United States v. Jordan

455 F.Supp.3d 1247

UNITED STATES of America, Plaintiff,

v.Desmond Travis JORDAN, Defendant.

Case No. 2:19-cr-125

United States District Court, D. Utah.

Signed April 21, 2020

Amy E. Jones, US Attorney's Office, Salt Lake City, UT, for Plaintiff.

MEMORANDUM DECISION AND ORDER GRANTING LEAVE TO DISMISS THE INDICTMENT AND GRANTING MR. JORDAN'S MOTION TO SUPPRESS

Clark Waddoups, United States District Judge

Before the court is a Motion to Suppress filed by Defendant Desmond Travis Jordan, which seeks to suppress all evidence obtained during a traffic stop on February 28, 2019, on the basis that, among other things, the police searched Mr. Jordan's car without a warrant or probable cause. (ECF No. 22). The court held an evidentiary hearing on Mr. Jordan's motion on March 3 and 4, 2020 (the "Hearing"), at which it heard testimony from Detective David Allen, the investigating officer, Officer Clinton "CJ" Moore, the K9 handler, and Dr. Mary Cablk, an expert retained by Mr. Jordan. Following the Hearing, the court requested the parties to submit proposed findings of fact and briefing, and set a date for the court to hear oral argument. Rather than submitting briefing and proposed findings, on March 31, 2020, the United States moved for leave to dismiss the Indictment against Mr. Jordan with prejudice due to "inter alia, a lack of prosecutable evidence and for good cause." (ECF No. 44). This motion is also now before the court. Mr. Jordan does not oppose the dismissal. The court finds that the United States lacks prosecutable evidence and that the motion to suppress is well taken. The court, therefore, GRANTS the United States’ Motion for Leave to Dismiss the Indictment. Moreover, after considering the merits of Mr. Jordan's Motion to Suppress, and the evidence presented at the Hearing, it also GRANTS the Motion to Suppress. Under the Rule 48(a) of the Federal Rules of Criminal Procedure, the United States is required to seek leave of court to dismiss an indictment. Where the United States has proceeded on the merits of the charge and, as in this case, proceeded to oppose a motion to suppress evidence for lack of probable cause, the court has a responsibility to rule on the merits of the motion. Moreover, the development of the law requires that conduct of the officers be assessed to provide guidance in the arena of K9 sniffs.

BACKGROUND

A. The Traffic Stop

On February 28, 2019, Detective Allen, a four-and-a-half-year veteran of the West Valley City Police Department, was conducting surveillance at an address he believed to be the residence of Mr. Jordan. (ECF No. 41 at 6:4–7:20). While conducting surveillance, Detective Allen called Officer Moore, a K9 officer for West Valley City Police Department, to alert him that he was conducting surveillance and ask him to "be available" if a vehicle left the home so that Officer Moore "could assist [him] on a traffic stop and a K9 sniff." (Id. at 14:21–15:17).

Shortly thereafter, Detective Allen saw a silver Mazda Protégé leave the home, and he followed the vehicle. (Id. at 10:12–15). Detective Allen, based on prior investigation, believed the vehicle was registered to Mr. Jordan, but he did not know that Mr. Jordan was driving the vehicle when he began following it. (Id. at 8:11–9:8; 10:4–17). Almost immediately, Detective Allen called Officer Moore and alerted him that Mr. Jordan had left the home, again putting him on notice to be available with his K9. (See Video of Pursuit, admitted as Gov. Ex. 9 at Suppression Hearing, hereinafter "Gov. Ex. 9"). Within one-and-a-half to two minutes of beginning to follow the vehicle, Detective Allen initiated a traffic stop after observing that Mr. Jordan was speeding. (ECF No. 41 at 10:18–11:2).

After informing Mr. Jordan of the reason for the traffic stop, Detective Allen obtained Mr. Jordan's identification and returned to his vehicle. He then called Officer Moore again and gave him his location so that Officer Moore could respond to his location to conduct a K9 sniff; Officer Moore responded that he was on his way. (Id. at 14:16–16:1, 33:21–34:11; Video of Traffic Stop, admitted as Gov. Ex. 10 at Suppression Hearing, hereinafter "Gov. Ex. 10"). At this point, there was no reason for the stop other than the traffic violation. Detective Allen then completed a search of Mr. Jordan's name through a database, the results of which showed that Mr. Jordan's license had been suspended. (ECF No. 41 at 11:19–13:20). Detective Allen returned to Mr. Jordan's vehicle, told Mr. Jordan that his license had been suspended, and inquired as to whether he had a license in another state. (See Gov. Ex. 10). Detective Allen returned to his car, waiting for approximately three minutes, until Officer Moore arrived at the location. (Id. ). Detective Allen informed Officer Moore that he was "waiting for a licensed driver" to come get Mr. Jordan's vehicle and that Officer Moore could therefore "take his time." (Id. ). Detective Allen then returned to Mr. Jordan's vehicle, asked him to step out of the vehicle and to call a licensed driver to come pick up the vehicle. (Id. ). It is undisputed that Mr. Jordan had indicated that a licensed driver was available and would pick up the car. There is no indication that Detective Allen was intending to impound the car. Officer Moore then approached with his K9, Tank, and initiated an exterior sniff of the vehicle. (Id. ).

B. Tank's Training

Tank was imported from Slovakia in March 2018 to a kennel in Ogden. The West Valley City Police Department got him from the kennel shortly thereafter. (ECF No. 41 at 113:23–114:10). At an initial veterinary visit in April 2018, in which Officer Moore participated, Tank was diagnosed with mild chronic bilateral hip degenerative joint disease and a suspicion for hip dysplasia. (Id. at 114:14–115:11). It is important for the K9 to be in good health because pain or other health conditions may impact the dog's ability to be successfully trained and perform.

Officer Moore began training Tank through the Utah POST program ("Utah POST") in April 2018. Tank graduated from, and was certified by, that program in July 2018. (Id. at 56:22–58:24; 115:12–17). Most of the training was related to narcotics. (Id. at 58:3–61:3). Tank was trained to detect and respond to the odors of marijuana, heroin, cocaine, and methamphetamine. (Id. at 50:3–8).

In its training course, Utah POST recognizes two tiers of behaviors that K9s may exhibit in response to the odor of narcotics. One is an innate natural response; the other is a trained response. To be certified as a drug dog, the animal must consistently demonstrate the trained response when the target odor is present. A dog will not pass certification if it only demonstrates the innate natural response, which may also be demonstrated in response to any item of interest to the dog, such as food or the scent of another animal. In its handbook, Utah POST characterizes "innate natural behaviors that a dog does when it smells something of interest" as an "alert." Such a natural response may include a long list of dog behaviors, including "[c]losed mouth sniffing" and "change in the movements of the dog seeking the highest concentration." (ECF No. 42 at 199:8–24). Practically, the list of behaviors includes any change in the dog's actions that may indicate interest or excitement by the dog. The list is not specific or distinctive to any particular item of interest to the dog. The Utah POST manual does not define the particular behavior or any required number of behaviors necessary to conclude that the dog has focused on a particular odor or that the odor in which the dog is showing interest in the target order. These alert behaviors are not unique to detecting the odor of narcotics, but are "consistent with the dog smelling anything of interest."

To be certified as a drug dog, Utah POST requires the dog to demonstrate behavior that a dog is trained to perform when it detects the highest concentration of a target odor. (Id. at 199:4–201:3). The Utah POST manual defines this behavior as an "indication" or "trained final response." The manual states it is "the specific taught behavior that Tank uses to tell [his] handler ‘I am detecting a target odor.’ " (ECF No. 41 at 116:5–7). It is intended to be distinctive behavior from the natural behavior a dog demonstrates in response to any item of interest. In Tank's case, his trained final response was to "stop movement in front of the source of the odor" and "sit or lay down and focus on the sources of that odor." (Id. at 117:7–19). Because Tank's trained final response is a "specific instructed behavior," the only time he exhibits it is when he has detected the odor of any of the four narcotics he was trained to find—marijuana, heroin, cocaine, and methamphetamine. (Id. at 118:9–119:18). This trained final response is imperative because it is a "definitive signal" that is "deliberately taught to a dog so that the dog understands this is how I signal that I have target odor"—it is an objective display that removes the "subjectivity that goes into" reading a dog's behavior. (ECF No. 42 at 245:4–246:2).

As part of Tank's training, Officer Moore regularly worked with Tank to perform his trained final response. (Id. at 119:2–120:14). Once Tank completed enough of these training searches that he had "shown that he can locate narcotics and bypass any other novel odors that might be present in these real-world setting," he was tested for certification. (Id. at 59:6–14). His certification requirements required that he be able to consistently perform his trained final response during his training searches. (Id. at 120:11–121:10). Officer Moore testified that after Tank was certified, they continued to regularly train, both for obedience and drug locating. (See id. at 134:13–19).

Notwithstanding Officer Moore's testimony, evidence at the Hearing raised serious questions about the sufficiency and veracity of Tank's training. First, the...