Canine Apprehensions

Reasonable Use of Force

Remember gentlemen when looking on deploying a dog as a reasonable use of force we need to consider Graham v. Conner. Although Graham v. Conner is not a ‘dog case’ it is still instrumental in helping us decide if and when it is reasonable to use a dog as a means of force. Graham v. Conner is an older case but I will start with the case as a reminder.

Graham v. Connor 490 U.S. 386 104 L Ed. 2d. 443, 109 S. Ct. 1865 (1989)

The Supreme Court ruled in Graham that excessive force must be analyzed under the Fourth Amendments’ objective reasonableness test. The application of this test requires an analysis of the totality of the circumstances, including these factors to determine if the seizure is reasonable:

1. The severity of the crime at issue;
2. Whether the suspect poses an immediate threat to the safety of law enforcement officers or others;
3. And whether the suspect is actively resisting arrest or attempting to evade arrest by flight

The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on scene, rather than with the 20/20 vision of hindsight

With that being said, remember the court rules ‘the severity of the crime’ it does not rule between misdemeanor and felony. So in deploying your K-9 partner to apprehend a suspect, be sure to know and review Graham v. Conner.

Patrol Dogs

Here is new caselaw that just came down.

United States v. Charles Lawshea No. 054098p - 08/24/2006 (Seventh Circuit)

Officer McCord was patrolling a housing complex, a high crime area, with his police dog. His sergeant had requested that he patrol the area because several fights had taken place there recently, including one that involved a stabbing.

McCord observed two men standing very close to each other in a lit courtyard. Officer McCord turned toward his squad car towards the men. The two men looked directly at him and one of the men ran into a nearby apartment. The other man, later identified as defendant Charles Lawshea, turned around and began walking away from Officer McCord’s squad car.

When Officer McCord drove towards Lawshea, who then looked back and began running. Lawshea ran around an apartment building three times and McCord followed him in the squad car. After the third lap, Officer McCord stopped his car and twice warned Lawshea that if he did not stop, Officer McCord would release his police dog. Lawshea kept running and Officer McCord released and commanded his dog to apprehend the defendant.

The policedog caught Lawshea and knocked him to the ground, biting his back. Once Lawshea stopped struggling, Officer McCord ordered the police dog to release Lawshea.

After Lawshea was finally secured, Lawshea was placed on his side. Officer McCord then noticed a small caliber handgun on the ground where Lawshea’s stomach had been. Lawshea was placed under arrest and taken to a hospital where he was treated for bites to his back and shoulder.

Court rulings and comments:

Lawshea first argues that the officer did not have reasonable suspicion to conduct a Terry stop. He also contends that the use of a police dog to conduct the Terry stop rendered it an unconstitutional arrest.

It has been consistently held that officers may conduct an investigatory stop of a person when they have a reasonable, articulable suspicion that criminal activity is afoot. (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).

Considering reasonable suspicion as follows:

1. Lawshea’s flight from Officer McCord in a 'high-crime area' just before midnight.

2. Recent fights, including a stabbing, triggered extra patrol in the area.

3.The men were standing suspiciously close to each other.

4. Once they observed the officer both subjects immediatly fled the area, with Lawshea actively running from the Officer. Flight from a law enforcement officer gives that officer reasonable suspicion to pursue a suspect and conduct a Terry stop. Wardlow, 528 U.S. at 123-26. As the Supreme Court explained in Wardlow:
[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.
Wardlow, 528 U.S. at 125.

5. Lawshea not only ran away from the officer, but he ran around the same building three times.

6. Lawshea also refused to stop when he was ordered to stop twice.

It has been held that “once police have the reasonable suspicion required to justify an investigatory stop, they may use reasonable means to effectuate that stop.” United States v. Felix-Felix, 275 F.3d 627, 636 (7th Cir. 2001); see also United States v. Weaver, 8F.3d 1240, 1244 (7th Cir. 1993) (“It is wellestablished that ‘[a] measured use of force . . . appropriate to accomplish the purposes of [the] investigatory stop’ does not convert a Terry stop into an arrest.”) Furthermore, the defendant’s own actions in resisting an officer’s efforts may be considered when a reviewing court analyzes whether an investigatory stop has transformed into an arrest. Felix- Felix, 275 F.3d at 636.

Had Lawshea stopped his flight the first or second time Officer McCord ordered him to stop, the use of the police dog would have been unnecessary. Lawshea’s own actions prompted McCord to release the police dog to apprehend Lawshea and conduct a Terry stop. Both courts agreed that the use of a police dog may have been the best alternative use of force to apprehend the fleeing suspect and conduct the Terry stop. The use of the police dog, released only after Lawshea ignored two orders to stop his flight, did not transform the Terry stop into an arrest requiring probable cause.

I believe this case could be very powerful to canine handlers; however it should also be used with caution.

Even though the terry stop was based on reasonable suspicion and not probable cause, remember
1. The area of the stop was a high crime area
2. Assigned extra patrol because of two RECENT CRIMES
3. The handler gave at least two warnings, prior to releasing the dog, which the court noted: 'had Lawshea stopped his flight the first or second time Officer McCord ordered him to stop, the use of the police dog would have been unnecessary'

Also, if all the above criteria are met and you do use your canine partner for an apprehension, you should notate as much reasonable suspicion reasons for the terry stop, in your case report


I won’t get into the details of each case, but here are two 2005 cases as an example to deploy your dog for a suspect apprehension:

Dodd v. Corbett, 2005 WL 30462446 (Seventh Circuit 2005)

Initial suspect violations and officer actions:

Suspect Dodd committed a burglary and shot a police officer who responded to the scene. Dodd then fled on foot. A police dog tracked Dodd over several miles and located him. The canine handler ordered Dodd to show his hands, and Dodd refused. The handler deployed his dog who apprehended Dodd using the ‘bite and hold’ technique. The dog "compelled" Dodd to show his hands. The dog was removed from the less than-five-second bite and Dodd was handcuffed.

Court rulings, findings, and comments:

Dodd claimed that he complied with all the canine handlers’ orders. Dodd only offered his own testimony to support his contention. The jury chose to believe the canine handler and other officers’ testimony that Dodd failed to comply when contacted.

The jury also found that under Graham v. Conner the canine handler and other officers used no more force than necessary to affect Dodd’s arrest.

Strickland v. Shotts, 2005 WL 3159605 (Seventh Circuit 2005)

An officer attempted a traffic stop for a possible ‘driving under the influence’. Suspect Strickland was driving the vehicle. Strickland did no stop and a high-speed pursuit took place. Strickland eventually stopped his car, reached into the passenger compartment, and fled on foot into a residential neighborhood. Officers found Strickland inside a private residence, hiding in a bathroom. Strickland resisted arrest by fighting with officers. In response to believing Strickland might be armed a canine handler deployed his dog. Strickland was taking into custody.

Court Rulings: The court used Graham v. Conner yet again.

The court found Driving while intoxicated is a serious offense that poses an immediate threat to the officer on the scene and others nearby (Graham v. Conner -Severity of the crime and suspect posed an immediate threat to law enforcement officers and others). Strickland also posed an immediate threat to officers, by fighting officers at the time of arrest (Graham v. Conner – Suspect posed an immediate threat to law enforcement officers and Suspect resisted a lawful arrest)

Keep in mind fellow canine handlers; you should always give a verbal warning before releasing a dog for an apprehension. Even on a track, if you notice your dog giving a body posture change alerting you of the possibility of a person near by, you should give a verbal warning.

Here is a new case regarding that scenario:

Szabla v. City of Brooklyn Park, Minnesota, 429 F. 3d 1168 (Eighth Circuit 2005)

Case: Officers responded to a single-car traffic crash. When the officer arrived, the driver had fled. It appeared to the officer that the car might have been used in a burglary and officer requested a canine.

Canine deployment factors: 1. A canine handler thought the driver could be ill, drunk, or possible involved in a burglary.

The handler used his police dog to track the driver from the vehicle. The dog located and bit a person, who turned out not to be the driver of the car.

Court Rulings: The court addressed a need for a canine warning announcement that would give a suspect the opportunity for a peaceful surrender. The concluded that a jury could properly find it unreasonable to use a police dog trained in the ‘bite-and-hold’ method to track and bite a suspect without first giving the suspect a warning and opportunity for a peaceful surrender.

The court further stated that at the time of the event (August 2004), the law was not clearly established that not giving a warning to the suspect was unreasonable under the Fourth Amendment. Therefore, the Canine handler was entitled to qualified immunity.

I will be adding more and more case law. Please be patient. Also if you want me to add any case law, please assist me and prepare it as I did. I will find the links but the easier you make it for me the quicker it will be posted.

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