[W]e conclude that based on [Canine] Gemma’s alert, Officer Brubaker had probable cause to search Mr. Mayo’s vehicle and that the search of Mr. Mayo’s vehicle was thus constitutionally permissible.”
State v. Mayo
2023 – Ohio – 124
Third District Appellate Court
Allen County, Ohio
January 17, 2023
On Friday January 15, 2021, in the City of Lima, Officer Riley Brubaker of the Lima Police Department stopped Mr. Javin Mayo’s vehicle after observing Mr. Mayo commit what Officer Brubaker believed to be a traffic infraction. During the stop, a drug- detection dog named Gemma was led around the exterior of Mr. Mayo’s vehicle. Canine Gemma performed an “open-air sniff” of the area surrounding Mr. Mayo’s vehicle, and Canine Gemma alerted to the presence of drugs in Mr. Mayo’s vehicle. Based on Canine Gemma’s alert, Officer Brubaker searched Mr. Mayo’s vehicle and found a loaded handgun.
On March 12, 2021, the Allen County Grand Jury indicted Mr. Mayo on three counts: Count One of carrying a concealed weapon in violation of O.R.C. §2923.12(A)(2), a fourth-degree felony; Count Two of having weapons while under disability in violation of O.R.C. §2923.13(A)(2), a third-degree felony; and Count Three of improperly handling firearms in a motor vehicle in violation of O.R.C. §2923.16(B), a fourth-degree felony. On March 19, 2021, Mr. Mayo appeared for arraignment and pleaded not guilty to the counts of the indictment.
On April 7, 2021, Mr. Mayo filed two motions to suppress the evidence obtained during the search of his vehicle. Mr. Mayo argued that Officer Brubaker had neither probable cause nor reasonable suspicion to stop his vehicle. Mr. Mayo also argued that using Canine Gemma to sniff the air surrounding his vehicle was itself a search unsupported by probable cause and that, even if Canine Gemma’s sniff was not a search, Canine Gemma’s alert did not give Officer Brubaker probable cause to search.
A suppression hearing was held on September 27, 2021. At the hearing, Officer Brubaker testified that at approximately 2:30 a.m. on January 15, 2021, he was on patrol in Lima in the area of South Shore Drive and McDonel Street when a vehicle traveling north on McDonel Street caught his attention. It was undisputed at the hearing that Mr. Mayo was the driver of the vehicle. According to Officer Brubaker, Mr. Mayo’s vehicle turned left from McDonel Street onto Ohio Street, at which point Officer Brubaker lost sight of it. Officer Brubaker testified that he had to drive along several interconnected side streets to locate Mr. Mayo’s vehicle. (Officer Brubaker stated that when he eventually located Mr. Mayo’s vehicle, it was still traveling west along Ohio Street. Officer Brubaker testified that he then got behind the vehicle and began to follow it.
According to Officer Brubaker, “the vehicle immediately signaled to make a left hand turn onto Metcalf.” Officer Brubaker testified that Mr. Mayo’s vehicle completed the left turn onto Metcalf Street and began traveling south. Officer Brubaker stated that he followed the vehicle onto Metcalf Street, at which point the vehicle almost immediately turned left onto Ontario Street. He testified that Mr. Mayo’s vehicle immediately proceeded to “get off” on the right side of Ontario Street without activating its right turn signal. Officer Brubaker stated that he then activated his overhead lights to initiate a traffic stop.
The footage from Officer Brubaker’s dashboard camera, which was admitted as an exhibit at the suppression hearing, was consistent with Officer Brubaker’s account. The recording depicts Mr. Mayo’s vehicle heading in a westerly direction on Ohio Street. The vehicle is stopped at a stop sign with its left turn signal activated, waiting to turn left onto Metcalf Street. The vehicle then turns left onto Metcalf Street. After completing the left turn onto Metcalf Street, the vehicle briefly falls out of frame. When Mr. Mayo’s vehicle reappears, its left turn signal has been reactivated. Mr. Mayo’s vehicle then turns left onto Ontario Street and begins driving in an easterly direction on Ontario Street for a short distance. For approximately two seconds, Mr. Mayo’s vehicle travels in the far-right side of Ontario Street’s right lane of travel. When Officer Brubaker pulls up behind Mr. Mayo’s vehicle, Mr. Mayo’s vehicle has come to a stop at the extreme right edge of Ontario Street. At this time, the vehicle’s left turn signal is still blinking, though it is quickly deactivated. Officer Brubaker then turns on his overhead lights and initiates the traffic stop.
Lima Police Officer Riley Brubaker observed Mr. Javin Mayo make a traffic violation and stopped him. Deputy Breanna Kill and her Canine Gemma responded. Canine Gemma alerted to Mr. Mayo’s vehicle and the events that followed led to Mr. Mayo’s conviction and appeal.
Officer Brubaker testified that he stopped Mr. Mayo’s vehicle “primarily for seeing that the turn signal was not operated to go off to the right side of the road.” Indeed, in footage from Officer Brubaker’s body-worn camera, which was also admitted as an exhibit, Officer Brubaker can be heard telling Mr. Mayo that he stopped his vehicle for failing to use his right turn signal before moving to the right side of Ontario Street to park. Officer Brubaker issued a traffic “warning tag” to Mr. Mayo, a copy of which was admitted at the suppression hearing. The warning tag indicated that Mr. Mayo had violated Lima City Ordinance (“L.C.O.”) §432.12(a), which provides that “[n]o person shall move a vehicle which is stopped, standing, or parked from a curb, curb-line, parking space, or edge of traversable roadway unless such movement is made with reasonable safety and with the proper signal for movement.” In the warning tag, Officer Brubaker described L.C.O. §432.12(a) as relating to “Starting and Backing From Curb.” Furthermore, in the “Comments” section of the warning tag, Officer Brubaker indicated that “Javin Mr. Mayo was issued a warning tag for failing to signal to the curb.”.
With respect to Canine Gemma’s open-air sniff, Officer Brubaker testified that he requested the assistance of a canine unit after Mr. Mayo declined to consent to a search of his vehicle. Officer Brubaker stated that he was inside of his patrol vehicle filling out Mr. Mayo’s warning tag when the canine unit arrived and that he had not yet completed the warning tag. Finally, Officer Brubaker testified that Canine Gemma “conducted an open-air sniff around the vehicle, which the dog alerted to the odor of illegal narcotics coming from the vehicle, and at which time [he] proceeded back to the vehicle and informed [Mr. Mayo] to step out.”.
On cross-examination, Officer Brubaker testified that Ontario Street is not marked with a centerline dividing the lanes of travel and that there are no “specially delineated” parking spaces. He stated that vehicles are permitted to park on either side of Ontario Street. Officer Brubaker testified that although Ontario Street is “more narrow” than other streets in the area, two cars can travel along it even when cars are parked on both sides of the street.
Deputy Breanna Kill, who was a canine handler for the Allen County Sheriff’s Office on January 15, 2021, testified that she and Canine Gemma were called to the scene of Mr. Mayo’s traffic stop. She testified that she had worked as a canine handler for approximately one year and that she was responsible for Canine Gemma. Deputy Kill stated that she and Canine Gemma “had to go through training together, six weeks’ worth of training” and that they “had to be certified at the end of that training to be able to even go on the street and work together.” She testified that she and Canine Gemma were properly certified and that they had to renew their certification every year. A copy of Deputy Kill and Canine Gemma’s certification, which was admitted as an exhibit at the hearing, indicated that Deputy Kill and Canine Gemma had completed the “Special Purpose Canine Unit Evaluation” for “cocaine, heroin, methamphetamines and their derivatives.”
Deputy Kill testified that after she and Canine Gemma arrived at the traffic stop, she instructed Canine Gemma to begin her sniff around Mr. Mayo’s vehicle. According to Deputy Kill, when Canine Gemma got to the driver’s side door, she sat, which indicated to Deputy Kill that Canine Gemma had detected the odor of narcotics. Deputy Kill stated that she informed Officer Brubaker about the alert and returned Canine Gemma to her patrol vehicle. Deputy Kill was not involved in the search of Mr. Mayo’s vehicle.
On cross-examination, Deputy Kill testified that Canine Gemma’s alert was ultimately classified as “unsubstantiated” because although marijuana was found during the subsequent search, Canine Gemma was not certified to detect marijuana and none of the drugs Canine Gemma was certified to detect were located. Deputy Kill stated that she did not know when Canine Gemma was first trained because Canine Gemma was trained before they started working together. She testified that Canine Gemma was never trained to detect marijuana because the person who trains canines for the Allen County Sheriff’s Office does not “train on marijuana.” Deputy Kill testified that she did not know which cocaine, heroin, and methamphetamine derivatives were used in training Canine Gemma. She further testified that control narcotics, including marijuana, were used in training to ensure that Canine Gemma was not returning “false positives” for the substances she was certified to detect.
Mr. Mayo’s counsel’s cross-examination of Deputy Kill concluded with the following line of questioning:
Defense Counsel Mr. Kenneth Rexford: Okay. Okay. And [Canine Gemma’s] successfully not hit on the THC?
Deputy Kill: Correct.
Mr. Rexford: Okay. What about any sort of prescription medications that would be in the opiate or amphetamine family?
Deputy Kill: I have not used those personally with [Canine Gemma].
Mr. Rexford: To your knowledge, will [Canine Gemma] hit then on a prescription opiate or a prescription amphetamine?
Deputy Kill: To my knowledge – well, I guess specifically what are you thinking of? Like an example?
Mr. Rexford: Oh, Percocet, Vicodin, Sudafed strangely, or any kind of prescription medications that would be of those family of drugs.
Deputy Kill: Uh-huh; yes.
Mr. Rexford: She will alert to those?
Deputy Kill: Yes.
Mr. Rexford: Okay. Have you personally had occasion where there’s been an alert to a prescription medication?
Deputy Kill: Yes.
Mr. Rexford: Okay. How often?
Deputy Kill: I don’t know a number exactly. It just depends – a case by case basis.
Mr. Rexford: Okay. Have some of those alerts to prescription medications involved legally possessed prescription medications?
Deputy Kill: Yea.
Mr. Rexford: Okay. On multiple occasions?
Deputy Kill: Maybe two.
Mr. Rexford: Okay. On those occasions were there also illegal substances present?
Deputy Kill: No, there weren’t.
Mr. Rexford: Okay. So Canine Gemma will – you would agree that Canine Gemma is trained so as to alert to substances that are not contraband that a person has the right to possess?
Deputy Kill: Yes.
Thereafter, during its closing statement, the State conceded that L.C.O. §432.12(a) “does not cover the conduct that [Mr. Mayo] showed.” The State maintained that Mr. Mayo’s conduct was “more aptly” a violation of L.C.O. §432.13, which provides both that “[n]o person shall turn a vehicle or move right or left upon a highway unless and until the person has exercised due care to ascertain that the movement can be made with reasonable safety, nor without giving an appropriate signal” and that “[w]hen required, a signal of intention to turn or move right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.” L.C.O. §432.13(a)(1) and (2). The State thus argued that notwithstanding Officer Brubaker’s mistaken reference to L.C.O. §432.12(a) in Mr. Mayo’s warning tag, Officer Brubaker had reasonable suspicion to stop Mr. Mayo’s vehicle. The State also maintained that Canine Gemma’s alert was sufficient to give Officer Brubaker probable cause to search Mr. Mayo’s vehicle.
In response, Mr. Mayo’s counsel argued that there was no testimony from Officer Brubaker that “he made a reasonable mistake specifically and what his reasonings were for that. So, we can’t say whether or not this was a reasonable mistake or not a reasonable mistake.” He further claimed that Mr. Mayo could not have violated any statute or ordinance requiring him to signal right to the curb because he “turned left”. He contended that “[t]here never was any rightward movement, nor could there have been.” With respect to the probable cause generated by Canine Gemma’s alert, Mr. Mayo’s counsel argued that the particular open-air sniff conducted by Canine Gemma was itself a search because “the United States Supreme Court says that running a dog around a vehicle is not a search when the dog will not reveal the presence of contraband” but Deputy Kill testified that Canine Gemma “does and has in the past alerted to the presence of items that people do, in fact, have a legal right to possess—prescription drugs with a legal prescription.”.
Motion to Suppress is Denied
On October 4, 2021, the trial court denied Mr. Mayo’s suppression motions. The trial court concluded that Mr. Mayo could not have violated L.C.O. §432.12 and that “Officer Brubaker’s belief that [Mr. Mayo’s] movement to the right to park his vehicle violated [L.C.O. §432.12(a)] was a mistake of law.” However, the trial court held that Officer Brubaker’s mistake “was an objectively reasonable mistake of law in this case,” and it suggested that Officer Brubaker had reasonable suspicion that Mr. Mayo had violated L.C.O. §432.13 when he stopped Mr. Mayo’s vehicle. Thus, the “reasonable mistake of law” to which the trial court was referring was apparently Officer Brubaker’s erroneous reference to L.C.O. §432.12(a), rather than to L.C.O. §432.13, in Mr. Mayo’s warning tag. In addition, the trial court concluded that Canine Gemma was sufficiently reliable and that her alert therefore gave Officer Brubaker probable cause to search Mr. Mayo’s vehicle.
On February 15, 2022, a change-of-plea hearing was held before the trial court. At the hearing, Mr. Mayo withdrew his previous not guilty pleas and pleaded no contest to the three counts of the indictment. The trial court accepted Mr. Mayo’s no-contest pleas, found him guilty, and continued the matter for the preparation of a presentence investigation report. A sentencing hearing was held on March 24, 2022, at which the trial court sentenced Mr. Mayo to 18 months in prison on Count One, 24 months in prison on Count Two, and 18 months in prison on Count Three. The trial court ordered that these terms be served concurrently for an aggregate term of 24 months in prison. The trial court filed its judgment entry of sentence on March 24, 2022.
Officer Brubaker had reasonable suspicion to stop Mr. Mayo’s vehicle notwithstanding that he cited the wrong L.C.O. section in Mr. Mayo’s warning tag.
In denying Mr. Mayo’s suppression motions, the trial court concluded that Officer Brubaker had made an objectively reasonable mistake of law when he cited L.C.O. §432.12(a) in Mr. Mayo’s warning tag instead of L.C.O. §432.13. Although this certainly was a “mistake” within the meaning of the word, Officer Brubaker’s mistake was not a “mistake of law” as that phrase is typically used. Ordinarily, a law enforcement officer commits a “mistake of law” when he reasonably, albeit incorrectly, believes that a statute or ordinance prohibits conduct that is not in fact prohibited.
Here, Officer Brubaker’s justification for the stop of Mr. Mayo’s vehicle, i.e., Mr. Mayo’s failure to activate his right turn signal to indicate his movement to the right side of Ontario Street to park, was clearly explained to Mr. Mayo on scene and also outlined in the comment section of Mr. Mayo’s warning tag. Though Mr. Mayo’s conduct cannot be squared with the prohibitions of L.C.O. §432.12(a), which unambiguously prohibits a stationary vehicle from moving from a “curb, curb-line, parking space, or edge of traversable roadway” without signaling, Mr. Mayo’s conduct did potentially implicate L.C.O. §432.13. Thus, Officer Brubaker’s mistake did not involve a misunderstanding as to the scope or meaning of L.C.O. §432.12(a) but rather apparent confusion as to which L.C.O. section applied to Mr. Mayo’s conduct. Officer Brubaker’s mistake was more in the nature of a clerical or charging error, which does not itself impair the legality of the stop of Mr. Mayo’s vehicle.
Instead, the legality of Officer Brubaker’s stop of Mr. Mayo’s vehicle turns on whether Officer Brubaker had probable cause to believe, or adequate reason to suspect, that Mr. Mayo had violated L.C.O. §432.13.
Here, having reviewed Officer Brubaker’s testimony and the footage from his patrol vehicle’s dashboard camera, we cannot conclude that Mr. Mayo’s conduct was so clearly compliant with L.C.O. Section 432.13 as to render unreasonable Officer Brubaker’s belief that Mr. Mayo had violated the ordinance. Mr. Mayo entered Ontario Street from Metcalf Street and drove eastward along the outer right side of Ontario Street for approximately two seconds before coming to rest at the rightmost edge of the roadway. Faced with these facts, an objective law enforcement officer could reasonably conclude that L.C.O. Section 432.13 mandated that Mr. Mayo activate his right turn signal at some time before his vehicle came to a stop. Under the circumstances present here, the possibility that Mr. Mayo’s conduct might not in actuality have been violative of L.C.O. §432.13 does not negate Officer Brubaker’s reasonable suspicion. That is, even if Mr. Mayo did not in fact violate L.C.O. §432.13 and Officer Brubaker was mistaken in believing that he had, Officer Brubaker’s understanding of the law and his application of the law to the facts with which he was confronted were eminently reasonable, thus supporting a reasonable suspicion to stop Mr. Mayo’s vehicle.
Canine Gemma’s alert was sufficient to give Officer Brubaker probable cause to search Mr. Mayo’s vehicle.
Mr. Mayo acknowledges the longstanding rule that an open-air sniff by a trained drug-detection canine conducted during a traffic stop is not treated as a search for Fourth Amendment purposes. He argues, however, that this rule has been perpetuated due to a widespread misunderstanding prevailing among the courts of Ohio and other jurisdictions. Mr. Mayo’s position is based in substantial part on the United States Supreme Court’s holding in Illinois v. Caballes that “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.” 543 U.S. 405, 410.
Mr. Mayo also relies on the following passage from Justice Souter’s dissent in Caballes:
At the heart both of [United States v. Place, 462 U.S. 696, 103 S.Ct. 2637 (1983)] and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. See ibid. (“[T]he sniff discloses only the presence or absence of narcotics, a contraband item”); ante, at 838 (assuming that “a canine sniff by a well-trained narcotics-detection dog” will only reveal “‘the presence or absence of narcotics, a contraband item’” (quoting Place, supra, at 707, 103 S.Ct. 2637)). Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff “does not implicate legitimate privacy interests” and is not to be treated as a search. Ante, at 838. (Footnote omitted.) Id. at 411 (Souter, J., dissenting).
Mr. Mayo thus argues that “Illinois v. Caballes seems to require from the State a showing that the drug-detecting dog does not reveal anything except contraband.” He contends it is insufficient for the State to simply prove the dog was certified to detect illegal drugs but that the State must also establish the dog does not detect lawful items. In addition to Caballes, Mr. Mayo also points to a decision from the Colorado Supreme Court where the court, construing its own state constitution, found that an open-air sniff is a search under the Colorado Constitution if the drug-detection canine is trained to detect marijuana, which persons are permitted to possess under Colorado state law. People v. McKnight, 446 P.3d 397, (Colo.2019) (“Because a sniff from a dog trained to detect marijuana (in addition to other substances) can reveal lawful activity, we conclude that [such a] sniff is a search under article II, section 7 [of the Colorado Constitution] and must be justified by some degree of suspicion of criminal activity.”).
Whatever merit Mr. Mayo’s argument might have in the abstract, it has no bearing here. First, even if Mr. Mayo is right that an open-air sniff by a canine trained to detect lawful substances is a search under the Fourth Amendment, an issue about which we offer no opinion at present, it is unclear why the State should have the burden of demonstrating that a particular sniff was not a search. The law in Ohio is clear that an open-air sniff by a properly trained drug-detection dog conducted during a traffic stop is not a search for Fourth Amendment purposes. Further, as a general matter, when there is a question whether a challenged governmental action was a search under the Fourth Amendment, the defendant bears the burden of proof on the issue.
But more importantly, from the available record, it cannot be determined whether the new legal standard proposed by Mr. Mayo would even apply. Deputy Kill testified that on two previous occasions when Canine Gemma alerted, only legally possessed prescription drugs were found during the ensuing search. Deputy Kill agreed that “Canine Gemma is trained so as to alert to substances that are not contraband that a person has the right to possess.” However, notwithstanding Deputy Kill’s representation, the fact that Canine Gemma had alerted on occasions where only legally possessed prescription drugs were found is not synonymous with saying that Canine Gemma was trained to detect these drugs. Significantly, Deputy Kill testified that she was unaware which cocaine, heroin, and methamphetamine derivatives were used in training Canine Gemma. She further stated that prescription opiates or amphetamines had not been utilized in her training with Canine Gemma.
Therefore, examining the totality of Deputy Kill’s testimony, it is not entirely clear whether Deputy Kill was describing Canine Gemma’s tendency to alert to certain prescription drugs in accordance with her training or whether Deputy Kill was conflating the discovery of prescription drugs during post-alert searches with Canine Gemma being trained to detect those specific drugs. The latter interpretation potentially implicates Canine Gemma’s reliability rather than the scope of her training. See Florida v. Harris, 568 U.S. 237, 245-247, 133 S.Ct. 1050 (2013). Consequently, as the record does not conclusively support the application of Mr. Mayo’s proposed rule even if we were to accept it, we will proceed under the customary standard—that Canine Gemma’s open-air sniff did not constitute a search for Fourth Amendment purposes because it did not implicate Mr. Mayo’s legitimate privacy interests. See Caballes, 543 U.S. at 408-409.
Did Canine Gemma’s Alert Establish Probable Cause?
Having determined that Canine Gemma’s open-air sniff was not a search, we turn now to the final issue—whether Canine Gemma’s alert supplied Officer Brubaker with probable cause to search Mr. Mayo’s vehicle.
Mr. Mayo contends that Canine Gemma’s alert, standing alone, did not give Officer Brubaker probable cause to search his vehicle. Mr. Mayo argues that the existence of probable cause is determined by examining the totality of the circumstances, which, according to Mr. Mayo, the trial court failed to consider properly.
We recognize that Canine Gemma’s alert was “unsubstantiated” insofar as the only illegal substance discovered during the ensuing search was marijuana, which Canine Gemma was not certified to detect. We also acknowledge Deputy Kill’s testimony to the extent it might be construed as indicating that Canine Gemma had previously alerted to drugs she was not certified to detect. However, as the United States Supreme Court explained in Harris, a “false positive” does little to undermine Canine Gemma’s overall reliability:
[I]n most cases [records of a dog’s field performance] have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog’s false negatives. Conversely * * *, if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person. Field data thus may markedly overstate a dog’s real false positives. By contrast, those inaccuracies—in either direction—do not taint records of a dog’s performance in standard training and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he should not. The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments. Florida v. Harris, 568 U.S. 237, 245-246.
Here, Mr. Mayo did not contest the adequacy of Canine Gemma’s training program or examine how Canine Gemma and Deputy Kill performed during the assessments preceding their certification. Nor did Mr. Mayo point to anything in the circumstances surrounding Canine Gemma’s alert at his vehicle that would negate a finding of probable cause notwithstanding Canine Gemma’s general dependability. Accordingly, to the extent that the record discloses “false positives” on Canine Gemma’s part, we cannot say that they are sufficient to undermine Canine Gemma’s reliability, or the probable cause generated by her alert.
Therefore, we conclude that based on Canine Gemma’s alert, Officer Brubaker had probable cause to search Mr. Mayo’s vehicle and that the search of Mr. Mayo’s vehicle was thus constitutionally permissible.
Mr. Mayo’s first and second assignments of error are overruled.
Information for this article was obtained from State v. Mayo, 2023 – Ohio – 124.
This case was issued by the Third District Appellate Court and is binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.
- When Mr. Mayo moved to the curb he violated Lima City Ordinance 432.13. However, Lima Police Officer Riley Brubaker wrote §432.12(a) on his warning ticket. This was a mistake of law. On December 15, 2014 the U.S. Supreme Court issued Heien v. North Carolina, 574 U.S. 54 (2014) and held “[B]ecause the mistake of law was reasonable, there was reasonable suspicion justifying the stop.”. Therefore, the trial court and the Third District Appellate Court held that the stop of Mr. Mayo was objectively reasonable.
- Mayo also argued that it is insufficient for the prosecution to simply prove the dog was certified to detect illegal drugs but that the prosecution must also establish the dog does not detect lawful items. This avante garde legal argument was rejected by the Third District Appellate Court as it held “Consequently, as the record does not conclusively support the application of Mr. Mayo’s proposed rule even if we were to accept it, we will proceed under the customary standard—that Canine Gemma’s open-air sniff did not constitute a search for Fourth Amendment purposes because it did not implicate Mr. Mayo’s legitimate privacy interests.”.
- Mayo’s final argument was that the Canine Gemma’s alert did not establish probable cause because the Totality of the Circumstances must be evaluated thereby diminishing the canine alert. The Third District Appellate Court also dismissed this appeal as the court held “[W]e conclude that based on [Canine] Gemma’s alert, Officer Brubaker had probable cause to search Mr. Mayo’s vehicle and that the search of Mr. Mayo’s vehicle was thus constitutionally permissible.”.
- Officer Riley Brubaker and Deputy Breanna Kill should both be highly commended for their actions and testimony. Officer Brubaker utilized a minor misdemeanor stop to develop probable cause into a felony investigation. Deputy Kill utilized her training, experience and canine acumen to establish probable cause that led to the conviction of Mr. Mayo. Well done officer and deputy!
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