Meyer’s K9 Law

[ View Archives ]

Note from Editor: In this edition of the Update for Meyer’s K9 Law, I have covered new cases from August 2023 (included are cases that were decided in the previous month; however, my search program only retrieves cases that are published and sometimes that takes a month or two. That then causes a delay in my having access to the case). Also, a caution here: some cases are unpublished (“Unpub.”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. Also, the arguments in these cases can be used; the case just can’t be cited as precedent in court.

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 always changing quickly. As always, check with your local prosecutor to make sure how to proceed in your state.

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

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

MARIJUANA UPDATE FROM AUGUST 2023 FOR SEPTEMBER 2023 UPDATE

FEDERAL

U.S. health officials have made a new recommendation for potentially changing marijuana’s status under federal drug policy, sending their review to the Drug Enforcement Administration to make a final determination.

STATES

As potential changes to federal hemp policy are hammered out in the 2023 Farm Bill, lawmakers may look to recent regulations promulgated in Maryland, Minnesota and New York, which provide several possible regulatory frameworks for hemp and synthetic cannabinoids.

After Ohio voters defeated a proposal that would have made it harder to pass any citizen-initiated constitutional amendment, a state ballot measure to legalize adult-use marijuana has fairly good chances of passing — but advocates still face a long road ahead.

Ohioans will vote in November on a proposed law that would legalize the sale, possession and home growth of cannabis in the Buckeye State, according to a letter from Ohio’s Secretary of State Frank LaRose affirming that the initiative has the required signatures for the vote.

Marijuana reformers have once again kicked off the process to put an adult-use legalization proposal before South Dakota voters in the next general election, according to the state attorney general’s office.

In New York, an appellate court held that, contrary to the defendant’s contention, while Penal Law § 222.05(3), which became effective on March 31, 2021, provides that in “any criminal proceeding,” including suppression hearings, no finding of probable cause shall be based solely on evidence of the odor of cannabis, that statute does not apply retroactively and is, therefore, inapplicable here.

INDEX OF CASES REVIEWED FROM AUGUST 2023 FOR SEPTEMBER 2023 UPDATE

United States v. Podbielski (4th Cir. North Carolina 2023) 2023 U.S. App. LEXIS 19772 (Unpub.) – Traffic Stop; Prolonged Detention

Harvey v. Butcher (Utah 2023) 2023 U.S. Dist. LEXIS 135475 – Traffic Stop; Fourth Amendment Violation; Successive Stops

United States v. Manson (Connecticut 2023) 2023 U.S. Dist. LEXIS 138590 – Alert as Probable Cause; Reliability Foundation

United States v. Holley-Chambers (Indiana 2023) 2023 U.S. Dist. LEXIS 138687 – Traffic Stop; Interior Sniff of Vehicle; Inevitable Discovery

United States v. Wilkenson (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 139141m – Traffic Stop; Prolonged Detention; Reasonable Suspicion

Hopkins v. State (Texas 2023) 2023 Tex. App. LEXIS 6034 (Unpub.) – Traffic Stop; Prolonged Detention

Thomas v. Johnson (Texas 2023) 2023 U.S. Dist. LEXIS 142143m – Excessive Force; Bystander Liability

United States v. Williams (6th Cir. Michigan) 2023 U.S. App. LEXIS 21418 – Traffic Stop; Prolonged Detention

United States v. Crow (Tennessee 2023) 2023 U.S. Dist. LEXIS 147886 – Failed K9 Alert; Alert as Probable Cause

United States v. Harris (New Jersey 2023) 2023 U.S. Dist. LEXIS 147948 (Unpub.) – Traffic Stop; Odor of Marijuana as Probable Cause

United States v. Carter (9th Cir. Washington) 2023 U.S. App. LEXIS 22478 (Unpub.) – Traffic Stop; Prolonged Detention

Hunt v. Hunt (Michigan 2023) 2023 U.S. Dist. LEXIS 150046 – Tracking/Trailing; Excessive Force; K9 Warnings; Violation of 4th Amendment Right to be Free of Unreasonable Seizure; Qualified Immunity

State v. Bond (Tennessee 2023) 2023 Tenn. Crim. App. LEXIS 325 – Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause

United States v. White (Minnesota 2023) 2023 U.S. Dist. LEXIS 151936 – Curtilage; Alert as Probable Cause

Castillo-Quiroz v. State (Texas 2023) 2023 Tex. App. LEXIS 6777 (Unpub.) – Traffic Stop; Prolonged Detention; Reasonable Suspicion

Harris v. Hilderbrand (Ohio 2023) 2023-Ohio-3005 – K9 Bite of Civilian while at Handler’s Home

Aery v. Nohre (Minnesota 2023) 2023 U.S. Dist. LEXIS 153192 – Excessive Force; K9 Warning; Qualified Immunity

Williams v. Wakeley (Indiana 2023) 2023 U.S. Dist. LEXIS 153752 – Excessive Force; Qualified Immunity; Failure to Intervene

Irish v. McNamara (Minnesota 2023) 2023 U.S. Dist. LEXIS 153924 – Accidental/Unitentional Bite; Unreasonable Seizure; Qualified Immunity

CASES REVIEWED FROM AUGUST 2023 FOR SEPTEMBER 2023 UPDATE

United States v. Podbielski (4th Cir. North Carolina 2023) 2023 U.S. App. LEXIS 19772 (Unpub.)
Traffic Stop; Prolonged Detention

Traffic stop for lane violations. The total time was 19 minutes and the court held this was prolonged detention.

During the build up to the stop, Podbielski slowed to 35 mph as the patrol car was trying to get him to pass so he could perform the stop. Podbielski finally passed the patrol car and the stop was initiated. LE did not smell alcohol but passenger’s pants were completely unzipped. LE was concerned that the passenger was trying to conceal controlled substances in her crotch area or in her vagina. The stop was in the middle of the night, on a road leaving Atlanta, a hub of drug trafficking, and the car had Georgia plates. Podbielski was ordered out of the car and even though LE testified he was concerned about DUI, no testing was done. After he got out of the car, Podbielski was fidgeting, moving side to side and would not stand still. He was also sweating profusely even though the evening was about 50 degrees.

While checking his license, LE asked about his travel which raised suspicions, mainly because his line of travel when stopped did not square with his stated travels. The conversation with the passenger raised similar concerns.

LE then asked for consent to search the car. This was refused. Dispatch then informed them that both driver and passenger had suspended licenses and driver had two summonses in North Carolina. The K9 team was then called to the scene. While the K9 team was en route, LE started working on the citation for the lane violations. He checked several databases to determine what the next court date was for the summonses and also child support database because his agency often served these orders as well. However, LE testified that filling out a citation does not include checking other databases than warrants and summonses.

19 minutes after the stop and 14 minutes after LE started filling out the citation, the K9 team arrived. LE and the handler had about a 2 minute discussion about running the K9 around the car. LE was still working on the citation during the sniff. LE then served driver with the citation and the summonses and explained how to deal with both. That took to 26 minutes after the traffic stop. Podbielski asked if he could go since he was served with the citation and the summonses but LE told him to wait until the sniff was completed. LE told him he had to wait until the K9 was finished and about a minute later, the K9 alerted to the car. Contraband was found under the passenger seat and Podbielski took responsibility for all of it. However at the jail, passenger was found with a bottle of pills hidden in her vagina.

Podbielski filed a motion to suppress. The government conceded that LE prolonged the stop but claimed that LE had reasonable suspicion to wait for a K9 to further investigate. The court reviewed individually the facts on which the government’s case rested. The slowing down, the behavior by the passenger (looking around as if she was making sure something was hidden), passenger’s pants were unzipped, Podbielski’s excessive nervousness, Georgia plates, odd travel history and plans, driving on a drug trafficking corridor late at night, etc. The court held that those factors did not add up to reasonable suspicion such that the delay in waiting for the K9 team was appropriate, calling it just a “hunch” and therefore not sufficient for reasonable suspicion.
‘
Note: The Court had an interesting observation; since this case was heard two years after the fact, LE was testifying using his now over 4 years of experience and the court felt that was not fair. The court then held that they would only consider LE’s testimony as his experience on scene at the time. Not sure how they teased all that out, but ultimately, the court granted the motion to suppress.

Harvey v. Butcher (Utah 2023) 2023 U.S. Dist. LEXIS 135475
Traffic Stop; Fourth Amendment Violation; Successive Stops

Harvey was driving through Utah on his way to Wyoming. He was stopped for excessive tint. LE ran his license and registration; gave Harvey a warning and and the traffic stop concluded. Eight minutes after Harvey left, LE contacted Highway Patrol Officer (HPO) who was known by LE to have a narcotics detection K9. LE told HPO that he had a car for HPO to stop. He told him that he just let him go and gave location and description of the car. There was a discussion about the window tint and that his leased car had Arizona plates but Harvey was from Minnesota.

About 30 minutes later, HPO stopped Harvey for a window tint violation. HPO called in license and registration and while waiting for information, HPO ran his K9 around the vehicle and the K9 alerted. rvey was told to exit while HPO searched the car based on the PC generated from the alert. No drugs were found. HPO issued a warning and let Harvey go.

Harvey filed a Title 1983 case of illegal search and seizure. The court first addressed the successive stops and addressed the fact that the first stop had to be handled constitutionally appropriate manner.The court held that as long as the first stop is legal, a successive stop are not per se prohibited, though the second stop is “inherently more intrusive and coercive than the first (See US v. Padilla-Esparza (10th Cir. 2005) 798 F.3d 993, 1000). The stops must also be reasonable collectively. Therefore, where the same suspicion justifies successive investigations, and the officer conducting the subsequent investigation is aware of the prior investigation and the suspicion that supported it, the investigations’ duration and scope must be both individually and collectively reasonable under the Fourth Amendment. On the other hand, an officer who has exhausted reasonable suspicion for a traffic stop cannot prolong the stop by requesting a second officer act as his proxy and stop the individual again.

Here, LE exhaust his reasonable suspicion because Harvey’s window was in fact too darkly tinted. This equipment violation therefore cannot be then used again to start the process over. However, a second officer who is unaware of the fruitless search conducted earlier may initiate his own investigation based on the same ‘suspicious’ behavior that was exhausted by the first officer’s failed investigation.

Note: If the second LE stopping the vehicle came up with a new traffic violation to stop the vehicle, this would arguably start a new line of reasonable suspicion. It’s interesting that LE told HPO to get his own independant reasonable suspicion, but HPO did not do that. Best practice is for the second officer to develop his/her own independant traffic violation.

United States v. Manson (Connecticut 2023) 2023 U.S. Dist. LEXIS 138590
Alert as Probable Cause; Reliability Foundation

During an investigation, LE discovered through a CI that Manson was part of a drug trafficking organization out of a store at 136 Barbour Street. The CI also said Manson drove a blue Infiniti SUV and that he stored drugs at various locations, including a storage unit at a specific facility. LE was able to corroborate some of these facts: a blue Infiniti SUV was at the Barbour street address for long periods of time; LE saw Manson leave in the SUV, make a stop at the storage locker and then go home. LE discovered that there were two units at the storage business, both registered in the names of Manson’s mother and step-father.

A K9 team was dispatched to the storage facility and sniffed both units and alerted at both. The search warrant indicated that the K9 had been trained and certified in Narcotic Detection by the Connecticut State Police K9 Unit and Forensic laboratory in accordance with New England State Police Administrators Conference standards. In addition, the affidavit said that the K9 had a proven record of reliability and accuracy detecting narcotic odors in both training and investigative deployment (on patrol). Search warrants were then issued for the storage lockers and the store at 136 Barbour.

Manson was present at the store and in possession of cocaine and fentanyl. K9 then sniffed the Infiniti on scene and alerted. The Infinite was searched and marijuana, cocaine, and currency were found. At mom’s storage locker were dozens of bags of marijuana and indicia for Manson. Step-dad’s locker was clean.

Manson challenged the K9’s sniff of the storage locker. However, Manson did not challenge the K9’s alert or his training, certification, or his alert behaviors. Instead, Manson pointed out several instances of “false positive alerts.” Three were in relation to this case: K9 alerted to Manson’s vehicle, but no drugs were found, and K9 alerted outside step-father’s unit but no drugs were found. The other situation was an alert on a vehicle unrelated to this case. There was a fourth instance, but it was a different dog.

The court held that all of these sniffs and alerts took place after the sniffs and alerts that were relied upon in the search warrant affidavit. Manson did not point to any other facts that would have alerted LE that the K9 was unreliable prior to the writing of the affidavit and the search of the storage unit. The court was also unimpressed with the existence of some false alerts. Quoting Harris, the court stated that a false alert may mean simply that the K9 smelled the residual odor of drugs previousl in the location and thus may not have made a mistake at all. In addition, the government is not required to present field results to prove probable cause. Therefore, the search warrat was not deficient and the motion to suppress was denied.

Note: It is critical that if you are relying on an alert from a K9 in your affidavit in support of a search warrant that you describe 1) certification status; 2) training status (up to date) and 3) K9’s record in training in terms of finding controlled substances. If you just state that the K9 alerted, the court cannot and should not find the alert provided probable cause; indeed, the government is required sua sponte (on its own) to produce evidence of the K9’s reliablity. If your hero sheet on your K9 is up to date, then it is easy to cut and paste or if it’s another officer’s warrant, you can even print it and give it to the author of the search warrant which he can reference as an attachment.

United States v. Holley-Chambers (Indiana 2023) 2023 U.S. Dist. LEXIS 138687
Traffic Stop; Interior Sniff of Vehicle; Inevitable Discovery

LE stopped Holley-Chambers (HC) for speeding. As one LE pulled HC out and frisked him, a K9 team sniffed the interior of HC’s vehicle. LE found a gun and ammo on his person.

First, the court held that the frisk was illegal because there was nothing that would indicate HC was dangerous or armed. Then the court rejected inevitable discovery as an arguement because the K9 sniffed inside the car prior to alerting to the outside of the car. Sniffing where a K9 team does not have the right to be transforms the sniff into a search.

Note: I disagree on the analysis that the frisk was illegal. To me, it’s clear that the judge was biased and was going to reach her result regardless. I do agree on the issue of inevitable discovery. It’s unclear why LE would just direct the K9 into the car without a sniff of the free air outside the vehicle. That is certainly not best practice. Some facts are missing, I think.

United States v. Wilkenson (Pennsylvania 2023) 2023 U.S. Dist. LEXIS 139141
Traffic Stop; Prolonged Detention; Reasonable Suspicion

LE stopped Wilkenson for following too closely, wearing an ear bud and the windows were darkly tinted (“double tint”). LE spoke to Wilkenson, the driver, and smelled an overwhelming odor of air freshener. Driver only had one key for the vehicle. Driver provided his license and registration and then started to search for his insurance information on his phone. Driver said he was going to Toledo to pick up a transfer case for the vehicle he was driving. As LE was going back to his cruiser to check the license and registration, he saw a transfer case in the back seat. LE found this odd, that even though the presence of the transfer case was consistent with driver’s stated reason for travel, he thought it was very strange that someone would drive a vehicle, particularly, a vehicle missing its drive train, 15 plus hours, a thousand plus miles across multiple metropolitan areas to get a piece for that vehicle.

LE completed his checks and went back to driver. He had driver step out so he could issue a warning. At this point, LE was going to further investigate because he had developed reasonable suspicion that driver was engaged in further criminal activity. The vehicle was on a known drug corridor, LE smelled the strong odor of air fresheners which are often used to mask the smell of controlled substances, and there was only a single key for the vehicle (most people have the vehicle keys on a ring with other important keys, but load vehicles often will only have one key so that it can be easily used by couriers), the dark tint on the windows, driver had a long history of drug crimes and gun charges and the story of a 15 hour drive to get a transfer case for the car he was driving made no sense.

LE engaged in further questioning and driver said he picked up the transfer case in the Bronx because it was less than half the price quoted by other suppliers. This then factored in to LE’s analysis of further criminal behavior because New York is a main source city for narcotics and also, LE knew about the business in the Bronx and knew they would ship the part to a closer location in the purchaser’s city or town. During the discussion, driver continued to search through his phone for his insurance even though LE told him he was not worried about it. LE then issued the warning and returned driver’s documents. Then LE called for a K9 team. LE was not able to get a team to his location until 81 minutes later after driver had been detained for 23 minutes for a total of 104 minutes. The K9 alerted and the car was searched. Cocaine was found.

Driver filed a motion to suppress. The appellate court first decided the “Rodriguez” moment in the case (that moment when the traffic investigation is over and the driver must be released unless additional reasonable suspicion had been developed). Driver claimed that LE almost immediately started prolonging the stop, but the court held that questions about driver’s travels are a part of the traffic stop and that the driver actually brought up the whole transfer case issue. In addition, until LE informed driver that the insurance information was not needed, the traffic investigation remained open.

LE did admit that when he asked driver out of the car and back to his cruiser, he was at that point investigating what he believed to be drug crimes. The court then addressed whether accessing the driver’s criminal history was beyond the scope of the traffic investigation. LE intimated that he does this check to determine who he is dealing with and the court found that to be an invocation of a safety issue. there was a split in authority on this issue, so this appellate court held that in this situation, a records check was properly considered a part of the ordinary, traffic-related inquiry. Therefore, the Rodriguez moment was when LE ordered driver out of his car and took him back to the cruiser.

LE identified six factors determining his additional reasonable suspicion: (1) a single key; (2) travel on a “main drug corridor”; (3) the “overwhelming smell of air fresheners or a masking agent”; (4) the double window tint; (5) driver’s criminal history, including convictions related to drug trafficking; and (6) driver’s explanation of the reason for his travel. This was enough for this court to find sufficient reasonable suspicion of drug trafficking such that the detention could be extended for a K9 team to respond and sniff the vehicle. Here, the court stated that the length of time was on the outer limits of reasonable as Terry indicates only a brief detention is allowed to investigate the further crimes. The delay was beyond LE’s control and that was a factor in the court finding the delay was still reasonable.

Note: This investigation went well, but I would suggest that best practice would be to radio for a K9 as soon as possible, preferably during a time you’re doing something else, like walking to the stopped vehicle or walking back to your cruiser, for example. That way, a K9 team is on the way. They can always be called off if you develop additional information that the team is not needed.

Hopkins v. State (Texas 2023) 2023 Tex. App. LEXIS 6034 (Unpub.)
Traffic Stop; Prolonged Detention

Hopkins was stopped for failing to signal a turn and having a broken brake light. LE happened to be on the phone with a drug detective, and when LE described the car, detective said it was consistent with a vehicle that had been seen frequently at a drug house they were investigating.

After the stop and as LE was approaching, he saw Hopkins reaching under the driver’s seat. She continued to do it, so he had to tell her to stop reaching down and put her hands on the steering wheel. LE immediately recognized her from a prior drug investigation in which he was involved. As Hopkins was searching for her documents, LE saw that she was taking rapid, shallow breaths, her stomach seemed to be jumping and her hands were visibly shaking. She couldn’t find her driver’s license, so LE asked her to exit the car so he could gather the information from her. While dispatch was checking the information supplied, LE asked Hopkins why she was so nervous. LE then asked for permission to search the car. She refused, saying that it wasn’t her car.

LE then called for a K9 team to respond. While waiting for the K9 team to arrive, LE issued a citation for the violations. About 8 minutes after the request, the K9 team arrived, sniffed and alerted. All this activity took about 17 minutes. There was a buffet of controlled substances in the car along with paraphernalia.

Hopkins’ motion to suppress claimed that there was a prolonged detention. The appellate court disagreed, stating that LE’s articulated facts, although not exhaustive, included: (1) Hopkins’ furtive movements upon being stopped; (2) Hopkins’ excessive nervous behavior; (3) his personal knowledge of Hopkins’ affiliation with the use and distribution of drugs; (4) information he received from detective regarding one of his on-going investigations that implicated Hopkins; and (5) Hopkins’ denial of consent to search the vehicle she had been driving. These articulated facts, in combination and viewed in the totality of the circumstances, led LE to believe that Hopkins had been, was, or was about to be engaged in drug trafficking.

The appellate court also held that since there was additional reasonable suspicion regarding drug trafficking, the time period for investigated expanded. LE was required to diligently pursue a means of investigation that was likely to confirm or dispel his suspicions, and a K9 team was the best way to do that here, since it only took 8 minutes for the team to arrive and sniff. Once the alert happened, the time to investigate expanded to include a search of the vehicle.

Note: It is good to note that even waiting for a K9 team can become prolonged depending on the situation. If you are in a rural area, and you are the only team for a significant distance, you may have more leeway than a K9 team responding in Oakland, for example. It’s important then to note in your report of deployment where you were and what you were doing at the time you got the call to respond and how long it took to arrive (noting factors that may have extended your response time, like bad weather, traffic snarl, etc.). If the court finds that your delays are excusable after finding reasonable suspicion of drug trafficking, then those facts can come into play.

Thomas v. Johnson (Texas 2023) 2023 U.S. Dist. LEXIS 142143
Excessive Force; Bystander Liability

Handler dispatched to scene where there are two male suspects (no further). They were reported to be in front of a house, and that is apparently where handler encounters them. He points his service weapon at them and yells to put their hands up. Thomas does so and remains with his hands up while the other male keeps getting in and out of the driver’s seat. However, when told to get in again, he does. He just doesn’t stay there. Thomas starts saying things like Kill me! I don’t wanna be here on Earth! Handler has gotten his K9 out at this point. Handler tells another LE on scene, “Let’s get the passenger first.” Johnson continues to shout orders at the driver, after telling the other officer he should give commands. Apparently, the driver was complying with the commands of the other officer as he is on the group. He is told that if he doesn’t comply, he will get bit. The K9 is whining and growling the entire time. Driver complies with all instructions and officer tells handler he has the driver. Handler then starts giving demands to the passenger (Thomas) to put his arms to his sides, but he leaves his hands in front of him. Thomas then obeys a command to go to the ground. The K9 is now so agitated that it pulls the handler around with his lunging. The driver is dealt with and the focus goes back to Thomas who is on the ground with his arms outstretched. Thomas appears to lift his head a bit then move his lower body a bit. Handler yells last warning and then releases the K9. The K9 then latched onto Thomas’ arm. Handler approaches, yelling, “Think you’re fucking around, don’t you.” Although Thomas’s arm is in the dog’s clamped jaws, handler commands him to put his hands behind his back. Handler succeeds in cuffing Thomas and a few seconds later gets the K9 to release the bite. Handler orders the now-handcuffed Thomas to “roll onto your stomach; you ain’t seen nothing yet,” compliments the K9, and gives a jubilant cry before the video ends. The bite duration was less than a minute (no time is given by the court) and probably shorter than that.

The two other officers on scene were sued along with handler. Here, however, the only issue is whether the two other officers who were on scene failed to intervene and therefore had bystander liability. The court first determined that handler used excessive force, as Thomas posed no threat to LE, he was not resisting or trying to flee. It came out that the 911 call was a noise complaint and that the gun was held by the caller or a party with the caller, not these two men (when that was known by whom is not addressed). There was little negotiation or any attempt to calm the situation; in fact, handler seemed to ramp up the situation.

Bystander officers are “liable for failure to intervene when that officer: (1) knew a fellow officer was violating an individual’s constitutional rights, (2) was present at the scene of the constitutional violation, (3) had a reasonable opportunity to prevent the harm but nevertheless, (4) chose not to act.” The other officers were present when and where the alleged constitutional violation took place, and they failed to act to attempt to prevent the injury to Thomas that handler was threatening to inflict. They could have told handler to stand down and they would get Thomas so that the K9 would not have been released. They had already handled the driver and at this point, there was no resistance on Thomas’ part. Instead, they stood by as the handler released the K9 on a prone subject who poses no threat.

The other officers claimed qualified immunity. The court held that qualified immunity operates to protect officers from liability in the reasonable performance their duties. Thomas’s complaint and the video from handler show that the officers’ failure to do anything to prevent an allegedly unjustified use of force was arguably objectively unreasonable.

Note: So much of this was absolutely unnecessary for this situation. Granted, there was a gun mentioned and obviously that ratchets up the response. But it appeared that both parties were cooperating and the miniscule movements on the part of Thomas could be involuntary or even attributable to whatever mental health issue he had going on. The liability of the handler is probably already a given.

United States v. Williams (6th Cir. Michigan) 2023 U.S. App. LEXIS 21418
Traffic Stop; Prolonged Detention

A car that was seen at a local drug house was pulled over. Williams was a passenger and Ellis was the driver. Williams argued that LE prolonged the traffic stop beyond the time necessary to issue Ellis a ticket. But LE soon had reasonable suspicion to extend the encounter. Specifically, LE promptly learned that Ellis lacked a valid driver’s license, that her car lacked insurance, and that both Ellis and another passenger had outstanding arrest warrants. Ellis then repeatedly lied to LE about where she had just been driving. These lies, when viewed in the totality of the circumstances, supported a determination that there was at least “a moderate chance of finding evidence of illegality[.]” And Ellis then admitted that, minutes before, the car had stopped at a known drug house, that Williams had gone inside and returned to the car, and that she thought Williams was a drug dealer transporting methamphetamine. This information created the reasonable suspicion necessary for LE to begin a narcotics investigation and to call for a K9 to confirm Ellis’s report. And the “positive indication from a narcotics-detection dog” in turn supplied LE with probable cause to conduct a warrantless search of Ellis’s car. Thus—from the initial traffic stop to the discovery of drugs at Williams’s feet—reasonable suspicion supported each of LE’s decisions to extend his investigation.

Note: Short and sweet but what was interesting was that the opinion indicated that the K9 “searched” (should have been sniffed) inside the car. If the K9 did not alert outside the car first, there well could be an issue. There are more and more courts saying the entry of a K9 into a vehicle without alerting outside of the vehicle will be deemed a search without probable cause. Best practice is to shut all doors and windows prior to the K9 sniffing the exterior.

United States v. Crow (Tennessee 2023) 2023 U.S. Dist. LEXIS 147886
Failed K9 Alert; Alert as Probable Cause

Crow was identified as a target in a drug trafficking investigation. A CI said he was the go-between with Crow and a mid-level buyer. Certain things were verified by police. There were also calls on a wire tap, as well as a failed undercover operation. Crow was later pulled over by LE for a lane violation. Crow was pulled out and frisked and appeared to have a big wad of cash in his pocket. LE left it there initially and had a K9 sniff the vehicle. The K9 showed some interest but not an alert. Because the officers believed they had probable cause due to the drug trafficking operation with informants, they searched the car anyway and found the meth Crow was supposed to sell to the undercover.

After finding that LE had probable cause to search the vehicle, the court then addressed whether the K9’s failure to alert on the vehcile dissipated the probable cause developed in the case. Defendant seemed to argue that because the K9 was certified, his failure to alert destroyed any existing probable cause. Acknowledging the K9’s failure to alert is a fact that must be considered by the Court, the Government does not dispute the certification or reliability of the K9, but instead argues the officers had sufficient probable cause for a search despite the K9’s failure to alert. The court agreed that the K9’s failure to alert is a factor that must be considered in assessing probable cause under the totality of the circumstances, and found it did not destroy the already-existing probable cause.

The court found that the K9’s failure to alert in this case is a relevant factor to consider under the totality of the circumstances, but it is not dispositive on the issue of probable cause. The officers lawfully could consider pre-existing information in making the objective determination of whether there was a fair probability that evidence of a crime would be found in Crow’s vehicle despite the K9’s failure to alert. The court found the evidence of criminal activity here was strong enough to establish a fair probability that evidence of a crime would be found in Crow’s vehicle. Crow’s argument regarding LE’s admission that independent probable cause, which might protect the informant’s identity, was not developed for a search when the K9 failed to alert adds little to the analysis. Had the K9 alerted, then all the other factors would not need consideration under applicable precedent, but the reverse is not true. That the K9 did not alert does not destroy the probable cause that did exist. As ended up being the case here, the K9 might have been mistaken or unable to perceive drugs or other drug-related evidence within the vehicle. While it may be a somewhat closer call after the K9 failed to alert, the court found the Government has met its burden to prove probable cause for the vehicle search under a totality-of-the-circumstances analysis because there was a fair probability that contraband or evidence of a crime would be found in Defendant’s vehicle when the search was executed.

Note: The amount of methamphetamine in the car was substantial and the K9 could have been overwhelmed with the smell. I don’t know how extensive the hearing was or whether the handler testified, but there are reasons why a K9 would not alert. These should be put in the record by the testimony of the handler if possible.

United States v. Harris (New Jersey 2023) 2023 U.S. Dist. LEXIS 147948 (Unpub.)
Traffic Stop; Odor of Marijuana as Probable Cause

Harris was stopped because his windows had an illegal tint and he was speeding. In addition, the registration on the vehicle and the owner’s license were suspended. Both officers smelled the odor of marijuana. There was a green leafy residue on Harris’s clothes. A search of the car revealed controlled substances, including raw marijuana in a sealed bag in the trunk (about half a gram).

The defense expert claimed LE was lying about the marijuana smell. In his opinion, the facts of the case meant that there was no way LE could smell marijuana. Defense expert claimed he had evidence that LE uses a false claim of the odor of marijuana to justify searches. In 23 of 30 cases, allegedly there was no marijuana found and the other 7 the defense alleged the marijuana was in a scent proof container. The court found that the statistics presented by Harris failed to account for the hundreds of other traffic stops in which LE were involved that did not result in an incident report at all, or one authored by either either LE involved here. Further, in seventeen out of the twenty-three cases where no marijuana was found during the stop, there was some other evidence corroborating the smell, including the driver’s own admissions. Thus, the Court declined to give weight to the small percentage of reports presented by the defense for the purpose of establishing a pattern of false smell of marijuana syndrome. The court then found LE credible.

The Appellate Court agreed with the government that the seizure and search of Harris’s automobile was appropriate, and the evidence resulting therefrom is admissible. LE’s traffic stop of Harris’s vehicle was proper, because it resulted from traffic violations giving rise to reasonable suspicion for the seizure. The subsequent search of Harris and his automobile was also permissible, because LE had probable cause to search when they localized the source of the smell of marijuana with sufficient particularity to establish probable cause. While Harris argues LE could not have smelled the raw marijuana–later found in a sealed bag, in a jacket pocket, in Harris’s trunk–the Court is satisfied by the evidence and testimony in the record that LE could have plausibly smelled lingering raw marijuana or burnt marijuana, both of which are sufficient to establish probable cause for a search.

LE testified the smell of marijuana can remain in the area, or linger on clothing or other items, after marijuana is removed from the area, before or after it has been smoked. It can also be difficult to detect whether a smell is of raw or burnt marijuana if both smells are in the same location, but regardless, the smell of marijuana is still present. Even Harris’s expert conceded it was possible LE could have smelled burnt marijuana in their proximity to the vehicle. Therefore, regardless of whether LE specifically observed raw or burnt marijuana, it was certainly reasonable the smell was emanating from the vehicle at the time the LE noted same, giving them probable cause for the search.

The Court also agreed with the government that Harris is essentially asking the Court to suppress evidence based on an adverse credibility determination regarding LE’s “false smell of marijuana,” while simultaneously asking the Court to disregard Harris’s statement corroborating the smell. Harris’s statement that he “just finished smoking,” was not necessary to establish probable cause for the search. However, this Court found the statement relevant for the purpose of corroborating that the smell of marijuana was reasonably present at the time of the stop, and therefore, not “false[ly]” perceived by LE. Because the government sufficiently established the vehicle search was proper under the automobile exception to the warrant requirement, Harris’s Motion to Suppress the resulting evidence is denied.

Note: This occurred in New Jersey on June 23, 2020. Recreational marijuana was legalized in January of 2021.

United States v. Carter (9th Cir. Washington) 2023 U.S. App. LEXIS 22478 (Unpub.)
Traffic Stop; Prolonged Detention

This case is a summary of the entire case as this court is reviewing another court’s preliminary ruling. In stop 1, Carter was a passenger in a car that was pulled over. LE quickly initiated the process of checking the driver’s license and rental paperwork. Although LE later deployed a drug-detection dog who alerted to the presence of drugs in the vehicle, that action occurred while the permissible records check was still in process.

The officers also ran a check on Carter, who was merely a passenger. Actions related to determining the identity of a vehicle’s passenger typically are considered “not part of the mission of a traffic stop.” But here, LE ran the records check on Carter not because he was a passenger, but because his name appeared on the vehicle’s rental paperwork.

Note: There were other issues that are not relevant to our purposes. This is a good example of finding some reason to investigate the passenger, including his identity and other relevant information.

Hunt v. Hunt (Michigan 2023) 2023 U.S. Dist. LEXIS 150046
Tracking/Trailing; Excessive Force; K9 Warnings; Violation of 4th Amendment Right to be Free of Unreasonable Seizure; Qualified Immunity

K9 team requested in locating and apprehending a suspect in an armed robbery/carjacking involving a gun. The suspect fled the scene and the K9 team arrived at the location he fled from. The K9 tracked suspect while leashed on a 15 foot lead and handler followed K9 at all times. Handler was accompanied by another officer.

After tracking the suspect through several lots overgrown with brush, in the dark, K9 alerted at the rear of what appeared to be an abandoned house. According to handler, there were no doors or windows on the house, the ceiling had fallen in, the outside was overgrown with brush, and there were no indications of occupancy or maintenance.

There was some dispute as to whether handler knocked or announced his presence: handler indicates in his affidavit that he does not remember whether he did so; the accompanying officer testified at his deposition that he heard handler announce the presence of K9 and request that suspect (Hunt) surrender; and Hunt claims that handler did not announce his presence. In any event, handler avers that he allowed K9 to enter the home on the leash, and that within seconds, he heard Hunt “yelling and requesting that the dog release him.” K9 bit Hunt once, and handler commanded K9 to release Hunt. Hunt was immediately arrested and taken to a medical center for treatment.

In his complaint, Hunt alleges that his Fourth Amendment rights were violated when handler employed an unleashed K9 into a residence without first making any verbal announcement or informing anyone inside that he was releasing a K9. Handler moved for summary judgment, arguing that there is no genuine issue of material fact as to whether he violated Hunt’s Fourth Amendment rights and, that even if he did, he is shielded by qualified immunity.

Handler asserts that he is entitled to qualified immunity from Hunt’s excessive force claim. Once the qualified immunity defense is raised, the plaintiff (Hunt) must show that (1) the handler violated a constitutional right and (2) that right was clearly established. “That is, … when a defendant raises the defense of qualified immunity in a motion for summary judgment, the plaintiff must show that those facts and inferences would allow a reasonable juror to conclude that the defendant violated a clearly established constitutional right.”

Hunt alleges that handler violated his Fourth Amendment right to be free from an unreasonable seizure when he “failed to make any announcement that he was releasing a K-9,” which subsequently bit Hunt once, causing “significant injuries and permanent scaring [sic].” A “seizure” is unreasonable under the Fourth Amendment when it is the product of an officer’s use of excessive force. In deciding whether the force used was excessive, courts balance the government’s interests in protecting others (including the police) and curbing crime against a suspect’s right not to be injured. Three factors from the Graham v. Connor case are particularly relevant: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. This assessment is made “from the perspective of a reasonable officer at the scene, and not from ‘the 20/20 vision of hindsight.'” Moreover, deployment of a well-trained police dog is “[a]mong the various forms of force available to law enforcement, that is a comparatively measured application of force, which does not carry with it a substantial risk of causing death or serious bodily harm.” This is true so long as deployment of the K9 is reasonable under the circumstances, as measured by the Graham factors (listed above).

Applying the Graham factors to the instant situation, Hunt has not raised a material dispute of fact that the deployment of K9 without a verbal warning was unreasonable or violated Hunt’s clearly established constitutional rights. At the time handler released K9 to apprehend the suspect, handler knew he was suspected of armed robbery/carjacking — very serious, violent offenses — and handler had been advised that the suspect was believed to be armed with a gun. Handler and K9 were tracking the suspect in the dark, through several lots overgrown with brush, when K9 alerted at a home that appeared vacant and was “completely dilapidated,” with no doors or windows, a collapsed ceiling, and no sign of occupancy or maintenance. In his sworn affidavit, handler attested that the “circumstances were ripe for ambush” given the darkness, the overgrown brush, the condition of the home, and the knowledge that the suspect might be armed. Thus, all three Graham factors favor a finding that handler did not act unreasonably in releasing K9 without a warning.

Case law further demonstrates that, under the unrebutted facts, handler did not violate Hunt’s clearly established Fourth Amendment rights when he allegedly failed to announce his and K9’s presence and warn Hunt that K9 would be released if Hunt did not surrender. In a previous case, the court noted that neither the Supreme Court nor the Sixth Circuit had adopted a “bright-line rule that an officer must warn a suspect before allowing a dog to bite.” On the contrary, the previous decision specifically recognized that such a “bright-line, warn-first rule could create real danger for officers in circumstances” where the officer “believed that he was tracking a potentially-armed suspect in a dark, densely-wooded area,” and held that “[u]nder these circumstances, an oral warning could have revealed [the officer’s] position and left him vulnerable to attack.” Thus, the foundation of Hunt’s claim — that the law required handler to provide advance warning of K9’s release — is flawed. Moreover, the circumstances that confronted handler during the incident in question are very similar to the previous decision. As in that case, handler was tracking a suspect who he reasonably believed was armed and dangerous, at night, in an environment that would lead a reasonable officer to believe an advance warning would put him in great danger. Thus, the unrebutted facts establish that the risk to officer safety was sufficiently high during the events in question that K9’s unannounced release was not unreasonable and did not violate a clearly established constitutional right. The motion for summary judgement was granted.

Note: This handler could not remember whether he gave a warning or not. It ended up not being an issue because handler relied on the facts that created a situation where it could have endangered LE to give a warning. This highlights the need for good record keeping. You should alway indicate whether you gave a warning, how many times, whether it was likely to be heard by the defense and if no warning was given, the justification for not doing so. Here, if there wasn’t a danger to LE if the warning was given, the summary judgement motion would not have been granted and that omission in your report will buy you a trial.

State v. Bond (Tennessee 2023) 2023 Tenn. Crim. App. LEXIS 325
Traffic Stop; Prolonged Detention; Odor of Marijuana as Probable Cause

The government appealed a holding in this case because the trial court found that a K9 cannot distinguish between hemp and marijuana. LE finding fentanyl and cocaine rather than marijuana in the Bond’s vehicle did not change the fact that the K9 would not be able to distinguish an illegal substance from one that is not illegal. The trial court ordered that all evidence seized during the search of the defendant’s vehicle be suppressed.

Our supreme court has held that a K9 sweep around the perimeter of a vehicle which has been legally detained does not constitute a search, and thus, does not require probable cause or reasonable suspicion so long as the duration of the K9 sweep does not exceed the time necessary for the traffic stop. A positive reaction to a vehicle by a trained K9 provides probable cause to search inside a vehicle. The K9’s reliability must be established, and this determination includes consideration of the K9’s training, the handler’s training and experience with the K9, and the record of false negative and false positive reactions.

The stipulated facts set out in the trial court’s order provided that the drug detection K9 that conducted the sweep of Bond’s vehicle reacted to the presence of “narcotics,” but the stipulated facts did not include any information regarding the specific drugs that the K9 was trained to detect. However, in analyzing the issue, the trial court did not focus on the specific characteristics of the K9 at issue but cited to information relating to drug detection K9 as a whole. The trial court found that the K9’s reaction was unreliable due to the inability of a drug detection K9, in general, to differentiate between the odor of marijuana and the odor of hemp. The trial court concluded that a K9’s inability to differentiate between the odor of an illegal substance from a substance that is not illegal rendered the canine’s reaction unreliable. The government does not challenge the trial court’s finding that drug detection K9s cannot distinguish between the odor of marijuana and the odor of hemp but asserts that a K9’s inability to distinguish between the odor of the two substances does not render the K9’s reaction unreliable for purposes of establishing probable cause to conduct a search.

Binding precedent from our supreme court provides that the odor of marijuana constitutes probable cause for a search. This court has recently stated that “until our supreme court or our legislature determines otherwise, the smell of marijuana continues to establish probable cause for the warrantless search of an automobile.”

Based on binding precedent from our supreme court, we conclude that the inability of a trained drug detection K9 to distinguish between the odor of marijuana and the odor of hemp does not, in and of itself, render the K9’s reaction to narcotics unreliable for purposes of establishing probable cause to support a search. Thus, the trial court erred in granting Bond’s motion to suppress and dismissing the indictments. For the foregoing reasons, we reverse the trial court’s decision granting Bond’s motion to suppress, reinstate the indictments against Bond, and remand the matter to the trial court for further proceedings.

Note: First, make sure the record reflects all the controlled substance on which your K9 is trained to detect. Second, I want to point out an argument that seems to have been missed by a lot of courts, this one included. That argument is that a K9 is trained to detect several odors of controlled substances and the K9 cannot tell the handler which one he has alerted on. It could be a combination of odors or an odor that has nothing to do with marijuana. I think this argument must always be advanced in the trial court. California District Courts are split on this issue, but the arguments that support LE are all unpublished. This issue will keep coming in until the California Supreme Court weighs in and I think they are reluctant to do so.

United States v. White (Minnesota 2023) 2023 U.S. Dist. LEXIS 151936
Curtilage; Alert as Probable Cause

LE received a tip that a pill pressing machine was purchased by an individual who used a fraudulent driver’s license to obtain the machine (these are reported to the DEA because they are used by drug dealers who counterfeit pills and sell them as controlled substances (some are placebos but most are laced with fentanyl and other controlled substances). LE surveilled the house where the package was supposed to be delivered. LE saw White pull up and wait until the delivery truck arrived. The driver then assisted White in putting the press into his vehicle. White then left with LE trailing. LE surveilled him to another location where Ritzman inspected the press. Then White and Ritzman took the press into the apartment building. They both then departed in separate vehicles.

With permission from the apartment manager, handler brought her K9 to the apartment building on two separate occasions. Both time, the K9 alerted to Apt. 1515. This was leased to a Justin Bell. LE surveilled the apartment for two weeks, but no one came or went from the apartment. However, LE saw that White was using a Velar and on one occasion, a man entered the car, then exit about a minute later. The Velar also made several other short stops in different locations.

LE then got a sneak and peek warrant for the apartment. They saw weapons and the pill press that appeared to have been used to make blue pills. They only took pictures per the warrant. A second search warrant was issued for the apartment and the Velar. Contraband was found at the apartment, firearms and $25,000 in cash. Similar items were found in the Velar.

White complained that the alerts by the K9 to apartment 1515 were illegally obtained within the curtilage of the apartment and therefore the search warrants issued for the apartment are invalid. However, the appellate court held that the hallway outside the apartment was not a constitutionally protected area. White suggested that the hallway was constitutionally protected because it was locked and not open to the public. But what matters is not whether the hallway was open to the public, but whether it was considered a “common” area. It does not matter if the hallway is open to the public—it only matters if it is accessible to other tenants. Moreover, the K9 team was lawfully present because they received permission from the apartment building management to be there.

Additionally, White’s argument that the hallway is considered constitutionally protected “curtilage” similarly fails. Though the hallway is immediately outside Apartment 1515, the hallway is open to other tenants in the building. It is not an enclosure or area that is protected from observation by people passing by. Thus, the apartment building’s common hallway cannot constitute curtilage.

White had no constitutionally protected interest in the apartment building’s common hallway. Accordingly, it was not a violation of his Fourth Amendment rights for the government to conduct dog sniffs outside Apartment 1515. The motions to suppress evidence were denied.

Note: This court went a different direction than other courts by holding that there is no curtilage in any common areas, such as the hallway. Other courts have said that if the K9 sniffs the door jamb, that is a violation of curtilage. Here in California, the courts have leaned more to the former. But it’s interesting to see what other courts are doing. It will remain to be seen if a higher federal court will weigh in.

Castillo-Quiroz v. State (Texas 2023) 2023 Tex. App. LEXIS 6777 (Unpub.)
Traffic Stop; Prolonged Detention; Reasonable Suspicion

In a post trial appeal, Castillo-Quiroz claimed ineffective assistance of counsel because his trial counsel did not file a motion to suppress. Castillo-Quiroz argued that the search of his car was unreasonable because LE unnecessarily prolonged it by requesting a K9 unit and because he unnecessarily prolonged it again by waiting for a K9 unit to arrive from another county after learning that there was none available locally. An investigatory detention must be reasonably related in scope to the circumstances that justified law-enforcement interference in the first place, and an officer must act to confirm or dispel the officer’s suspicions quickly. During a valid traffic stop and detention, as this one undisputedly was at its inception, if the officer develops reasonable suspicion that the detainee is engaged in criminal activity, prolonged or continued detention is justified. One reasonable method of confirming or dispelling the reasonable suspicion that a vehicle contains drugs is what was used here—to have a trained drug K9 perform an “open air” search (court should have said sniff) by walking around the car. If the K9 alerts, the presence of drugs is confirmed, and police may make a warrantless search under the automobile exception to a search warrant.

Castillo-Quiroz’s position was that when he withdrew his consent for a search of the car, the detention had to then end. LE had by that point reasonable suspicion that illegal drugs could be in the car sufficient to support calling for the help of a K-9 unit. For example, by that point, LE was aware of one or more butane-torch lighters in plain view in the car, Castillo-Quiroz’s “meth mouth,” his erratic behavior and nervousness shown when rambling and offering lots of information not asked for by the trooper, his seeming to forget his relationship to his girlfriend (with him in the car), and his quick withdrawal of consent to search. From the moment that Castillo-Quiroz withdrew consent to search to when the K9 unit arrived was about 30 minutes. But detentions even as long as 75 or 90 minutes to wait on a K9 unit to arrive have been held to be not unreasonable per se. Without more, the court concluded that Castillo-Quiroz has not produced evidence to overcome the presumption of proper law-enforcement conduct, so he has failed to show the necessary deficient performance under the first prong of an ineffective-assistance claim, so his appeal was denied.

Note: This is one of the ways an appellate court can review the actions of a K9 team. Here, Castillo-Quiroz had to claim ineffective assistance of counsel because he had not raised the issue of suppression on these grounds in the lower trial court. This is a much harder standard to meet, so this is not the ideal way to pursue an appeal. But if there is trial court record that this objection or motion was not made, then a direct appeal will be summarily denied.

Harris v. Hilderbrand (Ohio 2023) 2023-Ohio-3005
K9 Bite of Civilian while at Handler’s Home

Handler held a cookout for friends at his home. His K9 was at home with him as he was required to do so by his department. The K9 bit a guest, Harris. The guests asked for a demonstration of the K9’s duties. He demonstrated a tracking example, got drugs from his vehicle and hid them and had the dog alert and then had the K9 bark on command when he announced Sheriff’s Office. This changed the K9’s behavior as he lunged at a door to the house and started barking. Handler had 3 other dogs present as well and there was some dispute as to which dog handler gave beer to. Handler then took off K9’s shock collar and took him to his kennel for his dinner. When handler went to get K9 after his dinner, K9 was let back outside without the shock collar. A party goer wanted to feel the shock collar, so handler put the collar on his arm and shocked him on the lowest setting. Guest asked to be shocked again and while handler was doing so, K9 jumped up and bit Harris on the chest. Handler’s first reaction was to shock the K9 but the collar was still on the guest. After K9 bit Harris, handler commanded K9 to lie down and then handler lay down beside him, holding onto the scruff of K9’s neck. Harris had to undergo surgery to repair the wound and still faced more surgery.

Handler was sued for negligence and strict liability under the state dog bite statute. The trial court held that the strict liability theory was not available because the Sheriff’s officer required handler to keep his dog with him at his house. In addition, relief was not available under a negligence standard because again the Sheriff’s Office required the K9 to be housed with the handler and therefore handler was acting within the scope of his official responsibilities. Harris appealed.

The question that the appellate court agreed to hear was: An off-duty deputy sheriff who is a K9 handler should not be entitled to immunity from a claim of common law negligence for an attack by his K9 of a third-party guest at his personal residence simply because he is required to harbor and keep the K9 at his home. Rather, whether immunity exists should be a question for the jury when there are disputed issues of fact as to whether the officer is acting manifestly outside the scope of his employment.

The appellate court held that the standard Harris had to meet was whether handler manifestly acted outside of the scope of his employment; or put another way, was handler plainly and obviously acting outside the scope of his employment prior to K9 biting Harris?

The court first defined “scope of employment” as actions in furtherance of the interests of the state (Sheriff’s Office). An employee’s actions are manifestly outside the scope of employment if the actions are self-serving or have no relationship to the employer’s business.

The issue here is whether Hilderbrand’s acts and omissions in handling Xyrem prior to his canine partner’s biting a social guest were manifestly outside the scope of his employment.

The court went on to state that reasonable minds could differ on this issue. According to at least one guest, handler was responding to the request of a guest when he decided to demonstrate what K9 had been trained to do. Handler introduced K9 into a situation in which multiple people were consuming alcohol, including himself, the K9 handler. There is a factual dispute as to whether handler let K9 or another dog drink beer that had been poured on the sidewalk.

While K9 was wearing his shock collar, handler worked K9 by giving him commands to find contraband and to bark and lunge at a door to the house. After the demonstration was complete, K9 was taken inside the house and fed dinner. Approximately an hour later, K9, without his shock collar, was let back outside, where he had previously been responding to work commands. A guest testified that handler said that his first reaction when K9 bit Harris was to activate his shock collar.

Considering the evidence in a light most favorable to Harris, the court held that reasonable minds could disagree as to whether handler was obviously acting in a manner that did not further the interests of the Belmont County Sheriff’s Office prior to K9’s biting Harris.

Note: This was an avoidable situation and a really horrible PR nightmare for the handler and the Sheriff’s Office. Remember that you are always an ambassador for your agency and for your K9. Don’t put them in a situation where they could do something you will not like. Here, since the court found handler was acting outside of his employment, the Sheriff’s Office will not be paying this judgement and his home owner’s insurance probably will not either. He’s on the hook for the whole bill.

Aery v. Nohre (Minnesota 2023) 2023 U.S. Dist. LEXIS 153192
Excessive Force; K9 Warning; Qualified Immunity

LE received a report of a stolen Gator vehicle. Deputies were dispatched to a follow up call that the Gator had been spotted and was being driven by a man in a hoodie with the hood drawn tight around his head. They could not locate that person.

Handler did speak with a citizen who was outside his residence. Handler explained why he was in the area and the citizen said he saw the Gator a couple of different times that day and confirmed the description of the driver. The citizen’s father then came out and said that his ex had been hanging out with Aery. Aery was not welcome on the property and father has had to kick him out before. Aery was known to LE as as a drug user and violent person.

An hour later, the Gator was again spotted and deputies were dispatched, including handler and his K9. A patrol car was placed in the intersection to wait for the Gator. As it approached, LE turned on its headlights; when the Gator did not appear to be stopping, the emergency lights were activated, and the Gator did a hard left turn into the woods. LE tried to chase him with the car, but was unable to catch him and continued on foot. A crash was heard and a perimeter was established. The Gator was eventually located but the driver was gone.

K9 exposed to the Gator to obtain a scent. Handler and K9 then began to track the scent through the woods. K9 circled a tree and then lay down. Handler spotted a cell phone between K9’s paws. K9 then continued the track and when K9 went sharply to the left, this created some slack in the lead held by handler. K9 was running toward a brush pile and when handler heard a man yell, he pulled back on the leash. Handler could not tell if K9 was on a bite, but based on the tension on the leash, handler believed K9 was not actively holding on to someone. Handler saw Aery and told him to put his hands up, which he did. He was taken into custody and he said he had been bit by the K9. On scene, a deputy saw an abrasion. Aery was taken to the hospital for clearance and two small abrasions were found on Aery. Aery had addtional injuries on his arms that he said were from running through the woods and brush. He was then cleared to be booked in the jail. From observation, Aery did not have any rips, tears, or punctures in his clothing and handler did not observe any other injuries other than the abrasions seen at the hospital.

As an initial matter, the Court dispensed with Aery’s assertion that K9 is considered a deadly weapon. The Eighth Circuit Court of Appeals has squarely rejected this argument and held that “the likelihood of death from the use of a properly trained police dog to apprehend a suspect [is] sufficiently remote as to preclude its characterization as deadly force.”

Turning then to the merits and handler’s use of K9 without giving a warning, a K9 warning is necessary unless there is a threat to LE or the public that will be amplied by a warning. These cases are the exception.

Aery’s Fourth Amendment claim is based on handler’s failure to announce the presence of his K9. Handler does not claim a warning was given. In fact, handler conspicuously does not address the issue of a warning at all. Handler’s incident report does not indicate that he provided a warning regarding K9’s presence. Nor do the incident reports of the other deputies reflect hearing such a warning. Given the state of the law at the time, it would have been clear to a reasonable officer that the use of a K9 without a prior warning could violate a suspect’s Fourth Amendment rights.

It is true “there exists no per se rule that deployment of a police canine is unreasonable unless preceded by a warning.” That said, the general rule is that absent a threat to his safety, a police officer must warn a suspect before releasing the dog upon him. Ultimately, the question is one of reasonableness under the circumstances.

Based on the record before the Court, handler does not dispute Aery’s contention that handler did not announce the presence of M9. Rather, handler focuses on Aery’s suspected involvement in the theft; his familiarity to law enforcement; his flight from law enforcement into the woods; and the existence of probable cause to arrest him for having “just committed multiple criminal offenses”. Here, handler “was running with the dog, at night, searching for a person who had fled and whose whereabouts were unknown.” Handler does not argue nor is there evidence before the Court that handler declined to give a warning out of a concern for officer safety or due to some other circumstance. Again, handler has not addressed the warning issue at all. Based on the record before the Court, it cannot be said that this was one of those “exceptional cases where a warning was not feasible.” Likewise, based on the record before the Court, this Court “see[s] no reason why . . . a rational jury would be precluded from finding that the officers could have placed themselves out of harm’s way . . . and given a loud verbal warning that a police dog was present and trained to seize by force.”

Further, construing the facts in thelight most favorable to Aery, K9 made contact with Aery when he came upon him in the brush. Handler asserts that, based on the incident reports and the photos of Arey’s shoulder and clothing, “no genuine issue of material fact exist[s] as to whether or not Aery was bitten by K9” and the “evidence conclusively establish[es] that K9 did not bite Arey.” The Court disagreed. Aery maintained that he was bitten. Handler’s own photographs show two red marks on Aery’s shoulder where Aery contends K9 bit him, photographs Aery himself references as evidence of the bite. These photographs were taken shortly after the events in question. The incident reports further support that these marks were in the area that Aery claimed he was bitten. Even handler was “unable to tell” at the time whether K9 bit Aery. While handler’s belief that the marks on Aery’s shoulder were not consistent with the sort of “punctures or drag marks which are typically apparent from a canine apprehension,” and the absence of any apparent to damage to Aery’s clothing could be facts from which a reasonable jury could conclude that no bite occurred, a reasonable jury could also conclude based on Aery’s testimony and the marks on his shoulder that K9 did bite him on top of his clothing.

The Court finds that there is a genuine issue of material fact as to whether it was objectively unreasonable under the circumstances for handler to use K9 in effectuating the seizure of Plaintiff without first giving a warning. A reasonable jury could conclude that handler was required to give a warning before deploying K9.

On the issue of qualified immunity, the court held that the facts at this stage conclude that a reasonable jury could find that the failure to give a warning was unconstitutional and that this right to a warning was clearly established law.

On the Monell issues, the court held that Aery had not presented evidence to show that there was a genuine dispute in the facts.

Note: The record is unclear as to whether there was a warning given. This should not be the norm. Whether warnings were given should be in every report of every deployment. If there were no warnings, then your report must give adequate reasons why. Here, because there was no evidence of a warning, this plaintiff is going to get at least a nuisance settlement, even though his injuries were less than a kid falling off a skateboard.

Williams v. Wakeley (Indiana 2023) 2023 U.S. Dist. LEXIS 153752
Excessive Force; Qualified Immunity; Failure to Intervene

Apartment building maintenance calls in a burglary in process of an empty apartment where a BWA entered through the back door. The owner says no one is authorized to be in the apartment. There were no signs of a forced entry but the front door was opened. The whole incident occurred in the daylight. 3 officers, handler and K9 lined up to enter the apartment, two with guns drawn. A K9 announcement was made twice. LE then saw a BMA peer around the corner of the wall just inside the apartment. LE could not see his hands, so he was ordered to show his hands. Instead of showing his hands, he took off quickly into the apartment. Handler yelled at him to stop and released his K9. Handler was the highest ranking officer on the scene. Handler entered the apartment after the K9 and saw that the K9 had engaged Williams, the BWA, rather than the BMA. Handler later testified that he knew there were two people in the apartment. Handler and LE approached Williams and ordered her to stop fighting the K9 and gave a command for the K9 to release. Williams fingers were in the K9’s eyes and when she finally let go, the K9 released as well. Williams then swung her elbow at the K9 and the K9 bit her on the elbow. Again, she was told to stop fighting the K9 and when she did, the K9 released. There were no weapons found.

The court first addressed the excessive force claim against the handler. The handler asserted qualified immunity. Williams claimed there were two distinct uses of force; therefore, the court assessed qualified immunity as to each separately. The first was the release of the K9 into the apartment. When LE came to the apartment and shouted warnings, they were confronted with a male (they were told a female was in the apartment) who then darted out of sight. The court held that on the facts LE had at hand, a jury could find that a reasonable officer in position at the front door, having seen a male, would have recognized that a woman was also present in the apartment; indeed, LE said that was his assumption. Therefore, a jury could find, that even though the K9 was released to apprehend the male, it was unreasonable to release the K9 to bite a “suspect” knowing there was another person present. The court then turned to Graham-like factors and assessed the severity of the crime to be non-violent, there was no sign of forced entry, and nothing to indicate there was an on-going burglary in an empty apartment. In addition, there was no danger presented to LE other than the male darting out of sight. There appeared to be no one else in danger. Finally, the only resisting was passive, and the darting out of sight by the male was also non-violent. Key though was that Williams was only passively resisting at best. In this situation, a reasonable jury could find that the use of force was excessive for the situation.

The court then addresses whether this is an established rule of law and found that it is; LE cannot deploy a K9 on a person who is not a danger and is only passively resisting.

The second use of force is whether the K9 was not released quickly enough. The court held here that the handler took reasonable steps to disengage the K9 by giving the release command after securing the K9’s leash and commanding Williams to stop hitting the K9. From that point, any delay in the K9 releasing Williams was caused by Williams continuing to hit the K9. Once Williams stopped hitting the K-9, the K9 released her. Williams offered no evidence to the contrary. Nor did Williams offered any evidence or law to show or infer that handler failed to disengage the K9 as soon as reasonably possible or that he did not act reasonably under the circumstances.

The court also indicated that the K9 was released off leash, out of the control of the handler, into the apartment. That is a bit of conjecture because the evidence of that was circumstantial but it factored into the assessment of the level of force used in this case and it did not come out well for LE.

The court then addressed the failure to intervene claim against the other officer present. As to the release of the K9, the court found that whether officer had a realistic opportunity to prevent handlerfrom releasing the K9 is a question of fact for the jury. Officer was at the open front door with handler and observed the same events unfolding. Although the entire incident took less than two minutes from the time LE called in radio silence at the front door to when EMS was called to treat the Williams’ bite wounds, it is not clear from the record that it was unrealistic for officer to have intervened to prevent handler from releasing the K9 into the apartment. Notably, officer does not argue that he did not have a realistic opportunity to intervene. Therefore, the Court denied the motion for summary judgment on the failure to intervene claim against officer based on the release of the K9 into the apartment.

As to the second use of force (the duration of the bite), because handler did not violate the rights of Williams, this officer cannot be liable under this theory as well.

Note: This is an interesting case. The court talked about, in the first use of force, that a reasonable jury could find that the release of the K9 was unreasonable because there were at least two people in the apartment and handler knew the K9 could bite either one. There was no mention of the dangers of not being able to see the second person, that burglars are often armed, with guns and unconventional weapons, and therefore, this presented a danger to LE. The court focused on the fact that a second person was present and that, per se, was enought to make the release of the K9 unreasonable. Then the court held that the duration of the bite was reasonable, since Williams’ behavior delayed the release and apparently caused the second bite. A good reminder how any evidence can be twisted to support any argument. That’s why body cams are really helpful: if you’re doing what you’re supposed to be doing, the body cam will vindicate you and the court won’t be allowed to make large leaps of logic.

Irish v. McNamara (Minnesota 2023) 2023 U.S. Dist. LEXIS 153924
Accidental/Unitentional Bite; Unreasonable Seizure; Qualified Immunity

During a traffic stop, the suspect fled into a cemetery and several LE, including Irish and handler McNamara with his K9, chased him. The cemetery was adjacent to an apartment building and school for special needs young adults. When McNamara arrived on scene and let his K9 out without a leash. The K9 team ran to the fence, handler lifted K9 over, then jumped the fence himself. The policy of the department required handler to issue a warning, but McNamara gave no warnings. However, another officer saw the K9 team and radio’d to all officers that the K9 went over the fence and LE was in pursuit. As handler was in pursuit, he told K9 to “Get him!” several times, but the K9 did not run after the suspect and instead bounded left off the path before returning to the path and running alongside handler. Two squad cars arrived from a different direction and Irish saw McNamara running and pointing. Irish heard on the radio to “Stay off to your right.” As Irish turned onto the path, K9 sprinted toward Irish’s patrol car. Ultimately, Irish was able to drive to the location where suspect was spotted in a ravine. Irish opened his door and began shouting commands to the suspect, who was then walking toward a parking lot. Almost immediately after opening his door, K9 attacked Irish, biting him on the arms, legs, and buttocks. Handler ran toward them and called out commands to get K9 to release to no avail. It took about 20 seconds for handler to catch up and physically release the K9. Irish told McNamara that he didn’t know the K9 was out.

Their attention turned back to the suspect who was not obeying commands, so McNamara released the K9 again toward the suspect. The K9 turned around and was headed for Irish. McNamara was able to catch the K9, turn him aroud and commanded the K9 to “Get him!” which he did.

After the suspect was in custody, Irish told McNamara, “I didn’t know that was you running or else I wouldn’t have gotten out.” McNamara responded that he was “trying [*8] to get on the air to say K9 was loose, but the air was just tied, tied, tied.” McNamara also wrote in his police report that he did not give a warning in the cemetery because the sirens were very loud, and that he “tried to air via radio that the K9 was off leash but I could not get on the air due to high volume of air traffic for this incident.”

Later, while still on the scene, Irish told Hennepin County Sheriff’s Office Sergeant Jeremy Gunia, “I was telling [McNamara] I didn’t know the . . . dog was out.” Gunia responded, “That’s the thing . . . all of the sudden I heard ‘dog’s over the fence’ and I’m like, ok, did he throw him over or what happened?”

Irish also asked the officer who had been in the squad car behind him in the cemetery whether he had heard the dog was out. The officer answered that he had heard that, and had looked around for a K9 until he saw K9 run in front of his squad. Irish responded that he “never heard ‘dog was out,'” and did not recognize McNamara at the time.

Irish suffered deep wounds and developed a serious infection. The antibiotics caused a bowel disorder from which Irish still suffers as well as anxiety and sleeplessness. He sued for excessive force and unreasonable seizure.

The court first addressed whether there was an unreasonable seizure. Several courts have held that when a person is bitten by a K9 that has been deployed to track and bite a suspect, the person has been seized for purposes of the Fourth Amendment, even if the person is an innocent third party rather than the suspect. Here, Irish alleged that McNamara released K9 off-leash without the dog having a visual on the suspect, and commanded K9 to “Get him!” McNamara knew that K9 could not distinguish the suspect from another human in the area. McNamara also knew and intended that the dog would bite the first person it found. The dog did bite the first person it found, and that person was Irish. These allegations are sufficient to plausibly allege that Irish was seized.

The court then addressed whether this seizure was reasonable. Here, governmental interests were at stake because McNamara was pursuing an actively fleeing suspect who had committed serious crimes, including fleeing police and leading them on a high-speed vehicle chase. However, the interests of officer and public safety were not served by releasing an off-leash police dog into a public cemetery in the middle of the day, without warning, and while knowing that fellow officers would be arriving at the cemetery.

Turning to Irish’s Fourth Amendment interests, “factors to be considered in determining whether use of a police dog was reasonable include whether a warning was given, the officer’s degree of control over the dog, and whether the bite was terminated in a reasonable amount of time.” The facts alleged, when analyzed in the light most favorable to Irish, permit a reasonable inference that McNamara’s use of force was objectively unreasonable. Irish’s position is that it was unreasonable for McNamara to deploy the K9 off leash to find and bite a suspect without giving an audible warning that would have allowed innocent persons, including fellow officers, to get out of harm’s way. This did not happen and the radio transmission that the dog went over the fence was not sufficient.

Regarding the factor of degree of control over the K9, Irish alleges that McNamara released the K9 off-leash in a public cemetery in the middle of the day to pursue an unseen target, while knowing that fellow officers were arriving at the cemetery. Additionally, the K9 ignored at least eight verbal commands by McNamara to halt the attack, and only stopped biting Irish after McNamara physically removed the dog from Irish’s arm. These allegations permit a reasonable inference that deploying the K9 off-leash with little ability to exercise control over the dog was objectively unreasonable.

Having found that the bite was an unreasonable seizure, the court determined whether a bite to an unintended victim was a clearly established right at the time of the bite. The court found that at least in the 8th Cir., an unintended victim had a clearly established right not to be seized and bitten, especially if there is no adequate warning. Motion for summary judgement was denied, meaning this case is moving forward to trial.

Note: This court viewed this case as the handler deploying the K9 unreasonably because it was off leash, it was running alongside his handler in a fast evolving, chaotic situation and took his handler at his word to “Get him!” Since Irish was the first readily available target, he got bit. Several issues here: 1) deploying off leash should probably be the last resort and only in situations where it is unavoidable; 2) Not slowing down enough to get a warning out since the suspect did not pose an immediate threat to LE and other LE were in the area pursuing suspect and 3) the out was not good. Verbal outs are, of course. the best, and the most impressive, but when a K9 and handler are in the thick of it, the verbal out may not work. If the K9 doesn’t respond to the first verbal out, then handler must physically release the K9 immediately. The problem with no leash means there is a lag time between the bite and the handler being in a position to immediately release the dog.