Defendant was on a motorcycle. Before the stop even occurred, the officer called for a drug dog. When the canine officer heard of the stop, he came to the scene. Defendant refused consent to search, and the drug dog was almost immediately there. The sniff violated no Fourth Amendment rights because the stop was not extended for it. The fact the officer and the dog were separately certified wasn’t much of an issue. [Apparently it was not argued that a drug dog sniff as a matter of course during a traffic stop without any reasonable suspicion was unreasonable, not that it would have gotten any headway in this circuit.] United States v. Gunnell, 2015 U.S. App. LEXIS 426 (8th Cir. January 12, 2015):
Sgt. Meyer testified at the suppression hearing that he stopped Gunnell because he believed Gunnell had committed a traffic violation by driving at least ten miles per hour over the speed limit. The court found Sgt. Meyer, who testified he used a technique called “pacing” to estimate Gunnell’s speed, was credible and therefore concluded that the traffic stop was supported by probable cause. Even if Sgt. Meyer’s primary intent was to stop Gunnell in order to further a drug investigation, the traffic violation provided probable cause to support the stop, and “any ulterior motivation on [Sgt. Meyer’s] part is irrelevant.” Id. The district court did not err in finding the traffic stop was supported by probable cause and was not unlawfully pretextual.
B. Detention
Gunnell argues that he was unconstitutionally detained by law enforcement while the drug dog was brought to the scene of the traffic stop. As we have explained:
[I]f a defendant is detained incident to a traffic stop, the officer does not need reasonable suspicion to continue the detention until the purpose of the traffic stop has been completed. Occupants … may be detained while the officer completes a number of routine but somewhat time-consuming tasks related to the traffic violation. These tasks can include a computerized check of the vehicle’s registration and the driver’s license and criminal history, as well as the preparation of a citation or warning. The officer may also ask questions about the occupant’s travel itinerary. However, once an officer finishes the tasks associated with a traffic stop, the purpose of the traffic stop is complete and further detention … would be unreasonable unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify further detention. Whether a detention is reasonable is a fact-intensive question which is measured in objective terms by examining the totality of the circumstances.
Ovando-Garzo, 752 F.3d at 1163-64 (internal quotation marks and citations omitted) (alteration in original); see also United States v. Bloomfield, 40 F.3d 910, 916-17 (8th Cir. 1994) (“[A] de facto arrest occurs when the officers’ conduct is more intrusive than necessary for an investigative stop.” (quotation marks omitted)).
In this case, Sgt. Meyer called K-9 Officer Tjelmeland before he initiated the traffic stop, asking Officer Tjelmeland to be ready and nearby for a possible drug sniff in the area. Shortly thereafter, Sgt. Meyer pulled over Gunnell. Before he got out of his squad car to approach Gunnell, Sgt. Meyer called dispatch to report the stop. As soon as Officer Tjelmeland heard about the stop on police radio, he went directly to the location of the stop. Officer Tjelmeland testified that it took “five minutes or less” for him to arrive at the scene.
Meanwhile, Sgt. Meyer approached Gunnell and asked him for identification. Because Gunnell did not have a physical form of identification, Sgt. Meyer verbally took his information. Sgt. Meyer testified that while another officer ran Gunnell’s information, he asked Gunnell “a variety of questions that are pretty standard for traffic stops,” including where Gunnell was going and whether he had any prior arrests. Based on the information he had previously received from TFO Hawkins, he also conducted a pat down search of Gunnell. And he asked Gunnell for permission to search his person and his motorcycle. Gunnell refused both requests.
Gunnell argues that his detention was prolonged unnecessarily waiting for the drug dog to arrive for the sniff. The undisputed facts of this case, however, show otherwise. Though law enforcement may not prolong a traffic stop, and thus the traveler’s detention, beyond what is necessary to complete the stop, the undisputed evidence shows that is not what happened here. In this case, the unrefuted testimony is that Officer Tjelmeland and his drug dog arrived while the officers were still conducting the traffic stop. Sgt. Meyer testified that the time it took for Officer Tjelmeland and Raider to arrive at the scene did not exceed the time it took the other officers to run Gunnell’s information through the computer in the course of the traffic stop. In other words, the officers were still “complet[ing] the purpose” of the stop when Officer Tjelmeland and Raider arrived. United States v. Suitt, 569 F.3d 867, 870 (8th Cir. 2009) (quotation omitted). Given the facts and timing in this case, the district court did not err in concluding that officers did not unlawfully prolong the traffic stop (and Gunnell’s detention) beyond what was necessary to complete the stop.
C. Search
Gunnell asserts Raider’s alert to the presence of drugs on his motorcycle was unreliable because Officer Tjelmeland and Raider had not undergone drug detection training as a pair but, rather, received certification individually before being paired to work in the field. “A police officer has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” Florida v. Harris, 133 S. Ct. 1050, 1055, 185 L. Ed. 2d 61 (2013) (quotation marks, alterations, and quotation omitted). “In evaluating whether the [government] has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances.” Id.
With regard to the reliability of drug dogs, “[t]he better measure of a dog’s reliability … comes away from the field, in controlled testing environments.” Harris, 133 S. Ct. at 1057. “For that reason, evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Id. “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.” Id. “The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.” Id. at 1058.
In this case, Officer Tjelmeland and Raider each underwent a 13-week training program before receiving their certifications to work as a drug-detection team. Once they were paired together in July 2011, they had additional training every Monday; and they had been working as a team in the field since that time, which was approximately six weeks prior to Gunnell’s traffic stop. The government did not present records showing Raider’s performance in the field, and Officer Tjelmeland did not have information about Raider’s in-field performance prior to July 2011; but Officer Tjelmeland did testify that he “never had a false alert with Raider [when he] used him.”
In Florida v. Harris, the Supreme Court explicitly stated that evidence of a drug-detection dog’s performance in the field, or circumstances surrounding a particular alert, may sometimes be relevant to the issue of probable cause, but noted that such evidence is also susceptible to misinterpretation. 133 S. Ct. at 1057. In any event, in-field performance records are not necessary to a finding of probable cause in every case. See id. at 1058 (“If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.”). Gunnell failed to contest either the reliability of Raider’s performance in a controlled testing environment or the validity of his (or Officer Tjelmeland’s) certification. He also offered nothing to call into question the particular alert at issue in this case. Under such circumstances, the district court did not err in concluding Raider’s alert supported a finding of probable cause to search Gunnell’s motorcycle compartment.
