ill and intoxicated, as well as armed with a range bag full of weapons, so subject’s family called LE for assistance. LE arrived, found subject lucid and nonthreatening, but drunk, and cautioned him against driving while intoxicated. Subject then came to believe that he was in imminent danger and threatened suicide, cutting his wrist with a large knife which left blood splatters on the floor. Family called LE again, and LE was able to hear subject in the background threatening to burn the house down. When LE arrived, subject crawled out a window onto the roof of the house. LE found a bloodied knife and a trail of blood that led to a sword sticking out of the ground (at that time, LE did not have a context for these findings). LE summoned back up as they believed subject to be at large in an area that was relatively rural, but was only a short distance from a school where children would be soon arriving. Subject was watching all of this and continued to text threats to his wife. After several hours, subject re-entered the house and called LE to say he wanted to surrender. LE told him to leave the house without weapons while staying on the phone with LE. Subject came out and was in the front yard but refused to drop to the ground as demanded. Handler saw that subject had something in his right hand and deployed his PSD. Almost simultaneously, another handler on scene deployed his PSD. Both PSDs engaged, but subject rolled onto his stomach and had his hands under his body. One PSD was removed, but the other remained until subject was handcuffed and secured.
The court believed the testimony of the officers over that of the subject (version above) based on subject’s state of mind and the physical evidence of the bites (placement indicated that at least one bite was when subject was standing, which confirms LE’s version). Applying Graham v. Connor, the court held: “…I conclude that the facts as proven do not establish that the police used excessive force. In light of what the police knew about (subject), the fast-moving sequence of events, and what (handlers) reasonably believed when they instructed their dogs to secure (subject), it was not objectively unreasonable for them to believe that the deployment of the dogs was appropriate to ensure the apprehension of (subject) and without increasing a risk of injury to police officers. Nor was the length of time that the dogs were deployed on (subject) objectively unreasonable. One of the dogs (…) was very promptly disengaged from (subject). The other dog (…) remained with a bite hold for a longer time but not an unreasonably long time in light of what (handler) perceived to be ongoing resistance from (subject).”
Note: Oddly, the subject only sued the officer who were not handlers under a theory of failure to intervene. Since the handlers did nothing wrong, the case against the other officers was dismissed. In any event, LE put together a good case that explained their actions at each point so that the court had no other choice than to rule in their favor.
State v. Davis (Ohio 2020) 2020-Ohio-4821
Traffic Stop; Odor of Marijuana as Probable Cause
A vehicle that left a surveilled residence was stopped for illegal window tint and lane violation. In the cruiser were two LE; one was a handler with a PSD. As LE approached, an odor of marijuana came from the opened windows. During the traffic stop, handler performed a free air sniff with his PSD who alerted twice to the vehicle. Both subjects were ordered out of the vehicle and LE saw subject had a plastic bag with an unknown brown powder in his pocket. LE asked what it was and subject gave him permission to remove it. LE then observed digital scales and packaging. Another officer, arriving after the stop, saw subject throw plastic bags containing a white powder to the ground.
The Ohio Supreme Court has held that the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle. No other tangible evidence is needed to justify that search. State v. Moore (2000) 90 Ohio St. 3d 47, 48. Also, there was no prolonged detention as the sniff occurred during the time that the non-handler officer was engaged in conducting the traffic stop. The court also pointed out the evidence that was found in subject’s pocket was found under the plain view doctrine and this gave LE independent probable cause to search the vehicle.
Note: This case was heard on appeal because the lower court used the wrong standard. The appellate court was able to reverse because there was a good record to work with. Years ago, I had a judge say, “Let’s just do the hearing. If we screw it up, that’s what the appellate courts are for.” Funny, but a terrible way to do business. However, it’s a good reminder that everything you bring before a trial court may very well have appellate review; that’s why it’s so important to make a good, thorough record at the trial court level.
Harper v. State (Maryland 2020) 2020 Md. App. LEXIS 982
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for lane violation and inoperative brake light. As LE approached, he could smell raw marijuana. Based on this, LE searched the vehicle and found a bunch of contraband, including non-marijuana contraband, which was found in a wallet in the vehicle.
The defense conceded that the smell of marijuana justified the search of the vehicle, citing Robinson v. State (2017) 451 Md. 94, where the court of appeals in Maryland held that despite the recent decriminalization of marijuana, the odor of marijuana emanating from a vehicle provides probable cause for LE to conduct a warrantless search. However, the defense claimed that LE could only have searched the areas which could hold an illegal amount of marijuana (at the time, 10 grams of marijuana) and the wallet did not qualify as such a place. The court held that because marijuana in any amount remains contraband, notwithstanding the decriminalization of possession of less than 10 grams of marijuana, LE was justified in searching anything in the vehicle that could have contained marijuana, not just anything that could have contained more than 10 grams of marijuana.
Note: Possession of under 10 grams of marijuana for personal use is a civil offense in Maryland.
Morton v. State (Maryland 2020) 2020 Md. App. LEXIS 978
Traffic Stop; Odor of Marijuana as Probable Cause
After the narcotics task force received information about a package, LE was asked to perform a traffic stop for speeding on the vehicle associated with that information. When LE approached, they smelled the strong odor of marijuana. When asked if there was anything in the vehicle, driver showed LE a blunt from the center console. LE then asked for backup. LE then searched the vehicle and found another blunt in the center console. Based on training and experience, LE believed the smell was still too strong to be explained by the presence of just two blunts. The smell also was stronger the closer they got to a box in the rear of the vehicle. Inside the box was a large amount of marijuana.
The defense tried to argue that because the two blunts were less than 10 grams of marijuana, LE enforcement was precluded from looking further. The court held otherwise, basing its decision on Pacheco v. State (2019) 465 Md. 311, 330, which held that “marijuana in any amount remains contraband and its presence in a vehicle justifies a search of the vehicle.”
Note: Possession of under 10 grams of marijuana for personal use is a civil offense in Maryland.
United States v. Martinez (Wisconsin 2020) 2020 U.S. Dist. LEXIS 185943
Traffic Stop; Prolonged Detention; Reasonable Suspicion
This case involved two traffic stops. The first was in Arizona; a large GPS and radar detector was obscuring the driver’s view. Driver was very nervous and shaking and identified himself with an Illinois driver’s license. LE asked driver to take a seat in the cruiser while LE completed a warning citation. Once this was completed, LE asked if driver had anything illegal in the vehicle. Driver said no, but in response to further questioning, admitted possessing about $2,000 in the car. LE suspected driver of trafficking because 1) he was travelling on an interstate drug trafficking corridor; 2) driver’s nonsensical answers about his travels; 3) driver’s behavior; 4) driving a car he did not own and conflicting stories about who it belonged to; and 5) $2,000 in cash. Driver initially gave consent to search but when LE said he needed to wait for the PSD team, driver agreed to allow LE to search. In a hidden compartment in the spare tire storage area, LE found $77, 745 in cash.
The court held that permission was granted by driver who clearly knew he had the right to refuse and that permission was asked for immediately following the completion of the citation. Cases prior to Rodriguez v. United States (2015) 575 U.S. 348 held that the Fourth Amendment tolerated certain unrelated investigations that did not lengthen the roadside detention and this court held that Rodriguez did not overrule those cases. Therefore, the stop was not unduly prolonged by the few questions LE asked. However, even if the court found that the stop was unduly prolonged, the court held that LE had reasonable suspicion of additional wrongdoing (trafficking).
The second stop was in Wisconsin. In this situation, subject was part of a drug trafficking organization under surveillance by local LE. Subject was seen with known members of said organization and when he drove away from a location known to be a part of the organization, a traffic stop was performed for equipment and lane violations. Within moments of the stop, PSD team arrived and, during the time the original officer was filling out the citation, alerted to both sides of the vehicle. The vehicle was then taken to police department for further search when a hidden compartment was found but no contraband. The court found the traffic stop was valid and that since the sniff took place simultaneously to the citation writing, there was no prolonged detention.
Note: While this court felt that Rodriguez did not prohibit questioning about other unrelated matters, this should not be depended upon by officers in the field. The better route is to make sure the sniff is completed while the stop is on-going; two suggestions that have passed muster with all jurisdictions are 1) have a second officer present or 2) perform the sniff while waiting for dispatch to return with information.
United States v. Paholsky (West Virginia 2020) 2020 U.S. Dist. LEXIS 184789
Traffic Stop; Prolonged Detention; Reliability Foundation
LE had a house under surveillance that was reported to be a drug house. Officers were stationed nearby, including a PSD team. Subject was seen pulling away from the house and a marked cruiser pulled subject over after subject rolled through several stop signs. Immediately after or during the initial contact by LE of subject, LE asked for permission to search. Subject declined. The PSD team was then called in. The team happened to be so close in proximity at this time that the handler could see the officer while he was making the request. The PSD team arrived within a minute of the request. A sniff was performed and PSD alerted within 5 or 6 minutes of arrival. Subject was asked if there was anything in the vehicle and subject admitted a firearm was present. Subject was a convicted felon.
The court held that since the sniff was basically simultaneous to the traffic stop, there was no prolonged detention. In addition, the court found the PSD team to be sufficiently trained to be reliable. Evidence was submitted that the team had successfully completed a Narcotics Detection certification program in which the team was deems proficient in detecting narcotics and the team was recertified in 2019. One of the examiners of the 2018 certification testified that the team passed every vehicle test presented. There was an issue because training records and field performance records were not kept separately and in those combined records, it showed that the PSD failed to alert or falsely alerted about 5 times. The handler testified that 3 or 4 of them were probably during training. However, the court held this did not show that the PSD overall accuracy was lacking, holding that the certifications in 2018 and 2019 were sufficient to determine reliability. Finally, subject complained that the PSD had different techniques while alerting which subject opined caused the handler to “guess” whether the PSD had alerted or not. However, testimony from the handler revealed that when the PSD “pitter-pattered” with his feet as well as sitting down, that was almost always an accurate alert. If the PSD just sits, the handler takes the PSD around again and if he sits again, the handler considers that to be a reliable alert. The handler also testified that when the PSD started shows signs of sitting just to get his toy, the team did remedial training until the behavior stopped (this was before the events in this case). The court held that this alert was reliable and therefore gave LE probable cause to search the vehicle.
Note: It appears that one direction defense attorneys are going is trying to show the PSD is unreliable and therefore, the alert provides no probable cause. Here, two issues came up and were dealt with swiftly and appropriately by testimony of the handler. One was alert behavior; this PSD had a unique behavior but the handler testified that in his experience, the alert was reliable and explained why. The other was the remediation of a smart PSD taking a shortcut to get his toy. In both situations, the behavior was acknowledged and then explained to the court’s satisfaction. This is a good reminder that as long as testimony is honest and training as well as certification is kept up to date, your PSD will be found to be reliable.
United States v. Tochihara Sheh (Idaho 2020) 2020 U.S. Dist. LEXIS 184631
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for moving violation. As LE approached the vehicle, LE smelled the odor of green or raw marijuana coming from the vehicle. Driver was nervous and the cab of the car was empty except for multiple drink and food containers. LE had driver exit, then searched the car for the marijuana. When no marijuana was found, LE searched the trunk and found a smorgasbord of controlled substances including marijuana. Driver confessed to possession for sales.
The court held that LE was justified in searching the entire car for marijuana. Under U.S. v. Kerr (1989) 876 F.2d 1440, 1444-1445, “the presence of the odor of contraband may itself be sufficient to establish probable cause” to search. Here, LE testified that when there was no marijuana found in the cab of the vehicle, and there was no luggage or container in the cab, he believed that marijuana would be found in the trunk because in his experience, marijuana is very pungent and will permeate throughout a vehicle. The court held that there may have been some prolongation of the traffic stop detention, but the additional reasonable suspicion of the odor of marijuana extended the investigatory window.
Note: Idaho has not decriminalized marijuana.
State v. Macrae (New Jersey 2020) 2020 N.J. Super. Unpub. 1878
Prolonged Detention; Odor of Marijuana as Probable Cause
Surveillance was being conducted by LE in response to complaints of drug activity. During the surveillance, an individual was driving a vehicle which stopped, dropped off a passenger, and circle the block. LE saw the passenger engaged in a suspected drug transaction. When LE caught up to the vehicle, subject was driving and she had another passenger. LE saw driver pull up to another car and again, this time through binoculars, observed a hand to hand transaction. LE followed the driver of the new car to a parking lot where LE approached on foot. They asked about the suspected drug transaction and driver told LE that she had smoked a blunt and there was a loaded registered handgun in the vehicle. LE could smell the odor of both raw and green marijuana. The occupants were removed and the handgun retrieved. Consent to search was refused. A PSD team was called to the scene and alerted on both front doors of the vehicle. The vehicle was towed and later searched pursuant to warrant where contraband was found hidden in several places, including driver’s purse.
The court held that LE had reasonable suspicion to approach the vehicle based on what he had observed that he indicated, per his training and experience, was a drug transaction. In addition, the court held that LE had probable cause to search the vehicle because the defendant admitted to possessing a loaded gun (which also posed a safety issue which LE was authorized to address) and the smell of marijuana. This justified bringing in the PSD team, whose alert provided probable cause to search. Then, out of an abundance of caution, LE obtained a warrant to search the vehicle where a neutral magistrate determined there was probable cause to search. Finally, the court held that there was no prolonged detention as once the driver told officers there was a gun in the car and that LE could smell marijuana, the window for investigation widened for LE to investigate those two situations. The court found there were no unreasonable delays and in addition, opined there was probable cause to arrest as well which infers LE had the right to search pursuant to arrest.
Note: At the time of this case, New Jersey had not decriminalized marijuana. New Jersey will be a recreational use state on January 1, 2021.
Moya v. City of Clovis (New Mexico 2020) 2020 U.S. App. LEXIS 31579
Excessive Use of Force
An inmate filed suit against the PSD team that apprehended him as he tried to elude LE. He claimed he suffered physical injuries from the bite of the PSD. Inmate admitted that he played cat and mouse with the police and sometimes he got away and sometimes LE caught him. LE saw inmate and after confirming he had an outstanding arrest warrant, turned around to contact inmate. Inmate fled. A PSD team joined the chase and found inmate standing on the roof of a shed. At least one PSD warning was given. Inmate jumped down and started running. Inmate reached another building and jumped up. PSD was able to bite his foot but the inmate shook PSD off and made it to the roof. Inmate jumped into a neighboring yard and began throwing things and running. PSD leapt over the wall and bit inmate. Handler went over the wall right after PSD and found inmate facedown on the ground with PSD biting his left arm. Other officers handcuffed inmate and PSD was released as soon as that was accomplished. PSD’s bite was no longer than 20 seconds in duration. Applying Graham v. Connor, the appellate court held that “[g]iven the numerous warnings, [inmate’s] history of fleeing, his flight from the officers on the instant day, and the potential danger to officers and bystanders of a prolonged chase through a residential neighborhood which included [inmate] jumping on roofs and running through back yards, deploying [PSD] was a reasonable choice.” The PSD was not out of sight of the handler for more than 10 seconds and the longest the bite could have lasted was 20 seconds because the PSD was released from inmate after 10 seconds of the handler’s arrival. Inmate claimed that at the time of the bite, he had already surrendered, but there was no way for the handler to know this because it was unclear whether inmate had laid down on the ground or if PSD had taken him down. Keeping the PSD on the bite until inmate was handcuffed was justified in that based on inmate’s actions and history, LE could reasonably assume inmate would again attempt to flee.
Note: This was a good bite because the handler (along with the help of other officers involved who heard the warnings and assisted with the handcuffing) was able to justify every part of the apprehension. Good report writing, making sure you have gathered all evidence (body cams of everyone involved, pictures, CADs, dispatch recordings, etc.) and keeping up with your training basically set this handler up to succeed in court.
Holifield v. Kulwich (Wisconsin 2020) 2020 U.S. U.S. Dist. LEXIS 183716
Odor of Marijuana as Probable Cause
Summary judgment motion on an in pro per case where subject alleged LE violated his First and Fourth Amendment rights. Subject was on parole and in a car that smelled like marijuana. Subject admitted to smoking marijuana earlier in the day. Subject was removed from the vehicle, searched and 22 baggies of cocaine was found. The vehicle was also searched and marijuana was found. After subject refused consent for LE to search his home, LE used the keys found on subject to enter and search his home. However, nothing was found and no damage was done to the house. Parole placed a detainer on him for a parole violation and indicated that subject’s house would be searched pursuant to the terms of his parole.
The appellate court made short work of subject’s constitutional rights allegations, holding that a reasonable officer presented with the smell of marijuana and the presence of a blunt would believe that any passenger in the vehicle may have committed the offense of marijuana possession. As to the search of the house, a provision in Wisconsin law allows the search of a home once LE had reasonable suspicion that subject committed the crime of cocaine possession. As to the alleged damage to the house, subject provided no evidence of said damage while LE testified there was no damage. The court dismissed this case.
Note: Wisconsin has not decriminalized marijuana.
United States v. Sanders (Indiana 2020) 2020 U.S. Dist. LEXIS 183073
Traffic Stop; Alert as Probable Cause; Prolonged Detention
The drug task force received a tip from a member of the public that a vehicle known to the task force was leaving a drug house. Several hours later, LE came across the vehicle and stopped it for window tint and rolling through a stop sign. As LE notified dispatch of the stop, LE also requested a PSD team respond (they were only a few blocks away). LE obtained the two occupants’ information and determined that the passenger was a convicted cocaine dealer. While the information was being input by the first officer, the PSD team arrived and conducted a sniff of the vehicle. PSD alerted before the first officer was finished with his duties regarding the traffic stop. The vehicle was searched and a pharmacopeia of drugs as well as a handgun were found.
The appellate court found that the traffic stop was justified, even though the passenger said that the driver did not roll through the stop. The court clarified that LE was thorough in his memory and recollection of his observations and that the standard is whether the officer reasonably believed the traffic infraction occurred, not whether it actually did occur (that’s what courts are for). In any event, the tinted windows were enough to affect the traffic stop. In addition, the PSD alert gave LE probable cause to search the vehicle. There was no prolonged detention because the alert came while the first officer was still engaged in his duties regarding the traffic infraction.
Note: Textbook example of how a traffic stop evolving into a PSD sniff and alert is done as well as good report writing and testimony.
