Seizure of Drugs in Plain View Was Legal, but Search Following Dog’s Alert Should Have Waited for Warrant (Not That It Mattered)

Officer Michael Sweeney saw Shayna Kline make a U-turn against a red light on Martinsville Road in Bernards Township, New Jersey. Kline later disputed that she had turned on a red light, saying that she had waited for the light to turn green. Sweeney pulled the vehicle over and approached the passenger side of the vehicle. Officer Kazinsky, also on patrol, pulled up in a separate patrol car. Kline argued at trial that her car was targeted because it had out-of-state plates and that Sweeney must have already called for backup even before stopping her because Kazinsky arrived so quickly.

Sweeney, using a flashlight, saw what he believed to be marijuana and tobacco on the floorboards of Kline’s vehicle. Marijuana often looks like dirt from a distance of several feet so there was likely a significant amount or portions of joints were visible.

Sweeney asked for the driver’s license, registration, and insurance card, but Kline could only supply a “photocopy like” identification card. The passenger only had a non-government identification card from Maryland. Kline was asked to exit the car. When asked for her Social Security number, she could not remember it. Although she said she had been dating her passenger, Vladimir Reynoso, for three years, she could not remember his last name. She did not make eye contact and appeared nervous. Questioned separately, Reynoso said he was not dating Kline.

After learning Kline’s license had been revoked, Sweeney separately secured defendant and Reynoso in different patrol cars. It’s not clear why Kline was not immediately arrested, allowing for a search incident to the arrest or an inventory search. In any case, Sweeney entered the vehicle and found pieces of marijuana, tobacco, and cotton balls. He detected a strong odor of marijuana from the trunk area, he later testified, though he did not put this information in the warrant application. Sweeney then sought consent to search the vehicle but Sweeney refused. Cotton balls are used in the drug culture, for cleaning spoons and needles, to add moisture to marijuana, etc., but it was not explained why they were in the car.

Patrolman Dockery, by this time the senior officer present, requested a “canine dog,” a redundant term that apparently was the court’s or a witness’s way of describing a narcotics detection dog. Since drugs had already been found, providing probable cause for further action, it is not clear why a dog was needed at this point unless it was to test the dog, or because there was some feeling on the part of the officers that they might not have been able to convince a court that drugs had, in fact, been in plain view.

The dog arrived and, according to the opinion, alerted to the presence of marijuana. Most likely the dog was trained to alert to more than marijuana, and arguably could have alerted to another odor, but marijuana was the only drug found. Kline again refused to consent to a search of the vehicle and was told that it would be seized and a search warrant sought. Kline and Reynoso were arrested and brought to Bernards Township Police headquarters. Officers went to the judge’s residence and she granted their warrant application. Drugs were subsequently found in the trunk.

Trial

At trial, the court accepted the police version of events and concluded that “the presence of marijuana … the conflicting stories from … defendant and Mr. Reynoso, and defendant’s nervous and evasive behavior in response to question,” meant that “Officer Sweeney had probable cause to search the passenger compartment of defendant’s vehicle.” The court also found that holding the defendants until the emergent judge made herself available at 7 a.m. was reasonable. The seizure of marijuana from the floorboards of the car was found to be justified under the plain-view exception to the warrant requirement.

The Supreme Court of New Jersey, in a case decided in 1983, had stated that there were three requirements to the plain view exception:

1. The police must be lawfully in the viewing area.
2. The officer has to discover the evidence “inadvertently,” meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.
3. It must be “immediately apparent” to the police that the items in plain view ere evidence of a crime, contraband, or otherwise subject to seizure.

New Jersey v. Bruzzese, 94 N.J. 210, 463 A. 2d 320 (1983). The appellate court in the current case, New Jersey v. Kline, No. A-6126-09T2, 2011 WL 557382 (Ct. App. 2011), determined that these requirements had been met, in that Sweeney (1) had articulable suspicion to make the stop and be within the viewing area, (2) did not know he would see marijuana when he got to the car, and (3) it was readily apparent that there was marijuana on the floor of the car.

The defendant testified that she had been in the gas station for 28 to 30 minutes before she tried to drive away. What was going during this 28 minutes, a time period that does not seem to have been controverted by the prosecution? It was certainly enough time for the police to choreograph the sequence of their actions after Kline began to drive away and should have been of considerable interest to defense counsel for arguing that the plain-view exception might not have been satisfied.

The trial court then concluded that exigent circumstances and probable cause had justified the search following the dog's alert.

Appeal

The appellate court concluded that the seizure of the marijuana from the floorboards was justified under the plain view exception to the warrant requirement. Nevertheless, this court stated:

“We disagree, however, with the trial judge's ultimate conclusion that based upon all of these circumstances, the subsequent warrantless search of the vehicle's interior and under the hood was justified. While there were sufficient facts, measured objectively, from which Officer Sweeney had probable cause to believe that evidence of a crime may be found in the car, the circumstances at that point were not exigent. Defendant's vehicle was not stopped in a high crime area…. Defendant and Reynoso were being detained by at least two, possibly four, Bernard's Township police officers when Officer Sweeney commenced his search of the vehicle's interior. The testimony also revealed that there was a prosecutor and a judge on emergent duty…. Moreover, although the judge inexplicably required the officers to wait until seven a.m. to obtain the search warrant, this delay was not unreasonable, particularly since defendants were in custody based upon the seizure of narcotics found in plain view. Therefore, making an application for a search warrant was not impractical…. Under these circumstances, beyond entering defendant's vehicle to retrieve the suspected marijuana observed in plain view on the floorboards, the search of the interior and under the hood of defendant's vehicle was not justified under exigent circumstances.

“Nonetheless, no drugs or other contraband were seized as a result of this illegal intrusion. Moreover, the search warrant subsequently issued was valid. The facts upon which the warrant was issued did not include Officer Sweeney's detection of a strong odor of raw marijuana upon entering the vehicle. Rather, the judge was advised of his observation of suspected marijuana during the course of a motor vehicle stop for a traffic violation, that defendant did not have a driver's license, and that the canine dog alerted to the presence of drugs from the exterior of the vehicle before entering the vehicle and alerting to drugs from the interior. Thus, the illegal search of the vehicle's interior by Officer Sweeney and the canine dog was sufficiently attenuated from an otherwise valid seizure of drugs based upon the plain view exception to the warrant requirement and a validly-issued search warrant. Hence, there is no basis to reverse the order denying defendant's motion to suppress the evidence seized from the trunk.” (emphasis added)

The appellate court affirmed the trial court’s decision.

Open Questions

Since holding the defendants until a judge could be asked to issue a warrant was not unreasonable, and calling for the dog upon Kline’s refusal to allow a search was justified, it would appear that the dog’s sniff did not unreasonably prolong the stop or otherwise violate Kline’s rights. Why the dog’s alert did not provide sufficient probable cause for a warrantless search of additional parts of the vehicle and a full search of the interior was explained as coming after a point where there were no exigent circumstances, the car was not in a high-crime area, and a warrant could be obtained. Also, “the illegal search of the vehicle’s interior by Officer Sweeney and the canine dog was sufficiently attenuated from an otherwise valid seizure of drugs based upon the plain view exception to the warrant requirement and a validly-issued search warrant.”

The attenuation reference is in need of more specificity since the court’s position could be interpreted as meaning that the search subsequent to the sniff could not fit within any extension of Caballes. (See U.S. v. Marquez, 2005 WL 455858 (3d Cir. 2005), citing Illinois v. Caballes, 543 U.S. 405 (2006), holding that an alert at the trunk of a vehicle established probable cause to search it and arrest the driver.) The reason that Caballes and its Third Circuit and New Jersey progeny could not apply should have received some attention.

Attenuation is applied in probable cause situations where “the connection between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’” Wong Sun v. U.S., 371 U.S. 471 (1963), quoting Nardone v. U.S., 308 U.S. 338 (1939). Thus, sufficient attenuation between an illegal search or seizure and later evidence does not require application of the exclusionary rule. Segura v. U.S., 468 U.S. 796 (1984). In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme Court elaborated that the “notion of the ‘dissipation of the taint’ attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.” The illegal search, as to which the subsequent discovery of evidence must be attenuated for that subsequent evidence to be admitted, is the root of the poisonous tree as to which the subsequent evidence is fruit. See U.S. v. Dupree, 617 F.3d 724 (3d Cir. 2010). Here, the illegal canine search followed the initial plain-view seizure and presumably the question is whether this subsequent activity, having been declared illegal, would taint the warrant. The fact that no drugs or contraband were found in this second search was stated by the appellate court before mentioning that the warrant was valid. It is not clear whether drugs, if they had been found in this tainted search, would have been admissible though an inevitable discovery argument could have been made. Attenuation, in any case, would not help the prosecution here.

If the illegality of the search following the dog's alert is simply a determination that after the initial probable cause, the initial seizure, and the arrests, a warrant could have been obtained and further investigative procedures delayed until it was obtained, this raises additional questions. For instance, if the dog had alerted and plain view of the marijuana had not occurred until the search based on the dog’s alert began, could the dog-supported search have been continued? More specifically stated: if the hood or trunk had been raised because of an alert and drugs found, and the occupants arrested before an officer saw marijuana in plain view inside the car—say after the occupants had left it and shut the doors behind them, would searching the interior of the car have then required a warrant? It would seem so if the order of events can determine what supports a search, and conceivably the extent of a search in a vehicle that can have drugs in a number of places. Or should such a hypothetical reversal of the order of events be distinguished because the subsequent plain view of an officer involves no separate effort, unlike bringing a drug dog to a car? Answering such questions would provide additional understanding regarding the potential application of Caballes to real-world decision-making on the part of police.

It is to be noted that although the plain view exception might restrict a search or seizure to the area where illegal items were in plain view, this has not been held by some courts considering the extent of a vehicle search based on a sniff. See U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002) (alert at driver’s door justified search of trunk); Ohio v. Bolding, 1999 WL 334494 (Ct. App. 1999) (alert gives probable cause to search entire vehicle). For further discussion see “Specificity of Alert” in Police and Military Dogs, Chapter 8.

Conclusion

The lesson appears to be that the more reasons for probable cause the better because some may drop away through a court’s analysis of the circumstances. Watching a car for nearly half an hour in a gas station is a long time and suggests that the discovery of anything in plain sight might not have been particularly “inadvertent.” Perhaps this potential weakness in the police procedure explains why calling the dog was deemed necessary. Police are well advised to obtain a warrant as efficiently as possible once an arrest has been made, at least where evidence is in no danger of disappearing and a judge can be made available.

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

Attacking Probable Cause from a Drug Dog’s Alert: Look at the Dog’s History and Check the Dashboard Video

A Salt Lake City police officer was staking out a house for drug and gang activity. He checked the plates of a Cadillac parked in front of the house and found that it lacked insurance and its registration had expired. When a man and a woman got into the car and began to drive away, the officer stopped them. Two minutes later an officer arrived with a K-9 patrol dog with narcotics detection training. This officer thought the car matched the description given of a vehicle involved in a robbery. While the first officer’s questioning continued, the second brought his dog to the passenger side of the Cadillac, where, according to the handler, the dog alerted. The handler then allowed the dog, named Oso, inside the car where the handler said that he alerted to the front seats. He opened a fanny pack on the seat and found a Ruger semiautomatic handgun.

The driver, William Vincent Clarkson, was indicted for possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1) (“It shall be unlawful for any person (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm or ammunition….”). Clarkson moved to exclude the canine evidence based on the dog’s lack of reliability. The trial court denied the motion, saying that the officers reasonably relied on Oso’s alerts, and noting that in Illinois v. Caballes, the Supreme Court said only that a sniff should be performed by a “well-trained narcotics-detection dog.” 543 U.S. 405, 409 (2005).

Clarkson appealed. The Tenth Circuit held that there was a reasonable articulable suspicion for the initial stop, the questioning of the driver, a pat-down of the driver to check for weapons, and the initiation of the dog sniff. What the Tenth Circuit was not satisfied about was whether the dog’s alerts (outside and inside the car) had provided probable cause for the subsequent search. The Tenth Circuit said that probable cause could not simply be established by the fact the officers had no evidence the dog was not reliable. The circuit court said that this would amount to a good faith justification for a search and “would minimize motivation for police officers to ensure a dog is actually trained or reliable before deploying it.”

The circuit court did not think it was asking for much. All the prosecution had to do was show that the dog had been certified, or that its training had been sufficient to reach a certification level. Oso had, in fact, not been certified, as an injury prevented him and his handler from completing the final two weeks of an eight-week training program. It would generally have been relatively simple to establish that the dog could do the job anyway but two things got in the way: the defense counsel was not asleep at the wheel, as too often happens with canine evidence, and the whole traffic stop was caught on video. These two factors merged when the defense hired an expert, Steven Nicely, who noticed that Oso’s alerts from the handler’s descriptions were not consistent with what was visible on the video of the traffic stop, where the dog seemed primarily to bark outside the vehicle and did not lie down inside the vehicle as the handler had described.

Nicely also noticed that the video demonstrated that Oso did not stay with a “closed-mouth sniff” through the procedure. Nicely testified that without actively sniffing, Oso would have been unable to properly detect drugs. Even more serious, Nicely suspected that the handler might have been cueing the dog to alert when they approached the passenger side door. The handler also told Nicely that he was thinking of changing the dog’s alert from a passive alert (usually sitting or lying down) to an aggressive alert (such as scratching or biting). That meant that the dog’s alert had not been fixed, which meant to Nicely that Oso had not received enough training.

The dog’s training records were apparently so sparse that Nicely could not form an opinion as to what the dog had actually learned. The district court held that the defendant had satisfied his burden of demonstrating that Oso was unqualified to serve as a narcotics detection dog at the time he was deployed in this case. The search of the vehicle was therefore not supported by probable cause. The handgun was suppressed. U.S. v. Clarkson, 2007 WL 2406942 (D.Utah 2007), 551 F.3d 1196 (10th Cir. 2009), on remand, 2009 WL 1651043 (D.Utah 2009).

Nicely has become the bane of detection dog handlers. As far back as 1996, defense counsel in a traffic stop set up something of a sting operation to see if Illinois state troopers were targeting black and Hispanic drivers for traffic stops and dog sniffs. A private investigator involved in this effort was stopped and a trooper’s dog alerted, resulting in a fruitless search. Nicely provided a report that persuaded the court that the handler was not automatically entitled to qualified immunity. A recent Eight Circuit case quoted Nicely as saying that an Iowa state trooper was not a well-trained detector dog handler and his dog was not a well-trained detector dog. U.S. v. Winters, 600 F.3d 963 (8th Cir. 2010). Nicely’s testimony has not been restricted to narcotics detection dogs. In a 1998 Texas case, he testified that an accelerant detection dog’s handler was not training his dogs in such a way as to produce reliable results. Another witness argued that the dog may have detected mineral spirits, not gasoline. Fitts v. State, 982 S.W.2d 175 (Tex.App. – Houston 1998).

Courts have not always been impressed by Nicely, however. See U.S. v. Prokupek, 2009 WL 2634446 (D.Neb. 2009) (“The Court does not find the Defendants' expert, Steven Douglas Nicely, credible. His relevant experience is lacking. The other expert testimony clearly established Rocky's certification and reliability using accepted familiar standards. Rocky positively alerted and indicated to the presence of drugs in the car, and Prokupek clearly appeared under the influence.”). Even more critical was U.S. v. Olivares-Rodriquez, 2010 WL 1137498 (N.D. Iowa 2010), a case where the handler said the dog gave an aggressive alert outside a vehicle that turned out to contain cocaine. The dog jumped up against the rear bumper, gave a scratch, then repeated this action twice more. Nicely argued that the handler, by tapping the vehicle, and saying “Drugs, check!” was cueing the dog. The prosecution’s expert argued that the handler was just indicating where the dog should sniff. The court agreed with this expert, and leveled a jab directly at Nicely:

“The court further finds that although Nicely appears to have considerable experience in the area of dog training, his testimony in this case is not entitled to any weight. Indeed, his statement that he was 99% certain the dog just happened to pick up the boot where the drugs were located without picking up any scent from the drugs was ludicrous.”

Sentences like these will ricochet among litigators looking for experts in cases with canine aspects, and the district court’s assessment could reduce Nicely's value to the defense bar. I advise experts who testify a lot, and particularly who expect an income from testifying, be careful what cases you take, and don’t always work for the same side.

For more on how a dog's history can be brought into a probable cause hearing, see the decision of the South Dakota Supreme Court in State v. Nguyen, 726 N.W.2d 871 (Sup.Ct. 2007). The court found three divergent views as to how a drug dog's reliability may be shown:

1. Jurisdictions deeming a dog reliable solely by showing dog was trained and certified.
2. Jurisdictions deeming a dog's training and certification prima facie evidence the dog is reliable, shifting the burden to the defense to challenge the presumption.
3. Jurisdictions that require or allow a dog's field activity reports, along with evidence the dog is trained and certified, to be considered in determining reliability.

The court also noted that a number of appellate courts have found the decision ultimately rests with the trial court. See also the Ohio appellate decision, also involving Nguyen, State v. Nguyen, 157 Ohio App.3d 482, 811 N.E.2d 1180 (2004).

Police Dogs Never Quit Even If They're Fired, or How to Ruin Your Daughter's Party

The alert of a narcotics detection dog can be a scary thing. In an aggressive alert, the dog might bark and growl, but it is generally at the end of a lead while the other end is being held a police handler.

Imagine your household pet suddenly alerting to strangers on the street, or guests in your home.

A resident of New Paltz obtained a large mixed breed dog from a local SPCA. Afraid the dog might run away, she asked her vet to chip the dog. The vet, before beginning the procedure, scanned the dog and found there was already a chip at the back of the dog’s neck.

This was a depressing discovery for the new owner. The dog had been lost and ended up in the pound. If the prior owner were found, she would have to return the dog. But a check of the chip number with the manufacturer revealed that the prior owner was the New York City Police Department, which had let the dog go as a cost-cutting measure. The dog was supposed to be placed in a home, according to an NYPD official, but something had apparently gone wrong. In any case, the city did not want the dog back. There was also no need to chip him, since the new owner’s contact information could be entered in the database of the chip manufacturer.

There were advantages to discovering the dog’s history. The new owner learned the dog was a Rottweiler-bloodhound mix and was told the dog’s name and age. The dog had been trained as a search and rescue dog but had also received basic police dog training, including narcotics detection training. The NYPD official explained what narcotics detection was and mentioned something about the dog having an alert for certain drugs.

Some months later, the owner’s daughter had a party. The teenagers were having a good time when a new boy arrived. After walking around the living room, the boy came close to the dog, which began growling. The dog backed the boy towards the front door, the growling getting louder as everyone became quiet. Frightened, the boy ran from the house.

The dog’s new owner remembered what she had heard about the dog’s brief training in narcotics detection and guessed the rest. She confronted the boy.

“Have you been smoking something?”

The boy admitted he had and she asked him to go home.

I wonder if police departments facing canine downsizing situations have realized the marketing potential of placing a narcotics detection dog. “Worried about your children smoking pot? A slightly used drug dog can keep your home drug-free!”

A cadaver dog, on the other hand, might not be such a good idea. You could learn more about what’s in your neighbors’ yards than would be good for you.