[ View Archives ]

Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from August 2021. (A caution here: some cases are unpublished marked as Unpub. or U or not precedent; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. In addition, the arguments in these cases can be used; the case just can’t be cited as precedent in court.)

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

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


A controversial California bill to regulate hemp and CBD products passed both chambers of the state legislature this week. This may bring additional questions to criminal cases, as we have seen in other states which have legalized hemp. If this passes into law, that is one more issue LE will need to deal with in the field.

Also in California, People v. Raybon has been overturned by the California Supreme Court which ruled that Prop. 64 did not allow for the possession and/or use of marijuana in jails and prisons.

North Carolina took a step closer to legalizing medical cannabis in advancing medical cannabis legislation.

A Texas state judge struck down the state’s ban on smokable forms of hemp, saying that it violated the state’s constitution.

A Maine federal judge struck down the state’s medical marijuana residency requirement, which mandated that medical marijuana business licenses had to be held by locals, saying the law violated the U.S. Constitution since it clearly favored Maine residents over nonresidents.

A Ninth Circuit panel has dismissed a petition to review whether the U.S. Drug Enforcement Administration should reschedule marijuana, saying the researchers who bought the appeal had not exhausted their administrative options yet (Federal jurisdiction).


People v. Raybon (California 2021) 11 Cal. 5th 1056 – Marijuana in Jails/Prison

State v. Cannon (Tennessee 2021) 2021 Tenn. Crim. App. LEXIS 379 – K9 Trained to Find Human Remains

State v. Skaggs (Ohio 2021) 2021-Ohio-2803 – Traffic Stop; Prolonged Detention; Reasonable Suspicion

United States v. Gomez (5th Cir. 2021) 2021 U.S. App. LEXIS 24382 – Traffic Stop; Prolonged Detention

State v. K.V. (In the Interest of K.V.) (North Dakota 2021) 2021 ND 79 – Odor of Marijuana as Probable Cause; Search of a Passenger

United States v. Young (Missouri 2021) 2021 U.S. Dist. LEXIS 155887 – Traffic Stop; Odor of Marijuana as Probable Cause; Plain Smell Doctrine

United States v. Trouba (Nebraska 2021) 2021 U.S. Dist. LEXIS 155881 – Plain Smell Doctrine; Explosive K9 Team; Search Incident to Arrest

Bradley v. Bongiovanni (Georgia 2021) 2021 U.S. Dist. LEXIS 155044 – Excessive Force; Bystander Liability

Commonwealth v. Jones (Virginia 2021) 2021 Va. Cir. LEXIS 170 – Traffic Stop; Prolonged Detention

United States v. Suarez (Florida 2021) 2021 U.S. Dist. LEXIS 155547 – Package Sniff; Prolonged Detention; Reliability Foundation

Harris v. Donaldson (2021) 2021 U.S. Dist. LEXIS 155635 – Flight of Suspect; Excessive Force

State v. Davis (Wisconsin 2021) 2021 Wisc. App. LEXIS 718 – Traffic Stop; Prolonged Detention

State v. Kochendarfer (Arizona 2021) 2021 Ariz. App. Unpub. LEXIS 833 – Traffic Stop; Prolonged Detention

State v. Mesadieu (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 1774 – Traffic Stop; Prolonged Detention

United States v. Williams (Michigan 2021) 2021 U.S. Dist. LEXIS 149032 – Traffic Stop; Prolonged Detention

United States v. Abreu (New Jersey 2021) 2021 U.S. Dist. LEXIS 151732 – Traffic Stop; Pretextual Stop; Consent; Collective Knowledge Doctrine

United States v. Cain (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 151805 – Traffic Stop; Inevitable Discovery; Probable Cause for Arrest

United States v. Green (Missouri 2021) 2021 U.S. App. LEXIS 24129 – Package Sniff

United States v. Junkins (West Virginia; 4th Cir. 2021) 2021 U.S. App. LEXIS 24174 – Traffic Stop; Reasonable Suspicion; Prolonged Detention

State v. Schnakenburg (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 264 – Traffic Stop; Search of Containers; Search of Occupant and Possessions

United States v. Villagomez (California 2021) 2021 U.S. Dist. LEXIS 152986 – Odor of Marijuana as Probable Cause; Reliability Foundation

United States v. Braddy (11th Cir. (Alabama)) 2021 U.S. App. LEXIS 26230 – Traffic Stop; Alert v. Final Indication as Probable Cause; Prolonged Detention; Reliability Foundation

Young v. Hicks (Kentucky 2021) 2021 U.S. Dist. LEXIS 163637 – Excessive Force

State v. Slater (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 272 – Alert as Probable Cause; Sniff is Not a Search

United States v. Podbielski (North Carolina 2021) 2021 U.S. Dist. 150510 – Traffic Stop; Prolonged Detention; Alert as Probable Cause

United States v. 110,000.00 in United States Currency (Nebraska 2021) 2021 U.S. Dist. LEXIS 150953 – Traffic Stop; Prolonged Detention

Boone v. Commonwealth (Kentucky 2021) 2021 Ky. App. LEXIS 90 – Traffic Stop; Prolonged Detention; Alert as Probable Cause for Search of Occupant

Negethon v. Wilkens (Wisconsin 2021) 2021 U.S. Dist. LEXIS 148513 – Excessive Force; Monell Claim

United States v. Hernandez (Texas 2021) 2021 U.S. Dist. LEXIS 149587 – Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause; Consent

Barker v. Gaylor (West Virginia 2021) 2021 U.S. Dist. LEXIS 143963 – Excessive Force; Qualified Immunity

Jarvela v. Washtenaw County (Michigan 2021) 2021 U.S. Dist. LEXIS 144207 – Excessive Force; Failure to Warn of K9

Beckett v. Unknown Police Officer (Iowa 2021) 2021 U.S. Dist. LEXIS 144276 – Excessive Force

State v. Willoughby (Ohio 2021) 2021-Ohio-2611 – Traffic Stop; Prolonged Detention; Alert as Probable Cause; Inevitable Discovery

United States v. Abbeduto (Kentucky 2021) 2021 U.S. Dist. LEXIS 144920 – Traffic Stop; Prolonged Detention; Reasonable Suspicion to Investigate Additional Crimes(s); Reliability Foundation

State v. Webb (S.C. Montana 2021) 2021 MT 194N (not precedent) – Traffic Stop; Sniff v. Search; Reasonable Suspicion

United States v. Butler (Michigan 2021) 2021 U.S. Dist. LEXIS 145710 – Package Sniff; Reasonable Suspicion; Reliability Foundation


People v. Raybon (California 2021) 11 Cal. 5th 1056
Marijuana in Jails/Prison

The California Supreme Court granted review on Raybon and overturned the lower courts’ rulings that possession of marijuana in prison and jails throughout California was legalized by Proposition 64 (when recreational marijuana was legalized in the state).  The CSC stated that, “Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions. One such exception provides that the Act does not amend or affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation … .” (Health & Saf. Code, § 11362.45, subd. (d).)” The California Attorney General contended this exception applies to violations of Penal Code section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants disagreed, arguing that because the exception only refers to “[l]aws pertaining to smoking or ingesting cannabis,” it does not apply to laws that merely criminalize possession of cannabis.

Ultimately, the CSC found the Attorney General’s proposed reading of Health and Safety Code section 11362.45, subdivision (d) to be more persuasive. The more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended “to maintain the status quo with respect to the legal status of cannabis in prison.” Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6.

Note: Finally, common sense prevails and the insanity is over (on this one issue).

State v. Cannon (Tennessee 2021) 2021 Tenn. Crim. App. LEXIS 379
K9 Trained to Find Human Remains

Murder defendant moved to exclude evidence that human remains detection (HRD) K9s alerted to the presence of the scent of human remains in defendant’s home and car because 1) the K9’s alerts corroborated each other, 2) the trial court heard evidence to the qualifications and training of the HRD K9 handlers, the training of K9s, and the circumstances surrounding the search and K9’s scent identification, 3) the trial court instructed the jury on multiple occasions about how it should consider the HRD K9 evidence and determine the weight it should be given.

Note: The defense in this case brought experts in to discredit the K9s but the court held that the government’s evidence of the actions of the HRD K9s had a foundation of reliability since the K9 teams were properly trained and deployed.

State v. Skaggs (Ohio 2021) 2021-Ohio-2803
Traffic Stop; Prolonged Detention; Reasonable Suspicion

LE received information from several sources that Skaggs may be bringing drugs into the area and selling them when he was visiting family. At least two sources of information included a car description. In addition, LE had Skaggs under surveillance for an extended period of time, looking for probable cause to write a tracker warrant. After observing Skaggs involved in activity that looked to be trafficking, LE had a marked unit pull him over for violations observed by the investigator (lane violations). The plan was to stop the car and run a drug detection K9 around it during the stop.

The court initially addressed whether this stop was prolonged beyond the mission of the traffic violation. There is no question that the primary purpose of this stop was to obtain a K9 sniff of the vehicle in order to search the vehicle for drugs. After Skaggs denied LE’s request to search the vehicle, LE returned to the patrol car to call for the K9 unit and to write the warning citation. The citation was interrupted when LE called for the K9 team and LE never returned to writing the citation while waiting for the K9 team. Therefore, the court held, the stop was prolonged.

The court then turned to whether LE had reasonable suspicion of other crimes which would extend the time for investigation. The court found several factors that, taken together, gave LE reasonable suspicion that additional crimes were being committed. Those factors included lying about using GPS when stopped as an explanation for being on his phone; the fact that the stop was a pretextual stop (even though the information was somewhat dated); Skaggs’ shaky arm (and his disingenuous statement that he had used his arm to brush off snow, since his jacket sleeve showed no signs of this); and the cash that he claimed was for his rent, even though he did not know how much his rent was. While this evidence was not overwhelming, it was enough to provide the necessary reasonable suspicion to extend the stop to include a sniff by the K9.

Note: As they are required to do, the appellate court took the trial court’s determination of the facts to be reasonable suspicion and did not disturb those findings on appeal because, even though the evidence was not overwhelming, the trial court was within its discretion to make those findings. In addition, while the appellate court was careful to analyze all the factors of reasonable suspicion individually, the appellate court indicated that based on the totality of the circumstances, the fact provided the necessary reasonable suspicion.

United States v. Gomez (5th Cir. 2021) 2021 U.S. App. LEXIS 24382
Traffic Stop; Prolonged Detention

After a traffic stop, a K9 team was summoned to perform a sniff of the vehicle. The specific and articulable facts which created reasonable suspicion that criminal activity was afoot included: 1) Gomez and his passenger were traveling in a rental car on I-10, a major drug-trafficking route, from Laredo, Texas, to Destin, Florida; 2) Gomez and his passenger gave inconsistent and evasive answers about their travel plans; 3) Gomez offered contradictory reasons for why he had rented a car instead of using the vehicle he owned; 4) Gomez appeared nervous throughout the encounter; 5) a computer check revealed criminal history that included drug charges; 6) several facts of Gomez’s supposed travel plans—which combined a relatively long drive for a stay of one to three days—were implausible. The court held that, while these factors could have innocent explanations, the totality of the circumstances supported reasonable suspicion such that a delay for a K9 team to respond and sniff was appropriate.

Note: Same as the previous case.

State v. K.V. (In the Interest of K.V.) (North Dakota 2021) 2021 ND 79
Odor of Marijuana as Probable Cause; Search of a Passenger

K.V., a juvenile, was a passenger in a vehicle stopped by LE for erratic driving and evading. After the stop, K.V. was searched and contraband was recovered.

LE testified that as he approached the vehicle, he was concerned for his safety (given what had just transpired) and he could also smell the odor of marijuana coming from the vehicle (unknown whether burnt or raw). Passenger was directed out of the vehicle and patted down. A pipe and controlled substances were found on passenger’s person.

The court initially concluded that, while LE had the right to assure themselves that passenger was not armed, since they couldn’t determine what the objects were, they were not allowed to continue the search because they were no longer looking for weapons.

That left the odor of marijuana as a justification of the search of K.V., a passenger. The court indicated there was a split of opinions in the state appellate courts on this issue. After analyzing the prior cases, the court found that there was no evidence that LE found evidence of drugs in the vehicle, other than the smell, either before or after searching K.V. There was no testimony that K.V. was arrested for committing a public offense. There was no testimony that K.V. and the driver were engaged in a common enterprise. When asked if he saw K.V. commit any criminal offense, LE testified “I don’t know. I cannot—he was an occupant in a vehicle that was involved in a purs[uit [sic]. . . . I do not know what he was doing while he was in the vehicle.” LE further testified he smelled marijuana coming from the vehicle and the driver, but he had no interaction with K.V. Another LE, who had contact with K.V. , testified he could smell marijuana from the vehicle, but did not state the odor was coming from K.V., and did not indicate whether the odor was of burning marijuana or raw marijuana. This court therefore ruled that these facts were not enough to implicate the passenger such that a full search of him was legal.

Note: This result came from a poor record and what appears to a bare bones report to rely on. The fact that no one could testify if the odor was burnt or raw or that K.V. smelled of marijuana or that K.V. was arrested, even though the case law supported the arrest of the passenger if contraband had been found (no drugs were recovered from the car) created a situation where the court had to find there was no probable cause to search K.V. And plain touch didn’t apply here because LE testified they didn’t know what was in K.V. pockets other than they knew it was not a weapon. Better report writing might have helped (description of odor, etc.). Sometimes, the facts just aren’t there and therefore the case is dismissed. That’s okay, but losing a case on a bare bones report is not. Making sure you accurately record details can be very helpful. You may be testifying about these facts months to years later; having all the detail you need to refresh your recollection is crucial.

United States v. Young (Missouri 2021) 2021 U.S. Dist. LEXIS 155887
Traffic Stop; Odor of Marijuana as Probable Cause; Plain Smell Doctrine

Young was speeding at over 100 mph and weaving in and out of traffic when he was stopped by LE. Young claimed the stop was based on his race and that the vehicle was licensed out of state and was therefore a pretextual stop.

At the motion to suppress, it was established that LE had extensive training and experience in traffic enforcement and drug interdiction. At the time LE noticed the speeding vehicle, he could not determine the race of the person driving or the state of the license plate. LE followed Young for several miles before trying to pull him over for a couple of reasons; 1) LE had a hard time catching up to Young due to speed and 2) LE did not want any other vehicles in the area when he tried to pull the car over (for safety reasons: in his experience, people had a tendency to do weird and unpredictable things when being pulled over). Upon contact, LE immediately smelled green marijuana. Young said he had just thrown out some marijuana and had none in the car. Based on the smell, the vehicle was searched. A small amount of marijuana was found in the passenger compartment and a brick of meth was found in the trunk. Later, after the car had been towed to the station, more bricks of methamphetamine were found in hidden compartments.

The court dismissed Young’s theory of pretext and ruled that LE was credible in describing the traffic violations committed by Young. The court then found that under the plain smell doctrine, LE had probable cause to search the vehicle.

Note: Missouri has not legalized marijuana. It is interesting that the court decided the basis for the stop as a credibility contest between LE and Young, rather than ruling that pretextual stops (stopping a vehicle on a traffic charge when the intent is to search the car) are permitted because LE’s subjective intent is irrelevant. I have noticed that the concept of a pretextual stop is being attacked by criminal justice reformists as a bad thing and claiming that pretextual stops are a cover for racial bias. I’m not sure if this will gain traction, but again, it’s always best to argue all available avenues of admissibility.

United States v. Trouba (Nebraska 2021) 2021 U.S. Dist. LEXIS 155881
Plain Smell Doctrine; Explosive K9 Team; Search Incident to Arrest

Trouba placed two unmarked packages were set alongside the curb outside an entrance to the court house. The bomb squad was called and was investigating. Video footage at the courthouse showed the individual who placed the packages and LE discovered that individual had paid a traffic fine earlier (and was disruptive). He was recognized by LE as Trouba. LE determined based on the previous interaction, that Trouba was arrestable for terrorist threats. LE told Trouba’s lawyer to surrender him (lawyer  chose to call back and said the packages were empty rather than bring Trouba in). When LE went to Trouba’s address, they saw Trouba and a female load totes and duffles (possibly explosives) into a pickup and leave the property. LE followed Trouba until he pulled over and started fiddling with the tailgate. LE approached and activated take down lights. LE approached Trouba and confirmed his identity with his license. Trouba was then arrested on the terrorist threats charge. LE determined that they should wait for a bomb sniffing K9 before searching the pickup. While they waited, LE was able to smell the odor of marijuana and see a large quantity of currency (bundles in a cardboard box). When back up arrived, it was relayed that the packages at the courthouse did not contain explosives. The K9 team arrived about an hour later and the K9 did not alert. LE then conducted a search based on the marijuana smell. They found a large amount of marijuana and currency.

Trouba filed a motion to suppress. The appellate court first held that the arrest of Trouba was valid because of the facts gathered in the investigation of the packages placed by Trouba at the courthouse, including that Trouba was found loading duffles and totes in the pickup and leaving his residence. The court went on to uphold the search of the pickup. The court held that the totality of the circumstances indicated that either contraband or the evidence of a crime would be found in the pickup. Trouba was identified as a suspect in the bomb incident at the courthouse. Trouba was aware he was wanted in connection with the incident because his attorney told him. LE observed Trouba at his residence moving duffle bags and totes in a hurried fashion into the pickup. LE believed that explosives or something related were being loaded into the pickup. In addition, it was reasonable for LE to conclude that there was evidence related to drug crimes as well.

In addition to evidence related to the bomb incident, the totality of the circumstances shows there was a fair probably that evidence related to drug activity would be found in the pickup. LE smelled the odor of marijuana and saw in plain sight a cardboard box on the driver’s side seat and a large amount of U.S. currency in rubber banded bundles that, based on LE’s training and experience, was an indication that there could be drugs in the vehicle. Therefore, LE had probable cause to search the vehicle. Finally, the court held that the pickup could have been searched incident to arrest because it was objectively reasonable based on all the facts that the pickup contained evidence related to the crimes at the courthouse.

Note: This was a federal case and as of now, marijuana is still illegal in the federal system. Also, the search of the vehicle was justified under three theories. It is always good practice to find and argue as many admissibility avenues as possible based on the facts.

Bradley v. Bongiovanni (Georgia 2021) 2021 U.S. Dist. LEXIS 155044
Excessive Force; Bystander Liability

Bradley was seen riding a motorcycle without a helmet or a license and was going the wrong way. LE attempted contact with him re: these violations. Bradley stopped in his own yard. LE called over to him to come over and discuss the violations and that he was under arrest. Bradley disputed this and told LE to write him a ticket. LE approached Bradley on foot and when LE attempted to grab him, Bradley turned and sprinted away. LE chased Bradley around the house and LE called for back up. Bradley arrived at his front door and yelled to the occupants to open the door. LE told Bradley to get on the ground while they both flailed at one another. LE finally got a hold on Bradley who continued to resist. LE then pepper sprayed Bradley. Bradley avoided the spray and squirms away. Bradley turned around to face LE but continued to back away. LE then used his baton on Bradley as well as punching and kicking him. Back up arrived and Bradley was captured by two officers and forced to his hands and knees, still refusing to get on the ground. Knee strikes are imposed and despite loud wailing by Bradley, Bradley was handcuffed. Bradley then alleged that a K9 bit him on the wrist and leg (after being handcuffed).

Even though LE Bongiovanni was not the handler, the court held that the evidence is sufficient to allow a reasonable factfinder to conclude that the K9’s handler commanded the K9 to attack Bradley and that Bongiovanni was aware that the K9 was biting Bradley but did not take any steps to stop the bite.

Note: While this motion only encompassed the actions of Bongiovanni and not the handler, it is a good reminder that bystander liability is alive and well. This opinion addressed the pepper spray and the physical blows alleged, but I did not review that portion of the opinion.

Commonwealth v. Jones (Virginia 2021) 2021 Va. Cir. LEXIS 170
Traffic Stop; Prolonged Detention

Traffic stop for blowing a stop sign. Jones, the driver, was checked out and LE decided he was just going to warn him (partly because he didn’t have a citation book). When LE approached to return Jones’ documents, LE asked if there was anything illegal in the vehicle to determine whether weapons are present for the purposes of officer safety and/or to determine whether there is anything illegal present in the vehicle, like narcotics. Jones replied he had marijuana. After an additional question, Jones admitted to possessing a gun. Car was searched and gun and contraband found.

The court held that the questioning after returning documents were not a prolongation of the stop and stated that general inquiries into the presence of illegal items in a vehicle, even at the conclusion of a traffic stop, can under certain circumstances relate to highway safety and the responsible operation of vehicles on the road, and therefore—pursuant to Rodriguez—can be related to the mission of the traffic stop.

The court also held that this was not a prolonged detention. LE had not returned Jones’s driver’s license and registration or informed Jones that he would not be writing a traffic citation when LE asked about whether there was anything in Jones’s vehicle. The court held that these questions related to police and highway safety and, thus, the mission of the traffic stop.

Note: I think this is a bit of a stretch. Asking questions at the end of a stop for “officer safety” reasons seems counterintuitive. While the court ruled for LE here, I don’t expect this result in other jurisdictions under these facts. Ask those questions while you are gathering documents or while you’re still engaged in processing the traffic violation investigation.

United States v. Suarez (Florida 2021) 2021 U.S. Dist. LEXIS 155547 – Package Sniff; Prolonged Detention; Reliability Foundation

Postal inspector intercepted two packages that were being shipped from California to Florida. A K9 sniff was conducted by placing each suspicious package in a lineup with five parcels. The suspicious packages were placed in different positions in the two lineups. The K9 alerted to the two suspicious packages. K9 indicated the presence of narcotics by sitting down next to the suspicious package. A search warrant was then served on the packages and contraband was found. The packages were then sealed back up and he packages were sent to their destinations with a court approved tracker. Suarez and his girlfriend picked up the packages at two different addresses. The girlfriend was identified as the sender.

Suarez complained that the affidavit for the search warrant was deficient because it did not have enough information on the reliability of the K9. After stating the process of how the K9 alerted on the two packages, the search warrant affidavit stated that K9 “is trained in the detention of narcotics and has proven reliable in the past.” At the hearing, LE testified that he is personally familiar with the handler and K9 and knows they have been reliable in identifying narcotics. The Court found LE’s testimony was credible and concluded that the affidavit was not deficient on this ground.

Suarez also complained that the packages were unlawfully delayed prior to delivery. The court stated that a package in the mail may be detained on the basis of reasonable suspicion to believe it contains contraband pending further investigation directed toward establishing probable cause which will support issuance of a search warrant. The detention of the packages for this limited time was deemed prudent as opposed to letting them enter the mail and trying to retrieve them later to execute a search warrant. Therefore, the court held, the detention of the packages in this case was reasonable and more sensible than sending both packages out for delivery to the fictitious addresses. Here, the parcels were sent on April 6, 2021, they were detained on April 7, 2021, and law enforcement secured a positive K9 sniff and applied for search warrant by April 8, 2021. The Court issued a warrant on April 9, 2021 and that warrant was executed on the following business day, April 12, 2021. The Court found the length of detention to be reasonable under the circumstances.

Note: While the court seemed satisfied with a conclusory statement in the search warrant affidavit regarding the reliability of the K9 team, I don’t think that will actually pass muster. Any conclusory statement in an affidavit must have support provided. That’s why it’s so important to have your canned paragraph establishing your K9’s training and certification up to date and ready at hand to include in an affidavit. Just adding that paragraph will avoid any of these arguments. (And I am skeptical about taking testimony to support the affidavit. Generally, a search warrant must stand or fall on solely what is in the document.)

Harris v. Donaldson (2021) 2021 U.S. Dist. LEXIS 155635
Pursuit; Excessive Force

K9 team was in the caravan of vehicles when LE began the pursuit of Harris who was seen in a car at or near the home of a fugitive. Harris did not voluntarily stop during the pursuit; rather, his car was incapacitated after it was rear ended. Handler ordered Harris to show his hands. Harris claimed that his hands were not hidden while handler maintained that Harris initially complied and then moved his arms from view and handler did know whether Harris was armed. Handler gave Harris multiple commands to show his hands and Harris maintained that he complied but also acknowledged later that he never put his hands on the steering wheel. Handler, concerned that Harris had a weapon and was luring handler to the car to use a weapon against him, commanded K9 to apprehend Harris. K9 bit Harris on his left side. When Harris refused to exit the vehicle, handler pulled Harris from the vehicle and Harris fell on top of K9. Harris testified that handler repeated the words, “Get ’em boy,” but the record did not indicate that this is a command for K9 to reengage. Rather, K9 released Harris when Harris fell on him and, without being commanded, re-apprehended Harris on his left leg, all the while handler continued to command Harris to show his hands. According to Harris, after K9’s initial detachment, he attached and reattached multiple times. At some point, Harris was bitten a third time on his right buttock and that is when handler gained control of Harris. The record evidence did not indicate that handler gave a second or third command to reengage. Another LE instructed handler to give the release command, and handler complied. K9 released on command. Harris was handcuffed.

All parties agree that once Harris was handcuffed K9 did not apprehend Harris again. Thirty-eight seconds of time passed from the time K9 jumped into the car to the time of the final release.
Given these facts, the court held that the use of K9 to apprehend and detain Harris was objectively reasonable. Indeed, to an objective observer, it cannot be denied that Harris appeared to pose a safety threat given his erratic driving and his attempt to evade police by flight. Harris’ actions led handler to believe that Harris may have been armed. Finally, the entire incident occurred very quickly — within seconds. The force used by handler was objectively reasonable under the circumstances of the particular situation. Because Harris has not stated a constitutional violation, LE’s motion for summary judgment as it relates to Harris’ excessive force claim was granted.

Note: The body cam footage was critical here as will be in every case where it exists (and where it doesn’t, the inevitable cell phone videos will). The court did a full analysis under Graham v. Connor and because the sequences of events was very detailed, the court had no problem tossing the case at this very early point. Great result.

State v. Davis (Wisconsin 2021) 2021 Wisc. App. LEXIS 718
Traffic Stop; Prolonged Detention

Traffic stop for no passenger side mirror. After contact, LE discovered that Davis’ driver’s license was suspended. LE told Davis to find someone to give him a ride. LE then contacted dispatch about Davis’ bond status. LE then learned that Davis was on bond for possession of a concealed weapon and methamphetamine. LE then contacted dispatch to see if there were any conditions on his bond. He also requested back up. A couple of minutes later, back up arrived. This back up informed LE that Davis was a big time dealer and carried his meth in his sock(s). Back up approached Davis in his car and then engaged in small talk. Dispatch then relayed that Davis had no relevant bond conditions. Back up then described to LE that Davis had lumps in his socks and pants pocket which meant to him that Davis probably had meth on his person. About 40 minutes after the stop, K9 team arrived and K9 alerted to the vehicle. The trial court agreed with the government that there was reasonable suspicion for the stop, but held there was no reasonable suspicion that justified that additional time waiting on information on Davis’ bond.

The appellate court affirmed that based on the very specific issue of waiting on the information on the bond was a prolonged detention.

The appellate court concluded that checking for bond conditions is not an ordinary inquiry incidental to the mission of a traffic stop, mainly because it would reveal additional information that LE doesn’t need (for the purposes of a traffic stop) and that it could take too long, therefore becoming prolongation. LE may check bond conditions while simultaneously performing other mission-related tasks under Rodriguez, but LE may not prolong a stop to inquire into a motorist’s bond conditions without reasonable suspicion that the motorist is violating a bond condition. Interestingly, the appellate court ignored the issue of officer safety, mainly because the government did not argue it.

Note: This is now the law of the land for this appellate Wisconsin jurisdiction (as well as persuasive authority for the rest of the Wisconsin appellate districts). That is a bad thing. Had the government argued LE safety in addition to the issue that the check on the warrant activity was an ordinary part of the traffic stop, they may have been more successful (see Smith at 379 Wisc 2d 86 from the Wisconsin Supreme Court). Davis was found to be out on bond for possession of meth and concealed weapon (in the period prior to requesting information on conditions of the bond), and this would have given LE the authority (from the US Supreme Court) to remove Davis (or even wait for back up) from the vehicle and do a Terry frisk based on the knowledge that he had previously in possession of a concealed weapon (based on the descriptions of the sock and pant lump, this could have been admissible under the “plain-feel” doctrine). Always make sure you put in your report all the avenues of admissibility that could be pursued at all levels of review. The fault lies here with the government not advancing this argument at the trial level (at least it appears this way from the limited discussion of the facts of the trial level proceeding.

State v. Kochendarfer (Arizona 2021) 2021 Ariz. App. Unpub. LEXIS 833
Traffic Stop; Prolonged Duration

Traffic stop for following too closely. After checking Kochendarfer’s pulse, which LE determined was 120 beats per minute, LE asked to search the pickup. Kochendarfer refused. LE then asked if he could run his K-9 around the pickup. Kochendarfer replied, “If I’m being detained, if not I’d like to go on my way.” LE instructed Kochendarfer to “hang tight here” (he had been seated in the patrol car) while LE directed the K-9 perform a sniff around the pickup. At that point, the traffic stop had reached nearly thirteen minutes in duration. At some point during the traffic stop, another officer arrived and stood near the back of the patrol vehicle on the passenger side near Kochendarfer.

Kochendarfer remained seated in the patrol vehicle while the K-9 performed an exterior sniff of the pickup. After the dog alerted to the presence of drugs, LE searched the pickup and found more than 300 pounds of marijuana in the bed of the pickup.

Kochendarfer contends LE should not have asked him to sit in the patrol vehicle during the traffic stop. LE testified that, because of “officer safety,” at least in part, he frequently asks those he has stopped for a suspected traffic violation to sit in his patrol vehicle. Case law allows for the same, at least to some degree. But LE also noted he directs traffic detainees to sit in his patrol vehicle for “other things” not directly linked to officer safety, like “DUI investigations.”

Once in the patrol vehicle, LE’s questions of Kochendarfer while completing the traffic warning, even on matters unrelated to the traffic stop, were likewise permissible because they did not extend the duration of the stop. Once LE completed the warning and handed it to Kochendarfer, the purpose for the traffic stop had been accomplished and LE’s authority to prolong the stop had come to an end, absent a legal exception.

But once Kochendarfer refused to allow LE to search his pickup and LE did not meet the condition of the consent Kockendarger required (detention), the encounter was clearly no longer consensual and LE was required to allow Kochendarfer to be on his way absent a reasonable and articulable suspicion of criminal activity.

The appellate court then ruled that LE lacked reasonable suspicion of criminal activity, and unlawfully prolonged the traffic stop beyond the time needed for its completion.

Note: Not really a surprising ruling. Based on the facts in the opinion, it was clear that the traffic stop was at an end before the K9 sniff was conducted. Make sure you have a plan to conduct sniffs within the confines of the traffic investigation or develop additional probable cause. Here, the consent was dependent on LE having detained Kochendarfer. Since a detention at that point would have been illegal, LE did not meet the conditions for the consent and the motion to suppress was granted.

State v. Mesadieu (New Jersey 2021) 2021 N.J. Super. Unpub. LEXIS 1774
Traffic Stop; Prolonged Detention

LE seized Mesadieu’s unlawfully possessed handgun after stopping him for motor-vehicle violations. Mesadieu was being followed by LE because a reliable confidential informant told them that Mesadieu, who often carried a handgun (and was presently out on bail on a weapons-possession charge), would that day transport heroin in his Dodge Ram truck. After LE stopped Mesadieu, LE removed him from his truck and patted him down and called for a K9 team. They arrived thirteen minutes later and K9 indicated the presence of drugs in the truck. A search warrant was later issued using the alert as probable cause. The subsequent search uncovered a handgun.

The appellate court first stated they discern no proof that LE was unable to complete the traffic mission before the K9 arrived. LE did not explain why it took so long to write tickets, especially given that within minutes, at least eight other officers were on the scene. Rather than diligently pursue the traffic mission, LE evidently focused on his drug investigation. He stated he was “waiting for the canines” — not writing tickets — when he spotted the envelope of cash. Nor did he establish why he would have needed time to verify Mesadieu’s identity and perform a warrant check. Mesadieu was in his sights for months. LE had even pulled Mesadieu’s motor-vehicle information to confirm his identity with the confidential informant. Finally, although Mesadieu’s behavior prompted LE to seat him in the patrol car, LE did not clarify how much time that interaction consumed. In sum, although Martinez evidently did not complete the traffic-related mission before the K9 unit arrived, the State failed to prove that the police used only “the time reasonably required to complete” that mission.

The appellate court went on to state, that even so, Mesadieu’s detention was lawful. “[I]f, as a result of the initial stop or further inquiries, ‘the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden [the] inquiry and satisfy those suspicions.'” Put another way, “[I]f an officer has articulable reasonable suspicion independent from the reason for the traffic stop that a suspect possesses narcotics, the officer may continue a detention to administer a K9 sniff.” Ultimately, the totality of circumstances supported a reasonable and articulable suspicion that Mesadieu possessed drugs or a gun. The informant’s tip was the strongest basis for that suspicion — but by the time the motor-vehicle stop transformed into a narcotics-or-gun-related stop, the police had more than just a tip. “An informant’s tip is a factor to be considered when evaluating whether an investigatory stop is justified. For that reason, we are not constrained by cases Mesadieu cites scrutinizing narcotics-related stops that were based solely on a confidential informant’s tip. And the tip was not all LE had to go on; three other sets of facts reinforced the basis for suspicion. First, Mesadieu drove erratically and evasively after LE made a U-turn and started following him. Specifically, Mesadieu abruptly turned left at an intersection without signaling, and once on the highway, he moved to the left-most lane — and then moved to the exit lane so suddenly that other cars had to brake to avoid a collision. Mesadieu’s erratic and evasive driving contributed to a reasonable suspicion that he was violating more than just the rules of the road. Second, Martinez also knew that Mesadieu had a criminal history and was free on bail on a weapons charge. That knowledge thickened the stew of suspicion (court’s words, not mine). Third, Mesadieu hesitated after LE commanded him to exit his truck. And finally, after Mesadieu did step out of the vehicle, he acted erratically. He paced back and forth behind his truck; he called LE a liar; he “rant[ed] and rav[ed],” claiming LE was setting him up; and he demanded to speak to Internal Affairs. Of course, a citizen who believes that police have violated his or her rights may become understandably irate and threaten to register a complaint. But “[f]acts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate.” LE, under the circumstances here, would have been justified in suspecting that Mesadieu’s protests were a calculated effort to deter the officers.

The totality of these factors and the confidential informant’s tip were sufficient to create a reasonable and articulable suspicion of a drug- or weapons-related crime, which justified prolonging the stop until the K9 arrived.

Note: Appropriate finding by the appellate court. If you’re sure you have probable cause based on a previous investigation, then your investigation at the stop is expandable to encompass both the traffic violation and the crimes for which you have probable cause. Otherwise, you will need to develop additional probable cause during the traffic investigation without delaying the traffic investigation.  There were other issues raised by Mesadieu that the court ruled on, but are not relevant here, so I did not review them.

United States v. Williams (Michigan 2021) 2021 U.S. Dist. LEXIS 149032
Traffic Stop; Prolonged Detention

Williams was the driver of a rental car which was stopped by well-trained and experienced LE for following too closely. As LE followed the vehicle, she called in the complaint and found out it had been rented the previous morning in Texas.

As LE approached the driver, the passenger supplied his driver’s license voluntarily and without eye contact. Williams gave his license and the rental agreement to LE when asked to give his license and insurance. LE then directed Williams out of the car and suggested that he sit in the front seat of the cruiser. He declined. LE then questioned him about his travels. His answers were both suspicious and inconsistent. LE then ran the documents supplied by the occupants and while Williams had nothing of interest, the passenger had an officer safety caution and was on probation. A K9 team arrived during the records check. LE then questioned passenger on his status as well as some of the same questions asked of Williams. His answers did not match Williams’ answers. About 12 minutes into the stop, after Williams refused consent for a sniff, the K9 team sniffed the rental and alerted. Found in the vehicle were 5 kilos of controlled substances.

LE testified that she had completed almost all of the tasks associated with the traffic stop, all of which the court found to be related to the investigation of the traffic violations. What remained was for her to issue a citation or let Williams proceed on his way.

But by that time, LE had learned sufficient facts to supply reasonable suspicion to detain Williams for further inquiry. Williams’s statements seemed to contradict the records for his vehicle. Add to that the unusual route that Williams was taking from Houston to Detroit, and Williams’s evasive responses and defensiveness when prodded about his travel history.

Other factors like the refusal to enter police cruiser, defensiveness and passenger’s failure to make eye contact were factors that LE could consider in the total mix. Williams was also driving on a drug corridor, using a rental car, and lying about his travels  which were other weak indicators, but still, when analyzed by LE with appropriate training and experience could be considered in determining reasonable suspicion. At the very least, the foregoing factors, along with passenger’s probation status (which presumably limited his ability to travel outside Michigan), gave LE sufficient reason to inquire further about Williams’ travel itinerary.

In short, all the facts gathered by LE by the time she finished checking Williams’ and passenger’s licenses and information from inside her cruiser were sufficient to detain Williams to inquire further about his travel history. She had grounds to suspect a possible parole violation, if not more. And those facts, combined with what she learned after further inquiry, were sufficient for LE to detain the occupants for a few more minutes to allow handler to conduct the K9 sniff around the car.

Note: The court also held that to the extent passenger challenged LE’s search of his luggage, his argument was faulty because LE obtained probable cause to search the inside of the car based on the K9 alert. “An alert by a properly trained and reliable drug-detection dog is sufficient to establish probable cause for the presence of a controlled substance.” And “[i]f the police have probable cause to search a lawfully stopped vehicle for contraband, then the police have probable cause to search every part of the vehicle and all containers found therein in which the object of the search could be hidden.” Accordingly, the officers had probable cause to search the luggage in the back seat of the car in which the drugs were found.

United States v. Abreu (New Jersey 2021) 2021 U.S. Dist. LEXIS 151732
Traffic Stop; Pretextual Stop; Consent; Collective Knowledge Doctrine

During a drug investigation of Abreu, it was decided to do a pretextual stop on Abreu who was driving a tractor/trailer. Abreu was pulled over for a  lane violation and going too slow. While he had a purported bill of lading, he told LE that his electronic logbook had been accidently disabled. LE told Abreu that he was only going to give him a warning for the lane violation and asked him whether he was transporting any narcotics. LE asked for consent to search the tractor/trailer. Abreu consented to the tractor but not the trailer, claiming it was sealed so the recipient knew the cargo was not tampered with. LE offered to replace the seal with a LE seal, but Abreu still refused search of the trailer. LE persisted, arguing and trying to convince Abreu that he had the capacity to consent.

When Abreu still refused to give consent to search the trailer, LE told him that he was going to have a drug detection K9 go around the trailer, and that if the K9 alerted to the trailer, then the police would search the trailer without Abreu’s consent. Finally, after being told multiple times that he had the right (capacity) to consent to the search of the trailer and that the police would replace the cut seal with their own seal, Abreu executed a form consenting to the search of the trailer. This change was reflected on the consent to search form. Then, before LE had a chance to search the trailer, he was informed by the handler that the K9 had not in fact alerted to the exterior of the trailer. However, this information was not relayed to Abreu at the time and LE went on to open and search the trailer, which ultimately led to the discovery of narcotics in the trailer.

The appellate court first addressed the reasonable suspicion for the stop, holding while the subjective intent of LE in stopping the vehicle was irrelevant, it believed that LE was eager to further the drug investigation and LE could not show that the lane violation was unsafe as required by the statute (dash cam footage indicated that there was only once that the tractor/trailer briefly touched the fog line). The court moved on to determine whether the on-going drug investigation provided reasonable suspicion to stop Abreu, holding that the collective knowledge doctrine cannot apply because LE did not base the traffic stop on the assumption that the FBI had reasonable suspicion that Abreu was transporting narcotics at the time of the stop. Rather, the Government has always asserted, and LE has consistently testified, that he was asked to stop Abreu simply on the basis on a traffic violation and that LE was not aware at the time of the stop that the FBI had reasonable suspicion that Abreu was transporting drugs. Therefore the collective knowledge doctrine did not apply. Therefore, because LE could not demonstrate that he had reasonable suspicion to believe that Abreu had committed a traffic violation, which was the basis for the traffic stop, the traffic stop was unlawful, and thus the evidence seized as a result was suppressed.

The court then moved onto the issue of consent, using the standard that the critical factors comprising a totality of the circumstances inquiry regarding the voluntariness of consent include the setting in which the consent was obtained, the parties’ verbal and non-verbal actions, and the age, intelligence, and educational background of the consenting individual. These factors must be analyzed in the context of the totality of the circumstances. Many aspects of the traffic stop in general served to put Abreu in a vulnerable state. The stop was about an hour long between the actual stop and the K9 sniff. It was during the early morning hours, making it likely that it was not completely light outside and that not many other drivers were on the road. During this extended stop outside, the weather was also cold, as can be gleaned from the fact that LE asked Abreu on multiple occasions whether he wanted his jacket or to sit in the patrol car for warmth. By the time that Abreu allegedly consented to the search of the trailer, he certainly was not on his own territory, but was on the side of an empty highway during the early morning hours with three police officers with visible guns in their holsters and a K9. These elements all combined to create a setting that put Abreu in a more vulnerable state, and thus made it more likely that any eventual consent given by Abreu would not be voluntary. In addition, the repeated asking for consent in the face of constant and consistent refusals, the fact that LE never told Abreu that he was not required to consent and the fact that LE told Abreu that they had authority of inspection of the load (which was false) resulted in subtle coercion (subtle was the court’s word). Abreu also spoke English as a second language. Therefore, the court held that these elements combined indicated that the consent Abreu gave was not voluntary and thus the search was illegal.

Note: The opinion reads like the appellate court was unhappy with the behavior of LE and the FBI, particularly the repeated attempts to get consent. It also appears to have been ticked off about the government’s gamesmanship during the motions (choosing to wait to the last minute to offer the argument that the stop was based on the drug investigation). In addition, the fact that the K9 did not alert but they searched the trailer anyway after being informed of the failure to alert was not a good fact for the government. The appellate court had to do some mental gymnastics to determine that the touching of the fog line was a violation of the statute and that it was not indicative of the driver being sleepy or under the influence. The best practice (in hindsight) would be that if LE really had reasonable suspicion that Abreu was in possession of narcotics, they should have led with that. During testimony though, LE maintained that the only reason he stopped Abreu was for the traffic violations. It would have been much more effective for the investigators to have briefed LE on the state of the investigation and/or wait for a more definite violation on Abreu’s part. And the prosecutor limited himself from advancing viable theories of admissibility because of his gamesmanship.

There was the barest hint in this opinion that the presence of a K9 at the time of consent could be coercive. This is an argument that is gaining traction in the appellate courts and there are other cases that support that concept. Please be mindful of that and make sure the K9 is safely and visibly controlled to eliminate the possibility of this argument.

United States v. Cain (Pennsylvania 2021) 2021 U.S. Dist. LEXIS 151805
Traffic Stop; Inevitable Discovery; Probable Cause for Arrest; Plain Sight and Smell

LE received a photo from a fellow officer that showed Cain was currently in possession of a firearm. Cain was spotted and pulled over in a rental vehicle. The traffic stop was made for a suspended license (LE had previous knowledge of the suspended license). The trial court found LE to be well-qualified and trained and therefore credible (as did the appellate court). LE also smelled the odor of marijuana coming from the vehicle. A Terry frisk revealed contraband and cash. A gun, two phones and marijuana were found in the vehicle.

The appellate court first addressed the issue of reasonable suspicion. They found based upon LE’s testimony and other relevant record evidence that the primary basis of LE’s belief that Mr. Cain was not properly licensed supplied a reasonable suspicion of a traffic infraction.

The appellate court moved on to consider the Terry frisk, detention and/or arrest of Cain. First, the court held that the Terry frisk was appropriate based on the information that Cain had been arrested with firearms before and that he was pictured with a gun in his possession very recently. The court then concluded that Cain was de facto under arrest because he was surrounded by police vehicles and LE pointed guns at him. However, the court held that the arrest was unlawful because it happened prior to the search of the vehicle, resulting in no probable cause for the arrest (odd, given the Terry frisk revealed narcotics).

However, the court also held that the odor (and sight) of marijuana allowed for the search of the vehicle under the automobile exception.

The court then addressed whether the narcotics and cash found during the Terry frisk should be suppressed, given that they found the arrest unsupported by probable cause. The court held that the inevitable discovery doctrine applied because had LE searched the vehicle prior to “patting down” Cain, they would have discovered the firearm (pursuant to the automobile exception) and the marijuana (pursuant to both the automobile exception and plain view), either of which would in turn, have provided probable cause to arrest Cain.

Note: 1) The appellate court was skeptical of late released information to the defense (the information that, prior to the stop, another LE officer sent him a photo of Cain with a gun: rather important to discover to the defense as soon as possible). When a case is sent to the prosecutor’s office, make sure you send everything at the first request. If your agency has a policy of forwarding everything at the time of filing, great. But you’re still responsible for making sure the prosecutor has it all. This includes body cams as well as clandestine photos. If anything might effect LE safety or on-going LE investigations, make sure the prosecutor asks for an in-camera hearing prior to disclosing the information.

2) The court opined that LE did not have probable cause to arrest Cain at the point that they did because at most, the facts were such that a brief, investigatory stop—one involving a lesser degree of intrusion than that which actually occurred here—should have been made or additional information gathered to confirm or dispel the officers’ suspicion. They thought that they should have just talked to him. This reveals a lack of awareness on the judicial side of the system the danger that a person with a firearms history who is in possession of a gun posed to LE and the public at large. I think because the evidence of the photo showing Cain in possession of a firearm was discovered late caused more scrutiny of that evidence. However, there is still some ignorance that needs to be educated. Make sure the court knows that in a case like this one, the danger of the individual is actually heightened.

United States v. Green (Missouri 2021) 2021 U.S. App. LEXIS 24129
Package Sniff

While working interdiction at a FedEx sorting center, LE noticed a box that met the criteria of containing narcotics. This LE had 17 years of experience making these judgement calls. His K9 was 200 feet away in an area with no other packages. The package was brought to the K9 and the K9 immediately alerted on it. A search warrant was issued for the box based on the K9 alert. Part of that warrant was an anticipatory warrant for the address on the box, which would allow LE to enter the address to retrieve the drugs. There was no answer, so LE left the box at the door. Eight minutes later LE saw Green approach, tell someone on his phone that the box was there, pick up the box, put it inside and then leave. He was intercepted and arrested. LE then entered the apartment on the anticipatory search warrant and did a tactical sweep in which contraband items were seen in plain view. That tactical team withdrew and the interdiction team came in, found the box, opened it and there was 24 pound of marijuana. Additional items found were a AR-15 rifle, ammo and magazines, body armor, and other paraphernalia associated with marijuana.

Green moved to challenge whether reasonable suspicion supported the seizure of the box at the FedEx facility. Green claimed that the seizure occurred when LE took the box off the conveyor belt and took it to the K9 for a sniff and that LE lacked reasonable suspicion to move the box in this manner. The court concluded that LE did not deprive FedEx of custody because he was acting at FedEx’s direction. LE identified the box as suspicious and acted at the direction of FedEx (they had specific rules about the time, area and executing of having the package sniffed) by taking the package to the location FedEx designated for K9 sniffs.

Note: There were additional issues pursuant to the serving of the warrant but I did not review those here. The point of reviewing this part of the case is to show that LE must be working in tandem with the carrier and that they are meeting the directives of the carrier (to show that consent was given for LE, including K9 have permission to be there).

United States v. Junkins (West Virginia; 4th Cir. 2021) 2021 U.S. App. LEXIS 24174
Traffic Stop; Reasonable Suspicion; Prolonged Detention

LE received a request for a welfare check of a car full of people parked at a restaurant. These people had been unconscious for awhile but then got up and began taking pictures of themselves and other people. LE arrived to see the car drive out of the parking lot. LE followed and noticed an occupant throw a straw out of the passenger window and observed that the plate was obstructed.

Junkins, the driver, was contacted and told the reason for the stop. Although belligerent and agitated, Junkins complied with the request for documents and handing over his license and a receipt that he traded another car for the one he was driving. He had to call his wife to text him a copy of the insurance card. LE used this time to run the information in his possession and after some trouble, confirmed the registration as valid. LE then returned to Junkins and told him about the initial complaint. Junkins again became belligerent and uncooperative. Junkins didn’t answer when LE asked if there was anything in the vehicle he should be worried about and if he could search the car. At this point, LE requested a K9 unit, which had to complete a stop nearby before it could report to the scene. A couple of minutes later, Junkins received a picture of his insurance card. This card was for a different car so LE called the insurance company to verify coverage on this vehicle. During this call, the K9 team arrived and performed a sniff. The K9 alerted on the driver’s door before LE was able to complete the citations. LE found narcotics, a gun, and drug paraphernalia.

Junkins complained that the stop was unreasonably prolonged. The court first held that LE had probable cause to stop the vehicle because they saw two traffic violations: (1) littering, in the form of a plastic straw flying out of the car’s window, and (2) an obstructed license plate. The court moved onto the prolonged detention issue. The court held that LE did not unreasonably prolong the stop because LE had just received confirmation that the vehicle was insured and was still writing citations when the K9 alerted. The testimony at the hearing was clarified that LE received the verification while the sniff was underway, and that LE was still writing citations when the K9 alerted. Because LE was still conducting the ordinary tasks incident to the traffic stop when the K9 alerted, there was no prolonged detention.

Note: There were other arguments that I did not address here because they were not relevant to the purposes of this Update. However, this is a textbook case of the alert happening while the ordinary business of the traffic stop was incomplete which makes it easy for the courts to deny motions to suppress.

State v. Schnakenburg (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 264
Traffic Stop; Search of Containers; Search of Occupant and Possessions

LE sawSchnakenburg pull over and park without signaling. LE ran the plate and discovered the registration was expired. LE then looked up and saw Schnakenburg, an occupant, walking away with her purse. She returned as requested as back up arrived. After Schnakenburg said she did not have a license, her information was checked and she came back suspended. Back up requested a K9 team. The K9 team responded and performed a sniff resulting in an alert while LE was filling out the citations. There was no contraband in the car, so LE searched Schnakenburg’s purse which was in her possession. There was drug paraphernalia in the purse as well as heroin residue. She was arrested and taken to jail. At the jail, LE found a meth pipe with residue and a small amount of heroin.

Schnakenburg appealed, claiming that although LE had the right to search all containers in a vehicle upon which a K9 has alerted, LE does not have the right to search her person and her belongings on her person. The appellate court agreed, based on a recent Idaho Supreme Court case, State v. Maloney (2021) 489 P.3d 847. In that case, during a consent search, LE found a marijuana pipe in a bag in the vehicle. However, since her ex-husband’s ID was found in the bag, LE decided not to charge her. LE did, however, use the marijuana pipe to search Maloney’s purse which was on her person as she stood outside of the car and found two pipes with meth residue. The Idaho Supreme Court held that if the container searched was not in the vehicle at the time probable cause was developed, the search is not allowed.

Because Schnakenburg’s purse was not in the car when probable cause to search the car arose, LE’s search of the purse could not be supported by the automobile exception to the warrant requirement.

Central to this decision in this case in addition to the Idaho state cases was the U.S. Supreme Court holding in Wyoming v. Houghton that “police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.” The words “found in the car” were what the Idaho Supreme Court’s decision here was based on.

Note: This holding seems to be mostly relying on Idaho law which in turn relies on a very narrow reading of Wyoming v. Houghton, the seminal case that authorizes searches of all containers in a vehicle in which LE has probable cause to search. What’s interesting is that the container rule is the only argument advanced by the government. However, one a K9 alerts on a vehicle, LE not only has probable cause to search the vehicle, but also has probable cause to arrest the occupant(s). In this case and Maloney, the arrest came after LE found contraband in the container in the possession of the occupant. So perhaps a more successful argument is that the occupant is under arrest and she is searched pursuant to arrest. I don’t know if driving suspended in Idaho is an arrestable offense, but if it is, the arrest could have been for that reason and again, LE then has the right to search a purse in possession of the arrestee. Another good reminder to always advance all theories of admissibility and to document the facts that support all theories in your report.

United States v. Villagomez (California 2021) 2021 U.S. Dist. LEXIS 152986
Odor of Marijuana as Probable Cause; Reasonable Suspicion; Reliability Foundation

In a case where San Francisco LE had a long standing relationship with a CRI, who told LE that at least one man, possibly accompanied by either a second man or a woman, had traveled from San Diego to the Bay Area to sell 1 kilogram of heroin; they were staying at the Inn on Folsom in San Francisco; they were prepared to conduct the transaction with the informant at the hotel; and they were driving a white Chevy Malibu. LE surveilled the CRI while CRI contacted and spoke with the driver and passenger of a white Malibu at the location described. LE then saw the passenger get out of the car, went into the hotel, come back with a black bag, and returned to the car.

The appellate court opined that the combination of the CRI’s information and the conduct observed by LE was enough to establish probable cause to stop the suspects and search the car for drugs. (The appellate court was somewhat critical of how LE handled this contact with the suspects by the CRI, but because it was a long-standing relationship and there was no information that the CRI ever gave false information, the court concluded that there was probable cause based on the CRI’s information).

Even though the appellate court ruled that the CRI information and LE’s observations created probable cause, the court also weighed in on the reliability of a K9 sniff of the vehicle that resulted in alert behavior. This K9 was trained in detecting marijuana among other scents. The appellate court held that since marijuana is legal now, when a narcotics detection dog is sniffing around a car on a busy street in San Francisco and merely exhibits a behavior change rather than sitting in front of the car or staring at the car, one would be forced to wonder if it detected the odor of narcotics in the car, or the faint odor of marijuana from one of the countless people in the vicinity who could be carrying or smoking it (especially since this happened in San Francisco). Moreover, even if the dog is detecting the odor of narcotics in a car, what are the odds in the typical case that it is something other than an amount of marijuana that people are legally entitled to possess? In addition, while the K9 at issue was well-trained and tested, the K9 was not tested at all on whether his alert behavior was as reliable as his final indication (here, the alert behavior was a sudden head movement). In addition, the court was concerned that the body camera footage shows that K9 spent a good deal of time sniffing all around the car—including near the rear door with the open window—without exhibiting any discernable sudden head movement. This lasted for approximately one minute. Then, at a point where the footage was not showing K9, handler can be heard announcing a behavior change in front of the door with the open window. Given the general concerns about the reliability of behavior changes, the specific concerns about whether K9’s behavior changes were ever tested for reliability, and the nature of the body camera evidence, the appellate court held that the government has not met its burden of showing that K9 detected the odor of narcotics emanating from inside the car. The appellate court also stated the evidentiary hearing raised serious questions about how the San Francisco Police Department is using drug detection dogs.

Note: This case apparently suffered from poor preparation for court. I’m not sure if there was a failure to present evidence about how smell works or some other issue, but the court was very skeptical of LE here. This may just be a local artifact of the political atmosphere of San Francisco, an area which is already skeptical of LE, but the court seems to get off track in its final indication v. alert behavior argument. Still, it is an indication of how the courts may be leaning, at least in California. Handlers may want to consider recording whether the probable cause came from alert behaviors v. a final indication as well as records the actual actions by the K9 in its alert behaviors, if that is not already being done. In addition, explain why your K9 is doing a lot of sniffing without alerting or indicating (if you can). Also, the appellate court put a lot of stock in the testimony of Andy Falco, actually calling him credible, even though he has been discredited in many cases, not least because he will just testify to whatever benefits his client which often is at odds to his testimony in other similar cases. Why the government did not supply those cases to the appellate court in their brief is beyond me.

United States v. Braddy (11th Cir. (Alabama)) 2021 U.S. App. LEXIS 26230
Traffic Stop; Alert v. Final Indication as Probable Cause; Prolonged Detention; Reliability Foundation

Braddy was stopped by LE for having his license plate obstructed by bicycles fastened to the back of the car and his behavior when noticing LE was suspicious (extremely nervous, not making eye contact, claiming his brother was LE and having no reaction to being told he was just going to get a warning). LE questioned Braddy about his travel plans, itinerary, residency, and ownership of the vehicle. LE had Braddy get out of the vehicle because his license information did not match LE’s database information and Braddy was not the owner of the vehicle. While these record checks were going on, K91 alerted, but his handler missed it because he was distracted by traffic. However, another handler on scene testified about the alert behavior and that he had seen this K9 perform in the same way when confronted by the smells in which he had been trained. This K9 was unable to perform his final indication because he could not pinpoint the source of the odor. The other team sniffed the vehicle and got an alert on the same area of the first team (and also did not perform a final indication). While this was happening, Braddy was on the phone to his brother, and was aggressive, evasive and deceptive and LE suspected the brother was coaching him. Braddy refused to hang up in the face of repeated demands to do so.

The second handler testified to the other team’s behavior at the stop since the first team had trained often with the second team. Both handlers testified to their training, experience and certifications as well as the specific actions of each K9 that they knew were alert behaviors.

Braddy put on Andy Falco as an expert, who claimed that the two handlers “overhandled” their K9s. Falco acknowledged that he was being paid by Braddy and that similar testimony by him had been rejected in multiple other cases.

Braddy argued in his motion to suppress that LE’s reason for pulling Braddy over, a code section which requires motor vehicle operators to keep their license plates plainly visible, did not provide probable cause because the statute did not apply to Braddy as a nonresident of Alabama. The court rejected this argument and held the stop was legal.

Braddy also argued that law enforcement lacked reasonable suspicion to go beyond the initial traffic stop, which Braddy asserts occurred when LE questioned Braddy regarding his travel plans, itinerary, residency, and ownership of the vehicle. Braddy asserted that his behavior before being pulled over was not suspicious and that his reaction to LE’s presence, his nervousness in interacting with LE, and the bicycles blocking his vehicle tag did not provide reasonable suspicion. Finally, Braddy asserted that the K9 sniffs did not provide the officers with probable cause to search his car. In support of this argument, Braddy attached a declaration from Andre Jimenez, who opined that the two dogs were being “over handled” by the officers and did not exhibit “alert/indication behavior.”

The appellate court held that LE’s questions about Braddy’s travel plans and itinerary were ordinary inquiries related to the traffic stop, especially given the fact that Braddy was driving a vehicle on Alabama roads with an obstructed Florida license plate that was not registered to him. Similarly, questions about the address on Braddy’s driver’s license, which LE determined was incorrect, and questions about the ownership of the vehicle Braddy was driving were also well within the scope of the traffic stop.

The court went on to hold that LE’s two K9s were sufficiently reliable to provide probable cause for LE to search Braddy’s vehicle. Both handlers testified in detail about the training and certifications that they and their K9s obtained. The second handler also explained that he was familiar with the alert of first handler’s K9, as he had previously trained with first handler. This record evidence was sufficient reason to trust the K9s’ alerts. The court also refused to adopt the rigid standard asserted by Falco as there is no “strict evidentiary checklist” for assessing whether a K9 is sufficiently reliable.

As the Supreme Court concluded in Harris, “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.” The court therefore concluded that the district court did not err in finding that the K9s’ alerts were sufficiently reliable to provide probable cause for the officers to search Braddy’s vehicle.

Finally, the court rejected Braddy’s assertion the the stop was unreasonably prolonged. Here, since both alerts took place while the traffic stop investigation was waiting on records checks, and the questioning by LE was relevant to the traffic stop, there was no unreasonable prolongation.

Note: Here the government used Falco’s dismal court record against him and the court properly rejected his rigid “checklist” to determine alert behavior. This case is also interesting that one handler testified about the alert behavior of the other K9, basing that testimony on shared training. Absolutely valid and smart on the part of the government to present the evidence this way. Also, both handlers were specific and detailed on the K9 behavior in this case, which assisted the court in determining that the K9 behaviors provided probable cause.

Young v. Hicks (Kentucky 2021) 2021 U.S. Dist. LEXIS 163637
Excessive Force

LE observed a white truck with a trailer backed into a closed business parking lot. Based on the LE’s observations, he believed there was a theft in progress or possible burglary. As the vehicle left, LE attempted to pursue and stop the vehicle, but elected to terminate the pursuit due to excessive high speeds and high risk of danger associated with the pursuit. Three days later, LE located the same vehicle once more. LE made contact with the driver and instructed him to turn off the vehicle. The driver ignored this command and proceeded to drive off. LE pursued the driver and attempted to stop him, but again had to terminate due to high risk of danger to others. Subsequently, LE identified the suspect driver as Young after identifying him by his driver’s license photo. It was subsequently determined that Young was a felon with an active warrant and was armed and dangerous. Four days later, LE encountered Young when they received information that he was hiding in a loft storage area of a warehouse. The prosecutor’s office advised LE that probable cause was sufficiently established to enter the storage building (based on the prior sightings and investigations outlined above). LE also requested and received permission from the storage building’s owner to enter the property where LE believed Young was hiding. LE was provided with an electronic keypad code for entry.

Announcements re: K9 were made at all entries through the building. Bullets were noted to be present as LE proceeded. A boat was found and K9 was placed in the boat to search the boat’s compartments. K9 indicated that there may be something of interest in the rear compartment of the boat, so LE opened the hatch and found Young inside crouched down with his back facing LE. His hands were not visible. LE gave another K9 warning to Young with no positive actionl. Handler gave K9 the command to apprehend Young and he did so, biting Young in several places. Sergeant quickly approached while K9 was apprehending Young and Young’s hands were then cuffed above his head. The K9 was released immediately after handcuffing. Bite duration was about 40 to 45 seconds. Young was then searched and taken to the hospital.

Young’s version was that he was in the compartment and the door was yanked open. He was holding his hands up. LE yelled at him and released the K9 to bite him, and then continued to yell at him to show his hands. He was handcuffed by another officer and taken to the hospital for treatment of the bite injuries.

The court first held that even if Young’s hands were visibly raised, Young did not cite any case law suggesting that raising his hands, on its own, was enough to put handler on notice that a K9 apprehension was unlawful in these circumstances. This was because even with Young’s hands raised, handler faced a suspect who posed an unknown safety risk and who was hiding in an unfamiliar location after fleeing from the police in a vehicle on two separate occasions and evading arrest for seven days. Handler and the other officers were also aware that at the time of this incident, Young was a convicted felon with an active warrant for a parole violation and was listed as armed and dangerous. Even though many warnings were given, Young never communicated with LE or obeyed the instructions before being apprehended. Young admitted later to hearing handler “hollar,” but claimed he did not understand.

The court held that considering the evidence and supporting affidavits put forth by LE and the unsupported assertions of Young and viewing this evidence in the light most favorable to Young, LE’s actions while apprehending Young were objectively reasonable under the circumstances. The events leading up to and during the events in question would lead a reasonable officer to believe that the use of a K9 to apprehend Young and then placing him in handcuffs did not violate Young’s Fourth Amendment right to be free from an unreasonable use of force during an arrest. The court went on to state that there were no genuine issues of material facts, and held that LE’s actions were not excessive force (since they were objectively reasonable). Therefore, LE’s motion for summary judgement in their favor was granted.

Note: Nothing really earthshattering in terms of the legal landscape here, but kudos to this tenencious LE agency who proceeded through this investigation in a reasonable and cautious manner so that the only person hurt was the offender (and this was solely because he chose to cooperate with LE).

State v. Slater (Idaho 2021) 2021 Ida. App. Unpub. LEXIS 272

At a search warrant site, after Slater refused consent, LE ran a K9 around a vehicle in the driveway and the K9 alerted. A search was conducted and a bag of meth was found. Slater then complained the search of the vehicle was a 4th Amendment violation.

Slater acknowledged that a K9 sniff is not a search and does not dispute that the K9’s alert provided probable cause for the subsequent search of her vehicle. The court agreed that the K9 sniff of Slater’s car did not constitute a Fourth Amendment search. “A dog sniff along the outside of a motor vehicle does not constitute a search under the Fourth Amendment.” A reliable drug dog’s alert on the exterior of a vehicle is sufficient to establish probable cause for a warrantless search of the interior. As such, the dog sniff was not a search and did not implicate the Fourth Amendment.

Note: Slater claimed at the trial level that since she was not stopped by LE (meaning pulled over for a traffic violation), the K9 sniff was illegal. That is not the state of the law and was clearly not successful, as she subsequently pled guilty. At the appellate level, she was left with only a standing argument, but the appellate court held that they need not address whether Slater had standing to challenge it because standing is only relevant to challenge the validity of a search. Consequently, the denial of the motion to suppress was affirmed.

Note: Not a surprise on the law, but a good reminder that a sniff can occur anywhere LE has a legal right to be. The sniff, since it is not a search, was legal because the K9 team was in the driveway of the house which the county court had authorized to be searched via search warrant.

United States v. Podbielski (North Carolina 2021) 2021 U.S. Dist. 150510
Traffic Stop; Prolonged Detention; Alert as Probable Cause

Traffic stop for lane violations as LE was concerned about driving under the influence since LE had to slow to 35 in a 50 mph zone to get driver to pass him on a two lane freeway. Podbielski was the driver; there was a female passenger. When LE contacted driver, LE saw that female’s pants were completely unzipped. Since LE knew this road was a drug corridor and that in other contacts, women were found to be carrying narcotics concealed in their bodies, LE suspected drug trafficking.

LE directed driver out and asked for his license. As he was retrieving it, LE asked partner to contact female and get her information. When all the documentation was gathered, the partner officer went back to the cruiser to check it. While that was happening, LE questioned driver about his travels and how he knew the female. His answers were suspicious and he was getting visibly more and more nervous. He questioned the female and her answers were not consistent with driver’s and LE noted her behavior was suspiciously nervous as well. LE asked for consent to search which was refused. Information then came back that driver had some court summonses which needed to be served and passenger had a suspended license. LE then requested a K9 team respond. While awaiting their arrival, LE then immediately went to work on the citations and summonses. The summons process required LE to access a different database. The K9 team arrived; handler quickly consulted with LE and then directed K9 to sniff the vehicle. LE could see driver and female start to hink up. The K9 alerted on the vehicle while LE was still at work on the paperwork. Driver was then served with his paperwork for all matters and passenger was served with hers. Driver asked if he could leave and LE waited for handler to put K9 away for safety reasons and then provide LE with results of sniff. Less than one minute later, handler advised that the K9 had alerted. Contraband was found in the vehicle.

Driver only challenged the length of the stop, claiming that the stop was unduly prolonged for the K9 sniff. Driver argued that he already had his citation for driving left of center in hand and was ready to leave, but LE violated his Fourth Amendment rights when he unlawfully extended the stop to allow handler and her K9 “to finish” or “to complete” the  sniff, contrary to the Supreme Court’s ruling in Rodriguez.

The court first held that LE’s questions were allowed because even if found to be not in furtherance of the traffic stop, this type of questioning while carrying out the tasks required during a traffic stop “need not be solely and exclusively focused on the purpose of that detention,” as long as the questioning does not extend the encounter beyond the time needed to complete the traffic stop investigation. Since the questioning took place while waiting for Dispatch to report back after running the information on driver and passenger, there was no prolonged detention. LE’s taking a moment to request the K9 team as he continued the traffic investigation was not a measurable delay either, according to the appellate court. Driver’s motion was denied.

Note: This driver was really parsing hairs here, and hung his argument on the moment LE used to call for a K9 team and the moment that LE took to find out from handler was the results were. This court indicated that these were minimal and did not measurably extend the stop. Other courts have held that any delay, however minimal, resulted in illegal prolongation. If you have such moments as described in this case, explain why you took that moment. Here, LE was able to explain why those moments happened and the court went with that. 

United States v. 110,000.00 in United States Currency (Nebraska 2021) 2021 U.S. Dist. LEXIS 150953
Traffic Stop; Prolonged Detention

Vehicle was stopped for speeding. Driver was also observed following another vehicle too closely. There was one passenger in the front seat who ultimately claimed the currency found. Upon approach, LE noted signs of extreme nervousness. LE told driver he was just going to give him a warning after checking his license and told driver to accompany him to the cruiser. Driver answered with vague statements to questions about his travel which did not sync with other evidence, like the car rental contract. Passengers answers were also not in line with other evidence. After getting back information that passenger had a criminal record involving both narcotics and weapons, LE called for a K9 team. Driver refused consent and wanted to stay out of the cruiser while the sniff was going on. LE  told him he was going to be held until the K9 team showed up and conducted the sniff. LE then approached passenger and asked if LE could search his belongings. He consented and also said, “Okay” when told a K9 team on enroute.

K9 arrived and alerted several times to the vehicle. The above captioned currency was seized along with a phone and marijuana ingestion paraphernalia from a hidden compartment in the vehicle.

Passenger claimant claimed 1) probable cause or reasonable suspicion did not exist to conduct a traffic stop of the Suburban; 2) LE unconstitutionally expanded the nature, scope, and duration of the stop; 3) LE unconstitutionally seized and searched the vehicle without a warrant or probable cause. After viewing the body cam, the court dismissed the first ground.

The court then addressed the other issues, holding first that based on the totality of the circumstances, and in consideration of LE’s training and experience, the court concluded LE had reasonable suspicion to extend the traffic stop and detain the occupants until the K9 arrived. During the course of the routine traffic stop, driver and the claimant provided inconsistent and vague statements regarding their travel plans, which plans on their face aroused suspicion. In combination with LE’s other observations, including driver’s excessive nervousness and possession of more than one cell phone, and the claimant’s criminal history involving weapons and drug distribution offenses, reasonable suspicion existed justifying the extension of the traffic stop.

Note: There were other issues in the case that I did not review as they were not relevant to the purposes of this Update.

Boone v. Commonwealth (Kentucky 2021) 2021 Ky. App. LEXIS 90
Traffic Stop; Prolonged Detention; Alert as Probable Cause for Search of Occupant

LE was surveilling a WalMart parking lot when he saw two cars pull up and some of the occupants switched between cars without going into the store. LE followed one and pulled it over for the plate light being out. LE recognized the passenger as someone who had a criminal history. Boone, the driver, said he did not have ID, his license was suspended, and lied about his name and birthdate. He was extremely nervous. He claimed the vehicle belonged to his sister (actually it belonged to the sister of the person he falsely claimed to be). About 4 minutes in, LE called for a K9 team. LE started on the citations and answered questions from Boone several times. He was still working on the citations when the K9 team arrived. LE assisted the handler in removing the occupants. K9 alerted to the vehicle but no drugs were in the vehicle. Handler searched driver and found cocaine in his pocket. Jail personnel determined Boone’s real ID.

Boone complained that the stop was impermissibly prolonged and that the search of his person was a violation of the Fourth Amendment. He did not challenge that fact that his license plate light was out or that the stop was for any other reason. The court therefore found that the stop was legal. The court then bypassed analyzing whether LE prolonged the traffic investigation and held that LE had reasonable suspicion of other crimes which allowed him to expand his investigation. LE testified that the Walmart where he first saw the vehicles had a history of being used for illegal activity, including drug trafficking. Also, LE testified that the fact that some occupants of the two vehicles changing vehicles without any occupants having visited Walmart or nearby stores was consistent with drug trafficking. In addition, Boone was nervous and did not have a driver’s license. When asked about ownership of the vehicle, Boone said it belonged to “his” sister, but he couldn’t remember her last name. The passenger had a criminal record and was known to LE. Finally, Boone was vague and inconsistent about his travels. Therefore, the court held, when considered collectively, viewed through the eyes of an experienced narcotics officer, the factors constituted reasonable suspicion.

The court turned to Boone’s complaint about the search of his person. First, the court held that a trained K9 alerts to the smell of narcotics, not necessarily the presence of narcotics, and the smell of narcotics lingers sufficiently to be detected by the trained nose of a K9 after the narcotics are removed. Therefore, it is logical and proper to search the driver who was occupying the vehicle shortly before the sniff as the dog’s alert provides probable cause for such a search. The existence of a prior driver did not eliminate the “fair probability” (the standard for probable cause) that the drugs to which the K9 alerted were on Boone’s person since he had just driven the vehicle from which the odor of narcotics emanated.

Note: There were other issues I did not brief as they were not relevant to this Update. This is a good case for describing how smell works and the common sense argument that if the K9 alerts to the car and there aren’t any narcotics in the car, there is a fair probability that the driver was in possession of the narcotics. Much different that the Wisconsin case that I reviewed earlier in this Update.

Negethon v. Wilkens (Wisconsin 2021) 2021 U.S. Dist. LEXIS 148513
Excessive Force; Monell Claim

In the review of a complaint filed by an inmate, Negethon alleged that when approached by LE, he put his hands up but LE used excessive force anyway, including being punched and kneed by one officer, shot with a bean bag by another and finally bitten by a K9 as ordered by his handler. (I will review only the K9 part of this claim). The standard of review in this type of hearing is whether, if everything that Negethon claims is true, the complaint filed by Negethon states a cause of action. No analysis of the claim is done at this introductory level. Based on Negethon’s allegations, the Court found that it could infer that LE’s conduct during the arrest was not objectively reasonable. Negethon was therefore allowed proceed with a Fourth Amendment claim that the handler used excessive force during his arrest.

Negethon also named the “Oshkosh Police Department” as a defendant because it “holds responsibility for their employees.” But the Oshkosh Police Department “is not a legal entity separable from the [] government which it serves,” and Negethon did not identify any unconstitutional “custom or policy” implemented by the City of Oshkosh to implicate a Monell claim against the city. The Court therefore dismissed the Oshkosh Police Department from this case.

Note: The dismissal of the Monell claim against the agency is important because, strategically, it eliminates the “deep pocket” defendant that these types of lawsuits target. Given that there is no information at this stage regarding what happened from the perspective of LE, and that Negethon does not share any facts about why he was being contacted by LE, I predict this case will not go very much further.

United States v. Hernandez (Texas 2021) 2021 U.S. Dist. LEXIS 149587
Traffic Stop; Prolonged Detention; Reasonable Suspicion; Alert as Probable Cause; Consent

A traffic stop was attempted on a vehicle with a Mexican plate which was following another vehicle too closely. The vehicle took several miles to pull over. The driver, Hernandez, and the female passenger were not fluent in English and only had Mexican driver’s licenses. LE was able to learn that the two occupants were cousins. LE directed the driver in Spanish to sit in his patrol car to receive a warning. Part of the reason for this was LE was having trouble hearing Hernandez over the traffic and his limited Spanish was making understanding difficult. LE then requested a Spanish speaking officer to the scene. About 5 minutes later, another officer came to the scene and began translating for the first officer.

Hernandez was questioned about his travels. Hernandez got very nervous. When LE separately questioned the passenger, she had a different story. LE returned to Hernandez and asked if there was anything illegal in the vehicle. Hernandez visibly looked shocked when LE mentioned methamphetamine. LE asked for consent to search and Hernandez consented. A K9 team was on scene and after a bathroom break for the K9, a sniff was performed and the K9 alerted.

The vehicle was searched and based on (1) the Mexican license plate, (2) the inconsistent travel stories, (3) Hernandez’s behavioral changes at the mention of methamphetamine, (4) the alert of the K-9 to the presence of narcotics, and (5) the appearance of what seemed to be automotive body changes to the vehicle, LE then transported the vehicle to a nearby “Luvs” gas station to investigate the area of the vehicle where the alterations were present. A total of 24.5 pounds of marijuana were found.

The appellate court held that the initial stop was lawful for following too closely and that LE’s subjective intent was irrelevant. (Dash cam assisted here.) In this case, LE asked customary questions concerning travel plans and possession of illegal objects while in the process of issuing a warning. The court also noted that prior cases stated that “the Fourth Amendment permits ‘[a] police officer [to] undertake similar questioning of the vehicle’s occupants to verify the information provided by the driver.” The dispatcher in this case had not yet returned any information regarding the driver’s identification information while this questioning was taking place. In addition, LE articulated a reasonable suspicion of criminal activity based on the inconsistent travel stories, and a change in driver’s demeanor at the mention of methamphetamine.

The court then considered whether there was a prolonged detention. It was true that the detention lasted for approximately 50 minutes, and that the methamphetamine in question was discovered around 50 minutes after Hernandez was told he would be receiving a warning. However, the court held, this delay was justified by the circumstances. A five-minute delay arose based on the need for a second trooper who spoke Spanish fluently to arrive to ensure that (1) Hernandez understood the reason for the traffic stop, (2) Hernandez understood that he was to receive a warning rather than a traffic ticket, (3) Hernandez was issued the warning for following too closely, and (4) the seven-step procedure for conducting a traffic stop could be completed (agency policy). This was part of the traffic investigation.

A second five-minute delay arose due to the need to switch out K-9s, as one trooper’s K-9 had been injured (there were two K9 teams at the scene), and the customary procedure of allowing the K9 to take a bathroom break before the search. The remainder of the detention was extended based on the nature of LE’s findings. At the alert of the K9 and the sight of the alterations of the vehicle, it was reasonable and necessary for LE to transport the vehicle to a gas station and to perform the extended procedure of removing panels on the vehicle to determine if anything was hidden behind them. LE’s training and experience along with the factors giving rise to suspicion indicated that driver was transporting methamphetamine or another type of drug. Thus, each delay was appropriate given the circumstances, and LE did not unreasonably prolong driver’s detention.

In any event, driver legally consented to the search.

Note: Good investigation that proceeded consistently but thoroughly.

Barker v. Gaylor (West Virginia 2021) 2021 U.S. Dist. LEXIS 143963
Excessive Force; Qualified Immunity

LE was requested to respond to a trespassing complaint by the property owner who had an encountered  unknown male occupants. The house was dilapidated, junk was on the porch and was boarded up. At the time, Barker, a woman and her son and her male companion were squatting there. The son left before LE arrived. The remaining three hid on the second floor of the house.

After a discussion with the homeowner, LE received permission to kick in the door, which they did. While standing in the entryway of the house, LE proceeded to give several repeated commands in rapid succession for the occupants to announce themselves, surrender themselves, and come downstairs. None of the occupants responded. LE indicated that he saw people walking on the second floor of the home through gaps in the first-floor ceiling and shouted to the occupants that he could see them.

Barker hid by crawling from a second-floor room into a cramped and dilapidated crawlspace above the front porch of the house behind some cabinets. The space was about three to four feet tall and without full flooring. Barker crawled over the rafters to get to his hiding spot so that he would not fall through the floor. Barker said the other male also crawled into that same space prior to Barker getting there, forcing Barker to position himself in front of the other occupant with his leg sticking out from behind the cabinet. Another announcement was made that the K9 would be sent in and would bite. After telling the occupants that the K9 had titanium teeth, the female came downstairs and said there was no one else there. LE could see through the floor that there were more occupants. Because the complaint was only a trespass at this point, LE decided to proceed without the K9. LE went upstairs, started kicking doors open and located Barker in his hidey hole. LE again commanded he come out with his hands up or they were going to get the K9. Barker did nothing and did not respond. Handler said, “I’m going to get the dog,” and retrieved his K9. Other LE on scene agreed with deployment. While this was happening, LE continued to try to get Barker out, telling him that getting bit was not going to be pleasant, etc. Handler walked K9 up the stairs and announced the presence of the K9. Handler began crawling into the hidey-hole with his K9, and even though Barker finally said, “I’m coming out” (according to him; LE said he muttered something), it was too late as the K9 had already been deployed. K9 bit Barker’s leg. K9 given the order to release when Barker was handcuffed. K9 did not release on a verbal command but had to be “pried off” by handler. The bite duration was about 1 to 2 minutes. Barker was at the hospital for 20 days due to the bite wound and medical complications.

The court engaged in a Graham v. Connor analysis, holding on the first prong of seriousness of the crime that Barker was at most engaged in the relatively minor and nonviolent crimes of trespass and obstructing an officer at the time of K9’s deployment. As for the second prong, there was little evidence that Barker posed a significant danger to LE. Third, from the time LE located Barker until the deployment of K9, there is no evidence that Barker exhibited any resistance to LE beyond ignoring their commands to surrender himself. The court also looked at the severity of the injury from the bite and noted that the K9 had titanium teeth (although no discussion of why that would be relevant). Therefore, the court concluded that, as a matter of law, that the deployment of K9 was objectively unreasonable under the Fourth Amendment. While Barker’s dangerous hiding place posed unique risks to LE, the relatively minor and nonviolent nature of the crime of trespass, the lack of a known immediate threat to the officers, Barker’s passive resistance, and the severity of his injuries weigh against finding that deploying K-9 Berkley was objectively reasonable.

The court then addressed whether qualified immunity would apply. Government officials are shielded “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Qualified immunity provides police officers with ample room for mistaken judgments’ by protecting all but the plainly incompetent or those who knowingly violate the law. The court defined this issue as “the right allegedly violated by handler is that of a passively resistant misdemeanant to be free from attack by a K9, or an equivalent level of force, where that misdemeanant was (1) hiding in a location where the conditions of that location posed substantial danger to an officer in retrieving that individual, (2) where the officers did not know whether the individual was armed or unarmed, and (3) following many unheeded warnings (15 times in 20 minutes) that a K9 would be utilized and that the K9 would bite the misdemeanant. Each of these facts is critical to the reasonability of the use of force and bears on whether Barker’s rights were violated. Barker relied on two cases which turned on the issue of adequacy of warnings given, which did not assist the court in this issue. A third case was cited by Barker where the offender was outside, apprehended by K9 after he ran from the scene and handler could appreciate that offender’s hands were empty. The court held that was unhelpful because LE in that case did not face a comparable danger to that posed by crawling through a narrow space without a proper floor in a dilapidated house to extract a hidden suspect who may or may not be armed. In the fourth case cited by Barker, the court found for LE on qualified immunity grounds, as LE did not know whether the suspect was armed or dangerous and the suspect’s continued resistance to arrest despite the warning prior to the dog being released.

Still, “the nonexistence of a case holding the defendant’s identical conduct to be unlawful does not prevent the denial of qualified immunity.” Here, given the danger posed to LE by the condition of the crawlspace and the house in general, the fact LE could not determine whether Barker was armed, and Barker’s continued silence and noncompliance with LE commands and over a dozen warnings that the K9 would be dispatched to bite Barker, this is not such an obvious case that LE was effectively put on notice that their actions exceeded the bounds of the Fourth Amendment. The lack of an analogous case establishing Barker’s relevant right entitles LE to qualified immunity.

Finally, plaintiff’s reference to the officers’ general subjective awareness of CPD’s policies against the use of unreasonable or excessive force and of the Graham v. Connor factors is not determinative of the qualified immunity issue. The key issue is whether plaintiff’s right was clearly established law at the time. Application of the Graham v. Connor factors in determining the reasonability of use of force is highly fact specific. The case law simply does not show that plaintiff’s clearly established rights under the Fourth Amendment were violated in this circumstance. Accordingly, the case against handler was dismissed.

Finally, Barker’s claims for bystander liability against two other LE present and for supervisor liability against the Sergeant on scene are both derivative of Barker’s claim that handler violated his rights by deploying K-9. Because no clearly established right was violated, all other LE named in the complained are entitled to qualified immunity for the derivative claims as well.

Other theories of liability were dismissed as well.

Note: I have written on qualified immunity before in the Updates, but will address this issue again in an article in the near future. Knowing what qualified immunity is important because the anti-police organizations and pundits often call for the extinction of qualified immunity. But qualified immunity recognizes that LE can make mistakes and as long as those mistakes are not intentional or LE was not on notice that the behavior complained about is illegal, this doctrine protects LE who are acting within their legal discretion in the field. This doctrine eliminates the “lottery” mentality that so many people seem to have these days; cashing in on mistakes doesn’t address bad police actions, but rewards those whose injuries resulted from reasonable but mistaken actions by LE. Allowing those actions to proceed without qualified immunity would create a chilling effect on LE to the point that LE would have to make possibly instant life and death decisions on this analysis of “Am I willing to get sued over this?” By the time LE analyzes the situation under this standard, the harm that could have been mitigated by undelayed LE action is already done to LE as well as civilians.  As a side note, I am not sure what the titanium teeth comment was about. I have not heard of K9s being given titanium teeth and it is my understanding that most vets refuse to perform this procedure as it can inflict more harm on the K9. It may have been an exaggeration in an attempt to gain compliance, but it could open up a can of worms from the prospective that a titanium toothed K9 is now a killing machine. If this is not actually true, probably best to stay away from such hyperbole.

Jarvela v. Washtenaw County (Michigan 2021) 2021 U.S. Dist. LEXIS 144207
Excessive Force; Failure to Warn of K9

Jarvela fled in a car and attempted to evade LE, then crashed under the influence into a tree and fled on foot into thick brush. He was followed by 2 LE and a K9 team. Handler put K9 on a 15 foot lead, but choked up so that K9 was only about 5-10 feet away from handler. Handler directed K9 to search. LE discovered Jarvela and instructed K9 to bite. Jarvela sat up and attacked the K9 before the K9 bit him. Jarvela admitted he was hiding from LE. Jarvela was apprehended by the K9, fought with the K9 and was forcefully arrested. Jaravela claimed he was asleep and woken by K9 biting him. He claimed that he appeared to be fighting the K9 because he obeyed commands to roll over and he rolled over on the K9. He did try to pry the K9 off his arm. The video is inconclusive as to who attacked first, but it did confirm that it appeared Jarvela sat up. Jarvela claimed handler hit him several times and he was tased twice. K9 was released when Jarvela is handcuffed. Jarvela than told the K9 he wanted to check him out. K9 lunges at him, but it is unclear whether there was contact. Handler then walked the K9 away.

Jarvela sued for a smorgasbord of issues, including excessive force by handler. The excessive force claim was the only one to survive this motion for summary judgement by handler. (There are other LE defendants and other theories, but I do not review them here).

When the facts are viewed in the light most favorable to Jarvela, the court held that handler acted unreasonably in using K9 to track and detain Jarvela. That analysis proceeds in two parts. First, the facts do not show the kind of exceptional circumstances illustrated by Miller that would allow an officer to deploy a dog without warning. Second, handler’s use of force was not, as a matter of law, objectively reasonable under the circumstances. A jury could reasonably conclude that LE were not going to significant lengths to conceal their presence, belying a claim that they failed to provide Jarvela an opportunity to avoid the encounter with K9, which the Constitution requires in most cases.

While a jury could find that a constitutional violation was complete by the time the encounter between K9 and Jarvela began, it is also worth considering the reasonableness of handler’s use of force once he came across Jarvela. Handler’s behavior—particularly, issuing the bite command numerous times and striking Jarvela—is measured against the Graham factors: (i) the severity of the crimes at issue, (ii) the immediate threat Jarvela posed to the safety of officers or others, and (iii) whether Jarvela was actively resisting.

i. The severity of the crime at issue: a jury could reasonably conclude that the crimes of which Jarvela was suspected (that is fleeing and DUI) did not, on their own, justify handler’s use of force.

ii. Whether the suspect poses an immediate threat to the safety of the officers or others: Handler argues that Jarvela “exposed officers to potential ambush and posed an unknown safety risk to officers and others.” The key phrase here is “unknown safety risk.” In a case that included suspected crimes of burglary, the handler was not permitted to deploy a K9 without giving the suspect an opportunity to avoid the encounter. So release here of the K9 without warning was illegal. Therefore, a jury could reasonably conclude that handler behaved unreasonably in pursing Jarvela with K9 and then ordering K9 to bite Jarvela without providing Jarvela an opportunity to avoid a confrontation with K9 or an opportunity to end the encounter.

iii. Whether the suspect is actively resisting arrest or attempting to evade arrest by flight

The third factor must be weighed in two contexts: before the first encounter between K9 and once the confrontation began. Prior to the engagement with K9, there is no evidence that Jarvela actively resisted arrest. Undoubtedly, he had been fleeing from LE in his car and on foot. However, nearly every dog-involved case discussed to this point involves similar initial flights, and the rule in those cases is that such flights do not, on their own, warrant deployment of a K9 without an opportunity to surrender prior to encountering the dog. Furthermore, LE had no reason to believe that Jarvela was armed or had threatened to hurt the officers or anyone else.

Once the encounter began, Jarvela engaged in some resistance against K9. The degree of the resistance is impossible to establish from the video alone, requiring a jury to weigh the parties’ and witnesses’ testimony in light of the video and other evidence available.

The court considered whether the Heck Doctrine applied (a civil complaint is barred after the person suing is convicted of the action which resulted in the damages complained about). Here, pursuant to a plea agreement, Count I, Police Officer-Fleeing-Third Degree-Vehicle Code, and Count II, Operating While Intoxicated, were dismissed and Jarvela pled guilty to Police Officer-Assaulting/Resisting/Obstructing, and Operating-Impaired. LE’s description of the offense, included the following paragraph:

K9 arrived and located Jarvelo in the bushes. Jarvelo began to swing and punch at K9. K9 grabbed Jarvelo by the bicep. Jarvelo started to choke K9 and handler delivered strikes to Jarvelo. Jarvelo continued to choke K9. LE attempted to taser Jarvelo without good success. Three state troopers arrived and assisted in gaining control of Jarvelo.

Jarvela admitted to the factual accuracy of the presentence report.

In another county (chase was in both counties), Jarvela was acquitted of two counts of Police Officer-Assaulting/Resisting/Obstructing and one count of injuring or harassing a police animal while committing a crime.

The court therefore held that Jarvela’s conduct across his two criminal cases and this civil case does not reek of the kind of “cynical gamesmanship” judicial estoppel is meant to prevent, but rather reveals a generally consistent position. Jarvela believes (i) he was wrong for driving drunk and fleeing from the law and (ii) he was wronged when he was arrested by officers employing excessive force. Handler has not shown that any benefit Jarvela received for pleading guilty is attributable to his acceptance of a narrative in which Jarvela was the aggressor against K9. Therefore, Jarvela did not derive a benefit from his failure to challenge the sentencing report, and he is not estopped from arguing that K9 attacked him and he only defended himself against K9. (It should be noted that the court stated that K9, as a dog trained to detain humans with his teeth (there was mention that this K9 had titanium teeth), was a terrifying antagonist, who Jarvela would understand was deaf to any acknowledgement of submission and surrender by Jarvela. A jury could reasonably conclude that Jarvela was reacting defensively in the face of terrifying circumstances, not actively resisting.)

Note: I can’t disagree with this conclusion at the summary judgement level, as the reason that this excessive force case was allowed to continue was because of the perceived failure to warn. One hopes, however, that in the trial, LE can put together a more coherent statement based on all evidence available, including body cam, radio traffic, etc. I do have a problem with the editorializing about how terrifying an antagonist a K9 is, but it is a good example of how biases are injected into opinions. As the handler, you have to anticipate that you may be encountering such biases and make sure your reports and testimony are as detailed and explanatory as you can make them. 

Beckett v. Unknown Police Officer (Iowa 2021) 2021 U.S. Dist. LEXIS 144276
Evading; Excessive Force

After a dangerous high-speed chase in which he also attempted to run over an on-foot officer, Beckett was ultimately stopped when LE rammed Beckett’s vehicle with a piece of construction equipment. Beckett then crawled through the window and fled on foot. LE, including a K9, pursued him. Beckett apparently admitted that the K9 first bit him in the take-down, and he did not fight or struggle after that. K9 was released after handcuffing. However, Beckett claimed that LE was angry with him and told K9 to bite him 6 times after he was handcuffed and subdued.

LE stated that K9 tripped Beckett to take him down, or handler tackled him (in the fray, they were not sure). LE stated that as Beckett fought with K9, handler placed himself on Beckett’s back and threatened to shoot if he did not show his hands; Beckett complied, and handler ordered K9 to drop his bite since other LE were nearby, and at least one of them had their weapon drawn. Handler stated that Beckett started to try to push himself off the ground and out from under handler, and K9 bit Beckett’s buttocks as handler struggled with the (unhandcuffed) Beckett. Handler also stated that he did not know the “precise moment” when LE began assisting him in handcuffing Beckett, but that it took both officers and K9 holding his bite to handcuff Beckett as he struggled (the parties agreed that K9 is trained to apprehend targets on command by biting the target and holding his bite until commanded to release it). LE stated that K9 stopped biting Beckett within seconds of Beckett being handcuffed. Both officers also stated that as soon as Beckett was handcuffed, handler led K9 back to his police vehicle, and K9 did not return to the vicinity.

Beckett ultimately pleaded guilty to assault with a deadly weapon, a felony, based on his attempt to run over LE (not the handler) with his vehicle during the high-speed chase. As part of his plea agreement in that case, Beckett admitted that he “continued to resist arrest through the entire process of handcuffing.”

The court framed the issue as whether it was excessive force when handler order K9 to bite after Beckett was subdued and handcuffed. The use of K9 to apprehend Beckett while he was fleeing was not at issue. LE asserted that the reliable evidence in the case (video evidence) affirmatively disproves Beckett’s allegations.

A court is generally required to adopt the most favorable interpretation to the plaintiff (Beckett) but is not bound to when the facts and evidence in the case clearly show that the allegations are false. Here, the court held that Beckett offered only self-serving allegations to support his claim. Beckett does not offer any medical records showing K9 bit him multiple times on different body parts after the takedown (as opposed to K9 “holding his bite” as trained and as stated by the officers). In addition, other evidence in the record “blatantly contradicts” aspects of Beckett’s testimony. Beckett testified that he stopped resisting arrest as soon as he was tackled to the ground. But as part of his plea agreement in the criminal case (and with the benefit of counsel), Beckett admitted that he “continued to resist arrest through the entire process of handcuffing.”

The court went on to hold that the video evidence also contradicted Beckett’s testimony. Beckett testified that after he was tackled and handcuffed, LE yelled at him, then walked over to talk to handler briefly, after which handler caused K9 to attack Beckett. Defendant argues that the video evidence shows that LE was never behind the residence at the same time as K9. Although the house blocked the camera’s view of the takedown and arrest, the videos captured LE going to and from the street (where the squad cars are parked) to behind the residence. The video evidence demonstrated that K9 was behind the residence with Beckett for less than two minutes. Therefore, the video evidence showed only an extremely narrow (perhaps impossible) window in which handler could have talked to LE before “siccing” K9 on Beckett.

Beckett was correct that the videos do not show what happened when LE finally apprehended and handcuffed Beckett, since the camera view is blocked by a residence. But there were enough inconsistencies in Beckett’s testimony that no reasonable fact finder could believe Beckett’s version of events. LE was granted summary judgment on Beckett’s excessive-force claim.

Note: Only dash cam videos were available here, and Becket was captured by LE out of view of the dash cams but the court made good use of what was presented to it. There was a bit of inconsistent testimony by LE, but the videos in conjunction with the blatant falsehoods of Beckett sealed the deal on behalf of LE. I would have argued that the Heck Doctrine also applied as inferred by some of the language the court used, but granting the summary judgement on the facts meant that the court did not reach that issue.

State v. Willoughby (Ohio 2021) 2021-Ohio-2611
Traffic Stop; Prolonged Detention; Alert as Probable Cause; Inevitable Discovery

After observing driver commit several traffic violations, LE pulled the vehicle over. Driver had a male passenger (Willoughby) in front and both were extremely nervous. They couldn’t answer basic questions and would not make eye contact. The back seat passenger had a warrant so he was removed and taken to the cruiser. LE then removed the driver because he was concerned she was under the influence. He also called for female back up. LE then removed Willoughby and Terry frisked him, finding a hard bulge in the groin area which turned out to be meth and suboxone. LE then deployed his K9 which alerted on the car. A small amount of marijuana and paraphernalia were found in the car.

Willoughby argued that the trial court erroneously applied the inevitable discovery rule when the court denied his motion to present evidence to establish that (1) K9 could detect contraband no longer in a vehicle, and (2) the evidence did not establish what particular drug sparked the K9’s alert on the car, although the post-alert vehicle search found marijuana.

After quickly finding that the traffic stop was supported by reasonable suspicion of traffic violations, the court then addressed the Terry frisk. “While we readily agree that officer safety is of paramount importance, under the lens of existing law that Terry demands, we believe that the totality of the circumstances in the case at bar did not rise to the reasonable and objective basis to believe that the occupants were armed and dangerous. We, however, are also fully aware of the alarming trend of increasing danger and tragic circumstances that law enforcement officers now encounter on a daily basis while conducting routine traffic stops. Certainly we can foresee a time when an officer’s safety may permit a pat-down search for weapons even during routine traffic stops even without the need for specific facts to indicate that a detainee may be armed and dangerous. Today, however, the controlling authorities have not yet adopted that view.”

Therefore, the court turned to the inevitable discovery doctrine. For evidence to be admitted under the “inevitable discovery exception,” the state must demonstrate (1) a reasonable probability that evidence would have been discovered by lawful means but for the police misconduct, (2) police possessed the leads to make the discovery inevitable at the time of the misconduct, and (3) police actively pursued an alternate line of investigation prior to the misconduct.

The court went on to hold that in this case, LE handler observed a vehicle make an illegal lane change, fail to signal, and fail to properly display a license plate. LE testified that all occupants were “extremely nervous,” the driver appeared to be shaking and under the influence, and a back-seat passenger had an outstanding warrant. “While [some] degree of nervousness during interactions with police officers is not uncommon, * * * nervousness can be a factor to weigh in determining reasonable suspicion.” After handler advised the occupants of his intention to conduct a K9 vehicle sniff, he conducted a pat-down search for weapons that resulted in the discovery of Willoughby’s drugs, albeit immediately prior to the K9 vehicle search (court should have used the word “sniff”). Shortly thereafter, the K9 alerted to the presence of drugs on the side of the car where Willoughby had been sitting. Thus, because the K9 did alert to the presence of drugs, handler’s pat-down of Willoughby would have been justified after the K9 alert. Taken together, the appellate court agreed with the trial court’s conclusion that the totality of the circumstances supports the application of the inevitable-discovery doctrine.

Note: The court stretched a bit here to LE’s benefit. The take away from this case is that there is a standard to be met before a Terry frisk can happen;  you must have an articulable basis to believe the individual is armed or dangerous. This is a fairly low burden (suspicious bulge in pocket or history of violence) but a Terry frisk is not automatically authorized in a traffic stop.

United States v. Abbeduto (Kentucky 2021) 2021 U.S. Dist. LEXIS 144920
Traffic Stop; Prolonged Detention; Reasonable Suspicion to Investigate Additional Crimes(s); Reliability Foundation

Acting on the information from a CRI, LE went to investigate whether Abbeduto was driving in a white pickup with a large quantity of methamphetamine in his possession. LE saw and passed Abbeduto in his truck. On the way to the area, LE contacted K9 team and asked for their assistance. Based on information from LE regarding the general area where LE would be, handler staged up at the parking lot of a local high school.

After LE passed Abbeduto, they turned around and drove behind him. LE observed Abbeduto change lanes twice without signaling. LE turned on its lights and initiated a traffic stop. Abbeduto stopped his vehicle by pulling into a parking space at the gas station. LE approached the driver’s side of Abbeduto’s truck to speak with Abbeduto, where LE asked for Abbeduto’s identification, told him why he was stopped, and asked him to step out of his truck.

LE called handler to inform handler where they were located. While one LE ran Abbeduto’s information, another LE was speaking with Abbeduto. Handler pulled into the parking lot as LE was checking for warrants. LE testified that K9 team arrived within a minute or two of LE calling him. LE also testified that they was still conducting the license check when K9 team arrived; K9 team almost immediately began conducting the open-air sniff upon his arrival. While LE waited for a radio response on the check, handler did the open-air sniff. K9 alerted. A search of the truck revealed methamphetamine.

The court first held that LE’s observation of Abbeduto failing to use a turn signal established probable cause that Abbeduto committed a traffic violation. In addition, the court held that LE had sufficient information regarding drug trafficking such that they had reasonable suspicion to expand the traffic stop to include the drug investigation, including the K9 sniff. Here, the court held, a CRI informed LE that Abbeduto had a large quantity of methamphetamine in his truck. LE’s subsequent investigation corroborated the CRI’s information because they located Abbeduto in the described area in his pickup truck. The evidence showed that LE had reasonable suspicion to stop Abbeduto for possession of methamphetamine.

The court then turned to the issue of whether the stop was unduly prolonged. The court found that the K9 team arrived about a minute or two after LE initiated the traffic stop because he was staged nearby. LE was still in the course of processing the traffic stop when the K9 team performed the sniff and the K9 alerted (LE was waiting on the license check when this was happening). The Court held that the traffic stop was not unconstitutionally prolonged.

For the third issue, reliability foundation, the handler testified that both he and K9 received training for the detection of narcotics through the American Police K-9 Association. K9 is qualified to detect marijuana, methamphetamine, heroin, cocaine, ecstasy, and MDMA. Handler explained that K9’s behaviors during the open-air sniff were consistent with the team’s training and experience. Thus, there was probable cause to search the truck based on K9’s alert.

Note: This was a well coordinated effort by an agency that has a good amount of resources. There is nothing in the law that say you cannot call for a K9 team even before you perform a traffic stop. Here, LE had the K9 team stage nearby, which worked out well.

State v. Webb (S.C. Montana 2021) 2021 MT 194N (not precedent)
Traffic Stop; Sniff v. Search; Reasonable Suspicion

LE saw Webb driving slowly (under the speed limit). While following him, LE  ran a registration check. The vehicle was registered to Michael Mitchell and in checking the DMV photo of Mitchell, LE concluded that the driver was Mitchell (this turned out not to be true) and was driving on a suspended license. Traffic stop was performed; driver said he was Webb and didn’t have his ID on him or proof of insurance or registration. Driver had inconsistent stories when asked where he got the vehicle. When LE ran Webb, they found that he had prior convictions for criminal possession of dangerous drugs, criminal possession of drug paraphernalia, and distribution of dangerous drugs. Driver was also unusually nervous. LE also testified that in his experience and training, distributors of dangerous drugs do not have a need to carry a wallet because they often travel with others who pay their expenses, which would explain why driver was traveling a long distance without a wallet containing identification. LE stated that during the encounter, driver indicated a black mustang might pull up next to the stop, confirming LE’s belief that driver was traveling with another individual. LE further testified that in his experience, drug distributors travel in a team of vehicles, one of which carries the contraband. LE cited driver for suspended license and failure to have proof of insurance and then contacted a K9 team to respond and perform a free-air sniff. Driver had earlier refused to consent to a search.

The court stated existing case law in the state that, “A canine sniff of a vehicle constitutes a search under Article II, Sections 10 and 11 of the Montana Constitution.” Because of its “minimally intrusive nature” an officer need only particularized suspicion before conducting a canine sniff.” State v. Wilson (Montana 2018). The court went on to hold that the traffic stop was valid and that LE had additional reasonable suspicion to investigate possible drug offenses. This was based on the following: Webb was not the registered owner; Webb was unable to produce proof of identification or insurance; Webb gave inconsistent information regarding where he lived and was unable to provide a full explanation for where he was traveling; Webb also gave inconsistent explanations as to how he came to possess the vehicle; Webb also exhibited a high level of nervousness throughout the encounter which LE testified was inconsistent with innocent motoring; LE also verified Webb’s identity and learned Webb had prior convictions for possessing dangerous drugs and drug paraphernalia, and distributing dangerous drugs. Considering the totality of these facts and in light of LE’s experience and training, particularized suspicion (reasonable suspicion) existed to perform a K9 sniff search of Webb’s vehicle.

Note: Because of the language in Montana’s Constitution, LE in this state must have a particularized suspicion (reasonable suspicion) before performing a sniff. This is different than the federal standard that indicates a sniff by a reliable well trained K9 of free air performed from a place where LE has right to be is not a search. The good news is that in Montana, in a state prosecution, since you have to already have reasonable suspicion before the sniff, Rodriguez does not come into play unless the detention for the additional crimes becomes prolonged. Be sure you and your prosecuting agency are on the same page (particularly in those states where the federal law differs from state law. You never know when one of your cases will be picked up federally. If this one had been picked up by the feds, the result would have been the same, but for a different reason).

United States v. Butler (Michigan 2021) 2021 U.S. Dist. LEXIS 145710
Package Sniff; Reasonable Suspicion; Reliability Foundation

Inspectors are trained in detecting and recognizing packages that appear to be part of illegal activities. The package in this case had indicators of containing narcotics; heavy for its size; handwritten label; no business account number and a destination point known for packages containing narcotics. In addition, inspectors ran the addresses of the sender and recipient through a database and discovered that the listed names of the sender and recipient were not associated with the identified addresses. According to the inspectors, legitimate mailings regularly have confirmed associations in the database with listed addresses; the lack of confirmed associations made the presence of controlled substances more likely.

Several packages including the package with indicators were brought to a K9 in a separate room and were displayed for the K9 to sniff. K9 sniffed all packaged and alerted/gave final indication on the suspected package only.

This process was repeated for a total of two packages. Search warrants were issued for each and each had narcotics.

The court held first that only reasonable suspicion was necessary to divert suspected packages and officials had reasonable suspicion to temporarily detain both.

The court then addressed whether the alert/final indication was probable cause sufficient for a search warrant to issue. The court held there was substantial evidence that both K9s were sufficiently certified and trained and therefore the alert/final indication was a reliable indication that controlled substances were in the packages.

Note: Nothing really new here, but it’s a good opportunity to refresh your knowledge of what the rules are for package searches.