Legal

Ohio Case August 2010..7 Kilo Bust...Dog Alert to Car within 10-15 mins of Stop..Still Good

Thursday, 12 August 2010 04:04 Ted Daus

These Guys Must have heard My Lecture !!

Court of Appeals of Ohio,Twelfth District, Butler County.

STATE of Ohio, Plaintiff-Appellee,
v.
Otis Michael KELLY, Defendant-Appellant.

No. CA2009-10-252.
Decided Aug. 2, 2010.

Criminal Appeal from Butler County, Court of Common Pleas, Case No. CR2008-11-1918.
Robin N. Piper III, Butler County Prosecuting Attorney, Gloria J. Sigman, Hamilton, OH, for plaintiff-appellee.

Scott N. Blauvelt, Hamilton, OH, for defendant-appellant.

YOUNG, P.J.

*1 {¶ 1} Defendant-appellant, Otis Kelly, appeals his conviction in the Butler County Court of Common Pleas for one count of possession of cocaine and the accompanying specification and forfeitures. We affirm the decision of the trial court.

{¶ 2} Detective Mike Hackney of the Butler County Sheriff's Office, Drug and Vice Investigations Unit, received information from several confidential informants that Sudinia Johnson had recently sold several kilos of cocaine, and that he had arranged to pick up between seven to ten additional kilos for sale and distribution. Hackney and two other drug enforcement agents performed a trash pull at Johnson's home address, and also placed a global positioning system (GPS) on Johnson's van. As a result of the trash pull, Hackney found multiple receipts for gas purchases within the same day from stations in the Chicago area and Cincinnati.

{¶ 3} Hackney continually tracked the GPS, and on the Tuesday following the trash pull, the GPS indicated that Johnson was located at a shopping center near Chicago. Hackney made several attempts to contact Chicago law enforcement to verify Johnson's location. A worker from the Butler County Sheriff's office indicated that his brother, Rudy Medellin, lived in the Chicago area and was familiar with the shopping center at which Johnson was located. Hackney contacted Medellin, a retired immigration and customs enforcement officer, and asked him to confirm that Johnson's van was in fact located at the shopping center in Chicago.

{¶ 4} Medellin located Johnson's van at the exact location indicated on the GPS tracker and began relaying information to Hackney regarding two men inside the vehicle. Medellin continued his surveillance, and eventually followed the van to a residence. Medellin saw the two men exit the van and enter the home, and later saw one man exit the house carrying a box. The man, later identified as Johnson, got into the van and drove away. At the same time, the other man, later identified as Kelly, pulled out of the garage in a Ford Taurus that had Ohio plates. Medellin continued to follow Johnson's van and the Ford until the vehicles reached the Butler County area.

{¶ 5} As Medellin followed the vehicles, Hackney communicated with law enforcement officials along the route to coordinate efforts to make traffic stops on both vehicles. At some point, the two vehicles separated and Medellin continued to follow Kelly, while the GPS continued to track Johnson's van. Johnson was eventually pulled over, and police began to focus on Kelly. Hackney directed the officers to look for cause to perform a traffic stop on the Ford.

{¶ 6} Deputy Eric Betz with the Butler County Sheriff's Office was patrolling with his partner Deputy Milton Carpenter when they received a call from Hackney instructing them to watch for the Ford. Soon after Hackney's call, Betz and Carpenter spotted a Ford matching the description given by Hackney, and began following it. Within a short distance, Betz, the passenger in the police cruiser, observed Kelly following too closely to the SUV driving in front of the Ford. Betz and Carpenter then initiated a traffic stop.

*2 {¶ 7} Carpenter approached the Ford on the driver's side, as Betz approached the passenger's side door. The deputies asked Kelly for his license, and had him exit the car. According to Betz's testimony at the motion to suppress hearing, before Kelly exited the car, he appeared very nervous and was “moving around in the vehicle.” When the deputies asked Kelly where he was coming from, he responded that he had been at his mother's apartment complex. The deputies then placed Kelly in the back of their police cruiser.

{¶ 8} Approximately 30 seconds after the traffic stop, a state trooper and a Hamilton County canine unit arrived on the scene and walked drug detecting dogs around the Ford. The state trooper's dog indicated the presence of drugs at the rear bumper area of the car, and the Hamilton County canine indicated at the same position. Upon searching the trunk area, Hackney found a hidden compartment that contained seven kilos of cocaine.

{¶ 9} Kelly was indicted for one count of trafficking in cocaine with a major drug offender specification and three forfeiture specifications, and one count of possession of cocaine with the same four specifications. Kelly filed a motion to suppress, claiming that the traffic stop was unlawful, that the stop was unreasonably long, and that the warrantless search of the trunk was a constitutional violation. After a hearing, the trial court denied Kelly's motion.

{¶ 10} On the day trial was to begin, Kelly pled no contest to the charges and four accompanying specifications. The trial court found Kelly guilty, and the counts were merged for sentencing purposes into a single count of cocaine possession. The trial court sentenced Kelly to a mandatory 10-year prison sentence with a consecutive one-year term for the major drug offender specification. The trial court also imposed a $10,000 fine and ordered forfeiture of Kelly's three vehicles. Kelly now appeals the decision of the trial court raising the following assignment of error.

{¶ 11} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN DENYING HIS MOTION TO SUPPRESS EVIDENCE.”

{¶ 12} In his assignment of error, Kelly argues that the trial court improperly denied his motion to suppress. This argument lacks merit.

{¶ 13} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Cochran, Preble App. No. CA2006-10-023, 2007-Ohio-3353. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Oatis, Butler App. No. CA2005-03-074, 2005-Ohio-6038. “An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard.” Cochran at ¶ 12.

A. Traffic Stop

*3 {¶ 14} Kelly first claims that the police lacked probable cause or a reasonable articulable suspicion that he committed a traffic violation when they stopped him. Instead, Kelly asserts that the officers pulled him over on purely pretextual grounds, therefore violating his constitutional rights.

{¶ 15} The Fourth Amendment to the United States Constitution protects individuals from unreasonable governmental searches and seizures. United States v. Hensley (1985), 469 U.S. 221, 105 S.Ct. 675. Regarding the legality of an initial traffic stop, “where a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the United States Constitution even if the officer had some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more nefarious criminal activity.” Dayton v. Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, syllabus. An officer's direct observation that a vehicle is following another vehicle too closely provides probable cause to initiate a lawful traffic stop. State v. Perry, Preble App. No. CA2004-11-016, 2005-Ohio-6041, ¶ 12.

{¶ 16} According to R.C. 4511.34, “the operator of a motor vehicle, streetcar, or trackless trolley shall not follow another vehicle, streetcar, or trackless trolley more closely than is reasonable and prudent, having due regard for the speed of such vehicle, streetcar, or trackless trolley, and the traffic upon and the condition of the highway.”

{¶ 17} Deputies Betz and Carpenter observed Kelly following the SUV in front of him too closely, and therefore had probable cause to initiate a traffic stop under R.C. 4511.34. At the motion to suppress hearing, Betz testified that when he and his partner began following Kelly, he noticed Kelly's car traveling “just a few feet” behind the SUV. As the passenger in the police cruiser, Betz was able to focus on Kelly's vehicle and observed Kelly driving between 30 to 35 m.p.h. State Trooper Shawn Simms also testified that he was following Betz's police cruiser and from his vantage point, he could see Kelly's car following too closely to the SUV. Although Simms was behind the police cruiser, he testified that he could see the position of Kelly's car clearly because they were traveling down a hill and there was a slight curve in the road so that he could see the traffic in front of him. According to Simms' estimation, Kelly's car was traveling “less than a car length” behind the SUV.

{¶ 18} Kelly now argues that Betz and Simms' testimony should be discredited because they did not state in their testimony what constitutes a reasonable and prudent distance under R.C. 4511.34. However, several Ohio courts and federal courts applying Ohio law have held that police may use a general rule of one car length for every 10 m.p.h. the car is traveling as an indicator that a driver has violated the statute. See State v. Meza, Lucas App. No. L-03-1223, 2005-Ohio-1221, ¶ 19; and United States v. Dukes (C.A.6, 2007), 257 Fed.Appx. 855, 858.

*4 {¶ 19} According to Betz's estimation, Kelly was traveling between 30 to 35 m.p.h. At that speed, and according to the general rule, Kelly should have maintained a three-car distance between himself and the SUV in front of him. However, Betz testified that Kelly was traveling only a few feet behind the SUV, and Simms testified that Kelly was less than one car length behind the SUV. Even absent direct testimony regarding what Betz and Simms considered a reasonable and prudent distance under the statute, Kelly's following distance was a clear violation of the general rule specific to R.C. 4511.34.

{¶ 20} Based on Betz and Simms' testimony, the trial court properly concluded that the traffic stop was lawfully initiated after the officers observed Kelly following too closely. In light of the probable cause created by the traffic violation, the fact that law enforcement may have been looking for a reason to stop Kelly's vehicle is irrelevant.

B. Placement in Police Cruiser

{¶ 21} Kelly next asserts that his motion to suppress should have been granted because he was arrested without probable cause when Deputies Betz and Carpenter placed him in their police cruiser after initiating the traffic stop.

{¶ 22} This court has consistently held that an officer does not effectuate an arrest by merely placing a person in the back of a police cruiser. “Having an individual sit in a police cruiser for a short time to answer a few questions does not necessarily elevate the situation to something greater than an ordinary traffic stop. This is true whether the individual is being requested to stay while an accident report is completed or relevant facts are ascertained. An individual may also be temporarily restrained either for his own safety or that of the officer.” State v. Johnson (May 1, 2000), Clermont App. No. CA99-06-061, ¶ 8-9. “Confining an individual to the police cruiser is not a custodial placement if it is part of the investigation, even if the suspect in the police cruiser is not free to leave.” In re M.D., Madison App. No. CA2003-12-038, 2004-Ohio-5904, ¶ 18.

{¶ 23} The record indicates that Kelly was placed in the police cruiser, not as an arrest, but according to the officers' need to ascertain relevant facts in the investigation. After Kelly exited the car, the deputies placed him, without handcuffs, in the back of their cruiser and then continued to gather facts. While Kelly was in the cruiser, the other officers and canine units were on the scene performing their normal fact-finding and investigatory duties. See State v. Bartone, Montgomery App. No. 22920, 2009-Ohio-153, ¶ 22 (finding appellant was not arrested where he was placed in a police cruiser “while the drug-sniffing dog was present”). Given these circumstances, Betz and his partner were justified in placing Kelly in the back of the cruiser as law enforcement continued to gather facts, and such placement did not constitute an arrest that required probable cause.

C. Length of Stop

*5 {¶ 24} Kelly also challenges the duration of the traffic stop specific to the deputies' failure to use the time to issue a traffic citation for following too closely or perform any license or background checks typically associated with investigation of a suspected traffic violation.

{¶ 25} “In conducting a stop of a motor vehicle for a traffic violation, an ‘officer may detain an automobile for a time sufficient to investigate the reasonable, articulable suspicion for which the vehicle was initially stopped.’ However, an investigative stop may last no longer than is necessary to effectuate the purpose of the stop. Thus, when detaining a motorist for a traffic violation, an officer may delay the motorist for a time period sufficient to issue a ticket or a warning. This time period also includes the period of time sufficient to run a computer check on the driver's license, registration, and vehicle plates.” State v.. Howard, Preble App. Nos. CA2006-02-002, CA2006-02-003, 2006-Ohio-5656, ¶ 14-15. (Internal citations omitted.) Furthermore, a canine sniff of a vehicle may be conducted during the time period necessary to effectuate the original purpose of the stop, and an alert by a trained narcotics dog provides law enforcement with probable cause to search the vehicle for contraband. Howard at ¶ 17.

{¶ 26} Deputy Betz testified that in his experience, he usually takes approximately 10 to 15 minutes to conduct a traffic stop, check registration, and issue a ticket. The record indicates that the canine units were on the scene of the stop within 30 seconds, and that the actual dog sniff was performed within “minutes.” Trooper Shawn Simms also testified that his canine alerted to drug presence “less than five minutes” after the stop was initiated.

{¶ 27} The record is therefore clear that the canine sniff occurred well within the 10 to 15 minutes Betz normally takes to perform a traffic stop, and within the time period necessary to effectuate the original purpose of the stop. The fact that the deputies neither contacted dispatch to verify Kelly's license and registration information nor issued a traffic citation for Kelly's violation of R.C. 4511.34 is irrelevant where they had probable cause to initiate the lawful traffic stop. See State v. Keathley (1988), 55 Ohio App.3d 130 (affirming trial court's denial of appellant's motion to suppress where officer had probable cause for initiating a traffic stop and issued a citation for driving under suspension rather than a citation for the traffic offense for which appellant was originally stopped).

{¶ 28} Having found that the deputies had probable cause to stop Kelly's vehicle for following too closely, that Kelly was not under arrest during the time he sat in the police cruiser, and that the stop's duration was proper, the trial court did not err in denying the motion to suppress. Kelly's assignment of error is overruled.

{¶ 29} Judgment affirmed.

Add new comment

Florida Inmate sues citizen who arrested him......Are You F'ing Kidding Me !!

Friday, 30 July 2010 18:45 Ted Daus

Inmate sues man he's convicted of burglarizing

Claims he was roughed up during a citizen's arrest after stealing a bicycle

ST. PETERSBURG, Fla. — A Florida inmate is suing the man he's convicted of burglarizing, claiming the man and two others roughed him up during a citizen's arrest.

Michael Dupree is serving a 12-year sentence for burglary and cocaine possession stemming from a 2007 break-in of a van in St. Petersburg. Dupree allegedly stole a bicycle locked inside and was apprehended after the owner, Anthony McKoy, saw him with the bike down the street.

Dupree says McKoy and two others pointed a gun at him, handcuffed him and placed a knee painfully in his back. He's seeking $500,000 for disabilities and distress suffered during the takedown.

Dupree filed the civil lawsuit on his own, without the help of an attorney.

After being served with the suit, McKoy said, "I thought it was a joke. I'm the victim."

Add new comment

April 2010 Michigan State Court Drug Dog Sniff Case Law

Tuesday, 01 June 2010 23:50 Ted Daus

Court of Appeals of Michigan.

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Christian Harold BOYD, Defendant-Appellant.

Docket No. 289045.

April 20, 2010.

Kent Circuit Court; LC No. 07-008047-FH.

Before: SERVITTO, P.J., and FITZGERALD and BECKERING, JJ.

PER CURIAM.

*1 Following a bench trial, defendant was convicted of possession with intent to deliver 50 grams or more but less than 450 grams of cocaine, MCL 333.7401(2)(a)(iii), and was sentenced to a prison term of three to 20 years. Defendant appeals as of right, challenging the trial court's denial of his motion to suppress evidence. We affirm.

On June 26, 2007, State Police Trooper Christopher Bush was working as a canine officer assigned to a drug investigation along I-96. Shortly before 7:00 a.m., he received a call from Detective Sergeant Andy Fias advising that a tip indicated that a black Escalade was coming from Detroit, bringing cocaine and marijuana. Fias gave a plate number and told Bush to make a stop on the vehicle. Bush set up at the Lowell exit on I-96. Within a short time, he saw the Escalade come under the overpass. As the Escalade moved from the left lane of traffic into the right lane, it crossed all the way over the fog line. Bush made a traffic stop and defendant immediately pulled over. As defendant was looking for his registration and insurance, Bush noticed that defendant's hand was “shaking noticeably.” When Bush advised defendant of the reason for the traffic stop, defendant stated that he swerved to avoid an animal in the road. According to Muskegon Police Detective Sergeant Timothy Lewkowski, he observed the Escalade lurch into the right lane and go over the fog line. There was no animal carcass in the road where defendant went over the fog line.^FN1

FN1. According to Lewkowski, just east of the Lowell exit the Escalade swerved at a point where there was an animal carcass in the roadway. But when the Escalade swerved over the fog line the second time, there was no animal carcass in the roadway.

Defendant denied having anything illegal in the vehicle, and denied Bush's request to search the vehicle. Sergeant Karl Schmitz arrived as Bush was having defendant step out of the vehicle. During a pat down search for weapons, Bush felt a bulge in defendant's front pocket that he recognized, from his experience as a narcotics officer, as a large wad of cash. Defendant indicated that the wad contained $2,000. Bush then turned defendant over to Schmitz, retrieved the dog from his vehicle, and took the dog to the Escalade. Starting at the front passenger side, the dog alerted to the odor of narcotics near the door. As they came around the driver's side, the dog alerted from the front rocker panel under the driver's door back to the rear tire. The dog sniffed this area for about 30 seconds. They then went around to the passenger side. The window was down, and the dog gave a head snap, jumped up, put his paws on the door, and sniffed into the vehicle. The dog then sat down. According to Bush, this sequence indicated the presence of drugs.

Schmitz and Bush then searched the vehicle while another officer stayed with defendant. The officers did not find any drugs in the passenger compartment. The officers observed two compartments in the trunk bed that were “like coolers on the quarter panel.” One of the compartments was on the driver side and was locked. Bush retrieved the keys from the ignition and unlocked this compartment. Inside he found a plastic grocery bag, tied up, containing what felt to be narcotics inside. No drugs were found in the closed compartment on the passenger side. A laboratory analysis of the narcotics revealed 373.28 grams of cocaine in powder form.

*2 The circuit court denied defendant's motion to suppress the evidence, finding that the officer initiated a valid traffic stop for a civil infraction, and that the officer had reasonable suspicion and probable cause to search the vehicle. Defendant now argues that the trial court erred by refusing to suppress the evidence. We review a trial court's factual findings on a motion to suppress evidence for clear error, but review de novo the trial court's conclusions of law and ultimate decision regarding whether to suppress the evidence. People v. Murphy (On Remand), 282 Mich.App 571, 584; 766 NW2d 303 (2009).

THE TRAFFIC STOP

An officer may stop a vehicle if he has probable cause to believe that a traffic violation has occurred or was occurring. People v. Davis, 250 Mich.App 357, 363; 649 NW2d 94 (2002); Whren v. United States, 517 U.S. 806, 810; 116 S Ct 1769; 135 L.Ed.2d 89 (1996). An actual violation of the vehicle code need not be proved; all that is required is that the officer has a reasonable suspicion that a violation may have occurred. People v. Peebles, 216 Mich.App 661, 666-667; 550 NW2d 589 (1996).

Pursuant to MCL 257.642(1)(a), when a road is divided into two or more clearly marked lanes, “a vehicle shall be driven as nearly as practicable entirely within a single lane.” Here, a traffic stop was permissible because Bush observed the traffic violation. People v. Kazmierczak, 461 Mich. 411, 420 n 8; 605 NW2d 667 (2000). The traffic stop was lawful because driving outside a traffic lane constituted a traffic violation. Whren v. United States, 517 U.S. 806, 814-815; 116 S Ct 1769; 135 L.Ed.2d 89 (1996); People v. Haney, 192 Mich.App 207, 210; 480 NW2d 322 (1991).

THE CANINE SNIFF

As long as a traffic stop is not prolonged unnecessarily, police may use a trained dog to sniff the vehicle, even with no reasonable articulable suspicion of narcotics. Illinois v. Caballes, 543 U.S. 405, 407, 409; 125 S Ct 834; 160 L.Ed.2d 842 (2005); People v. Jones, 279 Mich.App 86, 91-95; 755 NW2d 224 (2008). A positive reaction by a trained canine can establish probable cause. Jones, 279 Mich.App at 90 n 2. A dog alert is “at least as reliable as many other sources of probable cause and is certainly reliable enough to create a ‘fair probability that there is contraband.’ “ United States v. Ludwig, 10 F 3d 1523, 1527 (CA 10, 1993). As there was no illegal conduct by the police in stopping defendant, and there was no unreasonable delay or prolonged detention before Bush walked the dog around the vehicle, use of the dog was appropriate. The dog's alert provided probable cause to justify the search of the vehicle.

Defendant asserts that the search of the vehicle was invalid because the dog “hit” on the passenger compartment and not the locked box where the cocaine was found. However, once police have probable cause to search a vehicle, the search may extend to closed containers in the vehicle and any part of the vehicle. Wyoming v. Houghton, 526 U.S. 295, 301; 119 S Ct 1297; 143 L.Ed.2d 408 (1999); People v. Clark, 220 Mich.App 240, 243-244; 559 NW2d 78 (1996). The dog's alert on the vehicle gave police probable cause to search all parts of the vehicle.

*3 Affirmed.

Add new comment

2010 Civil Case Law: Arizona K-9 Police Officer Wins & Has Dog Bite Case Dismissed

Tuesday, 01 June 2010 23:07 Ted Daus

United States District Court,D. Arizona.

Jeremy David HENDERSON, Plaintiff,
v.
Joseph ARPAIO, et al., Defendants.

No. CV 09-0154-PHX-GMS (LOA).

May 3, 2010.

Jeremy David Henderson, Buckeye, AZ, pro se.

Gerald L. Piccirilli, Maria R. Brandon, Official Of Special Litigation Services, Sarah Louisa Sato, Olson Jantsch & Bakker PA, Phoenix, AZ, Jacqueline Helen Jeffery, Mesa City Attorneys Office, Mesa, AZ, for Defendants.

ORDER

G. MURRAY SNOW, District Judge.

*1 Plaintiff Jeremy David Henderson filed this civil rights action under 42 U.S.C. § 1983 against City of Mesa Police Officers Frank Hermosillo and John LaFontaine; Joseph Arpaio, Maricopa County Sheriff; and Greg Basye, emergency room employee at Mountain Vista Hospital. (Doc. # 12.) Defendants Hermosillo and LaFontaine move for summary judgment. (Doc. # 34.) Although the Court issued a Notice pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir.1998) ( en banc ), advising Plaintiff of his obligation to respond, Plaintiff filed no response. (Doc. # 37.) The motion is ready for ruling.

The Court will grant Defendants' motion and dismiss them from the case.

I. Background

Plaintiff's claims arise out of his arrest on January 28, 2008, by Hermosillo and LaFontaine. The First Amended Complaint alleged that Hermosillo and LaFontaine used excessive force on Plaintiff during his arrest when they sent a K-9 to attack Plaintiff; that Arpaio was deliberately indifferent regarding alleged abuse by K-9 units; and that Basye was deliberately indifferent in treating Plaintiff's injuries. (Doc. # 12.) The Court ordered all Defendants to answer the First Amended Complaint.^FN1 (Doc. # 11.)

FN1. The Court subsequently dismissed Arpaio. (Doc. # 27.) Bayse has filed a separate Motion for Summary Judgment, which is not yet ready for ruling and which will be addressed in another order. (Doc. # 38.)

Hermosillo and LaFontaine move for summary judgment on the grounds that (1) they did not violate Plaintiff's constitutional rights because they did not use excessive force and (2) they are entitled to qualified immunity. (Doc. # 34.)

II. Legal Standards

A. Summary Judgment

A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir.1995). Rule 56(e) compels the non-moving party to “set out specific facts showing a genuine issue for trial” and not to “rely merely on allegations or denials in its own pleading.” Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party need not establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). However, Rule 56(c) mandates the entry of summary judgment against a party who, after adequate time for discovery, fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which the party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

*2 When considering a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of the non-movant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But, if the evidence of the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50.

B. Excessive Force

“ ‘[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest ... should be analyzed under the Fourth Amendment ‘reasonableness' standard.’ “ Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir.1994) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Fourth Amendment does not prohibit the use of reasonable force. Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir.2006). Whether the force was excessive depends on “whether the officers' actions [were] ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. See also Tatum, 441 F.3d at 1095; Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir.2003). The Court must balance the nature and quality of the intrusion against the countervailing governmental interests.

In determining whether an officer acted reasonably under the Fourth Amendment, the Court considers the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U .S. at 396. The court must balance the nature and the quality of the intrusion on the individual's Fourth Amendment interests against the government interests at stake. Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Whether the amount of force used was reasonable is usually a question of fact for the jury. Barlow v. Ground, 943 F.2d 1132, 1135 (9th 1991). Summary judgment should be granted sparingly. Bell v. City of Seattle, 395 F.Supp.2d 992, 998 (W.D.Wash.2005).

III. Motion for Summary Judgment

A. Parties' Contentions

1. Defendants

In support of their motion, Defendants submit their Statement of Facts (Doc. # 35, (DSOF)); the affidavits of LaFontaine and Hermosillo ( id., Exs. 1 and 4); the affidavits of Gordon Leitz and Joe Adams ( id., Exs. 2, 3); and the Maricopa County Superior Court Minute Entry for CR2008-106716 ( id., Ex. 5.)

Defendants assert that LaFontaine has been assigned to the Police Service Dog (PSD) Unit since 2000. (DSOF ¶ 1.) LaFontaine's PSD is Spike, a Belgian Malanois. ( Id. ¶ 2.) LaFontaine and Spike have been a certified K9 team since their completion of the Mesa Police Department Basic Patrol Dog School in September 2007. ( Id. ¶ 3.) They have achieved the National Standards of Certification for Patrol Certification from the National Police K9 Association, and to maintain their team certification, they attend six hours of training weekly. ( Id. ¶¶ 4-5.)

*3 Defendants contend that PSD's are trained in building, area, and crime scene searches. ( Id. ¶ 7.) PSD's are also used for the protection of their handlers, other officers, other persons, and whenever necessary for the accomplishment of law enforcement goals. ( Id. ¶ 8.) PSD handlers view their animals primarily as tools to be used for the detection or location of persons or articles, not as weapons. ( Id. ¶ 9.)

On January 29, 2008, at approximately 2:08 a.m., Mesa police officers were dispatched to the area of 9900 E. Diamond Avenue in reference to a home burglary; a witness reported that a man wearing a white knit hat had crawled under a partially open garage door. ( Id. ¶¶ 11-12.) The witness also stated that he did not recognize the person or the car he arrived in. ( Id. ¶ 13.)

Officer Adams arrived on Diamond from the east, parked his patrol car, and began walking westbound in an attempt to locate the open garage. ( Id. ¶¶ 14-15.) He located a vehicle matching the description given by the witness and a garage door at 9920 E. Diamond that was open about six to twelve inches. ( Id. ¶¶ 16-17.) As Adams approached the home, the witness whistled at him and made a gesture indicating that he was at the right house. ( Id. ¶ 18.) Adams notified dispatch of the updated location and waited for additional units to respond before making contact. ( Id. ¶ 19.)

While Adams waited, dispatch ran the license plate of the suspect vehicle and reported that the car was registered to Plaintiff, who was on supervised release for aggravated assault. ( Id. ¶¶ 20-21.) Adams then heard a noise coming from the garage and saw an object being placed near the opening; he notified dispatch that someone was inside the garage. ( Id. ¶ 22-23.) As additional units arrived and pulled up close to the home, the garage door opened and a man fitting the description given by the witness ran out and around the house to the west and then northbound towards the block wall to the back yard. ( Id. ¶¶ 24-25.) Adams pursued on foot until the suspect jumped over the wall; Adams then opened the gate to the backyard and saw that the suspect was not there. ( Id. ¶¶ 26-27.) Adams notified dispatch, stated that he did not know the suspect's direction of travel, and requested assistance from the K9 unit. ( Id. ¶¶ 28.)

LaFontaine and Spike responded to the request. ( Id. ¶ 29.) Hermosillo also responded and provided backup support to the K9 unit. (Ex. 4, Hermosillo Aff. ¶ ¶ 3-4.) Adams told LaFontaine what had occurred, advised him of the charges against the suspect, the suspect's physical description, and the last place he was seen. (DSOF ¶ 30.) While talking, LaFontaine and Adams noticed a trail of items on the ground between the garage and the block wall the suspect had jumped; one of the items was a 9″ folding knife in the full locked open position. ( Id. ¶ 32.)

*4 Spike, LaFontaine, and Hermosillo began their search for the suspect; LaFontaine had Spike on a 6′ leash. ( Id. ¶ 36; Hermosillo Aff. ¶ 4.) Spike began pulling LaFontaine toward the east end of Dolphin Circle and began sniffing the air; LaFontaine could see a perimeter officer's patrol car and flashing lights parked to the east of them on the other side of the block wall and advised Hermosillo that he thought Spike might be alerting to the perimeter officer. (DSOF ¶¶ 37-38.)

While searching residential yards on the north side of Dolphin Circle, Spike stood on his hind legs and sniffed the air on the east side of the back yard located at 9958 E. Dolphin Circle. ( Id. ¶ 41.) When they went into the back yard, Spike alerted to the presence of human odor in the area of the east fence. ( Id. ¶ 42.) Because the back yard appeared to be empty of any obstacles or places a grown man could hide, LaFontaine again advised Hermosillo that he thought Spike was probably alerting to the perimeter officer. ( Id. ¶ 43.) Spike then began to sniff the patio area and the sliding glass door. ( Id. ¶ 44.) LaFontaine saw a barbeque and two nylon chairs on the patio but no person. ( Id. ¶ 45.) LaFontaine could also see a red nylon chair propped against the stucco wall, but it appeared to have been set that way to protect if from the rain. ( Id. ¶ 46.) Spike continued to sniff and jump on the block wall and the patio door, and then, to the officers' surprise, Spike made a quick turn to his right and ran under the red nylon chair that was propped against the wall. ( Id. ¶ 47.) As Spike put his head behind the chair, a white man jumped up and yelled, “Okay, okay, I give up. I give up. Get the dog off.” ( Id. ¶ 48.) The man, identified as Plaintiff, was sitting with his back against the patio wall tucked in a fetal position under the chair. ( Id. ¶ 49.)

Spike latched onto Plaintiff's left arm and brought him out from underneath the chair. ( Id. ¶ 50.) Because LaFontaine could not see Plaintiff, LaFontaine was not able to announce their presence before Spike found Plaintiff. ( Id. ¶ 51.) As soon as Spike had Plaintiff, LaFontaine and Hermosillo yelled “Mesa Police” and ordered Plaintiff to step away from the patio, to show his hands, and to lay down on the ground; Plaintiff complied with the commands. ( Id. ¶¶ 52-53, 55.) During this time, LaFontaine was holding Spike's leash with tension and guiding Spike and Plaintiff out into the open. ( Id. ¶ 54.) As soon as Plaintiff was on the ground and the officers could see his hands, LaFontaine approached and physically removed Spike from Plaintiff's arm. ( Id. ¶ 56.) Hermosillo and another officer then handcuffed Plaintiff and requested that Mesa Fire respond to the scene. ( Id. ¶ 57.) Plaintiff's arm was treated by Mesa Fire, and he was transported to Mountain Vista Hospital, where he received ten stitches and steri strips before being released. ( Id. ¶ 58.)

*5 Defendants assert that LaFontaine did not encourage or allow Spike to remain on Plaintiff longer than necessary and did not encourage or allow Spike to attack Plaintiff. ( Id. ¶ 63.) Allowing Spike to continue attacking would have been contrary to training and dangerous for the other officers and Spike, exposing him to assault by the suspect. ( Id. ¶ 64.) PSD handlers are trained not to release a dog until a suspect is handcuffed for the protection of the suspect, the dog, and other officers. ( Id. ¶ 65.) In this case, LaFontaine removed Spike as soon as Plaintiff laid down on the ground but before he was handcuffed because he complied immediately with commands and was calm. ( Id. ¶ 66.) LaFontaine did not do a “verbal out,” or verbally order Spike to release Plaintiff; instead, LaFontaine physically removed Spike by taking hold of his head and mouth. ( Id. ¶¶ 67-68.) PSD handlers are trained not to verbally release dogs on the street because it is a hazard to the officers and to anyone else nearby, and the suspect could be bitten again. ( Id. ¶ 69.) PSD handlers are also trained not to remove a dog until it is safe to do so. ( Id. ¶ 70.) LaFontaine could not remove Spike until Plaintiff was away from the objects on the patio and laying on the ground with his hands exposed and the officers could confirm that he had no weapons. ( Id. ¶ 71.) Consistent with training, LaFontaine praised Spike after removing him from Plaintiff. ( Id. ¶¶ 72-73.)

Hermosillo did not issue any commands to Spike and did not address the dog in any manner. ( Id. ¶ 60.) Hermosillo does not have the training and/or experience to deal with police K9's; Hermosillo watched LaFontaine remove Spike as soon as Plaintiff was secured, which occurred within about a minute of the bite. ( Id. ¶ 61-62.)

2. Plaintiff

As noted, Plaintiff did not respond to the motion. Because a verified complaint may be used as an affidavit opposing summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence, the Court will consider the allegations set forth in Plaintiff's First Amended Complaint. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir.1995). In his First Amended Complaint, Plaintiff alleged that LaFontaine did not give Plaintiff any orders but just sent Spike to attack although Plaintiff did not pose any threat or danger. (Doc. # 12 at 3.) Plaintiff immediately surrendered, yelling “I give up.” Plaintiff asserted that LaFontaine took no action to stop Spike, allowing Spike to continue the attack, which lasted for several minutes. He alleged that LaFontaine and Hermosillo “watched, encouraged, and emboldened” Spike to inflict damage. ( Id.) Plaintiff alleged that LaFontaine ordered Spike to attack by calling him a “good boy,” and that the officers cursed and used expletives in a sadistic and cruel manner. ( Id. at 3-A.) Plaintiff further alleged that the officers worked Spike into a frenzy and lost control of him, so that when LaFontaine ordered Spike to stop, Spike refused to comply. LaFontaine had to physically remove Spike's teeth from Plaintiff's arm. ( Id.)

C. Analysis

*6 The Court will grant summary judgment to Defendants on the Fourth Amendment claim because Defendants have submitted evidence showing there is no dispute of fact as to the reasonableness of their actions under the circumstances, and Plaintiff fails to establish a dispute of material fact to defeat summary judgment.

As stated, the Fourth Amendment analysis of excessive, non-deadly force requires a court to balance the “nature and quality of the intrusion” on a person's liberty with the “countervailing governmental interests at stake” to determine whether the use of force was objectively reasonable under the circumstances. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1051, 1056 (9th Cir.2003), citing Graham, 490 U.S. at 396. The objective-reasonableness inquiry under Graham is a three-step analysis. Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003); see also Bryan v. McPherson, 590 F.3d 767, 772-81 (9th Cir.2009). First, the court must evaluate the type and amount of force used. Next, it must assess the importance of the governmental interests at stake by considering the factors set out in Graham-the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest. Finally, the court must balance the “gravity of the intrusion on the individual against the government's need for the intrusion....” Miller, 340 F.3d at 964. The need for force is at the heart of Graham. Drummond, 343 F.3d at 1057 (citation omitted). Where there is no need for force, any forced used is excessive. Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1199 (9th Cir.2000), vacated and remanded on other grounds, County of Humboldt v. Headwaters Forest Def., 534 U.S. 801, 122 S.Ct. 24, 151 L.Ed.2d 1 (2001).

1. Type and Amount of Force

Here, the type and amount of force used was the K9. In Miller, the Ninth Circuit concluded that use of a K9 was a serious intrusion on the plaintiff's Fourth Amendment interest. 340 F.3d at 964. In that case, the evidence showed that the force used was exacerbated by the duration of the dog bite-between 45 and 60 seconds. Id. at 961.

Plaintiff asserts that the bite lasted several minutes. The Court finds that the use of a K9 is a significant level of force that must be justified by “a strong government interest [that] compels the employment of such force.” See Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir.2001).

**2. Government's Interest- Graham factors**

Next, the Court considers the government's countervailing interests, especially in light of the Graham factors. In Miller, the court found that the government has an undeniable legitimate interest in apprehending criminal suspects and that the interest is even stronger when the criminal is suspected of a felony, holding that such a situation strongly favors the government. 340 F.3d at 964. Compare Drummond, 343 F.3d at 1057 (“less-than-overwhelming” government interest where there was no underlying crime at issue-a neighbor called police because the plaintiff was acting in an emotionally disturbed manner; Bryan, 590 F.3d at 777 (traffic violations generally will not support the use of significant force). Here, it is undisputed that Plaintiff was suspected of a serious crime-residential burglary. This factor weighs in favor of the government.

*7 The most important Graham factor is whether a suspect posed an immediate threat to the safety of the officers or others. Miller, 340 F.3d at 964; Bryan, 590 F.3d at 775. In Miller, the court held that, from the officer's viewpoint, the plaintiff posed an immediate threat to his safety. 340 F.3d at 965. The court noted that the officer knew Miller had defied orders to stop and that he was a felony suspect. In addition, the officer knew that Miller was hiding in the woods but the officer did not know where, and he did not know if Miller was armed; however, the officer knew that Miller remained defiant because he ignored the officer's warning that he was about to release the police dog. Id . The court found these and other factors to be “objectively menacing” and to entitle the officer to assume that Miller posed an immediate threat to his safety and the safety of others. Id.

Here, the evidence shows that Defendants were called as part of a backup response after Plaintiff fled the scene of a burglary; officers knew Plaintiff had fled on foot but they did not know where he was; it was night, so it was dark; they knew he was on supervised release for aggravated assault; and they knew that he had been carrying at least one weapon. As to Plaintiff's claims that he posed no threat, even assuming that was true, Plaintiff offers no evidence to show that Defendants would know that he was unarmed. Compare Bryan, 590 F.3d at 775 (plaintiff dressed only in tennis shoes and boxer shorts); Deorle, 272 F.3d at 1281 (“Deorle was wearing no shirt or shoes, only a pair of cut-off jeans shorts. There was nowhere for him to secrete any weapons.”). The Court finds that, as in Miller, with the gravity of the risk to the Defendants, this factor weighs heavily in favor of the government as to the use of the K9 for the search.

As to Spike's discovery of Plaintiff and the subsequent events, Defendants offer evidence, which Plaintiff does not dispute, that Defendants did not know that Plaintiff was hiding near them until Spike located Plaintiff under the chair and seized him. Defendants also offer evidence regarding the need not to release Spike from Plaintiff until the situation was under control-that is, until the officers could ascertain that Plaintiff was unarmed. In this case, that meant moving Plaintiff and Spike away from the objects on the patio and getting Plaintiff onto the ground with his hands exposed. They also offer evidence that they did not lose control of Spike but removed Spike by taking hold of his mouth to protect everyone concerned, including Plaintiff. LaFontaine concedes that he praised Spike but offers evidence that it was done after the seizure as a standard practice. Moreover, the Fourth Amendment does not require that officers use the least amount of force necessary. Mattos v. Agarano, 590 F.3d 1082, 1088-89 (9th Cir.2010) (citing Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994).) The Court finds that with the gravity of the risk to the officers, this factor weighs heavily in favor of the government.

*8 The third Graham factor-whether Plaintiff was actively resisting flight-also weighs in favor of the government. At the time of the use of force, Plaintiff was still evading arrest by hiding in the dark. See Miller, 340 F.3d at 966-67.

3. Balancing the Interests

Finally, the Court holds that the force used was reasonably necessary under the circumstances. The required determination-balancing the force used against the government's interest-“must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.

Here, the force used was significant, but the government's interests were also great. Although police need not always show that they attempted less forceful means to secure a suspect, such a showing can be relevant to the reasonableness of the force ultimately used. See Miller, 340 F.3d at 966. In Miller the Ninth Circuit reasoned that the officers has used several less intrusive means to apprehend Miller before using the dog: they signaled him with vehicle emergency lights and siren; pursued him in a police car; pursued him on foot; and audibly warned him to surrender or be chased by the dog. Id. The court found that under the circumstances, using the dog was “well suited to the task of safely arresting Miller.” Id.

Here, the undisputed evidence shows that officers did not warn Plaintiff about the dog but it is also undisputed that they did not know he was nearby. And Plaintiff fled the scene on foot and then hid. Defendants were ultimately unable to locate Plaintiff without Spike and unable to gain control of Plaintiff until Spike moved Plaintiff away from the patio and Plaintiff was on the ground where officers could determine that Plaintiff was unarmed. An arrest is not complete until the individual's liberty of movement is interrupted and restricted by officers making the arrest. State v. Sanders, 118 Ariz. 192, 575 P.2d 822, 825 (Ariz.App.1978). Plaintiff's flight from the scene and officers and his sudden seizure by Spike demonstrate a “tense, uncertain, and rapidly evolving” situation. The Court finds these facts to be far different from those in Bryan, where it was undisputed that the plaintiff was unarmed, leveled no physical or verbal threat against the officer, and was standing, without advancing, fifteen to twenty-five feet away from the officer. 590 F.3d at 777.

Thus, Defendants establish that their conduct was reasonable under the circumstances.

4. Qualified Immunity

In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court mandated a two-step sequence for resolving a qualified immunity claim: the “constitutional inquiry” and the “qualified immunity inquiry.” The “constitutional inquiry” asks whether, when taken in the light most favorable to the non-moving party, the facts alleged show that the official's conduct violated a constitutional right. Id. If so, a court would turn to the “qualified immunity inquiry” and ask if the right was clearly established at the relevant time. Id. at 201-02. If the Plaintiff's allegations do not establish a statutory or constitutional violation, “there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201. In Pearson v. Callahan, --- U.S. ----, ---- - ----, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009), the Supreme Court held that the Saucier procedure is not an inflexible requirement; judges “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 818.

*9 Because Defendants establish the reasonableness of their conduct, the Court need not consider the remainder of the qualified immunity analysis. The Court will grant Defendants summary judgment on the Fourth Amendment claim and dismiss the claims against LaFontaine and Hermosillo with prejudice.

IT IS ORDERED:

Add new comment

Dogs searching people/students in Florida....is Legal !!

Wednesday, 19 May 2010 03:25 Ted Daus

Leesburg High student arrested on drug charges

MILLARD K. IVES

Staff Writer

LEESBURG -- A Leesburg High student was arrested Monday after a Lake County Sheriff's K-9 team allegedly sniffed out marijuana in his pocket during a random search at the school.

When asked if he had anything illegal in his pocket, Willie James Anderson, 18, said "no" and pulled out a package of bubble gum. When the school resource deputy checked the container, three baggies of marijuana were found inside, according to the sheriff's office.

Each baggie was worth about $10 and held enough marijuana to roll one cigarette.

Anderson was charged with possession of marijuana with intent to deliver. He remained in the Lake County jail Wednesday in lieu of $10,000 bail.

Anderson was suspended from school.

According to an arrest affidavit, the resource deputy and school officials were conducting a routine K-9 search about 9:45 a.m. Monday when they entered a classroom in building No. 4 and the dog alerted them to the suspect.

Anderson was pulled out of the classroom and taken to the deputy's office where the search was initiated.

Sgt. James Vachon, sheriff's spokesman, said a student found 21 similar baggies in a trash can in the boy's bathroom about 11 a.m. Monday and reported it to the resource deputy. Deputies are still investigating that find and have not linked those drugs to Anderson.

It was the second arrest on drug charges for Anderson in less than two weeks.

April 29, he was charged by Leesburg police with marijuana possession, tampering with evidence, fleeing from officers and operating a motor vehicle without a driver's license, according to the Lake County jail website.

Vachon said Monday's search was not connected to that arrest and Anderson had not been suspected of possessing drugs in the school.

Add new comment

Bad Facts Make Bad Law For All..Time Counts On Your K-9 Alert on a Car

Thursday, 29 April 2010 03:31 Ted Daus

This Case should have never gone to court...It should have been pled out !!
District Court of Appeal of Florida,Fifth District.

Houston WHITFIELD, Appellant,
v.
STATE of Florida, Appellee.

No. 5D08-3360.

April 23, 2010.

Appeal from the Circuit Court for Osceola County, Scott Polodna, Judge.
James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

*1 Houston Whitfield [“Whitfield”] appeals his judgment and sentence for trafficking in over twenty-eight grams of cocaine. He pled nolo contendere to the charge, reserving his right to appeal the denial of his motion to suppress evidence of the cocaine seized during the search of an automobile. Whitfield contends that the cocaine was discovered in his vehicle pursuant to an illegal detention, and thus should have been suppressed. We agree and reverse.

The evidence and testimony presented at the suppression hearing revealed that the arresting officer, Florida Highway Patrolman, James Barley [“Trooper Barley”], initiated a traffic stop for unlawful speed on the turnpike in Osceola County.^FN1 Whitfield was driving a rental car with his son as a passenger. They were on their way back to Georgia from the South Florida area. Upon stopping Whitfield, Trooper Barley asked Whitfield to step out of the car and asked for his driver's license. He had Whitfield return with him to the trooper's vehicle. Though not apparent from the video, Trooper Barley testified that Whitfield was nervous throughout the encounter. Trooper Barley said that he engaged Whitfield in idle conversation to calm him down. This consisted of a series of rapid-fire questions on a wide range of topics, beginning with, “What are you up to today?” ^FN2 While he waited for dispatch to report back on the status of Whitfield's driver's license and warrants check, Trooper Barley asked Whitfield his occupation. Whitfield answered that he was in the commercial lawn care business. Trooper Barley asked him about the type of equipment Whitfield used in his business. Trooper Barley testified that he did not believe Whitfield owned his own business because Whitfield gave him common brand names of equipment, not brands Trooper Barley knew were used for commercial purposes.