September 2020 Update for Meyer’s K9 Law (Volume 1, No. 4)

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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from August of 2020. (A note here: some cases are unpublished (Unpub.) so cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking and the arguments in them can be used; the case just can’t be cited as precedent in court.)

If you are new to the website, thank you for becoming a member! Please feel free to browse through the previous updates. Each update has not only a review of the PSD relevant cases for the month, but also has an article that explores a specific issue in more depth. If anyone would like me to address a particular issue, please feel free to email, text or call me.

For the article this week, I have addressed the state of marijuana legalization in the country. This issue has become particularly relevant for handlers and policy makers as legalization appears to be the wave of the future.

I hope these case reviews and article help you. Meyer’s K9 Law is here to assist you in fighting the good fight of responsible and effective policing. As always, if you have any questions or concerns, I’m just an email or text or phone call away.

(Disclaimer: I do not represent any handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. It is not legal advice.)


Abney v. Craig (Mich.) Traffic Stop; Excessive Use of Force; Automobile Search; Qualified Immunity

Commonwealth v. Linaberry (Pa.) Odor of Marijuana; Terry Frisk; Waiver

Hamilton v. Williams (Fla.) Excessive Use of Force

Gonzalez v. City of Rochester (N.Y.) Excessive Use of Force; False Arrest/Imprisonment; Qualified Immunity; Detention v. Arrest; Monell Liability

People v. Lopez (Cal.) Traffic Stop; Odor of Marijuana

Muhammad v. State (Ind.) Traffic Stop; Probable Cause; Odor of Marijuana

Commonwealth v. Randolph (Pa.) Traffic Stop; Odor of Marijuana

State v. Wallace (Ohio) Odor of Marijuana; Curtilage

Brown v. Kazmierski (Wis.) Odor of Marijuana; Probable Cause

Embry v. Commonwealth (Ken.) Odor of Marijuana; Probable Cause

Birkeland v. Jorgensen (8th Cir.) Excessive Use of Force; Qualified Immunity

United States v. Saxton-Smith (Penn.) Odor of Marijuana; Probable Cause

State v. Wilson (Mont.) Reasonable (particularized) Suspicion; Traffic Stop; Alert as Probable Cause

People v. McGee (Cal.) Traffic Stop; Odor of Marijuana; Probable Cause; Automobile Exception

State v. Franklin (N.C.) Traffic Stop; Reasonable Suspicion; Odor of Marijuana

United States v. Pierre (La.) Traffic Stop; Odor of Marijuana; Probable Cause; Prolonged Detention

Enriquez v. State (Tex.) Traffic Stop; Reliability Foundation; Alert/Final Indication Indicators; Alert/Final Indication as Probable Cause

United States v. Abari (Minn.) Curtilage; Reliability Foundation

State v. Randall (Ida.) Traffic Stop; Reasonable Suspicion; Consent; Entry by PSD into Vehicle; Prolonged Detention

Dowell v. Layfayette Police Department (Ind.) Eighth Amendment Violation; Excessive Force; Monell Liability

Matthews v. Huntsville Police Department (Ala.) Excessive Use of Force; Qualified Immunity

People v. Tarcardon (Cal.) Odor of Marijuana; Detention

United States v. Knights (11th Cir.) Consensual Encounter; Odor of Marijuana

State v. Massey (S.C.) Scent Tracking

United States v. Stephen (11th Cir.) Consensual Encounter; Curtilage; Smell of Marijuana as Probable Cause


The Federal Government

Because the vast majority of Americans support the legalization of marijuana for at least limited use, the federal government is experiencing a lot of pressure to legalization marijuana and this movement is happening on several fronts; hemp production, medical marijuana and recreational marijuana.

While previous attempts at rescheduling marijuana have not been successful. the federal government has been making in-roads on the federal position that marijuana is illegal as a Schedule 1 drug (highly addictive with no medicinal purpose).

  1. Hemp Production

In 2014, Congress passed the Farm Bill to allow for a 4 year period of research on hemp (ending on October 31, 2020). This bill allowed farmers to produce hemp that had no more than 0.3 percent of delta-9 THC concentration on a dry weight basis (however, there was no requirement that the testing be done by a DEA approved laboratory). There was no requirement for states or tribal nations to submit their plans to the USDA, but required them to follow state requirements. There were varying requirements (state imposed) to share information with LE depending on the state.

In 2018, another Farm Bill directed the USDA to set up a mechanism to require participating states and tribal nations to submit a production plan to the USDA for approval which meet the requirements outline in the Interim Final Rule published on October 21, 2019 (this did not affect the on-going pilot programs under the 2014 Farm Bill). Under this regulatory scheme, states and tribal nations with approved plans will be able to produce hemp, but they must register their production area with the Farm Service Agency (FSA) of the USDA. Again, the product can only have 0.3 percent delta-9 THC concentration, but the testing must be done by a DEA approved laboratory. Any non-compliant product must be disposed of using DEA and Controlled Substances Act (CSA) procedures. Producers cannot move any product into commerce without receiving a passing test result. The 2018 Farm bill requires information sharing with law enforcement.

  1. Medicinal Use

As far back as 1978, the federal government supported the Compassionate Investigational New Drug programs. About 13 people were able to participate in this program, but it was discontinued in 1992 when a flood of new applicants with AIDS and concern that it undercut the Bush administration’s efforts to discourage illegal drug use. There are only 2 people left who receive marijuana under this program. A federal lawsuit in 2000 (Conant v. McCaffrey) affirmed the right of physicians to recommend (but not prescribe) marijuana. However, because marijuana remains a Schedule 1 drug, medicinal marijuana use is still federally illegal.

  1. Recreational Use

Marijuana remains federally illegal for recreational use at this time. However, there has been movement by the federal government in the past towards legalization. In 2013, the federal Department of Justice issued a memo to federal prosecutors that the enforcement of state legal medical marijuana cases were not a priority (Attorney General Jeff Sessions rescinded this memo in 2018). In 2014 and 2015, Congress approved a budget amendment that prohibits federal Justice Department funds from being used to prevent states from implementing medical cannabis laws.

More recently, on June 20, 2019, an amendment to the budget amendment prohibiting Justice Department funds from being used to prevent states from implementing medical cannabis laws was approved by the House. This amendment further protected state action on medical marijuana.

Also, on September 25, 2019, the House of Representatives approved the Secure and Fair Enforcement (SAFE) Banking Act. The bill, which seeks to improve access to banks for cannabis businesses, is the first standalone cannabis reform bill approved by either chamber of Congress.

Finally, on November 20, 2019, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act passed the House Judiciary Committee by a 24–10 vote. It was the first time that a bill to federally legalize cannabis had ever passed a congressional committee.

  1. Conclusion

While federal use of marijuana remains illegal at this time, it is clear that the trend is to establish some foothold in which the federal government can legalize marijuana to at least some extent. To legalize marijuana for medicinal use, marijuana proponents have filed federal lawsuits to attempt to force the DEA to re-schedule marijuana to a schedule that asserts that marijuana has medicinal use. In addition, the recent bills that have been passed indicate that Congress is paving the way for medicinal legalization and, quite possibly, recreational legalization.

State Marijuana Legalization

As January 2019, 33 states, four U.S. territories and the District of Columbia have legalized marijuana for medicinal use. Out of the 33 states, 11 have legalized marijuana for adult recreational use. 14 other states have laws limiting THC content for the purpose of allowing access to CBD product. This year, five states have placed legalization on their ballots for some form of legalization; medicinal, recreational or both.

Those five states are Arizona, New Jersey, South Dakota, Montana and Mississippi. In Arizona, voters narrowly defeated an initiative for recreational marijuana use in 2016. This year, Proposition 207 which would make marijuana legal for recreational use has major cannabis industry support, but is still opposed by the governor, the Chamber of Commerce and other organizations that oppose legalization of marijuana.  In New Jersey, the governor has vowed to deliver on his campaign promise to legalize marijuana. New Jersey has already legalized medical marijuana. The voters will decide whether to legalize marijuana for recreational use in this election. South Dakota’s Measure 26 would establish a medical marijuana program; Amendment A would legalize recreational cannabis and require the state legislature to adopt medical marijuana and hemp laws. Montana has two marijuana initiatives on the ballot. I-190 would allow legal recreational use and CI-118 would establish the legal age as 21 to purchase, possess and consume marijuana. Finally, in Mississippi, there are two competing measures. Initiative 65 (a citizen petition), would allow medical use of marijuana for 22 qualifying medical conditions and establish a regulatory program for business to grow and sell marijuana. The competing measure, 65A (drafted by the state legislature) would require that medical marijuana products be of pharmaceutical quality, would limit use of medical marijuana to the terminally ill, and leaves the future creation of rules and programs to the legislature.

Why Should PSD Handlers and PSD Policy Makers Care about How the Government views marijuana?

Handlers are increasingly seeing courts become reluctant to recognize a positive alert/final indication by a PSD as probable cause in cases where states have had some form of legalization. Initially, it was thought that PSDs should continue to be trained on marijuana because the black market for marijuana continues to thrive (some information indicates that the it’s actually improving for states with legalized marijuana). However, as legalization increasingly looks to be the direction the majority of the states as well as the federal government seems to be going, PSDs who are trained on marijuana may be more of a hindrance than a help. Marijuana is ubiquitous; a vast majority of the public uses it. Since a PSD cannot detect amount, but only the scent, of marijuana, PSDs often alert when there is only a “legal” amount of marijuana present. This creates problems in enforcement, given the trend in the case law. An alert/final indication has slipped to only a part of probable cause; not probable cause in itself. See April 2020 Update for a more in-depth analysis of marijuana search and seizure. Therefore, Meyer’s K-9 Training and Meyer’s K-9 Law recommend that new dogs not be trained on marijuana. For PSD’s that remain in the field who are already trained on marijuana, make sure you understand the state of the in your jurisdiction. Generally, if there has been no legalization, an alert/final indication will constitute probable cause. In states where legalization has occurred, an alert/final indication will only be an element in building probable cause.


Abney v. Craig (Mich. 2020) 2020 U.S. Dist. LEXIS 157659

Traffic Stop; Excessive Use of Force; Automobile Search; Qualified Immunity

Traffic stop of vehicle that almost hit LE cruiser. Driver was “covered in knives” and there was a strong odor of marijuana coming from the driver or vehicle. Driver was removed from vehicle, handcuffed and told to wait on the shoulder of the road while LE searched the vehicle. Nothing was found and ultimately driver was released without a citation. Driver had no complaints at the time, but filed a lawsuit alleging civil rights violations, excessive force, physical injury and pain and mental anguish, etc. The court made short work of his allegations, holding that LE had probable cause to pull driver over; that handcuffing driver was proper given the knives and the smell of marijuana; and that the search of the vehicle was proper given that the “odor of marijuana at the time of the stop, by itself, provides grounds for the car search.” The court then went on to hold that since driver could not show any constitutional violation, LE was entitled to qualified immunity as well.

Note: Because the driver filed a federal civil rights claim in federal court, the court applies federal law in terms of search and seizure. Here, since marijuana is still illegal federally, the court easily found that odor of marijuana is probable cause to search the vehicle.

Commonwealth v. Linaberry (2020) 2020 Pa. Super. Unpub. LEXIS 2774

Odor of Marijuana; Terry Frisk; Waiver

LE was at a motel which they knew was often used by drug traffickers. As a car passed them in the parking lot, LE smelled the odor of burnt marijuana. LE asked driver what he was doing there and he said he was returning a credit card to a motel guest. Based on the odor and driver’s erratic speech (not further described), LE asked driver to exit. LE Terry frisked the driver and the rest of the case hung on the discoveries that flowed from this frisk. During the lower court proceedings, the People relied on the Terry frisk being legal, which was not successful (cannot Terry frisk unless LE can articulate facts that support that driver was armed/dangerous). During appellate review, the People tried to raise the issue of the smell of burnt marijuana providing probable cause for the search of the vehicle. However, the appellate court deemed that the People had waived their right to this argument because it was not raised in the lower court.

Note: No new law covered here, but a good reminder that all avenues of admissibility should be raised at every level in each case. Losing a case on a legal technicality, rather than the facts of the case, is avoidable.

Hamilton v. Williams (Fla. 2020) 2020 U.S. Dist. LEXIS 155546

Excessive Use of Force

LE went to subject’s house after a civilian claimed subject attacked him. Civilian had appropriate corresponding injuries. LE asked a PSD team to accompany them to talk to subject who had an extensive and violent criminal record. LE databases indicated that subject was a violent offender and possibly armed and dangerous. When LE arrived at subject’s residence, subject came outside to deal with his kenneled dogs. LE told subject to stop and to come towards them. LE announced themselves as police. Subject turned around and ran back into his residence. Handler kicked door open as subject was trying to close it. Another announcement was made including a PSD warning. Subject refused to obey and continued to walk further into the residence, shouting at LE. At that point, having considered subject’s criminal history and the fact that they were in an unsearched residence where subject had superior knowledge of the presence of possible weapons, handler released PSD who bit subject and took him to the ground. Subject fought with the PSD and did not comply with orders. Handler physically placed subject facedown and then released the PSD. Subject treated for bite wounds which were cleaned and steri-stripped. The court held:

“The use of the canine to subdue (subject) also was not an excessive use of force under the circumstances. Although the crime (subject) was being arrested for (simple battery) was not all that severe, the remaining Graham factors tilt in (handler’s) favor. (Subject) fled immediately when the officers announced themselves as police officers and actively resisted all (handler’s) commands to surrender. And as explained above, (subject’s) presence in an unsecured house endangered the safety of the officers on scene, especially when considering his violent criminal history. It was thus reasonable for (handler) to release the canine to neutralize quickly what he perceived to be a potential armed threat. This choice was the type of split-second decision officers are repeatedly confronted with in the field and that the Court in Graham warned against second-guessing. See Graham, 490 U.S. at 396-97. Likewise, the Court will not second-guess (handler) here. See, e.g., Edwards v. Shanley, 666 F.3d 1289, 1295-97 (11th Cir. 2012) (finding officer’s “split-second” decision to release canine to track and initially subdue suspect fleeing on foot from scene of minor traffic offense was reasonable under the circumstances).”

Note: Nothing really new here, but good analysis of the Graham factors, especially considering not all of them were in LE’s favor.

Gonzalez v. City of Rochester (N.Y. 2020) 2020 U.S. Dist. LEXIS 154973

Excessive Use of Force; False Arrest/Imprisonment; Qualified Immunity; Detention v. Arrest; Monell Liability

Report to 911 re: man with a long gun. Arriving on scene, LE locates a shotgun and ammo, including a box of 9mm shells with 9 missing. PSD utilized to try to track suspect. PSD indicated that he detected a human in a wooded area. Two warnings given; PSD released off lead and bit subject. Handler there within 5-10 seconds and quickly released PSD. Subject claimed he didn’t hear warnings and that he had chosen that place to sleep because it was at least partially hidden. Subject released from handcuffs as soon as LE informed suspect detained elsewhere.

Court held that the negligence claim was not founded and dismissed it. In addition, court dismissed Monell claim for failure to state facts to support it. Finally, no false imprisonment/arrest was founded because this was a detention and not an arrest. Even if arrest, qualified immunity applies. However, the court allowed the excessive force claim to go forward because of the dispute over whether warnings were given.

Note: Only issue for possible liability here is whether there was warning given prior to the release of the PSD. At this stage, if there is a dispute in the evidence, the court is required to allow the claim to go forward. Body cams would have conclusively addressed this issue.

People v. Lopez (2020) 2020 Cal.App.Unpub. 5489

Traffic Stop; Odor of Marijuana;

After seeing the vehicle run a stop sign, LE attempted a traffic stop. The vehicle did not yield immediately but drove through several intersections prior to stopping in a parking lot. During this, LE saw subject move a duffle bag from the front seat to the back seat. Upon approach, LE smelled a strong odor of marijuana. LE asked subject and subject produced a baggie with small amount. Subject removed and handcuffed. Search of vehicle revealed a lot of MJ and other drugs.

Appellate court found that LE had probable to search vehicle based on the facts that subject failed to stop immediately, subject transferred a bag from the front to the rear of the vehicle, the smell of the MJ was strong (and LE’s testimony of training and experience provided a foundation for LE to be able to distinguish a strong smell being consistent with a large amount of MJ, more than in the small baggie produced by subject) and that subject admitted to possessing a small amount of marijuana. (The trial court found the baggie was not properly closed but the appellate court did not really address that).

The appellate court addressed the Lee case in which the court held a “legal” amount of marijuana does not provide probable cause for search. In this case, however, the court pointed to what it called “Lee’s critical caveat: while a lawful amount of marijuana is not, on its own, enough to establish probable cause, such a lawful amount may establish probable cause where coupled with other factors contributing to an officer’s reasonable belief the defendant may be in violation of other statutory regulations of marijuana possession.” (People v. Lee (2019) 40 Cal.App.5th 853 at p. 862.) Here, the appellate court found that LE had probable to search vehicle based on the facts that subject failed to stop immediately, subject transferred a bag from the front to the rear of the vehicle, the smell of the MJ was strong (and LE’s testimony of training and experience provided a foundation for LE to be able to distinguish a strong smell being consistent with a large amount of MJ, more than in the small baggie produced by subject) and that subject admitted to possessing a small amount of marijuana. (The trial court found the baggie was not properly closed but the appellate court did not really address that).

Note: Because the People were careful to lay a foundation that LE had enough training and experience with marijuana to be able to testify as an expert that the strong smell of marijuana indicated there was additional marijuana in the car, the court was able to find probable cause. Laying a proper foundation for the introduction of evidence is critical in any situation where you are seeking to introduce favorable evidence. It eliminates one basis for the defense to object to the admission of the evidence.

Muhammad v. State (2020) 2020 Ind. App. Unpub. 1027

Traffic Stop; Probable Cause; Odor of Marijuana

Traffic stop in an investigation of a car crash. LE smelled burnt marijuana and noted that one occupant (not defendant) was the registered owner of the crashed car and was injured consistent with a car crash. In addition, LE noted a marijuana pipe with residue in plain view near Muhammad, the defendant in this case. Both LE officers testified that they knew the odor of burnt marijuana. Court held this was probable cause to search the vehicle and probable cause to arrest Muhammad and to search incident to arrest.

Defendant also claimed a state constitutional violation; namely, the right to be free of unreasonable search and seizure. Even though the language of the Illinois constitution is almost identical to that of the federal constitution, Indiana uses a reasonableness test under the totality of the circumstances to determine if state constitutional violations have occurred. The three factors that are considered are: 1) the degree of concern, suspicion or knowledge that a violation (of law) has occurred; 2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities and 3) the extent of law enforcement needs. Here, in analyzing factor 1, the court held that the suspicion of law violation was high because of the strong odor of marijuana coming from inside the vehicle and the existence of the pipe containing burnt marijuana. As for factor 2, the degree of intrusion was low. Muhammad was already detained when LE searched the vehicle, which was registered to his girlfriend and in which he had no ownership interest. Also, the search took place after midnight which would mean that public notice was lessened (not as many people out) and therefore the potential for embarrassment was low. Finally, under factor 3, the court must consider the nature and immediacy of the governmental concern. Here, the LE need was high because LE had probable cause to believe that one of the occupants had been involved in a hit and run and they could smell burnt marijuana which led them to rightfully believe the occupants were in possession of an illegal substance. Therefore, the motion to suppress was properly denied.

Note: Indiana handles constitutional claims differently than the federal system, so LE in this state should be aware of the different standards. Indiana is a state that has not legalized marijuana in any way, so probable cause was easily found.

Commonwealth v. Randolph (2020) 2020 Pa. Super. Unpub. LEXIS 2690

Traffic Stop; Odor of Marijuana

LE was patrolling a part of town that was well known for drug trafficking and violent crime, such as shootings. As the vehicle passed by three men standing on the sidewalk, LE smelled the odor of marijuana. As LE parked and then approached the three, one started walking away, at which point, LE told him to stop. As LE got closer, the subject took a bladed stance, and kept the right side of his body away from LE. Eventually, subject stopped moving and LE performed a Terry frisk, locating something hard in subject’s waistband. Subject then took off running. During the chase, subject discarded a baggie of cocaine.

The appellate court concluded that LE’s smelling marijuana, coupled with the high crime location and subject’s walking away as LE approached, provided LE with reasonable suspicion to conduct the Terry stop of Appellant. See In Interest of A.A. (Pa. 2018) 195 A.3d 896, 904 (finding that “the odor of marijuana alone, particularly in a moving vehicle, is sufficient to support at least reasonable suspicion, if not the more stringent requirement of probable cause”).

Additionally, the appellate court concluded that LE reasonably suspected that subject could be armed and dangerous, thereby justifying the Terry frisk of subject. Contrary to subject’s argument on appeal, LE suspected he might be armed not only because subject was in a high crime area, but also because subject continued to walk away from the trooper after repeated commands to stop, and then ‘bladed’ his body to keep his right side away from LE. The totality of these facts was sufficient to establish LE’S reasonable suspicion to conduct a Terry frisk of subject’s person. Motion to suppress denied.

Note: Again, this is a state in which marijuana is still illegal. But LE did a good job in describing the behavior of the subject that the court could interpret that they reasonably believed subject was armed and attempting to hide that fact from LE.

State v. Wallace (2020) 2020-Ohio-4168

Odor of Marijuana; Curtilage

LE smelled fresh marijuana near a store front. LE searched for the source after a resident said he had smelled marijuana for the last 2-3 weeks. LE went down an alley following the smell and entered the property through a closed gate. Even though there were signs that indicated this was a residence, they opened an unlocked door and looked inside and saw evidence of a marijuana grow. LE got a search warrant after a person who appeared to be connected with the property refused consent. LE stated in the warrant affidavit that the property appeared to be abandoned.  (Note: In Ohio, the smell of burnt marijuana does not justify the search of a car’s trunk, but the odor of raw marijuana provides different probable cause than burnt marijuana. Seems a little weird, but that’s the state of the law in Ohio right now.) Court held that the smell of marijuana was probable cause for a search warrant; however, they also held that the evidence that provided a nexus from the smell to the property was obtained in violation of curtilage.

Note: Curtilage was violated here even though as LE proceeded, it was fairly clear this property was being used as residence. And it appears that LE knew curtilage was an issue because LE averred in the affidavit that the property appeared abandoned. The court based its ruling on the violation of curtilage and not the apparently misleading claim that the property was abandoned (the affidavit was not included so I don’t know if they actually described everything they saw). Remember it is critical to be completely honest in your affidavit as you are swearing to the truth of the statements. Here, it may have been that LE was just offering their opinion that it appeared abandoned; however, if the facts don’t back up that opinion, you could be putting yourself in a bad position.

Brown v. Kazmierski (Wis. 2020) 2020 U.S. Dist. LEXIS 151628

Odor of Marijuana; Probable Cause

While the issues on appeal were whether LE violated subject’s 4th Amendment rights by “strip-searching” him on the side of the road, the court held that the traffic stop was valid (equipment violations as well as evasive driving pattern) and that the overwhelming odor of air freshener detected by LE and then an alert by a PSD provided probable cause to search when the odor and alert were coupled with subject’s criminal history and other indicators of drug trafficking. The court also held that  a 5-10 minute wait for the PSD was not unreasonable given the factors already detected by LE.

Note: Even though this court talked about prolonged detention in terms of minutes, remember that the federal standard is whether the stop was prolonged for any period of time without additional reasonable suspicion to investigate further.

Embry v. Commonwealth (2020) 2020 Ky. App. Unpub. 542

Odor of Marijuana; Probable Cause

LE received a tip that subject was in an orange car possibly selling narcotics. LE arrives to stated location and finds subject in an orange car with the odor of marijuana coming from the car. However, the subject flees. 18 days later, the same car spotted with same subject. LE contacted subject but subject allowed to leave because no back up had arrived. LE followed the car to a residence where two women got out and subject was detained. LE located baggies of heroin strewn behind the car. Subject in possession of cocaine and the vehicle had cutting agents. Court held smell of marijuana at the first encounter as well as the heroin at the second encounter was sufficient probable cause to search car under automobile exception.

Note: Kentucky has not legalized marijuana.

Birkeland v. Jorgensen (8th Cir. 2020) 2020 U.S. App. LEXIS 26442

Excessive Use of Force; Qualified Immunity

LE responded to reports of a disturbance at subject’s house; yelling, throwing things and the sound of breaking glass. It was known to LE that subject had mental issues and had similar disturbances in the past. LE tried to get subject to open the door and talk with them; he refused many times. After 18 minutes, LE told him they would have to force entry. Subject did not respond to this. LE then forced entry. LE stood outside for an additional 5 minutes while. handler yelled three PSD warnings (accompanied by PSD barking). When LE went in, PSD was leashed and alerted to a closed closet. LE again told subject to come out or PSD would bite. When there was no response, LE slid the closet door open to find subject crouched down on the floor, leaning forward. LE could not see if there was anyone else in the closet or if subject was armed. PSD was sent into the closet and bit subject, who then stabbed the PSD in the face. It was unclear whether the subject was then coming out of the closet on his own or if he was being dragged out of the closet when handler was reeling PSD in by his leash (while telling subject to let go of the knife). Two other LE shot subject who died.

The appellate court held that the officers’ use of deadly force was not a violation of a clearly established right because, regardless of whether the decedent’s movement toward the officers was voluntary, in light of the close proximity between the officers and the decedent’s location in the closet, his failure to comply with LE’s commands to drop the knife, and his stabbing of the PSD with a knife, the subject posed a threat of serious physical harm to LE. The appellate court also held that LE were entitled to qualified immunity on the deadly force claim because, taking the subject’s allegations as true, a reasonable fact finder could not conclude LE’s conduct in this case was willful or malicious. LE had reason to believe they were in danger such that the use of deadly force was reasonable to protect themselves. The case was dismissed.

Note: This court did not analyze LE’s actions under the Graham standard, but came to the correct conclusion anyway; LE were reasonable in their actions because subject posed a threat of serious bodily harm. Interestingly, the dissent says that since a PSD was latched onto subject, the issue of whether subject posed a danger to LE was disputed and should have gone to the jury. It’s my opinion that the dissent was engaging in second guessing LE actions, which they are not allowed to do. It’s just a good reminder that LE actions will be under a microscope if a lawsuit is filed.

United States v. Saxton-Smith (Penn. 2020) 2020 U.S. Dist. LEXIS 149995

Odor of Marijuana; Probable Cause

During a traffic stop for lane violation, LE smelled a strong odor of marijuana. The car had a reconstructed title which, according to LE’s training and experience, often meant the car had hidden compartments. Also, there was only a single key in the ignition which was indicative of the car being used for trafficking (general public has all keys on a key ring). In addition, the driver was not registered owner and was tongue tied when asked who was. A search revealed $16K which later ION scanned positive for cocaine. Court held smell of marijuana alone creates probable cause for the search.

Note: Federal case, so marijuana still illegal under all circumstances.

State v. Wilson (2020) 2020 MT 207N

Reasonable (particularized) Suspicion; Traffic Stop; Alert as Probable Cause

Subject was stopped for traffic violation and LE handler noted subject was smoking heavily in a third party rental where he was not the authorized driver; the car was full of energy drinks and other trash, indicating “hard driving” (going somewhere in a hurry); destinations were inconsistent; subject became more and more nervous although LE told him he was only going to get a warning; subject had a recent marijuana trafficking charge. When second LE arrives, handler deploys PSD which alerts on vehicle. A search warrant was later obtained and vehicle was searched, finding 111 pounds of marijuana. Court held that LE had “particularized suspicion” (also known as reasonable suspicion) which allowed the scope of the traffic stop investigation to expand to include investigation of drug possession/trafficking, including the sniff by the PSD.

Note: Montana has not legalized marijuana for recreational use.

People v. McGee (2020) 2020 Cal. App. LEXIS 779

Traffic Stop; Odor of Marijuana; Probable Cause; Automobile Exception

Traffic stop for expired registration. 2 LE approached the car from different sides and contacted driver and passenger. Both LE smelled the odor of unburned marijuana. Driver denied possession, but LE could see an unsealed bag of marijuana in the passenger’s cleavage. The vehicle was searched and a firearm found. Driver was convicted of felon in possession of a firearm.

The People only argued that the search of the vehicle was based on probable cause and not incident to arrest. The court held that probable cause did not exist based on what appeared to be a lawful amount of marijuana based on language in the Health and Safety code (supplied by the proposition that legalized marijuana for recreational use), but because the marijuana was in an unsealed container, LE had probable cause to search for additional contraband, based on the language that states that it is unlawful to possess an open container or open package of cannabis or cannabis products while driving, operating or riding in a vehicle.

Note: This area of California law is constantly changing as different fact scenarios continue to work their way through the courts. The general rule that seems to be emerging is that if there is only evidence that a driver (or passenger) in a vehicle is in possession of a legal amount of marijuana, there is no probable cause to search the vehicle. However, if LE can point to additional factors that indicate there is a violation of the law, the courts have been holding that probable cause does exist. In this case, it was the fact that the container was “unsealed.” In prior cases, the courts have made a distinction between the odor of burnt marijuana and the odor of unburnt marijuana; the odor of burnt marijuana would allow LE to pursue a driving under the influence investigation.

State v. Franklin (2020) 2020 N.C. App. 60

Traffic Stop; Reasonable Suspicion; Odor of Marijuana

LE received a 911 call that a vehicle going through a drive through smelled like marijuana. LE responded and the drive through employee pointed out the car from which he smelled marijuana. LE recognized the individual as someone they had dealt with in the past with marijuana possession. A traffic stop ensued and LE also smelled marijuana. Driver admitted to smoking earlier but denied any in the vehicle. A passenger handed over a small bag of marijuana. Driver arrested for DUI. Court held that the tip, along with the fact LE recognized driver as someone who possessed marijuana in the past gave LE reasonable suspicion to conduct traffic stop. The arrest evidence (probable cause) flowed from there.

Note: Marijuana is illegal in North Carolina for all purposes.

United States v. Pierre (La. 2020) 2020 U.S. Dist. 147127

Traffic Stop; Odor of Marijuana; Probable Cause; Prolonged Detention

LE responded to a report of gunshots fired at a night club. The first LE on scene was in an unmarked cruiser and that officer noticed a red Corvette in the parking lot, parked away from other vehicles and with its brake lights on. That officer also noticed that the driver kept his head down as marked cruisers arrived. LE carried out their investigation and could not find a shooter or a firearm. As they left, the first officer continued to observe the subject in the Corvette. When the Corvette left, officer followed him. Officer stopped him when he drifted out of his lane.

Upon approach, he smelled a strong odor of marijuana coming from the Corvette. LE requested documents from driver and returned to his cruiser to run computer checks and also called for back-up. When he returned to the Corvette, he noted a compartment behind the radio screen had been opened and that the smell of marijuana was still present. Driver told to exit and a Terry frisk produced no contraband or weapons. Back up arrived and confirmed the smell of marijuana. Vehicle was searched and contraband found, including a hand gun.

The court held that the traffic stop was valid; held the pat down was valid as there was information that driver was coming from a venue where suspicion gun activity had been reported; and that the additional information, including the odor of marijuana, provided additional reasonable suspicion to extend the stop and probable cause to search the vehicle.

Note: This was a federal case; marijuana is still illegal in the federal system.

Enriquez v. State (2020) 2020 Tex. App. LEXIS 6482

Traffic Stop; Reliability Foundation; Alert/Final Indication Indicators; Alert/Final Indication as Probable Cause

Traffic stop on vehicle for moving violations (vehicle was under surveillance because of a tip that subject was trafficking drugs and because he had taken an excessive amount of time to load items in the trunk of a rental. While waiting for dispatch to confirm warrant on passenger, PSD conducted sniff. (Consent was refused). Handler testified that PSD had been certified for the last 5 years and that when PSD detected odor, he alerted; when he pinpointed the strongest source of the odor, he indicates. PSD alerted outside the vehicle (handler described behavior changes) and then jumped into vehicle through open window (court noted that the subject did not object to the legality of this entry) and was working the back area of the seat. PSD extracted by handler and taken around car; alerted on trunk. Handler testified that PSD did not actually indicate by sitting, even though PSD “wanted to.” (No further testimony was noted as to what the handler meant by “wanted to” indicate).

The court held that the standard to measure a PSD’s alert is whether all the facts surrounding the dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime. held that while there was some ambiguous use of language (handler used “indicate” once instead of “alert”, PSD did in fact alert on vehicle which provided probable cause to search.

Note: Handler testified that the window was already open when PSD deployed and he did not instruct PSD to enter vehicle at that point. That is the standard for a PSD entering a vehicle prior to alert/final indication; opening was not because of LE action and LE did not encourage or facilitate entry. This is also a good opinion to read to see how an appellate defense attorney will dissect your testimony and reports along with body and dash cam video. The court fortunately didn’t fall for this, but it’s a good reminder about language discipline in camera footage, reports and testimony.

United States v. Abari (Minn. 2020) 2020 U.S. Dist. 146273

Curtilage; Reliability Foundation

Subject challenged a search warrant in which the affidavit included a PSD sniff and alert (final indication of sitting) at an apartment’s lower door seam (as well as additional information). The apartment was an AirBnB rental.

Subject challenged the PSD sniff on the determination by the magistrate issuing the search warrant that PSD was reliable; the court indicated that PSD was noted to be certified currently and consistently for past several years. The court held that there was enough information in affidavit to prove a reliability foundation (see note below). In addition, subject complained that the sniff took place in the curtilage of his home. The court applied the Dunn factors; 1) the proximity of the area claimed to be curtilage to the home; 2) whether the area is included within an enclosure surrounding the home; 3) the nature of the uses to which the area is ; and 4) the steps taken by the resident to protect the area from observation by people passing by. The court held that the only evidence available to it was that the area sniffed was a common hallway in a multi-unit apartment building; therefore, subject has not demonstrated that the area searched was curtilage. Finally, the court held that even if the PSD alert/final indication was stricken from the affidavit, probable cause would still be found (good faith exception).

Note: Two things. 1) The court does quote from United States v. Ferguson (8th Cir. 2018) U.S. Dist. LEXIS 13907 address this same PSD’s reliability in terms of the PSD’s past record where there was testimony that PSD was false alerting in 2016 and remedial training had been given and the behavior corrected. The court in Ferguson found that PSD still reliable and used that finding here. Good reminder that full and honest record keeping is always the best practice; this court recognized that a PSD can be corrected and still be reliable. 2) The court sort of threw away the curtilage argument, but I don’t think this case should be relied on to sniff apartment doors, even from a public hallway. The 8th Circuit had not decided this narrow issue prior to this case, but other circuits have concluded that a sniff of a doorway from a public hallway is a violation of curtilage. The best practice would be to not do this and attempt to develop your case in other ways (as was done here. There was a lot of good investigation other than the sniff, such that the court said the sniff wasn’t even needed to show probable cause).

State v. Randall (2020) 2020 Ida. App. LEXIS 62

Traffic Stop; Reasonable Suspicion; Consent; Entry by PSD into Vehicle; Prolonged Detention

Traffic stop for signal violation (as well as other squirrely behavior). Subject was driving a rental car and gave a story that was nonsensical and that didn’t square with LE observations. Driver was also extremely nervous. Driver consented to PSD sniffing the outside of the vehicle. PSD almost immediately ran to half open window and jumped in, getting stuck. Handler assisted PSD to go all the way in to prevent injury to PSD and the vehicle. PSD alerted (no further info) to back seat. PSD removed from interior and taken around vehicle; alerted (no further) to trunk.

The court held that LE had additional information that amounted to reasonable suspicion, which extended the time for the investigation beyond that of a traffic stop (driver’s nonsensical story, the fact that he was on a drug corridor, he was extremely nervous and the car had a lived-in look, consistent with long haul trafficking). Subject did not challenge his consent to allow the PSD to sniff the exterior of the vehicle and the court held that the later exterior sniff by the PSD provided the probable cause to search the vehicle. Finally, and alternatively, the court held that the entry into the vehicle was not a search because it was instinctual by PSD and not facilitated or encouraged by LE.

Note: The court did make a distinction between the interior sniff and the exterior sniff. Since consent was only for an exterior sniff (mind if I run my dog around your car? is probably how the handler phrased it), the State argued that the interior sniff could be disregarded and that the court could find probable cause on the later exterior sniff. The court agreed. This is a good reminder that consent can have limitations placed on it by either the way it is asked for or how it is consented to. LE was smart to extract PSD and continue with exterior sniff.

Dowell v. Layfayette Police Department (Ind. 2020) 2020 U.S. Dist. LEXIS 144365

Eighth Amendment Violation; Excessive Force; Monell Liability

During an arrest, subject claimed he was bitten several times by PSD while handcuffed and lying down after having been falsely arrested. He also claimed a second officer watched and did not intervene. The criminal charges he was booked under were ultimately dismissed because he claimed that he was misidentified as the person who committed the crimes. In evaluating the Eighth Amendment claim (cruel and unusual punishment), the court looked at factors such as the need for an application of force by LE, the amount of force used and the extent of injury suffered by the subject. Based on subject’s statements, the court allowed this claim to survive (this is only a summary judgment finding; the court has to adopt the statements of the subject as true). The court also allowed a claim of failure to intervene against the second officer. Monell claims were dismissed; other claims were dismissed for various reasons.

Note: It should be noted that this is only a summary judgment finding; the court has to adopt the statements of the subject as true. However, it’s good to keep in mind the factors the court will consider. The best practice is to always apply the Graham factors; if those are met, an Eighth Amendment claim will not succeed.

Matthews v. Huntsville Police Department (Ala. 2020) 2020 U.S. Dist. LEXIS 143240

Excessive Use of Force; Qualified Immunity

Acting on a report of a stolen vehicle, LE spots vehicle and the chase is on. Subject crashes and runs. PSD team is deployed, warnings were given but PSD bites two officers, each time having to be choked off as verbal commands were not effective (PSD on duty for only 6 months and never had a bite as all previous subjects had surrendered). Subject found hiding beneath car and did not come out when commanded (no additional PSD warning given; not clear if PSD was barking). PSD released and bit and dragged subject out by shoulder. After the bite, subject said, “Okay” and “I’m coming out.” Within a second of being handcuffed, PSD choked off (took 24 seconds). Total bite duration was at most 1 minute and 3 seconds. Court granted summary judgment for LE because using the Graham factors and 3 additional factors. The Eleventh Circuit has instructed courts to look at the following factors in determining the reasonableness of an officer’s use of force: (1) the severity of the crime; (2) whether the individual posed an immediate threat to officers or others; (3) whether the individual actively resisted or attempted to evade arrest; (4) the need to use force; (5) the amount of force used in light of the need; and (6) the severity of the injury. Patel v. City of Madison (11th Cir. 2020) 959 F.3d 1330 at 1339. The court must be “mindful that officers make split-second decisions in tough and tense situations.” Morton v. Kirkwood (11th Cir. 2013) 707 F.3d 1276, at 1281. However, the court held that since LE here was entitled to qualified immunity, an analysis of these factors was not necessary. LE reasonably believed that subject was suspected of stealing a car, leading LE on a high-speed chase, then ran, then hid under a car in someone’s backyard. Also, LE reasonably could believe that subject would refuse to obey commands having already done so. And finally, the court noted that LE could not know whether subject was armed or could have slipped out from under the car and continued to flee. Therefore, use of force was legal. There was a disagreement whether warnings were given, so the court assumed for this motion that warnings were not given. Court also affirmed that PSDs are not deadly force.

Note: Subject said he had no idea a PSD was involved until he got bit. Interestingly, there is no information as to whether PSD was barking. If this had been true and entered into the record, whether warnings were or were not given would be less of an issue. 

People v. Tarcardon (2020) 53 Cal. App. 5th 89

Odor of Marijuana; Detention

LE approach a vehicle legally parked where the occupants are reclined back and smoke is coming out of the car. LE spotlighted the car, but did not activate any emergency equipment. An occupant got out quickly and started to leave when LE told her to stay outside the car and on the sidewalk near it so LE could keep her under observation. At that point, LE smelled the odor of marijuana. LE came up to the vehicle and, using his flashlight, observed 3 larges bags of marijuana. LE also saw a burnt roach in the ashtray. The subject of this case was in the driver’s seat and told to stay there. A records check showed subject was on probation with search terms. Search uncovered additional contraband and evidence of trafficking. The court held that subject was not detained when the occupant was told to stay out of the car and remain on the sidewalk. Here, the vehicle was not blocked by LE; activating the spotlight and approaching the cart on foot did not constitute a detention of the subject (driver). Driver was detained when told to remain in the vehicle after LE smelled and spotted the large amount of marijuana. At that point, LE had a reasonable suspicion of criminal activity so detention and search were legal.

Note: This case came to the appellate court because the trial court ruled that when LE testified that, in his mind, no one was free to go as soon as passenger got out of the vehicle. This is not a correct statement of the law. The appellate court reiterated that the subjective intent of the officer is irrelevant for a determination of detention; it is whether a person in the subject’s (defendant) position would feel free to leave.

United States v. Knights (11th Cir. 2020) 2020 U.S. App. LEXIS 24311

Consensual Encounter; Odor of Marijuana

LE saw two males in a car parked in the front yard of a home at 1 a.m. LE suspected subjects might be trying to steal the car. LE parked, and approached the men on foot. As they approached, the passenger got out and walked away without responding to police enquiries. As LE then approached the driver’s side with flashlights illuminated, subject opened the door and LE immediately smelled the odor of burnt marijuana. Vehicle was searched and contraband found.

The court held that a reasonable person would have felt free to leave (as the passenger did), and therefore, driver was not detained until LE smelled the odor of marijuana. At that point, LE had reasonable suspicion to detain driver and probable cause to search the vehicle.

Note: This was a federal prosecution; therefore, marijuana is illegal in any circumstance.

State v. Massey (2020) 2020 S.C. App. Unpub. LEXIS 277

Scent Tracking

Subject found near stolen ATV in a ditch. Although subject denied seeing the ATV, a PSD scent trained bloodhound sniffed subject then followed the scent in the reverse direction back to where the ATV was stolen (fairly short distance). Handler testified PSD had been on the job for seven years, had performed over 300 tracking exercises in training and in the field and in that time had failed to track only three times. PSD had also trained in reverse tracking (which this was) only once, but successfully performed a much longer trail that this. Using the old Malgren factors (including breed of dog), court found PSD was reliable and therefore the testimony of her handler was admissible.

Note: This handler testified as an expert and he had been qualified as an expert in a case prior to this. This most probably assisted the court in making the determination of reliability. Always have the prosecutor qualify you as an expert. Not only does that telegraph to the finder of fact that your testimony is important, you can add it to your hero sheet. The goal is to have your hero sheet (and your PSD’s hero sheet) get to the point that an attorney reviewing them will understand that you are not only an expert, but will be difficult to counter your statements in court. If they think you are too qualified to discredit, they may not even try.

United States v. Stephen (11th Cir. 2020) 2020 U.S. Dist. App. LEXIS 24803

Consensual Encounter; Curtilage; Smell of Marijuana as Probable Cause

While investigating a truck that was reportedly involved in an unrelated crime, LE was contacted by a civilian who asked if they were lost. LE stopped and got out to talk to him. LE smelled marijuana wafting from a vehicle parked in a shared driveway near the street. The front doors were open and LE could see 3 occupants. As LE approached, the doors shut. LE ordered everyone out. Defendant, who was contacted in the driveway, was behaving strangely and wanted to leave. LE told he was not free to leave. He was still squirrely so LE handcuffed him. Defendant then showed LE where to find the marijuana. Defendant was arrested and the car searched. Contraband was found. Defendant searched and more contraband found.

Court held that the contact with defendant in the driveway was not in the curtilage (using Dunn factors; three in LE’s favor, one slightly in defendant’s favor). In addition, the smell of marijuana gave LE reasonable suspicion to further investigate. Once defendant disclosed the location of the marijuana (in this case, a roach), LE had a reasonable belief that defendant had committed or was committing a crime. At that point, search incident to arrest was lawful. Motion to suppress was denied.

Note: This was a federal prosecution so marijuana illegal in all circumstances.