NOVEMBER 2022 UPDATE FOR MEYER’S K9 LAW (Vol. 3, 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 2022. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.)

As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list as things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state. Next month I will summarize the outcome of the mid-term election cycle on marijuana.

Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has a review of the K9 relevant cases for the month, and often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.

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

MARIJUANA UPDATE FROM OCTOBER 2022 FOR NOVEMBER 2022 UPDATE

FEDERAL

President Joe Biden’s announced changes to federal marijuana policy represent a seismic shift in how the executive branch has treated the drug, but it will still be several months before the practical effects on the industry and the majority of Americans with convictions are known. He pardoned all individuals who had prior Federal convictions for marijuana possession; he called on state governers to do the same; and he asked the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law. Editor’s note: Marijuana’s place in the schedule of controlled substances actually only defines what the drug is. Marijuana is Schedule 1 because it has no proven medicinal value. That’s why it’s different from heroin, LSD, methamphetamine and fentanyl. They all have proven medical uses.

STATES

Oklahomans will vote whether to legalize recreational marijuana and tax and regulate its sale in a special election in March of 2023.

INDEX OF CASES REVIEWED FROM OCTOBER 2022 FOR OCTOBER 2022 UPDATE

United States v. Dadisman (West Virginia 2022) 2022 U.S. Dist. LEXIS 192710 – Traffic Stop; Terry Stop/Search/Frisk; Prolonged Detention

United States v. Clark (Virginia 2022) 2022 U.S. Dist. LEXIS 194538m – Traffic Stop; Prolonged Detention; Inevitable Discovery

People v. Richardson (Illinois 2022) 2022 IL App (2d) 210316 – Tracking/Trailing Evidence

Otkins v. Gilboy (Louisiana 2022) 2022 U.S. Dist. LEXIS 195475 – Prolonged Detention; Odor of Marijuana as Probable Cause; Qualified Immunity

Weisshaus v. Teichelman (Texas 2022) 2022 U.S. Dist. LEXIS 196172 – Traffic Stop; Prolonged Detention; Alert as Probable Cause

United States v. Shelton (Florida 11th Cir. 2022) 2022 U.S. App. LEXIS 30056 (Unpub.) – Good Faith Exception; Alert as Probable Cause

United States v. Gardner (Maryland 2022) 2022 U.S. Dist. LEXIS 196575 – Traffic Stop; Alert as Probable Cause; Reliability Foundation; Cueing; Prolonged Detention

United States v. Casares (Michigan 2022) 2022 U.S. Dist. LEXIS 196889 – Traffic Stop; Pretextual Stop; Alert as Probable Cause; Prolonged Detention; Collective Knowledge Doctrine

Kluger v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 1266 – Traffic Stop; Prolonged Detention; Reasonable Suspicion

United States v. $16,761 in United States Currency (North Carolina 2022) 2022 U.S. Dist. LEXIS 191326 – Odor of Marijuana as Probable Cause; Alert as Probable Cause

State v. Morales (Arizona 2022) 2022 Ariz. App. Unpub. LEXIS 849 – Traffic Stop; Prolonged Detention; Alert as Probable Cause

Cheek v. Clark (Indiana 2022) 2022 U.S. Dist. LEXIS 192232 – Traffic Stop; Excessive Force; Negligent/Accidental Bite

Ohio v. Snell (Ohio 2022) 2022-Ohio-3755 – Traffic Stop; Prolonged Detention

State v. Fish (Georgia 2022) 2022 Ga. App. LEXIS 479 – Traffic Stop; Prolonged Detention

Commonwealth v. Catlett (Pennsylvania 2022) 2022 Pa. Super. Unpub. LEXIS 2443 – Traffic Stop; Odor of Marijuana as Probable Cause; Inventory Search; Inevitable Discovery

United States v. Nelson (South Dakota 2022) 2022 U.S. Dist. LEXIS 187076m – Sniff as Probable Cause; Reliability Foundation; Prolonged Detention

United States v. Wills (Connecticut 2022) 2022 U.S. Dist. LEXIS 185285 – Deployment of K9 During Search Warrant; Curtilage

Brown v. Rafferty (California 2022) 2022 U.S. Dist. LEXIS 179172 – Excessive Force; Qualified Immunity

Hagens v. State (Maryland 2022) 2022 Md. App. LEXIS 701 (Unpub.) – Alert as Evidence

United States v. Broussard (Louisiana 2022) 2022 U.S. Dist. LEXIS 179448 – Traffic Stop; Reliability Foundation

United States v. Robinson (Arkansas 2022) 2022 U.S. Dist. LEXIS 179684 – Traffic Stop; Prolonged Detention; Reliability Foundation; Collective Knowledge Doctrine

McCollum v. Drewitz (Wisconsin 2022) 2022 U.S. Dist. LEXIS 180377 – Excessive Force; Qualified Immunity; Accidental/Unintentional Bite

State v. Spivey (Texas 2022) 2022 Tex. App. LEXIS 7420 – Traffic Stop; Prolonged Detention; Reasonable Suspicion

CASES REVIEWED FROM SEPTEMBER 2022 FOR OCTOBER 2022 UPDATE

United States v. Dadisman (West Virginia 2022) 2022 U.S. Dist. LEXIS 192710
Traffic Stop; Terry Stop/Search/Frisk; Prolonged Detention

After being told by a deputy that Dadisman was a big player in the methamphetamine market in the county, LE stopped Dadimas as he drove a motorcycle. The stop was for registration abnormalities. Dadisman got off his motorcycle and started approaching LE. LE patted him down for weapons. In response to a question, Dadisman admitted to having a gun in a saddle bag. LE couldn’t find it, so Dadisman removed it and handed it to LE. Other LE started to arrive. LE engaged Dadisman in more questioning with Dadisman denying any more weapons or drugs. About seven minutes later, K9 team arrived. After a free-air sniff of the motorcycle, K9 alerted. Dadisman then walked over and retrieved a baggie of meth from a saddle bag.

On appeal, Dadisman objected to two conclusions by the trial court: (1) “that the officers were justified in performing a limited protective search of Dadisman’s motorcycle to gain control of the weapon and secure the risk posed to officers”; and (2) “that the delay of approximately ten minutes, awaiting the arrival of the drug dog, was reasonable under the circumstances of the case.”

The court first addressed the initial protective search of the motorcycle, holding the search was lawful because Dadisman alerted police to the presence of a firearm. First, the court acknowledged that if there is a reasonable belief that a suspect is armed, a Terry frisk or search is warranted. Here, since Dadisman actually told LE that there was a gun in his saddle bag, a Terry search of the vehicle was also warranted. The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if LE possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant LE to believe that the suspect is dangerous and the suspect may gain immediate control of weapons. Even after Dadisman was moved, at the most, ten feet away from the motorcycle, he was within distance of reaching the gun, retrieving it, and using it against LE. LE were justified in performing a limited protective search of the motorcycle to secure the weapon and eliminate the risk that it would be used against them. No evidence of dangerousness in addition to the firearm was necessary to justify the protective sweep. Dadisman’s objection on this ground was overruled.

The court then turned to Dadisman’s claim that the delay while awaiting the K9’s arrival was unreasonable. Here, Dadisman was detained for under ten minutes while LE waited for the K-9 handler to arrive. The parties agree that Dadisman’s motorcycle had improper license plates and that Dadisman could not have driven it away. The Court found that under these circumstances, the period of delay was reasonable and was not violative of Dadisman’s Fourth Amendment rights.

Note: While this court commented on the time period, the standard remains that the stop was not prolonged without additional reasonable suspicion. Here, because the motorcycle could not be driven, the traffic stop itself was not over so the time spent waiting was not unreasonable.

United States v. Clark (Virginia 2022) 2022 U.S. Dist. LEXIS 194538
Traffic Stop; Prolonged Detention; Inevitable Discovery

Clark was under surveillance by LE for about an hour before the drug task force asked uniformed officers to conduct a traffic stop because Clark was driving without a license. Clark was taken out of the car and Terry frisked. Clark asked to call the owner of the car, but was not allowed to do so. LE started writing up the summons for the violation and spoke to his supervisor, telling him that Clark was stopped and out of the car. The supervisor asked if K9 was en route. LE then passed his phone off to another officer. Then he sat in his car and fiddled with/clicked his pen for several minutes (not my interpretation; these are the court’s interpretation of the facts). Another on-scene LE (who had been standing with Clark) came over to the pen clicker and was told that the supervisor told them to wait for the K9 team. There was a flurry of communication and finally the K9 team was reportedly five minutes out. LE started work on the summons again and shortly thereafter, the K9 team arrived, sniffed the vehicle and alerted. LE found guns in the car.

Clark complained that the traffic stop was unduly prolonged and therefore unconstitutional. The stop was about 16 minutes long and LE took 13 of that to write the summons. He denied LE’s claim that he consented to the search of the vehicle as well. The government argued that since Clark was unlicensed, he could not have removed the car and therefore a tow was authorized. Therefore, the car would have still been on site when the K9 team arrived (basically an inevitable discovery argument).

The court initially found that even though Clark could not drive away with the car, the traffic stop was a seizure of both the vehicle and Clark. And at the time of the K9 sniff, Clark was not free to leave—he remained seized. The seizure of Clark was inextricably connected with the seizure of his vehicle. Because LE’s superiors instructed them to delay the traffic stop until the K9 unit arrived, the seizure of Clark’s person was impermissibly prolonged. LE on scene admitted that as they waited for the K9 team, they contemplated if there was any other violation that Clark could be cited for and they also testified that the policy of their department did not state what was to be done with the car (the law authorized a tow, but the agency policy didn’t address this issue). Finally, there was no additional reasonable suspicion developed as LE testified that he had no reason to stop Clark other than his suspended license.

The court also found that there was no consent by Clark.

Note: There was communication from the task force to the uniformed officer that made the stop which might have resulted in additional reasonable suspicion to extend the traffic stop, but it appears that task force officers did not testify. Don’t know the strategy behind that, but that may have helped. In addition, if the agency policy was more clear on directing when to tow, and that policy was followed, the inevitable discovery argument would have more weight. Also, there was no argument that Clark was in illegal possession of the firearm. Perhaps he wasn’t. It’s unclear.

People v. Richardson (Illinois 2022) 2022 IL App (2d) 210316
Tracking/Trailing Evidence

In this robbery case where identification was the main issue, Richardson made many appellate arguments, including that defense counsel rendered ineffective assistance at trial by failing to object to improper dog-tracking testimony.

In this case, a K9 team arrived at the victim business shortly after the robbery. K9 was trained to track where a suspect had been by detecting crushed vegetation and skin “rafts” that fall off human skin. This K9 was trained to search for the freshest human odor. The K9 team traveled south until they found a gray plastic phone on the sidewalk. Handler left the phone and radioed for someone to stay by the phone until it could be processed.

The K9 team continued south and K9 sniffed some bushes and started to dig on a gray jacket located in the bush, indicating that it had recently been contaminated with human odor. As with the phone, handler radioed for someone to stay with the jacket until it could be processed. He did not locate any other items. Handler testified that, after his K9 begins tracking, “[w]e are locked on to one track.” Handler also testified that, at some point, he discontinued the track because of contamination.

During deliberations, the jury sent out four questions that addressed the K9 evidence, meaning they focused a lot of their attention on the K9 evidence.

Question number one, where did the path of the dog start?

Question number two, did the dog sniff Mr. Richardson?

Question number three, did the dog sniff the Citgo station?

Question number four, did the dog sniff Mr. Richardson first then the dog started tracking?

It also became clear that the jury was struggling to come to a unanimous decision. After being sent back with additional instructions, the jury came back at 10 p.m. with a guilty verdict.

The court granted a retrial on other grounds but said this about the defense attorney’s failure to object to the K9 evidence:

“Because we determine that the trial court committed second-prong plain error, we need not address defendant’s other contentions, but we wish to highlight an error that may occur on remand. Defense counsel failed to object when Brown testified about his use of a police canine to follow a scent trail during the investigation. As noted above, this dog-tracking testimony was per se improper according to the Illinois Supreme Court in Cruz, which is the only court that can reconsider this prohibition. On remand, the parties should be aware of express evidentiary prohibitions laid down by our supreme court.”

The court also stated that the trial court should have granted a mistrial when the jury could not reach a verdict, in part because the inadmissible K9 evidence created a focus by the jury on the DNA evidence on the jacket found by the K9. The disjunction between the length of deliberations and the complexity of the disputed issues made it more probable that coercive pressures would influence the jury.

Note: Illinois courts have determined that K9 trailing/tracking evidence is per se prejudicial and therefore inadmissible. While the federal courts and other jurisdictions have put into place factors to consider before determining whether the tracking/trailing evidence comes in, Illinois won’t entertain it at all. Here, the case is being sent back for a new trial. The jacket with the defendant’s DNA could still be admissible as long as there is no mention of the participation of the K9 in locating it. This diminishes the inculpatory value of the jacket dramatically, but that is the state of affairs in Illinois.

Otkins v. Gilboy (Louisiana 2022) 2022 U.S. Dist. LEXIS 195475
Prolonged Detention; Odor of Marijuana as Probable Cause; Qualified Immunity

Traffic stop of Otkins who was in a closed park. When LE (Gilboy) approached, Otkins got out of his vehicle. As LE approached, Otkins shut his door and LE smelled a moderate odor of marijuana. LE took Otkins license and returned to his patrol car. LE immediately called for a K9 team to respond. Meanwhile, he conducted a computer check on Otkins’ license. Otkins had an outstanding warrant for his arrest. At about 3 minutes into the stop, back up arrived and were advised that LE smelled marijuana. Consent was declined. About 10 minutes into the stop, the K9 team arrived, sniffed and alerted to the vehicle. Handler also saw a marijuana cigar in plain sight. Otkins was arrested. A search of the car revealed marijuana and paraphernalia. Otkins then filed a 1982 lawsuit.

The court then addressed the qualified immunity of LE. Otkins conceded that the initial traffic stop was lawful, leaving the only issue as whether LE violated Otkins right to be free of unreasonable search and seizure.

The appellate court first held that the smell of marijuana provides probable cause to search a vehicle. LE have demonstrated that there is no genuine dispute that Gilboy smelled the odor of marijuana as he approached Otkins’ car. Accordingly, it follows that upon Gilboy’s detection of marijuana, Gilboy possessed probable cause to search Otkins’ car. Further, because Otkins’ Fourth Amendment claim for unlawfully prolonging a traffic stop requires an officer to, without reasonable suspicion, extend the duration of a traffic stop beyond its original scope, it necessarily follows that because LE possessed reasonable suspicion, there was no Fourth Amendment violation. Moreover, the time by which the stop was prolonged for the K9 to arrive—at most several minutes—was reasonable under the circumstances.

The court did not reach any of the other issues in this case because LE was entitled to qualified immunity because LE did not violate any of Otkins’ constitutional rights.

Note: Even though marijuana was legalized for recreational use the same year as this traffic stop, the Illinois courts have apparently relied on pre-legalization cases for search and seizure issues. This may change in the future. Illinois handlers should check back regularly.

Weisshaus v. Teichelman (Texas 2022) 2022 U.S. Dist. LEXIS 196172
Traffic Stop; Prolonged Detention; Alert as Probable Cause

Weisshaus was pulled over on an interstate freeway (a drug trafficking corridor) for an obstructed plate and speeding. Weisshaus was taken out of the vehicle and told to sit in front of the cruiser while LE processed a warning. Weisshaus had a driver’s license out of New Jersey and could only give incomplete details about his travels. In addition, his passenger was female and significantly younger than Weisshaus. When LE talked to the female passenger, she could not provide details and appeared nervous, timid, and scared. At that point, LE believed he had additional reasonable suspicion regarding other crimes (drug and/or human trafficking). LE then retrieved his K9 and K9 alerted on the vehicle. LE did not find any narcotics however and ultimately let both occupants leave in the vehicle with a warning.

Weisshaus then filed a federal case claiming his constitutional rights were violated; specifically, his right to be free from unreasonable governmental searches and seizures.

The appellate court addressed whether the K9 sniff prolonged the traffic stop in violation of the constitution. In the case at bar, Weisshaus did not contend the sniff itself constituted an unreasonable search. But in any case, the court held, there were no facts suggesting K9’s sniff search prolonged the stop outside of the permissible range. Therefore, K9’s sniff of Weisshaus’ vehicle was not a “search” for the purposes of the Fourth Amendment. Weisshaus instead challenged handler’s assertion that K9 alerted him to the presence of narcotics. Because there was no alert — Weisshaus argues — LE lacked probable cause to search his vehicle and therefore violated his constitutional rights.

The court then addressed the issue of whether LE had probable cause to search the vehicle. The court first recognized the long line of cases that indicate an alert by a properly trained K9 is probable cause sufficient to search a vehicle under the automobile exception. In addition, the court recognized that a full alert (final indication) is not necessary as long as the handler can testify that the unique actions by the K9 alerted handler that K9 had found the scent of narcotics.

Here, LE asserts he routinely patrols 1-40 with K9, and that K9 is registered and trained to alert to narcotics with a passive response. There were no other alleged instances of any false-positive responses by K9. And there was no evidence that handler had ever “mistakenly interpreted” K9’s actions to be an alert. Thus, “the record is absolutely devoid of anything that could possibly undermine the credibility of LE or the reliability of his canine.” Therefore, LE had probable cause to search Weisshaus’ vehicle.

Note: In a summary judgment motion, the issue is whether there are material disputed issues of fact (in other words, there is evidence that could support both positions). Here, the court found none. Interestingly, Weisshaus only challenged the alert and did not challenge any prolonged detention (the court found that there was no prolonged detention as well, for good measure). Neither avenue was successful. Case dismissed in favor of LE and another example of multiple avenues of argument.

United States v. Shelton (Florida 11th Cir. 2022) 2022 U.S. App. LEXIS 30056 (Unpub.)
Good Faith Exception; Alert as Probable Cause

LE sought and received a search warrant for Shelton’s residence. During the execution of the warrant, handler brought K9 who alerted on the porch, indicating the presence of controlled substances. Apparently, another search warrant was sought for Shelton’s residence (the facts here are a little confusing) with the same facts as the first warrant but added the positive alert. That warrant was executed and contraband was found.

Shelton then filed a motion to suppress. The first search warrant relied on Shelton’s criminal history, LE watching Shelton’s house and seeing activity that was consistent with narcotics distribution, and confidential informant information. The court held that these factors, along with the fact that several officers were on scene and believed that probable cause existed, including those who signed the warrant as affiants and the approval of a deputy district attorney, would make a LE officer believe in good faith that the warrant was valid. The court held that the warrant was not so devoid of any support for probable cause that the good-faith exception would not apply. Therefore, the good faith exception applied here and the motion to suppress was denied. In addition, the second warrant was not the fruit of a poisonous tree and therefore LE could rely on the alert of the K9.

Note: The good faith exception is an avenue of admissibility when the search warrant does not actually support probable cause. This court was very liberal in applying this concept; however, other jurisdictions apply this exception only in exceptional cases. If your argument in court is good faith exception, you are already behind the 8 ball. One of the things that saved this warrant was that there were 2 affiants, a deputy DA and a judge who signed the warrant. However, other jurisdiction won’t care about that. Finally, some of the deficiencies were the lack of training and experience descriptions which support conclusory statements. These are important; be sure to attach and reference hero sheets for all personnel who are making those statements in the warrant.

United States v. Gardner (Maryland 2022) 2022 U.S. Dist. LEXIS 196575
Traffic Stop; Alert as Probable Cause; Reliability Foundation; Cueing; Prolonged Detention

LE agent observed Gardner and a woman engaging in suspected narcotics transactions. While observing their actions, agent saw Gardner leave the block where the transactions were occurring, walk in the general direction of S. Payson Street, and return with a black bag, which the agent believed to contain a new supply of narcotics. Agent subsequently directed the arrest team to arrest Gardner and the woman.

During Gardner’s arrest, LE recovered money, four cell phones, and a Lexus key fob from Gardner’s person. One detective took the key fob and walked in the direction of S. Payson Street, clicking the buttons to see if Gardner’s vehicle could be identified. A Lexus vehicle responded in the 600 block of S. Payson Street. LE called for a K9 unit, which arrived on the scene. Handler asked another officer on the scene to tap the Lexus with K9’s “reward toy” to focus him on the vehicle. Another LE did so and after the toy had been hidden from sight, K9 conducted a scan of the vehicle. K9 circled the vehicle three times, and during the second circuit around the car he stopped to sniff the driver’s side door intently, changed his breathing, snapped his head, and wagged his tail. K9’s handler, who is trained to note these types of changes in K9’s behavior as a positive alert, directed the officers to the spot K9 had identified. The officers then conducted a warrantless search of the vehicle, discovering four gelcaps of narcotics in the driver’s side door pocket where K9 alerted, along with a loaded firearm.

Gardner challenged the evidence that came from the alert by K9: 1) he challenged K9’s track record, 2) the use of K9’s toy in the sweep of the vehicle; and 3) the indicia used to classify K9’s response as an “alert.”

It was clear from the record that K9 was certified at the time of this incident. While Gardner made a series of unsupported assertions in his briefing about K9’s performance at training, no such evidence materialized at the hearing. Instead, the only training-related evidence came from K9’s handler, who explained that other than some expected missteps early in the training process, K9 has been certified, completed training twice a month, never failed a training, and passed his annual certification exam without missing or making a false detection. Thus, there is no evidence of unreliable performance during training, or any other facts, to undermine the presumption of reliability attendant to K9’s valid certification.

Gardner’s next argument is that the search of the vehicle was compromised by the fact that another officer, at handler’s request, rubbed a dog toy on the driver’s side of Gardner’s vehicle prior to the search. The Bodycam Video confirms that handler did recruit another officer to use the dog toy to entice K9 to perform the scan, and that the officer rubbed the toy along the side of the car. When handler hands the toy to the officer, she told him, “Take it, let K9 see it, he’ll see it. Then smack it up against car.” Handler then explained that this action “keys him up on the car,” and that “he knows that [the toy] is his reward.” After handler removes K9 from the K9 vehicle, the officer rubbed the toy along the entire driver’s side of the vehicle, including the area near the driver’s side window where K9 eventually “alerted,” then pretended to throw the toy away. Gardner claimed that this rubbing of the toy on the car “chang[ed] the composition of the car,” and “facilitated the alert” on the driver’s side door (or in other words, cueing).

The court held that circumstances of this case do not suggest that the officers intended to use the toy improperly to draw an alert from K9, or that K9’s alert was caused by the toy. No officers other than the handler and the toy rubber had interacted meaningfully with K9 prior to this incident. Handler did not instruct the other officer to rub the toy along the car, but just to “smack it” against the car at some unspecified spot. The officer appears to have made his own decision to rub the toy along almost the entire driver’s side of the vehicle. Second, if the “scent” of the toy somehow altered the composition of the car, the alteration would have affected the entire driver’s side, not just the spot K9 identified. K9 did not alert to the other areas of the car where the toy had been rubbed by the officer. He only alerted to the door containing narcotics. Therefore, the participation of the toy was not consequential.

Finally, Gardner claims that K9’s conduct “was not distinctive enough to signify an alert” on the driver’s side door. During the roughly two-minute search, K9 circles the car three times but does not bark, sit, or lie down. However, on two occasions, K9 does appear to briefly stop and intently sniff an area on the driver’s side door near the rearview mirror. During his first trip around the car, K9 merely stops and sniffs this area for roughly a second. Then, during his second revolution around the car, K9 stops again at the driver’s side door, stops breathing heavily, sniffs, and jumps up on the door. After returning K9 to the patrol car, handler immediately walked back to the Lexus, pointed at the driver’s side door, and said: “Whatever it is, it’s over here. He didn’t sit, but it’s over here. . . . You could see where he was keeping the nose.”

Handler testified that K9 made an alert in one of two ways: (1) by sitting or (2) by demonstrating other changes in behavior, which for K9 include a change in breathing patterns, head snap, tail wagging, and sometimes scratching. She is trained to recognize those changes. Even an untrained observer, however, can see from the video that K9’s behavior changed at the area of the car where handler indicated K9 had alerted. Thus, the evidence sufficiently substantiated K9’s alert, which gave LE probable cause for the warrantless search of the vehicle.

In addition, the court noted that, alternatively, the smell of marijuana emanating from the vehicle may have provided probable cause for a warrantless search regardless of K9’s actions. However, because the Government did not introduce LE testimony at the hearing regarding the smell, the only evidence is from officer statements recorded on the body camera footage. Because the parties have not addressed whether those statements properly fall under any hearsay exceptions, this Court does not rely on the marijuana smell in upholding the validity of the search.

The police agency in this case had prior knowledge of Gardner as an armed narcotics trafficker due to previous traffic stop where a K9 alerted on Gardner’s car and a search revealed a loaded gun and narcotics, some packaged for sale.

In the meantime, another officer spoke to the leasing office at Mr. Gardner’s apartment complex. The complex representative provided Mr. Gardner’s unit number and informed the officer that they had received a complaint about drug activity in the unit. Based on that additional information and the contraband seized from the traffic stop, HCPD sought and obtained a search warrant for the apartment, leading to the recovery of another firearm, more cocaine, and a significant amount of cash.

Gardner also challenged the stop on two other bases: (1) that the decision to stop his car on a pretextual basis, for the purpose of hoping to search it, was unlawful; and (2) that the traffic stop was impermissibly prolonged by the K-9 scan. The court found that neither argument was persuasive.

The court quickly dismissed any challenge on the stop itself because the pretext of the stop is irrelevant. The court went on to whether the stop was unduly prolonged.

The government provided a timeline of the stop. Gardner was pulled over at 1:15. LE contacts Gardner and found out that Gardner did not have a license. While Gardner was writing down his identity information, LE was conducting administrative traffic stop duties and called for a K9 at this point as well. 10 minutes into the stop, the K9 team arrived. The citation was not yet completed and Gardner was taken out of the car (he was uncooperative). 17 minutes into the stop, the K9 alerts on the vehicle.

Based on this account, the government asserted that the patrol officer’s actions did not impermissibly prolong the stop. The officer’s uncontroverted testimony at the hearing was that a standard traffic stop lasts between 15-18 minutes, so the duration of this stop, from initiation through the K-9 alert, fell within that range. Additionally, there were complicating factors with this stop that extended its duration to some extent—having to run Mr. Gardner through law enforcement databases without the benefit of his driver’s license, the fact that Gardner “became combative” when asked to put his hands behinds his back to be handcuffed for the K9 scan, and the presence of bystanders videoing the incident. Even with those complicating factors not attributable to the patrol officer’s actions, the duration of this traffic stop remained within the norm. Thus, there was no unreasonable delay associated with the K9 involvement in this constitutionally permissible traffic stop.

Note: The court’s fact recitation included the area where K9 alerted and that narcotics were found in that area of the car. It doesn’t really matter here in the outcome, but be sure to get in that 1) K9 is alerting to scent, not product and 2) scent travels so the entire car is fair game once K9 alerts.

Another issue that came up was handler asking another officer to get K9’s attention to sniff the car. This is not really a good practice. Gardner complained basically that the toy could have had narcotics scent on it and that would be unconstitutional. The better practice is to get your K9 to the point where you give him/her a verbal command to search (whatever that command is for your K9) and then just accompany the K9 as s/he goes around the vehicle. No sense giving the defense some issue that is irrelevant but could cause problems in court. Cueing is becoming more and more of an issue; the best practice is to not do anything that could be interpreted as cueing.

As you know, I am a big believer in observing and arguing multiple theories of admissibility. This is a good practice for many reasons; it gives the court some room to rule in our favor; it eliminates any argument on appeal that there was evidence we did not present in court (like above with the smell of marijuana); and if the court finds all avenues admissible, then the defendant has a harder time on appeal. This was a government attorney lapse; it may have been purposeful because the legality of marijuana is constantly being addressed (although it is still illegal at the federal level for all purposes).

Good case overall for K9 handlers and supervisors. It shows how in depth the examination of the handler and handler’s records can be.

United States v. Casares (Michigan 2022) 2022 U.S. Dist. LEXIS 196889
Traffic Stop; Pretextual Stop; Alert as Probable Cause; Prolonged Detention; Collective Knowledge Doctrine

Casares was on release for drug trafficking offenses and on parole for attempted murder. In addition, federal LE was aware via an informant that Casares was selling large amounts of narcotics. Federal LE obtained warrants to surveil Casares’ cell phone and vehicle. A controlled buy yielded narcotics. Another buy was set up and a state uniformed police officer was instructed to stop Casares for traffic/equipment violations.

The stop was made for obscured license plate. Casares lied about his travels and said that he was not responsible for anything in the car. Casares declined consent, so he was detained in handcuffs until a K9 team could arrive and sniff the vehicle. When the team arrived, K9 alerted. Contraband was found. His parole conditions allowed LE to search without suspicion.

Casares took issue with the fact that the state police officers who stopped him were working in conjunction with federal law enforcement and were privy to certain information prior to the stop. He also argued that he did not commit a traffic offense justifying the stop; even if the original stop was justified, he was detained longer than permitted under the Fourth Amendment; and the K9 sniff search was unreliable. The government responded by arguing that the traffic stop based on Casares’ plate violation and the subsequent search were reasonable and there was independent probable cause to stop and search the vehicle based on the collective knowledge that Casares was headed to a narcotics sale.

The court first held that even if the stop was pretextual, it didn’t matter because LE’s underlying motivation for such a traffic stop is irrelevant. In addition, the court found that the violation was a valid reason to pull Casares over. Then Casares lied about his travel that day and was nervous. The court found that these reasons were sufficient to provide additional reasonable suspicion to wait for the K9 team.

The court also held that the K9 was properly trained and deployed as required. The handler and other officer on scene testified at length regarding the training received by the K9, who sniffed the exterior of Casares’ vehicle. This consisted in part of his completion, along with his handler, of the “2018 Replacement Canine School” conducted by the Michigan State Police Canine Unit, which involved “400 hours of Tracking, Building Search, Evidence Search, Area Search, Controlled Aggression, Obedience and Narcotics Detection” training. K9 also went through additional trainings on a daily or monthly basis and re-certifications every year. Thus, the Court found there was sufficient reason to trust K9’s alert.

Casares also takes issue with the fact that K9 did not sit to alert handler to the presence of narcotics in Casares’ vehicle as he had done previously during training. But handler testified as to the head snaps and other behavioral changes exhibited by K9 that constituted a positive indicator for narcotics. Another officer’s testimony confirmed this as well. Thus, K9’s positive alert provided probable cause to search the vehicle. This was in addition to the specific terms of Casares’ state parole, which allowed suspicion-less searches of his person or property. Handler was also aware of Casares’ parole status and even explained this to Casares when asking for his consent to search the vehicle.

And, finally, the testimony provided by federal and state officers led to a finding that Casares’ vehicle was also stopped and searched based on LE’s collective knowledge that Casares was headed to a narcotics sale. Thus, the collective knowledge doctrine applied, which then supplied proper reasonable suspicion to deploy a K9 team.

Note: I suppose the court could have just said that Casares had already waived his 4th amendment rights in return for being paroled, but there really wasn’t any mention of that (other than the fact that Casares was on parole and therefore subject to suspicion-less searches). Since Casares raised other issues, the court addressed them. Once again, multiple areas of admissibility present here.

Kluger v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 1266
Traffic Stop; Prolonged Detention; Reasonable Suspicion

LE observed a vehicle pass him, and the female driver, Kluger, touching her face “frantically.” As LE began following Kluger, he observed her fail to properly signal while changing lanes, and he signaled for Kluger to pull her vehicle too the side of the road. Kluger exhibited “more nervous behaviors”, such as “chattering speech, frantic movement with head and arms,” and heavy breathing. LE also noted drug paraphernalia in her lap. Based on his collective observations, LE believed that “most likely” there were “narcotics” inside the vehicle, and he ordered Kluger to exit the car. Kluger gave LE a non-verbal consent to search her pockets, but nothing incriminating was found. Next, Kluger declined consent to search her vehicle. After she declined, LE obtained Kluger’s driver’s license and walked back to his patrol vehicle to verify her information. At that point, LE requested a K-9 officer to conduct a drug sniff. As soon as LE confirmed that Kluger was “not wanted or a fugitive” in the police database, he exited his patrol vehicle and began writing Kluger a warning ticket. During this time, LE discovered that Kluger had changed residences and that Kluger had not updated her address on her driver’s license, which was another traffic violation. Following that disclosure, LE returned to his vehicle, logged into his computer, and received notification from the radio that a K-9 officer was in route. After advising dispatch of his exact location through the radio, LE exited his vehicle.

While still issuing warning tickets, the K9 team arrived. An open air sniff resulted in an alert. Contraband was found. The entire stop lasted seventeen minutes.

Kluger filed a motion to suppress. The court first addressed the ability of LE to have all passengers exit a vehicle, finding that that right has been long established in favor of LE and therefore the order to exit did not unduly prolong the traffic stop. The same was true with the second trip back to the cruiser after LE learned additional facts about Kluger’s status as a driver.

The court also indicated that the questions by LE of Kluger about drugs and drug use were allowable and did not unduly prolong the traffic stop. Nor did the search of her person prolong the stop as the court found that Kluger had given consent to be searched. As for the second trip back to the cruiser, this was because of Kluger’s inaction to address her move and update her address with authorities (since this was another infraction). In addition, LE had reason to believe there would be drugs in the car based on his observations of Kluger’s actions and the paraphernalia in her lap. Therefore, there was no impermissible prolongation.

Note: The court then concluded that there was no prolongation of the stop and Kluger’s rights were not violated. The court did not address the additional admissibility avenue of the K9 arriving before the warning citations were finished nor did it address that LE had additional time based on his observations of drug use/possession. But it was implied, I think.

United States v. $16,761 in United States Currency (North Carolina 2022) 2022 U.S. Dist. LEXIS 191326
Odor of Marijuana as Probable Cause; Alert as Probable Cause

LE encountered Sanders in the parking lot of a motel and smelled marijuana on his person and from a Chevy Silverado. Sanders was searched but no illegal items were found (no mention of whether the Silverado was searched, but safe to assume it was not). Later, when notified Sanders was checking out, LE came back. The clerk at the motel notified that Sanders had just run outside and fled in a black passenger vehicle leaving all his luggage but one bag. K9 was deployed on the Silverado and alerted. In addition, K9 alerted to the left-behind luggage. The subject money and marijuana was found in the Silverado and marijuana was found in the luggage.

Note: The court found that the K9 alert was part of the probable cause in which the government could rely on to forfeit the money. There was also a standing issue because Sanders ran off and left the luggage and the Silverado behind. The court held Sanders had not demonstrated standing so he could not claim an innocent ownership of the money because he abandoned it.

State v. Morales (Arizona 2022) 2022 Ariz. App. Unpub. LEXIS 849
Traffic Stop; Prolonged Detention; Alert as Probable Cause

Traffic stop for a missing plate/distorted plate. After the stop, LE could not find the plate number in the database. When asked, the driver (Morales) produced his driver license, and the passenger provided a driver license, an unsigned New Mexico title for the vehicle, and a temporary dealer tag that should have been on the vehicle. The driver licenses indicated both Morales and the passenger lived in Silver City, New Mexico. Dispatch was able find that the plate had expired but was issued to a different vehicle. LE brought Morales back to the cruiser and asked about travel plans. Morales was nervous. LE then questioned the passenger who had a different story about how they spent the previous weekend. Consent to search was requested and denied. LE then called for a K9 team.

About 20 minutes later, the K9 team arrived, sniffed the vehicle and alerted. Inside the vehicle was a lot of meth and cash.

Morales only raised the prolonged detention issue of the 20 minute wait for the K9 team because the initial reason for the traffic stop had been resolved and the expired plate, conflicting stories, and the occupants’ general nervousness did not amount to additional reasonable suspicion to prolong the stop by waiting for the K9 team.

The court held that although issuance of a warning or repair order for the license plate violations was the reason for the initial stop here, it quickly evolved into an investigation of a suspected stolen vehicle. Indeed, LE testified at the suppression hearing that when he called the K9 unit, Morales and the passenger were not free to leave yet. LE’s suspicion of criminal activity developed immediately after initiating the stop when he ran the Texas plate and dispatch was unable to find it in the system. He testified that, in his experience, this usually indicated either “an error in the system” or that “the plate is not valid for highway use.” After the passenger provided an unsigned New Mexico title and a temporary Texas tag, LE returned to his vehicle and confirmed that the plate information he had provided to dispatch was correct. He then decided to run the VIN to determine whether there was “a glitch in the system,” the vehicle had a “fictitious plate,” or “the vehicle [was] stolen.”

Moreover, the court stated, LE testified that Morales and the passenger appeared unusually nervous, despondent, and “tried to avoid eye contact.” Despite casually conversing with Morales and explaining that he would receive “just” a warning for the license plate violations, Morales’s nervousness never abated. Morales and the passenger also gave conflicting reasons for being in Arizona, which led the trooper to believe they were “hiding something.” Based on the totality of circumstances, the trooper had reasonable suspicion of criminal activity and the subsequent dog sniff of the vehicle was appropriate.

Here, LE was justified in prolonging the stop to conduct a K9 sniff because (1) his decision was supported by reasonable suspicion that developed during the single encounter, and (2) he had not yet confirmed “proof of entitlement to operate the vehicle.”

Note: Here, I think the fact that the plate and the way it was displayed was super fishy and could have been part of the additional reasonable suspicion that more criminal activity was going on other than the plate violation. However, the court found that the stop was not prolonged in two ways; 1) the plate/possible stolen car investigation had not been completed before the sniff and 2) LE had additional reasonable suspicion that there were additional crimes being committed. Either way, another win for LE.

Cheek v. Clark (Indiana 2022) 2022 U.S. Dist. LEXIS 192232
Traffic Stop; Excessive Force; Negligent/Accidental Bite

Michael and Lisa Cheek were passenger and driver respectively in a vehicle pulled over by LE. Prior to contacting the Cheeks, LE called for a K9 team. The Cheeks were moving around in the vehicle and did not obey a command to stop moving around and show their hands. They were then removed from the vehicle and the K9 sniffed the vehicle. K9 alerted to the vehicle and handler told him, “Good boy.” As handler was leading K9 back to his vehicle, handler walked K9 by the Cheeks and K9, without instruction or warning, lunged and nudged Michael Cheek on the arm with his nose. Michael then yelled that he had been bit. None of the LE officers saw a bite.

The court found that there was no verbal or physical action by handler to make K9 bite Michael and it appeared that the K9 was acting playfully and curious. It was the handler’s opinion that because K9 was used to getting to play with his toy after he was praised, since K9 was not given his toy, he wanted to play with Michael. Michael had only a small red mark. When checked out at the hospital, there was a small puncture wound.

The court found, after weighing the evidence in Cheeks favor (motion for summary judgement by handler), there was simply no evidence that handler ordered K9 to engage with Michael in any way, let alone to jump up on him or bite him. All of the evidence – which is undisputed by Michael – shows that K9 jumped up on Michael without any order to do so, that handler was surprised that K9 did so, and that handler immediately – within one second – pulled K9 off of Michael and secured him in his police car. K9’s unintentional contact with Michael, even though it resulted in a bite, did not form the basis for a Fourth Amendment claim under the circumstances presented in this case because there was no evidence of intentional conduct by the handler. Even if one could categorize handler’s actions as negligent, negligence does not support an excessive force claim. The Court also found it significant that had handler ordered K9 to apprehend Michael, K9 would have engaged in a bite and hold, which would have resulted in a much more significant injury than the one that Michael suffered – which appeared to be a small puncture wound.

In short, there is no evidence from which a reasonable factfinder could conclude that violated Michael’s Fourth Amendment rights by using excessive force when K9 bit Michael.

Note: This is why establishing with your investigation at the time what the circumstances of the interaction of your K9 with civilians is very important. Here, there was no intent by the handler to have the K9 interact with civilians, but dogs will be dogs, and K9 was obviously happy to have pleased his handler and wanted to play. The body cam footage was also extremely helpful, so make sure you don’t turn off your camera (if you are able to) until the entire contact is over. The other take away is that when a bite is accidental, this does not implicate the Fourth Amendment. However, if an accidental bite continues longer than an immediate removal of the dog, then you will be getting into Fourth Amendment territory.

Ohio v. Snell (Ohio 2022) 2022-Ohio-3755
Traffic Stop; Prolonged Detention

LE followed Snell from a house LE had under surveillance for drug activity. LE pulled Snell over for failing to signal a turn. Snell did not have his driver’s license so gave his SSN. Consent to search was denied. A K9 team then arrived at the stop. While LE was running Snell’s information, he found that Snell was suspended. As he found out this information, the K9 sniffed and alerted on the vehicle.

Snell complained that the stop was unduly prolonged. The court found that the record shows LE was processing Snell’s information while handler briefly inquired of the contents of the vehicle and walked the K9 around the outside of the vehicle. The K9 indicated the presence of narcotics. This provided handler with reasonable suspicion based upon specific, articulable facts to extend the traffic stop. Handler’s mere questioning of the contents of the vehicle while LE processed Snell’s information is supported by competent, credible information and did not impermissibly extend the stop.

Note: Nothing really new here. Basically, the court said that the stop was not extended because LE was still processing the traffic violation when the K9 sniffed and alerted. At that point, handler had reasonable suspicion (sic: court’s wording; an alert legally provides probable cause, a higher burden of proof) to continue the investigation into other crimes. The court didn’t say this, but handler also had probable cause to search based on the alert.

State v. Fish (Georgia 2022) 2022 Ga. App. LEXIS 479
Traffic Stop; Prolonged Detention

Here, LE did not start processing the traffic citation until the K9 team arrived and sniffed then alerted on the vehicle (he was investigating possible drug trafficking by the occupants in Fish’s vehicle at a nearby location). The government conceded that this was an unlawfully prolonged detention because even though the drug investigation concerned Fish, it was not related to the traffic investigation. The government also conceded that the drug investigation at that time did not rise to the level of additional reasonable suspicion.

Note: I can see this situation happening in rural areas where there is little chance of back up assistance. Here, LE made the decision to leave the traffic investigation to investigate the the drug issue while the K9 sniff was going on. That makes investigative and personnel sense, but created a situation where the traffic investigation was unduly prolonged.

Commonwealth v. Catlett (Pennsylvania 2022) 2022 Pa. Super. Unpub. LEXIS 2443
Traffic Stop; Odor of Marijuana as Probable Cause; Inventory Search; Inevitable Discovery

LE saw Catlett in an Audi blow a red light, and also smelled the odor of marijuana as the car was initially stopped at the red. LE ended up stopping Catlett in a neighboring county because of safety concerns. As LE approached, he smelled the odor of raw marijuana. When asked, Catlett said there was marijuana in the driver’s door. LE told him to open the door and LE found a small 2g baggie of marijuana. LE had him exit and then asked if he had weapons or contraband prior to Terry frisking him. Catlett said he had oxys in his pants pocket. LE then removed what felt like a pill bottle which had oxys in it and only a partial prescription label. He also had a bunch of cash. LE called for back up and a tow. LE searched the Audi and found more cash and a gun.

The Audi was towed and a K9 sniff took place at some later time. The K9 alerted. A search warrant was sought for the Audi. No additional items were found (at least none indicated by the court).

The trial court felt that LE was not credible because it believed it was nonsensical to believe that LE could smell a small amount marijuana in a sealed baggie.

LE testified in the trial court that he smelled raw marijuana emanating from the car – testimony which was not credited – and specifically asked Catlett about the marijuana odor upon stopping him. According to LE, Catlett confided that he had marijuana in the driver door of the car – again, testimony that the trial court did not credit. It was at that point that LE testified he directed Catlett to open the car door, obviously so that he could look for the marijuana, and saw the marijuana in the door in plain view. It was only after this search for, and seizure of, the marijuana that LE directed Catlett to step out of the car. Given LE’s testimony about the sequence of events, the appellate court saw no merit in the government’s argument that the marijuana was properly seized because it was observed in plain view after LE asked Catlett to step out of the car as a matter of course during the traffic stop.

The appellate court also rejected the government’s claim that LE’s search of the car after he placed Catlett in handcuffs was a valid inventory search. “We see no error in the [trial] court’s determination that it was not, especially in light of the court’s factual finding that LE’s clear motive for the warrantless search of the car was to uncover additional evidence.”

Lastly, the court rejected the government’s final argument under its first issue that the contraband found in Catlett’s vehicle need not be suppressed because the K9 search and eventual issuance of a search warrant meant the police would have inevitably discovered the drugs and firearm in the car. This argument was not valid because the argument was premised on, and not independent of, Catlett’s illegal arrest and the illegal search of the vehicle.

Note: This case really hinged on the credibility of LE. Since he was not a handler, there apparently was no testimony that scent can linger and can be detected even by humans after the product is removed. Interesting situation. What might have saved the case is when Catlett said he had marijuana in the door, LE could have asked Catlett to step out under the line of cases that allows removal of occupants for safety and then he would have seen the marijuana in plain sight. Instead, he ordered Catlett to open the door, which made it an illegal search.

United States v. Nelson (South Dakota 2022) 2022 U.S. Dist. LEXIS 187076
Sniff as Probable Cause; Reliability Foundation; Prolonged Detention

LE saw a known drug dealer (Davis) who had a federal warrant out for his arrest get into a vehicle. LE called for uniforms to stop the vehicle to serve the warrant. Fugitive passenger Davis was arrested. The driver was Nelson. He left his vehicle to talk to LE. Nelson voluntarily disclosed that he had a traffic warrant for his arrest which was confirmed by LE. There was also a BOLO for Nelson for possession of a stolen gun. Consent to search the car was denied. LE did not see anything through the windows of the car. Sometime during the pendency of this contact, Nelson was allowed to call his girlfriend to take the car. Detectives came to the scene to question Nelson. A K9 team also arrived and sniffed the car and alerted. The girlfriend had arrived but LE could not confirm she had a valid driver’s license. The car was searched and a stolen firearm was found.

Here, the appellate court stated, LE observed Davis, a known heroin dealer and an individual for whom officers had a federal arrest warrant for distributing drugs, riding as a passenger in Nelson’s car. Therefore, LE had probable cause to believe Nelson’s car contained drugs that Davis distributed after K9 indicated. Thus, the court found K9’s indication, in these circumstances, provided LE with probable cause to search Nelson’s vehicle for drugs.

The court then addressed this issue of prolonged detention. There was a lot of discussion comparing the testimony of LE and the records of the stop, but the court dismissed this line of inquiry because LE had a separate reason to prolong the stop other than the time it took to issue the citation. Nelson’s suspended license “justifiably extended the lawful scope of the traffic stop because of [Nelson’s] legal inability to remove the vehicle from the scene and the consequential need for a licensed driver or a tow truck to do so.”

Here, when handler arrived, other officers were talking with Nelson’s girlfriend to see if she had a valid license so that she could drive Nelson’s car away. Upon arriving on scene and observing this interaction, handler “immediately” deployed K9. Thus, even if LE issued the citation after their investigation was concluded, law enforcement’s discussions with Nelson’s girlfriend to determine if she could lawfully move Nelson’s car—which occurred while handler deployed K9—justified the prolongment of the stop.

The court found that this period is a reasonable amount of time that a reasonable officer could have to wait for either a tow truck or a second family member or friend of Nelson who was properly licensed to drive. LE’s discussions with Nelson’s girlfriend, the time it took to determine whether she had a valid license, and or the time it would take to have a towing company or family member or friend take Nelson’s car, justified the stop’s prolongment. Thus, the appellate court may consider K9’s indication. And because K9 indicated and because Davis was a passenger in Nelson’s car and a known drug dealer who had a federal arrest warrant for distributing drugs, LE had probable cause to believe they would find evidence of contraband in Nelson’s car. The court overrules Nelson’s third objection.

The appellate court held that even if LE subjectively prolonged the stop because of their interest in interviewing Nelson about the BOLO—and not in order to determine who could drive the car away—and even if the BOLO does not justify prolonging the stop, a reasonable officer could have prolonged the stop so that they could determine how to remove Nelson’s car from the street. Officers did not violate Nelson’s Fourth Amendment rights.

Note: So even though the court used the language “justified the prolongation of the stop,” what was really going on was a continuing investigation into the traffic stop, which wasn’t going to conclude until LE had a legal driver or a tow truck responded. In addition, the government put forward another theory of admissibility; search incident to arrest. The appellate court did not find that to be persuasive. But since there was a sniff by a properly trained, properly deployed K9, LE had probable cause to search the vehicle under the automobile exception. The other real issue is the fact that computer/dispatch records were conflicting with the times that LE testified to. With the advent of body cams, this type of confusion should be resolved. If body cam fails, be sure to note not only the time you did something, but also the time you contacted dispatch about it. Often, there is a time lag between those two events and then there is a time lag as the dispatcher types it into the system. You should be questioned about that as you have knowledge based on your experience that there are time lags that cannot be predicted.

United States v. Wills (Connecticut 2022) 2022 U.S. Dist. LEXIS 185285
Deloyment of K9 During Search Warrant; Curtilage

In the case a search warrant was issued for a residence and its curtilage. There was an outside storage compartment that was either attached or just a few inches from the rear wall of the house and underneath an overhang of the house and had a door that opened a few feet from the basement walk-out door. The court found that this storage unit was part of the curtilage of the residence. A K9 alerted to the scent of narcotics within the storage unit.

Wills complained that LE exceeded the scope of the warrant by having a K9 sniff the storage compartment. The court made short work of that complaint, finding that LE may use a K9 at a search warrant site.

Note: There was no authority for Wills’ position and the court did not cite any authority that allows LE to use a K9 during a search warrant. It appears from the opinion that it is well settled law to use a K9. This makes sense because a sniff is not a search and because an alert from a K9 can focus the search and allow LE to search more effectively and faster. In addition, LE was legally at the storage unit via the search warrant.

Brown v. Rafferty (California 2022) 2022 U.S. Dist. LEXIS 179172
Excessive Force; Qualified Immunity

Handler went into a store and the employees told her that Brown had been at the store earlier threatening people, and they did not want him to return. Handler returned to her cruiser and saw Brown walking towards the store’s entrance. Handler activated her body-worn camera and approached Brown to prevent him from going inside the store. Brown was holding the door to the store open when handler approached him. Handler smelled an alcoholic odor emitting from Brown and suspected he may have been intoxicated.

Handler told Brown he was not allowed in the store and confirmed with the store employees that Brown was the person they told handler about earlier. Brown opened the store’s door wider, and handler told him to keep his hands out of his pockets and to come and sit down. Handler confirmed again with the employees regarding Brown, but Brown denied having been in the store. Brown refused repeated directions to leave.

Handler moved forward and touched Brown’s chest in an attempt to get him to move away from the store and she told him to turn around. Brown told handler to get her hands off him, and handler told Brown twice to walk away. Handler then radioed that she had a “148.”

Handler tried to grab Brown’s right arm, but he moved that arm backward. Handler then attempted to grab Brown’s left arm, but he moved that arm backward and told handler to get her hands off him. Handler warned Brown “do you want me to bring my dog out here?” Brown replied, “I don’t give a fuck!” Handler then told Brown to walk away, and Brown exclaimed “if I knocked your ass out . . . you are invading my space . . . I have a right to defend myself . . . stop touching me!”

Handler then attempted to arrest Brown for trespassing. More refusals and shenanigans ensue and handler radios again for assistance with a 148. Handler told Brown she was going to get her dog if he didn’t cooperate. Brown replied, “Grab your dog then.” More shenanigans ensue so Handler used a leg sweep and took him to the ground.

While on the ground, a physical struggle ensued where Brown was physically punching handler. Brown was able to overpower handler and stand back up. At this point, not knowing what weapons Brown had available, handler door popped her K9, pushed herself away from Brown and the K9 bit Brown on the left thigh. It appeared that K9 only had a hold on his clothing. Handler then grabbed Brown’s upper body and directed him to the ground. With the help of arriving LE, handler was able to get Brown handcuffed.

Handler contends that once Brown was secured in handcuffs, she took K9 off Brown’s left pant leg. Brown disputes this, and he asserts handler commanded K9 to bite him after he was already handcuffed, restrained, and compliant. Thereafter, handler placed K9 in the back of her police vehicle. Brown’s injuries were minor and the area which received one stitch was his heel. The mechanism of that injury is unknown. The bite itself only caused abrasions.

The court decided that there was a triable issue of fact as the videos showed that there was a two second time period where K9 could have bitten Brown’s heel. The court found that if there was a second bite, it was a moderate use of force.

The court then engaged in a Graham v. Connor assessment. The first factor was in favor of LE as Brown was assaulting the handler and was able to overpower her. This indicated that the severity of the crime was great. Factor 2 was found in favor of LE using the same facts except for the 2 second time period where there was no helpful video tape. As to that 2 second time period, one could conclude that Brown’s dangerousness had dissipated since he was handcuffed. The court held that there was a genuine issue of fact as to factor 2. Finally, factor 3 was analyzed the same way as to the 2 second time period.

Handler then argued qualified immunity. The court held that, again, as to that 2 second time period, it was clear that a handcuffed and subdued suspect cannot be bitten by a K9.

Note: Handler still remains in this case, but it was considerably narrowed by this decision. While the handler and K9 were off camera for 2 seconds, the fact that there was only a small injury that required one stitch is not going to help Brown much. This will come down to a credibility contest (or probably settled for nuisance value).

Hagens v. State (Maryland 2022) 2022 Md. App. LEXIS 701 (Unpub.)
Alert as Evidence

During the service of a search warrant, LE deployed a K9 on the vehicle in which the target of the search warrant drove up. The K9 alerted, the vehicle was searched, but no contraband was found. Evidence of this alert was presented in court. Hagens objected to this evidence.

Evidence may be excluded if the predjudicial value substantially outweighs the probative value. Here, the court held, the State presented evidence demonstrating that several individually wrapped baggies of cocaine were recovered in Hagens’ vest. To cast doubt on that evidence, defense counsel argued that the cocaine could have been placed in his vest by one of the other persons found in the apartment. Thus, evidence that K9 alerted to the presence of controlled substances in Hagens’ van was highly relevant as to whether the cocaine was in his vest prior to his entering the apartment. This is especially true given the close temporal connection between the alert and the search of the apartment. As such, that evidence bore a specific nexus to an element of the charged crime: possession. To be sure, the evidence was “prejudicial” to Hagens in that it made the jury more likely to convict him. But there is nothing in the record to suggest that the State relied on that evidence for another impermissible purpose, such as to suggest that Hagens was a bad person, or that he might have committed some other criminal offense. Nor is there anything to suggest that the admission of the evidence was likely to cause unfair prejudice.

Note: Handler was only able to testify that while cocaine was one of the drugs K9 was trained to detect, there was no way from handler to know which scent the K9 detected from the van. However, it allowed the government to argue that the K9 alert would tend to show that the vest found with cocaine in the house had been in the van as a possible explanation for the alert. Every little building block helps in a trial. It’s been my experience that trials often turn on a very small piece of evidence.

United States v. Broussard (Louisiana 2022) 2022 U.S. Dist. LEXIS 179448
Traffic Stop; Reliability Foundation

Handler was patrolling during drug interdiction and traffic enforcement when he saw a truck hauling a single-car hauler, loaded with a Chevy Malibu. The entire rig was swerving back and forth in the lane and at least once crossed the middle line. The Malibu was a rental car and was being hauled on a rental trailer.

Handler stopped the vehicle for the violations and suspicion of drug trafficking. When asked after exiting the truck at handler’s direction, driver had a weird explanation for the set up and was unsure of his destination other than Texas. LE approached the passenger who was very nervous; he had a completely different story.

After completing the notice of violation, handler asked more questions about the travel plans. When more vague answers were given, handler asked if there were any drugs or weapons in the vehicles. Handler then asked about currency. Driver said no currency in the truck. When asked specifically, driver repeated his answer.

LE then got consent from both driver and passenger to search both vehicles. However, there were issues of access to the Malibu so before everyone went to the police station for tools, handler had his K9 sniff both vehicles. The K9 alerted twice on the Malibu. In the trunk of the rental car was almost half a million dollars in cash.

Ultimately, the court found that there were standing issues and denied the motion to suppress on those grounds alone. However, there was a claim that K9’s alert was unreliable because the duffel bag only tested positive for trace amounts of fentanyl, a substance K9 is not certified to detect. Because, among other things, “we do not evaluate probable cause in hindsight, based on what a search does or does not turn up,” the Court found this argument unpersuasive. By way of explanation, however, handler testified that he believes K9 picked up fentanyl as an additional scent based on his previous alerts to heroin mixed with fentanyl and that he has had conversations with other K9 officers who have had similar experiences with dogs picking up scents beyond their formal training.

Finally, there was a challenge to the K9’s alert because it was “apparently observable” only to handler and that “deputies on the scene, or at least the trainees” did not see the alert. At the hearing, handler testified that K9 is more of a passive alert dog, that he generally scratches or touches spots as an alert, and that he alerted twice on the rental car. Additionally, handler testified that he is K9’s only handler, they have worked together for three years, and that K9 has never falsely alerted under similar circumstances. The Court finds handler’s testimony credible. Given these facts, the Court found there is sufficient evidence that K9’s behavior was indicative of the presence of contraband in the rental car.

Note: This case is an example of some of the “Hail Mary” type attempts to get the court distracted from the real issues. Here, the handler was asked about these issues and he credibly testified as to why these things happened. As long as you can explain your K9’s behaviors, you should be good.

United States v. Robinson (Arkansas 2022) 2022 U.S. Dist. LEXIS 179684
Traffic Stop; Prolonged Detention; Reliability Foundation; Collective Knowledge Doctrine

LE stopped Robinson for failure to stop at stop signs. The stop was also because the day before, a CI contacted law enforcement alleging Robinson was involved in drug trafficking and unlawfully possessed several firearms. This information was corroborated and relayed to the traffic officer who stopped Robinson. After pulling him over, LE detained him until a K9 team could arrive and conduct a sniff test. About 35 minutes later, the K9 Team arrived and alerted. LE searched the car and found a large amount of meth and two firearms.

About 35 minutes elapsed between when LE stopped Robinson and when sufficient probable cause via the K9 alert developed to justify searching the vehicle. There is no evidence that LE unduly delayed his investigation, and under Eighth Circuit precedent, that amount of time is not unreasonable since LE was working off the drug investigation rather than the traffic investigation.

Robinson also complained that the K9 was not reliable. However, when the court reviewed the evidence it was clear that the K9 was certified and that there were no issues in either the handler’s or the K9’s general qualifications. In addition, the handler satisfactorily explained why a K9 might alert on one part of the car and the contraband was found in another area of the car.

Note: While a reasonable suspicion drug investigation will extend the time for investigation, it is not an endless extension. You are then required to conduct and conclude your drug investigation in a reasonable time. Generally, a short wait for a narcotics K9 will be a shorter wait and less hassle for the detainee then impounding the car and seeking a warrant on the information you have. A K9 sniff will conclusively determine whether the investigation will go forward.

McCollum v. Drewitz (Wisconsin 2022) 2022 U.S. Dist. LEXIS 180377
Excessive Force; Qualified Immunity; Accidental/Unintentional Bite

Handler attempted to pull over McCollum’s vehicle. When McCollum failed to stop, subsequently crashed his car, and fled on foot, handler used his K9 and a taser to apprehend McCollum. McCollum contested the level of force handler used in this apprehension. Specifically, McCollum alleges that (1) handler deployed his taser on McCollum after McCollum had surrendered and was not resisting arrest or fleeing; (2) handler “fail[ed] and refus[ed] to intervene to stop [his] K9” from biting McCollum after McCollum had surrendered; and (3) handler released his K9 on McCollum after McCollum was handcuffed and was not resisting arrest or fleeing, and allowed or caused K9 to bite McCollum again on his left arm. McCollum did not challenge the use of K9 to terminate his flight on foot and take him down; rather, he claims handler’s use of force after the initial takedown was inappropriate.

The appellate court found the following facts: After McCollum crashed his vehicle and fled on foot, handler and K9 pursued McCollum into a residential backyard. K9 first encountered McCollum about halfway up the driveway to the backyard. After continuing to run, McCollum was brought to the ground by K9. McCollum tried to stand up again as K9 was still attempting to apprehend him. McCollum was then brought to the ground again. McCollum was on his hands and knees while K9 was biting his calf when handler arrived at the location.

Handler then commanded McCollum to get on the ground, and at about the same time McCollum erected himself to his knees. Handler’s body-worn camera footage shows that, as McCollum gets on his knees, he says something to handler. McCollum contends that at this time he was saying, “I give up. I’m done.” By this time, McCollum’s black pants had been pulled down around his hips, revealing black boxer shorts underneath; he was also wearing a tight-fitting short-sleeved shirt. McCollum’s hands were by his sides; he did not have a weapon in his hands. Handler then deployed his taser, pulling the trigger a single time, striking McCollum’s left chest with 50,000 volts.

McCollum then reached for his chest where the taser barb had made contact. He went face-first to the ground, with the taser barb and wire still attached to his chest; his hands were in front of and under his body as he lowered to the ground and then rolled partially onto his side.

It took about 40 to 50 seconds from when K9 finally brought McCollum to the ground to when handler removed K9 after securing McCollum in handcuffs. During that time, McCollum said things to the effect of “he gives up,” “he [K9] won’t quit” and “stop.” K9 continued to hold or bite McCollum’s legs as McCollum moved around on the ground. At two points, handler ordered McCollum to put his hands out to his sides, which McCollum did. At another point, handler ordered McCollum to drop what he had in his hands, which McCollum also did. At another point, handler commanded McCollum to put his hands behind his back, which McCollum also did; at this time handler applied handcuffs.

Once handler had handcuffed McCollum, handler gave K9 the “let go” command and pulled K9, who had already released from biting McCollum’s calf, away from McCollum. Body-worn camera footage then shows that, while handler is holding K9 by the collar in his right hand, McCollum rolls onto his back and raises his torso and head up, but later rolls back onto his stomach at handler’s command. Audio from the radio unit is heard and handler raises his right hand to access the radio mounted on his shoulder. In doing so, handler releases K9’s collar. K9 runs toward McCollum. K9’s head goes towards McCollum’s backside first, then his shoulder and neck area. Handler yells a command at K9 and then pulls K9 off McCollum.

Handler testified he did not release or command K9 to reengage with McCollum after he had been handcuffed. Handler claimed he reacted immediately to remove K9. From the time handler released K9 to when handler regained control of K9 was approximately 3 seconds. McCollum was treated for superficial lacerations to his legs.

The appellate court held that the motion by handler for summary judgement must be denied. Summary judgment is not appropriate as to the claims that (1) handler used a taser on McCollum after he had surrendered and (2) handler allowed K9 to continue biting McCollum after he had surrendered because the facts presented would allow for a reasonable jury to draw divergent inferences as to whether McCollum was fleeing or resisting arrest, or whether he posed a threat to officer or public safety. Because resolution of these inferences bears directly on whether handler is entitled to qualified immunity, the Court did not reach this determination. Further, summary judgment was not appropriate as to the claim that handler released K9 to reengage with McCollum after McCollum was handcuffed because a jury could infer this use of force was unreasonable under the circumstances.

Note: This case is very much fact driven and apparently the video/audio available is not of good quality. Summary judgement is only granted when there are no disputed facts. Here, the stories diverged almost immediately, so that means a finder of fact (jury) must make those determinations. The fact that the K9 was able to get loose and reengage was really unfortunate. Hopefully, the fact that LE did not intend or order K9 to reengage will resonate with the jury. In reality, though, the optics are really bad and this case will most probably settle. Goes without saying that control over your K9 is paramount.

State v. Spivey (Texas 2022) 2022 Tex. App. LEXIS 7420
Traffic Stop; Prolonged Detention; Reasonable Suspicion

LE saw Spivey acting oddly in a parking lot, rummaging through garbage cans and moving his vehicle to different places in the parking lot. Spivey’s car displayed expired tags. When Spivey drove out of the parking lot, LE pulled him over for the expired tags. Spivey was moving around and claiming to look for requested documents, so LE had him step out and Terry frisked him. Only a wad of money was found. LE completed a check of Spivey’s driver’s license, determined that there were no outstanding warrants against Spivey, and confirmed the automobile’s registration and proof of insurance. LE asked Spivey if there was anything illegal in the vehicle to which Spivey replied there was not anything illegal in the vehicle. LE did not observe any contraband in plain view inside the vehicle or on Spivey’s person. Nevertheless, LE informed Spivey that he was going to have a K9 conduct “an open-air K9 sniff of the passenger vehicle.” LE did not issue a ticket or warning to Spivey for the expired registration.

13 minutes later, the K9 team arrived and did a free air sniff of the vehicle. The K9 alerted.

During testimony, LE testified that he believed Spivey was trying to wait them out in the parking lot because LE was in a highly visible, marked patrol car. Additionally, LE recounted that Spivey was nervous, sweating, and “spastically moving about the vehicle” during the traffic stop. The “soft bulge” in Spivey’s pocket was two rolls of cash that amounted to “close to $2,000.” LE testified that “it’s not common for people to carry rolls of money generally,” and that “it was a larger amount. It’s common whenever people are purchasing narcotics.” Furthermore, when LE asked if there was anything illegal in the vehicle, Spivey “advised that he was not the only person that drives the vehicle . . . .”   This was a red flag to LE because “if you’re sure that there’s nothing illegal in the vehicle, you’d be confident and you wouldn’t have to advise me that other people drive the vehicle.” LE then stated that it is common for people possessing drugs to say that they are not the only person who had access to the vehicle.

The court held that these additional facts, when combined with Spivey’s strange behavior observed in the parking lot, established that LE had reasonable suspicion for the continued detention of Spivey. Therefore, a 13 minute wait for the K9 team was reasonable.

Note: Nothing really new here, but the trial court got this wrong and the government had to appeal to the appellate court.