Suppression warranted in K9 search – a change in Florida law

Underhill v. State, 4D15-1778 (July 13, 2016)

In a case representing a significant change in Florida law, the Fourth District reversed a conviction for possession of methamphetamine after concluding that the Trial Court erred by denying a motion to suppress.

In Underhill, LEO conducted a traffic stop based upon a seatbelt violation.  Upon approach, the defendant appeared nervous, but the LEO merely obtained the DL and registration and returned to the cruiser to input the data.  At the same time, additional officers questioned the defendant and asked for consent to search the vehicle, to which the defendant refused.  While waiting for the DL information to return, the officers conducted a perimeter K9 search.  After the DL information returned, the arresting LEO took a “couple of minutes” to further the search when the K9 alerted.  A search of the vehicle commenced, and the officers retrieved methamphetamine and paraphernalia.

Under traditional Florida law, delaying a “couple of minutes” would not have warranted suppression.  However, the Supreme Court in Rodriguez v. US, 135 S.Ct. 1609 (2015), strictly limited LEO ability to conduct K9 searches without a warrant or reasonable suspicion of criminal activity.  The Rodriguez court reasoned that even a de minimis amount of time involving a K9 search will be invalidated lacking independent reasonable suspicion.  The inquiry is no longer whether the citation could have been completed within the amount of time required prior to the search; rather, the inquiry now is whether the k9 search added any time at all to the stop.  If the answer is in the affirmative, the search is unlawful and suppression is warranted. Case reversed and remanded for discharge.

*Note, not all DCAs are issuing opinions in the same regard.  I have personally argued the same issue in front of the 2nd and obtained PCAs.  The issue will likely need to be resolved at the FL Supreme Court level; however, the 4DCA is providing ample ammunition to challenge ordinary k9 searches*



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