CAAF decided the Air Force case of United States v. Harrell, 75 M.J. 359, No. 16-007/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 28, 2016. The court finds no Fourth Amendment violation in the use of a canine leading to the discovery of marijuana and glass smoking pipes in the appellant’s vehicle, affirming the decision of the Air Force CCA and the appellant’s conditional pleas of guilty.

Chief Judge Erdmann writes for a unanimous court. Senior Judge Cox writes separately, concurring.

CAAF specified a single issue for review:

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.

First Lieutenant Harrell was pending court-martial for the wrongful use of marijuana when she was stopped for speeding by a civilian police officer in Ohio at 26 minutes after midnight. After obtaining Harrell’s information and returning to his police cruiser, the officer radioed for a canine unit. Harrell then exited her vehicle (leaving a window open), and the officer exited his cruiser and 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 marijuana and smoking pipes with marijuana residue, and Harrell was arrested (later surrendering additional marijuana that she had on her person).

At trial, Harrell’s defense counsel moved to suppress the fruits of the search of the vehicle, asserting that the officer unlawfully prolonged the stop and that the canine was improperly allowed to enter the vehicle (by sticking its nose into the open window). The military judge rejected both claims and denied the motion to suppress. Harrell then entered conditional pleas of guilty (preserving the suppression issue) to wrongful possession of marijuana and drug paraphernalia in violation of Articles 112a and 133, was also convicted of the wrongful use of marijuana, and was sentenced confinement for 198 days (time served), total forfeitures, and a dismissal. The Air Force CCA affirmed the findings and sentence.

In today’s opinion Chief Judge Erdmann rejects both of Harrell’s arguments for suppression, concluding that the police officer had a reasonable suspicion of criminal activity that justified prolonging the traffic stop and also that the military judge’s conclusion that the dog did not enter the vehicle was not clearly erroneous. The first of these conclusions is unremarkable considering the facts, as Chief Judge Erdmann explains that:

[T]he officer believed Harrell was under the influence of alcohol or drugs. Officer Soltis also believed Harrell might have been engaged in drug trafficking because she had driven a rental car a long distance in order to reach an area locally known for drug activity, but an area that would likely be unknown to most people coming from St. Louis. Officer Soltis further testified that, in his fifteen years of experience, every person that he had stopped who was on his or her way to Nelson Ledges was also in possession of drugs. We conclude that Officer Soltis’s considerations were legitimate.

Slip op. at 6. The second conclusion, however, is somewhat remarkable considering video evidence that certainly appears to support Harrell’s claim that the dog’s nose entered the vehicle. Specifically, the following image (from the police cruiser’s dash camera) was reproduced in the briefs to CAAF:

Harrell

Despite this imagery, the military judge concluded that “Stryker [the dog] momentarily placed his paws on the door but did not extend his nose into the passenger compartment.” Slip op. at 7 (quoting ruling). CAAF is not persuaded to reverse that finding:

Having reviewed the entire record, and viewing the evidence in the light most favorable to the government, we find no basis for concluding the military judge’s factual findings are clearly erroneous.

Slip op. at 7.

Accordingly, because the stop was not impermissibly extended and the dog did not penetrate the interior of the vehicle, “the dog sniff and subsequent search of Harrell’s vehicle did not violate the Fourth Amendment.” Slip op. at 7.

Yet Senior Judge Cox  – who concurs that there was no physical intrusion – sees additional reasons to affirm the denial of the motion to suppress:

In this case, when Stryker, the drug dog, “went high” and placed his forepaws below the driver’s side window, he did so without prompting, urging, or facilitation by his handler or the other officers. In addition, Harrell had left the window open when she exited the vehicle to smoke a cigarette. Based on these established facts, I conclude that when Stryker leapt up on the car, whether his nose penetrated the interior of the car or not, his actions were instinctual and therefore did not violate the Fourth Amendment.

Con. op. at 1-2.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Amicus brief (law school)
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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