November 2021 UPDATE FOR MEYER’S K9 LAW (Volume 2, No. 11)

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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 2021. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking.  The arguments in these cases can be used; the case just can’t be cited as precedent in court.)

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 (or use our Site Search feature to search the entire site). Each update has not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. I have again included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state. In addition, this month I have included an article on qualified immunity. This issue is coming up frequently in the media and it is my opinion that it is often misrepresented by them. Please review and if you would like me to address qualified immunity further or another particular issue or have any questions or concerns at all, please feel free to email, text or call me.

(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. I do not represent any individual or agency. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)



U.S. Senate Democrats have reintroduced language to a defense spending bill that would expedite research into medical uses of cannabis and its derivatives, including CBD. U.S. House members reintroduced a bipartisan bill this week to clear the way for cannabis researchers to study marijuana products sold legally in states.

President Joe Biden could take steps to decriminalize marijuana or curb federal prosecution of federal marijuana crimes without waiting for Congress to pass reform legislation, a new report from Capitol Hill’s policy research arm found. (Whether he will remains to be seen).


New York state’s Cannabis Control Board voted unanimously to approve a host of new regulations governing hemp-derived CBD products, while asserting that pre-rolled hemp joints and any psychoactive compounds, such as Delta-8 THC, are still unlawful. (Hmmm, I thought hemp was supposed to have low or no THC; why would someone smoke it?)

Idaho’s Agriculture Department has announced it received federal approval for a plan to begin licensing hemp producers and handlers, making it the final state to legalize hemp after the plant was broadly legalized nationwide with the 2018 Farm Bill.

The enactment in of California’s A.B. 45 was a major step forward on regulating CBD products in the country’s most populous state.

Louisiana is set to allow hemp-derived Delta-8 THC in food after the state health department announced it has begun registering products, issuing permits and reviewing plans by manufacturers and distributors.

A Texas judge has rejected a CBD company’s request for a temporary restraining order on the state’s ban on delta-8 THC, leaving it in place as a lawsuit proceeds against the state’s health department over how it purportedly rescheduled delta-8 onto the controlled substances list.

A bipartisan pair of Pennsylvania senators introduced legislation that would legalize adult recreational marijuana use in the state and impose a tax that could generate as much as $1 billion in annual revenue.


Right now, LE is under a microscope regarding use of force and civil rights. This scrutiny is appropriate, given that our society and government have entrusted LE in protecting not only the safety of the public, but safeguarding the public’s constitutionally protected civil rights. However, regardless of experience and/or training, officers are still human. The courts have recognized that LE is often faced with making quick decisions in stressful and quickly evolving circumstances. In response, the courts have developed a long-standing doctrine to protect the citizenry from unconstitutional treatment by LE but still allow officers to do their jobs: The doctrine of qualified immunity.

Qualified immunity has been discussed recently in the news and in legislatures around the country, including the United States Congress. It remains a doctrine that is not well understood and has been portrayed as a “get out of jail free” card by media and legal professionals. This characterization is patently untrue. The falsity of this characterization is one of the main reasons why legislatures have found modifying this doctrine to be difficult. This article will explore what qualified immunity is in the context of an excessive force K9 case and clarify the state of the doctrine in law today.

What is Qualified Immunity?

Qualified immunity is an immunity from civil suit extended to police officers, administrators, and other public officials who are alleged to have violated the rights of a person while the official was performing a discretionary function of office, if the official’s conduct does not violate a clearly established statutory or constitutional right that would have been known to a reasonable person. Bouvier Law Dictionary.

To put it in terms that are easier to access, qualified immunity can be broken down into two questions: 1) Did the officer violate a right protected by the constitution or a statute, or 2) if a right might have been violated, was this right clearly established such that LE should have been on notice so that a reasonable person in the same situation as the accused officer would have been aware that his or her conduct would clearly be unlawful. It doesn’t matter which prong is considered first, but LE needs to clear only one of these hurdles for the doctrine to take effect: that is, either no rights were violated or even if a right was violated, that right was not clearly established so as to give a reasonable officer notice that the conduct was unconstitutional.

Why did Courts Develop the Doctrine of Qualified Immunity?

There are competing interests in an excessive force case: The need to make sure police do not violate the rights of citizens versus the need to make sure that the police are not unduly inhibited while performing their enforcement duties. “Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald (1982) 457 U.S. 800, 807. Under the federal civil rights statute § 1983, a plaintiff may seek money damages from government officials who have violated his or her constitutional or statutory rights. To ensure, however, that fear of liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton (1987) 483 U.S. 635, 638, the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, the officials are shielded from personal liability, Harlow v. Fitzgerald, supra, at 818.

“If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff’s claim, even though novel or otherwise unsettled, in fact has merit.” Camreta v. Greene (2011) 563 U.S. 692, 705. That means a court can avoid ruling on the plaintiff’s claim that a right was violated if the court finds that particular right has not been clearly established in precedent. This characterization may seem a bit cavalier, but the doctrine requires an objective application based on reasonableness that came from the seminal excessive force case, Graham v. Connor (1989) 490 U.S. 386. The “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

For a right to be “clearly established,” it is not necessary that “the very act in question have been previously held unlawful,” but “in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, supra, at 640. “[I]f the contours of the right are sufficiently clear so that a reasonable officer would have understood, under the circumstances at hand, that his behavior violated the right” there is no entitlement to qualified immunity. Bailey v. Kennedy (4th Cir. 2003) 349 F.3d 731, 741 (citing Wilson v. Layne (1999) 526 U.S. 603, 615.

How Does Qualified Immunity Apply to K9 Teams?

In one of the first cases about use of force by a K9 team, Robinette v. Barnes (1998) 854 F.2nd 909, a night burglar was chased into a closed and dark auto dealership. The Robinette court held that 1) a properly trained K9 apprehending (and biting) a suspect in this situation is not per se deadly force; 2) that the use of a properly trained K9 to apprehend a felony suspect does not carry with it a substantial risk of causing death or serious bodily harm; and 3) even if the court were to conclude that the use of a K9 to apprehend a suspected felony constituted deadly force, the use of such force to seize this suspect was not unreasonable under the circumstances of this case (here, handler was forced to explore an enclosed unfamiliar area in which he knew a burglar, unknown if armed, was hiding. Under the totality of the circumstances, handler was justified in using whatever force was necessary, even deadly force, to protect himself and the other officers and to apprehend the suspect).

The Robinette court went on to address the use of K9s specifically; “Indeed, instead of generally causing deadly force to be used to apprehend criminals, we believe that these dogs often can help prevent officers from having to resort to, or be subjected to, such force. . . . The use of dogs can make it more likely that the officers can apprehend suspects without the risks attendant to the use of firearms in the darkness, thus, frequently enhancing the safety of the officers, bystanders and the suspect.” Robinette, supra, at 914.

While Robinette established that the use of a K9 will be judged using the Graham v. Connor factors, newer cases have established that handlers will need to show two additional factors: 1) that the K9 was properly trained and behaved in accordance with that training and 2) audible warnings were given about the presence of the K9 and that the K9 will be released unless the suspect cooperates (unless such warnings would pose a danger to LE or others).

In Jarvela v. Washtenaw County (2021) 2021 U.S. Dist. LEXIS 144207, the appellate court held that the clearly established right that Jarvela had was the right to be arrested with no more force than is objectively reasonable in light of the facts and circumstances confronting LE, which included a right to be given an opportunity to avoid an encounter with a K9 prior to deployment. In Campbell v. City of Springboro (6th Cir. 2012) 700 F.3d 779, 778, the court noted the range of developed law, observing that summary judgment in favor of [an] officer has been upheld where there were potentially dangerous suspects who exhibited irrational behavior and when suspects were in areas which made LE vulnerable to ambush. On the other hand, the Campbell court noted that summary judgment on qualified immunity grounds was denied in cases in which the officer allowed a little-trained canine, who had previously bitten someone, to bite a handcuffed subject.

In Miller v. Ribicki (E.D. Mich. 2017) 259 F. Supp. 3d 688, 699, handler had K9 on a 30-foot lead, proceeding in what handler called “stealth” mode—meaning that handler did not announce their presence or give any advance warning or notice to suspect. Handler explained he was concerned that he would be vulnerable to ambush in the dark woods if he revealed his presence and location. Handler also had information from a fellow officer that the suspect may have been armed and dangerous that handler permissibly relied upon. Id. at 693. The court held that when the facts dictate an articulable safety issue for law enforcement as they did here, a lack of warning prior to deployment will be excused.

New Cases on Qualified immunity from the United States Supreme Court (USSC)

In City of Tahlequah v. Bond (2021) 2021 U.S. LEXIS 5310, the USSC confirmed that a proper analysis of whether qualified immunity applies can be determined by looking at whether a clearly established constitutional right has been violated.

An intoxicated ex-husband (Rollice) refused to leave the premises and refused to be patted down for weapons. LE took a step towards him and Rollice turned around and walked toward the back of the garage where there were tools, still talking to LE who were at a distance of 6 feet. Rollice picked up a hammer and turned around to face LE. Rollice took a batting stance with the hammer. LE backed up and drew their firearms, yelling for Rollice to drop the hammer, but Rollice took a few steps that put him in line with a clear path to LE. He then raised the hammer higher as if he was going to throw it at LE, so two LE shot Rollice, killing him.

The USSC held that they need not need to address whether Rollice’s civil rights were violated because on the record before them in this case, LE plainly did not violate any clearly established law.

The USSC court explained that the doctrine of qualified immunity shields LE from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.

The other new case is Rivas-Villegas v. Cortesluna (2021) 2021 US LEXIS 5311. In this case, 911 received a call from a crying 12-year-old girl who said that she, her mother, and her 15-year-old sister had shut themselves into a room because Cortesluna was trying to hurt them. The women were unable get out of the house. The girl told 911 that Cortesluna was drinking and angry and was using a chainsaw to break something in the house. This information was relayed to the responding LE who observed the home for several minutes and saw through a window a man matching Cortesluna’s description. The 911 operator told the officers that sawing in the background could be heard and surmised that Cortesluna might be trying to saw down the door.

LE went up to the front door, knocked and loudly announced her presence as the police and told Cortesluna to come to the front door. Cortesluna came out with a metal tool, but dropped it when ordered to do so. He cooperated in obeying some commands, but LE spotted a knife in his pocket. At that point, Cortesluna stopped complying. He was then shot with two bean bag rounds. He became compliant with commands again, and was disarmed and controlled by LE who used one knee on his back and raised both Cortesluna’s arms behind his back. He was in that position for 8 seconds before he was stood up and handcuffed.

Cortesluna claimed excessive force. Even though a lower court previously found that in LaLonde v. County of Riverside (2000) 204 F.3d 947 that kneeling on a suspect’s back could be determined to be unlawful, the USSC found qualified immunity was appropriate in Cortesluna because there was no notice that the actions in this case were a violation of clearly established statutory or constitutional rights of which a reasonable person should have known, because there were significant differences in the Cortesluna case from the Lalonde case (not the least of which was the very brief period of 8 seconds that LE had his knee on Cortesluna’s back).

It should be noted that Justice Clarence Thomas penned a dissent in the recent case of Hoggard v. Rhodes (2021) 141 S.Ct. 2421, concluding that “[The Supreme Court] at least ought to return to the approach of asking whether immunity “was ‘historically accorded the relevant official’ in an analogous situation ‘at common law.’” Thomas claimed that the concept of qualified immunity is on “shaky ground” as precedent. While the full court has not addressed his concerns (first raised by Thomas’ dissent in Baxter v. Bracey (2020) 140 S.Ct. 1862), Thomas is telegraphing his position as an opponent of the qualified immunity doctrine. It remains to be seen whether the full court will address his concerns.

What to Take With You in the Field

K9 teams will be treated the same as other LE officers, in that excessive force claims will be assessed using the Graham v. Connor factors under an objective standard of a reasonable in that same circumstances as the officer faced. However, K9 handlers have the additional responsibility to 1) announce their presence, what they want the suspect to do and that if orders are not obeyed, the K9 will bite (unless there is a danger to LE) and 2) must be able to show that the K9 was properly trained and performed properly as directed by handler.

As to the future of qualified immunity, that is still up in the air. However, the benefits of this doctrine are still important. In its latest cases, the USSC has shown that they, as a majority, are not willing to overrule the doctrine of qualified immunity. However, Justice Thomas has fired a shot across the bow of this doctrine; it will remain to be seen whether that shot has hit its mark.


State v. Gibson (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 626 – Traffic Stop; Odor of Marijuana as Probable Cause;

Bazurto v. City of Gilroy P.D. (California 2021) 2021 U.S. Dist. LEXIS 206446 – Excessive Force; Monell Liability

Vette v. Sanders (10th Cir. 2021) 989 F.3d 1154 – Excessive Force; Qualified Immunity

State v. Caldwell (Ohio 2021) 2021 Ohio App. LEXIS 3692 – Traffic Stop; Odor of Marijuana as Probable Cause; Alert as Probable Cause; Prolonged

Keammerer v. Eldridge (Indiana 2021) 2021 U.S. Dist. LEXIS 202145 – Excessive Force; Qualified Immunity; Monell Liability

Gomez v. Kings County Sheriff Dep’t (California 2021) 2021 U.S. Dist. LEXIS 200622 – Traffic Stop; Excessive Force; Deliberate Indifference to Medical Needs

Ponce v. Hanford Police Dep’t K-9 Unit (California 2021) 2021 U.S. Dist. LEXIS 200619 – Excessive Force

State v. Carson (Iowa 2021) 2021 Iowa App. LEXIS 899 – Reliability Foundation

United States v. Jordan (Ohio 2021) 2021 U.S. Dist. LEXIS 201565 – Traffic Stop; Prolonged Detention; Reasonable Suspicion

United States v. Ferguson (Ohio 2021) 2021 U.S. Dist. LEXIS 19972 – Package Sniff; Reliability Foundation

N.J. v. Days-Jackson (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 2501 – Odor of Marijuana as Probable Cause

United States v. Matthews (Missouri 2021) 2021 U.S. Dist. LEXIS 196197 – Inevitable Discovery; Alert as Probable Cause; Reasonable Suspicion for Detention

Commonwealth v. Joshua Eugene Ford (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 2766 – Traffic Stop; Odor of Marijuana as Probable Cause

Robinson v. State (Florida 2021) 2021 Fla. App. LEXIS 13874 – Curtilage of a Motel Room

United States v. Teachey (4th Cir. 2021) 2021 U.S. App. LEXIS 30542 – Traffic Stop; Reliability Foundation

United States v. Rederick (South Dakota 2021) 2021 U.S. Dist. LEXIS 197216 – Traffic Stop; Reasonable Suspicion; Reliability Foundation

Ohio v. Dudsak (Ohio 2021) 2021-Ohio-3632 – Traffic Stop; Alert as Probable Cause; Search of Driver

United States v. Daniels (New York 2021) 2021 U.S. Dist. LEXIS 194124 – Traffic Stop; Odor of Marijuana as Probable Cause; Inevitable Discovery

United States v. Devalois (Indiana 2021) 2021 U.S. Dist. LEXIS 194889 – Traffic Stop; Prolonged Detention

State v. Herrera (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 592 – Traffic Stop; Terry Frisk

State v. $133,888.00 in United States Currency (Florida 2021) 2021 Fla. App. LEXIS 13641 – Currency Sniff

United States v. Jones (Missouri 2021) 2021 U.S. Dist. LEXIS 192730 – Detention; Plain View Doctrine; Alert as Probable Cause

United States v. Harris (Florida 2021) 2021 U.S. Dist. LEXIS 192810 – Private Person Investigation; Package Sniff; Standing

State v. Conner (Washington 2021) 2021 Wash. App. LEXIS 2359 – Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause

State v. Howard (Idaho 2021) 2021 Ida. LEXIS 159 – Traffic Stop; K9 Entry into Vehicle; Reliability Foundation

State v. Randall (Idaho 2021) 2021 Ida. LEXIS 160 – Traffic Stop; K9 Intrusion to Vehicle; Prolonged Detention

Commonwealth v. Clayborne (Kentucky 2021) 2021 Ky. LEXIS 365 – Traffic Stop; Prolonged Detention

United States v. Hudson (Minnesota 2021) 2021 U.S. Dist. LEXIS 190842 – Curtilage; Alert as Probable Cause; Good Faith Exception

Spicer v. Burden (Connecticut 2021) 2021 U.S. Dist. LEXIS 189006 – Traffic Stop; Alert as Probable Cause

United States v. $178,000.00 in United States Currency (California 2021) 2021 U.S. Dist. – Currency Sniff

Mata v. Van Buren Cty. (Michigan 2021) 2021 Mich. App. LEXIS 5679 – Accidental/Unintentional Bite

United States v. Joshua (Alaska 2021) 2021 U.S. Dist. LEXIS 190136 – Traffic Stop; Plain View Doctrine


State v. Gibson (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 626
Traffic Stop; Odor of Marijuana as Probable Cause

LE stopped the vehicle in which Gibson was a backseat passenger for no tag light. LE noticed upon approach that there was a temporary tag. The occupants immediately rolled down all four windows despite it being a summer night. LE smelled an overwhelming scent of raw marijuana coming from the vehicle. Gibson interjected himself into the conversation between LE and the driver. The occupants couldn’t explain their travel plans and the statement of the driver, that they were travelling from Arizona to Kentucky, was odd because the stop location was not on the direct route. LE then called for back up and when they arrived, the occupants were removed from the car and detained for LE safety. At that point, LE believed they had reasonable suspicion other criminal activity was afoot based on: (1) the route they were taking, (2) all four windows being rolled down, (3) Gibson asking and answering questions instead of Brock, (4) being unable to answer simple questions about travel history, and (5) the odor of marijuana. Documents in the car indicated that neither the driver or Gibson was the owner of the car. In the car, inside compartments, was a large amount of marijuana and meth and coke. A phone was found with texts between Gibson and another person that indicated trafficking.

Gibson filed a motion to suppress based on an argument that since Kentucky recently legalized the growth of hemp for research purposes and therefore LE did not possess probable cause prior to searching the vehicle because Gibson could have been in legal possession of hemp. Gibson asserted that the smell of legal hemp is identical to illegal marijuana and therefore, LE cannot rely on this smell alone for probable cause. However, the court held that Kentucky has consistently held that the odor marijuana coming from a vehicle provides probable cause to search the vehicle. In any event, even if the court were to eliminate the odor of marijuana, the additional factors noted by LE supplied probable cause based on the totality of the circumstances. The motion to suppress was denied.

Note: Standing was raised by Gibson, but I did not analyze that portion of the opinion for purposes of this Update.

Bazurto v. City of Gilroy P.D. (California 2021) 2021 U.S. Dist. LEXIS 206446 – Excessive Force; Monell Liability

Bazurto was in a public restroom in Gilroy and according to him, LE ordered him out. He did not respond, so LE forced the door and dragged Bazurto out. He claimed he remained passive and non-threatening. Two LE held Bazurto between them while other LE hit him with their fists and tased him. Bazurto then was put on the ground face down, handcuffed and a K9 bit his leg for over a minute. Bazurto surmised that LE thought he was a suspect they were pursuing. No LE version was available in this motion for summary judgement.

The appellate court considered the Monell claim by Bazurto against the Gilroy P.D. A government entity may not be held liable for federal constitutional violations unless the plaintiff (Bazurto here) establishes (1) that the plaintiff possessed a constitutional right of which he was deprived; (2) that the municipality had a policy, practice, or custom; (3) that this policy, practice, or custom amounts to deliberate indifference to the plaintiff’s constitutional rights; and (4) that the policy, practice, or custom is the moving force behind the constitutional violation. The court held that Bazurto pleaded no facts that would allow such a claim to move forward. This claim was dismissed.

Note: There were other claims made by Bazurto but they were not relevant to the purposes of this Update. In addition, this was only the claim against the police department, not the involved LE personnel. Those claims are apparently proceeding on a different path within the lawsuit. This case does have a good discussion on Monell liability theories.

Vette v. Sanders (10th Cir. 2021) 989 F.3d 1154
Excessive Force; Qualified Immunity

LE recognized Vette as he drove by and LE attempted to pull Vette over to run a warrant check. Vette drove away and LE followed. Vette eventually stopped and fled on foot into a field. LE and handler followed with his K9. Vette alleged that after he was caught by LE, handler punched him and hit him in the face with a dog chain and let his K9 attack him.

Vette filed a lawsuit alleging excessive force. Handler claimed qualified immunity. The court held that, using Vette’s version of the facts in deciding whether qualified immunity applied, the first Graham factor (severity of crime) favored the handler and the latter factors (whether suspect poses an immediate threat and whether he is actively resisting or attempting to evade by flight) favored Vette. The court further held that, under the totality of circumstances test as required by Graham, handler’s alleged use of force against Vette—viz., striking him in the face and releasing a police dog to attack him after he was already apprehended—was objectively unreasonable. Accordingly, should the jury find that Vette’s version to be true, handler violated Vette’s right under the Fourth Amendment to be free from excessive use of force.

Having determined Vette’s version of the facts establishes a violation of a constitutional right, the next question was whether that right was clearly established at the time the alleged conduct occurred. That is, the question is whether Vette’s right not to be attacked by a police dog or punched and hit in the face with a dog chain, after he was already apprehended, was clearly established by December 2017 (as outlined in the case Perea v. Baca (10th Cir. 2017) 817 F.3d 1198). Therefore, handler was not entitled to qualified immunity at this juncture.

Note: There was a lot of wrangling as to what evidence could be considered at this stage of the proceedings and what issues over which the appellate court had jurisdiction. I have not reviewed these arguments because they are not relevant to the purposes here in this Update. To break down the court’s conclusion here, even though there was not a case specifically on point with the facts, using any type of violence on a subdued and non-resisting suspect is objectively unreasonable and therefore unconstitutional. If this case goes to trial, the jury will hear from LE as to what happened before and during the pursuit and LE’s version of what happened during the track and capture. It appears from the limited facts that the K9 bite was accidental (latch malfunctioned). If that is true, and the other physical behavior either didn’t happen or was justified by Vette’s behavior, qualified immunity could still apply.

State v. Caldwell (Ohio 2021) 2021 Ohio App. LEXIS 3692
Traffic Stop; Odor of Marijuana as Probable Cause; Alert as Probable Cause; Prolonged Detention

During a LE investigation of drug trafficking, Caldwell’s vehicle was tied to several known drug houses. Information was obtained through observation and reliable informants. Informant claimed that Caldwell was in possession of narcotics. Surveilling detectives asked that Caldwell be pulled over and informed the uniformed LE that Caldwell was supposed to be in possession of narcotics, that he had a criminal background and his windows were illegally tinted. The stop occurred about 5 minutes after Caldwell left the surveilled house. LE collected the appropriate documents from driver Caldwell who told LE he had been given a previous warning about the tint and was in the process of getting it fixed. LE told him he would just give him another warning.

LE returned to his cruiser and had a quick discussion with his partner of whether to call for a K9 team as LE smelled marijuana. One officer called for the K9 and the other started the warning citation. 12 minutes later, LE went back to the car and asked Caldwell to step out. When told they were waiting on a K9 because LE smelled marijuana, Caldwell claimed it was medicinal, showing them a medical marijuana card and claimed to have a small amount in the glove box. However, LE smelled both burnt and raw marijuana. The K9 team arrived and sniffed the car. The K9 alerted. Caldwell was then patted down and LE found a baggie of methamphetamine. More drugs were found in the car.

Caldwell filed a motion claiming that there was prolonged detention and the arrest and search was not supported by probable cause. The trial court denied the motion and Caldwell appealed the denial to the appellate court.

The appellate court addressed the issue of prolonged detention first. The appellate court noted that the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search. The odor of burnt marijuana was indicative of probable cause in this situation even though Caldwell had a medical marijuana card, because under Ohio’s Medical Marijuana Control Program, “[t]he smoking or combustion of medical marijuana is prohibited.” The court then stated that it did not believe that the stop was unreasonably prolonged, but held that even if it was prolonged past the investigation time for the illegal tint, LE were justified in continuing their investigation based on the smell of marijuana giving LE probable cause to expand their investigation.

Therefore, the court found that LE did not prolong the initial traffic stop, and further that LE would have been justified in extending the duration of the initial stop if a reasonable amount of time was required to investigate the odor of marijuana detected. As the facts unfolded during the initial window tint traffic stop, matters quickly turned into an investigation involving drugs and LE’s investigation was neither intrusive nor unreasonable in duration.

Note: Ohio has not legalized recreational marijuana, although it has authorized medical use. In addition, possession of under 100g (3.5 oz.) is a minor misdemeanor punishable only by a fine (what would be described in some states as decriminalized). The court did not determine whether, if the odor of marijuana was not considered, the additional factors in possession of LE via the detectives running the investigation would have provided probable cause as well. The court is under no obligation to do so, but it would have been helpful for any further proceedings. 

Keammerer v. Eldridge (Indiana 2021) 2021 U.S. Dist. LEXIS 202145
Excessive Force; Qualified Immunity; Monell Liability

According to her amended complaint in this excessive force case, Keammerer was viciously attacked by a Crown Point K9 while she was being arrested even though she was not actively resisting. She brought this action against LE on scene and allowed the attack to happen and against other LE who were present but did nothing to intervene once it commenced. She has sued the City of Crown Point and its police chief on the theory that there was lousy training relating to the handling of the police dog which amounts to an unconstitutional policy. LE claimed qualified immunity.

Based on the version of the facts pled by Keammerer, she was subject to a warrant for her arrest. LE went to her house along with a K9 team which waited outside. LE brought Keammerer out, barefoot and pregnant. Once outside her home, the K9 attacked her without provocation.

The court held that based on the facts as pled in the complaint, it was clear that directing a K9 to attack a subdued and handcuffed suspect is an unconstitutional use of excessive force and a reasonable officer would have known that. Therefore, qualified immunity was not applicable at this stage of the proceedings. The court cited many cases in which it was found to be excessive force to deploy a K9 on a subdued and compliant suspect.

The court moved on to the Monell claim. For the City of Crown Point to be liable under a failure to train theory, Keammerer must allege deliberate indifference; that is, that the City of Crown Point had actual or constructive notice that its action or failure to act was substantially certain to result in a constitutional violation and it consciously or deliberately chose to disregard the harm. While Keammerer does not specifically use the phrase “deliberate indifference,” she states in the amended complaint that the officers “intentionally, callously, and indifferently deprived [her] of her rights . . ..” The court found, based on these allegations, that Keammerer alleged a sufficient state of mind required to survive dismissal on the Monell claim.

Keammerer also claimed that the LE defendants used the judicial process, or caused its use, not to have Keammerer arrested but instead to use it as a cover story for their misdeeds. The court held that met the test for abuse of process and and therefore that claim also survived dismissal. A malicious prosecution claim was also allowed to proceed (criminal charges were dismissed).

Finally, Keammerer conceded that municipalities and employees acting in official capacities are immune from punitive damages. However, she argued that her claims against the arresting LEs and handler show a reckless and callous disregarded her constitutional rights, which allowed her to seek punitive damages against them as long as she can prove her entitlement to them by clear and convincing evidence. These claims therefore were allowed to proceed.

Note: Because this was a motion at an early stage of the proceedings, LE’s version was not given or considered. Hopefully, there can be good explanations for what happened. In any event, it is important to note that in qualified immunity cases, the courts have adopted a position of if the suspect is subdued and compliant, it doesn’t matter the specifics of the excessive force; any force, including the deployment of a K9 is per se unreasonable. Make sure you can articulate why the K9 was deployed in terms of the Graham v. Connor factors. You must make this analysis as the handler; you cannot rely on other officers asking or demanding you deploy your K9. You alone are responsible for the choice to deploy and the consequences of the deployment.

Gomez v. Kings County Sheriff Dep’t (California 2021) 2021 U.S. Dist. LEXIS 200622
Traffic Stop; Excessive Force; Deliberate Indifference to Medical Needs

The appellate court here is reviewing an inmate’s filing to determine if it states a cause of action. Inmate Gomez, claimed that he was pulled over for felony evading. He claimed that when he got out of the car with his hands up, LE deployed a K9. After the K9 was latched onto his arm, LE (handlers and others) struck him with fists. He claimed that when he tried to cover his head to prevent the blows, the K9 severed his finger. LE continued to beat him “badly.” Gomez also claimed that his finger was picked up by LE but they made no attempt to save the finger and claimed he did not know where the finger ended up. (He also alleged LE was making jokes about the severed finger).

Court found a cognizable claim under excessive force. The court also allowed a claim for deliberate indifference to medical needs to go forward as well.

Note: This is the first step in an inmate-filed case and at this point, LE has no opportunity to address the allegations. This process exists because most inmate-filed cases are completely baseless. This one may be as well, but if the allegations are found to be true, this court is holding that this would constitute excessive force and deliberate indifference to medical needs.

Ponce v. Hanford Police Dep’t K-9 Unit (California 2021) 2021 U.S. Dist. LEXIS 200619
Excessive Force

This opinion is the result of pre-screening of an inmate-filed complaint. Ponce filed a complaint alleging that he was accused of what appeared to be carjacking and was pulled over by LE. As he told LE his name, a K9 was deployed on him. He started to run, but the K9 bit him and took him to the ground. The K9 then bit his arm and bit him again as he started to run. Inmate then alleged the handler began to hit him with his fists. He was also kicked in the head numerous times while handler continued to instruct K9 to bite. He claimed that he had no weapon and was compliant.

Therefore, according to inmate’s second amended complaint, it appears that he was attempting to evade arrest by flight following release of the K9. However, once inmate was pulled down, handler allegedly struck and kicked inmate in the head and ordered the K9 to continue attacking inmate while he was down. Inmate alleges that he did not have a weapon and did not refuse any commands. Liberally construing the allegations in the second amended complaint, the Court found that inmate alleged a cognizable claim for excessive force in violation of the Fourth Amendment against handler.

Inmate also wanted to sue the Hanford Police Department. However, although inmate was given two chances to properly plead that claim, he failed to do so, and the complaint against the department was dismissed. The same was true for inmate’s claim of unlawful arrest.

Note: The only claim that survived this review was a Fourth Amendment use of excessive force claim against the handler. Again, this is a preliminary process before LE is able to even respond. The landscape of what happened will surely change dramatically once the LE side of it is heard.

State v. Carson (Iowa 2021) 2021 Iowa App. LEXIS 899
Reliability Foundation

The record in this case showed that K9 Odin was certified as a narcotics detection dog after completing an 80 hour training course. Since then, he and his handler, Deputy Pigsley of the Shelby County Sheriff’s Department, have participated in ongoing training a minimum of sixteen hours per month. Deputy Quist was a K9 handler with the Cass County Sheriff’s Department and is a master trainer (the government’s other witness). He conducted Odin’s first 80 hours of training and had 25 years of experience in training K9s.

Quist explained the difference between a dog’s alert and final response when searching as follows:

“An alert is the untrained response that the dog gives. That’s the natural reactions that this dog gives when it locates odor that it is trained—that you have trained it to find.

“The final response is the trained response to that odor. So basically to break it down, the alerts are the changes that the dog goes through when it hits the odor—when it gets into the odor that it finds. The final response would be the sit or lay down or scratch or whatever it’s trained to do when—after the alert basically.”

He also explained a final response does not always follow an alert. This typically results from the K9 smelling the odor it is searching for but not being able to connect it to a source. Pigsley testified to the same. Pigsley also explained Odin’s alerts include head snapping, heavy nasal sniffing, discontinued wagging of the tail, erecting his tail, body stiffening, sitting and staring with perked ears, and going up on his hind legs. Odin is a passive dog, meaning he would sit or lay down for his final response. According to Pigsley, Odin’s success rate in locating narcotics is 95.83%.

In this case, Carson was pulled over by LE and Pigsley and Odin arrived on scene. Odin was deployed for an free air sniff of the vehicle which had all its windows down. Pigsley testified Odin exhibited the following alerts: “Head snap back, heavy nasal sniffing, ears perked forward, stopped search speed, more heavily nasal sniffing, ears perked up again, tail went erect, a short sit and then continued. Jumping up with heavy nasal sniffing.” However, Odin did not make a complete final response, which, for Odin, is to sit and stare. However, video footage from the stopping officer’s dashcam appears to show Odin sitting down very briefly. Pigsley testified the alerts indicated Odin detected an odor he was trained to detect, but a lack of a complete final response meant he could not locate the source. When the video was played at the suppression hearing, Pigsley testified as to the points Odin alerted as shown on the video. (It could be that Pigsley didn’t see the quick final response in the field, but since it showed on the video, the court considered it).

The defense expert, David Bowman, had trained between 300 to 400 dogs over the last 30+ years. While he acknowledged that all dogs do not alert in the same ways, he claimed that Odin did not exhibit any behavior that could be classified as an alert because none of his behavior matched his behavior in his training records. Pigsley testified he disagreed and explained that Bowman was unfamiliar with Odin.

Carson filed a motion to suppress, alleging that Odin was not reliable, had deficient training records and performance and never demonstrated a final response.

A drug dog’s reliability does not “depend on the State’s satisfaction of multiple, independent evidentiary requirements.” “[E]vidence of a dog’s satisfactory performance in a certification or training program can itself provide a sufficient reason to trust his alert,” and “[i]f a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.” “The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.” That said, a defendant is entitled “to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.”

The appellate court then stated that the issue before them was whether all the facts surrounding Odin’s alert[s], viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. Carson did not argue Odin’s training was insufficient or that Odin is not generally reliable. Even though handler and defense expert disagreed on whether Odin alerted, the video showed the following: Pigsley and Odin began the sniff at the front of the driver side of the vehicle. They made a pass along that side of the vehicle to the rear and around the back of the vehicle. Odin exhibited some interest in the rear of the passenger side of the vehicle and slowed his search, then the pair made a pass along the passenger side of the vehicle and around the front. While making these passes along the vehicle, Pigsley led Odin by running his hand along the vehicle. On the pass along the passenger side of the vehicle, Odin jumped up onto the car twice. They began a second pass along the driver side of the vehicle. When next to the front door, Odin snapped his head back and goes into a sitting position for a split second before continuing to follow Pigsley’s hand along the car. He then jumps up on the trunk before proceeding around the back of the car, where he again exhibits interest in the rear of the passenger side of the car. They turn around for another pass along the driver’s side to the front of the car and then make another full counterclockwise pass around the vehicle before discontinuing. Pigsley testified Odin was exhibiting heavy nasal breathing throughout the search, which Bowman was unable to dispute because the video had no audio. Odin’s training records consistently showed the same types of alert behaviors.

Based on the exhibition of several alerts common to this dog, the court held this “sniff was up to snuff.” Odin’s reliable alerts on the vehicle provided LE with probable cause to search.

Note: I put in the full analysis of the facts that the court went through because it is important to understand and be able to articulate alert behaviors vs. final response or indication and the reasons for both and the possible lack of some behaviors, including the final response. As long as the K9 shows the alert behaviors you know indicate that the K9 is in scent, a final indication is not necessary. However, if the K9 does a final indication, that eliminates this argument. Here, it may have been that the handler was watching where he was putting his hand as much as he was watching his K9 and may have missed the split second attempt to sit. This is a good reason to get to the point where you don’t have to physically indicate where the K9 should sniff. Try working toward letting the K9 sniff on his/her own with you just holding the leash and concentrating on the K9’s behavior. Also, remember, you do not have to keep percentages of alerts in the field.

United States v. Jordan (Ohio 2021) 2021 U.S. Dist. LEXIS 201565
Traffic Stop; Prolonged Detention; Reasonable Suspicion

Jordan was a passenger in a vehicle that was stopped for speeding. LE determined the car was a rental when obtaining driver’s information. Driver said they travelled to Tampa from Erie and were now headed back. LE then determined that driver had given him the wrong rental agreement. Driver said the rental was going to be returned to Florida. Additional questioning was not helpful in clarifying what driver was doing with the vehicle. Passenger also appeared nervous, breathing heavily. At that point, LE called for a K9 team. The team arrived about 10 minutes later. LE brought handler up to speed and told him if the K9 didn’t hit, he was “ready to hit print” on the citation and release driver. LE and the K9 approached the car, and LE told driver that if the K9 didn’t hit, he would cite and release her. The K9 alerted and a safe was found in the rear passenger compartment. Contraband was found in the safe.

In his motion to suppress, Jordan claimed that the stop was unduly prolonged and that LE did not have reasonable suspicion of other crime(s) to extend the traffic stop to include the K9 sniff. The appellate court held that in this case, the potentially prolonging act occurred when LE withheld the ticket until after the K9 had walked around the car. As LE’s representations to handler pointed out, he would only give the ticket to driver after the K9 sniff done. Those representations arguably show that the tasks related to the traffic stop could reasonably have been completed before the K9 walked around the vehicle. The Court therefore concluded that the stop was in fact extended, However, the court went on to analyze whether LE had sufficient additional reasonable suspicion of crime, such as drug trafficking, that allowed for an expansion of the investigation. Those factors were 1) Jordan’s heavy breathing; 2) Occupants’ possession of an old rental agreement for same vehicle; 3) The short turnaround of second agreement with no plans on when to return the vehicle; 4) Driving straight from Florida throughout the night when there were two possible drivers and 5) Driving in opposite direction of where the car was due to be returned the next day. The court concluded that based on the totality of circumstances, these factos indicated enough additional reasonable suspicion to wait for the K9 team. The search of the safe was lawful as it was a closed container in a motor vehicle.

Note: The justifications for the additional reasonable suspicion were pretty slim and other courts have rejected such factors as reasonable suspicion. It was also unclear to the appellate court when the citation was actually completed. It should be clear in the investigative report what the time line was regarding when K9 team was summoned, when the citation was started, how the citation progressed and when the citation was finished in relation to the K9 sniff and that result. While the court gave the benefit of the doubt to LE this time, you cannot rely on that in your future cases.

United States v. Ferguson (Ohio 2021) 2021 U.S. Dist. LEXIS 19972
Package Sniff; Reliability Foundation

Postal inspectors seized a suspicious package, noting multiple factors giving rise to reasonable suspicion including excessive tape including over the seams, shipped from a known drug source location, crossed off and rewritten recipient name, handwritten label, recipient zip code known to receive narcotic packages, use of Priority Mail service, and cash payment. The package was temporarily removed from the mail stream for further inspection. That further inspection involved running the sender’s and recipient’s names through a database to verify if the names were associated with the addresses. When neither name was associated with the recipient address and learning the sender street did not exist, the appellate court held that law enforcement had developed additional reasonable suspicion justifying the further detention of the package while waiting for a K9 team to arrive and conduct a free air sniff. A controlled delivery resulted in finding contraband and the arrest of defendant Ferguson.

Ferguson further argued that the K9 “search” was unreasonable. Ferguson questioned the K9’s reliability and pointed to a typographical error on the certification document as evidence that K9 was not certified at the time.

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. Here, handler testified regarding his twenty years as a K9 handler. He explained how this K9 is his third K9 and is a dual purpose K9. Handler also related his experience as a K9 trainer and international drug interdiction instructor as well as his positions as past president of the United States Police Canine Association and current president of the Ohio Law Enforcement K9 Association. Handler noted that he trained with his K9 every two weeks for eight hours. Handler noted that K9 had been certified every year since April 2016 but that his certification from April 18, 2019 had a listed expiration date of April 22, 2019 – only four days later, which handler attributed to a typographical error (the court agreed this made sense as all other certifications were for a full year). In addition, the corrected certification was provided to the court and defense after the hearing. Finally, the court held that handler testified credibly that K9 was very reliable, never needing remediation training and never failing to certify or work through issues regarding training.

Jerry Potter, defendant’s expert witness, acknowledged that there is no national standard for training requirements. Potter further acknowledged that a dog could be reliable on less than 16 hours of training. Potter acknowledged he had not spoken with anyone at the Montgomery County Sheriff’s Office to get a complete understanding of the training requirements or the remedy for missing a training — he acknowledged relying solely on the paper document of the policy. Finally, Mr. Potter acknowledged there was nothing annotated in handler’s training records of K9 that would cause concern with regards to K9’s reliability. Potter’s only complaint was that the training records were vague and demonstrated that K9 has not met each and every hour of the written training policy for every month of his use.

Handler testified as to K9’s training and his training records, and explained that some scheduled training days get missed due to sick days or vacation leave and that the policy is silent on those situations. However, the general practice of the canine unit within the Montgomery County Sheriff’s Department was that a missed day does not need to get made up. Handler explained it was a manpower issue as the Montgomery County Sheriff’s Office’s practice requires the training to be a formalized training with a trainer in charge, which is also not specifically stated in the written policy.

The court held that K9 was properly trained and reliable and defendant did not adequately rebut that evidence.

Note: The agency’s policy was silent on whether make up days were required when an 8 hour training was missed because of illness or vacation. The handler testified this was due to manpower issues. This court found this K9 to be reliable even with this issue because it was apparent missed sessions were rare. However, this lack of language in the policy could lead to a slippery slope of missing more and more days without making up the training. It’s always best to make sure you are logging the 16 hours of training a month and if there are missed days, you should be making up that time, even if it just on your own with your K9. And your agency’s policies should reflect that. It’s also important to note that your K9 doesn’t have to be perfect in every certification or field training. A K9 with an issue that has received successful remedial training is fine. Just be prepared to talk about it. 

N.J. v. Days-Jackson (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 2501
Odor of Marijuana as Probable Cause

As LE passed a parked car, they saw a large cloud of white smoke come out of the open windows. They also smelled burnt marijuana. LE parked and approached on foot. Days-Jackson, the defendant here, was the driver and there was a female passenger. They admitted to smoking marijuana, but claimed it was all gone. However, LE saw the passenger trying to conceal a roach and also saw two open containers of alcohol. They were asked to step out of the car. During a search of the vehicle, LE found more marijuana and a scale. The trunk was searched because of the smell of raw marijuana coming from the rear of the vehicle and the fact that the scale indicated trafficking. In the trunk was more marijuana, a gun and ammo.

Defendant moved to suppress the evidence obtained from the vehicle’s trunk. The lower court found finding that LE had probable cause to search the trunk because “taken all together, the scale and the scent of marijuana that could not be explained by the amount of marijuana and residue found inside the passenger compartment of the car established that LE had probable cause to conduct a search of the trunk.”

The appellate court agreed and stated that, “All that is required for probable cause is that there is a fair probability, given the totality of the circumstances and common sense, that contraband may be found.” Here, LE found a scale with marijuana residue and smelled raw marijuana after removing all marijuana from the passenger compartment. Those circumstances, coupled together, were sufficient to support the trial court’s finding of probable cause necessary to search the trunk.

Note: It has become clear that courts, particularly those in states in which marijuana has been decriminalized and/or legalized, will be taking into account the “quality” and “quantity” of the smell of marijuana; how strong, whether burnt or raw, where it seemed to be originating. In addition, it will be necessary to establish the training and experience of the officer that he/she knew the smell of marijuana, whether the smell was of burnt or raw marijuana, and whether the smell indicated a large amount or a small amount.

United States v. Matthews (Missouri 2021) 2021 U.S. Dist. LEXIS 196197
Inevitable Discovery; Alert as Probable Cause; Reasonable Suspicion for Detention

LE began a drug trafficking investigation and a CI indicated that a large amount of drugs were getting trafficked from California and brought back to St. Louis. Based on the information from the CI and additional detective work, the trafficker was determined to be defendant Matthews. Tracking warrants were obtained and trackers installed. Using this information, Matthews was tracked from California and it appeared he was on a Greyhound bus. LE knew from previous investigations that passengers are required to get off the bus while it is serviced at this station. It was also determined that Matthews had a felony record and was known to be violent with LE. Matthews was contacted by LE when he arrived in Kansas City, Missouri, and disembarked. Plainclothes LE ID’d themselves and asked to see Matthews’ bus ticket and to speak to him. Matthews agreed and asked if he was in trouble. Matthews reeked of weed. As LE engaged Matthews in conversation, he appeared to be less than truthful; he was evasive, nervous and had a one way ticket even though he said he was only in California for a couple of days. LE  asked if a K9 could sniff his bag and he refused. LE then told Matthews they were going to conduct a sniff anyway and started walking him out the doors of the station. Matthews tried to walk away, but was detained by LE and frisked. Matthews resisted, there was a scuffle, and he was arrested. His bag was taken from him. Meanwhile, the K9 was sniffing the buses’ luggage compartment and she alerted to Matthews’ suitcase. Matthews was in personal possession of 2 cell phones and narcotics. The K9 also alerted to the bag Matthews had in his possession. SWs were obtained for the bags and a large amount of narcotics was found.

The appellate court first found that the initial contact with Matthews was a consensual encounter, at least up until LE asked for consent for a K9 sniff the second time. At that point, LE had enough reasonable suspicion to detain Matthews for further investigation. This included the CI information as well as Matthews behavior and statements at the bus station and the smell of marijuana on Matthews’ person. The court also held that the Terry frisk was lawful, given his sketchiness at the station, his bulging pockets and his history of violence. The two K9 alerts supported the detention.

The court went on to hold that all the evidence of drug trafficking would have inevitably been discovered because of the K9 alert to the suitcase Matthews left on the bus in the luggage compartment.

Note: The smell of marijuana was part of the reasonable suspicion for Matthews’ detention, but it appears from the court’s reasoning on the inevitable discovery doctrine that the alert from the K9 was probable cause for search. Missouri decriminalized 10g or less of marijuana but in this case, there was meth on Matthews person and meth in his bags, so presumably the K9 was alerting to both marijuana and meth.

Commonwealth v. Joshua Eugene Ford (Pennsylvania 2021) 2021 Pa. Super. Unpub. LEXIS 2766
Traffic Stop; Odor of Marijuana as Probable Cause

Traffic stop for tinted windows. Driver was nervous and said the car belonged to a friend and he was meeting with someone from Instagram but couldn’t remember the street number of the address. LE smelled the odor of marijuana and observed loose marijuana in the center console area. Driver told to step out and he was Terry frisked. Car was then searched and in the trunk was marijuana and a firearm.

The trial court suppressed the items found in the trunk, saying the search of the passenger compartment did not give rise to probable cause to search the trunk. The Commonwealth (government) appealed.

The prevailing law in Pennsylvania was that LE needed to have probable cause and exigent circumstances to search a vehicle without a warrant (no automobile exception to the warrant requirement). In addition, precedent also prohibited a search of the trunk when there was evidence that the contraband possessed in the vehicle passenger compartment explained the smell of marijuana.

Here, the appellate court held, there was no indication that the small amount of raw marijuana in Ford’s center console was the obvious source of the strong odor of marijuana detected by LE. Moreover, LE provided specific testimony concerning Ford’s suspicious demeanor — that Ford had trembling hands, elevated pulse, and an inability to provide a name of the person he was going to visit and only a street and town with no house number as his destination. However, to the extent the trial court did not consider these observations of LE in determining whether LE had probable cause to search Ford’s vehicle, the appellate court held that the trial court erred. Thus, Ford’s demeanor, coupled with the strong odor of marijuana, which “was not consistent with” the “loose particles” of marijuana observed in the center console area, created “a fair probability that LE could recover additional contraband in the trunk.”

The appellate court then addressed the unique exigent circumstances requirement for a warrantless search of a vehicle in Pennsylvania. The precedent that reinstated such a requirement was after the hearing in the trial court, but before the appeal. Therefore, the case was remanded to the trial court for further proceeding directed at the exigencies of the situation.

Note: This is a weird variant on the automobile exception to obtaining a warrant. Only a handful of states impose this extra requirement beyond what the US Supreme Court requires. Be sure you have a good line of communication with your prosecutor’s office so that you are following the requirements of your jurisdiction.

Robinson v. State (Florida 2021) 2021 Fla. App. LEXIS 13874
Curtilage of a Motel Room

Robinson was residing in a single story, multi-unit motel with a common exterior walkway running in front of all the motel rooms. A search warrant for the room was obtained based in part on a K9’s alert outside Robinson’s room. Contraband was seized from the room. Robinson complained that the K9 sniff was a violation of curtilage; that the sniff violated his legitimate expectation of privacy in the walkway of the motel.

Robinson cited Florida v. Jardines in support of his position (in that case, K9 was brought up on the porch of a home and sniffed the door–USSC determined that was a violation of the expectation of privacy). The appellate court distinguished a private home from the public walkway at a motel. The appellate court used the following factors to determine whether the public walkway in front of a motel room is curtilage: 1) the proximity of the area at issue to the home; 2) whether the area is within the enclosure surrounding the home; 3) the particular use of the area; and 4) the steps taken to protect the area from observation from individuals passing. Here, the court held, the walkway was open to use by others, including other motel guests, visitors, and employees, and it was in the nature of a public, not private, area. Just as other persons, LE could walk down the motel walkway without a warrant. Case law also distinguishes common areas outside a hotel/motel room from the curtilage of a home. While a resident of a private home has a reasonable expectation of privacy on the front porch or in the backyard, a motel guest does not have a reasonable privacy expectation in a common area. The walkway in front of a motel room is not curtilage, and Robinson does not contend otherwise, because it does not harbor the intimate activity associated with the sanctity of a home and the privacies of life. While the walkway was in close proximity to Robinson’s motel room, it was not within an enclosure surrounding his room/residence only, it was for use by the public, and there was no evidence that Robinson took any steps to protect it from observation by people passing by or that it was used for other purposes by him. Therefore, the motion to suppress was denied.

Note: This case seems to hinge on the fact that this walkway was unenclosed and available to the public, whether they had business with the rooms’ residents or not. The other distinction is, according to this court, motel rooms enjoy less of an expectation of privacy than private homes (or apartments). This appears to be the distinctions from the previous cases that reject sniffs of apartment doors even from a publicly accessed hallway. This line of distinction appears to be on legally shifting sand, so be sure you and your prosecution team understand what you are working with in your jurisdiction.

United States v. Teachey (4th Cir. 2021) 2021 U.S. App. LEXIS 30542
Traffic Stop; Reliability Foundation

This appellate court decision does not recount the facts in this case, but states that Teachey first contends that the district court erred in denying his motion to suppress evidence found during a warrantless search of his car because probable cause for the search was based on the alert of an unreliable drug-detection K9. Therefore, I assume the investigation arose from a car stop.

In determining the reliability of a drug-detection K9, a court must look to the totality of the circumstances. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. Here, the Government presented extensive evidence regarding the dog’s reliability, including testimony regarding the dog’s training and certification, and Teachey did not provide any compelling conflicting evidence. Based on the totality of the circumstances, the appellate concluded that the district court did not err in denying Teachey’s motion to suppress the evidence resulting from the search.

Note: Because there was little or no statement of the facts, I can’t show what evidence was presented by the government, but it was clear that the K9 was certified and well-trained.

United States v. Rederick (South Dakota 2021) 2021 U.S. Dist. LEXIS 197216
Traffic Stop; Reasonable Suspicion; Reliability Foundation

Five CIs identified Rederick and claimed he was a drug dealer and supplied them with drugs. In addition, one of the CI’s phones corroborated Rederick being a drug trafficker. LE applied for and got a pen register which allowed LE to track the location of Rederick’s phone. LE learned that Rederick was on the road and was going to be meeting up with another trafficker. LE asked to have Rederick pulled over on his way back based on the information he was receiving over the pen register. Rederick’s trailer’s license plate was not properly illuminated, so a traffic stop was conducted as soon as he entered South Dakota. LE asked Rederick to come back to his patrol car while he wrote a warning. LE also called for a K9 team to respond. Once the K9 team was on scene, LE asked for a free air sniff of the vehicle and the trailer. K9 had alert behaviors for the vehicle and the cargo (which happened to be another car) on the trailer and then performed a final indication on the vehicle. Both vehicles were searched and contraband was found in the car on the trailer.

The court held first that LE had probable cause to stop due to improper illumination on the trailer plate. In addition, the court also held that the stop was justified by the drug investigation regardless of the equipment violation (info from 5 CIs as well as the pen register information). This conclusion, then, allowed the court to hold that there was reasonable suspicion to extend the traffic stop to encompass a drug investigation which included waiting for the K9 team.

Rederick then challenged the alert and the reliability of the K9. Rederick claimed that the K9 did not alert on the car on the trailer, but the videos did not show the entirety of the free air sniff. The court held that the testimony of the handler was sufficient to demonstrate that the K9 exhibited alert behavior at the trailered car and therefore there was probable cause to search said car. The court moved on to the reliability objection and found that the K9 team completed a 240-hour training program and K9 satisfactorily completed the testing scenarios needed for certification in November 2019. After certification, the K9 team had completed 16 hours of additional training each month. The defense then attacked the training manual used which was based on the Utah POST program, mainly that Utah did not require single blind testing. But the court found that South Dakota did use blind protocols in their testing and did so for this K9’s certification. The defense then complained that the training records for the team were limited, incomplete and containing multiple errors. While the court acknowledged there were some deficiencies in the records, it found that overall, it was clear that the K9 team was reliable.

Note: It’s interesting that not more was made over the fact that the K9 only had alert behaviors on the trailer car and did the final indication at the door of the truck towing the trailer, since only the trailered car had contraband. They had a defense expert and did not utilize her to discuss further the lack of a final indication of the trailered car. When you have a situation out of the ordinary, like this one, make sure you are documenting all the reasons why there was no final alert on the item sniffed. For example, it’s possible that the K9 could not reach the trailered car and therefore could not confirm with a final indication that controlled substances were in the car, although the alert behaviors indicated that drugs were there.

Ohio v. Dudsak (Ohio 2021) 2021-Ohio-3632
Traffic Stop; Alert as Probable Cause; Search of Driver

Dudsak was the driver of a vehicle pulled over for illegal tint. He had one female passenger. As LE was following him, he reached toward the glove box. To stop, Dudsak cut across three lanes of traffic and almost hit another vehicle. He turned into a gas station and LE lit him up. He kept going through the parking lot, finally stopping near the roadway. When LE approached, Dudsak kept his window rolled up almost all the way and was trying to cover his face with a mask even though he was smoking a cigarette. Dudsak taken out of car and Terry frisked; he had no items of concern. However, he did deny reaching toward the glove box. Dudsak refused consent so LE ran his K9 around the vehicle. The K9 alerted the the car, but nothing was found in the car. LE then searched Dudsak and found a vial of methamphetamine in his pocket.

Dudsak’s motion to suppress was granted at the trial level. The government appealed and framed the issue that a positive alert provides probable cause to search the car and by extension the driver. In any event, the government asserted that LE had other evidence of criminal activity in addition to the alert to justify a search of Dudsak’s person.

The appellate court cited Ohio law that states although a K9 alert provides probable cause to search the vehicle, a K9 alert alone does not establish probable cause to fully search or arrest an occupant. The alert is only one factor in determining probable cause to search the person. The court went to hold that it could not conclude that LE had probable cause to search Dudsak under the totality of the circumstances presented herein. LE saw Dudsak make one “abnormal” movement toward the passenger compartment prior to LE trying to stop him and therefore before LE could prove Dudsak knew about LE’s presence. Dudsak explained, however, that he had simply been “messing with his girlfriend’s skirt.” The court also rejected that Dudsak’s behavior in stopping was abnormal.

To the extent Dudsak began rolling up his window when Officer Petit approached and tried covering his face with a mask while smoking a cigarette, the court noted that the events herein took place during a global pandemic and therefore it would not be unreasonable that an individual would be concerned or confused about distancing or mask protocols during a traffic stop. Therefore, the court held that these facts did not supply the additional facts that would amount to probable cause to search Dudsak’s person.

Note: This is a good reminder that courts are individuals and these types of analyses can go both ways. Here, it did not seem that the court was analyzing the facts by the totality of the circumstance, but addressed each factor alone, which the USSC and other jurisdictions require. I’m not sure what the government argued, but this “totality of the circumstances” was not in the opinion. 

United States v. Daniels (New York 2021) 2021 U.S. Dist. LEXIS 194124
Traffic Stop; Odor of Marijuana as Probable Cause; Inevitable Discovery

Two cars with 4 detectives encountered a known gang member in another car and could smell marijuana coming from the direction of that vehicle. As LE observed the car, the gang member exhaled a thick plume of white smoke; LE, based on training and experience, knew that it was not tobacco smoke and concluded it was marijuana smoke. At that time, marijuana was not legal to possess or use. Upon approach, LE saw the gang member with a marijuana cigarette in his hand and the smell of marijuana got stronger. The gang member saw LE and said, “We’re just smoking some weed.” Through the window, LE saw packages that were consistent with marijuana and cash. The occupants were taken out of the car and Terry frisked. Daniels, a passenger, had a loaded magazine and a gun on his person. The vehicle had contraband inside.

The court first concluded that a Terry stop occurred when LE smelled and saw the use of marijuana and ordered driver out. The reasonable suspicion that supported this detention was the detection and use and possession of marijuana.

The court then addressed probable cause to search the vehicle and to arrest and search the occupants, holding that once LE confirmed the possession and use of marijuana through the driver’s admission and items in plain view, LE had sufficient probable cause to search the vehicle. As to the arrest and search of the passenger, LE saw packages near Daniels that, based on their training and experience, probably contained controlled substances along with the use of marijuana by driver, was sufficient probable cause to arrest and search passenger Daniels as these facts were indicative of Daniels and the other occupants being engaged in a common enterprise and had the same interest in concealing the fruits or the evidence of their wrongdoing.

Finally, the court held that the gun and magazine would have inevitably been discovered as the search of passenger prior to the search of the vehicle was supported by the Terry doctrine since finding contraband in the car would have led to the arrest and search of all occupants in any event.

Note: The federal system has well-settled precedent that possession and use of marijuana is still illegal in all instances, and that the smell of marijuana is probable cause to search for marijuana. This is, of course, subject to change when and if the federal government changes the status of marijuana.

United States v. Devalois (Indiana 2021) 2021 U.S. Dist. LEXIS 194889
Traffic Stop; Prolonged Detention

Devalois was a passenger in a vehicle stopped by LE for following too closely. Devalois said driver had rented the vehicle and that she didn’t have a hard copy of the rental agreement but might have one on her phone. LE invited her back to the squad car while she looked for it. LE’s K9 was in the back of the squad car. Meanwhile, LE was running the fleet registration which was notoriously slow. Driver was exhibiting signs of nervousness which were escalating. She said the K9 was cute. While waiting for the return on the fleet registration, LE asked questions about her travel. Driver could not find the agreement so LE went back to the vehicle to obtain the Illinois registration. An eyeglass case that had been sitting above the glove compartment was now gone, even though Devalois was not wearing glasses. While Devalois was looking for the registration he responded to questions about travel, but quickly became unhappy and used profanity in refusing to answer questions. LE then returned to his squad car with the Illinois registration and started on the citation since he had all the information needed to complete it. The driver was becoming more anxious so LE told it was just a warning and then asked several questions about drugs, cash and firearms. Driver said none were in the car. She refused to consent to a search. Another LE arrived as back up and LE handler handed off the citation and performed a free air sniff with his K9. K9 alerted while back up was still working on the citation. LE approached the vehicle to get Devalois out. He slid over to the driver’s seat and took off. A pursuit ensued which ended when Devalois was arrested 30 minutes later. There was a gun, ammo and marijuana in the car.

The court defined this issue as whether the K9 sniff prolonged the stop. The court held that the answer was no. Handler testified that much of any time eaten up in the (at most) nine-minute encounter-and only six minutes from engagement with the driver to the canine’s alert-was attending to safety concerns, waiting for the driver to find the rental agreement, awaiting license or Illinois fleet plate return, going back and forth from the vehicles initially and later for the registration, and then completing the warning ticket. Handler even worked around the delay occasioned by the Illinois fleet return rather than hold up the stop. The court held that displayed diligence, not delay.

In addition, the court held that handler’s moderate questions didn’t prolong the stop. The handoff to back up also wasn’t a delay. Officers justifiably confer for safety reasons, and this update officer-to-officer was momentary. Handler completed the dog sniff before the warning was completed or should have been completed. The court recognized it was a short document to complete, but handler had just begun to fill it in when he handed off that task to his colleague as he conducted the dog sniff. Therefore, without any unreasonable delay from LE, the K9 sniff was constitutional. “It is well-established a dog sniff of a vehicle’s exterior only for illegal drugs during a lawful stop for a traffic violation does not infringe Fourth Amendment rights, even absent reasonable suspicion of drugs.” In any event, Devalois’ attenuated seizure after his flight of thirty-minutes gave law enforcement probable cause to search the vehicle.

Note: The court took the opportunity to address every avenue the defense tried to argue was prolonged detention; the questioning, the hand off, the trips between the two vehicles. They held that there was no unlawful prolongation by any of these activities. Keep in mind that you will have to justify everything you did in this type of situation; whether it is officer safety or simply pursuing the investigation of the vehicle and writing the citation, be sure that the sniff does not interrupt the traffic investigation parts of the the stop and cause prolongation.

State v. Herrera (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 592
Traffic Stop

LE handler stopped a vehicle for expired registration. Prior to activating his lights, handler confirmed that the registration was expired. By the time he turned around and went after the car, the car had parked and the driver and Herrera, passenger, got out and began walking away. Handler made contact with the occupants then asked another LE to write a ticket so he could run his K9 around the car. The K9 alerted to the car. The car was searched as well as the driver’s purse (with her consent) and nothing was found. LE asked Herrera had anything illegal. Herrera said he had a knife on his belt so he was escorted back to the cruiser for LE to do a Terry frisk. Three knives were removed from Herrera. LE then felt a bulge in a plastic baggie in the coin pocket of Herrera’s pants. Herrera said it was marijuana. Herrera was handcuffed and searched thoroughly; the bulge was two bindles of meth.

Herrera filed a motion to suppress the evidence obtained through the search, arguing handler lacked probable cause to search him because K9 alerted on the car, not on him personally.

Neither party disputed that handler could lawfully conduct an investigatory stop. And given Herrera’s admission that he had multiple knives, including a knife clipped to his pocket that handler could observe, the parties agree handler had reasonable suspicion to pat down Herrera for weapons. The court held that the questioning by handler during the frisk was appropriate: handler asked Herrera if he possessed anything illegal while he was searching him for—and found several—weapons. In other words, handler asked his questions not as part of a fishing expedition unmoored to any constitutional justification, but with reasonable suspicion that justified the pat-down.

After reviewing the totality of the circumstances before them, the court held that this case fit squarely within the plain-feel exception to the warrant requirement. Handler was conducting a legal frisk for weapons when he felt a bulge in the coin pocket of Herrera’s pants. Handler indicated that, in his experience, people often carry illegal drugs in baggies in their coin pockets, and the bulge felt like it matched this description. More importantly, Herrera informed the officer that the bulge was an illegal substance—marijuana. Though the baggies actually contained methamphetamine, Herrera’s statement provided the necessary probable cause to search Herrera’s coin pocket and remove the baggies.

Note: The K9 sniff wasn’t the basis for the search of the passenger; the Terry frisk was. It’s always good practice to explore and document all avenues of showing reasonable suspicion and probable cause.

State v. $133,888.00 in United States Currency (Florida 2021) 2021 Fla. App. LEXIS 13641
Currency Sniff

The aggregation of the facts based on the totality of the circumstances were sufficient to satisfy the State’s burden to establish probable cause pursuant to the Florida Contraband Forfeiture Act because the officer attested to the large amount of currency found in a bag, which was previously kept in the trunk of a vehicle, the currency was packaged in “quick count” bundles commonly carried by drug dealers, a certified drug-detection canine alerted to the currency, the driver claimed that he was delivering the money to a woman for a Colombian friend but could not provide any identifying information, all three of the vehicle’s passengers had inconsistent or non-existent explanations for the source of the currency, and all three of the vehicle’s passengers denied ownership of the currency.

Note: The takeaway here is that a K9 alert on currency is just one factor in determining probable cause, and not probable cause in and of itself.

United States v. Jones (Missouri 2021) 2021 U.S. Dist. LEXIS 192730
Detention; Plain View Doctrine; Alert as Probable Cause

LE made contact with Jones because he was in a parked vehicle that had no visible registration. LE parked and started walking toward the vehicle. Jones got out. LE asked if he lived in the area and if the vehicle belonged to him. Jones said yes to both questions. LE told him to come closer and not walk away. Jones ran away. LE was unable to located Jones. LE looked in the window of the vehicle and saw a handgun in plain sight. LE called for a K9 team to respond. K9 alerted on the car. The vehicle was searched and the handgun was recovered along with indicia for Jones.

Jones first challenged the initial contact by LE, but the appellate court made short work of that because Jones was never seized (a violation of the Fourth Amendment that results in a suppression must be an improper search and/or seizure). The court then addressed the search of the vehicle, holding that probable cause was supported by a fair probability that contraband or evidence of a crime would be in the Mustang because Mr. Jones fled from the scene, the vehicle was unlicensed, a canine indicated that drugs were inside the vehicle, and Officer Roberts saw a handgun in plain view lying inside the vehicle. Applying “a common sense approach,” all of these relevant circumstances establish a fair probability that contraband or evidence of a crime would be inside the Mustang. In addition, the fact that the search ultimately did not uncover drugs is irrelevant because probable cause is not evaluated in hindsight.

Jones also tried to challenge the reliability of the K9. The appellate court found that Jones had an opportunity to challenged the reliability of the K9 in the lower court and failed to do so. In addition, the alert was only part of the probable cause here and a challenge to the K9’s reliability would have minimal impact. Therefore, the appellate court refused to entertain such an argument at this juncture.

Note: The sniff and alert ultimately ended up being less important as there was ample probable cause to search the vehicle without it. However, the LE on scene didn’t know what a court would do with this situation and getting a K9 on scene to perform a free air sniff was a smart idea as it gave LE another avenue of not only probable cause, but admissibility of the evidence in court.

United States v. Harris (Florida 2021) 2021 U.S. Dist. LEXIS 192810
Private Person Investigation; Package Sniff; Standing

LE K9 team were at a FedEx facility at an international airport and came across a suspicious package. Handler removed it from the stream of packages and his K9 alerted. After seeing the K9 alert, the civilian FedEx manager took the package from LE handler, opened the package and discovered controlled substances. An anticipatory SW was obtained as well as a SW for use of a drone. The controlled delivery was made and Harris picked up the package. The names and addresses on the package were not Harris’. The woman it was addressed to took delivery of the package, but Harris pulled up and took the package from her and drove off. Later a SW for his apartment (leased in a different name) turned up the package. The woman who took delivery appeared to have no connection with Harris.

Harris claimed that the FedEx manager was acting under the directive of LE when he opened the suspicious package pursuant to FedEx’s policies after the K9 alerted.

LE had been at the FedEx facility about 95% of the time during the time in which the package was received. LE was using K9s to search for controlled substances. LE had an ID badge issued by the airport which allowed the K9 team to be present at the FedEx facility. There was no agreement between LE and FedEx and there was no discussion between the FedEx manager and LE about the package prior to the opening of it. When the manager opened it, LE saw the controlled substances, so LE seized it.

The court applied a two step test regarding the opening of the package by the FedEx employee. For a private person to be considered an agent of the government, the court looked to two critical factors: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private actor’s purpose was to assist law enforcement efforts rather than to further his own ends. The manager testified that since it is FedEx policy to prohibit the shipment of contraband, he opened to package after the K9 alerted.

In addition, the handler did not realize the manager was going to open to the package until the manager stated that he had seen the K9 come to a final response, and, immediately thereafter, opened the package on his own as an agent of FedEx. There is also no evidence whatsoever that Mr. DiMarco’s purpose was to assist law enforcement efforts rather than to further his own ends as an agent of FedEx.

Note: Harris also claimed he had standing to challenge the sniff and search of the package, but the Court held he did not. I have not analyzed that issue here because it does not address the actions of the K9 or handler, but there is some good language in the case about how Harris tried to distance himself from the package by using someone else’s address and phone number and since he did so, he could not now claim that he had a privacy interest in the package. “Defendant appears to have lived a life of lies and deception while engaging in narcotics trafficking and he has done everything he can to avoid having any ownership interest in or connection to the package at issue and other illicit packages which have been shipped to him. In effect, for purposes of his drug trafficking business, he has disassociated himself in all possible ways from the illicit package at issue so he could disclaim ownership if the package was intercepted by law enforcement; however, for purposes of the suppression hearing, he has endeavored to testify in a manner that ties himself to the package so that he can contrive standing and attempt to establish a reasonable expectation of privacy in the package to permit him to challenge the search and seizure of the package. Although clever, this effort must ultimately fail.”

State v. Conner (Washington 2021) 2021 Wash. App. LEXIS 2359
Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause

LE got information from a CI (probationer) when they agreed to give him consideration on pending charges. CI identified Conner from photographs as his heroin supplier. LE was given basically the same information from another CI who then exchanged texts with Conner and attempted to arrange a buy. However, Conner told CI she doesn’t do deals out of her house. LE then set up surveillance. Conner pulled up and parked on the street outside her house. LE stopped her when she got out of her car. She refused consent, so a K9 team sniffed the car. The K9 alerted. Conner was released but her car was seized and LE applied for a warrant. Cash and narcotics were found in the car.

Conner filed a motion to suppress. The appellate court reviewed the denial of the motion by the trial court. The court first held that the SW affidavit included (1) information from both CIs, (2) photographs of text messages exchanged between CI2 and Conner, appearing to negotiate a location and price, and (3) information about the dog alerting in response to the trunk of Conner’s vehicle. The court went on to say that given that a trained drug dog alert alone is sufficient to establish probable cause, the search warrant affidavit was clearly sufficient to establish probable cause. The court also held that due to the information from the CIs, the contact with Conner was a valid Terry stop supported by reasonable suspicion and that the K9 sniff occurred during said stop and on a public street.

Note: No real new information here, but since this is Washington, and some rather interesting marijuana cases have come out of that jurisdiction in the recent past, it is refreshing to see Washington acknowledging the appropriate factors of reasonable suspicion for a Terry stop and probable cause for the SW. Interestingly, this K9 was not trained on marijuana. This was not commented on so I don’t know if this made any difference in the appellate court’s decision. The other item to take away is that prolonged detention could happen here even though there was no traditional traffic stop. Prolonged detention can be asserted in any contact by LE, so best practice is to make sure you are investigating within the time frame of the reasonable suspicion available via the facts of the circumstances of the contact.

State v. Howard (Idaho 2021) 2021 Ida. LEXIS 159
Traffic Stop; K9 Entry into Vehicle; Reliability Foundation

Howard was stopped by LE for a traffic violation and taken into custody for a warrant. LE then brought in a K9 team to sniff the exterior of the vehicle. After momentarily poking his nose in the open window of the car, the K9 alerted. In the car were narcotics and paraphernalia. Neither Howard or his passenger were the registered owner of the car.

Howard claimed the intrusion into the vehicle by the K9 was a trespass and therefore a 4th Amendment violation (argument based on Idaho precedent). The government argued that the entry was instinctual and therefore not a 4th Amendment violation (federal precedent). The appellate court went with the trespass theory. Since the intrusion into the car by the K9’s nose was before the K9 alerted and therefore before LE had probable cause to search, the trespass was a search in violation of the 4th Amendment, even though the intrusion was de minimis (very minor). The court rejected the other argument advanced by the government and held that LE did not have probable cause prior to the sniff and therefore held that the motion to suppress should have been granted.

In addition, there was a concern about the reliability of the K9. There was testimony from the handler at least sometimes K9 “freezes” or tries to “cheat the system” by looking at the officer for his reward before indicating as he has been trained to do and in this case K9 froze and looked back at handler before entering the car. From these facts, the court could not determine whether K9’s freezing and looking back was a reliable indication that narcotics were present. This was important because if the facts showed that these behaviors were reliable indicators regularly shown by the K9 when he was in scent, then probable cause would have pre-dated the entry of the nose into the car. Because the court had no way to determine if this was a valid alert rather than the K9 “gaming the system,” they had to hold that probable cause was not established until the final indication, which was tainted by the trespassory intrusion.

Note: While the handler was appropriately truthful about his K9’s issues in “gaming the system”, it would have been helpful to have addressed those behaviors immediately in training to eliminate them. As to the conflict demonstrated here between Idaho precedent and federal precedent, this is a state case and therefore Idaho precedent controls here. In addition, since Idaho’s precedent applies a stricter standard to K9 teams, it’s not an issue that would likely be taken up by the feds. This is another reminder that you need to always be in communication with your prosecutor’s office to make sure you know the local standards you will be required to follow.

State v. Randall (Idaho 2021) 2021 Ida. LEXIS 160
Traffic Stop; K9 Intrusion to Vehicle; Prolonged Detention

LE observed Randall driving on the Interstate and his body language was peculiar, indicating he was nervous and trying to hid his face from LE. Randall then failed to signal a lane change properly and LE pulled him over. Randall was extremely nervous in talking to LE about his travel, and his answers did not make sense. The vehicle was rented and the interior was littered with food wrappers, etc., indicating this was a drug run. LE then informed Randall that LE believed that Randall was drug trafficking and obtained consent for a sniff of the exterior of the car. The window of the car was left open by Randall. During the sniff, K9 immediately jumped through the open window, but didn’t make it all the way through so handler assisted the dog into the car because he felt if he tried to get the dog out at that point, either the car would be damaged or K9 hurt. K9 then went to the back seat and alerted. K9 was taken out of the car and the same thing happened. Third time around, K9 alerted to the trunk of the car. 65 pounds of marijuana were found in the trunk.

The trial court followed federal precedent and found that the leap into the car was instinctual and the assistance given the K9 by his handler was only to prevent injury to the K9 and the vehicle. The handler did nothing to initiate the K9’s entry into the vehicle (and the assistance given was motivated by handler’s desire not to damage the vehicle or the K9).

The appellate court first addressed whether there was prolongation of the traffic stop and held that LE, under a totality of the circumstances analysis, had a reasonable suspicion that Randall was involved in drug trafficking based on (1) Randall’s travel plans that were consistent with drug trafficking and inconsistent with his stated motivation for traveling; (2) Randall’s slowing below the speed limit as he approached handler’s patrol car, rigid driving position with his face obscured from view as he passed, and nervous appearance during the stop; and (3) the “lived-in” look of the car, which was suggestive of continuous travel while trafficking drugs. This meant that the consent was unnecessary.

The appellate court then turned to the sniff itself. The government advanced a inevitable discovery argument, that the alert on the trunk from the outside of the vehicle would have happened even without the two alerts inside the vehicle. However, the appellate court decided that the government had waived that argument by not making it at the trial court level and rejected that argument. The appellate court then analyzed Jones and Jardines, USSC cases that address the right of privacy in regards to private property. The appellate court concluded that a warrant is necessary when there is a trespass by the government for the purpose of obtaining information and here, the two entries by the K9 into the vehicle were trespasses and therefore illegal searches (transforming the sniff, which is not a search, into a search). Part of the conclusion was that the handler did not clarify on the stand whether the K9 was following a scent into the car or if he was just super eager to find the odor and get his reward. The appellate court held that to the extent the government has argued that an alert by K9 (whether inside or outside the car) was sufficient to establish probable cause because it was a reliable indication of illegality by a highly trained tool of law enforcement—yet his leap inside the car was nothing more than a dog being a dog—the State’s argument is not well taken.

Note: There’s a lot to unpack here. First, it should be noted that the prosecutor at the trial level did not put forth an argument that might have gained some traction; that is, that the marijuana would have inevitably been found. It’s understandable that at the time this case was argued, the federal precedent was that an entry into the vehicle unassisted by human LE was fine. However, one should always advance all theories of admissibility because one never knows what a trial court or an appellate court is going to do with your case. The next issue is this overlay of a trespass argument which is based on Idaho precedent. While we can debate whether federal precedent or Idaho precedent is more appropriate, the take away here is that if there are avenues to enter the vehicle prior to starting the sniff, close them. If there are narcotics in that car, your properly trained and handled K9 will alert (as did this one on the trunk). Again, please also be in contact with your local prosecutor to make sure you are in compliance with your local requirements as well as federal.

Commonwealth v. Clayborne (Kentucky 2021) 2021 Ky. LEXIS 365
Traffic Stop; Prolonged Detention

LE was patrolling at about midnight and saw a pedestrian talking to two occupants in a car that was idling at the side of the road. When the pedestrian saw LE, he walked away from the car. The car drove off and LE followed it. LE ran the plate and found out the owner had a suspended license and needed to show proof of insurance. LE then pulled the car over.

Clayborne was the passenger. The driver did indeed have a suspended license and both occupants had former narcotics charges. Once this was discovered, LE called for a K9 team. The K9 team arrived while LE was in the middle of preparing the citation. At that point, LE stopped writing the citation and briefed the handler, then got the occupants out of the car and explained to them what was happening. Then LE watched the K9 team sniff the vehicle. Two minutes into the sniff, the K9 alerted. The vehicle was searched and a baggie of cocaine was found outside the front passenger door.

The appellate court held that LE had temporarily abandoned his traffic investigation in order to assist the drug investigation the K9 team was conducting. This was enough of an interruption that it became an unlawful prolongation of the traffic stop. In addition, there was no testimony that the interruption by LE to assist the K9 team was in pursuit of LE safety. The appellate court then analyzed whether there was additional reasonable suspicion to cover the temporary abandonment of the traffic citation to support the K9 team in the sniff. Here, LE testified about seeing the contact between the occupants and the pedestrian, but said that he saw “nothing transactional” between the parties. The only other factors to consider were the suspended license and the history of narcotics activity. The appellate court held these factors did not rise to the level of reasonable suspicion of drug crimes that would justify the interruption of the traffic investigation.

Note: There were some missed opportunities here. The initial stop was because of a suspended license which was confirmed by LE. The government did not address this issue in terms of whether the car was going to be towed and/or impounded and therefore searched pursuant to inventorying the contents, which would allow an argument of inevitable discovery. The government also did not give evidence about the safety of the all the LE on scene: there were two occupants and two LE on scene, one of whom was a handler and obviously needed to focus his attention on his K9. From the facts that were discussed here (admittedly limited), it doesn’t look like there was any other indication of drug activity that would bolster the additional reasonable suspicion needed, but these other arguments might have won the day. Making sure you address all avenues of admissibility in the trial court is critical.

United States v. Hudson (Minnesota 2021) 2021 U.S. Dist. LEXIS 190842
Curtilage; Alert as Probable Cause; Good Faith Exception

In a drug investigation, investigators got search warrants to enter the curtilage and have K9s sniff the outer door frame of Hudson’s residence and studio. There were alerts on both locations. Additional search warrants were then prepared to search the residence and the studio. Those search warrant applications described the investigation against Hudson and included the fact that K9s alerted to the two buildings. When these warrants were executed, LE found drugs, guns, scale, cash and cell phones.

Hudson complained that the warrants that allowed the sniffs lacked probable cause. The court found that the warrants were supported by information given by CRIs which indicated that they obtained drugs from Hudson and that the drugs were stored in his residence and studio. It was additionally supported by observations, including controlled buys, made by LE during the investigation.

Hudson also complained that the court could not rely on the alert at his studio because there were 10 studios there and the K9 could not reliably alert on a specific studio. However, this K9 alerted at Hudson’s studio and therefore, this alert along with everything else in the investigation that was listed in the warrant application meant LE had probable cause to search both buildings.

The court finally held that a good faith exception would have applied here, if the court had not found probable cause existed. The investigation continued up until the service of the warrants and a review of the search warrant indicated that the serving officers acted in good faith.

Note: This is a fascinating case in that LE used the probable cause they developed to get to an intermediate step in their investigation; that is, a “Sniff Warrant.” This is a great example of solid police work, making sure they used all tools available to them to nail down foundational facts to ultimately get into the residence and the music studio. Interestingly, in my opinion, if LE had probable cause to get “sniff warrants” for the front doors, that same probable cause was enough to get warrants for the interiors of the residence and music studio. However, by pursuing and executing “sniff warrants,” LE was able to use incremental steps to make a solid case against the target. Just as LE are humans, so are judges, and in this case, it may have been that this was a judge who was reluctant to allow drug search warrants on residences and therefore, the “sniff warrant” was more palatable to that judge. Whatever the reason, this was a great use of the resources available.

Spicer v. Burden, 2021 U.S. Dist. LEXIS 189006
Traffic Stop; Alert as Probable Cause

Spicer claimed he and his passenger were in a vehicle that was stopped by LE. He asked one of the officers what crime was he suspected of committing and when he did not get an answer, he refused to identify himself. He was then removed from the vehicle and cuffed and searched. The vehicle was then searched by LE and Spicer was ultimately arrested.

LE’s version was a bit different. Spicer ran through two stop signs. LE conducted a motor vehicle stop. She asked Spicer for his identification but Spicer questioned why she needed to see his identification, although he did not dispute having driven through a stop sign. LE told him that she needed the identification because he was the driver of a vehicle that she had just seen commit a motor vehicle violation and she needed to identify him. LE told Spicer that, if he refused to identify himself, she would need to take him to the police department in order to obtain his identity. Spicer refused to identify himself on the ground that it was not “Nazi Germany.” LE instructed Spicer to get out of the car, and he continued to refuse to produce any form of identification or state his name. LE then handcuffed Spicer, patted him down for officer safety, and placed him in the back of a police car. The passenger also refused to provide Spicer’s information and claimed she owned the car, although she did not have proof of insurance. While this was happening, a K9 team arrived and alerted on the car. There was nothing found in the car.

The court found that the search of the car was proper because a properly trained K9’s alert provided probable cause.

Note: This was a case brought under section 1983 alleging violations of Spicer’s constitutional rights. The court found absolutely no violations and I have omitted the other arguments made by Spicer because they are not relevant to the issues in this Update.

United States v. $178,000.00 (California 2021) 2021 U.S. Dist. LEXIS 189307
Currency Sniff

During an investigation of a Chinese money laundering scheme in which drug proceeds from the U.S. are transported to China by soliciting the purchase of Chinese currency using drug proceeds, US currency was seized from people involved in the scheme. In addition, one of the participants in the scheme agreed to sell bulk US currency for RMB (official Chinese currency). A trained K9 alerted on the currency. Also, the Government seized a firearm and a money counter along with the cash, which was still on when LE found it.

In determining whether there was sufficient evidence to proceed with the forfeiture proceedings, the court found that the alert was a factor in that determination, because such an alert “signifies that the funds had recently been in close proximity with narcotics.”

Note: Other issues that addressed the nature of this proceeding (default judgment in favor of the government) were procedural and therefore not relevant to this Update. The take away here is that an alert on currency is a factor in probable cause, not probable cause in and of itself.

Mata v. Van Buren Cty. (Michigan 2021) 2021 Mich. App. LEXIS 5679
Accidental/Unintentional Bite

The plaintiff in this case was a LE officer who was bitten by a K9 (from a neighboring jurisdiction) during the arrest of a fleeing suspect. The court made short work of this claim, holding that while a reasonable jury could find that handler acted with gross negligence, that was not the relevant issue. Instead, the court held that plaintiff’s injuries arose from a normal, inherent, and foreseeable risk of his profession as a police officer, and therefore it did not need to consider whether handler was grossly negligent. Officer Mata was injured by a K-9 during a multiple officer chase of a potentially armed suspect. The use of a K-9 is not unusual, and that one of these animals could injure a suspect or on-the-scene officer during an active situation is likewise an inherent risk of the police officer profession. Michigan agencies are granted “broad immunity to governmental agencies, extending immunity ‘to all governmental agencies for all tort liability whenever they are engaged in the exercise or discharge of a governmental function.”

Note: Plaintiff’s actual injuries will be presumably taken care of by Worker’s Compensation insurance or other entity hired by the his home agency to address injuries at work. Since this was determined to be a normal, inherent and foreseeable risk, the handler’s alleged negligence is irrelevant (but it may cause some major tensions within the department. Hopefully this incident was appropriately debriefed so all parties know what to avoid in the future). Please note this only applies to LE victims and not the general public.

United States v. Joshua (Alaska 2021) 2021 U.S. Dist. LEXIS 190136
Traffic Stop; Plain View Doctrine

During an investigation of Joshua’s co-defendant, LE noted Joshua’s Porsche parked at co-defendant’s residence for an extended period of time. When the Porsche left the residence, LE followed it to a marijuana dispensary. Joshua went inside, came out and drove back to the residence. Later that day, a Toyota with co-defendant as an occupant was pulled over for a traffic violation. A K9 alerted to the vehicle. Co-defendant admitted he was in possession of drugs in a backpack on the floorboard. Later, LE sees Joshua back his Porsche up to co-defendant’s residence and retrieved a couple of bags from the house and drive away. At that time, LE knew that Joshua had previous drug convictions an a conviction for negligent homicide. Joshua was contacted at a gas station where he stopped. Joshua was Terry frisked and non-contraband items were removed from his person. LE told him he was going to be taken back to the DEA office. A safety sweep was conducted on the car by opening and looking through the open doors. LE left at least one door open. A K9 team arrived. During the sniff, handler put her arm into the vehicle’s open door to direct the K9 to search. The K9 put her paws and the upper half of her body into the car. After another 33 seconds, the K9 alerted on the exterior of the Porsche. This was not a free air sniff (handler directed entry into vehicle) and was therefore unlawful.

The court held that while LE had reasonable suspicion that Joshua was removing evidence sufficient to justify a Terry stop, the officers exceeded the scope of the Terry stop when non-contraband items were removed from Joshua’s pockets and an officer told him he was being taken back to the DEA office. These actions transformed the Terry stop into an arrest that needed probable cause, which had not yet been developed. Further, the K9 team’s interior search of the Porsche was impermissible in the context of a Terry stop because the officers opened the passenger door, left it open, and handler directed the K9 unit to search inside the vehicle without probable cause. Therefore, since the entry into the Porsche by the K9 was facilitated by LE, LE performed an illegal search of the Porsche.

The government had not met its burden to demonstrate that any evidence found during the subsequent search of the Porsche’s interior was not “fruit of the poisonous tree” stemming from the illegal search and seizure of Joshua’s person or the illegal search of the Porsche. Therefore, any evidence found on Joshua’s person and inside the Porsche was subject to suppression.

Note: The handler apparently relied on other LE’s assertions that they had probable cause to believe that Joshua was in possession of marijuana based on their assumption Joshua had loaded marijuana into his Porsche in the bags observed by LE. This was erroneous, unfortunately, and handler apparently felt it was okay to direct the K9 into the vehicle given that assertion. There was a lot of evidence in this case, but Joshua’s connection was a bit tenuous. By contacting Joshua at a gas station rather than a traffic stop based on violations of law, LE did not have the opportunity to simultaneously run a K9 while a traffic investigation was going on. And when they did introduce the K9 into the investigation, they overstepped by directing the K9 into the vehicle. Best practice is to shut all doors and windows prior to the K9 sniffing it. If that happened in this case, and the K9 alerted on the exterior of the vehicle, the outcome would have been different.