October 2020 Update for Meyer’s K9 Law (Volume 1, No. 5)
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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from September of 2020. (A note here: some cases are unpublished (Unpub.) so cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. In addition, the arguments in them can be used; the case just can’t be cited as precedent in court.)
If you are new to the website, thank you for becoming a member! Please feel free to browse through the previous updates. Each update has not only a review of the PSD relevant cases for the month, but often has an article that explores a specific issue in more depth. If anyone would like me to address a particular issue, please feel free to email, text or call me.
There is no article this month as so much of the bandwidth of the media is dedicated to the elections. However, it is of note that the Salt Lake City Police Department is facing increased scrutiny regarding their use of PSDs. As you may recall, I reported on a case out of Utah (U.S. v. Jordan 2020 U.S. Dist. LEXIS 71048) where the agency had fallen short on keeping up to date on training and as a result a motion to suppress was granted. The conclusion of the court in that case was that Utah POST did not meet the minimum qualifications to certify PSDs and suggested that Utah POST revamp its training and testing of PSDs. Then, just recently, Salt Lake City Police Officer Nickolas Pierce was charged in Utah’s 3rd District Court with aggravated assault, a second degree felony, for allegedly ordering his PSD to attack a Black man who was kneeling in his yard with his hands in the air. https://www.ksl.com.article/50018114/salt-lake-officer-charged-with-ordering-k-9-to-attack-black-man-s-in-the-air .This has caused SLPD to review all of their bites and they have now sent 19 videos to the prosecutor’s office to be reviewed. While transparency and accountability are paramount for law enforcement, it is also important to note that many issues can be addressed in the field by thoughtfully assessing the situation prior to deployment (I don’t mean contemplating deployment for an extended period of time, but give enough thought to the Graham factors and your department’s policy to be able to articulate in your later report the reasons you chose to deploy). It is so important to make sure that bad facts don’t make bad law and the best way to do that is to always be able to articulate why you chose the actions you did in the context of your agency’s use of force policy and the Graham factors.
I hope this update is of assistance to you. Meyer’s K9 Law is here to assist you in fighting the good fight of responsible and effective policing. As always, if you have any questions or concerns, I’m just an email or text or phone call away.
(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. It is not legal advice. You should check with your agency’s legal team.)
INDEX FOR REVIEWED CASES FROM SEPTEMBER 2020
U.S. v. Gilmore (Arkansas 2020) 2020 U.S. Dist. LEXIS 180099 – Odor of Marijuana as Probable Cause; Protective Sweep
U.S. v. Clark (Alabama 2020) 2020 U.S. Dist. LEXIS 177685 -Odor of Marijuana as Probable Cause
Lynn v. Warden, Madison Corr. Inst. (Ohio 2020) 2020 U.S. Dist. LEXIS 177149 – Traffic Stop; Odor of marijuana as Probable Cause
Miller v. State (Maryland 2020) 2020 Md. App. LEXIS 933 – Traffic Stop; Odor of Marijuana as Probable Cause
Commonwealth v. Barr (2020) 2020 Pa. Super. LEXIS 826 – Traffic Stop; Odor of Marijuana as Probable Cause
Rew v. Vincent (Miss. 2020) 2020 U.S. Dist. LEXIS 175550 – Excessive Force; Heck Doctrine; Bystander Liability
U.S. v. Bullock (Iowa 2020) 2020 U.S. Dist. LEXIS 170229 – Prolonged detention; Traffic Stop; Additional Reasonable Suspicion
Dellenbaugh v. Gobrecht (Pennsylvania 2020) 2020 U.S. Dist. LEXIS 168454 – Excessive Force; Qualified Immunity
Commonwealth v. Richard (Pennsylvania 2020) 2020 Pa. Super. LEXIS 782 – Traffic Stop; Odor of Marijuana as Probable Cause
State v. Elkins (Arizona 2020) 2020 Ariz. App. Unpub. LEXIS 1027 – Traffic Stop; Prolonged Detention
Geberkidan v. State (Texas 2020) 2020 Tex. App. LEXIS 7315 – Odor of Marijuana as Probable Cause
Commonwealth v. Copenhaver (Pennsylvania 2020) 2020 Pa. Super. LEXIS 214 – Traffic Stop; Authority of Sheriff vs. Police Officers in Pennsylvania Commonwealth
Baker v. Borough of Tinton Falls (New Jersey 2020) 2020 U.S. Dist. LEXIS 162740 – Excessive Force
U.S. v. Bradley (Missouri 2020) 2020 U.S. Dist. LEXIS 158646 – Reliability Foundation
Davis v. State (Maryland 2020) 2020 Md. App. LEXIS 885 – Odor of Marijuana as Probable Cause
Foster v. Commonwealth (Kentucky 2020) 2020 Ky. App. Unpub. LEXIS 598 – Prolonged Detention
U.S. v. Smith (6th Cir. 2020) 2020 U.S. App. LEXIS 28050 (Kentucky) – Traffic Stop; Alert as Probable Cause
State v. Havemann (Iowa 2020) 2020 Iowa App. LEXIS 839 – Odor of Marijuana as Probable Cause; Sniff as Probable Cause; Prolonged Detention; Reasonable Suspicion
State v. White (Idaho 2020) 2020 Ida. App. LEXIS 364 – Odor of Marijuana as Probable Cause; Other Factors for Probable Cause
U.S. v. Ahmed (10th Cir. 2020) 2020 U.S. App. LEXIS 28623 (Utah) – Prolonged Detention
Erickson v. City of Lakewood (Colorado 2020) 2020 U.S. Dist. LEXIS 175459 – Excessive Force; Bystander Liability; Conspiracy; Monell Liability
People v. Osoy (California 2020) 2020 Cal. App. Unpub. LEXIS 6081 – Odor of Marijuana as Probable Cause; Plain Sight; Other Factors for Probable Cause
REVIEWED CASES FROM SEPTEMBER 2020
U.S. v. Gilmore (Ark. 2020) 2020 U.S. Dist. LEXIS 180099
Odor of Marijuana as Probable Cause; Protective Sweep
LE responds to subject’s home in response to a report of possible drug use and sales. While speaking with subject at the front door, LE smells marijuana. LE then conducted a “protective sweep” of the residence and obtained a warrant which resulted in finding contraband. The initial contact at the door was not challenged; however, it would most likely be permissible under a consensual encounter (“knock and talk”). The court held that the “protective sweep” was also constitutional, citing U.S. v. Jansen (8th Cir. 2006) 470 F.3e 762, 765 (before leaving to get a search warrant, LE may check a home to ensure that no one else is present and to prevent destruction of evidence). The court also held that the odor of marijuana in addition to the information regarding drug use and sales was sufficient probable cause for the search warrant to issue.
Note: Arkansas has only legalized marijuana for medical use in certain cases. While other marijuana odor cases have hinged on the possible legality of marijuana possession by the subject, the court here states that marijuana possession is still illegal under federal law, and that the sale of marijuana is still illegal in Arkansas. Arkansas’s recreational use proposition did not garner enough signatures to make recreational marijuana use or possession legal.
U.S. v. Clark (Alabama 2020) 2020 U.S. Dist. LEXIS 177685
Odor of Marijuana as Probable Cause
Report of a burglary suspect fleeing in a silver car. Car pulled into a parking spot at an apartment property. LE parked near car without blocking it or activating emergency equipment. As driver exited, LE could smell a strong odor of marijuana. Driver told to “hop back in right quick.” When asked, driver said he had a little bit of weed. This did not account for the strong smell, according to LE. LE asked driver to hand over a book bag on the back seat. LE searched in the bag for weapons and more marijuana, finding contraband. Driver determined later that he was not a suspect in the burglary.
Court held that the initial encounter was consensual as LE did not use any coercion (no emergency lights or siren). However, the court determined that this encounter quickly turned into a detention when LE told the driver to hop back in right quick as LE smelled the odor of marijuana. The court further held that this odor gave LE probable cause to investigate marijuana crime(s) as LE had the training and experience to know that the strong smell meant that there was a significant amount of marijuana in the vehicle.
Note: Some courts have been making a distinction between the smells of marijuana; whether it is burnt or raw and, in this case, the amount. I have no problem with a trained and experienced LE officer making those distinctions, as long as that officer actually has that experience. The defense and possibly the court may challenge the testifying officer by significant questioning. Do not testify to something you do not know. Also, if you run into a situation on the stand where you can’t answer the question, let the court know that and then work with the prosecutor to see if there is a an officer available who might be able to testify to the differences in smell. Marijuana is illegal in Alabama for all purposes.
Lynn v. Warden, Madison Corr. Inst. (Ohio 2020) 2020 U.S. Dist. LEXIS 177149
Traffic Stop; Odor of marijuana as Probable Cause
Traffic stop for tinted windows and no front plate. LE detected the overwhelming scent of raw marijuana coming from inside the vehicle (based on LE’s training and experience). Passenger was found to have an arrest warrant and a caution for possessing a firearm. Both were removed from car, searched, hand cuffed and placed in separate cruisers. LE then searched the vehicle looking for the marijuana. LE found not only marijuana but additional controlled substances in the glove box and then in the trunk.
The court reviewed Ohio precedent and found that the decision in State v. Farris (2019) 109 Ohio St.3d 519 (which held that the odor of burning marijuana alone does not justify a search of a vehicle’s trunk) was not applicable to this case. Here, because LE discovered a small amount of marijuana as well as ecstasy in the glove box, that provided probable cause to expand the search to the trunk of the vehicle, stating the smell of raw marijuana provides different probable cause than the odor of burnt marijuana. Citing U.S. v. Ashby (10th Cir. 2018) 864 F.2d 690 and U.S. v. Bowman (10th Cir. 1973) 487 F.2d 1229, the court determined that the odor of raw marijuana, especially an overwhelming odor of raw marijuana, creates probable cause to believe that a large quantity of raw marijuana will be found. Under such circumstances, an officer may rationally conclude that a large quantity of raw marijuana would be located in a vehicle’s trunk (therefore, a presumptively illegal amount). The court also noted that, in this case, an additional controlled substance was found in the glove box (ecstasy) which also provided probable cause to search the trunk.
Note: It’s important to note that additional contraband was found which gave LE a second avenue to prove probable cause to go into the trunk. It’s a good reminder to always cite all the reasons for your search so that the prosecutor has the ability to argue all avenues of admissibility for your evidence. Here, possession of a small amount (200g) of marijuana is only a civil fine; Ohio also allows possession for medical use for specific illnesses or conditions, but not possession for sale.
Miller v. State (Maryland 2020) 2020 Md. App. LEXIS 933
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for license plate light violation. Driver’s license was suspended. There were 3 passengers, none of whom possessed a valid license. All were, according to LE, overly nervous. LE did not smell anything but called for a PSD team to respond based on the nervousness and the route (drug corridor). While LE was writing up the citation for the suspended license, PSD team arrived and alerted on the front passenger side of the vehicle. The front passenger came out of the vehicle at LE’s direction and handler could smell marijuana on him. Passenger said he had smoked marijuana earlier. LE searched passenger’s person and located a ball of cocaine in his boxer shorts.
The court noted that in Lewis v. State (2018) 237 Md. App. 661, the holding was that the mere odor of marijuana emanating from a person, without more, does not provide the police with probable cause to support an arrest and a full-scale search of the arrestee incident thereto. They also noted that in State v. Wallace (2002) 372 Md. 137 that although an alert by a qualified K-9 does allow LE to search the car without a warrant, it does not suffice as probable cause to arrest and search a passenger without additional facts that would tend to establish passenger’s knowledge and dominion or control over the contraband before passenger being searched. Since the court only found that LE detected the odor of marijuana and had the admission that passenger had smoked earlier, that was not enough to establish probable cause to arrest and search passenger, because that evidence could not prove anything other than a civil offense.
Note: In Maryland, personal possession of less than 10g is a fine only (civil) offense. There was no discussion of whether this was the smell of burnt marijuana or raw marijuana; in this case, if a distinction was noted that this was the smell of raw or green marijuana, that may have been an additional basis to continue the investigation as to who was in possession of the raw marijuana (if it was in a quantity that made it illegal). In addition, the court did not consider the nervousness of the occupants or the fact that they were traveling on a drug corridor. Interestingly, the prosecution did not argue that the PSD could be alerting to the cocaine. Had they done so, the outcome could have been much different.
Commonwealth v. Barr (Pennsylvania 2020) 2020 Pa. Super. LEXIS 826
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop for speeding and failure to stop. As LE approached the vehicle, LE could smell burnt marijuana through the open window. Driver directed to exit to be evaluated for impaired driving; passenger said, “No one is getting out of this fucking car.” More officers showed up; passenger backed down and all occupants exited. (The court notes that the second officer to approach the vehicle testified that he could smell the odor of both burnt and raw marijuana; the court rejected this as “unfathomable” that the officer was able to detect the odor of both raw and burnt marijuana.)
LE told the occupants that they were going to search the vehicle for the marijuana. Passenger volunteered that he had a medical marijuana card that entitled him to possess and ingest marijuana. LE who testified were not familiar with how marijuana was ingested and one testified that he believed marijuana smoked through a vaping pen had no odor. Another officer testified that she believed that green leafy marijuana was not legal because it was not used for medicinal purposes (wrong). The search of the vehicle revealed shake throughout the vehicle and a sealed baggie of 0.79g of marijuana. There were no markings on the baggie (for it to be legal, it has to be in the original packaging from the dispensary. However, LE testified they did not know how medical marijuana was packaged). In the rear of the vehicle under a seat was a loaded handgun and packaging materials. Passenger had a doctor testify that there is no difference in smell between a vape pen and a marijuana cigarette and that medical marijuana is packaged with a clear baggie and then an outer package with markings (enabling the court to find that the 0.79g of marijuana was legally possessed).
Pennsylvania had case law precedent that the smell of marijuana provided probable cause. However, those cases predated the change in the marijuana laws which allowed for medical possession (does not constitute a crime). Therefore, the appellate court found that the smell of marijuana can only be a factor in the determination of probable cause.
This appellate court sent this case back to the trial court level because there were additional facts that needed to be established prior to the appellate court being able to rule. The holding was that 1) the odor of marijuana does not per se (automatically and by itself) establish probable cause to conduct a warrantless search of a vehicle, but could be considered as a factor in finding probable cause and 2) since the trial court failed to afford this factor any weight, the case was remanded to the trial court to consider the odor of marijuana in whether probable cause existed for the vehicle search.
Note: This case causes concern for a couple of reasons. First, it appears that Pennsylvania is going in the direction that if marijuana is possibly legal, then the smell does not provide probable cause (although the smell could be a factor in determining probable cause). That is why the issue of whether the smell of marijuana was one of burnt marijuana or raw marijuana is important. (For example, if LE could testify that the smell was of burnt marijuana, then the driver could be investigated for impaired driving. Also, if LE smells burnt marijuana, the passengers could be investigated for violating the open container law.) In this situation, if the smell was that of raw marijuana, then passenger’s story of “I just smoked” would not explain the smell of raw marijuana. Second, the court’s footnote on its incredulity that LE could smell both burnt and raw at the same time was probably based on the fact that the testifying LE officers had very little experience in marijuana. It’s important when investigating cases that if you run into a situation where you are not well versed, ask for help. Particularly in marijuana cases; the law is changing in every state very quickly and marijuana defendants are often well funded. Hopefully, on the remand, the prosecution will take the opportunity to augment the record with a marijuana expert.
Rew v. Vincent (Mississippi 2020) 2020 U.S. Dist. LEXIS 175550
Excessive Force; Heck Doctrine; Bystander Liability
Arrest warrant was issued for subject for armed (with a gun) carjacking. About 3 weeks later, 911 call from female who reported a disturbance involving subject. Upon contact with caller, she gave LE additional information that led them to believe subject was at a residence his wife was associated with (LE was familiar with the residence and the wife). When LE arrived, an unidentified female came out onto the porch and spoke with LE. When LE inquired about subject being in the residence, the female said no, but shook her head yes, indicating that not only was subject inside, this female was fearful of him. Several commands were made from the open doorway for occupants to exit the residence. A PSD team had arrived at that point. The wife was just inside the doorway and was loud and argumentative, obstructing LE. More commands were issued including commands to subject by name. A PSD warning was given at that time. Other occupants exited; wife and subject did not. Wife attempted to shut the door on LE several times. Wife then fled inside and LE was able to see subject was at the top of the stairs. LE and subject’s stories diverge at this point. Subject claimed he was complying, was not resisting and had his hands up. LE said when subject’s hand was seized to handcuffed him, subject tensed up and twisted away. This put this officer in between a belligerent wife and the resisting subject. He drew his gun and told wife to back up. When he turned his attention back to subject, subject was advancing on him. Other LE (including handler) saw this as an act of aggression toward the officer, and after at least one more warning, released PSD which bit subject’s leg. Subject continued to resist and was kicking at the PSD. Other LE were able to “assist” the PSD in pulling subject down the stairs. There was additional grappling where subject was hit in the head by LE; subject was then on the ground on his stomach with his hands underneath him. Subject was still fighting and resisting so PSD not removed until subject was handcuffed. Subject’s and wife’s stories were basically that subject was complying and LE attacked subject.
Subject pleaded guilty to resisting arrested, but the court remanded the case to the file for 24 months of good behavior (meaning that if no new charges were brought, the case would be recalled and dismissed). The court held that this resolution did not invoke the Heck doctrine; therefore, the court had to rule on the motion for summary judgment as the Heck doctrine was not applicable.
The court then went on to hold that because the two versions of the events were factually distinct, the motion for summary judgment had to be denied. This included the bystanding officers, because if the jury found that LE used excessive force, then LE at the scene should have intervened.
Note: The sentencing in this case appears to have been the judge’s decision and not a sentence that was part of the plea bargain. In cases such as these, the best practice is to get a guilty plea to resisting arrest (or battery on peace officer or something that reflects the subject’s behavior which earned him a bite) and make sure that the subject is sentenced to something that does not undo that guilty plea down the road. I don’t know whether Mississippi law allows for agreement on sentencing as part of the plea bargain, but in jurisdictions where the prosecutor has that ability, it should be used. The fact that the summary judgment motion was denied only means that the case is still going forward; generally, it is at this point that settlement negotiations happen.
U.S. v. Bullock (Iowa 2020) 2020 U.S. Dist. LEXIS 170229
Prolonged detention; Traffic Stop; Additional Reasonable Suspicion
While patrolling a high crime area, LE saw two vehicle stopped next to each other in a parking lot. It appeared to LE, based on training and experience, that a transaction took place where an occupant of one vehicle got out and approached the other vehicle and then got back into the original vehicle. The car containing the subject left the parking lot and LE followed it, discovering on the way that the vehicle was registered to subject. LE was familiar with subject because of a recent shooting incident which also involved a report of drug activity; also, subject had been a member of a criminal gang several years ago that engaged in drugs and weapons trafficking. Traffic stop for non-operational third brake light. Upon contact, subject showed LE his driver’ license and his CCW permit. When asked, subject picked up a handgun from the passenger seat and put it on the dashboard. Subject then asked to see if his brake light was indeed not working. Subject got out, went to the back of the car, and observed the light when LE pushed on the brake pedal. Because of LE’s prior knowledge of subject, even though his license, registration and CCW came back valid, LE continued to research the result of the shooting investigation to see if subject had been convicted of a felony, because that would invalidate the CCW. When asked, subject said he had been acquitted of the shooting incident, which was true. Subject asked if he could leave and LE told him he was not free to go until they were done with the traffic stop. LE then asked for proof of insurance. Subject said he had insurance, but told LE they did not have permission to look in the car for proof of insurance. LE did not let subject return to the vehicle because of the gun on the dash. LE (handler was one of three LE on scene) then retrieved his PSD and deployed PSD around the vehicle. While this was happening, subject volunteered to other officers that he had a bag of weed in the car. While the opinion does not address this, it is presumed there was a positive alert because a search of the vehicle ensued. Inside the car was marijuana in several places.
The court held that the original stop was justified because of the non-functioning tail light. Noting the holding in U.S. v. Sharpe (1985) 470 U.S. 675, 687, that the Fourth Amendment does not require officers to use the least intrusive or most efficient means conceivable to effectuate a traffic stop, the fact that additional information on subject was requested (but never received) was validated by LE’s concern that a felon may be in possession of a gun. The court held this was not an illegal prolongation of the traffic stop, because LE continued with his traffic investigation and his investigation on subject’s criminal history. The court also indicated that the specific facts of this case were unusual; subject voluntarily left his car (and gun) to look at his brake light so when LE asked for insurance, they could not let him back in until his criminal history was resolved. While these discussions were going on, the handler deployed the PSD. Therefore, the stop was not prolonged. In addition, the court held that LE had additional reasonable suspicion of drug activity due to the aforementioned information and observations.
Note: Because LE was able to articulate all the information they knew about subject, the court was able to find that even if the stop was prolonged, LE had additional reasonable suspicion to detain to investigate those crime. The court in this case also clearly understood that the entire contact was a bit unusual and was able to determine that each step, in sequence, created both a situation where a PSD sniff was accomplished during a traffic investigation without prolongation and developed additional reasonable suspicion of criminal behavior, in this case, drugs.
Dellenbaugh v. Gobrecht (Pennsylvania 2020) 2020 U.S. Dist. LEXIS 168454
Excessive Force; Qualified Immunity
An armed robbery was committed by a suspect who was tall, with a tan complexion, wearing a black t-shirt and tan shorts, brandishing a silver pistol. Later that shift, a shots fired call came in from near the robbery scene. Upon arriving at the scene, LE met with a witness who identified a vehicle driving away as the vehicle involved in the shots fired call. The driver of that vehicle was wearing a black t-shirt with black hair and a goatee. LE believed he was either Middle Eastern or Hispanic. There were three passengers. LE gave chase, but lost sight. A call came in about a similar vehicle wrecked nearby. Witnesses reported seeing two males flee the collision scene, one in a red t-shirt and one in a white t-shirt. About 20 minutes later, in the same general area, LE saw two white males sitting on some steps. One had a black t-shirt slung over his shoulder and was wearing tan shorts; the other was wearing a white-shirt. Both were sweating profusely and seemed winded, even though it was around 3 in the morning. LE pulled in front of the males to contact them, but did not use lights or sirens. LE asked if he could speak to subject, but he did not respond. LE told subject to stop and don’t move, but he took off running. LE did not have a chance to see subject’s hands so were unaware whether he had a weapon. LE gave chase but broke off when injured and concerned that he was chasing subject into wooded territory. Meanwhile, after questioning the remaining male, LE determined that neither were involved in the robbery. However, it is unclear if this was communicated to the LE who were chasing subject. PSD team was deployed at the wooded area and located subject lying face down in brush with his hands beneath him. Subject did not respond to several commands to give up. Handler moved in closer with PSD and gave another warning to show his hands. Again, there was no response. PSD commanded to apprehend and PSD engaged the back of subject’s knee. Initially, subject fought the PSD, but then complied and showed his hands. PSD was manually disengaged when subject was handcuffed. No firearm was found. Subject was found not guilty of all charges resulting from the pursuit. Subject alleged that he had not recognized pursuers as police officers as they did not identify themselves as such, and then the dog bit him.
The court found that LE had probable cause to arrest subject on the charges that were ultimately filed against him. The court also considered qualified immunity. The court quoted Kopec v. Tate (3rd Cir. 2004) 361 f. 3d. 772, 777 (Police officers are permitted to use a reasonable amount of force to effect an arrest; the degree of force is dictated by the suspect’s behavior. This standard will be applied from the perspective of a reasonable officer on scene, taking into account that LE is often forced to make split-second decisions in circumstances that are tense, uncertain and rapidly evolving). The court also recognized that the use of a PSD to bite and hold a suspect is not per se unreasonable and that a failure to give a warning prior to a bite is not objectively unreasonable. Based on the facts above, the court held that the use of force in this case was objectively reasonable and therefore LE was entitled to qualified immunity and the motion for summary judgment was granted on behalf of LE.
Note: The Kopec case language is great for us; “The degree of force is dictated by the suspect’s behavior.” Meyer’s Police K9 Training emphasizes this in teaching that once a suspect complies, the PSD should be removed from the bite. If the suspect then fails to comply again, the PSD can always be re-engaged if the Graham factors permit. It should also be noted that the record did reflect multiple warnings from the testimony of LE and that the PSD was disengaged immediately after handcuffing. It’s important to make sure that at every juncture that force is being used, that you continually assess whether that level of force is necessary.
Commonwealth v. Richard (Pennsylvania 2020) 2020 Pa. Super. LEXIS 782
Traffic Stop; Odor of Marijuana as Probable Cause
Traffic stop in a high crime area when subject pulled quickly into a parking space without using his turn signal. The vehicle was also not registered. The driver and the front passenger immediately got out of the car but the two rear passengers remained seated. LE approached the driver and told him he was conducting a vehicle investigation. Driver was nervous and couldn’t tell LE what address he was going to and was pointing to different houses on the block. LE smelled the odor of marijuana on driver. Driver claimed to have paperwork for the vehicle. When driver opened the car door to retrieve the paperwork, LE smelled an even stronger odor of marijuana. A baggie of marijuana was found in driver’s jacket pocket and a gun and another baggie of marijuana were found in the vehicle.
The court held that the stop was reasonable and that LE had probable cause to search the vehicle. The totality of the circumstances; driver’s nervousness, inability to tell LE where he was going, and the smell of marijuana coming from the vehicle; provided LE with probable cause to search the vehicle under the automobile exception.
Note: Pennsylvania has legalized medical marijuana only in specific situations.
State v. Elkins (Arizona 2020) 2020 Ariz. App. Unpub. LEXIS 1027
Traffic Stop; Prolonged Detention
Traffic stop for speeding. LE noted driver was shaky, fidgety and showed signs of methamphetamine use. Driver obeyed instructions to exit her car and a PSD team conducted a free air sniff of the vehicle. During the sniff, driver freaked out and had to be detained for safety reasons. Driver was pat searched and a cannister and a baggie of meth was found. In the car was a meth pipe.
Court held that driver exhibiting signs of meth use was reasonable suspicion to extend the investigation to allow for a free air sniff.
Note: Even though the court ruled on the prolonged detention issue, the fact that driver showed signed of meth use and being under the influence would have allowed LE to search the vehicle incident to arrest of driving while impaired as well.
Geberkidan v. State (Texas 2020) 2020 Tex. App. LEXIS 7315
Odor of Marijuana as Probable Cause
LE sees a hand to hand transaction and contact person in driver’s seat. Driver has cash in his lap and LE smells the strong odor of marijuana. Car searched and additional contraband found. Court held that a strong odor of marijuana coming from a vehicle establishes probable cause to search the vehicle.
Note: Texas recently amended the definition of marijuana to exclude hemp and driver here tried to challenge the probable cause by arguing that the odor of hemp cannot be distinguished from the odor of marijuana. The court refused to entertain such an argument because the facts of the case predated the change in the law. However, Texans should take note that this argument will be raised going forward. I don’t actually know if there is a difference in the smell; LE who deals with marijuana would have a better idea if this argument is factually correct.
Commonwealth v. Copenhaver (Pennsylvania 2020) 2020 Pa. Super. LEXIS 214
Traffic Stop; Authority of Sheriff vs. Police Officers in Pennsylvania Commonwealth
A sheriff’s deputy stopped driver for an expired registration sticker. However, the enforcement of this type of law is not under the authority of the Sheriff unless it is a violent or dangerous action or likely to lead to a public disorder or a breach of the peace. If any of these conditions had been true, then the Sheriff’s common law authority would allow enforcement. Because none of these conditions was true here, the stop was illegal.
Note: This is a weird situation, but one that is enshrined in Pennsylvania Commonwealth law. Because the Sheriff is not considered a peace officer (under the definition in the Pennsylvania Vehicle Code), the Sheriff cannot enforce vehicle laws unless one of the above conditions (violent or dangerous action or action likely to lead to a public disorder or a breach of the peace) is met.
Baker v. Borough of Tinton Falls (New Jersey 2020) 2020 U.S. Dist. LEXIS 1627400
Excessive Force
Traffic stop for tinted windows. Driver had an active $500 traffic warrant. While waiting for clarification on the warrant, LE obtained information from the passengers. LE determined that the $500 was still owed, so allowed driver to ask passengers for money for bail and to leave belongings with them. As driver emptied his pockets, a snort straw fell out. LE told driver to hold on and turn around. Driver protested and tried to reach into his pockets saying he wanted his medication. LE then grabbed driver, pushed him against the car and put his hands on the roof of the car. LE called for back-up. Driver started to get squirrely and LE asked back up to hurry. Driver and LE start to struggle. LE decided against deploying his PSD (even though he had a door popper) because he felt the situation did not warrant it. Another PSD team arrived and believed that driver was resisting arrest by refusing to give up his hands. Driver admits to “passively resisting” by not giving up his hands. The new team obtained his PSD from cruiser and initially told PSD to heel. Within seven seconds of retrieving PSD, PSD ordered to bite. No warning was given because driver was actively resisting and handler could not see driver’s hands. As PSD was jumping on driver, driver grabbed heroin and medication from his pocket and put it in his mouth. The first officer grabbed driver’s mouth to prevent swallowing. PSD again ordered to bite and PSD again jumped on driver. This continued for several seconds until the first officer pulled the driver to the ground where PSD bit driver for 5 seconds before being removed. Vehicle searched and contraband found. Driver had injuries to his back and arm, apparently from dog bites. Driver pleaded guilty to resisting arrest as a disorderly persons offense (not involving the use of force or threat of force).
The policy of the department for use of force was a reasonably necessary one. The policy also required a warning, when feasible, before deployment of PSD. The department found that LE had acted in accordance with policy and the expert retained by the department came to the same conclusion.
Driver sued for excessive force. The court applied the Graham factors and the additional 3rd Circuit factors, finding that driver was not suspected or convicted of any violent crimes; there is a material dispute in the facts as to whether driver posed an immediate threat to police; and that driver was resisting arrest. The 3rd Circuit factors were also addressed. The court held that a reasonable jury could find that the relatively brief use of the PSD could show that the deployment was actually unnecessary or it could show that the handler did not gratuitously prolong the attack. The court also noted that this arrest was for a non-violent crime and therefore warranted less force. The issue of whether it was reasonable to believe that driver was armed is also unknown. Finally, since the original officer was by himself, additional force could have been necessary, but when the other team arrived, a reasonable jury could find that the use of a PSD was unnecessary. The court noted that the two passengers did not leave the vehicle (although did not take into account the possibility of the passengers getting out and getting involved). Taking the driver to the ground was held to be objectively reasonable force in effectuating the arrest. However, the deployment of the PSD could be seen by a reasonable jury as excessive force, given the factors that were analyzed. Summary judgment was denied.
Note: It appeared from the opinion that the deployment of the PSD was almost immediate upon the arrival of the second team. This may indicate that the second handler did not adequately assess the situation under the Graham factors. While I am certainly not advocating using up precious time contemplating these factors when a dangerous situation is unfolding, had there been some communication between the two handlers prior to the deployment, it may have been a bit more clear that a PSD deployment was maybe not necessary.
U.S. v. Bradley (Missouri 2020) 2020 U.S. Dist. LEXIS 158646
Reliability Foundation
During surveillance, LE saw a vehicle arrive at a residence and then leave a few minutes later. A traffic stop was performed and driver gave permission to search the car and passenger, who was a felon on probation for trafficking, gave consent to search his person and backpack. Passenger had over $9,000 in cash in the back pack. A PSD team was called to the scene and a sniff was performed. PSD alerted on ashes in the center console, on the back pack (with the money inside) and on a firearm found partially hidden under the driver’s seat. Driver said passenger put the gun there. Additional investigation continued and ultimately a search warrant was served that utilized the PSD alerts as part of the probable cause in the affidavit. In concurrence with other federal cases, the court held that all that is necessary in a search warrant affidavit is that the PSD is certified and trained in detecting controlled substances.
Note: While the federal appellate system appears to be fine with just a blanket statement that the PSD is certified and trained in detecting controlled substances, the better practice is to attach the handler’s and the PSD’s hero sheets. If this is done, a defense attorney cannot then make the argument that there was no support in the affidavit for interpreting what the PSD’s actions actually meant.
Davis v. State (Maryland 2020) 2020 Md. App. LEXIS 885
Odor of Marijuana as Probable Cause
Subject was contacted by LE walking down the street smoking a cigar that LE believed to contain marijuana. Subject was searched and cocaine and a handgun were found. However, the court held and the State conceded that there was no proof that the cigar contained more than 10 grams of marijuana (10 grams or less in Maryland is a civil offense). The convictions were reversed.
Note: The courts in Maryland have concluded that unless LE can show probable cause that a subject is in possession of more than 10 grams of marijuana, no search can be performed because no probable cause has been shown that subject is in violation of the law.
Foster v. Commonwealth (Kentucky 2020) 2020 Ky. App. Unpub. LEXIS 598
Prolonged Detention
Traffic stop for driving too slowly. Driver did not pull over right away, but did pull into the first parking lot available. Those officers learned that driver had an expired license and started to work on the citation. A PSD team showed up to the stop without being called (common practice). Handler asked driver if she could have her PSD sniff the car. Driver refused and became argumentative. She asked driver to exit; he refused and continued to argue. One of the initial officers came over to assist handler and officer writing citation also got out of his cruiser and stood by for the 40 seconds or so it took for driver to comply with directives. Citation writing officer then went back to writing the citation. A PSD sniff was performed and PSD alerted on vehicle. Car search revealed contraband.
Court held that the break in writing the citation was attributable to officer safety and therefore did not result in a prolonged detention. “To consider this slight delay, taken for officer safety and amounting to the time it took for (driver) to be removed from his vehicle, an unreasonable seizure would contradict the holding in Rodriguez both in that it allows officers time to ‘attend to related safety concerns’ and that it is concerned with ‘whether conducting the sniff adds time to the stop.’”
Note: The court didn’t address the fact that the driver’s behavior was what caused the delay about which he complained, but was able to address the minimal delay as related to officer safety. I would have also raised the issue that driver was the one who caused any delay, not LE. It’s a good practice to raise all viable arguments in court.
U.S. v. Smith (6th Cir. 2020) 2020 U.S. App. LEXIS 28050 (Kentucky)
LE pulled Smith over for moving violations after being asked by the DEA to do so (DEA had a tracker on the car and believed that Smith was trafficking controlled substances). A PSD arrived shortly after stop and sniffed vehicle, alerting. After realizing that the vehicle was in a dangerous location (traffic passing by very closely), the vehicle was driven by LE to a nearby garage and the search of the vehicle was completed. Contraband was found.
The court held that LE was justified in pulling Smith over as the car drifted over the fog line several times. The court also held there was probable cause to search the car based on the PSD’s alert and the corroborating information from the DEA investigation. The court finally held that that the scope of the search was reasonable because moving the car a short distance (about 2 miles) to safely complete the search was reasonable.
Note: It should be noted that Smith did not argue that waiting for the PSD team was prolonged detention. It was only about 5 minutes and given the DEA information, the court probable would have found that LE had additional reasonable suspicion to investigate drug trafficking.
State v. Havemann (Iowa 2020) 2020 Iowa App. LEXIS 839
Odor of Marijuana as Probable Cause; Sniff as Probable Cause; Prolonged Detention; Reasonable Suspicion
Traffic stop for speeding. Driver was nervous and LE noticed a metal plate on the console. LE asked to look at it and driver gave it to LE. LE noted it had marijuana shake on it and that it smelled of burnt marijuana. Both occupants denied smoking recently. LE then called for back-up and started writing the speeding citation. When back-up arrived, LE retrieved his PSD and deployed it on the vehicle.
The court indicated that the squad car video confirms that LE handled both the drug investigation and the speeding infraction virtually simultaneously. In addition, the court held that LE had specific and articulable facts that amounted to a reasonable suspicion to extend the traffic investigation into a drug investigation, even though the officer did not put in his report that the plate smelled of burnt marijuana (he testified that it did) and that he failed to preserve the shake (the plate blew off the top of the car, dispersing the shake).
Note: A good reminder that your report needs to be thorough and to document adequately all evidence. Even if the deputy had taken a picture of the plate with the shake on it, that would have helped. Oddly, Iowa only allows medical marijuana with a certain THC level. However, this was not addressed in this case.
State v. White (Idaho 2020) 2020 Ida. App. LEXIS 364
LE noticed three people in a vehicle in the WalMart parking lot look at him and then look away. LE thought this was weird so followed the car. The occupants continued to look at him and then look away. LE initiated and completed another traffic stop but saw the vehicle park at a near-by restaurant. The occupants continued to watch LE. When he was finished with the traffic stop, he saw the vehicle pull into a parking space in the WalMart lot. The occupants went in and out of the store, sometimes looking at LE. LE parked and walked over the vehicle and engaged the remaining passenger in conversation. As LE approached, he could smell marijuana. The passenger admitted that marijuana was in the car and that the male occupant had been smoking. One deputy searched the vehicle while other deputies went into the store to find the other two occupants. They were detained, handcuffed and brought out to the car. In the car was a marijuana and a pipe. One of these people had methamphetamine in her purse. Also, a scraper baggie of meth was found in the bathroom of the store (surveillance footage showed the two going into the bathroom).
The court held that the detention of the woman with the meth was reasonable and supported by the “cat and mouse” game that was being played by the occupants of the car and the fact that LE had two scenes to deal with, the vehicle and the store. The court also held that there was probable cause for the woman’s seizure by LE based on the behavior of the occupants of the car, the smell of marijuana coming from the car, the admission that marijuana was in the car and that one of the occupants had been smoking marijuana. All occupants appeared to be engaged in a common enterprise, so although the woman was not the driver, the probable cause developed applied to her as well as the others.
Note: Marijuana has not been legalized in Idaho.
U.S. v. Ahmed (10th Cir. 2020) 2020 U.S. App. LEXIS 28623 (Utah)
Prolonged Detention
Traffic stop for erratic driving. Ahmed was driving and he had a female passenger in the front and a female passenger in the back. The back seat passenger started to get out and LE directed her to stay in the car. As LE continued to approach, she tried again and was again ordered to stay in the car. This time, she complied. As LE approached the driver, he rolled his window up and then started talking to his passengers. He looked at LE and then turned his head and resumed talking to the passengers. LE drew his firearm; when Ahmed eventually rolled down his window, LE noticed that both passengers were unseatbelted and the backseat passenger was dousing herself with cologne. After running Ahmed’s license, LE returned and asked the front passenger for her name. She gave a false name. After attempting to confirm her identity, LE arrested her for providing false evidence. It took approximately 90 minutes to learn her real identity. While this was going on, a PSD team arrived and conducted a sniff and alerted. Contraband was found inside the car.
The motion to suppress was properly denied by the trial court because LE had a reasonable suspicion to prolong the traffic stop to conduct the PSD sniff of the vehicle given that the backseat passenger twice tried to exit the vehicle, Ahmed rolled up his window and initially ignored LE at the beginning of the stop and the back seat passenger doused herself with cologne (common practice to disguise the smell of drugs) as Ahmed rolled down his window. In addition, Ahmed’s delay in rolling down the window was suspicious for several reasons. Not only could it have been an attempt to prevent odor from escaping from the vehicle, but it could have appeared as defiant behavior. Similarly, the back seat passenger’s behavior could have been seen as defiant when she repeatedly attempted to get out contrary to LE’s orders.
Note: Nothing really new here; however, good persistent police work and good documentation of all of the behaviors of the individuals involved.
Erickson v. City of Lakewood (Colorado 2020) 2020 U.S. Dist. LEXIS 175459
Excessive Force; Bystander Liability; Conspiracy; Monell Liability
911 call from roommate stating subject was crawling around in the attic, had been drinking alcohol and possibly smoking marijuana and may have a warrant out for his arrest. Prior to arrival, it was confirmed that subject had 3 outstanding misdemeanor warrants, none of which involved violence. Subject also had no violent criminal history. The 911 caller did not report any violence. The LE on scene came up with a plan to apprehend subject using PSD Finn. LE first tried texting and calling subject, telling him to come out or a K9 would be deployed. Subject claimed he did not get any of these messages as he was asleep. As LE entered the residence, they made loud announcements for subject to come out. There was no response to this either. Finn was then deployed with LE following Finn. Finn entered subject’s bedroom and when human LE got in the room, they saw Finn had subject by the neck. Handler attempted to pull Finn off instead of giving a verbal command; the other LE officers restrained subject’s hands, rendering subject unable to attempt to dislodge Finn. Finn was pulled off, but then his collar came off and he re-engaged subject on the neck. Subject had significant and permanent injuries.
Subject alleged excessive force when 1) Finn was released and 2) when LE failed to immediately release Finn from subject. Subject sued not only the handler but all the officers who were present. The court held that the officer who called and texted subject and the two officers who restrained subject’s hands had sufficient time and opportunity to intervene to release Finn and therefore the excessive force claim against them was allowed to go forward. A claim that they conspired to use excessive force was also allowed to go forward. However, a Monell liability claim was dismissed because subject could not show that the department failed in their duty in any way or that the policy regarding PSDs was deficient.
Note: The claims against the handler were not addressed in this action, but it is apparent that the claims against the handler will also proceed. Had the responding officers just run through the Graham factors, they would have noted that they had no information about dangerousness and could have proceeded in a different fashion. It’s hard to tell why that didn’t happen.
People v. Osoy (California 2020) 2020 Cal. App. Unpub. LEXIS 6081
LE noticed a car parked in a handicapped space without a handicapped placard or plate. As LE approached the car, LE smelled the odor of marijuana coming from the car. LE requested the driver and passenger exit the car. LE noticed a toiletry bag on the floorboard of the driver’s side that had small plastic bags containing a white crystalline substance inside. The car was searched and meth was found. The driver argued in a motion to suppress that the odor of marijuana did not justify the detention of driver or the search of his car.
The appellate court held that they deferred to the implied finding by the trial court that LE observed on the floorboard of the car plastic baggies containing what appeared to be methamphetamine, that the vehicle was in an area that was known for the sale and ingestion of drugs and LE observed no personal use paraphernalia. These facts amounted to probable cause to search the vehicle.
Note: The defense attorney was right, that the smell of marijuana alone is no longer viable in California to provide probable cause to search the car. However, there was clear evidence of other crimes which led to probable cause.
