CAAF will hear oral argument in the Air Force case of United States v. Harrell, No. 16-007/AF (CAAFlog case page), on Tuesday, April 5, 2016, at 12:15 p.m., at the University of Alabama School of Law. The court will consider the admission of the fruits of a search of the appellant’s vehicle by civilian police officers during a traffic stop, with the following issue specified by the court:
Whether evidence obtained from a police search of appellant’s vehicle on or about August 4, 2010, was obtained in violation of the Fourth Amendment and should have been suppressed.
The appellant is a First Lieutenant who – while pending court-martial for the wrongful use of marijuana – was stopped for speeding by a civilian police officer in Ohio. The stop occurred at 26 minutes after midnight. After obtaining the appellant’s information and returning to his police cruiser, the officer radioed for a canine unit. The appellant then exited her vehicle and the officer also exited the cruiser, they spoke, and the officer asked the appellant if she had any illegal drugs in her vehicle. The canine unit arrived soon after, and the dog indicated the presence of narcotics in the vehicle. A subsequent search discovered 1.8 grams of marijuana and two glass smoking pipes with marijuana residue. The appellant was arrested and later surrendered additional marijuana that she had on her person.
The appellant moved to suppress the fruits of the search of the vehicle at trial, asserting that the officer unlawfully prolonged the stop and that the canine was improperly allowed to enter the vehicle (by sticking its nose into an open window) as it walked around the vehicle. The military judge rejected both claims and denied the motion to suppress. The appellant was then allowed to enter conditional pleas of guilty to wrongful possession of marijuana and drug paraphernalia in violation of Articles 112a and 133, UCMJ.
The appellant renewed her claims at the Air Force CCA, where they were also rejected. CAAF then granted review.
The appellant’s brief seems to make no new arguments, as it asserts that the traffic stop was unlawfully prolonged in order to allow the canine an opportunity to sniff the vehicle and also that the canine’s intrusion into the vehicle constituted an illegal search. The traffic stop was videotaped by a camera in the police cruiser, and both sides use the recording to make their arguments. Specifically, to rebut the appellant’s claim that the traffic stop was unlawfully prolonged, the Government notes the following timeline:
Appellant stopped her car on the side of the road: 00:26:00
Officer Soltis approached Appellant’s car: 00:26:32
Officer Soltis returned to his patrol car: 00:28:21
Officer Soltis called canine unit: 00:28:33
Officer Soltis called dispatch for records check: 00:29:10
Appellant got out of her car: 00:30:20
Officer Soltis re-approached Appellant: 00:30:30
Appellant showed her insurance policy: 00:30:38
Back-up Officer arrived: 00:30:57
Officer Soltis asked Appellant about drugs in her car: 00:31:28
Canine Unit arrived: 00:32:44
Dispatch responded on records check (Soltis not in car): 00:33:00
Dog Sniff began: 00:35:05
Stryker alerted on the car by sitting: 00:35:22
Officers searched the car: 00:36:51
Appellant was arrested: 00:38:57
Gov’t Br. at 14. The appellant’s brief tries to highlight that the officer called for the canine unit prior to initiating the records check, asserting that the officer “treated the handling of the alleged traffic offense as an afterthought and failed to diligently pursue the mission of issuing a ticket for the violation.” App. Br. at 24-25. However, the appellant’s decision to exit her vehicle is a significant intervening event. The Government’s brief notes that:
While Officer Soltis was waiting for a response on the records check, Appellant got out of the car of her own volition and lit a cigarette. She then leaned against the side of her vehicle closest to the 60 mile-per-hour highway, where other vehicles were racing by, as can be seen on the dashboard camera video. (App. Ex. XLVI.) This was an undeniably dangerous location for Appellant to be standing, and Officer Soltis temporarily and prudently abandoned his original mission of conducting the records check in order to ensure Appellant’s safety.
Gov’t Br. at 15. It’s unclear if the military judge explicitly ruled on the issue of whether the stop was prolonged by the call for a canine unit (that is, whether the officer prioritized the canine request before the records check, or if there was some other reason that he made the canine request first).
The military judge did, however, clearly rule on the dog’s alleged intrusion into the vehicle, finding as fact that the dog did not enter the vehicle:
“Stryker momentarily placed his paws on the door but did not extend his nose into the passenger compartment.” J.A. 203-209. The military judge added in a footnote, “To the extent that the defense argues that Stryker’s nose “broke the plane” of the open window and entered the passenger compartment, the Court has found as a fact that that did not occur. While Officer Troyer testified that Stryker’s nose “might have” entered the passenger compartment, the Court has concluded otherwise after watching Appellate Exhibit XLVI, the dashboard-camera video.”
App. Br. at 14-15 (quoting record). This finding of fact will be reversed only if CAAF concludes that it is clearly erroneous. Unfortunately, the appellant makes a weak effort to make that point by inviting CAAF to conduct its own fact-finding:
A police video of the traffic stop marked as Appellate Exhibit XLVI shows the drug detection dog putting his forepaws through the open window and onto the windowsill of the driver’s side door and putting his paws, face and snout into the interior of the vehicle at time count 00:35:16. The video is capable of being advanced frame by frame by clicking the button marked “|►” from the paused position on the video player. Viewing the video in this way provides a definitive view of the police dog’s intrusion into the interior of the vehicle.
App. Br. at 13-14. Fortunately, however, an amicus brief filed by law students and a legal writing instructor at the University of Alabama School of Law provides the missing image:
Amicus Br. at 4.
Nevertheless, the appellant’s brief acknowledges that the military judge considered and rejected this issue because he found that the officer had probable cause for the search prior to the dog’s intrusion:
Assuming arguendo that Stryker’s actions constituted a search and that the accused did have a reasonable expectation of privacy in the interior of the vehicle, the Court concludes that the search was supported by probable cause. Stryker detected the odor of a contraband substance outside the vehicle and before he ‘went high.’ As he had already detected the odor, probable cause had been established before any intrusion into the passenger compartment, if such an intrusion occurred.
App. Br. at 16 (quoting military judge’s ruling). The appellant’s brief addresses this finding by berating “the voodoo of drug detection dog evidence,” App. Br. at 16, and by admonishing the military judge for “such specious arguments,” App. Br. at 17. The Government’s brief, however, takes a more measured approach:
Whether a drug dog alerts before entering a vehicle is a finding of fact reviewed under a clearly erroneous standard. United States v. Mason, 628 F.3d 123, 130 (4th Cir. 2010); United States v. Vazquez, 555 F.3d 923, 930 (10th Cir. 2009).
In this case, the military judge’s finding of fact was reinforced by the video of the dog sniff and the testimony of Officer Troyer, who stated that Stryker’s breathing change and the action of “going high” indicated to him that Stryker already smelled the narcotics. The finding was therefore not clearly erroneous. Based on this finding of fact, the military judge then concluded that the officers already had probable cause “before any intrusion into the passenger compartment, if such an intrusion occurred.” (J.A. at 208.)
Gov’t Br. at 27. The amicus brief does not address this conclusion.
I anticipate that the appellant will face a skeptical bench next week. It’s unlikely that CAAF will wade into the fine mechanics of what the appellant calls drug detection dog voodoo – even if that’s an appropriate descriptor – as the Supreme Court has repeatedly found it an acceptable investigative tool. Furthermore, CAAF can affirm by concluding that the appellant’s exit from her vehicle was what prolonged the traffic stop and by giving deference to the military judge’s ruling about the existence of probable cause prior to any intrusion by the dog. The appellant has a heavy burden to convince CAAF to reach different conclusions.
Further, even if the appellant convinces the court the the stop was unlawfully prolonged or the dog sniff involved an unlawful search, the appellant must also convince CAAF to apply the exclusionary rule in this case. It’s been a few years since CAAF last wrestled with this rule (see my discussion in this 2014 post), but the court will likely require more than just a violation to allow the appellant to withdraw her conditional guilty pleas.