Blog

11th Circuit Holds Well Trained & Certified means Reliable...Feb.2010

Friday, 26 March 2010 02:04 Ted Daus

United States Court of Appeals,Eleventh Circuit.

UNITED STATES of America, Plaintiff-Appellee,
v.
Quintin Tyronne ANDERSON, Defendant-Appellant.

No. 09-12154
Non-Argument Calendar.

Feb. 22, 2010.

Sonya Margaret Rudenstine, Gainesville, FL, for Defendant-Appellant.

Susan Hollis Rothstein-Youakim, U.S. Attorney's Office/MFL, Tampa, FL, Patricia D. Barksdale, Jacksonville, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 08-00256-CR-J-32-HTS.

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

*1 Quintin Tyronne Anderson appeals his conviction for possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On May 2, 2008, Deputy Shawn Emert of the St. Johns County Sheriff's Office stopped Anderson's vehicle after he observed a severe crack in the vehicle's windshield. While Deputy Emert cited Anderson for the traffic violation, Deputy George Gazdick arrived at the scene with narcotics detection dog, Aron. Aron alerted to the odor of narcotics in Anderson's vehicle. After Aron alerted, deputies searched Anderson's vehicle and found a .38 caliber revolver, ammunition, and a small amount of drugs. On appeal, Anderson challenges the district court's denial of his motion to suppress the physical evidence seized by the police. Anderson argues that the court erred in denying his motion to suppress the contraband found in his vehicle for two reasons: (1) that Deputy Emert lacked probable cause for the initial traffic stop, and (2) that Aron was not reliable.

In reviewing the denial of a motion to suppress evidence, we accept the district court's findings of fact unless they are clearly erroneous and consider the district court's application of the law to the facts de novo. United States v. Gil, 204 F.3d 1347, 1350 (11th Cir.2000) (per curiam). In this case, we construe the facts in the light most favorable to the government. United States v. Hromada, 49 F.3d 685, 688 (11th Cir.1995) (citation omitted). “We accord great deference to the district court's credibility determinations.” United States v. Clay, 376 F.3d 1296, 1302 (11th Cir.2004) (citation and quotation omitted).

I. Traffic Stop

Under Florida law, a police officer can stop a vehicle for a cracked windshield only if the officer reasonably believes that the crack renders the vehicle in such unsafe condition as to endanger any person or property. Anderson asserts that Deputy Emert was equivocal about whether he stopped Anderson for faulty equipment or because the vehicle was unsafe. He also contends that Deputy Emert did not specify why the crack rendered the windshield unsafe and impermissibly relied on Florida's faulty equipment statute to stop Anderson. Further, Anderson argues that the photographic exhibits of the windshield presented at the suppression hearing were inadequate to establish probable cause for the stop.

The Fourth Amendment protects individuals from “unreasonable searches and seizures” by government officials, “and its protections extend to brief investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750 (2002) (citation and quotation omitted). A decision to stop a vehicle is reasonable under the Fourth Amendment when an officer has “probable cause to believe that a traffic violation occurred.” United States v. Simmons, 172 F.3d 775, 778 (11th Cir.1999) (citation omitted). The standard for determining whether probable cause exists “is met when the facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998) (citation and quotation omitted). In Hilton v. State, the Florida Supreme Court clarified that “a stop for a cracked windshield is permissible only where an officer reasonably believes that the crack renders the vehicle ‘in such unsafe condition as to endanger any person or property.’ “ 961 So.2d 284, 292 (Fla.2007) (quoting Fla. Stat. § 316.610).

*2 Deputy Emert's testimony that he stopped Anderson for faulty equipment did not conflict with his testimony that he stopped Anderson for safety reasons. Furthermore, photographs submitted during the hearing displayed the size of the crack in the windshield. Therefore, the district court did not clearly err in finding Deputy Emert credible. As a result, it properly concluded that Deputy Emert's testimony, coupled with the photographs of the windshield, established probable cause to believe that Anderson had committed a traffic violation. Consequently, the traffic stop was permissible.

II. Reliability of Narcotics Detection Dog

Anderson also contends that the officers who searched his vehicle lacked probable cause to search for narcotics because the canine Aron was trained to detect the odor of narcotics, not the presence of narcotics. Anderson argues that because the dog was trained to detect the odor of drugs, which may or may not be present, there is no reliable way of knowing whether contraband is actually present. Specifically, he asserts that in 44.9% of the searches conducted by Deputy Gazdick and Aron, an alert resulted in no discovery of measurable amounts of contraband. He maintains that the mere fact of training and certification, combined with an alert, is insufficient to support probable cause. The Fourth Amendment requires that to search a car without a warrant, a law enforcement officer must have probable cause to believe it contains contraband. Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487 (1996) (citation omitted) (per curiam). In the case of narcotics dogs, “[o]ur circuit has recognized that probable cause arises when a drug-trained canine alerts to drugs.” United States v. Banks, 3 F.3d 399, 402 (11th Cir.1993) (per curiam); see also United States v. Tamari, 454 F.3d 1259, 1265 (11th Cir.2006). Although Anderson is correct in noting that there have been other facts establishing probable cause in our canine alert cases, we have stated that a canine's “positive alert was itself sufficient to give agents probable cause to search the [vehicle].” Tamari, 454 F.3d at 1265. Similarly, in United States v. Steed, we applied Tamari and held that a canine's positive alert outside a trailer gave officers probable cause to search the trailer. 548 F.3d 961, 975 (11th Cir.2008) (per curiam) (citing Tamari, 454 F.3d at 1264-65).

While a dog sniff must be sufficiently reliable in order to establish probable cause, we have held in dicta “that training of a dog alone is sufficient proof of reliability.” United States v. Sentovich, 677 F.2d 834, 838 n. 8 (11th Cir.1982) (citation omitted) (endorsing the view of the Tenth and First Circuits that training of a dog alone is sufficient proof of reliability); see also United States v. Robinson, 390 F.3d 853, 874 (6th Cir.2004) (citation omitted) (holding that once certification is established, all other evidence goes to credibility); United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995) (per curiam) (holding that a dog's past performance is not required for a finding of reliability). But see Matheson v. State, 870 So.2d 8, 14 (Fla. 2d DCA 2003) (citation omitted) (holding that training and certification is insufficient to establish reliability, and that other factors, such as the dog's “track record,” must be considered).

*3 In another decision, we described a dog as a “highly trained and credentialed professional whose integrity and objectivity are beyond reproach,” because it had graduated from the U.S. Canine Academy and Police Dog Training Center, had been certified by the National Narcotics Detector Dog Association, and was described by one trainer as “probably one of the best dogs he had trained in the 23 years he had been doing it.” United States v. $242,484.00, 389 F.3d 1149, 1159, 1165 (11th Cir.2004).

There was extensive evidence concerning Aron's certification and training with Deputy Gazdick. In addition to this evidence, the government also provided proof of Aron's reliability by offering his field records into evidence. Even assuming Anderson's view of the statistics, Aron had a 55% accuracy rate in finding measurable amounts of drugs. “Absolute certainty is not required by the Fourth Amendment.” United States v. Johnson, 660 F.2d 21, 23 (2d Cir.1981) (per curiam) (holding that appellant's arguments regarding dog's detection of odor of drugs, rather than their presence, misconstrued the probable cause requirement). Probable cause requires “a fair probability that contraband or evidence of a crime will be found.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983) (emphasis added). Here, the district court did not err in determining that the narcotics detection dog's alert was reliable and gave rise to probable cause to search Anderson's vehicle. Accordingly, the district court did not err in denying Anderson's motion to suppress based on the canine's alert.

AFFIRMED.

Add new comment

171 Pounds of Cocaine at Fort Lauderdale Airport

Friday, 26 March 2010 02:08 Ted Daus

Fort Lauderdale, Fla. - U.S. Customs and Border Protection officers at Ft. Lauderdale/Hollywood International Airport intercepted 171 pounds of cocaine on February 28. The cocaine was discovered on the luggage carousel concealed within three bags.

This is my Airport guys and a good reason we have 5 prosecutors doing Drug Trafficking cases here in Broward County.

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

A 'Low Risk' area search?

Friday, 04 June 2010 01:42 Jeff Meyer

Every once in a while I come across articles or web pages that refer to different type of K-9 searches or tracks. They will sometimes call one high risk and others low risk.

I have been on hundreds of areas searches; I feel strongly that ALL searches are ‘high risk’ and some are ‘higher risk.’

THERE IS NO SUCH THING A ‘LOW RISK’ SEARCH FOR A SUSPECT.

If the suspect is hiding, he does not want to go to jail. That much you know for sure. Nothing else is for sure. You do not know what his background is; he might be good for other crimes than what you know about and he may think you are looking for him on those charges. You do not know his current state of mind or level of commitment to stay free. You do not know if he is armed, even if he was patted down before he ran he could have easily armed himself now. You do not know his location, but he knows yours and most likely will know you are getting close. (A good reason to train your dog to work off lead and give good alerts prior to locating the suspect).

In a conversation with a friend of mine who is a SWAT officer I made the statement that an area search for a suspect is the most dangerous job a police officer does. He right away started to list SWAT situations like a hostage rescue that involves an explosive breach with multiple armed suspects. Yep, that is a bad situation, but he has never had to do it. Yet every day we do area searches for people that do not want to go to jail and have numerous advantages on us. Both are high risk situation, but one happens routinely.

My point is, all are searches are dangerous. Do not let yourself get into the mindset of a ‘low risk’ search. You should treat every search as what it is; you are looking for a person who by his actions has already provoked a confrontation. By treating all searches the same, using good tactics, proper communication with other team members, good light and muzzle discipline etc. you will be ready for the searches that are ‘higher risk.’

Stay Safe,

Jeff

Add new comment

A Cop for a Day Video Link...Watch it

Friday, 26 March 2010 02:02 Ted Daus

If you have never seen this Video by the Baltimore P.D. you need to watch it.

Everybody should have to watch it...they just might understand the job you do.

Ted Daus

Add new comment

A Little more From Axel from Begium

Tuesday, 03 August 2010 21:39 Jeff Meyer

In my first blog I introduced myself.

In this second one I want to tell something more about my country : Belgium in the heart of Europe.

I live in Ghent, that is a city with a middle aged centre and 250.000 inhabitants.

It is 50 km from Brussels and 300 km from Paris and 300 km from Amsterdam.

And even London is easy to visit with boat or train.

Belgium is the home of dogsport. It was in Belgium that the FCI ( Fédération Cynologique Internationale ) was born.

Belgium is the home of the Belgian shepherd :

- the Groenendaeler

- the Terveuren Sheperd

- the Laekenois

- and off course the formula 1 of policedogs , the one and only Malinois

And many other Belgian breeds, such as the Saint Hubert Hound ( bloodhound ), Belgian Mastiff, the Bouvier, the Schipperke, …

Belgium has an unique history in protection work as we have one of the oldest programs = Belgian ringsport .

Belgium has a very strong reputation in training dogs. As a very small country with only 10.000.000 residents we have many worldchampions in different dogsport with the biggest names as :

- Mario Verslijpe ( http://www.mario-verslype.be/ = three times FCI worldchampion !! )

- Ronny Van den Berghe ( http://www.ronnyvandenberghe.be/nl/home ) ( 3 times worldchampion Schutzhund WUSV ( only for GSD’s ) .

- And Ismael Devos, Geert Verlinden, Julien Steenbeke, Roger Snollaerts and many more !

Dogtrainers travel from countries all over the world to learn from Belgian trainers.

Some examples : Haruo Masuda ( also former worldchampion WUSV , several times Asian champion, etc ), Ivan Balabanov ( also former Worldchampion ), Felix Ho and again many more.

Belgian people seem to have something special in breeding and training animals.

Belgium is famous for their pigeons , horses and dogs.

It was also in Belgium that mondioring (http://www.mondioring.org/index.htm) started.

And … Not to forget ! It was in Belgium that dogs were first used for patrolling in a policeforce.

This experiment started in my city, Ghent, and was very succesfull.

But more about this history later !

Axel

www.belgiank9friends.com

axel.vdb@telenet.be

Add new comment

A Very Common, Yet Dangerous Mistake

Friday, 07 May 2010 17:44 Jeff Meyer

As I travel around the country I get to see a wide variety of K-9 teams. There is a lot of very impressive work being done and I am fortunate to be able to see so much of it.

I do see one common problem. When I was first getting into our K-9 unit, I was a decoy. Sometimes I was told to make some noise during a building search if the dog was having trouble locating me. Even at that time this did not make much sense to me. I thought then and still do that a suspect will not help the dog find him, so why should we. Over the years this has really become one of my pet peeves. I can spot a dog that is trained with noise immediately. These dogs will search well, get to odor then stop and listen. They will stand still, turn their head etc. waiting for the noise that they have been trained to listen for. So with this type of training we are taking the reason we have the dog (the nose) and teaching him to shut it off and listen. A dog trained like this will rarely bark until it hears a noise and often will leave the suspect if called by the handler.

I have found several hundred suspects on real searches. I have yet to have one hiss at the dog to ‘bring him in.’ Or have one shuffle his feet, make a ‘knick,’ cough, tap on the door etc etc.

A properly trained dog will locate the odor; work to source and either detain or bite the suspect. If the dog cannot get to the source then the dog should bark vigorously and continuously until called off by the handler. Anything less than this is not safe for the team.

I urge you to never, never, never train your dog using noise to help him. I have had this discussion with many trainers who use this technique. I am often told that they do it to teach the dog, and then phase it out. Why teach something you have to try to un-teach? Something that is very powerful to the dog is very hard to extinguish. If he has been successful listening, why will he stop that behavior? When I see the problems associated with this I am told that they are ‘working on phasing out the noise? It seems many never get around to that step.

I have trained many dogs and I never make noise for them. If they cannot ‘finish’ (locate and bark) we simply remove the dog from the building and set up a different easier hide for the dog to build on.

My final argument with trainers on this issue is simple. Most of the dogs in the US are dual purpose. So I will ask the trainer who defends this type of training a simple question. “Can your dog find dope?’ When they answer that they can, I ask them how were they able to teach that behavior when the dope does not make noise?

Please comment below if you have different feelings about this. I am interested in your thoughts.

Jeff

Comments (2)

Active Shooter and the K9

Friday, 07 May 2010 17:55 Ron Cloward

I recently read an article in another magazine that talked about, and endorsed the use of a Police K9 in an Active Shooter situation. As an advocate, trainer and former handler myself I support the use of Police K9's in law enforcement, and search/rescue operations. As I read this article I found myself asking the big question, Why?

The Active Shooter is a fast moving and evolving event that requires immediate response and action. The problem with Columbine was there is no time to wait for SWAT. The response is immediate and by field personnel. The training I have received in these incidents require the fast forming of a team and entry to take out the shooter. You move toward the incident following the sounds of gunshots and maybe even screaming. As you and a team move through the structure you may encounter innocent people and the K9 may complicate this rescue and evacuation. The event is just as it is titled, an "Active Shooter" and is a suicide mission for a K9. When and if the suspect goes to ground it is time to slow down and maybe get the SWAT team with a trained SWAT K9 involved.

There has been a lot of training over the years since Columbine regarding the Active Shooter, but I have never encountered a time during this training that I would consider using a K9. The mission in training has always been to remove the threat and evacuate innocent and potential victims.

I respect the opinion of the writer, but I can not support something that will only get a K9 killed or worse yet an officer. I would recommend K9 units and trainers have discussions about the Active Shooter and study the advanced training on the subject. I think most will agree it is no place for a K9.

That is my opinion!

Ron Cloward

Comments (2)

Andy Weiman

Broward County Florida Sheriff’s Narc Dog handler Trainer

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

Back home.

Monday, 24 May 2010 09:36 Dick Van Leenen

Sorry for not writing on my blog for a while. I left home in the beginning of April for the Desert Dog trials in Arizona and got stuck overthere because of the vulcanoash in Europe's airspace. From Arizona I flew to the beautifull island of Aruba and stayed there for a month with my family, a combination of vacation and working/training with the Aruba PD K9-unit. A great adventure of 6 weeks of wich I'm going to report on the blog very soon. Right now the jetlag is winning the battle in my body...

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.

Bad Oral Argument by Lawyer on a Dog Sniff Appeal

Friday, 26 March 2010 02:07 Ted Daus

I just thought I might start off with one of my favorite oral arguments from The Federal Court of Appeals 7th Circuit. If you ever need an appeal...don't hire this guy. It is only three or four mins. long and the prosecutor's response is priceless. There are three judges questioning this defense lawyer on what is wrong with using a dog to sniff a car...enjoy !!

audio link

Ted

Add new comment

Becki Johnston

Ace K9 photographer that travels all over the US to K-9 Events

Boot camp for dogs

Friday, 26 March 2010 02:42 Jeff Meyer

“Full Metal Jacket’ was on the other night. I don’t think there is a cop anywhere that does not love that movie. R Lee Ermey is Gny. Sgt Hartman and stole the whole movie. In the movie it is his job to train the recruits to be Marines. He is in essence imposing his will on the young men. He is 100% consistent, what he says is the law. Should the recruit not follow his order he is immediately corrected. He leads in a fair and firm manner. Even though he is very tough the recruits respect him.

We, as dog handlers, could learn a lot from that. The biggest problem I see everywhere is the lack of consistency in enforcing a command. I see handlers all the time give their dog multiple commands, and many times just give up when the dog does not do as ordered. Sometimes I want to grab the handler and tell him to choke himself….

Does every dog need this, of course not. All dogs are different. But I have seen some very hard dogs that could really use a little boot camp action.

Jeff

Add new comment

Can a civilain train a police dog?

Friday, 26 March 2010 01:59 Steve Dean

Here in the UK the policing setup is so vastly different from the US that unless you are a police officer or a retired police officer it is extremely unlikely that you will ever become a police dog trainer. I know of one case in the entire country where a civilian has been taken on as a member of the police dog training staff.

My thoughts are prompted by a recent blog I read where someone in the US wants to become a trainer of police dogs but doesn't want to become a law enforcement officer. Some of the responses were clearly from civilians who had experience in dog sport and were very negative about the police, their dogs & trainers, as an example:

Quote "The police dog field is UNFORTUNATELY closed off to outsiders because the agencies "think" they know so much more then the civilian trainers out there that have accomplished so much more in their dog training careers. The dogs they buy are not top of the line because of budget issues, they often get "raped" on the prices they pay for dogs, an agency here just got a "green dog" and payed 15K for it, the training BLOWS, that same agency is trained to "choke" a dog off a bite, not "out" it and the horrors go on and on and on...." Unquote

I want to leave you with this to see what response I get. I have my own views, and I will continue this blog once you have had the opportunity to have your say - so come on...... make this interesting for me and add some comments

Remember - There is only one fast way to train a dog....... And that's slowly.

Add new comment

City Fights Frivolous Lawsuit, Puts Legal Community on Notice

Thursday, 08 July 2010 14:45 Jeff Meyer

Here is a link to an article from last April that I just came across.

http://pressofatlanticcity.com/news/press/atlantic_city/article_a8523be6-4981-11df-aa1e-001cc4c03286.html

There are some great comments from city leaders in it about bringing frivolous lawsuits against the city. Basically this guy sued saying he was bitten by a police dog, the jury rejected his claim. But I like the quotes from city leaders saying the legal community should take note that they will now start defending themselves instead of just settling. Wow, what a novel idea!

Here is a quote from the article:

"This ends the free buffet of people coming to the city with frivolous lawsuits," Ward said. "This case sends a message to the legal community and the taxpayers that we are going to remain diligent and stand up for the rights of the citizens and the city to not be pressured into frivolous settlements.

If the current budget crunch that we are all facing has a good side, it is the idea that a cities are starting to defend themselves rather than just pay off the ridiculous claims. Hopefully the trend will continue when the money comes back. For those of us that have been sued for something really stupid only to see the city hand the people money anyway, this is welcome news.

Jeff

Add new comment

Collector’s item.

Friday, 04 June 2010 11:07 Dick Van Leenen

The average age of a KNPV-member in Holland right now is around 50 and raising. Young people in Holland are no longer interested in K9-sport and the sacrifices that comes with it. To make it to a PH1 certification you have to train at least three times a week for at least two years and don’t forget it’s a hobby for these people and no work. The KNPV-board is also aware of this situation and is thinking about how to change this potential catastrophe.

Catastrophe I hear you think? For the international law enforcement K9-community for sure! Right at this moment the balance between supply and demand is already gone and with more people searching for dogs and less titled dogs available every year, within a few years we probably can talk about a catastrophe.

From all over the world vendors come to western-Europe to buy dogs for their customers, sometimes even every two months. Dutch titled dogs are working in the US, Russia, the middle-east, Japan, China, etc, etc. Besides that the Dutch police departments maintain their network of private KNPV-members, clubs and Dutch vendors where they purchase dogs more intensively then ever before. They also realize and experience that its getting harder and harder every year to find the best dogs for their K9-units and because of that they use the fact that they live on top of the source more and more.

Can we solve this problem? What can we, the law enforcement community, do to change this? I think all police departments are thinking about how to purchase dogs the best and easiest way, I know we do. For that reason we started a puppyproject where we buy dogs from litters of proven working dogs and with these puppy’s we start training already at the age of six weeks. The first results are great but in the same time we realize that we never will get enough dogs from this project to fullfil our needs.

At this moment already we make “gentlemen’s agreements” with owners of dogs that will be titled in 2011 to make sure that we are able to purchase the dogs that we want for our unit. A crazy situation but necessary to maintain the high standards of our dogs.

Thinking about this potential threat for the international K9-work is absolutely necessary and I hope things will change in the future. In the meantime I’m wondering if the KNPV PH1-titled dog will become a collector’s item…

Comments (1)

Creative decoy work

Friday, 26 March 2010 02:17 Michael Colton

This is one of my guys and my dog during a slow training day last year. What is most impressive is this guy is 6'2" 240. Pretty good moves for a big guy.

Add new comment

Desert Dog Trials 2010

Friday, 09 April 2010 11:49 Dick Van Leenen

Just a few days from now and I´m on my way to the Desert Dog Trials 2010 in Scottsdale, Arziona, since 2003 an annual competition with K9-teams from Arizona, California, Nevada, New Mexico, etc.
Every year I´m going there to decoy these trials together with my buddy, Sgt. Wim van Bochove of the South-Holland-South PD K9-unit, and every year we have a great "K9-vacation" with our friends from the valley of the sun.
Besides this three day event we spent our time with streetworthyness K9-training, ride alongs and talk about K9-work, ofcourse with sometimes a Bud Light!
In all these years I have seen the average K9-teams become beter and better and that is something I like. More and more teams are streetworthy teams that still can compete in trials. These two things, streetworthyness and competitions, do get along together very well. When there is balance between certificationtraining (obedience, agility, obstacles, attacks, searches) and streetworthyness training this is no problem.

Add new comment