United States v. Paholsky (West Virginia 2020) 2020 U.S. Dist. LEXIS 184789

Traffic Stop; Prolonged Detention; Reliability Foundation

LE had a house under surveillance that was reported to be a drug house. Officers were stationed nearby, including a PSD team. Subject was seen pulling away from the house and a marked cruiser pulled subject over after subject rolled through several stop signs. Immediately after or during the initial contact by LE of subject, LE asked for permission to search. Subject declined. The PSD team was then called in. The team happened to be so close in proximity at this time that the handler could see the officer while he was making the request. The PSD team arrived within a minute of the request. A sniff was performed and PSD alerted within 5 or 6 minutes of arrival. Subject was asked if there was anything in the vehicle and subject admitted a firearm was present. Subject was a convicted felon.

The court held that since the sniff was basically simultaneous to the traffic stop, there was no prolonged detention. In addition, the court found the PSD team to be sufficiently trained to be reliable. Evidence was submitted that the team had successfully completed a Narcotics Detection certification program in which the team was deems proficient in detecting narcotics and the team was recertified in 2019. One of the examiners of the 2018 certification testified that the team passed every vehicle test presented. There was an issue because training records and field performance records were not kept separately and in those combined records, it showed that the PSD failed to alert or falsely alerted about 5 times. The handler testified that 3 or 4 of them were probably during training. However, the court held this did not show that the PSD overall accuracy was lacking, holding that the certifications in 2018 and 2019 were sufficient to determine reliability. Finally, subject complained that the PSD had different techniques while alerting which subject opined caused the handler to “guess” whether the PSD had alerted or not. However, testimony from the handler revealed that when the PSD “pitter-pattered” with his feet as well as sitting down, that was almost always an accurate alert. If the PSD just sits, the handler takes the PSD around again and if he sits again, the handler considers that to be a reliable alert. The handler also testified that when the PSD started shows signs of sitting just to get his toy, the team did remedial training until the behavior stopped (this was before the events in this case). The court held that this alert was reliable and therefore gave LE probable cause to search the vehicle.