Q: WHO LET THE DOGS OUT? A: THE COURTS AND THE COPS!
By Robert C. Bonsib, Esq. and Megan E. Coleman
To the question "who let the dogs out?" we offer this article reviewing the current state of the law with respect to K-9 searches. After this review a cynic might well conclude that the dogs are being "let out" while the Fourth Amendment is being confined to the doghouse.
The interplay of the dual-purpose traffic stops authorized in Whren v. United States, 517 U.S. 806, 813 (1996), together with the Court of Special Appeals' (CSA) recent decision in Baez v. State, 238 Md. App. 587 (2018) (reviewed in our November, 2018 Newsletter Article) uphold the authority for police officers to stop vehicles for seemingly random investigatory purposes.
Speeding five miles over the limit, a rolling stop at an intersection, a minor tag obstruction, the list of minor infractions goes on to justify a police officer's vehicle stop even when the true purpose for the stop has nothing to do with enforcing the rules of the road. Once stopped, the process of checking license and registration, engaging the driver, and conducting related "routine" traffic stop activity will usually provide a 10-15 minute window for a K-9 unit to arrive on the scene. Once the dog is out, a search of the vehicle and of the defendant is imminent as any alert, or even a failure to provide a final alert (see Steck below), will provide probable cause for the officers.
A police officer well-educated in these court decisions has essentially been given carte blanche to stop just about any vehicle, at any time, to conduct an investigatory detention where the dogs can then be "let out."
Steck v. State
Court of Special Appeals of Maryland (J. Battaglia)
2018 WL 6187777 (decided Nov. 28, 2018)
Held: police officer had reasonable suspicion that justified traffic stop; traffic stop was not prolonged to effectuate canine sniff of automobile; and police officers had probable cause to conduct warrantless search of automobile for drugs.
Factual Background: Officer Dan McBride of the Ocean City Police Department was working bicycle patrol when he observed a 2008 black Chevy Impala with a Delaware registration stop at a stop sign and then make a left-hand turn, crossing over one lane of the roadway. Officer McBride testified at the suppression hearing that when the vehicle made the turn, it pulled out in front of a taxicab, causing the taxicab driver to slam on his brakes to avoid a collision with the vehicle. Officer McBride broadcast a description of the vehicle and the occupants over the radio and the vehicle was subsequently stopped by Officer Newshawn Jubilee.
Officer McBride arrived three to four minutes later and confirmed that the vehicle stopped was the Chevy Impala he witnessed nearly get into an accident with the taxicab. The driver of the Impala was Etoyi Roach and the appellant, Steck, was in the backseat, while another passenger sat in the front seat.
Officer McBride spoke with the vehicle's occupants, then walked to Officer Jubilee's patrol car and began issuing Roach a written warning for the unsafe lane change and then requested a K-9 unit to respond to the scene.
Officer McBride testified that he chose to request a canine unit based on the behavior of the occupants, as well as the information that Officer Jubilee relayed that it took a little longer to pull over the vehicle than usual, the vehicle almost ran a red light, and it coasted to a stop. Additionally, Officer Jubilee said that as he approached the vehicle, the driver and occupants were making furtive movements around the vehicle.
Officer Jubilee testified that the Impala did not stop until three city blocks after he initiated the traffic stop. As he pulled up to the vehicle, he noticed the occupants were looking around and their hands were moving about the car.
After Officer McBride requested the canine unit, it took a couple minutes for the team to arrive, and Officer McBride was still in the process of writing Roach's warning when the team did arrive.
Deputy Christopher Larmore testified at the hearing that he received the request for canine support and it took him and his canine partner, Simon, a couple of minutes to travel from their location to the scene of the traffic stop.
Upon the K-9 team's arrival, Deputy Larmore requested that Officer McBride and the other officers remove the occupants from the vehicle for safety reasons. Deputy Larmore and Simon conducted a scan of the vehicle. Deputy Larmore noticed a change of Simon's breathing, posture, and general behavior. At the rear passenger door, Simon went back and forth between sniffing the vehicle and sniffing the gusts of wind that were blowing from the general direction of the occupants. Simon was showing signs of behavior of an odor. Simon was fighting two different odors and would not go into the final alert which is his sit. Simon was giving involuntary responses which he gives when he detects marijuana, cocaine, methamphetamine, heroin, and ecstasy.
Deputy Larmore believed that the odor was mostly coming from the occupants which is why Simon kept trying to pull him towards them. Deputy Larmore testified that Simon's behavior was consistent with odor coming from the vehicle and odor coming from individuals sitting on the curb. Deputy Larmore concluded that he considered there to be two sources of the odor, the vehicle and the occupants.
Detective Corey Gemerek testified that after the scan was complete, he approached Steck and asked if he had any drugs and/or illegal weapons on his person. Steck replied that he had a blunt in his pocket. Detective Gemerek asked Steck to remove it from his pocket; and in turn, Steck retrieved a clear plastic bag containing marijuana.
After the seizure of the marijuana, the officers searched the vehicle and discovered one thousand bags of heroin.
Motion to Suppress: Steck filed two motions to suppress the seizure of the heroin, both of which were denied. Steck argued that (1) the initial traffic stop was unlawful as it was not supported by reasonable articulable suspicion that a traffic violation had occurred; (2) the traffic stop was prolonged beyond the time necessary to effectuate the purpose of the stop in order to permit a K-9 unit to conduct a scan; and (3) there was no probable cause to search the vehicle as the drug detection dog failed to provide a positive alert and the handler failed to explain why Simon did not positively alert to the car.
In assessing the reasonableness of a traffic stop, the Supreme Court has adopted the "dual inquiry" examining "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20 (1968). A traffic stop is permissible under the Fourth Amendment "where the police have a reasonable suspicion supported by articulable facts that criminal activity is afoot." Lewis v. State, 398 Md. 349, 361 (2007). It is well settled that the police have a right to stop and detain the operator of a vehicle when they witness a violation of a traffic law. Cartnail v. State, 359 Md. 272, 289 (2000).
Steck argued that the driver of the Impala did not violate T.A. § 21-309(b), the offense for which Roach received a citation. T.A. § 21-309(b) state that: "A vehicle shall be driven as nearly as practicable entirely within a single lane and may not be moved from that lane or moved from a shoulder or bikeway into a lane until the driver has determined that it is safe to do so."
The Court of Special Appeals credited the suppression hearing judge's finding that Officer McBride, who had a clear and unobstructed view of the event, observed the Impala pull out in front of the taxicab which caused the taxicab to hit his brakes in the roadway in order to avoid a collision. This behavior provided officers reasonable suspicion to stop Roach's Impala.
With regards to Steck's next contention that the traffic stop was prolonged beyond the time necessary to effectuate the purpose of the stop, Steck further contends that Officer McBride ceased writing the warning ticket to help focus on the dog sniff, thus abandoning the original purpose of the stop. The reasonableness of the traffic stop is not measured by the clock alone. State v. Ofori, 170 Md. App. 211, 237, cert. denied, 396 Md. 13 (2006). Rather, it must also "be temporary and last no longer than is necessary to effectuate the purpose of the stop." Id. (italics in original). Hence, the purpose of a traffic stop should be limited to the period of time reasonably necessary for the officer to (1) investigate the driver's sobriety and license status, (2) establish that the vehicle has not been reported stolen, and (3) issue a traffic citation. Pryor v. State, 122 Md. App. 671, 682, cert. denied, 352 Md. 312 (1998).
When evaluating the length of the detention, the Courts take into account whether the police diligently pursued the purpose of their investigation. Henderson v. State, 416 Md. 125, 144 (2010) (quoting United States v. Place, 462 U.S. 696, 709 (1983)). Once the mission of the original traffic stop has been completed, "the continued detention of a vehicle and its occupant(s) constitutes a second stop and must be independently justified by reasonable suspicion." Munafo v. State, 105 Md. App. 662, 670 (1995).
A canine scan that occurs during a valid, lawful traffic stop may not be considered a Fourth Amendment "search" that requires additional reasonable suspicion or probable cause, Gadson v. State, 341 Md. 1, 8 n.4 (1995), cert. denied, 517 U.S. 1203 (1996), because drug detection dogs do not seek out items that are lawful to possess, only contraband. It is "perfectly legitimate" to use a drug detection dog during a traffic stop as a "free investigative bonus," as long as the traffic stop is "still genuinely in progress." Ofori, 170 Md. App. at 235.
If, however, a dog scan unnecessarily exceeds the scope of the original seizure, then a Fourth Amendment violation has occurred. Munafo, 105 Md. App. at 670-72. The issue is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop. Rodriguez v. United States, -- U.S. --, 135 S.Ct. 1609, 1616 (2015).
If the officer issuing the citation is diligently and "legitimately still working on those citations when the K-9 unit arrives, the traffic stop is still ongoing, and the detention will be considered reasonable for Fourth Amendment purposes. Partlow v. State, 199 Md. App. 624, 638 (2011) (internal citation omitted).
The CSA said that the time in this case, though not dispositive, is a consideration. The suppression hearing judge found that the stop occurred at 12:24, Officer McBride arrived three to four minutes later, Deputy Larmore arrived at 12:32 with his dog. The CSA found that the record supports only an eight minute lapse in time occurred, which is not an undue delay, especially because the officer was writing the citation. Because Officer McBride was still issuing the citation, the original purpose of the stop was not abandoned to permit the canine scan.
With respect to Steck's argument that there lacked probable cause to search the Impala because the canine failed to positively alert, this Court found that there may be situations where a drug detection dog fails to provide its final alert, but probable cause exists, based upon the evidence presented. This Court looked to the Eight and Tenth Circuits for supporting cases. This Court found that in addressing whether a dog's conduct provides a sufficient basis for probable cause for a warrantless car search, evaluation of the credibility of the dog's handler and other witnesses on the scene is key. In the present case, the suppression hearing judge commented on the "compelling" nature of Deputy Larmore's testimony, finding that the dog's behavior was indicative that drugs were present. Because probable cause existed to search the car, the fruits of that search were admissible. This Court declined to adopt a stringent rule in which a drug detection dog must provide a trained, final alert in order for probable cause to exist.
Carter v. State
Court of Special Appeals of Maryland (J. Fader)
236 Md. App. 456, 182 A.3d 236 (2018)
Held: police officer did not impermissibly delay traffic stop of defendant's vehicle for failure to stop and speeding violations so that canine could perform drug-sniff of the vehicle; police officer did not abandon purpose of traffic stop of defendant's vehicle when he paused from writing citations to brief officer, who arrived with canine, and to ask defendant to exit his vehicle; and police officer's search of defendant after canine alert was incident to defendant's arrest.
Background: Montgomery County Patrol Officer Michael Mancuso observed a car being driven by Carter fail to make a complete stop at a stop sign while driving in a high-crime area known for drug activity. Officer Mancuso followed the car, pacing its speed at 48 miles per hour in a 40 mile per hour zone.
At 12:52 a.m., Officer Mancuso pulled Carter over and obtained his license and registration. Carter appeared extremely nervous. At 12:57 a.m. Officer Mancuso requested a K-9 unit to conduct a scan for narcotics and ran a records check revealing Carter's license was valid and he did not have any outstanding warrants. At 1:00 a.m., after the records check was complete, Officer Mancuso opened the electronic system to write Carter warning citations for the failure to stop and speeding violations. It took five to seven minutes to write the citations. During that same time, Officer Mancuso briefed another officer, Officer Gary Finch, who arrived on scene at 1:02 a.m.
The K-9 Unit, Officer Jason Buhl and his dog Konner arrived on scene at 1:07 a.m. Officer Mancuso had not yet finished writing the citations. At 1:09 a.m., Officer Mancuso ordered Carter out of the car. Within 15-20 seconds, Konner alerted to the presence of narcotics on the driver's seat of Carter's car.
A search of the car yielded nothing illegal. Officer Michael Murphy conducted a pat-down search of Carter and noticed an unnatural bulge in the area of Carter's groin. Carter became combative. All four officers had to place Carter in handcuffs. The search produced two plastic baggies of more than 70 grams of crack cocaine and three grams of cocaine. Carter was placed under arrest.
Carter moved to suppress the drugs. The circuit court denied the motion. Carter was tired and convicted of drug offenses.
CSA Rulings: The CSA found that the motions court did not err in denying Carter's motion to suppress. The CSA found that the original traffic stop was ongoing when the canine alert occurred. The circuit court found that Officer Mancuso promptly took steps to process the violations and did not engage in any delay. The CSA likewise did not find any impermissible delay, the entire episode, from initiation of the traffic stop until the alert, took approximately 17 minutes, and there were only ten minutes in between the time Officer Mancuso returned to his car and Officer Buhl's arrival.
Further, the suppression court found that Officer Mancuso never abandoned the tasks relevant to the traffic stop, and the CSA cannot say that his tasks were performed unreasonable under the circumstances.
Thus, the original traffic stop had not ended, nor had it been extended improperly.
A canine alert provides probable cause to arrest, therefore, the search incident to arrest was justified resulting in the seizure of the drugs from Carter's person.
Grimm v. State
Court of Appeals of Maryland (Opinion by J. Watts; J. Adkins concurring)
458 Md. 602, 183 A.3d 167 (2018)
Held: as a matter of first impression, in context of probable cause determination, issue of drug detection dog's reliability is reviewed for clear error; and drug detection dog's alert was reliable, as would support determination that probable cause existed to search.
Procedural History: Sergeant Christopher Lamb of the Maryland Transportation Authority Police initiated a traffic stop of a vehicle that Grimm had been driving. Officer Carl Keightley of the Maryland Transportation Authority Police, a K-9 handler, and Ace, his K-9 dog, arrived at the scene of the traffic stop. Ace scanned the vehicle and alerted to it. Sergeant Lamb searched the vehicle and found drugs inside.
Grimm moved to suppress the drugs, alleging that Sergeant Lamb lacked probable cause to search his vehicle.
Sergeant Lamb's Testimony
Sergeant Lamb testified that he received information that a maroon Honda registered in Georgia, with multiple occupants, would be traveling from Maryland Route 100 onto northbound side of Maryland Route 295 (the car originated from Atlanta and traveled up Interstate 95 entering into Maryland). Sergeant Lamb spotted the Honda travel from Maryland Route 100 onto Maryland Route 295, and saw that the driver and his three occupants were not wearing seat belts. Sergeant Lamb initiated a traffic stop.
Grimm was in the driver's seat and his clothing looked disheveled, his hair unkempt, it was like he had been driving for a long time and had not been staying anywhere. Grimm mumbled and rambled and did not make eye contact when addressing Sergeant Lamb. But, Grimm appeared to be very calm.
Grimm provided Sergeant Lamb with his Maryland driver's license and the Honda's registration. Two days earlier, the Honda had been registered in Georgia to a man named Johnny Lee Oglesbee, Jr. Grimm told Sergeant Lamb he bought the Honda but could not afford to register the Honda in his name. Grimm told Sergeant Lamb he and his friends went down to Atlanta for the week to visit friends and buy the Honda.
The front passenger, Davita Henry, stared straight ahead, and never turned to look at Sergeant Lamb who was standing on the passenger's side speaking to Grimm. The backseat passenger Aaron Chase leaned forward to engage Sergeant Lamb in conversation and was overly polite.
Sergeant Lamb asked Grimm to exit the Honda and walk to the rear of the Honda. Grimm did so. Grimm spoke to Sergeant Lamb and then returned to the driver's seat. Grimm did not fully close the driver's door and kept his left foot on the asphalt. Grimm placed a pillow on the door's windowsill and then laid his head on the pillow. Sergeant Lamb became concerned that Grimm would try to run away.
Sergeant Lamb suspected criminal activity was afoot in light of the information he received from Grimm that four individuals flew from Baltimore to Atlanta to buy the Honda, and Grimm who'd paid for those airline tickets, was not able to afford to register the Honda in his name, combined with circumstance that Chase was overly police while Henry stared straight ahead. The Honda was a dented, older model, two door Accord with high mileage and faded paint. Sergeant Lamb testified that Baltimore and Atlanta are "source cities for" controlled dangerous substances.
Sergeant Lamb used his radio to obtain information about Grimm's Maryland driver's license and the Honda's registration. He learned that both were valid. Sergeant Lamb requested a K-9. While Sergeant Lamb was writing warnings for the failure to wear seat belts, Officer Keightley of the K-9 Unit arrived with Ace. Officer Keightley had the occupants exit the Honda before the dog scan occurred. Officer Keightley and Ace performed a dog scan and Officer Keightley advised that Ace had alerted. Sergeant Lamb searched the Honda and found a large amount of heroin and amphetamine in the "right rear panel" - the plastic and vinyl armrest and side rail behind the passenger's door.
Officer Keightley's Testimony
Officer Keightley testified that he has bene a member of the K-9 Unit since February 2012 and in April 2012 he began working with Ace. He testified about Ace's training and certification which were documented in records introduced at the hearing.
Officer Keightley was admitted as an expert in the field of K-9 police dogs and the detection of the five listed controlled substances.
Between July 6, 2012 and April 19, 2014, Ace had alerted to a vehicle on 51 occasions, of which no drugs were found in the vehicle on 19 occasions. Officer Keightley explained that Ace might alert where drugs used to be, but are no longer, inside a vehicle. With regard to 10 of the 19 non-productive responses to vehicles, during interviews, at least one of the vehicle's occupants admitted that drugs had recently been in the vehicle. Thus, Ace had only 9 non-productive responses where there was no discovery of drugs, and no admission that drugs had recently been in the vehicle.
With regard to the traffic stop at issue, at the time, both of the Honda's windows were rolled down. Officer Keightley brought Ace to the front of the Honda and passed the passenger's door where Sergeant Lamb ultimately found drugs. Officer Keightley did not notice any reaction by Ace while they passed the passenger's door. But at that time, Officer Keightley had not yet commanded Ace to search. At the front of the Honda, Officer Keightley told Ace to sit and then commanded Ace to search. Ace walked around the Honda counter-clockwise, as Officer Keightley was trying to present the passenger-side headlight, Ace pulled towards the driver's side on two occasions. Ace came to the driver's side and "bracketed" - moved his head in an attempt to locate an odor. Ace stopped walking and put his forelegs on the driver's door, stuck his head into the Honda and did a "focus sniff" - closed his mouth and sniffed extremely rapidly. Ace sat which was an alert that the Honda was contaminated with, or had recently been contaminated with drugs. The canine scan took 37 seconds.
On May 16, 2014, Officer Keightley and Ace were decertified because they had not met the requirement for training hours in that time period based on a new method of calculating the hours. By May 19, 2014, Officer Keightley and Ace were recertified.
Testimony of Sergeant Davis
Sergeant Davis testified that she became a handler with the K-9 Unit of the Montgomery County Police Department, and she was a manager. In 2001, Sergeant Davis placed in the top 20 K-9 officers in the United States Police Canine Association's Patrol Dog Field Trials. She later developed the K-9 Unit's current mandatory certification processes for patrol K-9s and narcotics K-9s. she also began writing for Police K-9 Magazine. She was not being paid for her testifying apart from what she was paid for being on duty.
She testified that Maryland law does not require drug detection dogs to be certified but she developed a process for dogs to be certified. Her unit uses its best efforts to follow or exceed the standards that are recommended by the United States Police Canine Association.
In August 2014, the Maryland Transportation Authority Police's K-9 Unit requested that members of the Montgomery County Police Department's K-9 Unit serve as judges in the Maryland Transportation Authority Police's K-9 Unit's certification process. Sergeant Davis and two others served as judges. Officer Keightley and Ace participated in, and were successful in, the certification process. On one occasion Ace alerted to a vehicle containing a controlled dangerous substance, but Officer Keightley moved Ace so fast that they passed the vehicle that contained the controlled dangerous substance and moved to the next vehicle. Ace tried to get Officer Keightley to return to the original vehicle, this is a "handler miss" for which Ace was not responsible. One handler miss is permissible in any certification.
Sergeant Davis reviewed Officer Keightley's and Ace's certifications, as well as Ace's training records from his initial training in 2012 to July 2014. She did not observe any major changes in the process of training Ace and they appeared to perform satisfactorily during training.
Sergeant Davis was aware of the decertification based upon the number of Ace's training hours. Sergeant Davis testified that she would not have decertified Officer Keightley and Ace as Ace's skills were not affected by the way the training hours were calculated.
With respect to Ace's false alerts, Sergeant Davis explained she expected false alerts to occur and there is not particular amount that is either acceptable or unacceptable.
The recording of the traffic stop from the dashboard camera in Sergeant Lamb's vehicle was played and Sergeant Davis explained that Officer Keightley needed to ensure Ace would pass by Honda's occupants safely and was probably tightly controlling Ace with his leash and with voice commands which is why he did not alert to passenger side.
Ace made an independent discovery of odor at the front passenger door and was attempting to locate the source. For six minutes during the traffic stop the driver's door was open, and vehicles passing by the Honda would create a vaccum and pull air, as well as the odor of controlled dangerous substances out of the driver's doorway.
Ace was very firm and committed in his sit. Ace was not unsure of himself when he alerted. Sergeant Davis testified that the recording of the traffic stop from the dashboard camera contained no evidence that Ace's alert was false. Sergeant Davis also did not see any evidence of cueing by Officer Keightley. Sergeant Davis testified to a reasonable degree of certainty that Officer Keightley and Ace were competent to be working the street and deploying, and making probable cause decisions on the street.
On cross-examination, Sergeant Davis admitted she had not received Ace's field reports which according to her, did not have as much bearing as his training records.
Testimony of Cox
Cox had joined the Baltimore Police Department's K-9 Unit as a handler in 1997. He became the chief training and trained 80 dogs. In 2007, Cox became the Maryland Transportation Authority Police's K-9 Unit's only trainer. He was found to be an expert in K-9 training and handling.
Cox was compensated by the defense for his travel and paid $200 an hour, and had earned between $4,000 and $5,000 working on this case.
Cox reviewed Ace's training records, his field reports, guidelines, and the recording of the traffic stop. Cox testified that Ace's training records were more important than his field reports. Cox opined that Ace was unreliable because the Unit failed to maintain Ace's maintenance training for over a year. Cox felt that Officer Keightley was "a rogue police." Cox testified that a drug detection dog should not go 20 or 30 days without being trained unless the officer is on extended leave.
When Cox trained dogs, he tried to hold them to a 95% ratio, and if they dropped under 90% he would pull them off the road and find out why. Cox testified that Ace's false alerts were five to six times greater.
Cox testified that users of marijuana make blunts by sprinkling marijuana into tobacco leaves which can cause a dog to alert to the odor of tobacco.
Cox watched the video and asked that it be paused, testifying that he does not like excessive barking because it takes energy away from a drug detection dog.
According to the National Weather Service, on the day of the scan, there was a four mile an hour wind. Cox opined that the wind should have caused Ace to whip his head around and catch some type of odor when passing the passenger door.
On this occasion, Ace went the opposite way than normal when beginning the scan and Officer Keightley was observed standing behind Ace which Officer McNerney had once told Officer Keightley he was "cueing" Ace by standing still behind him. Cox said that Officer Keightley used a dog toy to motivate Ace to come to the headlight.
Cox opined that Ace running to driver's side was not an active sniff, rather Ace alerted to a human scent. In Ace's training records, there was no evidence that human scent had been used as a distracter.
Cox opined there was no doubt in his mind that Ace was unreliable.
Testimony of Officer McNerney
Officer McNerney testified that in 2006, he started working for the Transportation Security Administration's K-9 Unit. Officer McNerney became a handler for an explosive detection dog. In 2009, Officer McNerney joined the Maryland Transportation Authority Police's K-9 Unit as a trainer. At that time, Cox was the head trainer, and Officers McNerney and McCarty were assistant trainers in explosive detection and drug detection, respectively. In October 2012, Cox left the Maryland Transportation Authority Police, leaving only Officers McNerney and McCarty as trainers. In September 2013, Officer McCarty went on medical leave, and Officer McNerney assumed responsibility for training dogs in both explosive detection and drug detection.
Officer McNerney testified that "numerous times," he communicated to his command staff that he was available only ten of the twenty-six training days between September 2013 and March 2014, and that handlers did not show up for training on eight of the days when he was not present. On March 11, 2014, Officer McNerney stepped down as a trainer because he did not "want the liability" and because he was concerned that the drug detection and explosive detection dogs were not proficient because they were not being trained.
In May 2014, however, Officer McNerney "was ordered back" to the K-9 Unit as part of "a full-time position." The circuit court admitted Officer McNerney as an expert in the field of K-9 training and handling.
Officer McNerney was responsible for Officer Keightley's training from September 2013 through March 2014. Officer McNerney testified that he determined that Ace had "a lot of [ ] issues" as to false alerts, and that Ace was not trained for the required amount of time. According to Officer McNerney, Ace had a "pretty high" number of false alerts, and he extended to Officer Keightley an offer to train Ace, but Officer Keightley did not "show up to train on those days[.]" According to Officer McNerney, the purpose of such training would be to "proof" Ace off of such sources of odor as air fresheners and tobacco.
Contrary to Officer Keightley's testimony, Officer McNerney testified that, between September 2013 (when Officer McNerney assumed responsibility for training dogs in both explosive detection and drug detection) and April 19, 2014 (the date of the traffic stop), Ace was not trained seven hours a week, or sixteen hours a month. Officer McNerney testified that, between those dates, he trained Ace only ten times. Officer McNerney testified that, according to Ace's training records, between those dates, Ace was not trained the required sixteen hours a month that was required for certification. On May 17, 2014, pursuant to Officer McNerney's recommendation, Officer Keightley and Ace were decertified. Two days later, on May 19, 2014, Officer Keightley and Ace were recertified.
At some point during Ace's training, Officer McNerney noticed that Officer Keightley was cueing Ace. According to Officer McNerney, because Officer Keightley knew where the narcotic aids were, he cued Ace by subconsciously slowing down and walking behind him. Officer McNerney opined that it was a disfavored practice for handlers to set the narcotic aids, as that can lead to cueing. Officer McNerney also testified that he believed that the narcotic aids had not been "switched out" since 2009. Officer McNerney opined that it was important to use fresh narcotic aids during training.
Officer McNerney opined that, as of March 11, 2014, when he resigned, Ace was unreliable "[b]ased on ... the falsing issues compared to the training that was conducted from the previous-the previous trainer had set the requirements of [90%] and [Ace] fell below that [90%] range where, if he wasn't reliable." Officer McNerney acknowledged that, to be certified by the K-9 Unit, a drug detection dog need only score 87.5%. Officer McNerney opined, however, that he held drug detection dogs to a higher standard in training because, unlike scans in the field, training takes place in controlled environments.
Officer McNerney agreed with Sergeant Davis that the "handler miss" was not a basis for failure of the August 19, 2014 certification process. On cross-examination, Officer McNerney acknowledged that, on January 22, 2014, he conducted a certification test, which Officer Keightley and Ace passed; and, on that date, he approved the certification. Officer McNerney acknowledged that Officer Keightley and Ace were not decertified before April 19, 2014-i.e., that the certification was valid when the traffic stop occurred.
Circuit Court's Ruling and Findings
The circuit court denied the motion to suppress. The circuit court found that Officer Keightley, Cox and Officer McNerney were all credible, but that Sergeant Davis is the most credible witness as well as the most objective observer, one with no ties to this case, neutral, and unbiased. The circuit court accepted Sergeant Davis's opinion that Ace was competent to make a probable cause decision based upon the training records, observing the team personally, and reviewing the video.
Conviction and Opinion of the Court of Special Appeals
Grimm pled guilty to possession of heroin with intent to distribute, on the condition that he could appeal the circuit court's denial of the motion to suppress.
The CSA affirmed the conviction. Grimm v. State, 232 Md. App. 382, 386 (2017).
The Court of Appeals (COA)
The COA concluded that the ultimate question of probable cause to conduct a warrantless search of a vehicle based on a drug detection dog's alert is reviewed de novo. However, the drug detection dog's reliability is a Factual question that must be reviewed for clear error.
Where an issue falls between a pristine legal question and a factual matter, the issue is treated as a factual question where the trial court "is better positioned than [an appellate court] to decide the issue[.]" Miller, 474 U.S. at 114. An issue is a factual question where "the issue involves the credibility of witnesses[,] and therefore turns largely on an evaluation of demeanor[.]" Id. An issue is a legal question "where the relevant legal principle can be given meaning only through its application to the particular circumstances of a case[.]" Ornelas, 517 U.S. at 697.
In this case, the circuit court properly made determinations as to the expert witnesses' credibility and conflicting interpretations of the events in the recording. The circuit court was better able to judge demeanors that were indicative of bias.
The COA agreed with the CSA that the question of whether a drug detection dog is reliable is a question of fact "best left to the [trial court that] hears the evidence, and [is] best reviewed under a 'clearly erroneous' standard that gives deference to [the trial court]'s superior opportunity to evaluate the credibility and weigh the evidence." Grimm, 232 Md. App. at 403-04.
The COA held that the circuit court's finding that Ace was reliable was not clearly erroneous. The evidence substantiates the circuit court's finding that Sergeant Davis was the most credible expert witness based upon her qualifications, knowledge, training, and experience. The record also supports that Grimm's experts had bias. Further, a drug detection dog's training records constitute the most probative evidence of his or her reliability. Ace's training records alone constituted more than enough evidence to support the circuit court's reliability determination.
The COA found that the circuit court correctly concluded that Sergeant Lamb had probable cause to search Grimm's vehicle. The circuit court's assessment of the experts' credibility was critical to the circuit court's reliability determination.