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.”
Conclusion
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.
Showing posts with label Fourth Amendment. Show all posts
Showing posts with label Fourth Amendment. Show all posts
Thursday, March 1, 2012
Friday, August 26, 2011
Is the Bed of a Pickup as Private as the Inside of a Car? Probably, but the Barrier is Imaginary and More Easily Crossed
During a traffic stop in Marysville, California, on May 14, 2009, a Marysville Police Department reserve officer, Matthew Minton, pulled over a pickup because the license plate was obscured by the rear bumper and the license plate lamp was not functioning. The officer saw that the driver, Robin Briggs, had glassy eyes and might be intoxicated. Returning to his patrol car, the officer radioed for assistance from Officer Christopher Miller who “was more familiar with driving under the influence investigations and worked with a narcotics detection dog.” Miller arrived with his dog about two minutes into the initial stop.
Briggs stepped out of the vehicle and was shown the problem with the truck’s license plate. Officer Minton looked at Briggs’s pupils and asked him if he was under the influence of narcotics. Briggs said he had taken methadone earlier. Presumably this was a legal prescription, which meant that Briggs would have received a warning not to drive for a time. Briggs refused Minton’s request to search the truck. Minton asked Miller to have the dog, Tommy, check the exterior of the pickup.
Tommy
Tommy was a dual purpose dog that protected his handler and detected narcotics, specifically cocaine base, cocaine powder, methamphetamine, marijuana, and heroin. Detection of these odors is required by the California State Commission on Peace Officer Standards and Training (POST). Tommy was tested annually for these odors in both vehicles and buildings and had been certified every time he had been tested. The court separately described Officer Miller’s training:
“Officer Miller is ‘trained to read [Tommy], watch his behavior, how he reacts....’ When Tommy is sniffing the air around a vehicle, Officer Miller watches for any change in Tommy's behavior, such as a deviation from his standard high/low search pattern or the use of a ‘cone pattern’ to work back to the source of the odor. Officer Miller's ability to read Tommy's behavior changes comes with hours of training. When Tommy locates the source of an odor, his ‘passive alert’ is to sit and stare at the location where he found the controlled substance. This indicates to Officer Miller that Tommy smells the odor of one of the narcotics Tommy has been trained to detect.”
Sniff and Searches
At the traffic stop, Miller had the dog begin the sniff at the front of the vehicle and moved to the back. Tommy followed Miller but was not on a lead. The court describes what happened next:
“At the rear tire on the driver's side, Officer Miller noticed a change in Tommy's behavior. First, Tommy ‘snapp[ed]’ back from circling around the truck and redirected his search by doubling back. Officer Miller kept walking around the truck, because he did not want to influence Tommy's decision to redirect the search. Tommy next used a ‘scent cone’ search pattern, working right to left in an attempt to find the odor. Tommy then stood up on his hind legs with his front paws on the side of the truck and sniffed over the bed of the pickup. After sniffing the air in that area, Tommy immediately dropped down into his ‘sit/stare’ alert. Tommy alerted to a black backpack in the bed of the truck. The backpack was the only item in the bed of the truck in that area and was the first thing Officer Miller saw when he went to take a look in the bed after Tommy alerted.”
The description indicates that Miller was an experienced handler using good practices.
Following Tommy’s alert, Miler opened the backpack and found chemical bottles and a bottle with white pills. The chemicals were identified as xylene, denatured alcohol, and acetone. Miller and Minton believed the pills might be ephedrine. Miller went no further:
“After seeing these items, Officer Miller stopped looking through the backpack and did not ‘go hands on’ with the evidence, pursuant to policy. Consequently, Officer Miller could not be certain if the backpack contained any of the narcotics Tommy was trained to detect, and he did not determine if the backpack did contain any of those items at a later date.”
The policy also indicates good practices on the part of the police department.
Officer Minton placed the occupants of the truck under arrest. Officer Joshua Jellsey of the Yuba-Sutter Narcotics Enforcement Team arrived and recognized the items in the backpack as commonly used in making methamphetamine. Jellsey obtained a search warrant for the residence of Briggs and Stillwell, the driver and passenger respectively. Additional ingredients and utensils were found in the house, some of which showed the presence of ephedrine and pseudoephedrine. An additional search of the pickup revealed a pink-stained coffee filter and syringes.
The trial court found the initial traffic stop was justified and that the detention was not prolonged because the dog alerted to the backpack within ten minutes of the initial stop. The trial court was, however, “somewhat troubled by the dog alerting on an item or items which don’t fall within the four categories that the dog is trained to alert on.” The court found that the alert produced probable cause and did not find it “illegal or unconstitutional because the dog’s nose happened to extend into the bed once the dog alerted.”
Reliability
The defendants appealed, contending that the prosecution had not established Tommy’s reliability, noting that no cocaine, methamphetamine, marijuana, or heroin was found as a result of Tommy’s alert. They also argued that Tommy invaded the vehicle by putting his front paws on the truck and sniffing above and inside the truck bed, thereby turning the sniff into a search that violated the Fourth Amendment.
Following Illinois v. Caballes, 543 U.S. 405 (2005) and the California State Supreme Court case of People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982), the appellate court held that “it is clear that a well-trained detection dog’s sniff of the exterior of a pickup truck does not amount to a Fourth Amendment search. The court concluded that substantial evidence at the trial court’s suppression hearing had supported a finding that “Tommy was well-trained and, thus, reliable.” Tommy had been certified annually and was up to date on his certifications. Miller, the handler, was also trained and certified.
As to the argument that Tommy was not reliable because none of the drugs he was trained to recognize were found in this case, the court stated:
“Officer Miller never received any lab results as to the contents of the backpack, and there was no evidence at the hearing as to the complete contents of the backpack. While it is thus true “[t]here was no evidence that the backpack contained contraband,” that does not mean the backpack did not contain contraband. Therefore, no determination can be made as to Tommy's reliability based on his alert in this case…. Defendants offer no California authority for the proposition that evidence of a single error by an otherwise well-trained detection dog makes that dog unreliable.”
Training and Certification
The defendants cited a Florida case, Florida v. Matheson, 870 So.2d 8 (Ct. App. 2003), which held that training and certification, standing alone, could not provide probable cause, but at most “mere suspicion.” The California appellate court noted, however, that California cases “have not required evidence of a dog’s success rate to establish probable cause.” (Matheson was discussed by us in a prior blog). The court cited another California appellate decision, People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (Ct. App. 2004), where a handler’s knowledge of a pair of detection dogs’ training and experience, and observation of the dogs’ trained behavior, gave probable cause for the issuance of a warrant. Therefore:
“Here, as in Bautista, Officer Miller was aware of Tommy’s training and certification and he observed Tommy change his behavior and alert in a manner consistent with his training. Nothing more was required.” A few paragraphs later, the court adds: “California authority does not support the notion that more than an alert from a trained narcotics detection dog is needed to establish probable cause for a search.”
Scope of the Sniff
The defendants also argued that Tommy exceeded the allowable scope of the sniff when he placed his front paws on the pickup truck and sniffed over and inside the bed of the truck. This led to an analysis of those cases in which dogs have jumped into windows and through open doors. The court stated:
“Tommy's action of standing up on his hind legs and putting his front paws on the side of the truck is almost identical to the behavior the Eighth Circuit found constitutional in Olivera–Mendez [U.S. v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007)] …. If the officer's actions in that case did not amount to an infringement of constitutional rights, then certainly neither did Tommy's when he stuck his nose past the imaginary 'plane' at the top of the truck bed to sniff the backpack. More importantly, the instinctive action of a dog jumping into an open part of a car it is sniffing (assuming that the police officer did not request that the owner of the vehicle open a door for this purpose) does not violate the Fourth Amendment…. Here then, Tommy's instinctive actions of following the odor from the ground up to the source (even though these actions may have caused him to sniff in the bed of the truck) did not violate the Fourth Amendment.”
The defects in labeling as instinctual a dog’s behavior in jumping into a vehicle was discussed by us in the earlier blog on jumping into windows.
Plain-Sniff Doctrine
Although not referred to by the court, the canine team’s actions could be further justified by the plain-sniff doctrine. In Hutchinson v. U.S., 471 F.Supp.2d 497 (M.D. Pa. 2007), an officer had already seen what he believed to be marijuana in a car when the drug dog jumped through an open window and alerted to a backpack in the back seat. The federal district court said that the “plain sniff rule would apply because the dog was not aided in its sniff by an intervening officer and the dog detected the odor in an area in which it was lawfully present.” The federal district court cited cases finding the plain sniff doctrine a logical extension of the plain view doctrine. If the plain sniff (sometimes plain smell) doctrine applies to a dog jumping through a car window when unaided by an officer, it easily applies to the open bed of a pickup truck around which the dog is being led.
This is not to say that a court could not accept a cueing argument in such a circumstance. If the dog’s nose crossed the “imaginary 'plane' at the top of the truck bed” at the behest of the handler, and evidence of this could be provided, the defense might be able to say that crossing the plane was not the “instinctive” action the court here assumed it was. Just as we noted with regard to training windows in our discussion of the District of Maryland case of Batista, police dog training involves dogs’ learning to jump onto platforms. Prosecutors and police should be aware that the increased use of cueing arguments is going to mean that defense counsel are going to be pursuing such possibilities in discovery and cross-examination.
Conclusion
The court’s analogizing the entry of a police dog into the bed of a pickup to jumping through a window is probably sound, though the bed of the pickup will generally be more accessible than the inside of a vehicle so that the dog’s following of the scent would be more difficult to stop. Some courts might say that sniffing in the bed was part of the sniff of the exterior of the vehicle and that as long as the alert was not cued, even a jump into the bed of the vehicle is not constitutionally prohibited. The situation is close to a “plain sniff” situation, the canine analog to “plain sight,” where the dog can be expected to alert to what is before its nose, there being no physical barrier—even a potential barrier beyond the height of the pickup bed—to stop the dog.
The difference between the California and Florida courts on the necessity for the production of training and field records may be ripening into an issue appropriate for guidance from the U.S. Supreme Court.
This blog was written by John Ensminger and L.E. Papet.
People v. Stillwell, 2011 WL 3035109, 11 Cal. Daily Op. Serv. 9315 (Cal. App. 2011); for a recent Florida case rejecting canine evidence based partly on field records, see Wiggs v. Florida, 2011 WL 3300139 (Ct. App. 2011).
Briggs stepped out of the vehicle and was shown the problem with the truck’s license plate. Officer Minton looked at Briggs’s pupils and asked him if he was under the influence of narcotics. Briggs said he had taken methadone earlier. Presumably this was a legal prescription, which meant that Briggs would have received a warning not to drive for a time. Briggs refused Minton’s request to search the truck. Minton asked Miller to have the dog, Tommy, check the exterior of the pickup.
Tommy
Tommy was a dual purpose dog that protected his handler and detected narcotics, specifically cocaine base, cocaine powder, methamphetamine, marijuana, and heroin. Detection of these odors is required by the California State Commission on Peace Officer Standards and Training (POST). Tommy was tested annually for these odors in both vehicles and buildings and had been certified every time he had been tested. The court separately described Officer Miller’s training:
“Officer Miller is ‘trained to read [Tommy], watch his behavior, how he reacts....’ When Tommy is sniffing the air around a vehicle, Officer Miller watches for any change in Tommy's behavior, such as a deviation from his standard high/low search pattern or the use of a ‘cone pattern’ to work back to the source of the odor. Officer Miller's ability to read Tommy's behavior changes comes with hours of training. When Tommy locates the source of an odor, his ‘passive alert’ is to sit and stare at the location where he found the controlled substance. This indicates to Officer Miller that Tommy smells the odor of one of the narcotics Tommy has been trained to detect.”
Sniff and Searches
At the traffic stop, Miller had the dog begin the sniff at the front of the vehicle and moved to the back. Tommy followed Miller but was not on a lead. The court describes what happened next:
“At the rear tire on the driver's side, Officer Miller noticed a change in Tommy's behavior. First, Tommy ‘snapp[ed]’ back from circling around the truck and redirected his search by doubling back. Officer Miller kept walking around the truck, because he did not want to influence Tommy's decision to redirect the search. Tommy next used a ‘scent cone’ search pattern, working right to left in an attempt to find the odor. Tommy then stood up on his hind legs with his front paws on the side of the truck and sniffed over the bed of the pickup. After sniffing the air in that area, Tommy immediately dropped down into his ‘sit/stare’ alert. Tommy alerted to a black backpack in the bed of the truck. The backpack was the only item in the bed of the truck in that area and was the first thing Officer Miller saw when he went to take a look in the bed after Tommy alerted.”
The description indicates that Miller was an experienced handler using good practices.
Following Tommy’s alert, Miler opened the backpack and found chemical bottles and a bottle with white pills. The chemicals were identified as xylene, denatured alcohol, and acetone. Miller and Minton believed the pills might be ephedrine. Miller went no further:
“After seeing these items, Officer Miller stopped looking through the backpack and did not ‘go hands on’ with the evidence, pursuant to policy. Consequently, Officer Miller could not be certain if the backpack contained any of the narcotics Tommy was trained to detect, and he did not determine if the backpack did contain any of those items at a later date.”
The policy also indicates good practices on the part of the police department.
Officer Minton placed the occupants of the truck under arrest. Officer Joshua Jellsey of the Yuba-Sutter Narcotics Enforcement Team arrived and recognized the items in the backpack as commonly used in making methamphetamine. Jellsey obtained a search warrant for the residence of Briggs and Stillwell, the driver and passenger respectively. Additional ingredients and utensils were found in the house, some of which showed the presence of ephedrine and pseudoephedrine. An additional search of the pickup revealed a pink-stained coffee filter and syringes.
The trial court found the initial traffic stop was justified and that the detention was not prolonged because the dog alerted to the backpack within ten minutes of the initial stop. The trial court was, however, “somewhat troubled by the dog alerting on an item or items which don’t fall within the four categories that the dog is trained to alert on.” The court found that the alert produced probable cause and did not find it “illegal or unconstitutional because the dog’s nose happened to extend into the bed once the dog alerted.”
Reliability
The defendants appealed, contending that the prosecution had not established Tommy’s reliability, noting that no cocaine, methamphetamine, marijuana, or heroin was found as a result of Tommy’s alert. They also argued that Tommy invaded the vehicle by putting his front paws on the truck and sniffing above and inside the truck bed, thereby turning the sniff into a search that violated the Fourth Amendment.
Following Illinois v. Caballes, 543 U.S. 405 (2005) and the California State Supreme Court case of People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982), the appellate court held that “it is clear that a well-trained detection dog’s sniff of the exterior of a pickup truck does not amount to a Fourth Amendment search. The court concluded that substantial evidence at the trial court’s suppression hearing had supported a finding that “Tommy was well-trained and, thus, reliable.” Tommy had been certified annually and was up to date on his certifications. Miller, the handler, was also trained and certified.
As to the argument that Tommy was not reliable because none of the drugs he was trained to recognize were found in this case, the court stated:
“Officer Miller never received any lab results as to the contents of the backpack, and there was no evidence at the hearing as to the complete contents of the backpack. While it is thus true “[t]here was no evidence that the backpack contained contraband,” that does not mean the backpack did not contain contraband. Therefore, no determination can be made as to Tommy's reliability based on his alert in this case…. Defendants offer no California authority for the proposition that evidence of a single error by an otherwise well-trained detection dog makes that dog unreliable.”
Training and Certification
The defendants cited a Florida case, Florida v. Matheson, 870 So.2d 8 (Ct. App. 2003), which held that training and certification, standing alone, could not provide probable cause, but at most “mere suspicion.” The California appellate court noted, however, that California cases “have not required evidence of a dog’s success rate to establish probable cause.” (Matheson was discussed by us in a prior blog). The court cited another California appellate decision, People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (Ct. App. 2004), where a handler’s knowledge of a pair of detection dogs’ training and experience, and observation of the dogs’ trained behavior, gave probable cause for the issuance of a warrant. Therefore:
“Here, as in Bautista, Officer Miller was aware of Tommy’s training and certification and he observed Tommy change his behavior and alert in a manner consistent with his training. Nothing more was required.” A few paragraphs later, the court adds: “California authority does not support the notion that more than an alert from a trained narcotics detection dog is needed to establish probable cause for a search.”
Scope of the Sniff
The defendants also argued that Tommy exceeded the allowable scope of the sniff when he placed his front paws on the pickup truck and sniffed over and inside the bed of the truck. This led to an analysis of those cases in which dogs have jumped into windows and through open doors. The court stated:
“Tommy's action of standing up on his hind legs and putting his front paws on the side of the truck is almost identical to the behavior the Eighth Circuit found constitutional in Olivera–Mendez [U.S. v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007)] …. If the officer's actions in that case did not amount to an infringement of constitutional rights, then certainly neither did Tommy's when he stuck his nose past the imaginary 'plane' at the top of the truck bed to sniff the backpack. More importantly, the instinctive action of a dog jumping into an open part of a car it is sniffing (assuming that the police officer did not request that the owner of the vehicle open a door for this purpose) does not violate the Fourth Amendment…. Here then, Tommy's instinctive actions of following the odor from the ground up to the source (even though these actions may have caused him to sniff in the bed of the truck) did not violate the Fourth Amendment.”
The defects in labeling as instinctual a dog’s behavior in jumping into a vehicle was discussed by us in the earlier blog on jumping into windows.
Plain-Sniff Doctrine
Although not referred to by the court, the canine team’s actions could be further justified by the plain-sniff doctrine. In Hutchinson v. U.S., 471 F.Supp.2d 497 (M.D. Pa. 2007), an officer had already seen what he believed to be marijuana in a car when the drug dog jumped through an open window and alerted to a backpack in the back seat. The federal district court said that the “plain sniff rule would apply because the dog was not aided in its sniff by an intervening officer and the dog detected the odor in an area in which it was lawfully present.” The federal district court cited cases finding the plain sniff doctrine a logical extension of the plain view doctrine. If the plain sniff (sometimes plain smell) doctrine applies to a dog jumping through a car window when unaided by an officer, it easily applies to the open bed of a pickup truck around which the dog is being led.
This is not to say that a court could not accept a cueing argument in such a circumstance. If the dog’s nose crossed the “imaginary 'plane' at the top of the truck bed” at the behest of the handler, and evidence of this could be provided, the defense might be able to say that crossing the plane was not the “instinctive” action the court here assumed it was. Just as we noted with regard to training windows in our discussion of the District of Maryland case of Batista, police dog training involves dogs’ learning to jump onto platforms. Prosecutors and police should be aware that the increased use of cueing arguments is going to mean that defense counsel are going to be pursuing such possibilities in discovery and cross-examination.
Conclusion
The court’s analogizing the entry of a police dog into the bed of a pickup to jumping through a window is probably sound, though the bed of the pickup will generally be more accessible than the inside of a vehicle so that the dog’s following of the scent would be more difficult to stop. Some courts might say that sniffing in the bed was part of the sniff of the exterior of the vehicle and that as long as the alert was not cued, even a jump into the bed of the vehicle is not constitutionally prohibited. The situation is close to a “plain sniff” situation, the canine analog to “plain sight,” where the dog can be expected to alert to what is before its nose, there being no physical barrier—even a potential barrier beyond the height of the pickup bed—to stop the dog.
The difference between the California and Florida courts on the necessity for the production of training and field records may be ripening into an issue appropriate for guidance from the U.S. Supreme Court.
This blog was written by John Ensminger and L.E. Papet.
People v. Stillwell, 2011 WL 3035109, 11 Cal. Daily Op. Serv. 9315 (Cal. App. 2011); for a recent Florida case rejecting canine evidence based partly on field records, see Wiggs v. Florida, 2011 WL 3300139 (Ct. App. 2011).
Wednesday, February 3, 2010
Working Off-Leash with Police Dog Does Not Produce Liability for Officer
A case that reached the Eighth Circuit in 2003 shows how complicated police responsibilities can sometimes be. Police officers in Duluth received a complaint about a party two blocks from Lake Superior. They began to breath test some of the people at the party, and directed a UM honors student and football player named Dennen to get in the testing queue. Instead, Dennen, who was visibly drunk, went upstairs and tried to hide under a futon. When an officer found him under the futon, he was again told to step outside for a breath test.
Dennen went outside the building and walked away. A little less than an hour later, an officer saw him walking on a street, perhaps carrying a plastic bag. The officer, Steven Peterson, determined to investigate and turned his car around. By the time he got to where he thought Dennen would be Dennen was gone. He took out his police dog, Citus, and began looking in the backyards nearby. Let's switch to the court's description:
"After a few moments, Citus stopped and indicated that he had picked up a human scent from an unexpected direction — away from the houses and toward a wooded area. Citus and Peterson changed course to follow this scent. As they were running, Citus ran some distance ahead of Peterson — approximately fifteen-to-thirty feet. However, as soon as Citus entered the wooded area, Peterson commanded him to return. Citus slowed his pace, and then returned to Peterson. Upon Citus's return, Peterson leashed him."
Let's stop the court's account for a moment to note that Peterson was not with his dog for some brief time, during which the dog may have encountered Dennen and conceivably could have bitten the student. Let's return to the court's words:
"At this point, Peterson and Citus were standing about fifteen-to-twenty feet from the edge of the wooded area. Peterson then heard movement from that area. He identified himself, announced Citus's presence, and ordered whomever was hiding in the woods to come out. Shortly after Peterson's announcement, Peterson heard the sounds of breaking brush and a loud crash. Peterson and Citus entered the woods. After doing so, Peterson and Citus came to the edge of a deep, muddy, and steep ravine. They descended about fifteen feet and then saw Dennen lying face-down in a creek bed, which was an additional thirty-five feet below them.
"At 02:38:06 a.m. Peterson radioed the dispatcher and requested medical assistance. Tanksi and Officer M. Peterson, the two officers who were at the party, left the house and headed toward the river. After descending into the ravine, they found Dennen seriously injured. The officers attempted to resuscitate Dennen. Dennen was rushed to the hospital for treatment. Unfortunately, Dennen had suffered a severe head injury and remained in a coma for several weeks."
Let's stop again. As any police officer reading this would know, Peterson was now at risk for a lawsuit. His function had shifted from investigation to saving an injured person, an injury he might be accused of causing. The court now summarizes the subsequent events:
"Toxicology reports later revealed the presence of barbiturates, amphetamines, and an alcohol level of .227 in Dennen's blood. Medical records reflected that Dennen had multiple small lacerations on his upper right arm, small abrasions and scratches on his elbows and forearms, and abrasions and punctures on both elbows and his left wrist. Dennen has no recollection of the events of September 26, 1998.
Dennen spent over a year in rehabilitation, and, although he has regained many of his physical and mental abilities, he still suffers from some of the effects of the brain injury."
Dennen sued for excessive use of force in violation of the Fourth Amendment, creating liability under 42 U.S.C. 1983. A particular focus of Dennen's complaint was that Citus had been off-leash when Peterson began searching for him. The court, fortunately, was not willing to impose a leash requirement, stating:
"[I]t would not be practical to require a police officer to always have his canine on a leash. There are a variety of instances when it would not be appropriate to do so. For example, there is no need to have a canine on a leash if an officer is talking to children in a school, or when the dog is sniffing for contraband. Particularly, a leash would not be required in circumstances where officer safety is concerned."
Dennen did have his own expert, who testified on the use of police dogs without leashes:
"To establish unreasonableness, Dennen relies upon the opinion of his expert in the area of police canine training, VanNess H. Bogardus, III. In his report, Bogardus states: [I]t is generally agreed among law enforcement agencies that when, in the course of a criminal investigation or arrest, an officer releases a dog[, it is] with the knowledge that the dog will probably bite anyone that it finds.... This is part due to the fact that with dogs that are trained to bite and hold, the 'attack' command is contained within the 'send' command as a part of the dog's training."
Dennen himself had no memory of the events and could not explain his injuries or describe any encounter with Citus. The Eighth Circuit accepted that Peterson could have had valid reasons for letting Citus work off-leash, but did note there was evidence that Citus had bitten others. This was not enough, however, as the question was not whether Citus had bitten Dennen, which he may have, but whether it was an excessive use of force to take Citus off-leash. After all, Peterson did not know what Dennen was up to, did not know if he was armed, but did know he was "in a part of town known for some rowdiness and criminal activity."
The Eighth Circuit affirmed the district court’s denial of the 1983 claim, and held that the officer was entitled to official immunity on the state law claims of negligence and negligent infliction of emotional distress. Dennen v. City of Duluth, 350 F.3d 786 (8th Cir. 2003).
Dennen went outside the building and walked away. A little less than an hour later, an officer saw him walking on a street, perhaps carrying a plastic bag. The officer, Steven Peterson, determined to investigate and turned his car around. By the time he got to where he thought Dennen would be Dennen was gone. He took out his police dog, Citus, and began looking in the backyards nearby. Let's switch to the court's description:
"After a few moments, Citus stopped and indicated that he had picked up a human scent from an unexpected direction — away from the houses and toward a wooded area. Citus and Peterson changed course to follow this scent. As they were running, Citus ran some distance ahead of Peterson — approximately fifteen-to-thirty feet. However, as soon as Citus entered the wooded area, Peterson commanded him to return. Citus slowed his pace, and then returned to Peterson. Upon Citus's return, Peterson leashed him."
Let's stop the court's account for a moment to note that Peterson was not with his dog for some brief time, during which the dog may have encountered Dennen and conceivably could have bitten the student. Let's return to the court's words:
"At this point, Peterson and Citus were standing about fifteen-to-twenty feet from the edge of the wooded area. Peterson then heard movement from that area. He identified himself, announced Citus's presence, and ordered whomever was hiding in the woods to come out. Shortly after Peterson's announcement, Peterson heard the sounds of breaking brush and a loud crash. Peterson and Citus entered the woods. After doing so, Peterson and Citus came to the edge of a deep, muddy, and steep ravine. They descended about fifteen feet and then saw Dennen lying face-down in a creek bed, which was an additional thirty-five feet below them.
"At 02:38:06 a.m. Peterson radioed the dispatcher and requested medical assistance. Tanksi and Officer M. Peterson, the two officers who were at the party, left the house and headed toward the river. After descending into the ravine, they found Dennen seriously injured. The officers attempted to resuscitate Dennen. Dennen was rushed to the hospital for treatment. Unfortunately, Dennen had suffered a severe head injury and remained in a coma for several weeks."
Let's stop again. As any police officer reading this would know, Peterson was now at risk for a lawsuit. His function had shifted from investigation to saving an injured person, an injury he might be accused of causing. The court now summarizes the subsequent events:
"Toxicology reports later revealed the presence of barbiturates, amphetamines, and an alcohol level of .227 in Dennen's blood. Medical records reflected that Dennen had multiple small lacerations on his upper right arm, small abrasions and scratches on his elbows and forearms, and abrasions and punctures on both elbows and his left wrist. Dennen has no recollection of the events of September 26, 1998.
Dennen spent over a year in rehabilitation, and, although he has regained many of his physical and mental abilities, he still suffers from some of the effects of the brain injury."
Dennen sued for excessive use of force in violation of the Fourth Amendment, creating liability under 42 U.S.C. 1983. A particular focus of Dennen's complaint was that Citus had been off-leash when Peterson began searching for him. The court, fortunately, was not willing to impose a leash requirement, stating:
"[I]t would not be practical to require a police officer to always have his canine on a leash. There are a variety of instances when it would not be appropriate to do so. For example, there is no need to have a canine on a leash if an officer is talking to children in a school, or when the dog is sniffing for contraband. Particularly, a leash would not be required in circumstances where officer safety is concerned."
Dennen did have his own expert, who testified on the use of police dogs without leashes:
"To establish unreasonableness, Dennen relies upon the opinion of his expert in the area of police canine training, VanNess H. Bogardus, III. In his report, Bogardus states: [I]t is generally agreed among law enforcement agencies that when, in the course of a criminal investigation or arrest, an officer releases a dog[, it is] with the knowledge that the dog will probably bite anyone that it finds.... This is part due to the fact that with dogs that are trained to bite and hold, the 'attack' command is contained within the 'send' command as a part of the dog's training."
Dennen himself had no memory of the events and could not explain his injuries or describe any encounter with Citus. The Eighth Circuit accepted that Peterson could have had valid reasons for letting Citus work off-leash, but did note there was evidence that Citus had bitten others. This was not enough, however, as the question was not whether Citus had bitten Dennen, which he may have, but whether it was an excessive use of force to take Citus off-leash. After all, Peterson did not know what Dennen was up to, did not know if he was armed, but did know he was "in a part of town known for some rowdiness and criminal activity."
The Eighth Circuit affirmed the district court’s denial of the 1983 claim, and held that the officer was entitled to official immunity on the state law claims of negligence and negligent infliction of emotional distress. Dennen v. City of Duluth, 350 F.3d 786 (8th Cir. 2003).
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