OCTOBER 2021 UPDATE FOR MEYER’S K9 LAW (Volume 2, No. 10)

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 (A caution here: some cases are unpublished (Unpub.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

Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has not only a review of the K9 relevant cases for the month, but often has an article that explores a specific issue in more depth. 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 and things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state. If you would like me to address a particular issue, please feel free to email, text or call me.

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


Given that up to 70% of Americans believe that marijuana should be legalized, it is inevitable that changes in marijuana laws at the state level and the federal level will keep coming. Just what those changes are and how they will affect K9 units will continue to change as well. Meyer’s K9 Law is committed to tracking those changes and directing you, as handlers, supervisors and policymakers, to those changes and what they might mean for you.

Interestingly, little has changed at the federal level. Marijuana still remains illegal as it is still classified as a Schedule 1 drug, which defines marijuana as a narcotic with no medical use and a high potential for abuse. The majority of the states, however, have legalized at least some medical use and many have decriminalized, if not actually legalized marijuana. This has resulted in wildly disparate treatment of marijuana users and sellers; those in states where recreational marijuana use has been legalized are beginning to see huge profits while marijuana users and sellers in jurisdictions where marijuana remains illegal are sometimes sitting in prison.

This disparate treatment was addressed by U.S. Supreme Court Justice Clarence Thomas in a recent concurring opinion in Standing Akimbo LLC v. United States (June 2021) 141 S. Ct. 2236. In that concurrence (the full court denied certiorari, meaning they declined to hear the case) Thomas stated, “[T]he Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.”

He went on to address the federal legal scheme that exists today; “This case is a prime example. Petitioners operate a medical-marijuana dispensary in Colorado, as state law permits. And, though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana, the (federal) Government … , has sent mixed signals on its views. In 2009 and 2013, the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law. In 2009, Congress enabled Washington D. C.’s government to decriminalize medical marijuana under local ordinance. Moreover, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.” That policy has broad ramifications given that 36 States allow medicinal marijuana use and 18 of those States also allow recreational use.”

Because our justice system is a federal one, the federal government can have concurrent jurisdiction over state affairs if the facts allow it (there has to be some federal interest implicated. Here, it was the Commerce Clause of the Constitution that implicated federal involvement; in a criminal matter, the Rodney King defendants come to mind where the defendant were acquitted of the state crimes, but convicted of federal civil rights crimes). These competing systems are one of the major reasons why we are dealing with such a hodge-podge of legislation that varies wildly from state to state. I believe this will be the status quo for at least the next few years; there is too much at stake in this unprecedented time of pandemic and political infighting for the federal government to impose thoughtful and thorough legislation to address these disparate impacts.

The other trend that I see is that states are legalizing “hemp” and describing it as having a maximum percentage of THC. Of course, there are no testing agencies to confirm that percentage prior to sale and possession and it is difficult, if not impossible, for LE to determine in the field if the product is legal hemp or illegal marijuana. I am seeing more of these cases and the results are predictably all over the place.

The immediate impact of all this that Meyer’s K9 Law and Meyer’s Police K9 Training recommend is that any new K9 should not be trained on marijuana as many states that have either legalized or decriminalized marijuana are creating different levels of reasonable suspicion/probable cause for cases that appear to only implicated possession that is either legal or decriminalized in that state. As these landscapes keep changing, your local prosecutor may have adopted new policies in how they are handling these cases. Be sure you have a good contact in the prosecutor’s office and good communication with them.


In the federal realm, researchers and veterans pushing for marijuana to be federally reclassified have asked the Ninth Circuit for a rehearing, saying an appellate panel’s dismissal of their petition flies in the face of established administrative law.

A coalition of regulators responsible for overseeing the marijuana industries in 35 states urged Senate Democrats developing a legalization bill to preserve local jurisdictions’ role in administering cannabis policy without federal interference.

The House Judiciary Committee on Thursday advanced a bill to deschedule cannabis at the federal level, expunge criminal records and reinvest in communities harmed by prohibition.

Sens. Elizabeth Warren, D-Mass., and Cory Booker, D-N.J., said they have urged U.S. Attorney General Merrick Garland to use his authority to decriminalize marijuana by removing it from the list of federally controlled substances.


New York is coming closer to getting their commercial cannabis industry on its feet by appointing a union leader and the head of the state’s dormitory authority as the two final picks for New York’s board of Office of Cannabis Management, moving New York closer to having a functioning department to address marijuana use and sales. (A note here: most states that have legalized marijuana did so without putting an infrastructure into place, creating a situation where growers and sellers are trying to do the right thing by getting the appropriate permits and paying the appropriate fees but the government just doesn’t have those systems in place).

The five members of New York‘s newly appointed Cannabis Control Board announced expansions to the state’s medical program and approved the hiring of the senior staff members who will implement the new adult-use recreational cannabis regime.

Mississippi lawmakers announced that they had a deal for legalizing medical marijuana. Mississippi Governor Reeves stated, “We are a long way towards getting a final agreement, but not all the way there yet. At this point it’s jut a matter of working out the final details…things such as funding, an appropriation bill, what that would look like.” The draft medical marijuana bill legislative leaders have agreed to would levy the state’s sales tax, currently at 7 percent, on marijuana, and a $15 per ounce excise. But the bill does not specify funding for the Departments of Health, Revenue and Agriculture to run and regulate it.

California‘s recently created Department of Cannabis Control has said that 17 local governments are eligible for a $100 million grant program to help transition provisional cannabis licenses into annual licenses.

The South Carolina Attorney General’s Office has issued an opinion stating that the Delta-8 compound found in some hemp products is not legal under the state’s Hemp Farming Act or the 2018 federal Farm Bill because the language of the laws only specifically addresses the Delta-9 compound and no other isomer.

Republican state lawmakers in Ohio announced they would be submitting a draft bill to legalize and tax the sale of recreational cannabis, even as advocates are preparing a ballot measure to ask voters to do the same.

Finally, even those organizations that have advocated for the complete legalization are issuing warnings. The National Organization for the Reform of Marijuana Laws, also known as NORML, urged consumers on Wednesday to only obtain Delta-8 THC products from state-regulated cannabis manufacturers, warning that the long-term safety and effects of the controversial substance are still widely unknown.


People v. McKinney (California 2021) 2021 Cal. App. Unpub. LEXIS 5794 – Traffic Stop; Reasonable Suspicion; Odor of Marijuana as Probable Cause

Brookins v. Laureano (New York 2021) 2021 U.S. Dist. LEXIS 174967 – Traffic Stop; Qualified Immunity

State v. Thompson (Ohio 2021) 2021-Ohio-3184 – Traffic Stop; Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause; Plain View Doctrine

State v. Correa (Connecticut 2021) 2021 Conn. LEXIS 233 – Curtilage; Odor of Marijuana as Probable Cause; Alert as Probable Cause

United States v. $7,000.00 (New York 2021) 2021 U.S. Dist. LEXIS 176666 – Currency Sniff; Alert as Probable Cause

United States v. Traylor (8th Cir. 2021) 2021 U.S. App. LEXIS 27994 – Traffic Stop; Prolonged Detention; Reasonable Suspicion for Detention

Hartsell v. Cty. of San Diego (California 2021) 2021 U.S. App. LEXIS 177661 – Excessive Force

Williams v. State (Maryland 2021) 2021 Md. App. LEXIS 853 – Traffic Stop; Prolonged Detention

United States v. Chavez (10th Cir. 2021) 2021 U.S. App. LEXIS 29287 – Traffic Stop; Prolonged Detention

Almond v. Butler (South Dakota 2021) 2021 U.S. Dist. LEXIS 188365 – Excessive Force; Qualified Immunity

State v. France (North Carolina 2021) 2021-NCCOA-498 – Traffic Stop; Prolonged Detention

Jenkins v. Price (Michigan 2021) 2021 U.S. Dist. LEXIS 179562 – Excessive Force; Qualified Immunity; Monell Liability

Minor Child v. City of Gary (Michigan 2021) 2021 U.S. Dist. LEXIS 179601 – Excessive Force; K9 Warning; Monell Liability

State v. Allen (Oregon 2021) 2021 Ore. App. LEXIS 1282 – Traffic Stop; Prolonged Detention; Sniff Requires Reasonable Suspicion

State v. Gamble (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 2222 – Traffic Stop; Prolonged Detention

State v. Warren (Idaho 2021) 2021 Ida. LEXIS 149 – Traffic Stop; Detention of Passenger; Prolonged Detention

Sanders v. City of Pittsburg (California 2021) 2021 U.S. App. LEXIS 28822 – Excessive Force; Heck Doctrine

State v. Shimer (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 573 – Traffic Stop; Prolonged Detention; Reliability Foundation

United States v. Castaneda (Texas 2021) 2021 U.S. Dist. LEXIS 169613 – Traffic Stop; Sniff Inside Vehicle; Collective Knowledge Doctrine

United States v. McKenzie (2nd Cir. 2021) 2021 U.S. App. LEXIS 27087 – Sniff of Storage Unit; Curtilage/Standing

United States v. Moustrouphis (Maine 2021) 2021 U.S. Dist. LEXIS 171139 – Traffic Stop; Prolonged Detention

United States v. Toran (Ohio 2021) 2021 U.S. Dist. LEXIS 171336 – Odor of Marijuana as Probable Cause

I.G. v. State (Indiana 2021) 2021 Ind. App. LEXIS 281 – Odor of Marijuana as Probable Cause

Utah v. Ruiz (Utah 2021) 2021 UT App 94 – Entry into Vehicle by K9

United States v. Nickelson (West Virginia) 2021 U.S. Dist. LEXIS 167520 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause

State v. Skates (Delaware 2021) 2021 Del. Super. LEXIS 581 – Odor of Marijuana as Probable Cause; Plain View Doctrine

State v. Martinez (Texas 2021) 2021 Tex. App. LEXIS 7352 – Traffic Stop; Prolonged Detention


People v. McKinney (California 2021) 2021 Cal. App. Unpub. LEXIS 5794
Traffic Stop; Reasonable Suspicion; Odor of Marijuana as Probable Cause

McKinney was charged with fleeing a police officer, resisting arrest with force and possession of prohibited weapons. McKinney filed an motion to suppress the evidence, including any evidence from LE’s contact, detention, arrest and search of McKinney.

LE contacted McKinney for Vehicle Code equipment violations and for engaging in what appeared to LE as selling controlled substances. When LE approached, LE could smell a strong odor of unburnt marijuana. McKinney denied any marijuana and LE told him he was going to search the vehicle for marijuana to confirm that McKinney was in compliance with state marijuana regulations. After some undefined kerfluffle, McKinney drove away from the scene, dragging LE who was holding on to McKinney’s arm. LE was able to let go and roll away from the truck. The pursuit was called off for safety reasons. The vehicle was found the next day with McKinney’s ID but no contraband. Another LE deputy testified that he located and arrested McKinney after the first LE confirmed McKinney was the one who eluded him. After waiving Miranda, McKinney confessed that he had a zip gun in the truck and that’s why he ran. The zip gun was found where McKinney said he stashed it.

At trial, LE testified to his training and experience re: marijuana and its odor. He testified that McKinney was overly nervous and shaking when asked about the marijuana odor. He also testified that the area was a high crime and high drug transaction area. McKinney was convicted of resisting arrest with force (PC 69). The other charges were dealt with before trial.

McKinney appealed, claiming that there was insufficient evidence that LE was acting within his lawful duty (an element of PC 69) because LE detained him to search his truck without probable cause.

The appellate court held that LE had reasonable suspicion to stop McKinney as well as probable cause to search the truck. The court acknowledged that in Johnson, the court explained that in 2016, Proposition 64 legalized the possession of up to 28.5 grams of marijuana by individuals 21 years or older…but the use and possession of marijuana is not unconditional.” In fact, the provision cited by the defense specifically stated that only lawful possession of marijuana cannot be used as the basis for detention, search or arrest. See Health & Safety Code] section 11362.1, subdivision (c). Thus, section [Health & Safety Code] 11362.1, subdivision (c) does not apply when the totality of the circumstances gives rise to a fair probability that an existing marijuana regulation was violated when the search occurred.” (People v. Johnson (California 2020) 50 Cal.App.5th 620 at pp. 625-626, fn. omitted.)

The appellate court then held that, taking the evidence in the light most favorable to the judgment (of conviction), it found the totality of the circumstances supported the legality of LE’s decision to search. These circumstances included that LE had stopped McKinney because he observed individuals crowded together near McKinney’s truck in a poorly lit area, consistent with hand-to-hand drug transactions and a desire to avoid detection. These individuals were in the parking lot of a closed business at 8:30 p.m. LE noted a strong smell of unburnt marijuana coming from inside McKinney’s truck, but McKinney denied he had any marijuana, which LE found suspicious and indicative of attempting to hide unlawful conduct. Further, McKinney’s tone was “nervous” and “aggravated” when he denied there was marijuana in the truck; he also started to shake when marijuana was mentioned. Finally, this stop took place in a high crime, high drug, and high drug sales area.

While any one of these factors alone may be insufficient to justify McKinney detention, the court held,  taken together they constitute probable cause supporting LE’s decision to detain defendant for the purpose of searching his truck to determine whether he was in compliance with marijuana laws. (See People v. Moore, People v. Fews  and People v. Lee). Accordingly, the appellate court found sufficient evidence supported the lawful duty element and confirmed the denial of the motion to suppress.

Note: Please note the language in the last paragraph where the court stated, “While any one of these factors alone may be insufficient to justify defendant’s detention….” This statement fudges the burning question in California marijuana law right now and that is whether the odor of marijuana alone is sufficient probable cause for search. I’m sure that statement will be jumped on by the defense as proof that the courts are still not convinced that the odor of marijuana is probable cause in and of itself. Here, however, LE did a good job of describing all the factors which gave him reasonable suspicion which developed into probable cause. The more facts you can articulate, along with your conclusions based on your training and experience, the more likely the courts are to find probable cause.

Brookins v. Laureano (New York 2021) 2021 U.S. Dist. LEXIS 174967
Traffic Stop; Qualified Immunity

Brookins sued for 4th Amendment violations of unlawful search and seizure pursuant to a traffic stop for failing to signal. Brookins refused to cooperate, refused orders the get back in his vehicle and fled after being pepper sprayed. Brookins was caught and put in a patrol car. Brookins license was suspended and the vehicle was a third party rental (in his wife’s name, who was not present at the scene). LE decided to search the vehicle based on the license suspension and the odor of marijuana and towed it to a secondary location for that purpose. (Interestingly, the criminal charges were dismissed after the evidence of the crimes charges was suppressed apparently because the government abandoned the argument that the odor of marijuana provided probable cause to search and did not argue that the search was pursuant to arrest. They went with the theory of an inventory search but the court held that the vehicle was legally parked in Brookins driveway and therefore LE had no basis to tow the vehicle).

The court first held that there were unresolvable issues of fact on whether the street Brookins turned on was long enough for him to be required to use his turn signal. This issue was allowed to go forward which addressed whether the traffic stop was valid from the beginning. The court then addressed whether the government was estopped (prevented from contesting) by the criminal case ruling where the evidence was suppressed. The court held that the government was not estopped because this was different cause of action with different parties such that the LE defendants in this case did not have a full and fair opportunity to litigate their civil defenses in the criminal case.

The court turned to the asserted defense of qualified immunity and determined that LE was entitled to qualified immunity as to the stop, arrest, and search as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Based on this, the LE officer who only assisted in the search after the tow was entitled to qualified immunity. Brookins offered no argument that this LE had reason to know that the original LE’s assessment of probable cause was mistaken, and thus no basis to argue that the second LE was not entitled to rely on Laureano’s (the stopping officer) judgment.

The court then turned to Laureano who stopped Brookins for the turn signal violations. The court held that LE had reasonable cause to believe that Brookins had violated the law, not whether he was correct. In other words, the issue is whether LE’s “belief that Brookings had committed a traffic infraction, even if mistaken, was objectively reasonable under the circumstances.” In addition, Brookins did not dispute the allegation that he was driving on a suspended license or the fact that he fled, which formed the basis for his arrest. Therefore, on the issue of the unlawful seizure (arrest), LE is entitled to qualified immunity.

This left the issue of whether the search of the vehicle after the tow was supported by probable cause. LE argued that the search of the vehicle was supported by 1) the odor of marijuana as probable cause and 2) the fact that the search was a valid inventory search. The Court found that there were genuine issues of material fact which preclude summary judgment. LE testified that he smelled marijuana, and if credited by the jury, this would provide probable cause to believe that contraband could be found in the car. However, viewing the evidence in the light most favorable to Brookins, as the Court must, there exists a genuine issue of material fact as to LE’s claim that he smelled marijuana. The second LE who assisted in the search for twenty minutes, and another officer who assisted as well, did not encounter the smell of marijuana. Thus, justification for the search for contraband depends on the jury’s decision to credit LE’s version of events, and therefore precludes summary judgment. The court then addressed the inventory search issue and held that there was conflicting evidence as to whether there was appropriate evidence to support an inventory search. This issue was allowed to go forward.

Note: The fact that the original officer smelled marijuana and that two officers then next day did not smell marijuana does not mean that the first officer is lying; there are many reasons that the smell perhaps had dissipated. However, the issue is going to have to be resolved by the trial court. As to the inventory search issue, there were no facts mentioned that supported a tow and an inventory search. An inventory search is not a fall back position; you need to have the facts that support the decision to seize and tow the vehicle, and those facts must meet your agency’s policy for tow. Not sure why the government basically took a dive on this case, but clearly facts that would have helped LE’s position were not elicited. If the facts did not exist, then the outcome is appropriate. If they did and they were not presented to the court, then something went wrong. LE has no ability to dictate to the prosecutor how to handle a case, but LE does have the ability to write thorough reports and communicate with the prosecutor. Something was amiss here but the case isn’t clear as to what.

State v. Thompson (Ohio 2021) 2021-Ohio-3184
Traffic Stop; Reasonable Suspicion; Prolonged Detention; Alert as Probable Cause; Plain View Doctrine

LE stopped a vehicle for heavy window tint and rolling through a stop sign. Thompson was a passenger. The driver was suspended and Thompson did not have a license. The stop was in a high-drug-trafficking area and during the stop LE noticed Thompson’s nervous behavior and furtive movements around the car’s center console. LE then called for the nearest K9 team to respond. About 17 minutes in, LE completed the citations and delivered it to the driver. LE then had them wait another 6 minutes until the K9 team arrived. The occupants were ordered out pursuant to LE policy (and well-settled law) and contraband was seen by LE in plain view as the door opened. The investigation continued from there; the case does not indicate whether there was an alert or not.

The court held that, based on the above facts in totality, LE had a reasonable suspicion of drug activity necessary to extend the traffic stop to await a K-9 team to arrive. In addition, LE lawfully ordered the occupants out of the vehicle for the sniff (under Mimms, LE needs no additional justification to order occupants out) and LE saw contraband in plain sight, which allowed LE to seize the contraband.

Note: In a concurrent opinion (one of the justices agreed with the result but wanted to address something that was not addressed by the majority), the court raised the issue of racism, stating, “[w]hile a “high-crime area” may be one of several factors justifying an investigative stop, courts should strengthen their review of the “high-crime area” designation to mitigate concerns about racial, ethnic and socioeconomic profiling that arise when designating an area as “high crime.” I am seeing this more and more, even from the US Supreme Court. Courts are going to be very sensitive to what they perceive to be “profiling;” basically, LE inappropriately stops and searches/arrests people of color. There was body cam in this case which helped dispel this concern. A good thorough report on the facts will also assist in shooting down such a theory.

There were other issues addressed in the appeal, but they are not relevant here, so I did not review them.

State v. Correa (Connecticut 2021) 2021 Conn. LEXIS 233
Curtilage; Odor of Marijuana as Probable Cause; Alert as Probable Cause

LE was surveilling a motel known for drug trafficking in the early morning hours. LE saw a vehicle pull up, the passenger visit a room in the motel for less than a minute then leave. This vehicle was stopped and LE noted the strong odor of marijuana. Passenger admitted to possessing marijuana. A search of him revealed marijuana. A K9 alerted to the center console but no additional marijuana was found. Driver was ticketed for traffic violation, but allowed to leave as he stated he had no idea what passenger was up to. Passenger’s grandmother allowed LE to search passenger’s room and more contraband was found. Later, passenger told LE that he had his marijuana in the motel room.

LE then returned to the motel and found out that Correa (driver) had rented the room for a week paying cash. Passenger was listed as an additional guest. No one answered the door, so K9 directed to sniff in the walkway of four rooms, including the one at issue. K9 alerted consistently to the room rented by Correa. LE applied for a search warrant and in the meantime, LE spotted Correa walking away from the motel. He was stopped by LE. Correa was searched and found to be in possession of a large amount of cash. Correa refused LE entry to the motel room. However, LE did a sweep of about 15 to 20 seconds for additional suspects. Finding none, they retreated but not before seeing a scale and sandwich bags.

The search warrant included passenger’s admission that the marijuana in the room was his, the K9 alerts from the outside, and the items seen during the protective sweep.

The only issue addressed by the appellate court was whether the K9 sniff was unlawful. The case was remanded back to the trial court to consider the doctrines of independent source and inevitable discovery.

The court first reviewed Connecticut cases and determined that a motel room has the same protections as a condominium, indicating that a sniff of a door was was a search that required probable cause, stating, “Despite the differences between a motel room and a home, similar norms apply to the conduct of visitors lawfully on motel property: motel guests reasonably do not expect that the foot traffic generally associated with an open-air walkway abutting the motel’s guestrooms includes law enforcement officers trolling the walkway with a trained police dog in search of contraband in those rooms.” The court therefore held that, “Due to the substantial privacy interests an individual has in his or her motel room, because canine sniffs for drugs generally are not conducted to address urgent concerns related to police and public safety, and “[i]n light of our demonstrated constitutional preference for warrants and our concomitant obligation narrowly to circumscribe exceptions to the state constitutional warrant requirement; we are not persuaded that an exemption from the warrant requirement should be extended to a canine sniff of the exterior door to a motel room, as the state advocates. We believe, rather, that, in the present context, the “balance between law enforcement interests and [an individual’s] privacy interests . . . tips in favor” of the latter, given that “our state constitutional preference for warrants [occupies the] dominant place in that balance . . . .”  The court held that since the Conn. Const. art. I, § 7 prohibited the police from conducting a warrantless canine sniff at the exterior door to a motel room for the purpose of detecting the presence of illegal drugs inside the room, the failure of the police to obtain a warrant before conducting the canine sniff outside defendant’s motel room was unlawful.

The court also held that the visual sweep of defendant’s motel room was not justified by exigent circumstances because the police knew that neither of the two individuals linked to the motel room was in a position to destroy evidence located inside the room, as defendant was with the police when the visual sweep was conducted and the other man was under arrest.

Note: This case was remanded for the court to consider whether the information separate from the sniff and the sweep were sufficient to supply probable cause for the warrant to issue. I disagree with the ruling on the sweep because even if the registered occupants were accounted for, there could easily have been another person inside, perhaps someone guarding the contraband with a weapon. In any event, this supreme court fell back on their constitution to find that a K9 sniff in a common hallway was unlawful, because the cases at the federal level can be interpreted as holding the opposite. So, Connecticut LE, beware. Make sure you check in with your prosecutor’s office on this issue before performing any sniffs from common hallways.

United States v. $7,000.00 United States Currency (New York 2021) 2021 U.S. Dist. LEXIS 176666
Currency Sniff; Alert as Probable Cause

The government moved to forfeit the $7000.00 as drug proceeds. This money was turned in to LE by a person whose address was the return address but he did not recognize the package containing the money. There were other indicators about this package that indicated the money was drug proceeds. In addition, a controlled substances trained K9 alerted to the package.

The appellate court held that an alert from a trained drug-sniffing dog would tend to indicate that the currency was drug proceeds, but did not find that the alert was in and of itself probable cause to conclude the currency was drug proceeds.

Note: In currency proceedings, the courts are still wary of what it means legally when a drug-trained K9 alerts on it. Best practice is to make sure you have sufficient indicators otherwise prior to seizing the currency.

United States v. Traylor (8th Cir. 2021) 2021 U.S. App. LEXIS 27994
Traffic Stop; Prolonged Detention; Reasonable Suspicion for Detention

LE was surveilling a house during a drug investigation. There was a large amount of vehicle and foot traffic and at least one informant had reported that narcotics were sold there. LE noted that a particular red Charger was parked in the driveway and had expired tags. LE determined that Traylor typically drove the Charger and that the Charger had been seen at another suspected drug house where LE had conducted a controlled buy.

LE then saw a red Charger exiting a gas station and ran the plates. The plates actually were registered to an Acura, not a Charger. LE stopped the Charger for failing to signal. Traylor pulled into a gas station, blocking access to a portion of the station and started walking quickly away. LE caught up to Traylor and told him he was detained. Traylor then locked the Charger. When asked for appropriate documents for the stop, Traylor unlocked the Charger, retrieved the documents and locked it again. Traylor then searched his phone for proof of insurance. On the title was a known drug trafficker; the date of sale was after Traylor had been seen driving the Charger. Traylor acknowledged he was on probation for a drug offense. LE then requested a K9 team and began writing the ticket. During a consent search of Traylor’s person, LE found a second cell phone and $300 in cash. The K9 team arrived when LE was on phone with the probation department. The K9 alerted to the Charger. A search revealed controlled substances and a gun.

The appellate court held that Traylor’s motion to suppress was properly denied. The facts above not only supported the traffic stop, but supported additional reasonable suspicion that Traylor was drug trafficking, therefore extending the time for detention until the K9 team arrived. Once the K9 alerted, there was probable cause for search.

Note: It’s interesting that the government did not assert the argument that the stop was not extended based on the fact that LE was still on the phone with probation which is permitted at a traffic stop with a probationer. It didn’t matter because the court found additional reasonable suspicion, but best practice is to always assert every theory of admissibility possible.

Hartsell v. Cty. of San Diego (California 2021) 2021 U.S. App. LEXIS 177661
Excessive Force

During the service of a search warrant, Hartsell and another occupant fled out the back door. LE was aware that Hartsell was a convicted felon with a lengthy record. LE eventually found Hartsell lying prone in a thicket. Hartsell failed to respond to several K9 warnings or orders to come out and handler ordered his K9 to apprehend Hartsell. The K9 bit Hartsell.

Hartsell then sued for excessive force. A previous court held that “deploy[ing] a ‘bite and hold’ canine to apprehend a concealed subject who was a wanted felon fleeing on foot and hiding in brush who had not been searched for weapons, was nonresponsive to several canine announcements, who potentially presented a danger to the public, and where a second fleeing suspect was still on the loose” was a reasonable use of force as a matter of law. However, the parties went to trial over what happened next: without directing K9 to release Hartsell, handler ordered Hartsell to crawl the five to fifteen feet out of the bushes. Hartsell complied, dragging along K9, whose jaws were still clamped down on Hartsell’s arm. Hartsell argued that this direction, and the failure to first command K9 to release him, was an unreasonable use of force.

Hartsell appealed, but this appellate court found (along with the jury) that the use of force in this case was reasonable. The parties agreed that LE entering the thicket wasn’t safe for handler to physically removed the K9, leaving two options: 1) order Hartsell out with K9 still on the bite until K9 could be removed physically or 2) verbally order K9 to release from a distance. Ultimately, once Hartsell had crawled out, the K9 did not respond to a verbal out and the handler had to physically remove the K9. In addition, all LE testified that the safest practice is to release a biting dog physically while giving a simultaneous command because giving the verbal command alone risks a second bite. And handler testified that a second bite would be more likely than the first to cause a serious or lethal injury. The jury heard substantial evidence supporting a conclusion that a reasonable officer with handler’s training would have determined that the least dangerous method of removing Hartsell from the bushes was to order Hartsell to crawl out with K9 still engaged, and that therefore handler’s decision to take that course wasn’t an unreasonable use of force.

Note: This case is a good reminder that every stage of a use of force will be scrutinized. Make sure you are constantly reassessing the continued use of your K9 in apprehensions.

Williams v. State (Maryland 2021) 2021 Md. App. LEXIS 853
Traffic Stop; Prolonged Detention

LE spotted a Florida plated vehicle on a known drug corridor with two occupants not wearing their seatbelts and stopped the vehicle. The driver appeared overly nervous. She gave LE her license but could not locate any registration information. She stated the car was a rental, but she did not know where the rental agreement was or who rented it. She was asked out for LE to further investigate whether the vehicle was stolen, insured or kept past its return date. Driver was still overly nervous. Driver then told LE that Williams, the passenger, was the renter and that they had driven from New York to Virginia two days earlier and they were on their way back to New York. Driver only knew Williams by his first name, despite the fact they had been together in a car for two days. At this point, LE called for a K9 team.

While waiting on the K9 team, LE contacted Williams, who showed LE his Corrections ID card and told LE he was on probation for a gun charge in New York, but he was currently living in Virginia. When asked how he was going to return to Virginia, he shrugged (LE assumed Williams’ probation had been transferred to Virginia). In addition, he said his uncle rented the vehicle but could not provide any information about the uncle other than his name. During this time, LE found out that the car was not reported stolen, that both occupants’ IDs were valid and that Williams had a suspended license. About 15 minutes into the stop, LE issued warning citations to both occupants. About 16 minutes later, the fourth lane of the freeway was shut down for the K-9’s arrival. The K-9 gave a positive alert for drugs at 7:05 a.m., about 20 minutes after the traffic warnings were issued.

The court first held that the traffic stop was complete prior to the arrival of the K9 team. The court addressed following issue alone; whether the delay from the completion of the citations to the alert of the K9 was justified with additional reasonable suspicion.

The appellate court held that in combination, the route being traveled, the duration of the trip, the use of a rental vehicle, the inability to produce a rental agreement, the conflicting and changing responses about who had rented the vehicle, Mr. Williams’s lack of pertinent information about his uncle, and Mr. Williams’s evasive response about his return to Virginia, sufficed to provide reasonable suspicion of criminal activity and to justify the additional 20-minute detention to await arrival of the K-9, even though there were potential innocent individual explanations for these conclusions.

Note: Nothing really new here, but a good example of how to build reasonable suspicion through investigation.

United States v. Chavez (10th Cir. 2021) 2021 U.S. App. LEXIS 29287
Traffic Stop; Prolonged Detention

Utah LE stopped Chavez for tailgating and lane violations. The vehicle was a rental. After gathering the appropriate paperwork, LE requested that Chavez to come back to the patrol car to speed the process along. Chavez refused and was allowed to remain in his vehicle. LE then determined that the rental car was 10 hours overdue in Arkansas and there was no provision that Chavez was allowed to take the car out of state. LE started to write a citation and called for a K9 team. After learning that no K9 team was available, LE had a background check run to verify Chavez’ license and warrant status and criminal history. By this time, LE believed that Chavez was involved in running drugs, so radio’d again for a K9 team.

While this was happening, Chavez got out of his vehicle and approached LE at his patrol car. Chavez said he had an email that confirmed he extended the rental, but LE told him he needed to see the updated rental agreement, which Chavez could not produce. (At some point, Chavez got back in his vehicle). While LE was still waiting for response back on his earlier requests, a K9 team arrived. Handler directed all occupants out of the vehicle, but they refused. Handler then ran the K9 around the outside of the vehicle while LE called the rental car company to confirm the claimed extension. K9 then alerted to the car just as dispatch was telling LE that Chavez had criminal drug history. LE then told Chavez that he suspected drug trafficking and told him to exit. Chavez argued, then rolled up the window and sped off. The pursuit went about 60 miles at 110 mph most of the way. Chavez evaded spike strips, but two gravel trucks blocked him, slowing him to 45 mph and LE was able to PIT him. Meth was found.

The appellate court quickly found that the stop was lawful, based on LE seeing the tailgating and lane violations. The court held that the test for reasonable suspicion did not call for Chavez to have actually violated the law, but rather, the government need only demonstrate LE reasonably believed that Chavez signaled improperly or tailgated. There was also dash cam that confirmed Chavez did not signal properly.

The appellate court then moved on to the issue of prolonged detention. Chavez contended that LE completed the stop eight minutes into the encounter when he finished writing the citation. Chavez claimed that LE intentionally delayed contacting dispatch to obtain the necessary information because he testified about several factors that made him suspicious before requesting the records. The court recognized that LE completed the citation before requesting the criminal-history records. But the timing of the two events does not end the inquiry. Despite Chavez’ contention that LE did not reasonably conduct the stop, the court concluded that the totality of the circumstances supported the conclusion that he did. After approaching Chavez and asking for a current rental agreement (which Chavez could not provide), LE completed the citation and inquired about a K-9 unit’s availability to come to the scene. Dispatch told LE none appeared to be available. Immediately following dispatch’s response, LE requested the criminal-history report based on the circumstances presented—which included Chavez driving a rental car with an expired rental agreement, Chavez’ apparent urge to quickly end the stop, and Chavez’ implausible description of his travel plans. He then requested that dispatch help find him a K-9 unit. LE’s suspicions prompted these actions—actions the court has previously held relate to officer safety. The court recognized that traffic stops present significant danger to LE and established case law permitted LE to ask dispatch for Chavez’ criminal history. LE’s criminal-history check asked dispatch to obtain Chavez’ license and warrant information and his criminal-history report to better understand whether Chavez might engage in violent activity during the stop. Therefore, LE acted reasonably by requesting Chavez’ criminal history under the circumstances presented. And dispatch’s failure to obtain this information in a more expedient manner was beyond LE’s control.

The court also held that LE is not required to conduct a traffic stop in a certain manner or more or less intrusively or efficiently, holding that the question the court must ask in cases of this nature is whether LE acted reasonably under the circumstances. Here, all things considered, LE’s request for Chavez’ criminal history falls within the government’s strong interest in officer safety outweighing Chavez’ interest in a shorter detention. Therefore, the stop was not unreasonably prolonged. In addition, since the K9 team arrived and performed an open air sniff prior to LE receiving information regarding Chavez’ criminal history, the K9 sniff did not unreasonably extend that stop, either.

Chavez’ flight, the dog alert, and prior criminal history provided probable cause to search the vehicle for contraband under the automobile exception.

Note: No new law here, but a good example of dogged (no pun intended) pursuit of what was really going on.

Almond v. Butler (South Dakota 2021) 2021 U.S. Dist. LEXIS 188365
Excessive Force; Qualified Immunity

LE responded to a report that a suspicious individual, later determined to be Almond, entered a wooded area, dropped off a bike and drove away at high speed. Almond was located in the vehicle but sped away. Another officer found the car Almond had been driving and saw Almond running into a bank. Bank employees said they thought he was in the second floor restroom.

The bank was evacuated and LE set up a perimeter, which included a K9 team. Warnings were given to come out and comply with instructions or the K9 would be sent in which would bite. Almond refused with profanity, saying he was using the toilet. LE entered the bathroom with guns at a low ready position and found Almond in possession of two visible knives on his person standing at the sink. Almond again refused to comply with commands and started smashing his phone on the ground. K9 was ordered to apprehend and K9 then bit Almond on his left lower leg and took him to the ground. Almond was ordered to roll over, but that was impossible to accomplish with the K9 still attached, so handler released the K9. The bite lasted about 20 seconds. Almond was subdued and taken to hospital for medical clearance. Almond’s keys to the car were found in the toilet paper holder and in the car was Almond’s ID.

Almond claimed that he walked into the bank to use the restroom and did not recall driving a car before that. LE told him to get out and he told them he would when he was done. While he was washing his hands, LE burst in, shouting orders at him, pointing guns at him. Almond complied, getting down on his stomach. LE then ordered K9 to bite him. LE then laughed at him while he tried to roll over in compliance with their orders with the K9 attached

The standard to survive LE’s motion for summary judgment is that Almond must “present enough proof in support of his claim that a jury could properly find that the degree of force used against him was not “objectively reasonable.”” This analysis must take place in light of the facts and circumstances confronting LE, without regard to their underlying intent or motivation. This analysis is also performed from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

The court then addressed the Graham v. Connor factors. The first factor is the severity of the crimes at issue and at the time of the initiation of contact, reckless driving and fleeing from LE were the only crimes suspected. Since these are non-violent misdemeanors, the court decided that the first factor weighed in favor of Almond.

The next factor, whether he presented an immediate threat to LE or others, weighed slightly in favor of LE according to the court because although there were no allegations that Almond threatened to use the knives or attempted to reach for them, their presence along with Almond’s noncompliance is enough to constitute a potential immediate threat to their safety posed by knives in a small restroom space.

The final factor was whether he was resisting or fleeing. At the time LE had Almond cornered in the bathroom, he physically could not flee. In addition, the court held, refusing to comply was not active resistance. Therefore, this factor weighed in favor of Almond. Thus, because the first and third Graham factors are in favor of Almond and the second factor is only slightly in favor of LE, a grant of summary judgment finding that the use of force was reasonable is not appropriate.

LE asserted qualified immunity and the court held that it could not grant qualified immunity at this stage because a genuine issue of material fact exists as to whether Almond was complying with police orders at the time of the dog bite. On one hand, Almond has only produced his own testimony as to what happened. On the other hand, LE have only produced their own claims, albeit via both affidavits and contemporaneous reports, and audio recordings that do not clarify what happened in the bank restroom. Because the Court must view the facts in a light most favorable to the non-moving party (Almond in this situation), Almond’s allegations must be considered. Thus, summary judgment is not appropriate at this time, and for the reasons stated above, LE’s motion for summary judgment is denied.

Note: The court came to the conclusion that Almond was physically prevented from fleeing and did not physically resist, and therefore this factor in Graham weighed in Almond’s favor. Granted, this is at an early stage of the proceedings and the threshold to have the case go forward is very low, but it seems to me that there are additional considerations here: could they just leave him in there and wait him out? The bank was evacuated, so LE had to think there was a danger. Whatever that danger was, it needed to be better articulated. It should also be noted that handler got the K9 off within 20 seconds as he recognized that the K9 was impeding the result they wanted. This will assist towards showing that the handler’s actions were objectively reasonable.

State v. France (North Carolina 2021) 2021-NCCOA-498
Traffic Stop; Prolonged Detention

Traffic stop for equipment violation. France, the driver, had two passengers. One LE asked for ID from all while other LE called in the plate and looked inside the vehicle with a flashlight. One passenger claimed not to have ID and said he wanted to walk home. After getting his information, the first LE returned to the cruiser to run the information on all occupants and also called for a K9 team. Back up arrived then and stood by to watch the occupants. LE then discovered that a different passenger had active warrants and was asked out of the car. Passenger got out and informed LE he had a gun. He was disarmed. Other LE told the remaining occupants to put their hands on the dash. LE then continued to obtain information about the occupants and started writing the citation for the equipment violation. While LE was drafting the citation, the K9 team arrived and back up LE had occupants get out of the car for the K9 sniff. K9 alerted and contraband was found. Later, more contraband was found on France’s person.

The court held that even though LE called for a K9 which was not part of the traffic investigation, the request did not measurably extend the duration of the stop and convert the encounter into something other than the lawful seizure to investigate the traffic violation. Neither did the brief interactions LE had with back up officers when they arrived or her actions in having France and other passenger put their hands on the dashboard and waited for her compatriots to regain control of the situation presented by the gun taken from the passenger, because this was required to ensure the safety of LE. LE was relieved of watching over the remaining occupants once the gun was made safe and secured and she returned to processing the traffic citation. When the K9 team arrived, LE took a few moments to bring the handler up to speed while her back up got the remaining passengers out of the car. This did not unduly delay the traffic investigation either.

The court also held in the alternative that LE had reasonable suspicion to suspect drug trafficking because earlier in the evening, LE had observed what she thought was a hand to hand drug transaction that evening involving this vehicle and the stop was in a high crime area. In addition, one passenger had warrants and a gun and the other passenger was itching to walk away to his home. The totality of these circumstances extended the investigation to include an investigation of drug trafficking.

Note: While other cases have granted motions to dismiss on minimal delays, in this case, there was good documentation and testimony on each step of the investigation, making it possible for the court to justify this sniff on two grounds. Again, all avenues of admissabilty should be documented by LE and pled by the prosecutor.

Jenkins v. Price (Michigan 2021) 2021 U.S. Dist. LEXIS 179562
Excessive Force; Qualified Immunity; Monell Liability

Theoddeus Gray was shot to death by officers of the St. Clair Shores police department. Gray was armed with a handgun at the time. The incident involved an initial exchange of gunfire where Gray shot first and then was shot but was able to flee. LE was unsure if Gray was trying to shoot the K9 officer or human officers, but it was clear that Gray was shooting at LE. The K9 eventually died of his gunshot injuries. That was followed by a second confrontation during which Gray raised his gun towards LE and then was gunned down in a hail of gunfire by the police. Gray’s estate (Jenkins) brought suit under various federal and state legal theories, which depend on a finding that LE used excessive force during one or both confrontations.

One of the claims by Jenkins was that LE was negligent when they released the K9 at the first confrontation, which escalated the confrontation.

The court analyzed both instances using the 3 element Graham test, and focusing specifically on the immediate threat/danger that Gray posed to LE as well as the general public.

Jenkins claimed that in the first instance, Gray was running away from police as evidenced by Gray being shot in the heel. In addition, she claimed, Gray was only shooting at the K9 because it was “objectively unreasonable” for LE to use deadly force to protect a dog. However, LE testimony and surveillance footage show that Gray took off on foot with LE, including the K9, in pursuit. Then it showed that Gray brandished a firearm and then a muzzle flash consistent with Gray shooting the K9. LE then returned fire (because Gray was shooting in their direction), hitting Gray but not incapacitating him. Gray continued to flee. The court rejected Jenkins’ argument, holding that, “Who shot [K9] does not matter; all that matters is that the officers had probable cause to believe that Gray posed a risk of serious danger to them or other people. Even if Gray’s intended target was the dog, it is undisputed that his aim was in the general direction of the pursuing police officers.” “When a person aims a weapon in a police officer’s direction, that officer has an objectively reasonable basis for believing that the person poses a significant risk of serious injury or death.”

Jenkins also claimed since Gray was shot in the back, this showed that LE’s actions were unconstitutional. However, “Gray was armed and dangerous, as made apparent by the fact that he fired his gun toward the officers while actively attempting to evade arrest. The fact that Gray’s back faced the officers when they shot him does not detract from the legitimacy and immediacy of the threat that he posed at that split second.”

The court then moved on to the second encounter, holding that even if Gray did not fire his gun for a second time, he threatened to do so by raising the gun towards LE and therefore the second instance of shooting was justifiable. (There were other specific allegations by Jenkins, all of which were dismissed by the court. They are not relevant to the discussion here).

Jenkins then tried a Monell liability argument. While the agency’s use of force policy did not specifically prohibit shooting a suspect who had discarded his weapon, the policy did state the following; “It is the policy of this agency that officers use only an objective and reasonable amount of force necessary to overcome the amount of resistance offered by an individual. Lethal force may be used when the life of a citizen or officer is in jeopardy; or to affect an arrest of a person when all other reasonable means of apprehension have been exhausted or do not exist and there is substantial risk that the person to be apprehended may cause death or serious bodily harm if he/she escapes or if the apprehension is delayed, which outweighs the risks involved in the use of lethal force.” The court noted that Jenkins had cited no law in support of this position and could not find one. Therefore, the court held that the agency’s use of force policy was not unconstitutional and dismissed the Monell claim.

State claims were also dismissed because Jenkins could not prove LE acted with malice or bad faith. Even though Jenkins claimed it was grossly negligent to release the K9, she “‘identified no statute, contractual relationship, or common-law principle that imposes a duty running from . . . police officers to private citizens’ regarding the proper use of canines — particularly against individuals fleeing from police who were seen brandishing firearms in public.”

Note: This is an interesting read from the standpoint of getting an up close view of how “experts” or hired guns can take evidence and twist it to their advantage. Because there were several officers on scene whose testimony for the most part was consistent with each other, there were 2 civilians on scene who also testified similarly to LE and there was surveillance footage, the court had enough to find at this early stage that, as a matter of law, LE were entitled to a summary judgment on all issues. For those agencies who do not have body cameras or at least dash cameras, this case demonstrates the usefulness of having a camera recording of the incident, because a court will generally find that evidence to carry the most weight. Here, it was a surveillance camera but without it, this would have been a harder fight.

Minor Child v. City of Gary (Michigan 2021) 2021 U.S. Dist. LEXIS 179601
Excessive Force; K9 Warning; Monell Liability

Minor was an occupant in a stolen car and when LE tried to pull them over, minor fled on foot and hid in a garage for about 10 to 15 minutes until a K9 appeared and bit him on the face and ear. Minor rolled over, screaming and the dog bit his leg. Two LE showed up and tased and kicked him. The K9 was then released. Minor claimed he did not know the vehicle was stolen and didn’t know why LE tried to stop the car or why they were chasing him.

Handler was one of the police officers who joined the pursuit of the stolen vehicle occupied by Minor. Handler had received information that the car was going at a high rate of speed and that occupants were shooting guns out of the window. Handler was accompanied by a K9. The evidence established that this K9 team trained with the canine unit on a volunteer basis for six months or more before being assigned a canine, completed a six-week canine course, and is continuously required to train with his canine sixteen hours per month. The pursuit lasted for several minutes. The stolen car came to a stop, and both occupants fled on foot. Handler arrived in the area where the occupants were running, and deployed K9 for an area search. K9 led handler to an abandoned garage. Handler saw Minor’s shoes underneath the door and gave two or three K9 warnings. There was no response, so K9 was ordered to find and apprehend. K9 made two sweeps of the garage and ultimately grabbed Minor by the leg. (Minor had injuries to his ear so the K9 made contact there as well but it is not well explained in the LE version of events).

Handler, along with other LE, entered the garage, and Minor yelled, “I’m only 16.” According to LE, Minor was on the ground at this point, and handler ordered Minor to put his hands behind his back, so K9 could be removed. Defendants claim that after Minor placed his hands behind his back, handler grabbed K9 and commanded him to release; K9 complied and Minor was then handcuffed. LE denies tasing and/or kicking Minor. Minor was treated for injuries to his ear and leg.

Because plaintiff alleges two distinct uses of force, first the deployment of the K9 and then the subsequent use of a taser and kicking, the court addressed the potential merits of a Fourth Amendment claim and the application of the doctrine of qualified immunity with respect to each alleged use of force in turn. The court used the Graham factors this determination.

The first instance was when handler released K9 into the garage. The parties disagree as to whether there were K9 warnings before deployment and the court held this was a material fact so summary judgement was not warranted. “Once Minor was no longer actively fleeing, but merely passively hiding in the garage, . . . there was ample opportunity for a warning to be issued with potential meaningful effect. Whether that warning occurred and the overall reasonableness of the use of a police dog in this context remains to be determined.”

The other instance was the tasering and kicking, which I will not review here.

In Minor’s claim Monell claim against the agency, he claimed that the municipality failed to train its officers with respect to the use of K9s. The court was required to determine whether there were genuine issues of fact as to whether the need for more training was so obvious and the alleged lack of training was so likely to result in the violation of constitutional rights, that deliberate indifference can be attributed to municipal policymakers. The court found that it was not disputed that handler trained with the K9 unit on a volunteer basis for six months or more before being assigned a K9, completed a six-week canine course, and is continuously required to train with his canine sixteen hours per month. Therefore, this is not a case where a reasonable juror could conclude that the training in this case was so obviously absent and overlooked that deliberate indifference could be attributed to those making policies at the municipal level based on this incident alone, without any evidence of a pattern of constitutional violations. In addition, Minor did not present any evidence or argument regarding how the training might have been deficient or how this deficiency could have caused a constitutional injury. The Monell claim was dismissed.

Note: Consistent and accurate training and record-keeping allowed for the court to determine that the Monell claims were not viable and that that issue was not going to be a part of on-going litigation, which is great.

State v. Allen (Oregon 2021) 2021 Ore. App. LEXIS 1282
Traffic Stop; Prolonged Detention; Sniff Requires Reasonable Suspicion

Allen was a passenger in a vehicle that had been seen leaving a residence that was under surveillance by the narcotics team. Uniformed LE observed this vehicle fail to signal as required under Oregon law and pulled the vehicle over. After contacting the driver and obtaining the appropriate documents, LE was returning to his patrol car to process the citation, LE told all occupants to stay in the car for their safety. Within two minutes of the stop, K9 team arrived and alerted to the vehicle. LE then shifted to a drug investigation and discovered heroin and methamphetamine.

Allen claimed that bringing a K9 to a traffic stop was not reasonably related to the traffic violation and asserted that this was not a traffic stop, but a drug investigation from the beginning for which LE lacked probable cause or an independent constitutional justification for the search.

The court first held that all occupants, including Allen, were detained by LE at the time LE instructed them to stay in the vehicle. The court then concluded that this detention (seizure) was unlawful because “absent an independent constitutional justification, a drug-detecting dog * * * generally cannot, consistent with Article I, section 9, sniff a car for drugs during a traffic stop.” State v. Soto-Navarro (2021) 309 Ore. App. 218, 223; see also State v. Escudero (2021) 311 Ore. App. 170, 173 (concluding that the deployment of a drug dog eight seconds into a traffic stop was an unconstitutional investigative action, because the officer had not “developed any independent constitutional justification to investigate anything beyond the traffic infraction”).

Note: Oregon is definitely an outlier on this issue. Federal law and most states allow for a sniff anywhere and anytime as long as K9 team is legally present (permission, public property, etc). Oregon, though, has decided this year that a K9 can only perform a sniff if there is independent constitutional justification (that is, you have at least reasonable suspicion of the crimes for which the K9 is sniffing). This court did not limit this issue to traffic stops that are about drug activity. Crazy, iut this is the law in Oregon at this point, and If all the Oregon appellate courts agree, this will remain the law in Oregon. However, in this case, the court did not address what was known about the narcotics team’s investigation that targeted this vehicle. LE could very well have had the appropriate independent evidence, but it wasn’t brought out very well. Once again, using all theories of liability is the best practice.

State v. Gamble (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 2222
Traffic Stop; Prolonged Detention

Gamble was known to LE as he was the target of an investigation of drug trafficking. LE also knew that his license was suspended as two weeks earlier, LE wrote him a ticket for that suspended license. When Gamble was spotted driving, LE checked his license and confirmed it was still suspended. In addition, part of his license plate was obscured, so LE stopped Gamble. Gamble admitted he was suspended and gave LE registration and insurance cards. However, he was overly nervous and began to reach into the center console several times as if he was attempting to conceal contraband or a weapon. At this point, a K9 team arrived on scene. LE went to his patrol vehicle and began processing the information relevant to the traffic stop. LE learned that Gamble had an extensive history of narcotics arrests. LE asked Gamble to exit so he could talk with him further. As Gamble got out, LE saw a white pill bottle in the door pocket. LE asked for written consent to search the vehicle. Gamble refused to consent to a search so the K9 team sniffed the car and alerted. LE then requested a tow to impound the vehicle until a search warrant could be obtained. Once the SW was obtained, contraband was found.

The court first found that both bases (obstructed plate and knowledge of the suspended license) for the stop were valid and therefore the stop were constitutional.

The court further held that based on the Gamble’s overt nervousness, fumbling with his documents, and panicked breathing as well as his continued reaching for the console and then the observation of the pill bottle in the door pocket in conjunction with the fact that LE knew that Gamble was a target of investigation involving narcotics and that Gamble had an extensive narcotics criminal history gave LE enough reasonable suspicion to asked for consent to search the car and for LE to request a K9 to respond.

Note: There were other issues on appeal but they were not relevant to our purposes here. No new ground revealed here, but an good example of a thorough record being made in the trial court which made the appellate court’s job much easier.

State v. Warren (Idaho 2021) 2021 Ida. LEXIS 149
Traffic Stop; Detention of Passenger; Prolonged Detention

Traffic stop for registration issues. The male driver and female passenger were married. Driver was the subject of a domestic restraining order prohibiting him from contact with passenger. In addition, there were three other orders against passenger with various parties listed as the protected persons. At this point, the traffic investigation was abandoned and an investigation into whether the driver was in violation of the restraining order against him. LE separated the parties by asking passenger to get out of the vehicle while dispatch was in the process of confirming the restraining order. She was asked about bulges in her pocket and she produced a lighter, some money and two syringes wrapped in tissue. Handler, on scene, then ran his K9 around the car and the K9 alerted. A search of the vehicle revealed some contraband. While the car was being searched, dispatch returned with the information that the restraining order was still active and driver could have no contact with passenger. Driver was arrested. Passenger was arrested for the contraband found on her person (a more thorough search of her person revealed more contraband).

Passenger moved to suppress the evidence from the searches of the car and her person, claiming the traffic stop was unlawfully extended.

The appellate court held that the district court erred when it determined that the officer could not continue to detain a vehicle’s passenger upon reasonable suspicion that a stopped driver may have violated a civil protection order. The physical risk to the officers remained the same or actually increased as reasonable suspicion of a more serious crime arose during the lawful traffic stop, justifying the officers in continuing to control the scene—including detaining defendant, the passenger—as they investigated further the civil protection order against the driver.

The appellate court also held that the passenger was lawfully detained as a passenger in a vehicle that violated registration requirements. At that point, when LE learned of the restraining order, the stop was lawfully extended to include investigation of a violation of that order. However, passenger complained that once LE abandoned the traffic stop investigation, and started the restraining order investigation, there was no longer any reason to detain her and therefore any evidence obtained in that second investigation must be suppressed. The appellate court held this case fell squarely within the precedent case of Arizona v. Johnson (2008) 555 U.S. 323 because the Johnson court held that LE need to control all parties in a traffic stop because of the potential for exposing other criminal activity, which might lead to danger. Here, LE learned that both occupants had restraining orders from which LE could infer arose from violence or threats. The physical threat did not dissipate from the shift from the traffic investigation to the restraining order investigation; in fact, it could be argued that the danger to LE increased. The safety justifications for allowing LE to maintain control of the scene by detaining passengers do not disappear merely because LE conducting a traffic stop develops reasonable suspicion of another crime.

Passenger then complained that the K9 sniff unlawfully extended the stop because LE was only authorized by law to detain for the traffic investigation and since LE abandoned that investigation, she was unlawfully detained. The court rejected that analysis, holding that it would cause nonsensical results, such as affording greater protection to an officer who stops a vehicle and writes a traffic citation, than for an officer who stops a vehicle and later discovers evidence of a more serious crime.

Note: I am not sure why the government agreed with the argument that the traffic stop was abandoned. It may have been that LE testified that way and if they did, then the government had to go with that. I would have argued, though, that even though LE believed they had abandoned the traffic stop investigation, it was still on-going in a parallel fashion while they investigated the restraining order issues. We don’t know whether, if the restraining order information came back in the occupants favor, LE would have written a citation for the registration violation. If that question was still out there, it seems to me that the traffic investigation had not been abandoned. Again, all avenues of admissibility need to be presented and argued in the trial court to either get the evidence in or preserve the issue on appeal.

Sanders v. City of Pittsburg (California 2021) 2021 U.S. App. LEXIS 28822
Excessive Force; Heck Doctrine

After being spotted in a stolen car, Sanders fled from LE, first in the vehicle and then on foot. LE tackled him and in the scuffle caused by Sanders trying to get loose, handler commanded his K9 to bite. The K9 bit his leg and once Sanders was subdued, the K9 was released from the bite. Sanders was charged with, among other counts, resisting arrest under California Penal Code § 148(a)(1), which prohibits resisting, delaying or obstructing a police officer during the discharge of his duties. Sanders pleaded no contest to all the charges against him and stipulated that the factual basis for his plea was based on the preliminary hearing transcript. This factual basis was based on multiple acts of resisting arrest, including his struggle with officers when the K9 bit him.

The appellate court applied the Heck Doctrine to this case. Under Heck, a civil suit based on constitutional issues must be dismissed if “a judgment in favor of the plaintiff (Sanders in this case) would necessarily imply the invalidity of his conviction or sentence…” Thus, Heck bars a plaintiff’s action if it would negate an element of the offense or allege facts inconsistent with Sanders’ conviction. By preventing collateral attacks on convictions by way of civil actions, the Heck bar furthers the principles of finality and consistency.

Note: The reason why the court held that the Heck Doctrine barred this excessive force case was because there was a full factual basis of Sanders’ behavior in the preliminary hearing transcript. This is based on the holding in Yount v. Sacramento (2008) 43 Cal. 4th 885) which stated, “[T]he factual basis of a § 148(a)(1) conviction encompassing multiple acts is indivisible for purposes of avoiding a Heck bar” when the conviction is based on the entire episode of resisting. Prior to taking a plea in this type of case, the government should make sure that whatever factual basis is stated for the violation of law encompasses ALL the behavior of the defendant so as to make sure that there is no way to evade the Heck Doctrine by claiming the unpled behavior is the basis for the civil suit. Best practice is to make sure the record already has a full factual basis (such as in the PX transcript) or that a full, written factual basis is submitted by the government covers all behavior. LE can assist in this endeavor by making sure there is a complete description of the arrestee’s behavior in your report so the government can crib off of it and recite it to the court or mark it and enter it into the record in court.

State v. Shimer (Kansas 2021) 2021 Kan. App. Unpub. LEXIS 573
Traffic Stop; Prolonged Detention; Reliability Foundation

LE stopped a rental vehicle for lane violations. Shimer was the driver and both occupants were from South Carolina. During the stop, a K9 alerted to the vehicle. The vehicle was searched and contraband was found.

Shimer claimed: (1) the traffic stop was not supported by reasonable suspicion; (2) the traffic stop was improperly extended beyond its original purpose; and (3) the drug sniff was not reliable.
LE saw a vehicle travelling in the opposite direction and believed it was travelling in the left lane without legal justification. LE turned around and caught up with the car which was now travelling in the right lane. It took 2 minutes and 3 miles to catch up to the vehicle. After gathering the appropriate documents, Shimer was directed to get out and have a seat in the patrol car. Shimer asked if he was being detained and when told he was being detained for the traffic violation, he refused. LE allowed that. LE also asked about their travels, etc. and the answers from passenger and driver were inconsistent with each other. In addition, they were extremely nervous with physical manifestations of this; shaking, pulses pounding, etc. The car had been rented in Seattle to be returned in South Carolina and was encountered by LE on a route that was not the most direct one between these two locations.

LE started writing the citation for the lane violation and made a phone call to an intelligence center that had more information than his local dispatcher. As he waited for a response, he decided to have his K9 sniff the vehicle. The K9 alerted within a minute (this was about 8 minutes into the stop). A car search revealed contraband.

In addition to LE who stopped the vehicle who testified to the training and experience of the K9, the K9 trainer testified to the training and certification of the K9 team. There was a defense K9 expert as well who alleged that a) K9’s records of training and performance were insufficient to allow an independent party to perform an analysis (whatever that means); b) K9 was not well trained; and c) handler improperly cued the K9 (although he could not point to anything in the video to support his claim). The government got this defense expert to admit he had been found to be a non-credible witness in several other courts; that in the 111 cases in which he testified about K9s, he always testified that the K9 sniff was not reliable by testifying about the same 4 factors, similarly to how he testified in this case: (1) the training standards for the drug detection dog were not sufficient; (2) the dogs were not properly trained; (3) the handlers were not properly trained; and (4) the handlers cued the dogs to alert.

The appellate court first addressed whether the traffic stop itself was lawful. Since both LE and the dash cam indicated that Shimer committed the lane violation alleged, the court found the stop lawful. The court moved on to the second claim, that the stop was impermissibly extended, finding that LE/handler was multi-tasking and the sniff took place while he was waiting for additional information from the information center. Because the evidence showed that the dispatch information came back after the information center information, there was no unlawful prolongation of the stop. Finally, the court held that the one question LE asked of the occupants about their travel was not a prolongation either.

Finally, the court addressed the reliability of the K9. The court held that the foundational testimony about the K9’s training, certification and experience were sufficient to find that the K9 was reliable. The court rejected the testimony of the defense expert, finding it unreliable. The court also found there was no evidence of cueing when reviewing the dash cam footage.

There were other issues on appeal that I will not address here as they are not relevant to purpose of the Update.

Note: Other jurisdictions have held that a call to another information source that is not regularly a part of a traffic investigation can run afoul of the Rodriguez limits on the investigation of traffic stops. Here, the facts indicated that not only did the phone call to the information center take place while waiting for dispatch, but the K9 sniff occurred during this waiting period as well, eliminating that argument. But it’s important to note that argument is out there.

United States v. Castaneda (Texas 2021) 2021 U.S. Dist. LEXIS 169613
Traffic Stop; Sniff Inside Vehicle; Collective Knowledge Doctrine

LE was investigating a certain house for drug trafficking based on reports of consistent activity. The house was put under surveillance by LE. They saw Castaneda and a passenger pull up to the house and enter the residence. Castaneda was carrying a small cooler. Less than 10 minutes later, they both exited still in possession of the small cooler and left the residence in the car. LE followed the car and requested a uniform pull the car over because the temporary license was flapping in the wind (apparently impairing the ability to read it). Castaneda was asked for his license and he said it was invalid. After getting his name, LE asked where was he coming from. He had a changing story, and LE knew they were lies from their previous surveillance. Both Castaneda and the passenger were overly nervous. LE returned to his vehicle to start the information check and begin writing the citation. While he was communicating with dispatch, LE received notice that a K9 team was on its way. While this was happening, a second LE conversed with Castaneda who denied there was anything illegal in the car. He denied consent to search and was uncooperative and argumentative. He was also repeatedly reaching into his pockets. LE told him to stop and since he did not desist, LE ordered Castaneda out of the vehicle. Meanwhile, LE had obtained the information he needed from dispatch and came back to the occupants to ask questions to fill out a field interview, which was required by his employer. LE then engaged occupants in small talk and told them why he stopped them. The passenger asked what they were waiting for and LE responded, “We are waiting for the dog to get here.” A few minutes later (about 13.5 minutes into the stop), LE started writing the citation. He had to call dispatch again because he didn’t write down pertinent information during the first call. He completed all the necessary paperwork about 21.5 minutes into the stop. Prior to getting out of his car to serve the paperwork, the K9 team had arrived and was sniffing the car. The K9 alerted to the vehicle and during its second pass, the K9 climbed onto the windowsill, stuck her nose through the window, sniffed, and alerted. This was about 23 minutes into the stop.

The court initially held that LE had additional reasonable suspicion of drug crimes at the time LE completed his first call to dispatch. First, LE knew that other officers were conducting surveillance for narcotics trafficking when they contacted him requesting that he stop Castaneda. LE knew that the car had a temporary license plate that was not affixed correctly. Additionally, Castaneda admitted that he did not have a valid driver’s license and gave inconsistent stories regarding where he was coming from. During this interaction, LE knew that Castaneda lied with respect to where he was coming from. LE also noticed that Castaneda was uncharacteristically nervous because he avoided eye contact, was jittery, and could not sit still. Furthermore, after completing his call with dispatch, LE knew that Castaneda’s driver’s license had been suspended due to his failure to complete a drug-education program. Finally, LE drew on his training and experience when concluding that he had a reasonable suspicion that Castaneda was committing a crime outside of his traffic violation. Considering all of these facts in their totality, the Court found that LE had, at the very least, a reasonable suspicion that Castaneda was engaged in drug trafficking when he completed his first call with dispatch. This allowed for an expansion of the investigation of the traffic violation to include a drug investigation.

These facts, combined with the officer’s 11 years of law-enforcement experience, provided reasonable suspicion early in the traffic stop of additional illegal activity. This additional reasonable suspicion justified the short delay before the K9 arrived. Second, the Court finds that the K9 alerted to the presence of narcotics before she put her nose through the car window. When the K9 alerted, officers had probable cause to search the car, so there was no Fourth Amendment violation resulting from the K9 briefly putting her nose through the window after the alert. Moreover, the K9 officer testified that he did not cue the K9 to stick her nose through the window, and the K9’s additional activity after the alert was to source the possible location of the narcotics and not to obtain a new or additional alert. Thus, an unlawful search of Castaneda’s car did not occur when the K9 put her nose through the car window and that officers had independent, lawfully obtained probable cause to search the car before that occurrence. In addition, the knowledge of the surveilling officers was imputed to LE stopping the vehicle under the collective knowledge doctrine.

Note: The court also found that even if LE extended the time of the traffic stop, he did so by no more than one and a half to two minutes. Furthermore, because the total length of time was reasonable, the Court finds that Castaneda’s stop and any delay were minimal and, therefore, reasonable. This is not what Rodriquez says, but it is compatible with common sense. However, I would not rely on that finding in defending a prolonged detention argument.

The cueing issue seems to be cropping up more and more. When training and/or working with a newer K9, you may direct the sniff by using gestures with your hands which the defense may argue is “cueing” or directing the K9 to alert. If you are still in this stage, make sure you have your trainer or supervisor available to testify about this procedure. As you gain more experience, the best practice is to reduce the amount of physical gestures to the point where the K9 searches on his or her own without directional gestures.

United States v. McKenzie (2nd Cir. 2021) 2021 U.S. App. LEXIS 27087
Sniff of Storage Unit; Curtilage/Standing

LE were investigating Riggins and saw her pick up 11 boxes from UPS and take them to several storage units in a storage business. They saw her put several boxes into unit 296. After she left, LE called for a K9 unit and the K9 alerted on Unit 296. A search warrant was served on the unit and about 100 pounds of marijuana were seized.

Later that afternoon, LE was surveilling Unit 296 when McKenzie drove up, look in Unit 296, go to the office to pay rent and then drive away. The vehicle drove to a residence, parked on the street and LE contacted the driver, McKenzie. McKenzie offered ID in the name of Darrin Clark, the name in which Unit 296 was rented. McKenzie then dropped the keys to the vehicle in the engine block and walked away, leaving the scene in a different vehicle. A K9 was called to the scene and it alerted on McKenzie’s vehicle. In addition, LE could see through the windows that the vehicle contained boxes similar to the ones Riggins had placed in Unit 296. Finally, Darrin Clark’s residence was searched via search warrant (which included the above information), and McKenzie’s fingerprints were found.

A motion to suppress was filed. McKenzie claimed that LE conducted a search that constituted a Fourth Amendment violation when LE entered the storage business with the K9, claiming he had a property interest in more than just Unit 296. However, the court held first that McKenzie had not shown that the officers violated anyone’s property rights when they entered the storage facility. The record indicated that Mabey’s management cooperated with the investigation. McKenzie offered no evidence suggesting that the officers trespassed onto the property. Second, even if McKenzie had offered such evidence, the objection belonged to the business, not McKenzie. McKenzie had no authority to exclude people from business grounds. He only rented storage units within the facility. Because the officers did not infringe on McKenzie’s interests by entering the business, and did not physically intrude on Unit 296 prior to obtaining a warrant, McKenzie’s objection under the baseline property rights test came up short. Finally, the court held that even accepting that McKenzie had a reasonable expectation of privacy in the internal area of Unit 296, he did not have a reasonable expectation of privacy in the air outside of Unit 296. LE did not transgress McKenzie’s reasonable expectation of privacy in his own storage locker by using their sense of smell to identify an odor present outside the unit and thus to identify which unit contained the contraband. The court held this applied to K9s as well, stating that as long as the observing person or the sniffing canine are legally present at their vantage points when their respective senses are aroused by obviously incriminating evidence, a search within the meaning of the Fourth Amendment has not occurred.

The court also held that the K9 alert constituted probable cause to issue a search warrant, at least in addition to the rest of the investigation.

Note: No real new law here, but a caution. The court found that defendant (McKenzie) had not produced evidence that LE was impermissibly on the grounds of the storage business and inferred LE had permission based on the actions of the business who cooperated with information and access. Since this is a key factor of whether the sniff will pass Fourth Amendment standards, it’s a bit concerning that it appeared the government did not put on direct evidence of obtaining permission from the storage business. The defense has no burden to prove anything and to leave this important issue to the court to figure it out from circumstantial evidence seems to me to be sailing too close to the wind. Best practice is to note in your report the permission you obtained (if relevant) to be in the location where your K9 alerted.

United States v. Moustrouphis (Maine 2021) 2021 U.S. Dist. LEXIS 171139
Traffic Stop; Prolonged Detention

LE stopped Moustrouphis for not wearing a seat belt. LE recognized him from the day before and also because they attended school together. The car was a rental and although Moustrouphis was relaxed at the beginning of the stop, he hinked up when drugs were mentioned. The court commented that it could see the change of demeanor on dash cam. LE also ran passenger Foster and found that Foster had a drug history as well. At that point, 4 minutes into the stop, LE called for a K9 team.

At this point, LE’s traffic investigation had concluded and he gave documents back to Moustrouphis. LE testified that, at this point, he had “totally switched gears”; that he was now focused on investigating drug activity rather than a traffic violation; and that he intended to detain the Defendant.

While waiting for the K-9 to arrive, LE continued the drug investigation by removing Moustrouphis from the car, informed him that he had summoned the K9 team, and asked Moustrouphis whether he had anything in the car. Moustrouphis denied that there was anything in the car, and LE asked him to stand on the sidewalk against a wall while he went back to the vehicle to talk to the passenger. As LE was standing outside the passenger window, he noticed a large knife in the center console of the vehicle. He immediately asked the passenger to exit the vehicle. LE conducted a pat down of Mr. Foster (with his consent) and found two cell phones. Officer Forbes did the same to Moustrouphis (again with consent) and found a large amount of cash in various denominations and a presumed meth pipe. LE concluded that, based on his training and experience, the cell phones and cash were indicative of drug activity. In addition, the vehicle was a rental, Moustrouphis was overly nervous, becoming visibly fidgety when asked about drugs (on the video supplied).

Approximately nineteen minutes into the stop, the K-9 team arrived. By this point, LE believed that he had probable cause to search the vehicle and he communicated that to the handler. Close to six minutes later, K9 entered the car. After a few minutes of sniffing, K9 alerted in the area of the center console and the backseat, and LE searched the car, where they found two large bags of powder later determined to be methamphetamine. They also found more cash and a digital scale. LE arrested both occupants.

The court first addressed the reason for the traffic stop and found that the seat belt violation was sufficient. However, the court held that about seven minutes into the stop, LE concluded the traffic investigation as LE had run checks on the occupants and decided not to issue a ticket. The court then had to analyze the state of the evidence at that time to determine if the additional time the vehicle and its occupants were detained was lawful. Those factors were: (1) Moustrouphis was stopped in Bayside, which has a higher crime rate than other areas in Portland; (2) Moustrouphis did not live in Bayside; (3) Moustrouphis had a prior drug history; (4) passenger had a drug history; (5) Moustrouphis had been sleeping in his car the day before the stop; (6) Moustrouphis was driving a rental car; and (7) Moustrouphis was acting nervous. While the appellate court addressed these factors individually in opposition of Supreme Court precedent, the court acknowledged that it must analyze the evidence in its totality. The court concluded that it is not reasonable to suspect that a Westbrook resident driving a rental car through Bayside during dinner hours is engaging in drug activity, even if that person has previously been convicted for criminal activity involving drugs and is showing some signs of nervousness.

The court did not consider any evidence found after the traffic stop was concluded because the stop had already reached its constitutional limit, and any evidence discovered after minute seven was unlawfully obtained.

Note: The criticism I have of this case is it appears that the court decided that there was not reasonable suspicion to investigate a drug crime based on its analysis of the individual factors, even though it pays lip service to the totality of the circumstances requirement. There’s not much we can do about that except get more evidence of the additional crime prior to abandoning the traffic investigation. Best practice is to run the investigations in a parallel manner until that happens. But sometimes the facts aren’t on our side.

United States v. Toran (Ohio 2021) 2021 U.S. Dist. LEXIS 171336
Odor of Marijuana as Probable Cause

During a traffic stop for license plate violation (by a uniform at the direction of an investigating narcotics officer), LE smelled an overwhelming odor of marijuana coming from the vehicle as he approached the vehicle. Once LE smelled marijuana omitting from Toran’s vehicle, he had probable cause to believe that drugs would be found inside. This therefore turned the lawful Terry stop into a lawful search under the automobile exception to the warrant requirement.

Note: This case was a federal one and marijuana has not been legalized by the federal government.

I.G. v. State (Indiana 2021) 2021 Ind. App. LEXIS 281
Odor of Marijuana as Probable Cause

A juvenile was searched based on the odor of marijuana and a gun was found. The government asserted that the search was based on probable cause, but there was no evidence that marijuana existed and there were three people in the car and there was no evidence that the odor was coming from the juvenile or that the odor was strong. Therefore, the search of the juvenile was not a valid search incident to arrest since the odor of burnt and raw marijuana was not enough to establish probable cause to arrest him for possessing marijuana when there were three people in the car, and no evidence was presented that the odor of marijuana was strong or came from the juvenile’s person.

Note: Bringing this case was pushing the boundaries of what evidence was needed to establish probable cause and so now we have this case that parses out what kind of evidence will be enough to justify an arrest and a search. Best practice is to get everyone out, search the car (if you are in a jurisdiction where marijuana is still illegal) and then determine if you have enough information to arrest and search the person. Remember that persons have a higher expectation of privacy than a vehicle.

Utah v. Ruiz (Utah 2021) 2021 UT App 94
Entry into Vehicle by K9

LE received a report of a man brandishing a firearm after getting out of a car which the responding LE recognized as having seen it in that vicinity before. LE saw the vehicle in the area, which attempted to evade police by quickly leaving the area. The car pulled into a parking lot and LE lit it up and requested back up. The driver, Ruiz, got out of the car and LE asked him if he had any weapons. Ruiz allowed a pat down search to confirm he had no weapons. However, this location was recognized by LE as a known gang house and LE suspected that based on all the information they had, the car contained a firearm. Consent to search was denied as Ruiz said the car belonged to his father.

Meanwhile, back up arrived in the form of a K9 team. Three windows were left in the down position by Ruiz. As the K9 was sniffing the exterior of the vehicle, he paused by the driver’s window, changed his behavior, dropped to all fours, and spontaneously jumped into the car through the halfway-open window. His handler was unable to restrain him, even though he was concerned that the K9 could hurt himself. After about thirty seconds, the K9 stopped and stared at the center console, indicating that he had located the source of the contraband odor. The K9 then jumped out the same window. LE searched the car and found rolling papers in the center console and, more significantly, a loaded handgun under the driver seat.

Ruiz filed a motion to suppress claiming that the K9 entry into his car was a violation of the Fourth Amendment.

The appellate court found that federal appellate courts have held that officers may not encourage or facilitate a K-9’s entry into a vehicle, not that they are required to actively prevent the K-9’s entry. Specifically, this handler did not have the opportunity to prevent K9 from jumping into the car; K9 made his leap without direction, with no discernable warning, and to handler’s surprise. Finally, handler had good reason for not attempting to restrain K9 when he jumped. The court stated, “It seems obvious that K9 could have been hurt if handler attempted to yank him out of the vehicle or even restrain him.”

Ruiz then claimed that K9’s training taught K9 to jump into a vehicle. However, the handler testified that the K9 is trained to follow his nose and the jump through the open window was instinctual and clearly not assisted or encouraged by the handler.

Note: This case had some really good descriptions of this K9’s alert behaviors and indication behaviors. Best practice is to have a canned paragraph that fully describes your K9’s behaviors so you have a foundation from which you can testify smoothly about the specifics of the sniff in question. If your K9 varied from his regular behaviors, be sure to note it in your report and the reasons why you think he changed behaviors.

United States v. Nickelson (West Virginia) 2021 U.S. Dist. LEXIS 167520
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause

Traffic stop for making an abrupt lane change without signaling and exited the freeway. This vehicle also had a tracker and was the target of an on-going drug investigation. LE approached and made contact with the driver, Nickelson. LE asked Nickelson to come back to his cruiser while he prepared a warning citation. Before Nickelson got into the cruiser, LE Terry frisked him for weapons. Once both were in the police vehicle, LE ran a driver’s license and registration check and checked to see whether there were any outstanding warrants for Defendant. The check came back clean. LE completed the warning citation, and they exited the cruiser.

LE then asked for consent to search. This was denied. LE then asked a K9 team who was on scene to sniff the vehicle. During the free air sniff, the K9 jumped inside the vehicle and made a positive indication. LE searched the vehicle, found nothing and asked handler to deploy the K9 again. The K9 again gave a positive indication, this time in the specific vicinity of the driver’s side floorboard. A second search did not reveal any contraband other than a small amount of shake on the driver’s side floorboard. LE then searched the passenger and found contraband. LE then searched Nickelson. He was told to remove his shoes; he refused and tried to flee on foot. He was apprehended and heroin was found in his shoes.

The court first addressed the reason for the stop and found that the vehicle violation was sufficient. In addition, LE knew that Nickelson was involved in a drug trafficking investigation, knew that Nickelson had been involved in more than one drug transaction; he was traveling from Detroit, MI, a known source location for narcotics; he was traveling in a rental vehicle and rental vehicles are known to be used for drug trafficking activities; and a tracking device had been placed on Nickelson’s vehicle with authority from a judicial officer. Although innocent travelers may travel from Detroit, MI into West Virginia in a rental vehicle, these facts when taken in conjunction with the facts of the active drug investigation serve to eliminate a substantial portion of those innocent travelers. The court held that these factors amounted to reasonable suspicion to extend the investigation to include a drug investigation.

Note: Not sure why the stopping officer waited until he served the citation before requesting the K9 to sniff the car. I don’t know the full extent of the timing, but best practice would be to have the sniff happen simultaneously with the traffic investigation. That would have given the government two avenues of admissibility.

State v. Skates (Delaware 2021) 2021 Del. Super. LEXIS 581
Odor of Marijuana as Probable Cause; Plain View Doctrine

LE stopped Skates and his passenger for an equipment violation; no taillights or headlights were illuminated at 10:45 p.m. Driver had to open the front door to speak to LE because the window was broken. When he did that, LE smelled a strong and overwhelming odor of marijuana coming from the car and also saw in plain sight shake on the passenger’s shirt and on the passenger floorboard. Occupants were removed from the car and both admitted to possessing marijuana. The car was searched and a large amount of heroin along with a gun was found.

The initial stop was not challenged but the occupants claimed that the removal of them from the car and the subsequent searches were illegal. The court first stated that the occupants were removed from the car lawfully because there was an overwhelming odor of marijuana and evidence of possession of marijuana on the shirt and floorboard of the passenger. This was sufficient justification to get the occupants out of the car. Since they both then admitted to possessing marijuana, the search of their persons was justified.

The court then turned to the search of the vehicle. Initially, the court addressed the credibility of the LE. The testimony of the three officers was reliable and consistent with each other. Additionally, the officers followed proper police procedure. Between the three officers, they had over thirty years of experience investigating drug crimes. Their testimony that they were able to identify marijuana flakes on the floorboard and on the clothing of passenger and the smell coming of marijuana from the car was credible and supported by their experience. This testimony was clearly within the expertise of these three police officers who possessed over 30 years between them and have investigated hundreds of drug crimes. Therefore, the court found the testimony by LE credible.

The court then held that the evidence from the search of car did not have to be suppressed since LE smelled the overwhelming odor of marijuana after occupants exited the car, LE was told by occupants that each was in possession of marijuana, and LE saw what appeared to be marijuana on the floorboards.

Note: Marijuana is only legalized in Delaware for specific medical use. A small amount has been decriminalized, but otherwise, marijuana is still illegal in Delaware.

State v. Martinez (Texas 2021) 2021 Tex. App. LEXIS 7352
Traffic Stop; Prolonged Detention

LE spotted Martinez, a person whom LE had arrested within the past year for possession of marijuana. LE started following him and he failed to signal a turn, so LE stopped him. Martinez jumped out of his car and thanked LE for the earlier arrest because it had changed his life. LE was finally able to tell Martinez the purpose of the stop after several minutes went by and asked for the appropriate documents. Martinez retrieved them, still talking about how his arrest and subsequent probation was helping him.

Dispatch informed LE that the vehicle was registered to someone else. When asked, Martinez said he bought the vehicle but could not explain why it was still registered to the previous owner. LE told Martinez he was only going to give him a warning citation and asked for consent to search him and the vehicle. Consent was given LE found nothing on his person, but prior to searching the vehicle, Martinez withdrew consent. (Apparently, there was no 4th Amendment waiver pursuant to his grant of  probation). LE asked Martinez to roll a window down in the vehicle (why isn’t stated) and Martinez refused because he said LE was just trying to get a K9 to sniff it so LE could search. LE then requested a K9 respond. This was about 10 to 11 minutes after the stop. 38 minutes later, the closest K9 team arrived and alerted on the vehicle. Martinez admitted to smoking marijuana in the vehicle. The car was searched and marijuana was found.

The court initially found that the stop was justified. Then the court addressed whether LE had sufficient reasonable suspicion of other crime(s) to extend the stop for the arrival of the K9. The court found that LE had gathered several facts to support that reasonable suspicion: (1) Martinez had a recent criminal history; (2) Martinez drove away from the first gas station and drove directly to another, but parked the vehicle he had been driving next to a gas pump with the gas tank cap facing away from the pump; (3) when LE’s patrol unit stopped behind him, Martinez immediately exited the vehicle that he had been driving rather than waiting for LE to approach—conduct that LE stated was unusual and suspicious; (4) Martinez interrupted LE’s explanation of the basis for the traffic stop and began discussing a previous incident in which he had been arrested by LE—a common deflection tactic; (5) Martinez was not the registered owner of the vehicle that he had been driving and could not explain the discrepancy; (6) Martinez’ attitude toward LE shifted dramatically after the arrival of other officers—from jovial and cooperative to agitated and accusatory; (7) Martinez withdrew his consent for LE to search the vehicle that Martinez had been driving only after the arrival of the other officers; and (8) in response to LE’s request that Martinez roll down one of the vehicle’s windows, Martinez stated that if he complied with LE’s request he predicted that LE would call for a canine unit to sniff for drugs—an indicator to LE that Martinez expected that something illegal would be discovered if he had consented to a search of the vehicle. Viewed via the lens of totality of the circumstances, the appellate court found that LE had enough reasonable suspicion to extend the stop to wait for the K9 team. Finally, the court held that once the K9 alerted, LE had probable cause to search the vehicle.

Note: No real new ground here, but a good job by LE in describing Martinez’ odd behavior and what that meant to LE based on his training and experience.