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 (A caution here: some cases are unpublished (Unpub.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

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

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

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



The U.S. Department of Justice is urging a Florida federal court to throw out a suit challenging a DOJ rule that medical cannabis users don’t have Second Amendment rights, saying that even if the federal government is not currently spending money to prosecute federal laws against cannabis, the possession of it is still a federal crime.

Members of Congress debuted a bill to allow for interstate marijuana commerce.


Arkansans will get to decide whether to legalize recreational marijuana in the general election this November after the state Supreme Court reversed state officials’ decision not to certify the referendum.

The Oklahoma Supreme Court unanimously ruled that voters would get a chance to decide whether to legalize adult-use marijuana — but it would not happen at the general election in November.

A Missouri state lawmaker introduced a new proposal to legalize recreational marijuana.

New Jersey legislators advanced a bill to protect insurers who work with Garden State cannabis companies.

A Nevada state judge has determined that the Nevada Board of Pharmacy’s classification of marijuana as a Schedule I drug violated the state’s constitution, according to attorneys for the ACLU.

A Missouri state judge on Friday threw out an effort to remove a question from the November ballot seeking to legalize cannabis in the state, finding that there was no evidence that the person bringing the lawsuit was a resident of the state and thus couldn’t object to the question.


People v. Stribling (Illinois 2022) 2022 IL App (3d) 210098 – Traffic Stop; Odor of Marijuana as Probable Cause

Hembrook v. Seiber (Tennessee 2022) 2022 U.S. Dist. LEXIS 153992 – Traffic Stop; Odor of Marijuana as Probable Cause; False Arrest/Malicious Prosecution; Qualified Immunity

Riccio v. Town of Old Saybrook (Connecticut 2022) 2022 U.S. Dist. LEXIS 177042 – Excessive Force; Monell Claim

Rector v. Clifford (Arkansas 2022) 2022 U.S. Dist. LEXIS 177798 – Negligence; Failure to Train; Monell Claim

People v Acosta (New York 2022) 2022 N.Y. App. Div. LEXIS 5325 – Traffic Stop; Alert as Probable Cause

United States v. Turner (Alabama 2022) 2022 U.S. App. LEXIS 27280 (Unpub.) – Traffic Stop; Prolonged Detention; Alert as Probable Cause

Anderson v. On (Minnesota 2022) 2022 U.S. Dist. LEXIS 175626 – Excessive Force; Deadly Force as Applied to K9s

State v. Frasier (South Carolina 2022) 2022 S.C. LEXIS 138 – Traffic Stop; Prolonged Detention

United States v. Brown (Kentucky 2022) 2022 U.S. Dist. LEXIS 174724 – Traffic Stop; Prolonged Detention

McKinney v. City of Middletown (Connecticut) 2022 U.S. App. LEXIS 26863 – Excessive Force; Qualified Immunity

Ellis v. Pierce Cnty. (Washington 2022) 2022 U.S. Dist. LEXIS 173486 – Excessive Force; Monell Claim

Woodard v. Carol (Lousiana 2022) 2022 U.S. Dist. LEXIS 174287 – Excessive Force; Qualified Immunity

Hoyle v. City of Hernando (Mississippi 2022) 2022 U.S. Dist. LEXIS 174779 – Traffic Stop; Excessive Force; Heck Doctrine

Jennings v. Commonwealth (Kentucky 2022) 2022 Ky. App. Unpub. LEXIS 542 – Traffic Stop; Prolonged Detention;

United States v. Gama-Aguirre (Georgia 2022) 2022 U.S. Dist. LEXIS 170234 – Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

United States v. Helton (Kentucky) 2022 U.S. Dist. LEXIS 170630 – Traffic Stop; Reasonable Suspicion; Alert as Probable Cause

United States v. Pinkerton (Missouri 2022) 2022 U.S. Dist. LEXIS 170654 – Traffic Stop; Reasonable Suspicion; Prolonged Detention

$153,340.00 v. State ex rel. Rankin Cnty. Sheriff’s Off. (Mississippi 2022) 2022 Miss. App. LEXIS 321 – Traffic Stop; Currency Sniff; Alert as Probable Cause

United States v. Betts (Iowa 2022) 2022 U.S. Dist. LEXIS 166214 – Traffic Stop; Prolonged Detention; Reasonable Suspicion

Thurman v. District of Columbia (D.C. 2022) 2022 D.C. App. LEXIS 304 – Excessive Force; Negligence; Qualified Immunity; Sovereign Immunity

Lea v. Conrad (Kentucky 2022) 2022 U.S. Dist. LEXIS 166702 – Traffic Stop; Qualified Immunity; Reasonable Suspicion; Monell Claim

Lightfoot v. Bartley (Virginia 2022) 2022 U.S. Dist. LEXIS 166798 – Excessive Force

State v. Hicks (Louisiana 2022) 2022 La. App. Unpub. LEXIS 129 – Traffic Stop; Prolonged Detention; Reasonable Suspicion

Hypes v. Commonwealth (Virginia 2022) 2022 Va. App. LEXIS 419 (Unpub.) – Traffic Stop; Prolonged Detention

State v. Harvey (Ohio 2022) 2022-Ohio-3111 – Traffic Stop; Prolonged Detention

State v. Teague (North Carolina 2022) 2022-NCCOA-600 – Package Sniff; Standing; Hemp v. Marijuana; Alert as Probable Cause

Santiago v. Inch (Florida 2022) 2022 U.S. Dist. LEXIS 160516 – Alert as Probable Cause; Reliability Foundation; Qualified Immunity

Payne v. Swift (Kentucky 2022) 2022 Ky. App. Unpub. LEXIS 504 – Excessive Force; Qualified Immunity; Qualified Official Immunity; Negligence


People v. Stribling (Illinois 2022) 2022 IL App (3d) 210098
Traffic Stop; Odor of Marijuana as Probable Cause

In this case of a traffic stop, LE smelled the burnt odor of marijuana. This was the only basis for probable cause to search the car. Here, the government and Stribling stipulated to a short recitation of facts: (1) on May 9, 2020, the officer executed a traffic stop after the defendant disobeyed traffic laws; (2) the officer approached the defendant’s vehicle and smelled a strong odor of burnt cannabis emitting from inside the vehicle; (3) Stribling told the officer that someone had smoked inside the vehicle “a long time ago”; and (4) based on these observations and admissions, the officer searched the vehicle.

Illinois had legalized recreational use of marijuana at this point.

The appellate court held that the factual scenario, as presented in this stipulation, did not provide the officer with probable cause to search the vehicle. The smell of burnt cannabis, alone, coupled with the Stribling’s statement that someone (he did not state that it was himself) had smoked in the vehicle “a long time ago,” was not enough for “a reasonable officer to conclude—considering all of the surrounding circumstances, including the plausibility of the innocent explanation itself—that there was a ‘substantial chance of criminal activity.’ It was legal for Stribling to possess some cannabis. It was also legal for the defendant to have smoked cannabis and then drive, so long as the concentration in his blood or urine did not pass the threshold amount (the code prohibited a specific blood THC content for DUI). The evidence presented does not show that the officer had any concerns with the defendant’s blood concentration or any impaired driving. It was noted that the stipulation did not state which traffic violation the defendant committed. A traffic violation, in and of itself, is not necessarily indicative of impairment. There was no reason for the officer to think that Stribling was currently smoking cannabis in the car—there was no indication that there was smoke in the car, nor did the officer see any marijuana or drug paraphernalia, nor did Stribling’s demeanor show that he was hiding anything. Moreover, the smell of burnt cannabis may have lingered in Stribling’s car or on his clothing. Simply put, there was no evidence that would lead a reasonable officer to conclude that there was a substantial chance of criminal activity afoot.

Note: There weren’t a lot of stipulated facts for the court to consider when deciding this case. The minimal stipulated facts may have been a tactical error on the part of the government, but I wasn’t there. There may well have been good reasons to limit the facts sent up to the appellate court, not the least of which would be to obtain a narrow holding. Here, the court seems to be telegraphing that if there was something else, possibly anything else, they would view the case perhaps differently. Now there are conflicting appellate decisions in Illinois. It will be interesting to follow.

Hembrook v. Seiber (Tennessee 2022) 2022 U.S. Dist. LEXIS 153992
Traffic Stop; Odor of Marijuana as Probable Cause; False Arrest/Malicious Prosecution; Qualified Immunity

Hembrook and her son  operated an industrial hemp farm that is licensed under the name “Country Fried Pies.” Hembrook operated a certified kitchen that is also called “Country Fried Pies. LE saw Hembrook’s CRV stopped at an intersection. LE observed that Hembrook was not wearing her seatbelt. When Hembrook passed him a second time without her seatbelt on, LE initiated a traffic stop. LE testified in his deposition that, when he approached Hembrook’s vehicle, he smelled “a very strong odor of marijuana coming from the car”; he also noticed that Hembrook was sweating profusely and that her black shirt was covered in what LE described as “marijuana residue.”

Hembrook was “in a complete panic” and when asked about her travels, she gave conflicting answers. HeMbrook denied possession of marijuana. She consented to a search of the vehicle and LE called for back up. When back up arrived, he also could smell marijuana coming from the vehicle. A search of the car revealed 9 pounds of marijuana plants in garbage bags. She presented a hemp movement permit form but it appeared to have been whited out and altered. LE found white out and the pen used to alter the form in the vehicle. There was also a small amount of honey oil.

Hembrook’s statement that she was going to the dump was belied by the fact she was going the wrong way. LE could not find anything in any data base that confirmed the permit presented. Hembrook was arrested. However, the marijuana later tested as hemp (which was legal to possess) so charges were dismissed.

A second traffic stop occurred when the same LE pulled a car over for speeding. The car was very slow to stop and Hembrook, the driver, finally pulled in front of an auto repair business, got out and went into the open garage door. LE caught up with her, but she was belligerent and refused all orders by LE. Neighbors and others were attracted by all the screaming. LE finally arrested her for disorderly conduct, but she refused to get into the cruiser until the Chief of Police arrived. These charges were dismissed.

Hembrook then filed a complaint for false arrest and malicious prosecution based on both cases. She represented herself. LE filed a motion for summary judgment. LE argued that qualified immunity applied.

The appellate court addressed the first stop first. It was undisputed that Hembrook had approximately nine pounds of cannabis plants in her vehicle when LE pulled her over. LE believed, based on their training and experience, that the plants looked and smelled like marijuana. There was also no dispute that “it is impossible to visually distinguish whether a cannabis plant is either marijuana or hemp by looking at it—it has to be scientifically tested—and hemp and marijuana smell the same and are indistinguishable based upon smell alone.” These facts indicate that, based on the information available to him at the time of the arrest, LE had probable cause to believe that Hembrook was in possession of marijuana. In addition, Hembrook could not produce paperwork that would have officially identified the plants as hemp; in fact, Hembrook showed LE what looked to be a forged document. Combining all this with the lie about going to the dump, LE had probable cause to search the vehicle for marijuana.

As for the second stop, the appellate court held that Hembrook’s behavior gave LE probable cause to arrest her for the charges listed (disorderly conduct, etc.). The record evidence indicated that LE signaled for Hembrook to stop after observing her driving forty-seven miles per hour in a posted thirty-mile-per-hour zone without wearing her seatbelt. Hembrook continued driving past “several pull-offs” before “speeding real fast” into the parking lot of Mag’s Auto, jumping out of her car, and running into the garage. Based on these facts, LE carried his burden of demonstrating probable cause to conclude that Hembrook had “intentionally fle[d] or attempt[ed] to elude” him after he signaled “to bring the vehicle to a stop.”

Therefore, since Hembrook has not identified any “specific facts showing that there is a genuine issue for trial” as to the existence of probable cause arrests and subsequent criminal prosecutions. Therefore, LE was entitled to qualified immunity and the case was dismissed.

Note: This type of thing is becoming more and more common. Stay focused and remember to document everything. Body cams really help with dumpster fires such as this. Probable cause is the standard for arrest and search, so even though the cases were later dismissed, LE was still protected here under qualified immunity.

Riccio v. Town of Old Saybrook (Connecticut 2022) 2022 U.S. Dist. LEXIS 177042
Excessive Force; Monell Claim

Riccio claimed that after he crashed his car because of equipment failure, he was dazed and disoriented and began walking down the interstate searching for help. When Riccio got to an exit ramp, he encountered handler and K9. Riccio told handler that he was looking for help and that he was not threatening and had not committed a crime. Nevertheless, handler issued a “command to his K-9 unit, causing the K-9 unit to suddenly and aggressively attack Riccio, knocking him to the ground,” and then bit him in the thigh. At the same time, handler began beating Riccio with his fists. Another officer arrived and joined in. He was arrested and brought to medical care; he had an eye injury that still threatens his vision.

Riccio brought suit against handler, other LE involved and the Chief of Police for failure to train and supervise. To properly allege a failure to supervise claim, a plaintiff must prove (1) that defendants “should have known their inadequate supervision was so likely to result in the alleged deprivations so as constitute deliberate indifference”; that (2) there were “obvious and severe deficiencies in the . . . defendants’ supervision that reflect a purposeful rather than negligent course of action”; and (3) that there was “a causal relationship between the failure to supervise and the alleged deprivations to plaintiffs.”

The appellate court held that Riccio had not sufficiently alleged an official policy or custom through a failure by the Town of Old Saybrook to train or supervise its police officers. Riccio’s seven paragraphs alleging the Monell violation did no more than conclusorily list the elements of a Monell claim, and stated that each of them was present in the instant case. Riccio had alleged no facts, however, to support any of these conclusory allegations, and failed to identify any particular deficiencies in the training and supervision of the officers at issue. Thus, Riccio failed to adequately allege an official policy or custom evinced through a failure to train or supervise police officers, and, in turn, failed to adequately allege his Monell claim. The same was true of the claims against the Chief of Police; Riccio failed to allege that the Chief violated his constitutional rights by personal action or inaction. Therefore, the claim against the Chief was dismissed.

Note: This case only addressed the claims against the City and the Chief, not the handler. Often, LE will have different representation than the agency and its heads of department. This doesn’t mean that the handler will be held liable; it just means that the cases against specific defendants are on different tracks. Here, since there was no there there (Riccio could not put a coherent thought together on this case), it was fairly simple to just cut out the City and its administrators quickly which cuts the defense of the case down considerably by taking out the deep pocket defendant. 

Rector v. Clifford (Arkansas 2022) 2022 U.S. Dist. LEXIS 177798
Negligence; Failure to Train; Monell Claim

Rector brought this lawsuit against the Sherriff, LE and handler, all in their individual capacities, and the City. Rector seeks compensatory and punitive damages exceeding $2,000,000.000 for a dog bite Rector suffered from a dog named Silas.

According to Rector, Silas was trained by a private company owned by Smith to be a drug detection dog and was sold to the City but the parties disputed whether Silas was sold to be a drug detection dog.

Rector asserted that Smith heard that the City had purposely attempted to make Silas an apprehension dog using abusive tactics. The City asserted that its “canine handlers never attempted to make Silas mean, nor did they do anything to interfere with or corrupt Mr. Smith’s training.”

The parties dispute whether Silas was a vicious dog. The parties further dispute whether Smith warned City law enforcement that Silas was dangerous.

It is undisputed that Silas bit LE on the day LE picked up Silas from the City. According to LE and handler, the bite happened because LE had to reach into Silas’s mouth to adjust a muzzle and leash that had become mispositioned. County Defendants maintain that there is no evidence in the record that the bite caused any injury to LE.

The parties agree that the County Sheriff assigned the task of acquiring Silas to LE, but the extent to which the County Sheriff assigned the task of training Silas to LE is disputed. County Defendants take the position that substantial training had already occurred and was recertified by an officer with the Conway Police Department.

Plaintiffs assert that the County Sheriff knew that Silas had non-commanded bites with his handler before Rector was bitten by Silas. Separate defendants LE and handler agree with this assertion, while County Defendants deny that the County Sheriff knew that Silas had non-commanded bites with his handler before Ms. Rector was bitten. County Defendants also maintain that there is nothing in the record to indicate that any of the alleged bites caused any injury or were unproved and/or unjustified.

Plaintiffs assert that Silas had bitten his current and former handler on several occasions, as well as other members of the City Police Department and LE. All defendants dispute this assertion; they submit that the record testimony reflects that there had been only two instances where Silas had bitten his handlers. County Defendants also maintain that there is nothing in the record to indicate that any of the alleged bites caused any injury or were unproved and/or unjustified.

The parties dispute whether the City Police Department decided Silas was too dangerous to be a police dog in the City and, thereafter, transferred Silas to the County. According to the City, Silas was re-homed to the County, because the City’s K-9 program ended.

The parties do not dispute that the County veterinarian prescribed Trazadone off-label to Silas, but County Defendants assert that there is no evidence that this fact was conveyed to the County Sheriff.

LE and handler agree with Rector on certain facts leading up to and surrounding the dog bite. On the day of the dog bite, Rector stopped by LE and handler’s house because Rector had gotten a new truck and were in the area. They all went for a drive, stopped at a liquor store, and went to dinner. Rector then decided to return to LE and handler’s home for a bonfire. As LE and Rector began building a bonfire, handler to let the dogs out.

According to LE and handler, Rector was informed of Silas’s history, “being specifically told that he had bitten two of his handlers in the past.” Rector admitted that handler told Rector that Silas had bit handlers “because they were mistreating him.” However, Rector maintained that “handler led Rector to believe that these incidents were because Silas was defending himself, not that he had anger issues.”

Silas was brought to Rector on a leash and Rector was petting him. She stopped and put her hand on his head which was a position of dominance so Silas bit Rector on the arm.

The Rectors moved for partial summary judgment on four narrow issues: (1) whether the Sheriff’s decision to employ Silas as a K-9 police officer was under color of law; (2) whether LE was acting under color of law when he took care of Silas’s dietary and exercise needs; (3) whether Silas was a vicious dog, as contemplated by the Arkansas Model Jury Instructions (“AMI”); and (4) whether handler was negligent.

At this stage of the litigation on the record before it, the Court determines that Rector was not entitled to judgment as a matter of law on any of these issues. Viewing the record evidence in the light most favorable to defendants (LE and the agency), the Court determines that there are genuine disputes of material fact that preclude partial summary judgment.

Note: Since there were conflicting assertions, the court could not make a determination who was correct, so the matter must go before a jury (or settle). This is an interesting case given that Silas appears to be a bit of a handful. Questions that are not answered include why was the biting issue not addressed in remediation; why was Silas withdrawn from the program which shut down; was Silas adequately trained as a drug detection dog or adequately trained as an apprehension dog, etc. This seemed to be a situation where the dog was put in circumstances he wasn’t trained for and was then allowed to go with his handler and her partner (LE) as a pet but Silas was still bitey. Really not sure what’s going on here, but if LE or the County cannot supply adequate training records, LE is going to be in a tough spot. LE’s best defense in a bite case is the training and deployment records showing that either the K9 was well trained and reliable and that any issues were remediated. If a K9 remains in service when it is debatable that the K9 will bite without a command, then that handler and agency are setting themselves up for a world of hurt. 

People v Acosta (New York 2022) 2022 N.Y. App. Div. LEXIS 5325
Traffic Stop; Alert as Probable Cause

After being convicted of criminal possession of a controlled substance, Acosta appealed and claimed that LE lacked a founded suspicion that criminal activity was afoot to support the “K9 sniff search” (court’s language) of the exterior of his vehicle during a lawful traffic stop and, thus, the trial court erred in refusing to suppress as fruit of the poisonous tree physical evidence seized thereafter, i.e., a set of keys in the vehicle and drugs later found in a shared utility room of Acosta’s residential building in a toolbox that was unlocked by the keys.

The appellate court rejected that argument and held the trial court properly concluded that, based on the totality of the information known to the police prior to the lawful traffic stop, the police had the requisite “founded suspicion that criminal activity [was] afoot” to justify the canine sniff search (sic) of the exterior of defendant’s vehicle After the dog alerted on the exterior of the vehicle, probable cause existed to search the vehicle and, therefore, the canine search (sic) of the interior—during which an officer noticed the set of keys—was lawful. Inasmuch as the canine sniff search (sic) was lawful, there is no basis for suppressing any evidence seized thereafter as the fruits of an illegal search.

Note: This is a conclusory opinion so we don’t know all the details about the contact, sniff and subsequent search by LE. However, once again, a court is using the word “search” in connection with the K9’s activity. While it didn’t hurt LE here, it’s really important that language discipline is used to make sure that the state of the law (a sniff is not a search) is not misunderstood.

Tinsley v. Perry (New Mexico 2022) 2022 U.S. Dist. LEXIS 178523
Consent; Alert as Probable Cause

K9 alerted on Tinsley’s companion travelers at a bus station and LE asked for consent to search Tinsley’s back pack. He refused and LE detained the back pack for a sniff which provided an alert which was used to get a search warrant. Controlled substances were found and an arrest warrant was issued for Tinsley. Two months later, Tinsley was approached by LE at a train station and Tinsley felt “coerced” into providing consent to a sniff and then a search of his luggage. Again, controlled substances were found. Tinsley alleges that LE violated his Fourth Amendment rights by conducting a warrantless search of his luggage, which unfolded in two stages: first, as a product of LE’s coercion, Tinsley consented to a “K-9 sniff” of his luggage; and second, under duress, and after the dog alerted to the presence of narcotics in his bag, Tinsley consented to LE’s search of the luggage.

The appellate court first held that the first part of Tinsley’s claim is premised on the incorrect assumption that he was subject to a “search” when the narcotics-detection dog sniffed his luggage. A dog sniff is not a search within the meaning of the 4th Amendment. Therefore, this first “search” the allegations in the Complaint do not support a claim against LE or handler for a violation of Plaintiff’s Fourth Amendment rights.

The alert gave LE probable cause to arrest Tinsley (as well as the probable cause from the earlier encounter). To the extent Tinsley seeks to state a claim for false arrest against LE, such claim must be dismissed. A person who “has been imprisoned without legal process . . . has a claim under the Fourth Amendment analogous to a tort claim for false arrest or false imprisonment.” However, a law enforcement officer “may arrest a person without a warrant if he has probable cause to believe that person committed a crime.” “Probable cause exists if facts and circumstances within the arresting officer’s knowledge and of which he or she has reasonably trustworthy information are sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense.” Tinsley does not allege, nor considering the facts and circumstances in his related criminal case could he reasonably allege, that LE lacked probable cause to arrest him based on the above facts.

Note: Not sure how LE got possession of the back pack in the first instance (facts are a little sparse). However, it appears that Tinsley is only challenging the second contact and search as unconstitutional. There were other causes of action but they are not relevant here. What’s nice is that the court confirms that probable cause from an alert by a K9 is probable cause for arrest as well. The opinion also demonstrates why it is so important to make the distinction that a sniff is not a search. 

United States v. Turner (Alabama 2022) 2022 U.S. App. LEXIS 27280 (Unpub.)
Traffic Stop; Prolonged Detention; Alert as Probable Cause

LE saw a tractor trailer hauling a Chevy Avalanche driving in the wrong lane. As LE followed him, there were more lane violations. LE stopped Turner who was the driver. His girlfriend was the front passenger. Turner claimed to be moving and the Avalanche was not working so he was hauling it on this leased rig (Turner claimed a long line of owners for the tractor trailer and claimed he leased it from the last one). Turner had claimed to have been stopped 45 minutes prior for a “courtesy” check, but received no paperwork. LE had Turner return to his cruiser with him to check out Turner’s license. LE asked Turner to retrieve the registration for the Avalanche. At this point, Turner was very nervous. There was more discussion about the vehicles and Turner’s travel and LE returned documents to Turner. Turner asked for documentation of the stop, so LE started a warning citation. During this typing, LE asked Turner about the Avalanche. Turner claimed that he was responsible for the Avalanche but knew of no contraband or personal items in it. LE then tried to print the citation but the printer wasn’t working. LE asked for consent to search both the rig and the Avalanche but Turner refused consent. LE then deployed his K9 which alerted on the rig. A gun was found along with cocaine.

Turner contended that LE prolonged unlawfully the duration of the traffic stop by making non-traffic-related inquiries about the Chevrolet Avalanche. He asserted that the inoperable Chevrolet on his tractor-trailer was not connected to traffic safety, his authorization to drive, or the validity of his driver’s license. The appellate court disagreed. Consistent with the Fourth Amendment, a police officer may conduct a brief investigative traffic stop when the officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” “Even minor traffic violations qualify as criminal activity.” Reasonable suspicion is determined based on the totality of the circumstances, including “both the content of information possessed by police and its degree of reliability.” In deciding whether reasonable suspicion existed at the pertinent time, the court considers whether reasonable suspicion existed objectively under the circumstances. An officer’s subjective motivations are immaterial to whether a traffic stop is reasonable under the Fourth Amendment.

Even when reasonable suspicion exists to make a traffic stop, police “do not have unfettered authority to detain a person indefinitely.” A traffic stop “is unlawfully prolonged when an officer, without reasonable suspicion, diverts from the stop’s purpose and adds time to the stop in order to investigate other crimes.” The purpose of the traffic stop includes addressing the traffic violation that prompted the stop and attending to “related safety concerns.” An officer’s mission during a traffic stop includes “ordinary inquiries incident to the traffic stop” such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.”

Considering the totality of the circumstances, the appellate court could not conclude that LE unlawfully prolonged the traffic stop. LE’s questions about Turner’s travel plans constituted
“ordinary inquiries” related to the traffic stop.

As LE performed routine traffic-related tasks, he observed conduct giving rise to reasonable suspicion beyond the traffic infraction. Turner and girlfriend both exhibited nervousness, even after being told that LE was not going to write a ticket for the left-lane violation. And, despite Turner’s assertion that he was moving from Texas to South Carolina, LE observed no indication that Turner was moving in either the Chevrolet Avalanche or the tractor-trailer. Based on this and LE’s experience in the Special Operations Unit, as well as in the trucking industry, he believed that the use of the tractor-trailer was unusual.

The totality of these circumstances gave rise to reasonable suspicion that Turner was involved in criminal activity beyond the initial traffic violation. Because reasonable suspicion existed when LE asked additional questions about the Chevrolet Avalanche (questions aimed at investigating criminal activity beyond the traffic infractions), those questions did not unlawfully prolong the traffic stop.

Note: Nothing really new here; the court was generous in deciding that there was additional reasonable suspicion based on LE’s observations and Turner’s comments. Other courts will require more. Be sure to keep up with what your jurisdiction requires and what your local prosecutor will require.

Anderson v. On (Minnesota 2022) 2022 U.S. Dist. LEXIS 175626
Excessive Force; Deadly Force as Applied to K9s

This case is about LE shooting beanbag rounds at a homicidal/suicidal subject and whether the bean bag shotgun is a less than lethal weapon (as it can result in such force that creates a substantial risk of causing death or great bodily harm). LE claimed that a bean bag round is not deadly force. In the opinion (and a footnote), the appellate court looked at cases that involved K9s. An 8th Circuit court (Kuha v. City of Minnetonka) noted that other courts had found the use of police canines could constitute deadly force only where “the unusual circumstances which resulted in the suspect’s death were foreseeable” and not “an extreme aberration from the outcome intended or expected.” Although it did not embrace any particular definition of deadly force, the Kuha court found “the likelihood of death from the use of a properly trained police dog to apprehend a suspect sufficiently remote as to preclude its characterization as deadly force.” However, also in a footnote, the court stated, “It would make little sense to read Kuha to mean, for example, that were an officer to use a properly trained police dog to apprehend a particularly young or vulnerable suspect for whom the risk of death or serious bodily injury may be significantly greater, such a deployment of the canine could not be characterized as deadly force.”

Note: While this is not a holding in this case, it is instructive as to how to determine that the use of a K9 is excessive force. There is some good language here. While it is an 8th Circuit case, it can be persuasive authority.

State v. Frasier (South Carolina 2022) 2022 S.C. LEXIS 138
Traffic Stop; Prolonged Detention

Frasier was a passenger in a vehicle stopped by patrol for an inoperable brake light after detectives requested a stop. Prior to getting into the vehicle, Frasier exited a bus station (he had traveled to North Charleston from New York) and looked around as if he was looking for threats, including LE. Detectives just told patrol Frasier was suspicious. Driver took less than a minute to pull over. Driver’s pants were unzipped so LE believed she might be hiding drugs in her pants. Frasier was nervous and avoidant. Driver did not have a license in possession so LE was given her information and she was clear. Driver consented to a search of the vehicle. Frasier was taken out of the vehicle and was searched after Frasier said he did not consent. Cocaine was found.

Frasier claimed prolonged detention. The appellate court agreed. Here, even after accepting the trial court’s factual findings as the appellate court must do since they are supported by some evidence, the court concluded that patrol lacked reasonable suspicion as a matter of law. The two detectives relayed to patrol that Frasier seemed suspicious, but that was only based on a subjective hunch. While “scanning the parking lot” is a relevant factor, it was far from establishing reasonable suspicion. Accordingly, in order for patrol to prolong the traffic encounter, there had to be more indications of criminal activity once patrol initiated the traffic stop. Although the State contended the following additional facts establish reasonable suspicion—repeating questions, noticing Jones’s unzipped zipper, sweating, and being nervous—the court disagreed. LE did not see any items that would demonstrate potential criminal activity—such as cash on hand, hollowed out blunt cigars, or the smell of marijuana—before deciding to extend the stop. It is equally apparent that this was a drug stop masquerading as a traffic encounter. Indeed, the goal of the stop was to “try to obtain consent,” as LE can be heard telling dispatch on the dashcam video. While the court did not suggest that pretexual stops are illegal, in order to prolong the stop, there must be an objective basis for concluding that criminal activity may be afoot.

The appellate court then addressed the consent issue. The court held that during the pretrial testimony, patrol noted that he asked Frasier “if he minded if I checked him out or searched him, and he said, ‘I do, but,’ and just kind of put his hands up on top of the car.” The State also described the encounter as, “[R]egarding his actions, Frasier shrugged his shoulders, placed his hands on top of the vehicle, positioned himself in a manner such that the officer could search him, and exposed both his body and his pockets to the officer.” Because the court was able to view the same video as the trial court, they made an independent finding and were not constrained to defer to the trial court’s conclusion that Frasier consented through his words and conduct. The video clearly indicates that Frasier stepped out of the vehicle at the direction of one of the officers, with a second officer standing beside him. Once Frasier began to place his hands in his pockets, LE understandably told Frasier to remove them. In response, Frasier raised his hands over his head and began to turn. LE testified it was Frasier’s conduct that indicated he consented to a search, but it is clear from the video that Frasier only placed his hands on the vehicle at the direction of the officer. Indeed, after asking whether Frasier had any weapons on him, LE asked Frasier to “put his hands up on the car for me.” Accordingly, because Frasier’s conduct was at the direction of the officer, it was not a voluntary decision to allow patrol to search him.

Note: In the opinion, prior to holding there was no additional reasonable suspicion to extend the investigation beyond the traffic stop, the Court cautioned law enforcement that although “nervous behavior is a pertinent factor in determining reasonable suspicion, we, like many appellate courts, have become weary with the many creative ways law enforcement attempts to parlay the single element of nervousness into a myriad of factors supporting reasonable suspicion.” This shows their bias which is something LE needs to understand to know where the courts are drawing these lines. As to the consent, I can’t really quibble with the holding. However, there was the basis for a Terry frisk which may have uncovered some of the contraband. I just don’t have enough facts to determine if this was even contemplated as a line of argument.

United States v. Brown (Kentucky 2022) 2022 U.S. Dist. LEXIS 174724
Traffic Stop; Prolonged Detention

LE was focusing on problem spots in the community when LE saw a vehicle quickly leave at a high rate of speed. LE followed and determined that the driver slowed down and was overly cautious, moving slowly and spending a long time at a stop sign. LE determined that the car was not registered, the owner of the car had a warrant and that the car had been involved in previous drug investigations.

LE stopped the car. Brown was the driver and there was a female front passenger. Neither had a driver’s license so LE wrote down their information. Brown came back as a persistent felony offender and had multiple narcotics charges. LE then radio’d for a K9 team.

The K9 team arrived shortly (not further defined) and was briefed by LE. Handler then deployed the K9 which alerted on the car. Fentanyl was found.

Brown claimed that LE improperly prolonged the traffic stop to accommodate the K9 sniff. This was the only issue. (Oddly, there was no analysis about whether the traffic stop was on-going while the sniff was occurring, which would negate the need of additional reasonable suspicion).

The appellate court listed the facts that LE used to justify additional reasonable suspicion which would allow for the prolongation of the stop. First, Brown’s presence in a high-crime area properly contributed to LE’s suspicions that criminal activity was afoot. Police patrolled this hotel because of complaints about ongoing drug activity around the hotel. In fact, those complaints resulted in arrests and specifically identified the parking lot where Brown was seen as a place where criminal activity occurred. Second, Brown’s unusual driving properly contributed to LE’s suspicions. When LE entered the parking lot for the hotel, LE witnessed Brown immediately turn on his headlights and leave “at a high rate of speed.” But once he started driving onto the adjacent road, Brown became unusually cautious: he started driving slowly and stopped at a stop sign for an extended period. Third, Brown’s criminal history raised suspicions. Although a person’s criminal history cannot constitute reasonable suspicion alone, LE’s knowledge was about specific incidents that related to the same suspicions he was developing about Brown. The CourtNet search showed that Brown was a persistent felony offender and had multiple drug charges, including a drug-trafficking charge two years prior. Moreover, dispatch also advised that the vehicle had previously been stopped by narcotics units, resulting in an arrest.

Taken together, these factors provided a particularized and objective basis for LE’s reasonable suspicion of criminal activity—a standard requiring “considerably less than proof of wrongdoing by a preponderance of the evidence.” This reasonable suspicion then permitted police to extend the traffic stop long enough to confirm or dispel their suspicions by conducting a K-9 sniff. Therefore, the sniff and alert were legal.

Note: As you can see, the analysis is basically the same as the case before, but two different outcomes. While this is discouraging, the best practice in this type of situation is to look for all signs that would indicate there is additional reasonable suspicion. You can’t have too much, but you can definitely have too little.

McKinney v. City of Middletown (Connecticut) 2022 U.S. App. LEXIS 26863
Excessive Force; Qualified Immunity

McKinney was arrested for attempting to rob a Subway. He was high, drunk and on psychiatric medication. When he was placed in a holding cell at the station, he started exhibiting strange behavior including trying to harm himself. He was uncooperative in refusing to stop blocking the cameras and threatened to “fuck” LE up if they tried to move him. He refused to move back so that LE could open the door to the cell. The K9 team was present just behind the first officer in a “watch” stance. When LE tried to enter, McKinney resisted, pushing back on the door. LE entered and used a baton to push McKinney to the back wall. McKinney tried to grab the baton and charged toward LE. At that point, K9 was deployed who bit McKinney on the lower leg. McKinney fell down on top of another officer and refused commands to stop resisting, even when LE used baton strikes as well. LE then deployed a Taser after which McKinney finally complied. Once McKinney was handcuffed, the K9 was removed.

McKinney sued for excessive force. LE claimed they were entitled to qualified immunity. McKinney argues that LE violated clearly established law by purportedly using a police K9 for a purpose for which it was not trained, failing to give McKinney a warning before releasing the K9, allowing the K9 to continue biting McKinney after he ceased actively resisting, subjecting McKinney to a dog bite that may have lasted for two minutes, and otherwise improperly escalating the use of force.

The appellate court was not persuaded by these arguments. McKinney failed to demonstrate that under the specific facts of this case, LE’s incremental and combined use of a baton, a K9, and a taser violated clearly established law of which a reasonable officer would have known. The undisputed facts of the case show that McKinney threatened the  officers and actively resisted their efforts to subdue and secure him. Under those circumstances, reasonable officers could disagree as to whether the force the defendant officers applied in this case was lawful. LE are accordingly entitled to qualified immunity.

Note: Key take-aways here: McKinney dictated the level of force used by his actions and statements and the measured escalation of force. Courts will always be impressed if there is a measured escalation in force used. This is not always practically available, but be prepared to justify every step in subduing a suspect.

Ellis v. Pierce Cnty. (Washington 2022) 2022 U.S. Dist. LEXIS 173486
Excessive Force; Monell Claim

Boyfriend of Ellis made a domestic violence report. However, the injuries were red marks and boyfriend claimed that Ellis was physically small and posed no real physical threat. She had left in her pajamas and slippers so boyfriend believed she was unarmed. LE responded with deploying a K9 team who located and bit Ellis. Ellis suffered severe trauma and permanent injuries to her arm as a result.

Ellis claimed that LE violated a clearly established right because she did not pose an immediate threat of harm and because his use of force was otherwise unnecessary and unjustified. The court agreed with Ellis.

Ellis raised a plausible claim that handler violated Ellis’s right to be free from unreasonable seizure. Most importantly, she alleges that, when handler deployed K9, Ellis did not pose an immediate threat to the safety of the deputies or others. Before handler deployed K9, he knew that Ellis was “115 pounds, not a real physical threat, unarmed, in her pajamas, and intoxicated.” Then, after the deputies took his statement, boyfriend again “emphasized to the deputies that Ellis was not a real physical threat and the purpose of the 9-1-1 call was to deescalate the situation.” Boyfriend “was then surprised to discover that the Deputies decided to call a K-9 unit to apprehend” Ellis. When boyfriend saw the K-9 unit arrive outside his home,” he attempted to go outside to intervene, but was prevented from doing so by the Deputies.” Nothing from boyfriend’s statements to the deputies or from his behavior upon their arrival indicated that Ellis posed an immediate threat to the safety of the deputies or others. The lack of injuries sustained by the two victims also indicated that Ellis did not pose a serious physical threat.

Next, Ellis plausibly alleged that the crime committed was not so severe as to warrant the deployment of a police canine to bite Ellis. Boyfriend informed the deputies that Ellis had hit him, and inadvertently hit his 17-year-old son when he tried to intervene in the dispute, while she was intoxicated. Under these circumstances, Ellis raised a plausible claim that the crime was not severe enough to justify handler’s decision to deploy K9 to bite and apprehend her. Finally, Ellis plausibly alleged that Ellis was neither actively resisting arrest nor attempting to evade arrest by flight when handler deployed K9. Indeed, after the deputies arrived at the residence, boyfriend informed them that, “while he was on the phone with 9-1-1, Ellis suddenly left the house in her pajamas and slippers into the pouring rain.” Notably, there is no indication in the complaint that, when Ellis departed the residence, she knew that boyfriend was on the phone with 911, that deputies would arrive at the residence in response to the 911 call, or that she would be placed under arrest upon their arrival. As such, the complaint makes a plausible showing that the deputies had no reasonable basis to believe that Ellis departed the residence to evade arrest by flight.

Because each Graham factor weighs in favor of Ellis, the complaint makes a plausible showing that handler, by deploying K9 to bite and apprehend her under these circumstances, violated her Fourth Amendment right to be free from unreasonable seizure.

The court then addressed the qualified immunity claim. The Court addressed the second part of the qualified immunity test: whether the right at issue was clearly established. For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Although this does “not require a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate.” Consistent with the Graham factors, Ninth Circuit precedent clearly establishes that police officers use excessive force when they deploy a canine to bite a suspect who neither poses a threat of harm nor attempts to evade or resist arrest. As already explained, the complaint plausibly alleges that, when handler deployed K9 to bite and apprehend Ellis, the deputies had received knowledge that she did not pose a threat of harm and that she had not attempted to evade arrest by flight. As such, the complaint states a plausible claim that handler violated a clearly established right by deploying K9 under these circumstances.

The County’s Motion to Dismiss the Monell claim.

Ellis claimed Pierce County, acting by and through the Pierce County Sheriff’s Office and its officers in their official capacities, as a matter of policy, custom or practice: a) failed to adequately train its officers in the limits the constitution places on the use of police dogs, or alternatively, failed to communicate its policy regarding constitutional use of police dogs to its police officers; b) failed to adequately supervise its defendant officers with respect to such officers’ constitutional deprivations; and c) failed to address these failures despite being informed of such policy and customs resulting in multiple innocent citizens being attacked in the same or similar fashion.

The complaint also states that “[t]he utilization of bite and hold techniques in the training of K-9 units constitutes a policy and practice that led to the deprivation of the plaintiff Jenni Ellis’s civil rights.”

The complaint does not contain any specific factual allegations in support of these assertions. It is well established that a complaint must do more than make “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Because Ellis does not plead sufficient facts in support of her allegations, she does not plead a plausible Monell claim.

The court refused to dismiss against handler and granted the motion to dismiss by the County in the Monell claim. However, Ellis was allowed to amend her complaint to renew her claim against the county.

Note: There appeared to be no Graham analysis prior to deploying the K9. In fact, some of the explanations by the handler appeared to weigh against him (he claimed he deployed K9 partly because since Ellis was not dressed for the elements, she would return sooner rather than later). The court rightfully asked why not just wait for her return then? The Graham analysis is critically important. Don’t think that you will be able to justify a deployment after the fact. Only deploy when the Graham analysis is complete. You don’t have to take a long time doing this; in fact, there will be some instances where a decision must be made quickly. But that analysis needs to be done regardless.

Woodard v. Carol (Louisiana 2022) 2022 U.S. Dist. LEXIS 174287
Excessive Force; Qualified Immunity

Woodard claimed that he was walking through the woods when he was yelled at by LE. He stopped in his tracks and was surrounded by LE including a K9. Although he was completely compliant with LE, handler deployed the K9. Woodard filed suit that claimed LE used excessive force.

LE filed for a summary judgement motion. LE was actively looking for Woodard because he was evading arrest on outstanding warrants for theft and forgery. LE received a tip as to Woodard’s location and when he saw LE, he started running. He hid in a wooded area and since he did not respond to commands to come out and show his hands, the K9 was deployed. Once Woodard was handcuffed, the K9 was removed immediately.

In support of his claims, Woodard supplied the same video evidence as LE, a warrant for his arrest, and parts of answers to interrogatories and the expert deposition transcript. However, this evidence did not support his contention that there are any genuine issues of material fact. The video evidence contradicted his version of events. Thus, Woodard did not present “significant probative evidence” but instead rested on mere allegations to support his claims of excessive force. Accordingly, Woodard failed to meet his general summary judgment burden with respect to his excessive force claims.

Even if the court had determined that the force was excessive, the court would still find LE entitled to the qualified immunity defense and thus immune from suit. When considering the qualified immunity defense the court’s focus “is not on the merits of [Woodard’s] claims, but on LE’s entitlement to qualified immunity.” Woodard, who bears the burden to negate the qualified immunity defense properly raised by LE, has not done so. Viewing the evidence in the light most favorable to Woodard, including the video evidence, Woodard has failed to establish that LE’s actions were excessive or objectively unreasonable. Even after drawing all justifiable inferences against summary judgment, the court found that Woodard has offered only “mere allegations,” rather than “significant evidence demonstrating the existence of a genuine fact issue.”

Utilizing the Graham factors, LE’s decision to allow the canine to initially apprehend Woodard was reasonable under the circumstances and the force was not excessive. First, Woodard was suspected of felony theft and forgery. Second, Woodard posed an “immediate threat to the safety of the officers.” Woodard was hidden in an area that presented dangerous circumstances due to low visibility. Additionally, because LE came upon Woodard’s person instantly, this was a situation where the determination of reasonableness “must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Finally, LE has presented evidence that Woodard was ordered by LE to come out and according to the video, he clearly did not do so and chose to remain in the wooded area. Woodard presented no evidence to counter the testimony that he failed to come out of the wooded area when ordered. Additionally, the video evidence clearly shows that Woodard was lying in the tall grass when he was detected by LE and canine and at no time “was being completely compliant with the deputies’ request to submit” by revealing himself.

Woodard, by hiding from the officers in tall, thick grass where his hands and surroundings could not clearly be seen and by failing to comply with orders, “actively resist[ed]” the officers’ instructions and posed an “immediate threat to the safety of the officers.” This conclusion is particularly supported by the short amount of time between the K9 signaling Woodard’s whereabouts and LE immediately coming upon his person. “‘[T]he use of a trained dog to apprehend fleeing or hiding felons is not inherently excessive force,’ even though ‘some injury to the suspect is likely to occur.'” Accordingly, when confronted by a suspect who was otherwise unwilling to submit to arrest and who was not visible, a reasonable officer could not have known whether Woodard had weapons and it was reasonable for LE to deploy K9 to subdue a hiding suspect who may be armed.

For the same reason, it was also reasonable under the circumstances to allow K9 to continue subduing Woodard until he was handcuffed. In the video, there is a period where Woodard’s hands become visible. Woodard points to this moment as evidence that it was excessive to allow the dog to remain in a bite because he had complied and “Defendant-deputies knew that Woodard was unarmed.” While the Fifth Circuit has “consistently held that a suspect does not pose an immediate threat where he unambiguously surrenders by, for example, placing his hands in the air and complying with the officers’ commands,” that was not the case here. Woodard was given opportunities and orders to reveal himself, but instead chose to remain hidden in the wooded area. The court already found that the initial use of K9 was reasonable as Woodard’s hands were not visible at the time. Although his hands were briefly visible at some point during the struggle, the heavily grassy area around him was not. A reasonable officer would have had no way of knowing whether a weapon was concealed in Woodard’s immediate grasp or if he could ambush the officers. It was reasonable for LE to believe that Woodard may try to harm the officers if K9 was called off before he was fully secured. Although “the law is now clearly established that when no reasonable officer could conclude that a suspect poses an immediate threat to law enforcement or others, it is unreasonable to use K9 force to subdue a suspect who is complying with officer instructions,” that is not the case here. A reasonable officer, confronted with a suspect who had concealed himself from view could conclude that the suspect, even after showing his hands, could still be an immediate threat to officers if the canine was released before handcuffing.

On the facts before us, Woodard cannot show that LE violated his Fourth Amendment rights. But even if he could, LE would still be entitled to qualified immunity because Woodard cannot show a violation of clearly established law. “‘[T]o show a violation of clearly established law, [Woodard] must identify a case that put LE on notice that his specific conduct was unlawful.'” As the Fifth Circuit characterized it, “the law must be so clearly established that—in the blink of an eye, in the middle of a high-speed chase—every reasonable officer would know it immediately.” Additionally, for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.” Such precedent must make “it clear to every reasonable officer that he could not [deploy a canine] in the specific circumstances LE confronted.”

Plaintiff provides no such precedent that clearly establishes the violative nature of handler’s deployment of his canine. While it may be clearly established that “when no reasonable officer could conclude that a suspect poses an immediate threat to law enforcement or others, it is unreasonable to use K9 force to subdue a suspect who is complying with officer instructions,” it is evident here that Woodard was not complying. The cases cited by Woodard offer materially different factual circumstances than those present in this case. LE held to be entitled to qualified immunity.

Note: While the fact that the crimes Woodard was suspected of could be described as non-violent, the rest of the Graham factors were met. And the court must apply the Graham test acknowledging that these decisions are made in the heat of the moment with little time to discuss or weigh options.

Hoyle v. City of Hernando (Mississippi 2022) 2022 U.S. Dist. LEXIS 174779
Traffic Stop; Excessive Force; Heck Doctrine

Hoyle was speeding but did not stop when LE saw him run a red light and lit him up. Then followed an 8 minute high speed chase where Hoyle drove erratically, passed a number of vehicles, drove on the wrong side of the road, forced cars off the road, and nearly collided with other cars. The car eventually lost control and drove into a ditch but even then refused to stop and instead attempted to get back on the road, hitting two LE vehicles in the process before finally coming to a stop.

As Hoyle exited the vehicle, handler released his K9 because handler was concerned Hoyle might have a weapon. The K9 bit him and there was more struggle while LE got Hoyle handcuffed before K9 was released. The vehicle turned out to be stolen.

Hoyle then pled guilty to felony fleeing in exchange for another charges being remanded (I think this means being held in reserve until Hoyle violates terms and conditions; then they are revived). The factual basis for the plea was as follows:

Hoyle admitted the following: (1) that he “operated [a] motor vehicle in a reckless manner with willful disregard for the safety of persons or property or in a manner manifesting extreme indifference to the value of human life[,]” specifically driving “at a high rate of speed” in an “erratic” manner, “passing vehicles, driving on the wrong side of the road, [and] forcing cars off the roadway nearly hitting other vehicles”; (2) that he “refuse[d] to bring [a] motor vehicle to a stop after being given a visible or audible signal [b]y LE . . . who had reasonable suspicion to believe that [Hoyle] had committed a crime”; (3) that he “well kn[ew] that LE was in fact a law enforcement officer acting within the scope of his duty”; (4) that he eventually “lost control, [ ] ran off the road[,]” and, when “officers tried to box him in[,]” he struck “both officers[‘] . . . vehicles” before “finally c[oming] to a stop”; and (5) that the “the officers deployed a K-9 to apprehend the suspect fearing [Hoyle] may have a weapon.”

Hoyle then sued for excessive force, ultimately only claiming that the excessive force was from the deployment of the K9. Hoyle’s complaint alleged that (1) LE pursued Hoyle “without cause or justification,” (2) that LE “initiated a traffic stop by ramming his law enforcement vehicle into the vehicle operated by Hoyle,” and (3) that “LE was not justified in his use of force and could not reasonably have believed in good faith that the deployment of the K9 was warranted and/or necessary.” However, Hoyle’s criminal conviction resulted from the following admissions by Hoyle which were in direct conflict with the allegations set forth in the complaint: (1) that LE “had reasonable suspicion to believe that [Hoyle] had committed a crime,” (2) that Hoyle was the one who struck “both officers’ vehicles before finally coming to a stop,” and (3) that “the officers deployed a K9 to apprehend the suspect fearing [Hoyle] may have a weapon.”

The appellate court held that each of these inconsistencies triggered the Heck Doctrine’s bar because “a judgment [in Hoyle’s favor] would call into question the [prior] conviction.” According to Heck, a convicted criminal may not bring a civil rights claim if success on that claim would necessarily imply the invalidity of a prior criminal conviction. “In other words, a ‘plaintiff who has been convicted of a crime cannot recover damages for an alleged violation of his constitutional rights if the alleged violation arose from the same facts attendant to the charge for which he was convicted.'”

The court also noted that the Fifth Circuit as well as others has made clear that it is not constitutionally excessive to release a K9 to effectuate an arrest, including situations where, as here, the suspect attempts to flee. The rationale undergirding these cases is threefold: that (1) K9 deployment is a justified use of force to combat felony crimes; (2) K9 deployment is justified in detaining a suspect who is fleeing; and (3) it is reasonable for an officer to treat a fleeing suspect as armed and dangerous.

It is well settled that police K9 bites are subject to Fourth Amendment excessive force analysis. As such, a plaintiff must show that he suffered an injury that resulted from force that was excessive to the need, i.e., “objectively unreasonable.” Not every exertion of force that may in hindsight seem unnecessary violates the Constitution. “The ‘excessive’ and ‘unreasonable’ inquiries require the court to exercise ‘caution about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.'” “The ‘reasonableness’ inquiry always requires the court to consider ‘the crime’s severity, the suspect’s threat, and whether the suspect is actively resisting arrest or trying to flee.'”

Applying this well-settled authority to the facts of this case, the court found no viable excessive force claim in this case. As noted, however, the plaintiff’s federal claim here is barred by Heck and is therefore ill-fated from the outset.

Note: This is why the factual basis for the plea in the case (or the facts produced in evidence at the trial) are so important for future litigation. Civil cases run on different tracks than criminal cases and have a lower burden of proof. I have reviewed plenty of cases where the factual basis was not sufficient to raise a Heck Doctrine bar. This allows the criminal to sue you from the comfort of his prison cell. Make sure you are in contact with your local prosecutors about this doctrine and provide a written factual basis of the plea. The factual basis must include all your actions in apprehending the criminal so that there is no factual basis left over for criminal to file a civil rights case.

Jennings v. Commonwealth (Kentucky 2022) 2022 Ky. App. Unpub. LEXIS 542
Traffic Stop; Prolonged Detention

LE was watching a drug house based on a citizen’s complaint. A Chrysler pulled up and parked, engine running, but no one got out. A black vehicle pulled up alongside the Chrysler, a woman got out and into the Chrysler briefly, went back to the black vehicle for a hoodie and got back into the Chrysler for about 10 minutes. She got out the Chrysler drove off. LE followed the Chrysler as it drove off, having called for back up while this was going on to follow the black car. The Chrysler was pulled over for lane violations; LE called for a K9 team based on the suspicion that there had been a drug transaction.

During the traffic stop (Jennings was the driver), Jennings could not produce an insurance card. During the 16 minutes of the traffic stop, the K9 team arrived and alerted. The court noted that the K9 team was on scene almost immediately following the traffic stop. Since contraband was found, Jennings pled guilty to drug trafficking.

Jennings then filed an appeal claiming that the trial court should have granted his motion to suppress because the stop was illegally prolonged. Jennings asserted that LE deviated from the diligent pursuit of the traffic stop by asking Jennings questions unrelated to his failure to use a turn signal — e.g., where he was coming from, where he was staying, what brought him to Kentucky — and then relaying that information to another officer. Jennings contends that this “additional time, however slight,” impermissibly prolonged the traffic stop in violation of his rights under the Fourth and Fourteenth Amendments of the United States Constitution and Section 10 of the Kentucky Constitution.

The court held that beyond investigating the potential traffic infraction that warranted the stop, an officer may pursue other ordinary inquiries incident to the traffic stop. Those inquiries typically include checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. Those inquiries serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. In addition, LE may pursue unrelated investigative inquiries during a traffic stop if doing so does not add time to the stop. For example, when one officer continues to issue a traffic citation or perform other traffic-stop-related inquiries while another officer simultaneously conducts a dog sniff, the dog sniff is permissible because it does not add time to the stop. The court stated that the questioning about travel plans are an ordinary inquiry properly within the scope of the stop.

Note: Courts are all over the map in terms of how and what questioning about travel plans is within the bounds of the traffic stop and what is not allowed. The facts of the case are what is going to drive the analysis. In any event, officer safety is always available as an argument. You are contacting an unknown individual in a poorly visualized location (inside a car) and you cannot be sure what is happening until you engage that occupant. Remember you can get all occupants out of the car because the courts have found that officer safety is an issue that can be addressed, at least at first, this way without any further information. While this is happening, you can engage with the occupants about travel plans. There are a few different ways to address this; use the one that the situation dictates with officer safety as the first goal.

United States v. Gama-Aguirre (Georgia 2022) 2022 U.S. Dist. LEXIS 170234
Traffic Stop; Prolonged Detention; Collective Knowledge Doctrine

DEA was conducting a wire tap investigation regarding controlled substances and found out about a meet to obtain drugs. Co-defendant, Foster, was to bring the drugs into a prison where Foster was a counselor. DEA then drove to the meet location and conducted surveillance. DEA recognized the two vehicles as described in the wire taps. Foster was one of the drivers and pulled up next to the other vehicle. Both drivers opened their trunks and Foster was given an item from the other driver’s trunk which he then put in his trunk. DEA followed Foster, looped local LE in on the investigation and had LE conduct a wall stop after telling LE that Foster’s car was supposed to contain narcotics. LE pulled Foster over for traveling too closely.

LE contacted Foster who immediately gave LE his license. After a brief discussion of the Mary Kay Cosmetics sticker on the car, LE had Foster get out. Foster got out and began to open the trunk without being asked to do so. LE stopped him and explained that he was going to get a warning for following too closely. While LE was writing the citation, LE engaged Foster in a conversation about Foster’s work as a counselor at the prison. Foster was being squirrely, looking around and then started singing out loud. LE asked if Foster was okay and commented on his nervousness. Foster complained that LE was delaying by asking him questions rather than writing the warning. LE said he was working on the citation the entire time and apologized for not writing faster. Foster started singing out loud again. Foster denied there was anything illegal and refused to give consent to search. A K9 unit was then requested. About 1 minute later, the K9 team arrived and performed a sniff. The K9 alerted to the vehicle. While this sniff was going on, LE was still writing the citation. A search of the car revealed methamphetamine in the trunk.

The court first held that the traffic stop was valid and that the subjective intent of furthering a drug investigation was irrelevant to this analysis. The court went on to hold that based on the collective knowledge doctrine and the fact that DEA was in contact with LE regarding the facts of the drug investigation, at least to the extent that DEA conveyed that they believed drugs were in the car Foster was driving, LE had additional reasonable suspicion to pull Foster over even without traffic violation. This minimal communication between the DEA and LE was sufficient to trigger the collective knowledge doctrine.

The court then addressed the prolonged detention claim. LE diligently pursued his traffic investigation and warning citation, and the alert came just before the warning citation was completed. In addition, the court held that the entire transaction up to locating drugs in Foster’s trunk was 21 minutes which was a reasonable amount of time. In addition, the court held that while LE testified that he intentionally put aside that he had been told that the DEA agents who had conducted surveillance earlier in the day believed that narcotics were inside the BMW, under the collective knowledge doctrine, it was objectively reasonable to extend the scope and duration of the stop to investigate whether narcotics were inside the vehicle

Note: This court talked about 21 minutes being a reasonable time frame for a traffic investigation which is actually not the standard. The standard is set out in the Rodriguez case, which states that the traffic investigation must be diligently pursued while a K9 sniff is pursued during the traffic investigation. Actual minutes are irrelevant. However, in this case, based on the collective knowledge doctrine, LE had reasonable suspicion to pursue not only the traffic violation, but the drug investigation as well. There was another co-defendant named Gama-Aguirre who was prosecuted also, but was not involved in this motion to suppress and no K9 was involved in his case.

United States v. Helton (Kentucky) 2022 U.S. Dist. LEXIS 170630
Traffic Stop; Reasonable Suspicion; Alert as Probable Cause

A CI told LE that a drug transaction between the CI and Helton was going to occur. CI was working off a drug charge. Helton would be traveling from Lexington, Kentucky to Lancaster, Kentucky, carrying large quantities of drugs in a safe and a backpack. The CI stated that Helton would be meeting him that evening at the only McDonald’s in Lancaster and would be driving a white truck. Handler ran a background check on Helton and discovered Helton had a suspended license.

Handler then set up surveillance and waited for Helton. Helton did not show at the planned time, but CI was tracking him and he was heading the right direction. In the early morning hours of the next day (which happened to be Thanksgiving Day), handler saw a white truck on approach to the McDonald’s. The CI texted that the white truck was Helton. Handler stopped the truck after confirming visually that the driver was Helton. Helton was pulled out of the car and placed face down on the ground. There was an adult woman and a child in the truck as well. Once everyone was removed and secured, and after a sniff, the K9 alerted to the vehicle. The vehicle was searched and fentanyl, heroin, and methamphetamine was found along with loaded firearms.

Helton complained that LE lacked a sufficient basis to stop him and detain him while a K9 sniff was performed. The Government argued that LE had two reasons to detain Helton; driving on a suspended license and the drug investigation with the CI.

Here, the court stated, the CI’s tip was detailed and corroborated by handler. Before stopping Helton, handler was able to corroborate the CI’s predictions as to: (1) the color and type of vehicle Helton would be driving, (2) the road Helton would be traveling and the direction from which Helton would be coming, and (3) the fact that Helton would stop at the only McDonald’s in Lancaster. The CI provided location information received from Helton to handler showing Helton’s imminent, albeit revised, arrival time. The screenshot of texts between the CI and Helton also referenced the terms of the controlled narcotics transaction. Moreover, the CI was known to handler, although their relationship was short-lived. Consequently, handler properly relied on the CI’s tip, at least in part, as a basis for concluding there was reasonable suspicion that Helton was involved in drug activity.

Handler was also correct to rely upon other suspicious circumstances surrounding Helton’s activities. Helton, who lived in Lexington, was travelling to Lancaster, nearly an hour away, to a closed McDonald’s at 4:14 a.m. on Thanksgiving morning. There was no other traffic visible at that early hour on the holiday morning. Also, handler confirmed that Helton was driving the car while on a suspended license, a suspicious and risky choice. Though not dispositive of the issue, these facts add support to Willard’s reasonable suspicion that Helton was engaged in narcotics activity, especially viewed alongside the CI’s corroborated information.

The court therefore held that the information provided by the CI coupled with the suspicious circumstances of Helton’s activities, when reviewing these facts in the totally of circumstances, was sufficient to create a reasonable suspicion of criminal activity. As such, handler was justified in making the initial traffic stop and detaining Helton while he conducted a K9 sniff of the truck in order to confirm or dispel his suspicions. Once the K9 alerted, LE had probable cause to search the vehicle.

Note: While the Government argued that the stop and detention was justified by the knowledge that Helton was driving suspended, the handler’s testimony at the trial court level belied that argument. He testified he was not investigating the suspended license at all and was only concerned about the drug investigation. While this was truthful, and the truth is always the right answer, doing an investigation on two things at once is permitted. And if you can testify that you were doing a dual investigation, that gives your prosecutor two avenues of admissibility to pursue.

United States v. Pinkerton (Missouri 2022) 2022 U.S. Dist. LEXIS 170654
Traffic Stop; Reasonable Suspicion; Prolonged Detention

Pinkerton was pulled over for weaving and driving very slowly. He lit a fresh cigarette as LE was approaching. LE, per his usual routine, called for back up prior to contacting Pinkerton. Pinkerton claimed he was trying to avoid potholes, but LE did not recall any potholes to avoid. Pinkerton had no insurance so LE had him come back to the cruiser to issue a warning citation.

There were many items in the bed of the truck and an empty pistol holster on the floor board in plain view. Pinkerton refused to allow LE to search him for firearms as he claimed he did not have any. LE then performed a Terry frisk and found a knife on Pinkerton. LE seized the knife and had Pinkerton sit in the cruiser as he ran information. Pinkerton had no warrants but had a criminal history which LE reviewed.

They continued to talk about the holster and Pinkerton’s claimed hobby of dumpster diving. However, Pinkerton was exceedingly nervous and scratching himself as well as increased breathing. Pinkerton finally claimed that there could be a firearm trigger in the truck (not sure what was actually meant by trigger). Consent was denied and all controlled substances and other contraband were denied. When asked if a narcotics K9 would alert on the truck, Pinkerton locked up.

Pinkerton was asked to remove his puppy from the vehicle and LE then conducted a vehicle sniff and his K9 alerted. The K9 sniff began about 90 seconds after the routine traffic matters were concluded. A search revealed three handguns but no drugs. However, Pinkerton handed over a baggie of meth the puppy mysteriously found (no further; court was very skeptical of this description of possession). Pinkerton had a meth pipe in his pocket.

LE explained why he believed there was probable cause to conduct an exterior canine sniff before releasing Pinkerton after the traffic stop. He stated: My first view of the vehicle was it was coming from a high crime area from my experience. The vehicle was crossing the centerline and holding inconsistent speeds, which can be a sign that they’re. . .looking in their rear-view mirror trying to figure out what the law enforcement officer is doing. When I conducted my stop and walked to the passenger side, he was already showing the signs of nervousness by being completely locked in on his rearview mirror and lighting a cigarette. While talking to him, he denies consent to search the person for weapons even though there was a holster there. As I was conducting my Terry frisk he had bulges in his pockets, and I wanted to investigate further with that. As he was in my vehicle and I was speaking with him, he was having a further reaction for nervousness scratching his arm, the exaggerated breathing. And then when I questioned him about narcotics, he had a change of behavior. He became a little apprehensive.

In reviewing the totality of the circumstances, the specific and articulable facts before LE taken together with rational inferences gave him reason to believe criminal activity was afoot. When LE made his passenger side approach to Pinkerton’s vehicle, he requested a backup unit as he immediately perceived the potential for criminal activity. His initial observations included: the vehicle was travelling from a high crime area; Pinkerton’s inconsistent driving behavior when he was aware of police presence—crossing the center line and failure to maintain speed; the lighting of a cigarette, which was viewed as a nervous behavior in Yoder’s experience; and the driver’s focus on the rearview mirror.

After the stop, several additional factors contributed to LE’s belief that criminal activity was afoot, including: the presence of an empty gun holster in the floorboard, bulges detected in Pinkerton’s pocket during the pat down search, nervous behaviors during conversation in the patrol car, a change in behavior upon being questioned about narcotics, and continued nervousness even after being told LE intended to simply issue a warning ticket.

Additionally, Pinkerton lied about the presence of potholes as the cause for his erratic driving, and several of his answers to questions about the presence of guns or drugs were non-responsive to the question asked (i.e., stating that there were no explosives in the vehicle in response to questions about the presence of specific drugs). Although Pinkerton initially denied the presence of controlled substances, he later stated that there “shouldn’t be” any drugs in the truck. The specific and articulable facts noted above, taken together with rational inferences from those facts, amount to reasonable suspicion that further investigation was warranted. As such, LE was permitted to prolong the traffic stop to conduct the K9 sniff. The K9’s alert then provided probable cause for the search of the truck.

Note: Since LE said at one point, he was going to give Pinkerton a verbal warning, which would have taken seconds, the court said that if there was no additional reasonable suspicion developed before the verbal warning could be given, this would be a different holding. Every agency handles warnings differently, but understand that a written warning gives you additional time to run information and assess the behavior of the motorist.

$153,340.00 in United States Currency v. State ex rel. Rankin Cnty. Sheriff’s Off. (Mississippi 2022) 2022 Miss. App. LEXIS 321
Traffic Stop; Currency Sniff; Alert as Probable Cause

In this case of asset forfeiture, suspect was lawfully stopped. Suspect admitted to possessing THC in his RV. K9 alerted on the vehicle. Inside the RV was the cash as described in the caption of the case. Later, another K9 alerted to the cash.

To support its argument that the currency was used or intended for use in drug trafficking, the State called several witnesses to testify at the forfeiture hearing. LE testified as to Taylor’s course of travel, his prior drug charge, his untruthfulness regarding the prior charge, and the vape pen containing THC. Another LE testified that $5,800 was found in a small red duffle bag and that $147,540 was found in two cardboard boxes, which were found in cabinets in the back of the RV. According to LE, suspect did not mention the currency when asked if there were large amounts of currency in the RV, and he only claimed the $5,800 in the duffle bag at the time of his release. And ultimately, a K-9 alerted to the odor of drugs on the RV and the currency.

The government had an expert testify in the field of criminal interdiction, smuggling, and drug-courier profiling and explained why he believed suspect fit the profile of a drug courier. In reaching his opinion, expert considered several factors, including suspect’s knowledge of marijuana based on his prior drug charge, suspect’s residency in a state where marijuana had been legalized, and suspect’s untruthfulness regarding his prior charge for possession of marijuana. Expert also took into consideration that suspect had traveled in a rented RV from Washington State to Atlanta quickly and with very little luggage. Additionally, after suspect allegedly turned around in Atlanta and was traveling west on I-20, he was found with the large amount of currency concealed under blankets in cardboard boxes, which were found in cabinets in the back of the RV. Finally, in reaching his conclusion that suspect fit the profile of a drug courier, expert noted the odor of drugs on the vehicle and the currency and that suspect did not claim the cash in the cardboard boxes at the time of his release. The court held that the cash was subject to forfeiture.

Note: This doesn’t really bring anything new to the table, but it confirms that an alert from a K9 (or two alerts here) are a powerful part of demonstrating probable cause in currency cases, even if such alert isn’t probable cause in itself in these cases.

United States v. Betts (Iowa 2022) 2022 U.S. Dist. LEXIS 166214
Traffic Stop; Prolonged Detention; Reasonable Suspicion

Betts was lawfully stopped by LE. Betts gave LE his license but said his insurance had lapsed. Betts was taken to the cruiser as the ambient traffic noise was too loud. LE had noticed a torch style lighter sitting on the front passenger floorboard, which LE knew to be used when ingesting controlled substances. Betts also had the characteristic rotten teeth of a methamphetamine addict and was twitching and sweating profusely. Betts travel itinerary was nonsensical, but consistent with a drug trafficker. Betts also had several drug convictions. Passenger had a different story altogether, but also had a drug history. As the warning was printing, LE inquired about controlled substances, weapons and large amounts of money. Betts denied possession of all. When asked if a K9 would alert on the vehicle, Betts appeared triggered by the question and said, “I don’t know.” Betts did claim responsibility for everything in the vehicle. LE then radio’d for a K9 team to respond. The K9 team showed up about 45 minutes later and the K9 alerted on the vehicle. Inside were guns, drugs and paraphernalia.

The court determined that at the time a K9 was requested, LE had the following information that rose to the level of reasonable suspicion of other offenses (drugs): (a) Betts was exhibiting symptoms of drug use, including sweating, labored breathing, poor dental hygiene, and quick movements; (b) a torch-style lighter (which is commonly associated with drug activity) was in Betts’s vehicle; (c) Betts was on probation for drug delivery and possession charges and had other narcotics-related criminal history; (d) the vehicle’s passenger, Wignall, also had drug-related criminal history; (e) Betts and Wignall provided inconsistent stories about their trip, with Betts saying they were on a multi-day trip to Las Vegas that was unexpectedly cut short due to a pet care emergency but Wignall saying it was a single-day shopping trip; (f) it was unusual, under Betts’s description of the trip, that someone would make such a long drive to Las Vegas for such a short stay, particularly when the person had limited means; (g) Las Vegas was a “collection point” for drug activity; and (h) Interstate 80 was a “significant thoroughfare” for drug activity.

While Betts tried to argue that taken separately, the individual observations did not rise to the level of reasonable suspicion. However, the court held that even if they engaged in the “nitpicking” Betts wanted, there was still plenty of reasonable suspicion to wait for the K9 team.

Note: Nothing really new here either, but interestingly, there was no mention by the appellate court that the factors noted by LE should be considered under a totality of the circumstances test, instead saying that the factors, even when the factors Betts challenged were not considered, were enough to find reasonable suspicion. We get to the same conclusion, but the argument is stronger with the totality of circumstances framework.

Thurman v. District of Columbia (D.C. 2022) 2022 D.C. App. LEXIS 304
Excessive Force; Negligence; Qualified Immunity; Sovereign Immunity

Thurman was a 15 year old minor who was tardy to school and therefore was not allowed in. He and three friends broke into Thurman’s great-grandmother’s house. The neighbor saw this and called 911, stating three little boys broke in. The occupant (not the great-grandmother but apparently an uncle of Thurman) of the house was not home, but LE called him and informed him of the break-in. The occupant called a friend who was also LE to report that there were 3 guns in 2 safes in the house since he did not know who broke in. This information was passed along to responding LE. Responding LE were dispatched to a burglary in progress. A K9 team responded as well until the team was informed that juveniles were involved. But when the team learned there were firearms involved, they responded because that “changes everything.” Meanwhile, when Thurman and cohorts saw LE, they fled to the upstairs where Thurman hid under a blanket.

LE decided to use K9 to search for the suspects because of the presence of guns in the house. “For tactical reasons and for officer safety,” Sergeant approved the omission of a K9 warning when the officers entered the home with K9. The agency policy on K9 teams stated that “[p]rior to all canine deployments (both tactical and non-tactical), the handler shall . . . [i]ssue a loud and clear announcement.” However, the policy allows for exceptions to the warning requirement in “exigent circumstances where specific articulated facts demonstrate the need for complete surprise or where the announcement may place the handler in imminent danger,” and “the on-scene supervisor must approve the omission.” The policy prohibits the use of canines to apprehend juvenile suspects who “pose no immediate threat of serious injury to members on the scene.”

Handler stated that they determined they would use K9 because there were weapons in the house, and the officers’ safety was their primary concern. However, the only evidence the officers had of the juveniles potentially being armed were occupant’s statements that there were weapons inside the house. In his deposition, a different handler on scene stated that this was not an exigent or emergency situation, explaining, “There was no rush or [exigent] emergency to go in there immediately without receiving authorization.”

Occupant gave the officers a key to the house. The K9 team entered the house, and other K9 team provided “tactical backup.” Both handlers maintain that they omitted a K9 warning when entering. However, one LE on scene stated that she was sure that she heard an announcement. Occupant also said that he heard the officers give a warning that they were entering the house.

K9 team had completed searching a bedroom when K9 turned away from handler and reentered the bedroom, moving toward a comforter or blanket on the floor. K9 bit the blanket and Thurman, who was hiding under the blanket. Handler said that Thurman then “popped his head . . . from underneath the comforter.” Thurman said that K9 bit him twice on the face, three seconds apart, for a total of about ten seconds. Handler said that after the two bites, he grabbed K9 to end the hold.

When they came out of the house, occupant identified Mr. Thurman as his nephew.

Thurman alleged that LE used excessive force by utilizing the K9 to apprehend him without a warning. Second, Thurman claimed that LE were negligent because they failed to follow department procedures, failed to adequately investigate the situation, failed to adequately control the dog, and improperly released the dog on him and that, therefore, the agency should be held liable for negligent hiring and training and for its policy of allowing omission of a warning prior to unleashing a K9. Finally, Thurman contended that his civil rights were violated.

LE’s expert said that the K9 team did not violate the national standard of care, which is to exercise extra care when juveniles are involved and indicated that the agency’s policy met that standard of care. The policy of when to omit a K9 warning prior to deployment also met this standard of care.

The appellate court first addressed the negligence claims. The trial court found that Thurman did not establish an applicable standard of care. The appellate court held that the Government’s expert did establish a national standard of care, which was that handlers were to exercise extra care when a deployment is being considered in a case involving a juvenile. In addition, the standard was that a warning was to be issued unless there were “exigent circumstances where specific articulated facts demonstrate the need for complete surprise or where the announcement may place the handler in imminent danger.”

The appellate court went on to find that LE failed to gather critical information; the handlers only spoke to the Sergeant who authorized no warnings were to be given. The handlers also only knew guns were in the house, but didn’t know that the occupant had indicated the guns were in safes. Tellingly, the other handler testified that “[t]here was no rush or [exigent] emergency to go in there immediately without receiving authorization.”

Based on this, the appellate court held that a reasonable jury may find a deviation from the standards described by the Government’s witness. Therefore, the court held that the negligence claims were viable against the handler. Sovereign immunity was available to the handler because the decision to omit the warning with the Sergeant’s approval was a discretionary action.

The court then addressed the excessive force claim and the constitutional claims. The court invoked qualified immunity, stating that”[t]he threshold inquiry is whether the plaintiff’s allegations, if true, show that the officer’s conduct violated a constitutional or statutory right. If so, then a court should decide whether the right that had been violated was clearly established at the time the alleged violation occurred.” The court found that there was a lack of consensus in prior case law and in its jurisdiction regarding whether the failure to warn was unreasonable. It would not be clear to a reasonable officer in this situation that he or she was violating a constitutional right when releasing a police dog, without warning, into a home with potentially armed juvenile suspects. Therefore, qualified immunity applied here.

Note: The fact that the agency policy said K9s could be deployed if there were “exigent circumstances where specific articulated facts demonstrate the need for complete surprise or where the announcement may place the handler in imminent danger,” helped in this situation. Therefore, because LE was entitled to qualified immunity on these issues, the motion for summary judgement on these claims was granted. The court was less than impressed with the facts in the case, and in retrospect, efficient and accurate communications would have helped a lot here.

Lea v. Conrad (Kentucky 2022) 2022 U.S. Dist. LEXIS 166702
Traffic Stop; Qualified Immunity; Reasonable Suspicion; Monell Claim

Traffic stop for improper wide turn. Lea claimed that he was illegally frisked. Lea also refused to consent to search of his vehicle. At that point, a K9 team was on scene. LE spent about 5 minutes looking in the car and and talking to Lea before the K9 sniffed the car. In addition, in those 5 minutes, LE did not review or check Lea’s license. Finally, the K9 sniffed and alerted on Lea’s wallet which LE had told Lea to leave behind in the car. A car search ensued and nothing was found. Lea was given a citation for the traffic offense and sent on his way.

Lea sued for violations of his civil rights. He named LE and handler as well as supervisors and policy makers in the agency. In this case, Lea had filed a motion for partial summary judgment on the basis that LE unlawfully conducted a pat-down search of Lea and prolonged the traffic stop beyond its initial purpose. LE defendants also seek summary judgment on all claims based upon qualified immunity.

The court first addressed the issue of qualified immunity regarding the frisk. To be able to conduct a Terry frisk, LE must have some good faith reasonable suspicion that the individual could be armed. LE stated that Lea was nervous and lying about the weapon (there was a miniature baseball bat in the car along with other baseball paraphernalia). Lea had denied any of these items were weapons. The court held that these items could not seriously be considered as weapons, especially since LE allowed Lea to continue to rummage through his pockets for information requested. This left nervousness as the only factor and case law is clear that this one factor is not enough for a Terry frisk. The court moved on to the second factor; whether the violated right was clearly established.

Under the circumstances clearly shown in the officers’ bodycam footage, a reasonable officer in the same situation would be aware that “[a] lawful stop does not necessarily carry with it the authority to conduct a pat-down search.” A reasonable officer would have known that nervousness was not a reliable indicator of whether a potential suspect is armed and dangerous.

Therefore, the court held that it was clearly established that LE could not frisk Lea without a reasonable suspicion that he was armed and dangerous, and that Lea’s nervousness was insufficient to justify the search. As a result, LE was not entitled to qualified immunity, and Lea is entitled to judgment as a matter of law with respect to his Fourth Amendment search claim.

The court then addressed whether there was an unreasonable seizure (the traffic stop). The appellate court held that when LE stopped Lea, it was clearly established that an officer could not extend a traffic stop, including deployment of a K9 sniff, beyond the time necessary to complete a citation without reasonable suspicion of criminal activity. Accordingly, LE is not entitled to qualified immunity, and Lea is entitled to summary judgment on his Fourth Amendment unlawful seizure claim.

The court moved on to the Monell claim against the agency based on failure to train and supervise their officers which resulted in a violation of Lea’s constitutional rights. The court held that Lea did not show that any failure of the agency to enforce the use of STOPS forms by officers was the cause of any constitutional violations committed against him. Without pointing to any evidence in the record to establish that the failure to enforce the use of STOPS forms amounted to tacit approval of a policy of constitutional violations, Lea’s Monell claim cannot survive.

Note: Apparently, STOPS forms are supposed to be filled out for every stop but Lea did not have one filled out by LE on this stop. He tried to prove that because a STOPS form wasn’t filled out for his stop, and only a handful of stops had a STOPS form filled out despite agency policy, this indicated that Lea was being treated unconstitutionally. For a Monell claim to survive, there has to be some connection by the agency’s actions or inactions that directly led to behavior that violated Lea’s rights. Lea was unable to show that here. However, the claims are still alive against the LE at that scene, including the handler.

Lightfoot v. Bartley (Virginia 2022) 2022 U.S. Dist. LEXIS 166798
Excessive Force

Lightfoot was a prisoner in a prison when the metal detector went off on him. A correctional officer searched him and found a metal object which he tried to retrieve only to have Lightfoot become aggressive and try to pull away. Lightfoot was able to throw the metal object to another inmate. Lightfoot was taken to the ground but continued to be resistive and aggressive. The K9 team became aware of the struggle and responded to the location. A K9 warning was yelled at Lightfoot but Lightfoot failed to stop resisting. The K9 was deployed on Lightfoot’s upper thigh because other officers were close. As the K9 was deployed, other LE got out of the way. Once the K9 was on the bite, Lightfoot was told to cooperate with being restrained and the K9 would be released. Lightfoot complied and the K9 was released.

Lightfoot’s story was significantly different. Basically, Lightfoot claimed compliance with LE and the K9 bit him for no reason. Lightfoot suffered shallow abrasions from the bite on his thigh. He claimed injury to his hand, but no injury was noted. Lightfoot did not comply with diagnostic testing on his hand, so could prove no injury to his hand.

Lightfoot asserted in this case that because he had filed grievances in the past, LE Massengil told handler to use the K9 on him. Lightfoot also claims that handler then used excessive force against him by engaging the canine while he was face down and under the control of two officers. Finally, Lightfoot claims that LE violated his constitutional rights by failing to intervene to prevent handler’s use of excessive force.

LE filed a response which included video footage of the incident. Lightfoot did not challenge the validity of the video footage or the accuracy of its depiction of events.

The court carefully reviewed the surveillance footage of the altercation between Lightfoot and the officers, a video camera recording of Lightfoot being assessed and treated by medical staff and escorted to segregation, and a photograph of his dog bite injuries after the nurse cleaned and applied ointment to them. The running timer on the video footage of the area reflects that the entire incident at issue in Lightfoot’s claims occurred in less than one minute.

The video footage of Lightfoot in the medical unit included audio. The viewer could clearly hear Lightfoot say that he was attacked by the officers while he was in handcuffs and shackles. Contrary to Lightfoot’s assertions, the court concluded that Lightfoot’s account was so blatantly contradicted by the video that no reasonable jury could believe Lightfoot’s version of the incident. The surveillance video clearly contradicts Lightfoot’s claims that Massengil was present when the K9 engaged on Lightfoot’s leg. The video shows that only handler and two other LE were in the area when the dog engaged. Thus, no reasonable juror could believe Lightfoot’s allegations that LE urged use of the dog to retaliate against Lightfoot for filing grievances or that Massingill held the inmate down during the K9 encounter.

The video also directly contradicted Lightfoot’s contentions that handler was prevented from entry by a locked door and that handler engaged the K9 without warning. As indicated, the video reflected that handler entered through an open door from the rec yard and did not immediately engage the K9. Rather, handler paused for a few seconds as LE continued their attempts to control and handcuff Lightfoot. The video also showed that contrary to Lightfoot’s allegations, he was moving his upper body about as the officers struggled unsuccessfully to keep control of his hands and apply handcuffs.

The video clearly indicated that LE did not hold Lightfoot down when handler engaged the K9, as Lightfoot had claimed. Rather, the officers rolled or stepped away from Lightfoot in almost the same instant that the K9 engaged. According to the video timer, handler took the K9 off Lightfoot’s thigh after no more than four seconds, contrary to Lightfoot’s claim that the officers maliciously allowed the dog to chew on his leg for a long time to punish him. The photographs and medical records about Lightfoot’s injuries also contradict his claim that handler misused the dog to punish him. Rather, this evidence indicated that the injuries Lightfoot suffered were small abrasions that had already stopped bleeding before the officer photographed them and required no stitches or ongoing treatment.

In short, the unchallenged video footage soundly contradicted nearly every facet of Lightfoot’s constitutional claims of retaliation, excessive force, and bystander liability. After carefully viewing the footage, no reasonable jury could find that any of the LE used physical force or the canine “maliciously and sadistically to cause harm,” as required to state an Eighth Amendment excessive force claim.

Note: The video tape made it easy for the court to rule early in the case that Lightfoot was full of it. This deployment was textbook and handler only used necessary force to get Lightfoot handcuffed as evidenced by the minimal injury he suffered. This case is also a good reminder that criminals sometimes lie even when the truth is the complete opposite of what criminal claims. That’s why surveillance and body cameras are really a good thing for LE.

State v. Hicks (Louisiana 2022) 2022 La. App. Unpub. LEXIS 129
Traffic Stop; Prolonged Detention; Reasonable Suspicion

LE was dispatched to a suspicious vehicle in a vacant lot around 0800. No one was present, the hood was cold and there was no answer when LE tried to contact the registered owner. LE followed some footprints, but still found nothing. LE told the owner of the property he could have the vehicle towed if he wished to contact a tow service. While this conversation was happening, LE saw the vehicle drive by so he pulled the vehicle over. LE questioned the driver (Hicks) why the car was on private property and Hicks claimed to be fishing in the pond like he had done for a couple of years (there was a pond on the property). The owner of the vehicle was a passenger and was acting strangely, looking up, down and back and was bending over and popping up, going in and out of sight. Consent to search the vehicle was denied. Occupants were ordered out of the vehicle and a K9 team was requested. LE did note that there were fishing poles in the car which weren’t there when the car was parked. When the K9 team arrived about 20 minutes later, the handler had the K9 perform an open air sniff and the K9 alerted on the vehicle in about a minute and a half. A search of the vehicle revealed some methamphetamine and paraphernalia.

The appellate court here concluded that the stop was not due to a traffic violation, but was instead based on reasonable suspicion, and in fact, probable cause, that criminal trespass of immovable property had just been committed. Criminal trespass is an arrestable offense, punishable by imprisonment for up to thirty days for a first offense. While Hicks contends that the stop was unjustifiably prolonged, the record reveals that the stop progressed quickly. At the point of the stop, before LE called the K-9 unit, his suspicions were heightened as he observed passenger’s movements and the fishing gear in the vehicle. Hicks then admitted to fishing in the pond adjacent to the private property in question, constituting more than reasonable suspicion of additional criminal activity, theft of livestock, which is another arrestable offense. LE’s growing suspicion of criminal activity was further based on the Hicks’ repeated interruptions as LE addressed passenger in seeking consent to search her vehicle. With noted safety concerns, LE ordered the occupants to exit the vehicle early on, after being denied consent to search the vehicle, and the K9 unit arrived within fifteen to twenty-five minutes. The moment the canine alerted LE had probable cause to search the vehicle. Considering the totality of the circumstances, no unreasonable seizure or detention of Hicks occurred in this case.

Note: This is a good demonstration that you don’t have to have an additional traffic offense to make an investigatory stop. If you have reasonable suspicion of a crime, then you can detain a suspect to further that inquiry. Interestingly, there was no argument made concerning what the K9 was supposed to find that would assist in the investigation of trespass and theft of livestock. I think this argument can be made and could be successful. Make sure you have facts that would require the services of your K9 before the sniff. 

Hypes v. Commonwealth (Virginia 2022) 2022 Va. App. LEXIS 419 (Unpub.)
Traffic Stop; Prolonged Detention

LE saw Hypes driving a truck with farm use tags and make two lane changes without signaling. LE lit him up, but he slowed down, turned right and continued about another quarter mile before stopping at a dead end. LE had reported this as a pursuit but it ended about 2 minutes in. Hypes presented his driver’s license, but registration could not be found. Hypes’ license was suspended but Hypes did not have notice. While LE was waiting for confirmation of the VIN, LE asked for consent to search. Hypes said no and called his lawyer. LE then called for back up and a K9 team.

LE received the VIN information and he started to prepare the summons for the improper-lane-change citation and the notice of suspension of Hypes’s license. LE’s attention at first was divided between preparing the paperwork and watching Hypes and his passenger. But then back up arrived at 12:30 a.m., allowing LE to focus his full attention on the paperwork.

When handler arrived and spoke to LE, a conversation that lasted fifteen to thirty seconds, LE asked him to deploy K9, and handler agreed. At that point, LE was still preparing the summons and notice of suspension, so he did not track how long the K9 sniff took. LE testified that he did not purposefully delay in writing the summons or the notice of suspension.

Handler testified that K9 took two passes around the vehicle and responded with a “positive alert.” Handler estimated that the time between his arrival and K9’s alerts was a “[l]ittle over five minutes.” In the meantime, LE completed the summons and the suspension notice. He testified that it took him at least 13 minutes. A search of the truck revealed a gun and paraphernalia with methamphetamine residue.

Hypes did not challenge the stop, but claimed that the stop was unduly prolonged. The appellate court could say that the trial court plainly erred in finding that LE here did not prolong the stop for the K-9 unit to conduct a dog sniff. In finding that the K9 sniff did not prolong the stop, the trial court relied on LE’s testimony—which the court found credible—that the time it would take LE to prepare the summons and notice of suspension was about as long as the time between when Hypes’s truck came to a stop and when the K9 unit arrived. LE testified that he started to prepare the paperwork when he received the VIN information. He was still working on it when handler arrived and proceeded to conduct the dog sniff, which took about five minutes. LE testified that it took him “[a]t least thirteen” minutes to complete the paperwork, and the trial court found that he was still working on the paperwork when handler completed the K9 sniff.

The court was not persuaded by Hypes’s claim that LE failed to exercise due diligence and delayed the stop by waiting for the result of his VIN inquiry before preparing the summons and the license-suspension notification. Hypes’s counsel conceded at oral argument that the VIN information was relevant and important in traffic stops involving farm-use vehicles. It was reasonable for Hodge to determine whether the truck properly bore farm-use tags and whether other violations existed. Since Hypes lacked written proof of registration, LE had to seek that information from the sheriff’s office. That LE did not ultimately write the VIN on the summons does not show that his inquiry was unrelated to the proper mission of a traffic stop, which typically includes inquiries about the vehicle’s ownership and registration.

While an officer must be “reasonably diligent” in completing “traffic-based inquiries expeditiously,” the standard is reasonableness, not maximum speed. Hypes has not cited any authority that the Fourth Amendment compelled Hodge to start writing the summons and suspension notice as soon as possible, before he received the VIN information, and to complete it as fast as possible. The question is “when tasks tied to the traffic infraction are—or reasonably should have been—completed.” As long as the officers completed their duties with “reasonable diligence” and did not act to prolong the stop “for purposes beyond the mission of the stop,” courts do not require that they act in the fastest or most efficient manner possible. The appellate court affirmed the trial court’s denial of Hypes’ motion to suppress.

Note: There were some fairly large holes in the timeline regarding when things happened and how long they took. There is no mention of video so apparently they had to rely on the CAD document which can be quite wrong as the dispatcher is only recording things as they are called in, not when they actually happened. Fortunately, the trial court stated that the testimony of LE was credible while Hypes’ testimony was not.

State v. Harvey (Ohio 2022) 2022-Ohio-3111
Traffic Stop; Prolonged Detention

Handler was patrolling with his K9 when a fellow officer pulled over a vehicle in which Harvey was a passenger. Back up LE stopped as well. The stop was for an obscured registration tag. The driver could only produce her license and not registration or insurance. Driver had confusing answers regarding her travels and why she was out with very young children at night getting food. Handler placed driver in his cruiser. Handler then questioned Harvey and after a Terry frisk, put him in a cruiser as well. Back up started to run the information on both parties while handler performed a free air sniff. The K9 alerted to the vehicle. This took a little less than 9 minutes from start to finish. Some heroin was found in a woman’s boot but Harvey admitted knowledge of it.

The court determined that while handler was waiting for LE’s computer check on the driver’s licenses, missing vehicle registration and proof of insurance, he walked K9 around the exterior of the stopped vehicle. The entire process, from initial approach of the vehicle to K9’s passive indication of narcotics, took approximately nine minutes.

The court found that there no delay caused by calling for a narcotics-detection dog and waiting for its arrival because K9 was already on the scene. Harvey was lawfully detained, and the purpose of the traffic stop had yet to be fulfilled, so there was no Fourth Amendment violation in handler’s decision to walk K9 around the stopped vehicle.

Note: The court quoted Illinois v. Caballes, stating: The use of a drug-detection dog does not constitute a search, and an officer is not required, prior to a dog sniff, to establish either probable cause or a reasonable suspicion that drugs are concealed in a vehicle. The officer needs no suspicion or cause to run the dog around the stopped vehicle if he does it contemporaneously with the legitimate activities associated with the traffic violation. Here, because there was a K9 team and another LE present, the sniff could be accomplished during the traffic investigation without additional reasonable suspicion.

State v. Teague (North Carolina 2022) 2022-NCCOA-600
Package Sniff; Standing; Hemp v. Marijuana; Alert as Probable Cause

LE was present at a FedEx facility to do package interdiction. LE saw a package on the conveyor belt that had indicators that the package contained contraband. He removed the package and ran the sender and recipient information from the shipping label and found the listed phone numbers did not match the sender or the recipient. The package was set aside for the K9 team. K9 alerted to the package. Inside were baggies of marijuana and a GPS tracking device. LE went to the “sender” address and saw people in the drive (one was later determined to be Teague, the “recipient”). LE noticed a storage unit business close to the sender residence.

Later that day, the “sender” called about the location of the package. LE confirmed all details with this person and then identified himself as LE. “Sender” cursed and hung up. The next day, LE went to the storage facility and K9 alerted to a particular unit. LE left to obtain a search warrant for the unit. Before the search warrant returned, Teague arrived and approached the unit with a bag in his hand. LE intercepted him and patted him down.

When Teague placed the bag on the back of his car, LE observed a substance inside of the bag that he recognized, from his training and experience, as “marijuana wax.” LE handcuffed Teague, and they waited for LE to return with the search warrant. After LE returned and read the search warrant to Teague, the officers opened the storage unit with the use of a key provided by Teague. Inside, the officers found a box containing more vacuum-sealed bags of what appeared to be the same green, leafy substance that they recognized as marijuana, and a suitcase containing several clear jars of a brown substance that LE later testified was “commonly referred to as shatter . . . . [I]t’s cooked-down marijuana. It’s highly concentrated THC.” A roll over warrant on Teague’s residence revealed more contraband.

First, Teague claimed the seizure and sniff of the package was unconstitutional. The court made short work of that claim, stating that even though Teague was the intended recipient of the package, this is not enough to vest Teague with standing for this package. Therefore, the act of removing it from the conveyor belt or having the K9 sniff the package (which took place shortly after the removal) were not unconstitutional. However, once the K9 alerted on the package, LE had probable cause to seize it and seek a warrant. Taken together, neither the removal of the package nor the K9 sniff violated Teague’s Fourth Amendment right to be free from unreasonable searches and seizures because under the facts presented, those acts constituted neither a seizure (the removal) nor a search (the K9 sniff). Rather, those acts, viewed in the totality of the circumstances, merely provided further support for LE’s determination that probable cause existed to pursue a warrant.

Industrial Hemp Argument

North Carolina had legalized industrial hemp, defined as a variety of the Cannabis Sativa species that has very low levels of THC (not to exceed 0.3%) on a dry weight basis. Teague claimed that the passage of the Industrial Hemp Act altered the legal landscape surrounding marijuana and THC, changes which resulted in prejudicial errors during several stages of his prosecution. Specifically, Teague challenged: (1) the validity of the indictment charging him with possession with intent to sell or deliver THC; (2) the sufficiency of the State’s evidence regarding the charge of possession with intent to sell or deliver THC; and (3) the admissibility of the opinion testimony of witnesses for the State identifying the various seized substances as “marijuana,” “marijuana wax,” “shatter,” and “highly concentrated THC.”

The appellate court addressed this issue with the reasoning in United States v. Brooks (North Carolina 2021) 2021 U.S. Dist. LEXIS 81027:

“Assuming, arguendo, hemp and marijuana smell “identical,” then the presence of hemp does not make all police probable cause searches based on the odor unreasonable. The law, and the legal landscape on marijuana as a whole, is ever changing but one thing is still true: marijuana is illegal. To date, even with the social acceptance of marijuana seeming to grow daily, precedent on the plain odor of marijuana giving law enforcement probable cause to search has not been overturned. Therefore, if hemp does have a nearly identical smell to marijuana — and hemp was present — it would suggest to this court that [the law enforcement officer] was even more reasonable to believe evidence of marijuana was present.” This appellate court agreed with this reasoning.

Note: The court here took a much more sensible path in determining how cases that may involve hemp. That is refreshing. But as marijuana becomes legalized for recreational use, these analyses will change. Stay in touch with your local prosecutor and this website.

Santiago v. Inch (Florida 2022) 2022 U.S. Dist. LEXIS 160516
Alert as Probable Cause; Reliability Foundation; Qualified Immunity

Santiago went to a state department of corrections facility for visitation. Correctional officers (CO) had Santiago removed from the visitation area and escorted to the parking lot. Santiago alleged that CO told her a K9 had alerted on her vehicle. They asked for consent to search which was refused. They then told Santiago that they were going to obtain a warrant for the vehicle so she should just consent. Santiago acquiesced and the car was searched. There was a small amount of synthetic marijuana. Santiago was charged with possession and attempted smuggling into the prison. However, the state attorney’s office dismissed the charges, stating that there were irregularities in the training and record keeping regarding the K9s and that the CO that submitted the case did not have authority to arrest as they were correctional officers and not LE.

Santiago sued COs. The appellate court held first that there was sufficient evidence for the question of violation of civil rights to go to the jury as in her Second Amended Complaint, Santiago alleges that “the K-9 and its handler do not possess the proper training or law enforcement certification.” Accepting this factual allegation as true and drawing all reasonable inferences in favor of Santiago, the Court finds that this allegation “allows the [C]ourt to draw the reasonable inference” that COs are “liable for the misconduct alleged.” If, as alleged, CO’s K9 was not a “well-trained” drug-sniffing dog, the K9’s alert did not provide probable cause to search Santiago’s vehicle. In the absence of probable cause or some other circumstance that rendered the search reasonable, CO’s warrantless search violated Santiago’s Fourth Amendment rights.

The court then moved on to whether this was a clearly established right. Since according to Santiago’s allegations, the K9 was not properly trained, its alert could not provide probable cause. Because Santiago has alleged that COs violated her clearly established right to be free from a warrantless search of her vehicle without probable cause, the Court finds that COs are not entitled to qualified immunity at this stage of the proceedings.

Note: Santiago also sued the department as well as some higher ups in the department. Santiago did not plead causes of action against them, but the actual COs that participated in this are still on the hook. The fact that the prosecutor stated there were issues of training and record keeping is a huge red flag. These COs should pursue a settlement as soon as possible, given this record.

Payne v. Swift (Kentucky 2022) 2022 Ky. App. Unpub. LEXIS 504
Excessive Force; Qualified Immunity; Qualified Official Immunity; Negligence

LE detained Swift during a drug raid of Swift’s residence. LE found drugs on Swift’s person and numerous weapons in his residence. While law enforcement was executing a search warrant, Swift was escorted to the back porch of the house and handcuffed behind his back. The handcuffs were later moved to the front of his body because Swift complained about the pain he was experiencing in his wrists.

Swift claimed he needed to relieve himself. He was allowed to walk away from the residence and then LE lost track of him. Swift claims he fell asleep. Once LE realized Swift was missing, they attempted to relocate him. Approximately an hour and a half passed until handler showed up with his K9.

After LE searched for Swift without success, the K9 team was added to the search. Several K9 warnings were given. Numerous weapons had been recovered from the main building of the property and that the buildings located on the rear of the property had not been searched, which made LE fear for the safety and well-being of themselves and others since Swift may have had access to a weapon and have been armed. Swift claimed there were no warnings and LE just released K9 without announcement.

K9 located and apprehended Swiftmby biting him in the face. The injuries were significant and required plastic surgery.

Handler claimed qualified immunity, recounting that Swift fled into a wooded area at night, and at the time, it was unknown if Swift was armed, as numerous weapons were seized at the residence. Additionally, handler stresses that K9 was on a lead tracking Swift and that he gave multiple verbal K9 warnings prior to locating Swift. Handler states that when K9 seized Swift by biting him, handler saw Swift hiding in a hole and thereupon removed K9. Handler maintains that his use of K9 was objectively reasonable under these circumstances and did not amount to excessive force.

The court then analyzed this case using the Graham v. Connor factors. The first factor is severity of the crime. It is undisputed that handler was informed that a methamphetamine lab and several firearms were found at Swift’s house. Additionally, handler was informed that Swift had been handcuffed in the front, had fled the scene on foot at night, and had been missing for about an hour and a half. Handler also knew that Swift would be charged with several felonies and could have possibly obtained a weapon from outbuildings on the property. Based upon these undisputed facts, the court believed this factor weighs in favor of handler.

The second factor is the potential threat that Swift posed to handler and to the public. Again, it is uncontroverted that Swift was handcuffed in the front and thus could have possibly obtained a weapon from outbuildings on his property. There were several weapons seized from within his home, and Swift fled into the woods at night. So, Swift secluded himself in a wooded area at night; a position that provided Swift with the opportunity to easily ambush handler. Based upon these undisputed facts, the court believed that a reasonable police officer under these circumstances would believe that Swift posed a threat to the officers’ safety.

The third factor is whether the suspect was actively resisting arrest or attempting to evade arrest by fleeing. Here, the facts are clear that Swift fled into a wooded area at night and hid in a hole. The police, including handler, could not locate him until K9 seized Swift by biting and holding him. At this time, handler entered and withdrew K9. Swift testified that he fell asleep in the hole and did not hear the officers searching for him; however, Swift admitted that he was attempting to escape. Based upon these undisputed facts, it is clear that Swift’s intent was to flee and escape arrest.

Therefore, considering the totality of circumstances in the light most favorable to Swift, the court concluded that handler’s use of K9 did not constitute excessive force under the Fourth Amendment and that handler was entitled to qualified official immunity.

Handler also asserts that the circuit court erred by denying his motion for summary judgment to dismiss Swift’s negligence and gross-negligence claims upon the basis of qualified official immunity. Handler argues that his use of K9 constituted a discretionary act that was performed in good faith. Thus, handler believes he is entitled to qualified official immunity.

Qualified official immunity (or sovereign immunity) is applicable to a discretionary act negligently performed by a public official when done so in good faith and within the scope of the official’s authority. Thus, the public official must be performing a discretionary act as opposed to a ministerial act. A public official has no qualified immunity in relation to the performances of a ministerial act. A ministerial act is generally “one that requires only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Conversely, a discretionary act is one “involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment.

In Kentucky, the good faith requirement of qualified official immunity has two components — objective and subjective. The Kentucky Supreme Court has defined the two components:

Thus, bad faith [or the lack of good faith] ‘can be predicated on a violation of a constitutional, statutory, or other clearly established right which a person in the public employee’s position presumptively would have known was afforded a person in the plaintiff’s position, i.e., objective unreasonableness.’ Acting in the face of such knowledge makes the action objectively unreasonable. Or, bad faith can be predicated on whether the public employee ‘willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive,’ which requires a subjective analysis.

If the public officer demonstrates prima facie that her act was discretionary and performed within the scope of her duty, the burden then shifts to plaintiff to demonstrate the discretionary act was not performed in good faith.

Relevant herein is the Kentucky State Police Canine Section Standard Operating Procedures CN-07, which provides, in part:

A. Canine teams shall provide assistance to all Kentucky State Police personnel for criminal investigations when tracking suspects is required. Canine teams shall also provide assistance to Kentucky State Police personnel in criminal investigations when locating narcotics is required.

G. Tracks for missing persons should be done on lead, and the handler shall use the utmost care to insure the safety of persons being tracked and officers assisting in area.

Citing to the above, Swift believes that Subsection G imposes a ministerial duty upon handler “to use the utmost care to insure the safety of persons being tracked.” While the court agreed that Subsection G states that an officer shall use the utmost care to ensure the safety of others, the court disagreed that Subsection G creates a ministerial duty; rather, it is a fundamentally discretionary act.

The actual task of handling a K9 tracking an individual involves a multitude of decisions, some of which must be made by the handler on a moment’s notice in uncertain circumstances. These type of decisions are inherently discretionary in nature, as opposed to well-defined rules or duties. Therefore, the court concluded that handler’s use of K9 to apprehend Swift was discretionary.

As to good faith, we do not believe that Swift has set forth facts or evidence illustrating that handler violated Swift’s rights or acted with malicious intent to cause injury or a deprivation of rights. Therefore, the court held that handler is entitled to qualified official immunity against the claims of negligence and gross negligence.

Note: Negligence claims are coming up more and more. Basically, if you’re acting legally and appropriately based on a good analysis of Graham v. Connor, you should be fine both in the constitutional sense as well as negligence claims.