The U.S. Court of Appeals for the Armed Forces upheld the conviction of an Air Force first lieutenant charged with possession of marijuana and drug paraphernalia. In United States v. Harrell, the defendant argued that her Fourth Amendment rights were violated during a traffic stop conducted by civilian police, particularly when a canine unit was called to the scene.
Suppression can be outcome determinative in a military drug case, which is why an appellate decision about where a dog’s nose went is worth a service member’s attention. Joseph L. Jordan, Attorney at Law defends Article 112a allegations in all six branches, and the first question in these cases is whether the search that produced the evidence survives a motion.
United States v. Harrell
First Lieutenant Harrell was pulled over by civilian police just after midnight on August 4, 2012, for driving eighty miles per hour in a sixty zone near Solon, Ohio. After collecting her information, the officer returned to his vehicle and called for a canine unit. He suspected she was under the influence of drugs or alcohol.
While waiting, Harrell was allowed to exit the vehicle to smoke a cigarette. She left the driver’s side window open. When the canine unit arrived, the dog leapt up and put its head through the open window, which led officers to marijuana and marijuana pipes inside the vehicle. Harrell later surrendered marijuana she had on her person.
At the time of the stop, she was already pending court martial for wrongful use of marijuana.
Harrell entered a conditional guilty plea, preserving her right to appeal the denial of her suppression motion. Her two arguments were that the traffic stop was improperly prolonged so that a canine unit could arrive, and that the dog’s entry into the vehicle was an unlawful search. The military judge and the Air Force Court of Criminal Appeals rejected both.
The CAAF Decision
Read as a practical matter rather than a doctrinal one, the decision says that what the military judge finds at the suppression hearing is likely to stand. Mr. Jordan has taken more than 250 cases to verdict, and that is the reason a suppression motion in a drug case is prepared as though it were the trial.
The court affirmed.
On the length of the stop, the court found that the officer had an independent basis to prolong it. He suspected Harrell was driving under the influence, and he also had reason to suspect drug trafficking based on the circumstances: she had driven a rental car a long distance to an area locally known for drug activity, an area unlikely to be familiar to someone coming from her point of origin.
On the canine, the analysis was closer, and it is worth being precise about what the court actually decided. The military judge had reviewed the dashboard footage and found that the dog, Stryker, “went high” by rising on his hind legs and placing his paws at the plane of the open window, but “did not extend his nose into the passenger compartment.” CAAF reviews a military judge’s findings of fact for clear error, and it held that this finding was not clearly erroneous. Because the dog never entered the vehicle, there was no physical intrusion and no Fourth Amendment violation. That is the holding.
Senior Judge Cox, concurring, went further. In his view, when the dog “went high” he did so “without prompting, urging, or facilitation by his handler or the other officers,” and Harrell herself had left the window open, so even an instinctive entry would not have been a search. That reasoning belongs to the concurrence, not to the opinion of the court, and material that presents it as CAAF’s holding overstates the case.
What the Case Turns On
Cases like this one turn on a factual finding rather than on a rule, and that finding is made by the military judge at the suppression hearing. Once it is made, an appellate court will generally leave it undisturbed. Mr. Jordan served as an Army prosecutor before opening his own practice, and the practical lesson of Harrell is that a Fourth Amendment issue in a drug case may be won or lost at the suppression stage, in front of the trial judge, rather than on appeal.
Two things, and they are different in kind. First, the deference an appellate court gives to a trial judge’s finding about what a video shows. The defense lost in Harrell largely because the military judge’s reading of the footage was defensible, not because the law favored the government. Second, for the instinctive conduct question that the concurrence addressed, the record matters: a handler who positioned the dog or encouraged it toward an opening, or a window opened by law enforcement rather than by the driver, produces a different case.
For a service member facing evidence obtained during a civilian traffic stop, the questions to work through with counsel are concrete: what justified the initial stop, what justified each extension of it, who opened what, and what the video shows.
Speak With a Military Defense Attorney
Joseph L. Jordan, Attorney at Law is a former Army JAG officer who represents service members in all branches. If your case involves evidence obtained during a stop or a search, call (888) 643-6254 to discuss how it was gathered.