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Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from August 2022. (A caution here: some cases are unpublished (Unpub. or U) or marked as “not precedent”; those cases cannot be used as precedent. However, I have included them because it helps to know how the appellate courts are thinking. The arguments in these cases can be used; the case just can’t be cited as precedent in court.)
As I as have in the last few months, I have included an update of proposed or actual changes in marijuana laws around the nation. This is not an exhaustive list as things are changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.
In addition, this month I have included an article about working with your prosecutor to obtain the best results in court. If your local prosecutor has questions or wants to strategize their case, please have them contact me. I am willing to help out in teaching the law as well as a strategist.
Thank you for your membership, both new and continuing. We strive to provide up to date information that is useful to K9 handlers, supervisors and policy makers. Please feel free to browse through the previous updates. Each update has a review of the K9 relevant cases for the month, and often has an article that explores a specific issue in more depth. Again, as always, if you would like me to address a particular issue or concern, please feel free to email, text or call me.
(Disclaimer: I do not represent any individuals, handlers or agencies. The data shared via this website is for informational purposes only and is only the opinion of Elizabeth Norton, editor. The information in this Update and this website is not legal advice. You should consult with your agency’s legal team regarding the issues addressed in this update.)
ARTICLE: YOU WERE JUST SUBPOENAED FOR A CASE WITH K9 EVIDENCE. WHAT’S NEXT?
Most prosecutors will rarely handle a police services dog (K9) case. However, K9s are extremely important to law enforcement (LE) and the law that applies to them is a unique niche in the law. Drug detection, tracking and trailing evidence and patrol support are all issues that may arise in a criminal case. It is the prosecutor’s responsibility to present that evidence with the appropriate foundation and know the unique rules that apply so that justice is done. K9 handlers can help with this learning curve of prosecutors and jurists.
Vehicle Stops: The Bread and Butter of K9 Teams
The first area a prosecutor may encounter K9 evidence is an alert at a vehicle stop. Whether the stop is because there is an ongoing investigation into the occupant(s) of the vehicle or if it is a “wall” stop to protect an ongoing investigation or if it is a stop solely for a vehicle violation, certain rules apply to the deployment of the K9.
First, it is clear from the case law that a sniff by a well-trained and properly deployed K9 is not a search (doesn’t implicate the 4th Amendment). The free air around a vehicle is a public space so there is no expectation of privacy. Illinois v. Cabelles (2004) 543 U.S. 405 (overruled on other grounds). Properly deployed means 2 things; 1) the K9 handler properly conducted the sniff and 2) the sniff took place where LE has a right to be (out in public or by consent). In a traffic stop, the vehicle is out in the open and therefore, sniffing the car is proper.1
Rodriguez v. U.S. (2015) 575 U.S. 348), tells us that if the stop is for a vehicle violation alone (or a wall stop where LE does not want the ongoing investigation disclosed), a K9 sniff must take place without extending the time of the traffic violation investigation (courts call this prolonged detention). Even a minute or two has been found by some courts to be a violation of the 4th Amendment. However, if while investigating the traffic violation, the handler develops additional reasonable suspicion for additional crimes (drug trafficking, DUI, criminal possession of a controlled substance or firearm, etc.), this additional reasonable suspicion extends the time for investigation to include the new suspicions.
Additionally, and importantly, LE is allowed to get all occupants out of the vehicle at the outset of the stop for safety reasons (just the fact that occupants are in a poorly visualized space with access to compartments or spaces that can’t be visualized is enough). See Pennsylvania v. Mimms (1977) 434 U.S. 106; Maryland v. Wilson (1997) 519 U.S. 408; People v. Vibanco (2007) 151 Cal. App. 4th 1; People v. Grant (1990) 217 Cal. App. 3d 1451. If the K9 is dual purpose, this is an important step so that the occupants will be safe during the sniff. This also allows you to assess all the occupants and have a plain sight view into the vehicle as they exit.
How can a handler accomplish the sniff without running afoul of the 4th Amendment? There are several ways. 1) If the K9 team is alone, and only has evidence of the traffic violation, there may be some down time when the agency is checking the status of the occupants’ licenses, insurance and registration. Since this is a waiting time for the investigation, the K9 can be deployed as long as a sniff can be accomplished during that time. Rodriguez, supra. In addition, if while LE is speaking with the occupants and determines that there is reasonable suspicion for additional crimes like a pill in the center console or a syringe on the floorboard, this expands the timeline for investigation to include the new suspicions.2 2) If the K9 team has back up, hand off the traffic investigation quickly and deploy the K9 as back up is investigating the traffic violation. 3) If LE has executed a wall stop, the additional information of the crimes being investigated before the traffic stop can also provide additional reasonable suspicion (if LE is at a point in the investigation to reveal it).
Once the K9 alerts and/or executes its final indication, that alert/final response is probable cause. This allows LE to search the entire car, including compartments and containers within the vehicle. See Wyoming v. Houghton (1999) 526 U.S. 295; US v. Ross (1982) 456 U.S. 798; People v. Chavers (1983) 33 Cal.3d 462; Arizona v. Gant (2009) 556 U.S. 332; People v. Evans (2011) 200 Cal.App.4th 735. It also greatly expands the Rodriguez timeline.3
A note about “alert” and “final indication.” A K9 alerts when it displays unique behaviors that indicate the K9 is in scent (quickened or deeper breathing, staring, rigid body, coming back to an area several times, etc.). Courts have held that a valid alert is sufficient to provide probable cause, recognizing that there are many reasons why a K9 may not perform its final indication (not enough room to sit, too cold, too hot, unstable surface, etc.) You as the handler need to be able to discuss those unique behaviors that indicate an alert (there were a couple of cases recently that the K9 would “pitter-patter” its front feet during an alert and then would perform a final indication). This is not to say that you don’t need to wait for a final indication. That is the gold standard for proof of scent detection in court. But if you can explain why the K9 did not perform its final indication, an alert should be enough. See US v. Thomas (9th Cir. 2011) 2011 U.S. Dist. LEXIS 45989.
The other piece to this admissibility puzzle is demonstrating through the handler that the K9 is properly trained, was properly deployed and therefore is reliable. See U.S. v. Lingenfelter (9th Cir. 1993) 997 F.2d 632; U.S. v. Ludwig (10th Cir. 2011) 641 F.3d 1243; Florida v. Harris (2013) 568 U.S. 237. The easiest way to prove the K9 was properly trained is to show that the K9 was certified by a reputable company or agency at the time of the sniff. The prosecutor will also need to prove up that the K9 team trained at least 16 hours a month consistently. The handler can testify to both, but presenting a copy of the certification and the training records will be easier and may shut down much of what the defense will be able to do.4 DO NOT worry about problems the K9 has had in the past (if any) as long as appropriate remediation was addressed quickly and successfully. This applies to the prosecutor as well as the handler. The handler should document the issues and the remediation taken and the outcome. No one expects perfection; that is not the standard. The standard is reliability based on training and deployments. U.S. v. Thomas, supra.
The defense is allowed to go behind the documentation and question the handler about any aspect of the original (or basic) training of the team, on-going training, and any certification.5 (While maintaining the K9’s scores in training is fine, a percentage assigned to in field deployments is useless and does not have to be maintained. There are many reasons a K9 would alert but no contraband is found. “A detection dog recognizes an odor, not a drug, and should alert whenever the scent is present, even if the substance is gone.” Justice Kagen in Florida v. Harris, supra.) In addition, there are defense experts out there; most have been debunked. However, recently retired LE can be experts as well and would be a formidable witness. The handler and the prosecutor should hammer out any issues prior to the hearing with the defense expert. In California, at least, the prosecution has reciprocal discovery rights prior to an expert hitting the stand, but the prosecutor probably will receive it in the hallway two minutes before the hearing. Since the government has the burden of proof, the court will probably entertain a short continuance which will give the prosecutor and handler time to at least skim it and learn what the tactics might be.6
Tracking or Trailing Evidence
If the K9 is ordered to track someone (like a suspect fleeing the scene) or trail a scent route (suspect believed to have dumped evidence), the same rules apply for reliability (training and deployment). However, an alert on this type of evidence will only allow for a detention as it is reasonable suspicion and only an element for building probable cause. In California, the Courts will use the People v. Malgren ((1983) 139 Cal.App.3d 234) factors to determine admissibility:
(1) K9’s handler was qualified to use K9;
(2) K9 was adequately trained in tracking humans;
(3) K9 has been found to be reliable in tracking humans;
(4) K9 was placed on the track where circumstances indicated the guilty party to have been; and
(5) the trail had not become stale or contaminated.
These factors will be proved by the handler and the training and deployment records.
Marijuana and K9s
Another unique issue for K9s is the effect that marijuana laws have had on whether an alert/final indication supplies probable cause when all evidence points to only legal possession of marijuana. In California, a proposition was passed that included the language that evidence of a legal amount of marijuana could not be probable cause for search or arrest. See Health & Saf. Code, § 11362.1, subd. (c). Therefore, LE must have some evidence of illegal possession of marijuana (open container, smoking while driving, driving under the influence) before probable cause will be found to search. See People v. Lee (2019) 40 Cal. App. 5th 853; People v. McGee 2020 Cal.App. LEXIS Unpub. 4817; US v. Maffei (2019) 417 F.Supp.3d 1212; People v. Fews (2019) 27 Cal.App.5th 553.7
A Situation Unique to K9s
The K9 is trained to follow the scent and get to the source of it. This means that if there is any path to the interior of the car, the K9 will jump in to follow the scent. The best practice is to shut all doors and windows prior to the sniff because the K9 will alert if it detects odor in the free air around the vehicle. However, if a door or window is left open by someone other than LE, and the K9’s movements were not encouraged or directed by the handler, the courts have held that this was acceptable. This issue can also be resolved if the K9 had engaged in alert behaviors prior to jumping into the vehicle. At that point, the K9 alert behavior has supplied probable cause so an interior search is authorized. U.S. v. Pierce (10th Cir. 2011) 641 F.3d 1243.
If the K9 team is deployed at a residence, special care must be taken when getting close to the curtilage of a home. The team must be in a place where handler has right to be (see Horton v. California (1990) 496 U.S. 128; People v. Mayberry (1982) 31 Cal. 3d 335) or a public place (U.S. v. Solis (9th Cir. 1976) 536 F.2d 880; U.S. v. Lingenfelter, supra); places with permission (FedEx and other package places will often give permission, fed-up neighbor, etc.) The front porch of a home has a higher level of privacy and a specially trained K9 is not afforded the same implied invitation as a mail carrier or meter reader. (Florida v. Jardines (2013) 569 U.S. 1104) Subsequent cases extend this protection to the threshold of an apartment door even from a public hallway.
The handler should contact the assigned prosecutor as soon as a subpoena is received. There are myths out there about K9 cases that will derail an inexperienced prosecutor so be sure the meeting addresses them. One is the idea that if the K9 alerts on the front passenger door, only the front passenger area can be searched. This is not true as an alert allows access to the entire vehicle including closed areas and containers. Some of the others I have addressed earlier, such as bite ratio on deployments.
The handler should prepare by reading the report and viewing all available body cam. Bring training and certification records to court; be ready to discuss alert behaviors as well as final indication; be ready to defend the team’s training and deployments, including any remediation; be ready to defend the deployment decision in the case at bar.
Once in court, the handler is an expert in this K9 as well as how scent travels and how the K9 can detect it. The handler should be designated as an expert in these areas via questioning about training and experience. At that point, the prosecutor can go into their questions regarding the specific facts of the case at bar.
1. Language disciple is very important in this area of law. Do not refer to any action by the K9 as a “search.” The K9 is not capable of searching, only sniffing and alerting. Courts sometimes use search as a shorthand way to refer to the K9’s actions, but that could have negative consequences in the courts of appeal.
2. These are just examples. The universe of potential crimes is vast and fact driven.
3. This doesn’t mean that you can take extensive liberties with your investigation. As long as you are diligently pursuing the investigation, you are fine. Therefore, calling and waiting for a K9 team at this point is legal as long as the delay is reasonable. That determination will depend on the specific facts of the case.
4. All training and deployment records are discoverable. The prosecutor should make sure that discovery has happened before the first contested hearing. If there is sensitive material in the records (there shouldn’t be, but perhaps location of training or something similar), the prosecutor can and should ask for an in-camera hearing with the judge prior to discovery. This means the handler needs to be proactive in contacting the prosecutor immediately to advise them of the issues.
5. This means the handler needs to have recorded all the trainings (the 16 hours monthly in addition to formal trainings) and all deployments. If there are missing records without a good explanation, that is not going to go well.
6. Defense shenanigans on this issue are pretty much endless and often address small, peculiar issues. I have seen most of the appellate cases that involve a defense expert. If you encounter one, feel free to contact me at enorton@meyersK9law.com or (530) 720-6132 call or text. I’ll be happy to assist as much as I can.
7. One argument that has been made in other states successfully is that the K9 is only alerting to the scents it is trained, but has no way to communicate the specific smell it detects. Therefore, if there is an alert/final indication, it could easily be for one of the other drugs in which the K9 is trained. This argument was never made in any of the California cases for reasons unknown to me. This may still be a course of argument that has some weight. Be sure to check with your management and your friendly assigned State Attorney (Attorney General in California) before proceeding.
MARIJUANA UPDATE FOR SEPTEMBER 2022 (AUGUST CASES)
The Oklahoma Supreme Court on Tuesday hit pause on cannabis legalization advocates’ efforts to compel state officials to include a legalization question on the ballot this November, saying there was still time for people to file objections to the proposed initiative.
The Arkansas Supreme Court is allowing an anti-cannabis legalization group to intervene in a suit challenging the state Board of Elections’ decision not to certify a ballot question to legalize cannabis for recreational use.
An advocacy group trying to get a question on the November ballot to legalize recreational cannabis in Arkansas is asking the state’s highest court to undo the Board of Elections’ decision not to certify the ballot question’s title, saying the measure giving the board the power to reject the title goes against the state’s constitution.
Arkansas state officials and two anti-marijuana campaigns told the state Supreme Court on Tuesday to uphold the Board of Elections’ decision not to certify a legalization effort’s ballot questions title, saying it was deficient and misleading to voters.
New York State cannabis regulators on Thursday kicked off the application window for the state’s first recreational marijuana retailers, highlighting what they described as a novel initiative for social equity applicants that could serve as an example for other states.
The testimony of police officers who are trained as certified drug recognition experts, or DREs, is admissible as evidence in cases involving motorists’ drug intoxication, a special master told the New Jersey Supreme Court in a massive report submitted last month.
Cannabis advocates in Idaho have kicked off a campaign to put a medical program on the 2024 ballot, penning a letter to the secretary of state saying the initiative is “essentially identical” to another filed two years ago.
INDEX OF CASES REVIEWED FROM AUGUST 2022 FOR SEPTEMBER 2022 UPDATE
People v. Sanchez (Illinois 2022) 2022 IL App (3d) 210014-U- Traffic Stop; K9 Entering Vehicle
Williams v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 1023 – Traffic Stop; Prolonged Detention
United States v. Anderson (Idaho 2022) 2022 U.S. Dist. LEXIS 153176m – Traffic Stop; Prolonged Detention; Alert as Probable Cause
Watson v. State (Georgia 2022) 2022 Ga. App. LEXIS 394 – Traffic Stop; Collective Knowledge Doctrine; Prolonged Detention
People v. Rider (Michigan 2022) 2022 Mich. App. LEXIS 4895 – K9 Tracking/Trailing Evidence;
Hoskins v. Withers (Utah) 2022 U.S. Dist. LEXIS 149356 – Traffic Stop; Qualified Immunity; Prolonged Detention
United States v. Perez (Iowa) 2022 U.S. App. LEXIS 22977 – Sniff of Curtilage; Good Faith Exception (Leon)
Christopher M. Wolpert United States v. Deluca (Wyoming) 2022 U.S. App. LEXIS 23003 – Traffic Stop; Odor of Hemp v. Odor of Marijuana
State v. Dominguez (Texas 2022) 2022 Tex. App. LEXIS 6065 – Traffic Stop; Prolonged Detention
United States v. Darden-Mosby (Michigan 2022) 2022 U.S. Dist. LEXIS 146505 – Currency Sniff
State v. Demien Percell Price (North Carolina 2022) 2022 N.C. App. LEXIS 585 – Unpub. – Traffic Stop; Prolonged Detention
United States v. Javier-Jazmin (Puerto Rico 2022) 2022 U.S. Dist. LEXIS 143628 – Traffic Stop; Curtilage; Consent; Alert as Probable Cause
Mack v. State (Maryland 2022) 2022 Md. App. LEXIS 604 – Unpub. – Traffic Stop; Alert as Probable Cause; Search of a Person Based on Alert on Vehicle
State v. Johnson (Ohio 2022) 2022-Ohio-2773 – Traffic Stop; Odor of Marijuana as Probable Cause
Lewallen v. McCarley (South Carolina 2022) 2022 U.S. Dist. LEXIS 142245 – Excessive Force; Reasonable Use of Force; Qualified Immunity
State v. Christianson (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 518 – Traffic Stop; Reasonable Suspicion; Alert as Probable Cause; K9 Entering Vehicle
Gannon v. Medina Twp. (Ohio 2022) 2022 U.S. Dist. LEXIS 136514 – Traffic Stop; Qualified Immunity; Monell Liability
United States v. Jensen (Hawaii 2022) 2022 U.S. Dist. LEXIS 137621 – Alert as Probable Cause; Search Incident to Arrest; Detention of Property for Investigation
United States v. Acuna-Gastelum (Kansas 2022) 2022 U.S. Dist. LEXIS 138235 – Traffic Stop; Alert as Probable Cause; Prolonged Detention
Negethon v. Wilkens (Wisconsin 2022) 2022 U.S. Dist. LEXIS 138616 – Excessive Force; Reasonable Deployment
Sligh v. City of Conroe (Texas 2022) 2022 U.S. Dist. LEXIS 139452 – Excessive Force; Qualified Immunity; Monell Liability
State v. Johnson (Connecticut 2022) 2022 Conn. Super. LEXIS 1885 Unpub. – Traffic Stop; Odor of Marijuana as Probable Cause
CASES REVIEWED FROM AUGUST 2022 FOR SEPTEMBER 2022 UPDATE
People v. Sanchez (Illinois 2022) 2022 IL App (3d) 210014-U
Traffic Stop; K9 Entering Vehicle
Sanchez was stopped by LE for running a red light. Sanchez was removed from the vehicle and Terry frisked. Handler then had K9 sniff the vehicle. When K9 reached the door left open by Sanchez, the K9 stuck her head inside the vehicle. She then alerted to the vehicle.
Handler testified that he was a K9 handler and was called to conduct a free-air sniff of the defendant’s vehicle. The K9 team went around the driver’s door because it had been left open. Handler stated “[a]s we walked around the driver’s door, K9 sniffed the inside of the vehicle. She kind of stopped there for a minute, sniffed back and forth along the floorboard of the vehicle.” They continued down the side and to the rear of the vehicle. Then they turned around and as they went back up the driver’s side, K9 stopped at the driver’s door and “sniffed along the floorboard. She did put her paws on the floorboard of [the] vehicle and leaned her head inside the vehicle, sniffed,” and alerted. Handler did not open the door to assist K9’s sniff of the vehicle or direct K9 into the vehicle to sniff. K9 did not jump into the vehicle.
The appellate court determined that Sanchez’s door was left open when he exited the vehicle. The door remained open at the time K9 team conducted the free-air sniff. Handler testified that he did not open the door to assist his K9. Further, he unequivocally testified that he did not direct the K9 into the vehicle to sniff. While handler was unsure whether the K9 placed her paws on the inside of the vehicle, he was clear that he did not direct her to sniff the interior. Therefore, his testimony was not inconsistent as to whether he facilitated the canine’s entry into the vehicle as Sanchez claims and instead, is consistent that he did not do so. Further, there was no evidence presented to contradict handler’s testimony that he did not direct his canine to sniff the interior of the vehicle. In light of the foregoing, it is unnecessary to remand the matter because the evidence was not inconsistent, and it shows that the K9’s limited entry into the interior of the vehicle was instinctive rather than facilitated by LE such that it did not violate the fourth amendment. Additionally, the court had this evidence and the arguments of the parties regarding facilitation before it when it issued its ruling, such that the court implicitly found that handler did not facilitate the K9’s entry when it denied suppression. Based on the foregoing the appellate court concluded the motion to suppress was properly denied.
Note: This is coming up more and more. The general rule is that if a K9 jumps into the vehicle on its own after a non-LE party leaves a window or door or trunk open, then there should be no 4th Amendment violation. If there is any evidence that LE somehow facilitated the entry, this will be a 4th Amendment violation. Here, there was limited video evidence so the court had to make a judgement call. He did so in favor of LE here, but to eliminate this issue completely, best practice is that handler should shut all avenues of ingress into the car and then direct the K9 to sniff. If there is an odor, your K9 will alert.
Williams v. State (Indiana 2022) 2022 Ind. App. Unpub. LEXIS 1023
Traffic Stop; Prolonged Detention
Williams was stopped by LE because his license plate was not readable due to a missing light. When LE approached, it was noted that Williams was chewing something and tobacco was scattered on him and throughout the car. LE was suspicious because the presence of loose tobacco indicated that Williams was making marijuana blunts. LE gathered the appropriate documents and on the way back to his cruiser he called for a K9 unit. LE was waiting for a response on Williams’ out of state license when the K9 team arrived. All passengers exited and the K9 alerted on the vehicle. Sometime after the alert, the license came back clear. Search of the vehicle revealed contraband.
Williams complained that the K9 sniff prolonged his traffic stop. However, the court held, the facts and inferences indicate that the K9 sniff of Williams’ vehicle was conducted while the valid traffic stop was still ongoing. LE approached Williams’ car, observed loose tobacco leaves on the floorboard, and asked Williams for his license. After he received Williams’ license, he started to walk back to his car and, at 10:44 p.m., called for a K9. LE then ran Williams’ license through dispatch because it had been issued by a different state. Approximately three minutes after LE had called for the dog, and before he received a response from dispatch, the K9 team arrived. And, at 10:51 p.m., only seven minutes after LE had called for a dog and a mere four minutes after the K9 team arrived, the K9 alerted.
Note: In other words, K9 sniff occurred before the traffic stop was completed. Under these circumstances, the subsequent search of Williams’ vehicle was valid, and the trial court did not abuse its discretion when it admitted evidence officers had obtained during and after the search. Since the stop took place simultaneously with the traffic stop, the court did not have to analyze whether there was additional reasonable suspicion because the stop was not prolonged.
United States v. Anderson (Idaho 2022) 2022 U.S. Dist. LEXIS 153176
Traffic Stop; Prolonged Detention; Alert as Probable Cause
Anderson was contacted by LE when a civilian reported erratic driving with a description of Anderson’s car. Anderson was found in a parking lot sitting in the driver’s seat. LE did a HGN test and while there was not enough impairment for a DUI arrest, LE believed Anderson was on something. LE contacted the civilian for additional information. The civilian told LE that he would like LE to do a DUI investigation and said he would sign a complaint for DUI if LE found additional grounds for that offense. Anderson was removed from the car for FSTs and had an empty holster on his hip. LE asked where the gun was and Anderson said it was a BB gun under the driver’s seat. Anderson failed the FSTs.
Anderson was sat in the LE cruiser while they waited the 15 minutes to conduct the breath test. Anderson and LE talked about, among other things, Anderson’s record. He admitted to prior drug felonies as well as possession of 2 firearms and that girlfriend could have left her firearms in the car. LE contacted dispatch to see if they could determine if Anderson’s record prohibited him from possessing firearms.
Another LE walked around Anderson’s car and looked inside with a flashlight. LE saw what looked like to him drug paraphernalia. At that point, a K9 team was called. Dispatch came back with information that Anderson was prohibited from owning a weapon. While the breath test was taking place (after the 15 minute observation), the K9 alerted during a sniff of the vehicle. The parties disputed whether the K9 alerted before or after LE administered the second breathalyzer test (the appellate court found that the sniff and alert happened before the second test).
Here, the appellate court held, there were multiple facts to support LE’s reasonable suspicion that Anderson was driving while impaired. LE testified that Anderson’s reported erratic driving pattern was significant because it “was very extreme. It was not just a simple swerving or speeding. It was going over curbs and almost driving off bridges.” The behavior alleged by the reporting party, “viewed from the standpoint of an objectively reasonable police officer, amounted to reasonable suspicion of drunk driving.” The reporting party identified “more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving.” The extreme nature of Anderson’s erratic driving suggested “lane-positioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues.” Anderson was found parked at a closed business. Conduct that alone may appear innocent can be suspicious” when, as here, “viewed in the context of other information or surrounding circumstances” of which LE are aware.
Viewed together with the aforementioned facts, LE also obtained independent reasonable suspicion to extend the stop to administer FSTs. For instance, when LE advised Anderson that a concerned citizen had witnessed him “swerving on the roadway and not really able to maintain [his] lane,” Anderson corroborated the reporting party’s statement by admitting he had been swerving. During the evidentiary hearing, LE explained the fact that Anderson admitted to swerving was significant because “someone that can recognize that they are swerving on the roadway means that it must have been very severe[.]” While Anderson argued his fatigue and long drive through a snowstorm explained his erratic driving, the relevant inquiry is not whether Anderson could counter law enforcement’s observations with an innocent explanation, but rather whether, under the totality of the circumstances, the facts gave rise to reasonable suspicion. This allowed LE to extend the investigation to explore whether a DUI was committed.
The court then held that LE had reasonable suspicion of two additional crimes to justify prolonging the DUI investigation for a K9 sniff. Specifically, during the fifteen-minute waiting period, Anderson said he had some felony drug charges. Such admissions led LE to request a criminal report from dispatch to see if Anderson was a prohibited possessor. Before the fifteen-minutes had expired, dispatch confirmed that Anderson had several drug convictions prohibiting him from owning a firearm. Based upon the empty handgun holster on Anderson’s hip and Anderson’s admission that he carried “a couple” of guns, LE realized “there was possibly another crime besides DUI, particularly an unlawful possession investigation to perform.” Anderson also admitted that there may be firearms in his vehicle because he had borrowed the car from his girlfriend, who did own firearms. Under the totality of such circumstances, LE reasonably “believed that there could be firearms in [Anderson’s] car” and was justified in extending the length of the traffic stop to investigate this independent violation of the law. The appellate court held that the prolongation of the stop, if any, did not violate Anderson’s Fourth Amendment rights.
Note: Anderson did not challenged the reliability of the K9. This does not mean that evidence of your K9’s reliability doesn’t have be presented. If the case is appealed, the appellate court will make an independent inquiry to make sure the foundation of reliability has been proved (at the least, current certification should be introduced).
Watson v. State (Georgia 2022) 2022 Ga. App. LEXIS 394
Traffic Stop; Collective Knowledge Doctrine; Prolonged Detention
LE was informed by CI that Watson was driving from Alabama to Atlanta couriering 5 to 10 Ks of heroin and/or cocaine. CI was sent to meet with Watson while wearing a recording device. The CI indicated, when Watson drove up in his vehicle, that there were drugs in the trunk. Watson left the area and was pulled over by uniform LE for following too closely. LE who stopped Watson had been listening to the radio as the investigators were observing Watson and they frequently assisted on these types of stops. Watson was removed from the vehicle and could not explain why he was in Georgia. Consent to search was denied.
A K9 team was called in and alerted. Drugs as described were found in the trunk. Watson was convicted at a bench trial (judge, not jury).
Watson complained on appeal that the stop was pretextual and therefore illegal. The appellate court held that it is well established law that any officer can stop a motorist who violates a law, including traffic offenses, even if LE’s subjective intent is to gain legal access to search the vehicle.
Here, the court held that LE had reasonable, articulable suspicion that Watson was involved in illegal drug activity when he initiated the traffic stop. Investigators informed him that Watson was suspected of engaging in a drug transaction shortly before the traffic stop. Indeed, the investigators witnessed the transaction, and LE listened to the events as they unfolded over the radio. The collective knowledge of the several officers was more than sufficient to justify the stop.
Note: For the collective knowledge doctrine to apply, the wall stop officer needs to know at least some of the investigation. Here, he was not only told but listened to it over the radio. Why was this important since the traffic stop was legal? Because Rodriguez tells us that there needs to be additional reasonable suspicion for the stop to be extended to include a K9 sniff. The ongoing investigation provided that here. Without additional reasonable suspicion, the K9 sniff would not have provided probable cause because there would have been a prolonged detention.
People v. Rider (Michigan 2022) 2022 Mich. App. LEXIS 4895
K9 Tracking/Trailing Evidence
In a murder case, there was evidence of a K9 tracking from the suspect’s home to a pair of gloves in a nearby marshy area. Later, LE found a gun about 100 yards away from where the gloves were found earlier.
Tracking dog evidence is admissible in Michigan if the evidence establishes these requirements:
(1) the handler was qualified to use the dog; (2) the dog was trained and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the alleged guilty party to have been; and, (4) the trail had not become so stale or contaminated as to be beyond the dog’s competency to follow it.
On appeal, Griffin (also a convicted murderer and a co-defendant here) asserts that the fourth requirement was not satisfied. At trial, handler testified that he, along with his K9, responded to assist after the shooting. Griffin challenged the last prong of the test and argued that conditions were contaminated or stale. However, the court held that even though many LE were on scene, it was not established that any of them contaminated the track. Handler described that he started his tracking east of the crime scene because that is where a witness supposedly saw someone running after the shooting. Notably, there was no testimony that any contamination of the surrounding area impeded K9’s competency to detect and follow a trail. Accordingly, the presence of people “in the area” did not make the dog-tracking evidence inadmissible.
Griffin also relies on the fact that at one point, K9 lost his scent. As handler described: “When we lose scent on a track, and we try to reestablish the scent, because turns and stuff, and weather can affect the dog’s tracking abilities. So, if we lost a scent, we try to reestablish it. So, in this case, I took K9 — we call it casting. We give him some lead. We, we have him circle the area to see if he can reestablish the track. Sometimes, they re-pick it up, and we continue on, and sometimes they don’t. In this case, he did not re-establish the track any further.
Handler explained that he and K9 then performed an “area search,” which is when they search through yards for human odor to see if anybody may be hiding in the area, but that search was not fruitful. Handler then had K9 perform an “article search,” which is a look for a physical piece of evidence that may have been left behind. The initial attempt was unsuccessful, but then handler was asked to search the brush area on the east side of Heritage Parkway, and that is when K9 located the pair of gloves.
K9 was unable to make a continuous track from the crime scene to where the gloves were found. Although he tried to follow a track from near the crime scene, he was unable to do so. Thus, there is no “tracking” evidence per se that was admitted. Instead, the only substantive evidence is that K9 found gloves that he thought had recent human scent on them. Handler clearly explained that he only found the gloves after being asked by the local police to specifically search the marshy area on the east side of Heritage Parkway. The court held that there was nothing to suggest that this search was compromised on account of any contamination. Therefore, Griffin’s claim of error is without merit.
Moreover, even if Griffin’s argument is credited, the only evidence that would be inadmissible would be that K9 detected a human scent or odor on the gloves. The gloves themselves would still be admissible. Also, the fact that the gloves had human odor was fairly inconsequential because subsequent DNA testing showed that Gibson’s (co-defendant)—not Griffin’s—most certainly was on them. Again, irrespective of the admissibility of any dog-tracking or alerting evidence, the gloves and DNA evidence were admissible. Therefore, Griffin cannot demonstrate any prejudice.
Note: This was kind of a “Hail Mary” pass by the defense . The court did a good job in demonstrating how K9 evidence becomes admissible evidence and that there was no contamination during the sniffs. (Rider had two co-defendants, Gibson and Griffin, which is why the case citation has Rider on it. Rider did not challenge the K9 evidence but the co-defendants did).
Hoskins v. Withers (Utah) 2022 U.S. Dist. LEXIS 149356
Traffic Stop; Qualified Immunity; Prolonged Detention
Hoskins was stopped because his license plate frame obscured the name of the issuing state. LE obtained the appropriate documents. Hoskins could not find his insurance document so LE asked him to come back to his cruiser while he continued to look for it. Hoskins was very nervous although he complied with LE requests. LE began entering Mr. Hoskins’ information into his computer to prepare a citation and, while he was doing this, asked Hoskins more questions relating to his employment status and travel plans. LE then called Hoskins’ information into dispatch and asked that a driver’s license and warrant check be completed. While waiting for dispatch to complete the check, LE then instructed Hoskins to “hang tight” and proceeded to retrieve his K9. LE took the K9 to Hoskins’ car and made “three passes of the driver’s side, five passes of the front side, two passes of the rear of the vehicle, and two passes of the passenger side.” The K9 sniff lasted fewer than 90 seconds. During the sniff, the K9 twice tried to enter the vehicle through the passenger window. After the first attempt, LE commented to his body camera that “he’s just following an odor right into the car.” When the K9 tried to enter a second time, LE stated: “OK, I’m going to call that an indication, he keeps trying to jump in the window.” At this point, dispatch had not yet responded with the results of the license and warrant check.
LE then returned the K9 to the car and explained to Hoskins that the K9 was trying to go after a drug odor in the car and that he would now search Hoskins’ vehicle. LE directed Hoskins to exit the vehicle, place his cell phone on the hood of the patrol car, and stand near a delineator post approximately 50 yards from Hoskins’ vehicle while LE conducted the search. LE walked Hoskins to the post and then returned to the patrol car to retrieve his gloves. At this point, dispatch responded that Hoskins had no outstanding warrants and possessed a valid driver’s license.
There was a bit of a set-to between LE and Hoskins as Hoskins was trying to use a second cell phone which was in his pocket. LE briefly pulled his gun and told Hoskins to take his hands out of his pockets. At that point, Hoskins was handcuffed and placed back into the cruiser. No weapons were found on Hoskins.
After an extended search, LE discovered two packages of cash secured in the lining of the rear seats between the trunk compartment and the seat frame, using tools to dissemble the rear seat to retrieve these packages. Each package was vacuumed sealed and then incased in a second layer of plastic wrapping. The packages contained a total of $89,000. Another $1,350 was later found on Hoskins’ person.
Ultimately, no charges were filed, and Hoskins was released from jail after a few days. Hoskins then filed a section 1983 case for false imprisonment.
The court first held that LE’s initial stop was justified because it was based on an observed traffic violation. The court then moved on to the K9 sniff. The court held that there was no prolonged detention as 1) Hoskins was still looking for his insurance and 2) the sniff was completed by the time dispatch came back with the necessary information regarding Hoskins’ status.
Hoskins then complained that the search of the car was improper because the K9 never alerted. During the sniff, K9 twice tried to enter the vehicle through the passenger window. After the first attempt, LE commented to his body camera that “he’s just following an odor right into the car.” LE then took the K9 away from the door towards the front of the car before allowing it to return to the passenger door. The K9 again attempted to jump through the open window into Hoskins’ car and LE stated to his body camera: “OK, I’m going to call that an indication, he keeps trying to jump in the window.”
The court looked to precedent and stated that in United States v. Forbes, the Tenth Circuit recognized the difference between a dog “alert” and a dog “indication.” 528 F.3d 1273, 1275 n.3 (10th Cir. 2008). “[A] properly trained canine will ‘alert’ to the presence of contraband when it first encounters a known odor by changing its body posture and by increasing its respiration. By contrast, the same dog will ‘indicate’ the precise location of that contraband through some other change in behavior, such as by staring, sitting, scratching, biting, or barking.”
Although Hoskins seeks to dismiss reliance on the K9’s reaction as a “post-hoc attempt to justify the search,” LE’s contemporaneous comments to his body camera make clear that he immediately recognized the change in his K9’s behavior. Indeed, he twice noted the K9’s effort to enter the vehicle through the open window. The court concluded that this behavior is sufficient for a reasonable officer to believe that the dog had indicated and that he therefore had probable cause to search the vehicle.
The court went on to hold that even if LE incorrectly determined that his K9 alerted or indicated, the court concluded that his mistake was reasonable and did not violate the Fourth Amendment. The Court has long recognized that “the Fourth Amendment allows for some mistakes on the part of government officials,” and that “searches and seizures based on mistakes of fact can be reasonable.” Heien v. North Carolina, 574 U.S. 54, 60-61, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014). The mistakes, however, “must be those of reasonable men.” Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). Here, LE observed a dramatic change in his K9’s behavior as the K9 repeatedly attempted to enter Hoskins’ vehicle. The court concluded that it was reasonable for LE handler to interpret these changes in behavior to be the result of the K9’s detecting contraband. For all of these reasons, the court concluded that the search did not violate the Fourth Amendment.
Note: There were other issues presented by this case, but none were appropriate to the purpose of this update. Here, handler was alone when he deployed his K9. A practice note: he used the law to get Hoskins out of his car and had him stand in a specific place, probably to monitor him during the sniff. Handler also called in Hoskins’ information prior to deploying the K9. This was definitely best practice. However, when handler said, “OK, I’m going to call that an indication, he keeps trying to jump in the window,” this statement could have been misinterpreted. Best practice is to use language discipline; an alert is when K9 displays behavior that indicates he is in scent and a final indication is when the K9 performs the trained response for the detection of a certain scent. When handler used “indication” when he really meant alert, this could have been an issue. However, there was great video footage of the K9’s sniff and the court considered that as well.
United States v. Perez (Iowa) 2022 U.S. App. LEXIS 22977
Sniff of Curtilage; Good Faith Exception (Leon)
In this case, a K9 was taken along a public hallway and alerted at two apartment doors, about 3 to 6 inches from the door. In this jurisdiction, before the Supreme Court decided in Jardines that a drug dog sniff on the front porch of a house is an unlawful intrusion on the curtilage of a home, this court rejected a Fourth Amendment challenge to a drug dog sniff outside an interior apartment door in United States v. Scott, 610 F.3d 1009, 1016 (8th Cir. 2010). At the time of the dog sniff outside these apartments, this court had neither expressly overruled Scott nor explained how Jardines applies to apartment doors in a common hallway. Based on the state of this caselaw at the time of the search, the court found that the good faith exception applies. It was reasonable for the officers to rely on our then-applicable precedent that dog sniffs at an interior apartment door are permissible.
Note: I included this for our Iowa and 10th Circuit friends and all other LE working in jurisdictions where US Supreme Court rulings address a particular issue. Here, even though Jardines was decided after the Circuit Court case addressing these issues, relying on a good faith argument is not a great strategy as it is a last ditch attempt to get the evidence before the court. Here, this case established that a sniff at an apartment door from a public hallway is a search and therefore violates the 4th Amendment. Best practice is to consult with your local prosecutor before you attempt anything where the law could be interpreted more than one way.
Christopher M. Wolpert United States v. Deluca (Wyoming) 2022 U.S. App. LEXIS 23003
Traffic Stop; Odor of Hemp v. Odor of Marijuana
Deluca was pulled over because his car displayed an unreadable temporary tag and a permanent tag that did not appear in the government’s database. Deluca, the driver, did not provide LE with license and registration. Deluca gave what turned out to be a false name and date of birth. LE went back to his car and requested a K9 team to respond as well as trying to figure out who Deluca was and what the car’s status was. The K9 arrived, sniffed and alerted. A search of the car revealed a gun. Deluca was a felon and therefore a prohibited person. He admitted to using marijuana earlier and that he was wearing the same clothes he smoked in.
The court first held that the traffic stop was valid and that LE was entitled to ask for license and registration.
Deluca had challenged the K9 alert at the trial court level claiming that the trial court had failed to resolve a factual question as to whether the K9 was trained to alert on hemp. (Hemp was legal and marijuana was not).
The trial court stated that K9 alerted to an odor of one of the controlled substances which he is trained to identify. The court also stated in a footnote: LE testified that K9 is not trained or certified to alert on hemp. On cross-examination, LE recognized that hemp is closely-related to marijuana with a minute amount of THC. He could not identify the specific component(s) of marijuana that K9 recognizes. However, the possibility of false-positives regarding hemp is not dispositive in this case. It is not disputed that Deluca said he had smoked marijuana that day in the same clothes, and Deluca does not contend that hemp was in the car.
Therefore, the appellate court held that, based on this statement, the trial court declined to resolve this factual issue as it merely found the question regarding hemp was not dispositive as to whether LE had probable cause. The question then became whether this factual finding was essential to the outcome of the probable cause question. The appellate court then found that was not essential because probable cause existed even if K9 was trained to alert on hemp in addition to the other controlled substances. “Probable cause exists where ‘the facts and circumstances within LE’s knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” “Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”
It is undisputed that K9 was trained to alert on marijuana, heroin, methamphetamine, and cocaine. If hemp was added to this list of four controlled substances, K9’s alert on a car would still give rise to a high probability that a controlled substance is in the car as four of the five substances that K9 could detect are illegal. Thus, the appellate court found that LE had probable cause to search the car regardless of whether K9 was trained to alert on legal hemp. This was therefore not an essential factual finding, and so the district court did not need to resolve it on the record.
Note: Deluca presented no evidence and no argument about how common it is that hemp is found in a vehicle in the absence of other controlled substances. The court here is stating a finding of common sense and that is human LE does not know specifically know which odor the K9 is alerting to. Since the K9 was capable of alerting to 4 substances, any alert gave a high probability that illegal substances would be found. This completely makes sense to me. Why other courts have it twisted is a mystery. It’s the difference between it could be illegal so the alert is probable cause v. it could be legal so the alert is not probable cause. The first makes a bunch more sense since the threshold inquiry is at the level of probable cause (more likely than not). Stay tuned for more cases like this.
State v. Dominguez (Texas 2022) 2022 Tex. App. LEXIS 6065
Traffic Stop; Prolonged Detention
LE observed Dominguez in a Jeep that was parked in a parking lot at a Dollar General store. While the Jeep remained parked at the store, LE checked the Jeep’s registration and discovered that the registration was expired. Dominguez eventually left the store with a passenger, and LE followed Dominguez for several miles as he drove through Fort Stockton. After LE initiated the traffic stop, Dominguez admitted that the Jeep’s registration was expired. A K9 team was called and performed a sniff after the time to investigate the traffic stop expired (Rodriguez moment).
Because the sniff took place after the Rodriguez moment, the government needed to show that there was additional reasonable suspicion to extend the stop to investigate other crimes. Here, the factors that the government said provided that additional reasonable suspicion were: (1) LE was familiar with Dominguez from prior investigations; (2) Dominguez was nervous and his hands were shaking during the stop; (3) LE noted in his report that he smelled the faint odor of marihuana coming from the Jeep; (4) there was a “heavy masking” of cigarette odor in the Jeep; (5) a radar detector was present in the Jeep, which suggested to LE through his experience that Dominguez may have used it to alert him to the presence of law enforcement; and (6) Dominguez was wearing a “Cheech and Chong” shirt with “marihuana leaves on it.”
However, the trial court did make findings that bind the appellate court. Those findings were; (1) LE’s testimony that Dominguez was nervous was not supported by the body-cam video, and that LE “deliberately entic[ed] Dominguez by repeatedly asking him, “Why so nervous”; (2) LE’s claim that he detected a faint odor of marihuana emanating from Dominguez’s vehicle was undercut by the wind blowing and his admission that the odor was not strong enough for a positive indication; (3) contrary to LE’s testimony, Dominguez’s shirt did not have marihuana leaves on it; (4) Dominguez’s shaking and agitated demeanor were explainable by a history of repeated traffic stops by law enforcement and the death of Dominguez’s grandmother, a premise that LE acknowledged; and (5) LE could not confirm that everyone with a radar detector in their vehicle is a suspected criminal, and he admitted that the radar detector could have belonged to the Jeep’s previous owner. The trial court held that these factors did not supply the requisite reasonable suspicion to allow for a prolongation of the traffic stop to encompass a K9 sniff.
The record at the appellate level lacked sufficient reasonable suspicion of some other criminal activity to justify Dominguez’s continued detention. The facts related by LE that are relevant to our analysis (a faint odor of marijuana that LE could not confirm, the presence of a radar detector, a shirt with Cheech and Chong’s faces on it, and Dominguez’s nervousness that LE instigated) do not collectively amount to reasonable suspicion that Dominguez was engaged in some other criminal activity.
Note: This case is a good example of how a court may see facts v. how LE might see facts. The more factors you discover and interpret through your training and experience, the better. Here, it appeared that the court was not impressed with LE’s testimony, although it stops short of calling him a liar. Make sure that you can back up your assertions with facts.
United States v. Darden-Mosby (Michigan 2022) 2022 U.S. Dist. LEXIS 146505
During an investigation into drug trafficking by Darden-Mosby, LE found $112,690 in currency. After Darden-Mosby was convicted of drug trafficking, the government moved to forfeit the currency as being either proceeds of drug trafficking or money used to purchase drugs in the drug trafficking conspiracy.
Here the appellate court determined that the government has presented evidence sufficient to establish the requisite nexus between the cash seized and Darden-Mosby’s offenses. A number of facts supported this conclusion. First, the money seized from Darden-Mosby’s bedroom was concealed in a safe, shoe box, and various different locations in Darden-Mosby’s dresser, sorted in rubber bands, rather than stored in a bank. As LE testified at trial, this method of storage, subject to theft and loss, and this manner of storing and operating in cash, is consistent with drug dealing. Second, K9 alerted to traces of narcotics on the currency found in both the safe and shoe box. Third, the money was located in close proximity to an unregistered firearm, a money counter, cocaine, and notebooks containing shorthand suggesting drug sales and high dollar amounts for sales of marijuana. Last, telephone calls, text messages, and stipulations admitted at trial showed that Darden-Mosby was engaging in drug sales for profit. As such, the Court found as a matter of fact that Darden-Mosby’s testimony that none of the cash seized from his bedroom was related to sales of drugs is not credible. The money was ordered forfeited.
Note: In these types of cases, an alert by a K9 is only a part of probable cause.
State v. Demien Percell Price (North Carolina 2022) 2022 N.C. App. LEXIS 585 – Unpub.
Traffic Stop; Prolonged Detention
A traffic officer was positioned on the roadside and was running plates. Price’s car’s plate indicated that the owner of the car was suspended. LE stopped the car and after gathering information, went back to his cruiser and confirmed that Price, the driver, had a suspended license. LE then went to talk to Price and this time, he detected the odor of marijuana. Price denied possessing any, but claimed his cousin smoked marijuana in the car. Price produced a roach from the ashtray. Price was asked to step out. LE then searched the vehicle and found more marijuana, packaging and paraphernalia. (Price hinked up when told the vehicle was going to be searched).
At a motion to suppress hearing, Dr. Frederic Whitehurst, an expert in forensic chemistry, testified about the different tetrahydrocannabinol (“THC”) levels in hemp and marijuana and the characteristics of both substances. Dr. Whitehurst explained it is impossible for humans, or canines, to determine the level of THC in a plant based upon smell alone; and the only method with which to differentiate between hemp and marijuana is a liquid chromatography test. Presently, North Carolina has no field test to distinguish between hemp and marijuana and none was used here.
Price argued probable cause cannot exist on the smell of marijuana alone because LE are unable to differentiate between marijuana and hemp. Price also argued the LE’s reasonable suspicion ended once Price claimed no marijuana was in the vehicle, thus resulting in an unconstitutional extension of a traffic stop. Lastly, Price argued he was illegally interrogated after he exited the vehicle.
The State asserted that the admissions made by Price regarding the marijuana roach, etc., were made by him voluntarily while he was not in custody. The trial court agreed with the State.
The appellate court stated that LE had additional reasonable suspicion such that the extension of the traffic stop was permissible. Here, LE lawfully seized Price’s vehicle based upon the reasonable suspicion that Price was driving with a suspended license. LE confirmed that Price was driving with a suspended license and approached the vehicle a second time to inform Price that he would be issuing a citation. During the traffic stop, and prior to the completion of the traffic violation mission, LE noticed the smell of what could be marijuana and inquired about the presence of marijuana in defendant’s vehicle. Price voluntarily commented that his cousin uses his vehicle and he “smokes all the time.” He voluntarily produced a roach from the ashtray and showed it to LE. Price then made the statement, “I’m sure there’s something in here,” upon existing the vehicle and talking with the officers. LE had extensive training and experience in the detection of illegal substances. Second LE also smelled what he believed to be marijuana and testified Price appeared nervous throughout the encounter. Therefore, under the totality of the circumstances, LE lawfully extended the traffic stop upon reasonable suspicion of illegal activity. The court also held that the search was constitutional based on the factors of odor of marijuana, Price’s statements and the display of the roach.
Note: Here, the odor of marijuana was part of the probable cause. The defense nonsense about hemp smelling like marijuana was basically ignored by the trial and appellate courts. However, this hemp question will come up in jurisdictions were hemp is legal but marijuana is not. Be sure to check with your local prosecutor on this issue. As far as I know, there is no difference in the smell, but I have not seen any studies or information on this. As K9s trained on marijuana retire and new K9s not trained on marijuana are deployed, this issue will fade in importance. e
United States v. Javier-Jazmin (Puerto Rico 2022) 2022 U.S. Dist. LEXIS 143628
Traffic Stop; Curtilage; Consent; Alert as Probable Cause
LE had a tip that a specific boat was going to be traveling from Puerto Rico to St. Thomas to pick up 50 kilos of contraband, put it in a hidden compartment and return to Puerto Rico. The participants were described by the source as well as the location of the boat at a residence (it was going to be towed to the water). LE surveilled the area of the residence and took pictures through an open gate at the residence. Later, LE pulled the vehicle over for a broken taillight. Javier-Jazmin, the driver, verbally consented to a search of the vehicle as well as a sniff. Contraband was found.
Javier-Jazmin first complains that the photos were a violation of curtilage. The appellate court held that Javier-Jazmin did not make the required threshold showing of expectation of privacy within the property (no evidence of ownership or tenancy) and therefore there was no violation of his right to privacy.
However, LE did enter the property through an open gate. They stayed on the driveway and never got out of their vehicle, but took cell phone pictures from their vehicle. The only information retrieved by LE was confirmation that the boat and tow vehicle were there as described by the source. LE was approached by people present so LE asked for fake directions to cover their presence. Again, there was no showing of curtilage as to Javier-Jazmin and even if there was a curtilage violation, it was minimal.
LE conducted a traffic stop on the vehicle when it was towing the boat because a taillight was broken. Both occupants (Javier-Jazmin was the driver) were taken out of the vehicle. Driver was able to present his license but not registration. Consent was granted to search the vehicle and also for a K9 to sniff the vehicle. K9 team arrived just before agents were going to search the vehicle. The K9 alerted to the vehicle. Contraband was found on the boat.
The appellate court held that the initial traffic stop was valid. Then, the court stated that importantly, Javier-Jazmin does not question the fact that occupants provided consent for the agents and the K-9 to search the vehicle and the vessel, nor do occupants argue coercion or intimidation played a role in the voluntariness of the consent. Rather, occupants contend that the consent was “invalid, since it hinges on the information acquired in the curtilage breach,” referring to the agents’ observations of the property, discussed at length above. Because the agents “misrepresented” the reasons for the intrusion into the property, occupants argue, “the consent is absent attenuation to purge the taint of the prior illegal act.” Occupants also argue that the agent who conducted the traffic stop “misrepresented the grounds for the stop.” In occupants’ view, the “real reason for the stop was to act on LE’s hunch that the vehicle might be the one they were searching for.” Finally, occupants asked the Court to apply the fruit of the poisonous tree test. The appellate court overruled these objections.
As discussed before, there are no doubts as to the fact that the occupants were lawfully pulled over for a traffic violation. That brings the argument to the second factor: reasonableness, which is determined in light of the totality of the circumstances and “requires a practical, commonsense determination.”
In the case at bar, occupants argued that the agents did not have any reasonable suspicion of criminal activity and thus the enlargement of the time it took for the issuance of the traffic tickets was unreasonable. Yet, the extension was not the result of the agents’ suspicion of criminal activity, but rather from occupants’ consent to the K9 search of the vehicle and vessel. Thus, the search was not borne out on the agents’ “hunch,” as occupants suggest, but rather from occupants’ own will. Thereafter, and once probable cause existed, the vehicle and vessel were transported to police headquarters, where a written consent for and search was obtained anew.
Note: Here, this case hinged on the consent given by the occupants, so the information given by the source was not analyzed. Had there not been consent, then the K9 would have had to complete its sniff prior to the end of the traffic investigation an/or the source’s information would have had to be revealed.
Mack v. State (Maryland 2022) 2022 Md. App. LEXIS 604 – Unpub.
Traffic Stop; Alert as Probable Cause; Search of a Person Based on Alert on Vehicle
Van in a high crime area spotted by LE. A male on foot was leaning into the passenger side. When LE got turned around, the male was walking off. LE, based on his training and experience, believed he saw a hand-to-hand sale of narcotics. LE followed the van until it cut through a private parking lot and stopped the van. At that time, LE’s intention was to call for a K9 unit to sniff the van and to arrest the front seat passenger for narcotics violation. When approached, Duggins was the driver and Mack was the passenger. He told them the stop was for the parking lot violation and asked for ID. Because LE was alone, he waited for back up before continuing. The K9 team arrived within minutes. Occupants were ordered out of the van. Since Mack admitted to having a pocket knife, he was Terry frisked. LE found the knife but Mack “was clenching his butt up in order to hinder me from patting down.” While the sniff was happening, LE went back to his computer to run the IDs but his laptop was malfunctioning. The K9 then alerted to the van and the van was searched. Marijuana in a decriminalized amount was found along with packaging and a laptop. Mack was searched again and even though he was still clenching his butt cheeks again, LE felt a harder object in Mack’s groin area. LE pulled Mack’s sweatpants out and saw a large amount of cocaine. There was no one around and LE did not pull his sweatpants down, only away from his body. Mack tried to flee, but was quickly taken to the ground and handcuffed.
The appellate first held that the stop was valid as the driver did commit an infraction. This was an independent reason and therefore valid even though the stop in LE’s mind was to arrest the passenger for narcotics sales.
The court then moved on to the Terry frisk. The investigatory portion of the stop was conducted appropriately. The occupants were lawfully ordered to get out of the vehicle. While LE was completing the paperwork for the traffic stop, a certified K9 team arrived on the scene. Then, according to the transcript of his body worn camera recording, LE asked Mack if “[y]ou got anything else on you (indiscernible) stick me in or blow me up?” Mack replied “I got a knife on me.” The deputy said, “don’t go for it. Don’t reach for it. Just tell me where it’s at, man.” Mack pointed to the knife’s location and it was seized by the deputy. LE then asked, “[a]ny other weapons on you or anything like that?” After Mack replied in the negative, LE told him to “go ahead and spread your feet[,]” and then patted him down. During that pat-down, LE testified that Mack appeared to be “clenching his butt up in order to hinder me from patting down” his crotch area. When Mack responded that he had a knife, even though the knife was lawful, the total circumstances justified a Terry frisk for safety. LE’s limited pat-down at this point, after retrieving the knife, was reasonable under the circumstances.
Regardless, however, the frisk did not result in discovery of any incriminating items. The most that came out of it that is relevant to the question of probable cause to arrest is the testimony that Mack clenched his buttocks. As the motions court observed, clenching buttocks during a pat-down in the groin area might have occurred naturally.
Here, LE did not witness an exchange. Instead, he witnessed a person lean one third of his body into the passenger side of a vehicle, located in a high crime area known for drug distribution, and then walk away with another individual. The court recognized that LE’s training, knowledge and experience is a factor in determining probable cause. Nevertheless, the court concluded that observing an individual lean into a taxi on the passenger side followed by the individual walking away on foot with another person is insufficient to constitute probable cause to arrest the passenger.
Based on these circumstances, the State asserts that “Deputy Adams had probable cause to believe [appellant] had committed a drug trafficking crime[,]” and that “[t]he facts that justified the Terry patdown … also supported the subsequent search and contemporaneous arrest of [appellant].”
The Terry frisk did not produce any unlawful items. Mack was cooperative. The K9 alert and subsequent search of the minivan did not produce any incriminating evidence as to Mack. There was no K9 alert on appellant’s person. Although it is not entirely clear, it appears that the marijuana and baggies, in addition to not being criminally unlawful, were not in plain view. Mack was seated in a taxi in which multiple people might have been occupants shortly before the time in question. Assuming the frisk was lawful, Mack’s clenching of buttocks could have been a natural reaction or could have been an effort to hide something. Applying the totality of the circumstances test, the components relied on by the State, individually and collectively, do not constitute probable cause.
Note: I disagree with this opinion and thankfully it is unpublished. The court indicated that there was probable cause to search the vehicle because of the K9 alert. However, when the search only turned up a decriminalized amount of marijuana and packaging material, the court appears to believe that probable cause then evaporates. This would mean as long as one keeps one’s contraband in one’s crotch, that is acceptable. This makes no sense. There is no case law on point that instructs that probable cause to search is also probable cause to arrest, but I believe that argument can be made. In addition, it appears there was not a good enough foundation laid as to why LE thought this was a hand to hand drug sale or why the crotch is a good hiding place for contraband. Perhaps if the court understood the training and experience of LE better, that may have helped. It’s tempting that if you get the conclusion in (hand to hand sale) you don’t have to lay the foundation. But that can come back to bite you in the appellate court. The court also says that Mack was not sniffed, but that may be because K9 was cross trained as a patrol dog, which would make it dangerous to Mack to be sniffed. In addition, there is a higher expectation of privacy for the person. I just think the court got this wrong and a minimal record in the trial court didn’t help.
State v. Johnson (Ohio 2022) 2022-Ohio-2773
Traffic Stop; Odor of Marijuana as Probable Cause
Johnson was a passenger in a vehicle pulled over for speeding by a uniformed officer. He was being followed by plain clothes officers due to an ongoing investigation. LE approached and was greeted by the strong odor of raw marijuana. The occupants were overly nervous. Back up arrived and LE took Johnson out of the car and Terry frisked him. He and driver were then secured in a patrol car.
A search of the vehicle revealed a large amount of marijuana, vape cartridges and edibles in a suitcase with Johnson’s name on it. Driver’s suitcase had similar items.
Additional evidence came out of the trial court’s hearing on Johnson’s motion to suppress. The same day of the speeding stop, Johnson and driver arrived in Cleveland on a flight from California. They retrieved their luggage and rented a car to drive home to Pennsylvania. This rental vehicle was the one that was pulled over by LE.
The appellate court first held that the stop was valid as was the detention of its occupants. The court then turned to the search. Johnson asserted that the odor of marijuana does not provide probable cause to search. The court found that LE had the requisite training and experience to determine the odor of marijuana. Therefore, there was probable cause to search the vehicle based on the odor of marijuana as detected by LE.
Johnson further argued that because medical marijuana and “low-THC hemp” are both legal in Ohio, the odor of raw marijuana was insufficient to establish probable cause for the search since LE could not distinguish between “potentially illegal marijuana from legal hemp by mere smell.” The court rejected this argument, stating that under the automobile exception, “probable cause to search a vehicle exists, if under the totality of the circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found’ in a vehicle.'” Therefore, LE’s testimony that he smelled the odor of raw marijuana when he approached the vehicle was sufficient probable cause to search the vehicle even if the drugs were determined to be legal.
Note: This court did not bite on the argument that since LE can’t detect the difference between legal possession and illegal possession, they didn’t have probable cause. Instead, this court went back to the definition of probable cause, a fair probability that contraband or evidence of a crime will be found. This is a fairly low standard and the court was not willing to artificially raise the bar by accepting the defense argument.
Lewallen v. McCarley (South Carolina 2022) 2022 U.S. Dist. LEXIS 142245
Excessive Force; Reasonable Use of Force; Qualified Immunity
McCarley, a certified K9 handler, and his K9, attempted to stop a stolen vehicle being driven by Lewallen. Lewallen initially stopped but when McCarley got out of his cruiser, Lewallen sped away and endangered other motorists with his reckless driving. Stop sticks were deployed and Lewallen was stopped. McCarley approached with his pistol drawn. Lewallen obeyed commands and McCarley was able to get Lewallen out of the vehicle and onto the ground. McCarley holstered his gun and reached for his handcuffs. However, at that point, Lewallen failed to obey commands to show his hands. He was ordered to stop resisting and that McCarley would release his K9 if resistance continued. Another officer, having handcuffed the passenger, came over to assist. McCarley told him to open the back door to let K9 out. Lewallen’s passenger at that point came over to McCarley and kicked or kneed him in the head. Once the door was open, McCarley gave the command to bite and K9 bit the upper arm of Lewallen. Lewallen was screaming and trying to pull away which made the K9 to become more engaged and focused. The other officer subdued the passenger and then came over to McCarley to help. They were able to get Lewallen handcuffed. Once handcuffed, McCarley gave the release command, which the K9 obeyed. The entire exchange was under a minute.
Lewallen was taken to the hospital for the K9 bite and the treating physician’s primary impression of Lewallen’s condition was “Poisoning/Drug Ingestion,” and he was noted to be exhibiting “[c]ombative or violent behavior,” as well as experiencing hallucinations. Passenger confirmed schizophernia and meth/crack use. The bite was treated with 1 or 2 stitches and preventative antibiotics.
Lewallen sued for excessive force. McCarley filed a motion for summary judgement. The appellate court applied the Graham factors to make a determination on this motion. The court found for LE on the first factor, citing his dangerous driving in trying to flee LE, only stopping when the vehicle was boxed in by LE. The second and third factors were considered together by the appellate court. While Lewallen obeyed commands to show his hands when he got out of the vehicle, he became resistive while on the ground. In addition, there was an uncontrolled passenger who attacked McCarley (the other officer had to leave her to open the door for the K9). Passenger was standing next to the open door of the vehicle where a weapon was later found. The court rejected the argument that McCarley failed to use less harmful options and then escalate as those options were not effective, stating that McCarley had no such options at hand and that the K9 was the only option. He warned Lewallen regarding releasing the K9 but Lewallen still resisted. This was reasonable according to the appellate court. In addition, the injuries were minor which further indicates that the last two factors in Graham were in favor of McCarley. Also there were no allegations that force was used once Lewallen was in handcuffs as the K9 was immediately released.
Therefore, the court held that under the totality of circumstances here, including specifically McCarley’s orders to cease resisting arrest, warning to Lewallen prior to use of the K9, and Lewallen’s minor injuries, McCarley’s use of force in taking him into custody was objectively reasonable.
The court then addressed whether McCarley was entitled to qualified immunity. In resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged inquiry: (1) “whether the facts, taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated a federal right”; and (2) “whether the right in question was ‘clearly established’ at the time of the violation.” In the Fourth Circuit, plaintiffs bear the burden of proof to show that a constitutional violation occurred, while “defendants bear the burden of showing that the violation was not clearly established, and they are therefore entitled to qualified immunity.”
As set forth above, Lewallen has not shown that a constitutional violation has occurred. On this basis alone, McCarley is entitled to qualified immunity.
Note: This case ended well for everyone: the K9 deployment went as expected and Lewallen did not sustain injuries that could have swayed court opinion the other way. This was because the handler and the K9 worked well together and the team had a good verbal out which was given as soon as Lewallen was handcuffed. That’s the way it should go. It also gives support to the idea that K9 vehicles should be equipped with a remote door opener.
State v. Christianson (Minnesota 2022) 2022 Minn. App. Unpub. LEXIS 518
Traffic Stop; Reasonable Suspicion; Alert as Probable Cause; K9 Entering Vehicle
Christianson was stopped because Christianson, the owner of the car, had a cancelled license. Both Christianson and his passenger lit up cigarettes prior to LE approaching the vehicle. There was also an open bottle of beer in the front cupholder and LE smelled the faint odor of burnt marijuana. Christianson was asked out of the car and he admitted to drinking one beer prior to driving and using meth a few days before. Christianson then failed FSTs so was arrested for driving on a cancelled license and DUI. Passenger’s license was expired. She had a small amount of marijuana on her.
Handler, already on scene, then retrieved his K9 and initiated a sniff because of the odor of burnt marijuana and the open container. As handler and K9 approached the vehicle, the driver’s side door remained open, and K9 immediately jumped into the driver’s seat. K9 then alerted to the presence of illegal drugs inside the vehicle. Handler returned K9 to the squad car and based on K9’s alert during the initial search, LE searched the interior of the vehicle themselves. A knife was found in the driver’s door and handler opened the center console between the seats. Inside the console, he observed a digital camera inside a case, some pieces of paper, and a plastic bag containing what appeared to be methamphetamine. The contents of the plastic bag field-tested positive for methamphetamine.
Christianson challenges the initial search of the center console of the vehicle, arguing that at the time the officers deployed the K9, they did not have probable cause to suspect that the console of the vehicle contained illegal drugs or evidence of drug-related criminal activity. The appellate court considered the totality of the circumstances and the scope of the search, while deferring to the trial court’s determinations of credibility. They concluded that the automobile exception does not justify the search of the vehicle in this case for two related reasons.
First, to the extent that portions of the state’s brief relate to whether there was probable cause to believe that the center console concealed containers of alcohol, the search cannot be justified on this basis. The initial search of the center console that occurred in this case was a search by a K9 trained to detect the presence of illegal drugs. There is no evidence that the K9 could also detect the odor of alcohol or the presence of containers of alcohol. There is also no evidence regarding the center console and whether the dimensions of any potential storage compartments inside the console could reasonably hold bottles, cans, or other containers of alcohol. Because searches under the automobile exception are defined by the object of the search, and because searches using a K9 are justified only by a suspicion of drug-related criminal activity, based on the ruling in State v. Wiegand (Minnesota Supreme Court 2002) 645 N.W.2d 125, 136-37, the state cannot justify the K9 search (court’s word, not mine) for illegal drugs based on a suspicion regarding open containers of alcohol.
Wiegand was a State Supreme Court holding that is at odds with the federal standard. Wiegand states that, in order to lawfully conduct a narcotics-detection dog sniff around the exterior of a motor vehicle stopped for a routine equipment violation, a law enforcement officer had to have a reasonable, articulable suspicion of drug-related criminal activity. Because the officer indicated that there was no reason to suspect drug-related activity, there was not an articulable basis to suspect criminal activity.
Second, the court concluded that there was no probable cause to believe that the center console contained illegal drugs or evidence of criminal drug-related activity. The state argues there was probable cause to suspect that the center console contained illegal drugs based on the following uncontested facts: LE’s immediate observation of an open beer bottle in plain sight; Christianson’s admission to using methamphetamine a few days earlier; inconsistencies between Christianson’s and the passenger’s statements regarding their whereabouts that day; Christianson’s imperfect performance on the Romberg test; handler’s testimony that he detected the odor of burnt marijuana prior to the dog search; and the recovery of marijuana and paraphernalia from the passenger. The trial court made no findings regarding whether Christianson was impaired at the time of the search. Nor did the trial court analyze whether Christianson’s imperfect performance on the Romberg test is sufficient to suspect him of driving while impaired. Moreover, the district court did not find credible handler’s testimony that he smelled the odor of burnt marijuana. Because this court does not make its own findings of fact and defers to the trial court’s credibility determinations, the appellate court cannot consider the circumstances regarding Christianson’s imperfect performance on the Romberg test or testimony regarding marijuana in our analysis. The remaining circumstances would not lead a reasonable officer to suspect that the center console concealed illegal drugs or evidence of drug-related criminal activity.
The state made an alternative argument in support of the suppression motion, based on case law allowing a warrantless search if the search was conducted incident to a lawful arrest. The trial court did not need to address this alternative argument in light of its decision to deny the motion on the basis of the automobile exception. Police may “search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or [if] it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant. Under Gant, “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'” Because consideration of the state’s alternative warrant exception requires additional findings of fact, the appellate court was unable to review the argument and remanded the matter for the trial court to make additional findings on this issue.
Note: Here, the court started to mix up the issue of sniff and search and referred to the K9’s function as both a sniff and a search interchangably. This is why language discipline is so important. Not sure why the trial court was dismissive of the odor of marijuana, but the upshot of this record is that the trial court did not make all the findings necessary to rule on the issue of reasonable suspicion of narcotics offenses or a DUI. Again, it’s really important that proper foundations are laid in the trial court and the findings made by the trial court be clear. That’s basically the prosecutor’s job, but most struggle with that. Make sure you have that meeting prior to testimony, even if it’s five minutes before testimony. At least the state got a remand on the alcohol container incident to arrest argument.
Gannon v. Medina Twp. (Ohio 2022) 2022 U.S. Dist. LEXIS 136514
Traffic Stop; Qualified Immunity; Monell Liability
LE stopped Gannon’s car because it had been reported stolen. The suspect was male and LE’s computer showed a picture of the driver as the suspect. It had also been reported that the driver had warrants for violent crimes. LE then ordered driver (Gannon) to turn the car off and put the keys on the roof. Gannon eventually complied, turning the car off and threw the keys out the driver’s side window. Back up had been requested and arrived in the form of several more LE including a K9 team. Gannon was instructed to get out of the vehicle, but he refused and told LE to go f*** themselves. Handler put K9 on a 30 foot lead and gave Gannon a total of nine K9 warnings. The K9 was also in the line of sight of Gannon (and probably barking like mad). When Gannon gave LE the finger, handler instructed K9 to bite Gannon. However, only the driver’s window was open so the K9 was unable to bite Gannon. The LE present then basically swarmed the car and handler opened the driver’s side door, gave K9 the command to bite Gannon, and physically attempted to pull Gannon out of the vehicle. K9 bit Gannon in his left thigh while handler attempted to pull Gannon out of the vehicle by his left arm. Gannon continued to refuse to exit the vehicle, holding on to the interior of the vehicle with his right hand. According to handler, Gannon was resisting and trying to push handler’s hands away. Another LE stated in his police report that Gannon “resisted and held onto the steering wheel refusing to get out of the vehicle.” Handler grabbed Gannon’s left arm with his left hand, grabbed Gannon’s hair with his right hand, and pulled him out of the vehicle and onto the ground.
Handler testified that Gannon landed on K9 which caused the K9 to lose his bite. K9 moved to the other thigh and bit Gannon for the second time. After ensuring that there were no other individuals in the vehicle, LE assisted the officers’ efforts to handcuff Gannon. LE can be heard saying “stop fighting” and “don’t resist.” In his police report, LE states that he placed his knee and hands on Gannon’s legs “to prevent him from kicking” and ordered Gannon “not to resist and not to fight, to which he complied.” At some point, the other officers succeeded in placing Gannon in handcuffs. When he “was advised that Mr. Gannon was secured in handcuffs by the other officers and no longer resisting,” handler “put a positive control on K9’s collar and conducted a lift off of the bite.”
A search of Gannon’s vehicle revealed several dollar bills and an open container of alcohol. No weapons or contraband were found in Gannon’s possession. LE provided first aid until medical help arrived in about 10 minutes.
Here, the police agency argued that there is no genuine issue of material fact that handler’s use of force was objectively reasonable and that no constitutional violation occurred. LE emphasized that, at the time of the stop, handler had been advised that (1) the vehicle was stolen; (2) an arrest warrant had been issued for Gannon for felony domestic violence; and (3) Gannon was the subject of a BOLO. LE noted that handler repeatedly asked Gannon to exit the vehicle and expressly warned him that, if he failed to do so, K9 would be deployed and Gannon would “get bit.” LE asserted that Gannon chose not to comply and, as a result, “his immediate future transpired precisely as handler predicted in his warning.” In light of the above, LE argued that handler is entitled to qualified immunity because the “the totality of the circumstances and the information within handler’s knowledge at the time he released K9 suggest that his actions were reasonable . . . and necessary to obtain the goal of successfully apprehending a violent and resistant suspect, like [Gannon].”
In response, Gannon argued that he was “subjected to a level of excessive/gratuitous force that shocks the conscience of society.” He maintained that the level of force used by handler in releasing K9 was not reasonable because “[Gannon] did not commit an aggressive act; did not demonstrate an act of force; did not possess a deadly weapon; [and] did not brandish a deadly weapon or make any verbal threats.” Rather, Gannon asserted that he was “helpless” and merely noncompliant with orders from the officers. As such, Gannon argues, he was only “passively resisting” and handler’s actions were excessive and unwarranted under the circumstances. Gannon did not direct this appellate court’s attention to any evidence to support these assertions.
At the outset, the appellate court notes that it is not clear whether Gannon is challenging (1) handler’s use of K9 to remove him from the vehicle; and/or (2) handler’s failure to prevent K9 from continuing to bite him once he was out of the vehicle and on the ground. Construing Gannon’s filings liberally, the Court will assume that Gannon is raising both issues and address them separately, below.
1) The decision to deploy K9 to remove Gannon from vehicle.
After analyzing the case under the Graham factors, the court found the decision to release K9 reasonable. Handler knew that Gannon was wanted for vehicle theft and felony domestic violence. It was dark and therefore LE could not determine if there was anyone else in the vehicle. Nor could the officers determine if Gannon and/or any other possible occupants of the vehicle were armed. Gannon was verbally hostile to the officers and refused to respond to the officers’ repeated commands to exit the vehicle. Gannon did not argue that these offenses would not be considered severe or that the first Graham factor would otherwise weigh in his favor. The Court found that a reasonable officer would consider these alleged offenses to be serious (and, in the case of felony domestic violence, violent) crimes and associated with an increased risk of danger. In other words, Gannon was “an unknown quantity and act[ing] unpredictably,” and deploying a K9 in similar cases was held to be reasonable.
The court also found that the immediate threat factor weighed in favor of LE. LE were aware that Gannon was driving a stolen vehicle and wanted on felony charges. It was dark and the officers could not determine whether Gannon was alone in the vehicle. Nor could the officers determine if Gannon and/or any other possible occupants of the vehicle were armed. Gannon was verbally hostile to the officers and refused to respond to the officers’ repeated commands to exit the vehicle. In other words, Gannon was “an unknown quantity and act[ing] unpredictably.” Under similar circumstances, courts have found that this factor weighs in favor of the use of a police dog to effectuate an arrest.
Gannon claimed that at that point, he was helpless and unarmed. However, a reasonable officer would not have known that Gannon was unarmed; in fact, LE had to assume Gannon was armed for their own safety. The videos from body cams prove that Gannon understood what was being said to him and comply. The Court acknowledged that the fact that the vehicle was turned off and the keys were on the ground weighs somewhat against a finding of an immediate threat. However, these facts do not stand in isolation and must be considered along with all the other circumstances facing the officers at the time. Given the serious nature of the crimes of which Gannon was suspected, the dark conditions and uncertainty over whether Gannon was armed, and Gannon’s belligerence and refusal to respond to the officers’ repeated commands, the Court found that, overall, it was objectively reasonable for handler to believe that Gannon presented an immediate threat to officer safety.
The third Graham factor was a closer call, according to the appellate court. Gannon argued that this factor weighs in his favor because he was not actively resisting and, rather, was “just noncompliant in complying with orders from the police.” Handler argues that Gannon has not come forward with any evidence that he was, in fact, only passively resisting. By contrast, handler maintains, Gannon “continued to resist through the course of the bites he received from K9” and “the testimony of the arresting officers through their affidavits establishes that the use of force applied to Mr. Gannon was appropriate and correlated to his escalating and persistent resistance.”
Still, the court found that Gannon was actively resisting when handler made the decision to deploy K9 to remove him from the vehicle. Although Gannon was not physically struggling with or threatening the officers, the video footage clearly shows that he was verbally hostile and repeatedly failed to comply with their multiple commands to exit the vehicle. Faced with similar circumstances, the Sixth Circuit has found that a suspect was “actively resisting.”
Here, Gannon argued with the officers, telling them to “go f*** themsel[ves]” and giving them the middle finger. Handler showed Gannon the dog and told him at least nine times (over a period of at least two and a half minutes) to “get out of the car or you will get bit.” Gannon persistently and repeatedly refused to comply. Taken together, the Court found that Gannon’s verbal hostility and persistent refusal to comply “puts him just over the line into the active-resistance category” for purposes of handler’s decision to deploy K9 to remove Gannon from the vehicle.
In addition, the Court finds that Gannon continued to actively resist while handler, K9 and the other officers were trying to physically remove him from the vehicle. As noted above, handler avers that he opened the car door, gave K9 the command to bite Gannon, and physically attempted to pull Gannon out of the vehicle, first by his arm and then by his hair. Although not entirely clear from the video footage, it appears to have taken approximately sixteen to twenty seconds to get Gannon out of the vehicle. The Court assumes, for purposes of the instant motion, that K9 had a bite hold on Gannon’s left leg during this entire time period. Handler avers that, while he and K9 were attempting to get Gannon out of the car, Gannon physically resisted by holding on to the interior of the vehicle with his right hand and trying to push handler’s hand away with his left hand. LE also stated, in his police report, that Gannon “resisted and held onto the steering wheel refusing to get out of the vehicle.”
Given the Court’s evaluation of the Graham factors, and considering the totality of the circumstances, the Court finds that it was reasonable to deploy K9 because Gannon was suspected of serious crimes (including two felonies), potentially armed, verbally hostile to the officers, and refusing to comply with the officers’ repeated commands and warnings. Accordingly, the Court finds that handler’s decision to deploy K9 and use him to assist in physically removing Gannon from the vehicle did not constitute a constitutional violation. Handler is entitled to qualified immunity with respect to this claim.
2) Use of K9 while Gannon was on the ground.
The Court first found that the first and second Graham factors weigh in handler’s favor with regard to this phase of the arrest, for the same reasons discussed at length above. Specifically, Gannon was wanted in connection with several serious felony charges, he had been verbally belligerent and repeatedly refused to comply with officer commands, and it was unknown whether he was armed. Thus, the Court found that the severity of the crime and immediate threat factors weigh in favor of handler with respect to K9’s continued hold on Gannon after he was removed from the vehicle.
The third factor was whether Gannon was continuing to resist when taken to the ground by LE and K9. The Court first found that it was reasonable for handler to have K9 maintain his bite hold on Gannon before he was handcuffed. Handler has come forward with evidence that Gannon was actively resisting, i.e., the video recording in which LE can be heard saying “stop fighting” and “don’t resist.” While Gannon states (summarily) in his briefing that he was “helpless” and passively resisting, he has not come forward with any evidence to support this assertion. Nor does he make any reasoned argument that the video recording should be construed as showing that he was passive during this phase of the arrest. Accordingly, and given the potential dangers posed by Gannon (including the possibility that he was armed), the Court found that it was objectively reasonable for handler to have K9 maintain his bite hold until Gannon was handcuffed. This corresponds to when an unidentified officer can be heard saying “secured.”
It was not clear when handler released K9’s bite hold. Given handler’s statement that he released K9 “when he was advised that Mr. Gannon was secured in handcuffs and no longer resisting,” it is reasonable to assume that handler released K9 immediately after another officer in the video recording is heard saying the word “secured.” However, for purposes of the instant Motion only, the Court will draw all reasonable inferences in Gannon’s favor and presume that K9 continued to maintain his bite hold on Gannon’s right thigh after Gannon was handcuffed, until the moment when handler can be heard issuing a command to K9. This corresponds to about twenty seconds after the officer is heard saying “secured.” Thus, and in the absence of any meaningful or specific argument from Gannon on this point, the Court presumes that K9 maintained his hold on Gannon’s right thigh for approximately twenty seconds after he was handcuffed.
Gannon has not sufficiently argued, or cited any legal authority, that allowing a bite hold to continue for approximately twenty seconds under the circumstances presented constitutes a constitutional violation under Sixth Circuit precedent. To the contrary, the Sixth Circuit has upheld the granting of qualified immunity where there has been a slightly less, but similar delay. At most, one could argue that handler could have released K9’s bite hold a few seconds sooner. “But that kind of fine-sliced judgment call amid ‘tense, uncertain, and rapidly evolving’ circumstances just isn’t the stuff of a Fourth Amendment violation.” And, even assuming it was a constitutional violation to allow K9 to maintain a hold on Gannon’s leg for this length of time, Gannon has not demonstrated that it is a clearly established violation. Indeed, Gannon does not cite and apply any Supreme Court or Sixth Circuit authority to the facts of this case to show that handler should have known his use of force was unreasonably prolonged under the circumstances presented.
Accordingly, the Court finds that handler’s decision to maintain K9’s bite hold after Gannon was removed from the vehicle did not constitute a constitutional violation and, even if it did, Gannon has not shown that it amounted to violation of a clearly established right. Handler is therefore entitled to qualified immunity with respect to this claim.
Gannon also asserted a Monell claim against the police agency. The court held that since handler is entitled to summary judgment and that no underlying constitutional violation occurred, the agency is entitled to summary judgment on Gannon’s Monell claims.
All other allegations were dismissed.
Note: In this case, body cam footage was the cornerstone of LE’s case, as the court can rely on that (it is a neutral witness). Once the court found qualified immunity for the handler, the rest of the allegations were easily dealt with.
United States v. Jensen (Hawaii 2022) 2022 U.S. Dist. LEXIS 137621
Alert as Probable Cause; Search Incident to Arrest; Detention of Property for Investigation
LE was called to a hotel when housekeeping found that occupants had been smoking in the room. Hotel security determined that the smoking paraphernalia and drugs on a piece of furniture between the beds indicated that the occupants had been smoking controlled substances. The hotel wanted the occupants trespassed. A registered guest in the room was Jensen. The room was secured until a SW could be obtained. Hotel staff did a little sleuthing and found a photo of Jensen on a Facebook page. LE had prior experience with Jensen. Hotel indicated that a female (Galletes) had attempted to enter the room a couple of days earlier (not the co-registered guest who was also a female named Chandler). A SW was granted for the hotel room.
After serving the warrant and confirming that the items were contraband, LE was informed that the occupants were driving past the hotel in a white Mercedes. The Mercedes was found in the parking lot, but no one was inside. However, a female (not Chandler) and Jensen were in the hotel trying to access the room. LE found them and stopped them. Jensen had a red backpack. LE made contact with him near a planter. When the officer who saw Jensen in the hotel got to LE who had detained Jensen, he saw the red backpack in the planter. Jensen ID’d the Mercedes as his car. He was arrested. Chandler wandered onto the scene and was also arrested.
Handler then returned to the police station to obtain K9. He drove with K9 back to the hotel. Handler conducted a pre-screen of an area near the backpack to confirm the area did not contain the odor of narcotics. He then moved the backpack several feet to the pre-screen area before conducting the K9 screen (they mean sniff but at least they didn’t call it a search). K9 indicated that there was the presence of the odor of narcotics on the exterior of the backpack. Handler then took K9 to the Mercedes and conducted a K9 screen (there was a positive indication of controlled substances on the Mercedes, one assumes, but the opinion did not actually say this). This and other information was used to obtain search warrants for the backpack and the Mercedes, which were executed the following day.
There was a delay between Jensen’s arrest and the arrival of the K9 and Jensen essentially contends that the police unreasonably seized his backpack and the Mercedes while the police awaited the arrival of a narcotics detection canine and lacked probable cause to do so. The facts do not support the argument.
The Court first turns to the question of whether the circumstances leading up to the K9 sniffs amounted to a seizure requiring probable cause. The Supreme Court has explained that police can engage in a brief detention of property for further investigative purposes, analogous to a Terry stop:
[W]e conclude that when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope. The detention of the Mercedes and the backpack in this case was this very type — a “brief” one “to investigate the circumstances that aroused [officers’] suspicion[s]” — and therefore did not rise to the level of a seizure requiring probable cause.
When evaluating whether a detention of property is a seizure requiring probable cause, the Supreme Court has counseled courts to consider the duration and intrusiveness of the seizure. The Court in previous cases has examined three factors determining whether an investigatory detention is reasonable: the amount of time, the continued diligence of the investigation, and the overall impact the detention has on the individual.
1. Length of Time
The length of time of a detention of property affects the seizure analysis. “[T]he brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion.”
The Ninth Circuit somewhat clarified that line when it determined that a 45-minute detention of property prior to a dog sniff did not amount to a seizure requiring probable cause. Here, the K9 arrived on the scene to sniff the backpack 38 minutes after Jensen was initially detained. This length of time is well within the 45-minute window the Ninth Circuit outlined. The sniff of the Mercedes occurred 17 minutes after the backpack sniff, but a total of 55 minutes after Jensen was initially detained. The Court must nonetheless consider any justifications for that length of time.
2. Continued Diligence Of The Investigation
The justification for the length of detention should be evaluated by examining whether the police diligently pursued their investigation during the detention. Courts allow for “common sense and ordinary human experience” to govern when looking for any delays that are unnecessary to the legitimate investigation. Longer detentions may simply be the result of a graduated response to the demands of a particular situation.
Here, 38 minutes after the officers arrested Jensen, they conducted a canine screen of the backpack. Just 17 minutes later, during which time the officers had arrested Chandler, K9 sniffed the Mercedes. Neither the backpack nor the Mercedes were removed from the scene, and the initial 38-minute delay was warranted by the need to obtain K9 and bring him to the hotel. During the 55 minutes between Jensen’s arrest and the dog sniff of the Mercedes, officers discovered the backpack, arrested Chandler, and conducted a dog sniff of the backpack. As such, they were diligently pursuing the investigation during the detention of the property.
3. Impact of the Detention
Lastly, courts look at the overall impact of the investigatory detention on the individual. Here, Jensen was properly under arrest at the time his property was detained for investigation. Because of his arrest, he was effectively unable to go anywhere or do anything with either the backpack or the Mercedes; in other words, the dog-sniffs did not cause Jensen’s inability to leave with either the backpack or the Mercedes. Moreover, the Mercedes, located in the parking lot of the hotel, was in a public place. Nor does it seem that anyone else was affected by the seizure of the property and thus, the 55-minute detention had minimal impact on Jensen’s Fourth Amendment rights.
At the hearing, Jensen contended that the canine officer illegally moved the backpack immediately prior to the canine sniff when he took the backpack and placed it in the nearby pre-screened area. So, he argued, the officer illegally seized it. There are two problems with this argument. First, Jensen arguably abandoned the backpack and no longer had a reasonable expectation of privacy in the backpack in any event. Second, the fact that the backpack was moved a short distance does not appear to affect the analysis here. It was not removed from the scene, and only moved several feet away for the purposes of ensuring a K9 screen uninfected by other potential odors of narcotics. The motion to suppress was dismissed.
Note: Both parties were placed under arrest as there was evidence that both were involved in the use of controlled substances based on what was found in the room by housekeeping. This is a different situation from a traffic investigation with no reasonable suspicion of any additional crimes. The evidence in the hotel room gave reasonable suspicion to detain on drug offenses and deploying a K9 is an acceptable way to further that investigation. Once probable cause is met, you have the ability to fully investigate as long as you do so reasonably diligently.
United States v. Acuna-Gastelum (Kansas 2022) 2022 U.S. Dist. LEXIS 138235
Traffic Stop; Alert as Probable Cause; Prolonged Detention
Two LE were on duty; one was a handler. LE got a call from the drug task force with a tip on a vehicle suspected of smuggling drugs. LE gave notice to handler that he would need to respond if LE stopped this vehicle on a traffic offense. Soon, a vehicle matching the description passed LE, going slower than the speed limit. It also failed to signal a lane change when the lane it was in ended. LE, believing this to be a violation, pulled the car over. Both occupants said they spoke only a little English. LE collected the appropriate documents (some were from Mexico) and had the driver accompany his to his cruiser to contact an interpreter service. The service was busy but LE was next in line. During the wait, LE tried to confirm the documents he had. While this was going on, handler arrived, spoke briefly with LE, and then had passenger step out. Handler then ran his K9 around the vehicle to sniff it. Within 30 seconds, K9 alerted on the vehicle. LE was still waiting on an interpreter.
Handler then got a jacket for passenger from the trunk and left the trunk open. The interpreter became available so additional questions were asked and Acuna (driver) said he didn’t have any marijuana but a family member might have smoked in the car. There was a gas can in the trunk which raised additional suspicion because long haul smugglers often have extra gas so they don’t have to stop at gas stations. There was a strong odor of air freshener and many dangling air fresheners (also a sign of drug trafficking). When the gas cans were examined, they contained large amounts of controlled substances.
There was a long discussion on whether the traffic stop was justified under the traffic statutes of this state and the court concluded that there was.
Moving on to the K9 sniff, occupants contended handler and his K9 unconstitutionally searched the vehicle because “the canine repeatedly touched [Acuna’s] vehicle when searching for narcotics,” which was a “governmental trespass” because it involved the physical touching of the vehicle. For the reasons that follow, the court finds that the K9 sniff of the car was reasonable and did not violate occupants’ Fourth Amendment rights.
First, the court finds no authority for the proposition that the momentary light touch of the exterior of a vehicle or other personal conveyance by a dog — or a person, for that matter — on a public roadside, amounted to a trespass at common law. Nor can this particular touching — which obviously caused no damage whatsoever and is barely discernible from a video of the incident — reasonably be said to have infringed in any meaningful way upon Acuna’s property rights in the vehicle. This momentary touching is materially different from the officers’ physical intrusion to conduct a search on the porch of a home in Jardines and even from the physical attachment of a tracking device to the undercarriage of a vehicle in Jones. It is one thing to say property law has conferred upon the owner of a vehicle the right or reasonable expectation of excluding others from physically attaching a tracking device to his car without consent. But it is qualitatively different to suggest property law has conferred a right or expectation of precluding any person or dog from momentarily touching the exterior of a vehicle or other conveyance located in a public place.
A second reason for the court’s conclusion is that there is no evidence that the touching of the car in fact aided the dog in detecting the odor of narcotics. The video indicates K9 began raising up when he was close to the rear passenger door because he detected an odor of narcotics in the air, and he almost immediately sat down. While the dog’s closeness to the vehicle undoubtedly aided in his detection of an odor emanating from the car, it is unlikely that the source of the odor was on the exterior surface of the vehicle itself, and it is implausible that the dog’s touching of the vehicle materially aided the dog in any way in detecting the odor. The evidence shows that with or without a touch, the dog would have alerted. Because the evidence shows no information was obtained from any touching of the exterior of the car by the dog, the sniff was not an unreasonable search within the meaning of the Fourth Amendment.
There was no prolonged detention here because the evidence showed the dog sniff did not delay the legitimate mission of the traffic stop. Acuna was unable to produce a driver’s license and LE was working diligently to obtain information related to the traffic stop, including license and warrant information and the services of an interpreter, at the time the dog sniff was concluded.
In sum, the court finds the traffic stop of the vehicle, the detention of the occupants and the dog sniff of the car were all reasonable under the Fourth Amendment. K9 was shown by the evidence to be a trained and reliable indicator of the presence of unlawful drugs, and his alert was sufficient, together with the other facts known to the officers at the time, to provide probable cause to search the vehicle’s interior. The evidence shows no Fourth Amendment violation and no basis for suppression of evidence.
Note: This is a great example of teamwork with the K9 team getting the heads up that a car may need to be sniffed while LE was investigating a traffic violation. The K9 team was close by and could arrive quickly and perform the sniff prior to the conclusion of the traffic investigation.
Negethon v. Wilkens (Wisconsin 2022) 2022 U.S. Dist. LEXIS 138616
Excessive Force; Reasonable Deployment
Negethon was a passenger in a car stopped by LE. He shoved the driver out and took off with the car. Later, LE saw a woman who they believed lived with Negethon. She said that Negethon was at the home with two of her children. She also informed him that Negethon owned and stored a sawed-off .22 rifle at the home and had made comments about shooting, fighting, and running from officers before he would go back to prison.
LE surrounded the house and for reasons unknown, Negethon came out of the house. The outside temperature was very cold. Several heavily armed LE including a K9 team surrounded him, but he refused to obey commands. A negotiator talked to him for 24 minutes and got nowhere. Negethon, who knew he was going back to prison, wondered aloud multiple times if he should make the officers shoot him. He stated that he had nothing to live for and acknowledged that his option to die would be over once he surrendered. LE assert that Negethon stated he had a knife. Negethon denies he said that, although he acknowledges that he said he would “gut” the police dog if it attacked him so officers would have to shoot him.
LE realized negotiation was not going to work and they as well as Negethon were getting cold. They moved toward Negethon and two rubber bullets were shot at him. Both missed. However, Negethon turned and ran. Having already warned Negethon about releasing the K9, handler deployed the K9. K9 easily caught up to Negethon and bit him in the back, knocking him down. This caused K9 to lose his bite, but by then Negethon was surrounded by LE and ultimately subdued without additional intervention by the K9.
Negethon asserts that handler used excessive force when he ordered K9 to apprehend him because, according to Negethon, he ran only because LE had shot at him. Handler disputes Negethon’s claim, explaining that it was reasonable to order K9 to apprehend Negethon because he was fleeing after nearly thirty minutes of officers ordering him to surrender and handler believed Negethon posed a threat to the officers.
When evaluating a claim of excessive force, the Court applies an objective reasonableness test, considering the reasonableness of the force based on the events confronting the defendant at the time. In conducting this inquiry, the Court considers: “1) the severity of the suspected crime; 2) whether the suspect poses an immediate threat to the officer on the scene or others; and 3) whether the suspect is actively resisting or attempting to evade arrest by flight,” citing Graham v. Connor.
According to handler, at the time of the encounter, Negethon was suspected of numerous serious crimes. He had multiple felony warrants for his arrest, and it had been reported that he had fled from officers just a couple days prior. Officers also had been informed that Negethon, who was on extended supervision, had a gun in his home, which he had told another person he would use to avoid going back to prison. It was also reasonable for officers to conclude that Negethon posed an immediate threat to them and himself. Negethon had made multiple threats to gut or kill K9, which suggested that he had a knife in his possession. He also made several desperate statements about preferring death to giving up his freedom and going back to prison.
After numerous warnings that K9 would bite Negethon if he did not comply with orders to surrender, handler released K9 only after Negethon began to flee. Negethon asserts that he ran because he feared for his life after LE shot at him, but why Negethon chose to flee or handler’s belief about why Negethon was fleeing are irrelevant to the Court’s analysis. What matters is that, after nearly thirty minutes of refusing to comply with orders to surrender and after several threats against K9 and statements about preferring death to prison, Negethon ran away from officers toward the cover of his car and/or house. In light of these circumstances and given that he had a substantial head start on the officers, no jury could reasonably conclude that handler acted unreasonably when he ordered K9 to apprehend Negethon. Handler is entitled to summary judgment.
Note: This was a successful deployment even though the K9 got knocked off the bite. Be sure to log these types of encounters in your deployment log along with any deployment where just the presence of your K9 resolves the situation.
Sligh v. City of Conroe (Texas 2022) 2022 U.S. Dist. LEXIS 139452
Excessive Force; Qualified Immunity; Monell Liability
Background: Sligh alleges that a change in her psychotropic medication caused her to become “suicidal and cut herself with a foot scraper which has a razor blade in it” in the early morning hours. She also says that her boyfriend called 911 to report that she’d hurt herself and then left the house on foot headed into a wooded area when he tried to take her to the hospital. She asserts that her boyfriend didn’t report a crime or that she had weapon.
LE including K9 team responded to the call. They each wore bodycams, which recorded the entirety of their interactions with Sligh. Sligh’s allegations contradict such video in certain respects. As noted below, such contrary allegations are properly disregarded. For as shown in the first thirteen minutes LE’s bodycam video, the events proceeded substantially as follows.
0:00:20 to 0:01:50. Handler arrives with a K9. Other LE is already on the scene. They are informed by other officers of report by Sligh’s boyfriend that a suicidal Sligh wanted to “die in peace,” was bleeding heavily after having cut herself, had been drinking heavily that night, and left on foot when he tried to take her to the hospital.
0:03:56 to 0:05:21. After brief survey of the neighborhood, handler retrieves the K9 from his cruiser, leashes it, and begins to search for Sligh in the areas surrounding her home.
0:09:10 to 0:10:27. Handler and the K9 enter into a wooded area with dense underbrush, searching by flashlight. He notes that he sees her but can’t reach her.
0:10:45 to 0:11:40. LE arrives, and handler informs him of the situation. Handler then states that Sligh “is taking off.” He proceeds with the K9 to follow her into the underbrush.
0:11:40 to 0:12:02. Handler catches up to Sligh in the underbrush beside a fence. He shines the flashlight in her face as the K9 barks and strains towards her on a leash. She approaches towards handler, who loudly says, “Wait, wait, wait, don’t! Do not walk towards me! Do not walk towards me! The dog will bite you!”
0:12:00 to 0:12:19. Sligh can be heard to acknowledge the commands. She then refuses multiple commands by LE to place her hands behind her back, to which she responds with profanity. She also slaps at LE’s hands and arms, attempting to pull away.
0:12:19 to 0:12:30. A physical struggle begins between Sligh and LE. She strikes him at least once and then breaks free.
0:12:30 to 0:13:33. Handler releases the K9, which bites Sligh’s upper thigh. Sligh screams in obvious pain. Handler commands the K9 multiple time to release its bite. It doesn’t immediately comply and instead bites Sligh twice more on the upper leg and ankle.
Sligh was eventually arrested. She maintains that handler and LE misrepresented in their reports that she’d “resisted arrest, tried to escape, and assaulted LE.” She was taken to the hospital for stitches and other treatment for the dog bites, which wounds later became infected.
Sligh asserts a claim against handler for excessive force. The elements of such claim are (i) an injury, (ii) the injury resulted directly and only from a use of force that was clearly excessive, and (iii) the excessiveness of the force was clearly unreasonable. The use of excessive force must also be intentional.
Sligh can’t demonstrate violation of a constitutional right on these facts. She was uncooperative at the time of her arrest—and indeed, responded with hostility to warnings that the K9 would bite if approached, actively resisted arrest, assaulted LE during his attempt to handcuff her, and failed to comply with either officer’s instruction. Handler’s use of the K9 under these circumstances can’t be said to be unreasonable.
Neither can it be said that his subsequent inability to instantly detach the canine somehow made its use unreasonable. True, the time from bite to detachment amounted to about sixty-two seconds, but this was in the midst of Sligh’s own continued struggles and multiple instructions for the K9 to detach—with the initial bite occurring only because Sligh refused to comply with orders and physically resisted arrest.
Sligh also can’t establish that any such putative right was clearly established so as to be known by a reasonable officer. In particular, she offers no “clearly established law indicating that an officer violates the Fourth Amendment when he loses control of his canine, which proceeds to injure a suspect.”
Sutton is entitled to qualified immunity.
b. Section 1983 (Monell Liability)
Sligh contends that the City of Conroe maintains “an unwritten policy of routinely tolerating the infliction of serious bodily injury via dog biting.” She specifically maintains that the City of Conroe violated certain of her constitutional rights by having official, unwritten customs of using excessive force by way of “find & bite attack-trained dogs.” And she claims that its vague and inadequate written polices, failure to properly train and supervise, and ratification of Sutton’s conduct directly led to the deprivation of her constitutional rights.
The standards here are familiar:
[M]unicipal liability under Section 1983 doesn’t extend merely on a respondeat superior basis. The plaintiff must show that an official policy promulgated by the municipal policymaker was the “moving force” behind the violation of a constitutional right. “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”
As to policies and procedures, Sligh fails to establish the necessary elements of her claim that the City of Conroe has a policy and procedure to use excessive force. Most importantly, it’s been determined above that no violation of any constitutional right occurred. But Sligh also doesn’t identify either the official policy or the municipal policymaker necessary to establish that the City of Conroe was the “moving force” behind the alleged violations of her constitutional rights. She instead argues in utterly conclusory terms that its policies are at present inadequate, broad, and vague. That’s insufficient.
As to ratification, the Fifth Circuit holds, “Ratification in this context requires that a policymaker knowingly approve a subordinate’s actions and the improper basis for those actions. Otherwise, unless conduct is ‘manifestly indefensible,’ a policymaker’s mistaken defense of a subordinate who is later found to have broken the law is not ratification chargeable to the municipality.” Again, there’s no constitutional violation in the first instance. And beyond that, there’s only conclusory allegation of a policymaker’s knowing approval of actions and the improper basis for those actions.
As to failure to train and supervise, the elements are the same for each, being (i) the training procedures of the municipality’s policymaker were inadequate, (ii) the policymaker was deliberately indifferent in adopting the training policy, and (iii) the inadequate training policy directly caused the plaintiff’s injury.
Sligh fails to establish the necessary elements, even beyond her failure to show an underlying constitutional violation of right. She in no way alleges facts to establish that the City of Conroe was deliberately indifferent in adopting a training policy, the inadequacy of which directly caused her injury. This is mainly so because she fails even to identify the subject policy. Nor is there any allegation either identifying a municipal policymaker or linking municipal action to that policymaker. She alleges only a single, isolated incident pertaining to use of a police dog to assist officers during her apprehension. And no allegation specifies any similar incidents. That’s again conclusory and insufficient.
The claims for municipal liability under Section 1983 will be dismissed.
Note: This is the worst type of case; mental illness and an indication that the person is going to harm themselves with a weapon they possess as well as a refusal to obey commands. It’s not going to end well for the mentally ill subject. While the court here decided that the deployment of the K9 was reasonable, note that in California, the new use of force laws indicate LE cannot use deadly force on a suicidal subject. Deployment of a K9 has never been held to be deadly force (like a gun is), but this does need to be considered. Here, the court said that the deployment was reasonable because of her actions against LE; not herself. A similar situation may meet the California standard or it may not. It’s going to depend on the facts.
The other take away is that the court was not concerned with a 63 second delay in releasing the K9. This is not a green light to extend a K9 bite, but when there are facts that indicate that the subject’s behavior is contributing to the delay, this court held that the duration of the bite was not concerning.
State v. Johnson (Connecticut 2022) 2022 Conn. Super. LEXIS 1885 Unpub.
Traffic Stop; Odor of Marijuana as Probable Cause
LE saw Johnson violate the lane laws and have dark tint. LE pulled him over. Johnson had a passenger. LE asked both men for identification and vehicle documentation. He explained that the reason for the stop was based both on Johnson’s failure to maintain lanes and the Lexus’ darkly tinted windows.
After returning to his patrol vehicle, LE requested backup. Approximately two minutes later, while performing a records search on both men, handler, accompanied by his K9, pulled alongside LE’s vehicle. LE informed handler that both Johnson and his passenger were cooperative, however, that he had detected the odor of marijuana. Responding to handler’s inquiry about whether the marijuana seemed “raw, burnt or kinda both?”, LE stated that it smelled burnt.
Thereafter, both officers approached the Lexus, at which time Johnson was ordered to exit the vehicle. He was then asked if there was either any marijuana or weapons in his vehicle or on his person, to which he confirmed that there was marijuana inside the Lexus. LE subsequently performed a search of Johnson’s person, which revealed no weapons or contraband. Johnson was then ordered to wait on the embankment while handler retrieved his K9. Although Johnson was initially left unrestrained, he was ultimately placed in handcuffs after walking toward his Lexus and attempting to open the rear driver’s side door.
Once both the defendant and his passenger were secured, handler began searching the Lexus with K9, who, almost immediately signaled on the center console, before then jumping into the backseat and alerting on a lunchbox located behind the driver’s seat. A small Ziplock baggie containing marijuana and a marijuana grinder was discovered inside the center console. Handler then grabbed the lunchbox, which felt heavier than expected and, after being shaken, seemed to contain a metal object. Opening the lunchbox, handler discovered one black Davis Industries 32 caliber Derringer handgun, forty-three loose 32 caliber rounds, and several credit cards all bearing Johnson’s name.
The court first found that the traffic stop was valid.
The the court held that there can be little doubt in the present matter that the subject warrantless search was supported by sufficient probable cause. Specifically, based on LE’s credible testimony about smelling the odor of marijuana emanating from the Lexus coupled with the defendant’s own admission that marijuana was in fact located inside the vehicle, an exceedingly high probability existed that contraband was to be found therein.
Note: This is interesting, in that the K9 was used during a simultaneous search by the handler. Probable cause had already been established so deploying the K9 in the car was legal.