Thursday, March 1, 2012

Putting Dog in Back of Truck to Find Suspects Was Not Illegal Search, But Were Police Really Looking for Drugs?

We have discussed traffic stop cases where a dog, supposedly on its own initiative jumps into a car. As long as the police did not encourage the dog in this action, or facilitate it, courts have generally allowed the evidence following an alert of a dog that has entered a car. See Police and Military Dogs, Chapter 10: Automobile Sniffs, section on jumping into a vehicle.

In a recent case arising in Rhode Island, however, the handler directed the dog to jump into the back of a rental truck, and the evidence was not suppressed, because the prosecution convinced the federal district court that the dog was not sent into the truck to find drugs but rather to find people who might be hiding there and might be a danger to the officers involved. The court accepted this explanation despite the fact that the handler's incident report gave the reason for putting the dog in the truck as a drug sniff.

Surveillance Leads to Traffic Stop and Arrests

Richard Morel was under surveillance by the Drug Enforcement Administration and the Pawtucket Police Department, suspected of large-scale trafficking in cocaine and heroin. He had served nearly five years in prison in Rhode Island for a transaction involving over half a kilogram of cocaine.

On March 2, 2011, Morel picked up Donato Mayen-Munoz near the Providence train station and drove to his home, then to a Penske location where they rented a truck. They brought the truck back to Morel’s residence. Later, Mayen-Munoz drove the truck to a Motel 6 in Warwick, where he picked up two individuals. After two stops, the truck headed back towards Pawtucket.

Detective Dennis Smith called Sergeant Lefebvre and told him that he believed the truck now contained a large amount of narcotics. Both Smith and Lefebvre called Officer Pendergrass, a K-9 officer with the Pawtucket Police Department, to put him on notice that he and his dog might be needed. Lefebvre joined the tail with another vehicle.

When the truck made “a sharp, abrupt left turn without using its turn signal,” Lefebvre pulled it over. What followed is best described by the court:

“As Lefebvre approached the Penske truck, co-defendant Alavez emerged and started walking toward him. Lefebvre told Alavez to stop and asked him for his license and registration. Alavez appeared nervous. As Alavez was looking for paperwork in the truck, Lefebvre heard the sound of a door shut. He then looked inside the vehicle and noticed it was empty. This concerned Lefebvre because he was told by Detective Smith to expect three individuals inside the truck.”

Apparently Lefebvre did not position himself well enough to keep the cabin in view. As stated, Lefebvre had been told that there were three people in the cabin of the truck. At a later point the court states that “the government presented evidence that the search complied with PPD [Pawtucket Police Department] policy and procedure manuals." It must be questioned whether this was also true of the stop.

The court's account continues:

“Lefebvre asked Alavez about the whereabouts of his passengers, but he would not answer. Alavez eventually produced a California identification card, but no license. Lefebvre then arrested Alavez and placed him in the back of his police car. Lefebvre notified dispatch of the car stop and called Officer Pendergrass to have him respond immediately.

“Pendergrass arrived within several minutes [a later reference specifies about ten minutes], and Lefebvre asked him to send Bak, his K–9 police dog, into the back of the truck. Lefebvre testified that his request was motivated by both a concern that there might be somebody in the back of the truck and by a desire to search for narcotics. When pressed by the Court as to whether he really believed that an individual had gotten into the back of the truck, Lefebvre conceded that there was a solid wall between the passenger compartment and the back, but maintained that he honestly did not know whether someone was in the back.”

Officer Pendergrass testified that he was initially concerned that someone was in the back of the truck, but his police report did not mention any search for people though it did say that Lefebvre had requested that he search for possible narcotics. The court's opinion also states that “Smith testified that his original intention was to have Officer Pendergrass conduct an exterior dog sniff around the truck.” Whether this intention was communicated to Pendergrass remains unclear, but the police report would suggest that it might have been.

Pendergrass testified that his police dog, Bak, had separate commands for searching for humans and narcotics, but that he was trained to search for humans first. He also said that he might not be able to call Bak off after a search for humans if there was a narcotics scent present. It is not clear whether the defense sought the training and field records of Pendergrass and Bak to verify this ability on Bak’s part.

There is no mention of whether a warning was given prior to putting the dog in the truck. Protocol would usually require such a warning, probably repeated several times. The warning would be something like: “This is the Pawtucket Police Department. Come out now or I will send in a police dog and you may be bitten or hurt.”

The court’s description continues:

“At approximately 7:20 p.m., Officer Pendergrass placed Bak inside the back of the Penske truck, without giving any particular command. Bak's breathing and body language changed, and Pendergrass gave him the command to search for narcotics; Bak alerted to the presence of narcotics almost immediately. Officer Pendergrass returned Bak to his police vehicle at approximately 7:25 p.m.”

Officer Smith, who was watching the events from a distance, was in a position to see a passenger leave the truck during the initial period of the stop and walk away but he was not at the time in communication with Lefebvre. It is not clear whether he saw a second individual leave the truck. Mayen-Munoz was arrested in a donut shop near where the truck had been stopped.

The truck was taken into inventory and bales of marijuana were found.

Probable Cause Not Found for Arrest

Mayen-Munoz raised several issues in the suppression motion, but the one involving the dog was whether there was probable cause to arrest him based on Bak’s alert inside the Penske. The court analyzed the timeline of the police action and found that the exits of the donut shop were covered at 7:22:50 (confirmed by radio record), while Bak alerted to the crates inside the Penske at approximately 7:23, about the same time the Mayen-Munoz was placed in handcuffs inside the donut shop.

The court determined there was no basis for finding that the Bak’s alert was known to any of the detectives prior to the arrest of Mayen-Munoz. The court concluded that the evidence that was known at the time of the arrest supported reasonable suspicion, but not probable cause.

Inevitable Discovery Justifies Arrest

The prosecution argued that even if probable cause did not exist at the time of Mayen-Munoz’s arrest, the inevitable discovery doctrine applied and the federal district court agreed. In applying the doctrine to the case, the court considered whether the canine search might have been illegal:

“Detective Smith's testimony suggests that any violation was inadvertent and unplanned. Like Medeiros, Smith also testified that there was a lot going on in a short period of time and that an anticipated one-location traffic stop had quickly turned into a three-location stop with multiple suspects fleeing. Smith testified that his original intention was to have Officer Pendergrass conduct an exterior dog sniff around the truck. Furthermore, Officer Pendergrass and Sergeant Lefebvre had legitimate concerns that someone might be in the back of the truck because Lefebvre expected three individuals inside, not one. Finally, the government presented evidence that the search complied with PPD policy and procedure manuals. Taking all of that evidence and testimony together, the actions of the officers and detectives, even if unconstitutional, do not amount to a truly egregious or intentional transgression of codefendant Alavez's constitutional rights but rather an inadvertent and unplanned response to a quickly developing and complicated situation.”


The motion to suppress was denied. The case appears close, however. The federal district court might have emphasized other activities, such as the questionable legality of directing the dog to enter the vehicle, which was quite likely to find drugs, not people.

The police report, submitted closer to the events than the testimony in the federal district court, stated that the dog entered the vehicle to search for drugs. Police are told to make reports thorough because of their possible admission in a prosecution. "If it ain't in the report, it didn't happen." It seems rather fortuitous that it would later be realized that the search was for people. One might wonder if the officers learned that directing a dog into a vehicle to search for drugs would probably get the evidence suppressed as a violation under the Fourth Amendment. Perhaps such questions will receive further attention if the case proceeds.

U.S. v. Mayen Munoz, Cr. No. 11-035-S, 2012 WL 464023, 2012 U.S.Dist. LEXIS 18002 (D.R.I. 2012)

This blog was written by John Ensminger and L.E. Papet.

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