Grimm v. State , 232 Md. App. 382 ( 2017 )

In the Circuit Court for Anne Arundel County
Case No. 02-K-14-001188
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1172
September Term, 2015
______________________________________
BRIAN GRIMM
v.
STATE OF MARYLAND
______________________________________
Meredith,
Graeff,
Friedman,
JJ.
______________________________________
Opinion by Meredith, J.
______________________________________
Filed: April 26, 2017
Brian Grimm, appellant, urges us to hold that the Circuit Court for Anne Arundel
County erred in denying his motion to suppress evidence, namely, the heroin that was
found in his automobile during a search conducted after an alert by a drug-sniffing dog.
Grimm argues that the suppression court erred in concluding that the dog was reliable and
that the dog’s alert provided probable cause for the police officer to search the vehicle.
Grimm entered a conditional guilty plea (to possession of heroin with intent to distribute),
reserving the right to challenge the denial of his motion to suppress. After he was convicted
and sentenced, he noted this direct appeal.
QUESTIONS PRESENTED
Grimm presents three questions for our review:
I. Did the circuit court err in finding that there was probable cause to
search Appellant’s vehicle without a search warrant?
II. Does the good faith exception to the warrant requirement apply?
III. Did the lower court err in admitting testimony and documents
pertaining to the certification of the canine that scanned Appellant’s
vehicle, where the certification occurred four months after the scan
occurred?
We answer “no” to Questions I and III, which obviates the need for us to address
Question II. We will affirm the judgment of the Circuit Court for Anne Arundel County.
FACTUAL & PROCEDURAL BACKGROUND
On April 18, 2014 -- one day prior to the traffic stop of Grimm’s vehicle -- Sergeant
Christopher Lamb, of the Maryland Transportation Authority Police, received a tip from a
federal drug enforcement program referred to as “HIDTA,” advising that a suspect named
Brian Grimm “may be traveling northbound on Interstate 95 from Atlanta, Georgia to the
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area of Baltimore, Maryland . . . with a large quantity of CDS.” 1 Sgt. Lamb’s contact at
HIDTA provided descriptive information about Grimm, including his race and
approximate age. The following day, while Sgt. Lamb was on patrol, he received telephone
calls from HIDTA providing additional information about the suspect: the vehicle of
interest was a maroon Honda with Georgia registration, carrying multiple occupants, and
it was traveling in Anne Arundel County in the vicinity of the Arundel Mills shopping
complex, on Maryland Route 100, about to turn onto Route 295 North, toward Baltimore.
Sgt. Lamb spotted a vehicle matching the description provided by HIDTA, i.e., a
maroon Honda with Georgia tags traveling northbound toward Baltimore on Route 295.
When Sgt. Lamb observed that none of the occupants of the Honda were wearing seatbelts,
he initiated a traffic stop of the vehicle. Grimm was driving the maroon Honda at the time
of the stop; there was one passenger in the front seat, and a second passenger in the back
seat. After stopping the vehicle, Sgt. Lamb noted that the front seat passenger would not
look at him, and she stared straight ahead throughout the traffic stop. But the back seat
passenger seemed “overly polite” throughout the stop.
When Sgt. Lamb asked the driver about his travel itinerary, Grimm explained that
he had just purchased the Honda in Atlanta, and that he had flown from Baltimore to
1
“HIDTA” stands for High Intensity Drug Trafficking Area. The HIDTA Program is “a
federal grant program administered by the White House Office of National Drug Control
Policy, which provides resources to assist federal, state, local and tribal agencies coordinate
activities that address drug trafficking in specially designated areas of the United States.”
Office of National Drug Control Policy, HIDTA, http://www.hidta.org/ (last visited April
24, 2017).
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Atlanta to pick up the vehicle and also to visit friends in the Atlanta area. Grimm further
explained that he had been driving all night to return to the Baltimore area. Grimm
possessed a Maryland driver’s license, and the vehicle had been registered two days earlier,
but it was not registered in Grimm’s name. Grimm explained that he did not have enough
money to register the vehicle in his own name because he had purchased four airline tickets
from Baltimore to Atlanta in order to pick up the vehicle.
Sgt. Lamb testified at the suppression hearing that he asked Grimm to exit the
vehicle because he had detected several indicia of possible criminal activity:
The rear seat passenger was over-polite. The front seat passenger was
staring forward, she wouldn’t speak with me, she wouldn’t make eye contact
with me. The driver was traveling from source city to source city for drugs -
--- meaning Atlanta, Georgia, which is a source city of drugs to Baltimore
City which is a source city of drugs. The fact that they had flown down four
individuals from Baltimore, Maryland to Atlanta, Georgia, purchased a
vehicle, but then the operator Mr. Grimm who stated [he was] to be the owner
was not able to afford to put that vehicle in his name, register that vehicle in
his name when he drove it back. And the totality of those things . . . .
While speaking with Grimm, Sgt. Lamb observed that Grimm looked “disheveled”
and “unkempt like he had been on the road and hadn’t been staying anywhere.” Sgt. Lamb
felt that Grimm was “mumbling” and “rambling” when answering questions, and would
“look away, and then look back” at Lamb throughout their conversation. Grimm did not,
however, appear to be nervous. Sgt. Lamb eventually instructed Grimm to reenter his
vehicle. While Sgt. Lamb was writing the seat-belt warnings to be issued to the occupants
of the Honda, he noticed that Grimm “never fully closed his door when he got into his
vehicle,” and he “maintained his left foot out of the vehicle and on the asphalt.” Sgt. Lamb
considered Grimm’s conduct “very unusual,” and thought that it indicated that Grimm
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might be a “flight risk.” Nevertheless, Sgt. Lamb testified that he did not believe he had
probable cause to search Grimm’s vehicle at that point.
While Sgt. Lamb was still in the process of writing out the warnings, Maryland
Transportation Authority Police Officer Carl Keightley arrived with his drug-detection
dog, a Malinois named “Ace.” Officer Keightley had been Ace’s handler since 2012. They
had gone through an initial three-month training period, and Ace had been trained to detect
heroin, methamphetamine, MDMA, marijuana, and cocaine. Both the dog and the handler
had been certified by the Maryland Transportation Authority Police through testing in
various situations, including searches of buildings, luggage, vehicles, and open areas.
Officer Keightley and Ace held current certifications when they were called to scan
Grimm’s vehicle on April 19, 2014, having been most recently recertified by the Maryland
Transportation Authority Police on January 22, 2014.
Officer Keightley and Ace conducted an exterior scan of Grimm’s vehicle, and Ace
gave a positive alert to the presence of narcotics. Officer Keightley testified that, while he
was leading Ace around the vehicle, Ace jumped up and stuck his head inside of the
driver’s side window, sniffed, and sat, which was Ace’s “final alert” to the presence of
narcotics. Sgt. Lamb then searched Grimm’s vehicle, and discovered a “large quantity of
heroin and amphetamine” hidden in the rear panel of the passenger side door. Grimm was
arrested and charged with possession with intent to distribute heroin (and other related
offenses that are not material to this appeal).
In the circuit court, Grimm moved to suppress the evidence discovered during the
search, and contended that Sgt. Lamb lacked probable cause to search his vehicle. The
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court held a lengthy evidentiary hearing on the motion. Both sides argued that their
respective positions were supported by the Supreme Court’s opinion in Florida v. Harris,
___ U.S. ___, 133 S.Ct. 1050 (2013), in which the Court held that “evidence of a dog’s
satisfactory performance in a certification or training program can itself provide sufficient
reason to trust his alert,” but also said that a defendant “must have an opportunity to
challenge such evidence of a dog’s reliability, whether by cross-examining the testifying
officer or by introducing his own fact or expert witnesses.” Id., 133 S.Ct. at 1057. Grimm
urged the suppression court to find that Ace was not a reliable drug-detection dog, that his
training was deficient, and that his purported alert therefore did not provide support for
Sgt. Lamb’s belief that he had probable cause to search the vehicle.
During the suppression hearing, each side called two expert witnesses. Officer
Keightley (Ace’s handler) was accepted by the court as an expert in the field of K-9 police
dogs and the detection of heroin, marijuana, cocaine, MDMA, and methamphetamine.
Officer Keightley explained that he generally trains with Ace one day each week in various
scenarios designed to mimic situations they might encounter in the field. The State
introduced in evidence written records of training conducted with Ace during 2012, 2013,
and 2014. During Officer Keightley’s testimony, the State also introduced the field reports
that had been completed by Officer Keightley after each drug scan performed by Ace.
Officer Keightley explained that the Maryland Transportation Authority Police has
generated K-9 certification guidelines, and that Ace had first been certified in 2012, and
was thereafter recertified every six months. The initial certification of Ace was performed
by Officer Michael McNerney (who would later be called by Grimm as an expert witness
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at the suppression hearing). After reviewing with the court the dash-cam video recording
of the scan of Grimm’s Honda, Officer Keightley reiterated that Ace gave an alert
indicating that he had detected the odor of narcotics in the vehicle.
During cross-examination of Officer Keightley, Grimm’s counsel reviewed with the
officer the fact that the field reports reflected that Ace had given positive alerts to vehicles
during 51 scans, but no contraband was found in 19 of those vehicles. Officer Keightley
had interviewed the occupants of those 19 vehicles and had been told by occupants of ten
of the vehicles that, in fact, drugs had recently been present in those vehicles. On redirect
examination, Officer Keightley said that there were several possible explanations other
than error on the part of the dog that might explain why no drugs were found on the nine
other occasions on which Ace had alerted:
[S]omething might have [actually] been in the vehicle and it might not have
been located [during the search]. Somebody might have used narcotics
recently in the vehicle or used narcotics and touched the vehicle,
contaminated the vehicle. Any of those things.
Officer Keightley conceded on cross-examination that, although he generally
conducted weekly training with Ace, because of the manner in which he had routinely
logged training time before his supervisor mandated a change, the hours he had spent each
month had not met the organization’s standard until some point in time after the scan of
Grimm’s vehicle. He acknowledged that he had not spent 16 hours of actual “sniff time”
training with Ace in any of the six months leading up to April 19, 2014.
The State also presented testimony from Sergeant Mary Davis, who was a police
supervisor and narcotics-detection dog trainer for the Montgomery County Police
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Department. She had been working in that police department’s canine unit for over twenty
years, and had been the head trainer since 2008. She indicated that, although the State of
Maryland does not mandate any particular standards for the performance of drug-detection
dogs, she was very familiar with the standards recommended by the United States Police
Canine Association and other similar organizations. Defense counsel stipulated that Sgt.
Davis “is an expert in K-9 training and K-9 handling.”
Sgt. Davis testified that the State of Maryland does not require certification of police
dogs, but both the Montgomery County Police Department and the Maryland
Transportation Authority Police had adopted requirements for certification and periodic
recertification. She confirmed that the certification protocol adopted by the Maryland
Transportation Authority Police does “generally comport with industry standards.” In
August 2014, Sgt. Davis and two other officers from the Montgomery County Police
Department had conducted an evaluation of the canine teams at the Maryland
Transportation Authority Police. Officer Keightley and Ace were tested on that occasion,
and they passed the testing conducted by the officers from Montgomery County.
Sgt. Davis further testified that she had reviewed all of the training records that
Officer Keightley had maintained for Ace, covering training exercises during 2012 through
July of 2014. She saw that, during 2013, Ace had participated in 209 training scenarios in
which drugs had been hidden, and during those exercises, Ace had had 24 non-productive
responses (sometimes referred to as “NPRs” by dog trainers, and referred to as false alerts
by defense counsel). Sgt. Davis said that she would not characterize “any one particular
amount [of NPRs] as acceptable or unacceptable.”
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With respect to the 51 field scans that had been performed by Ace, Sgt. Davis
testified that the fact that no drugs were discovered in nine vehicles (for which the follow-
up interviews provided no explanation) would not concern her, “Not even in the least bit.”
In her view, even though there was no admission of the prior presence of drugs in those
vehicles, the vehicles could have been previously used to transport drugs. She said: “So I
would not be shocked that we didn’t [get] an admission and we weren’t able to find target
odor. That can occur very easily.” Furthermore, Sgt. Davis considers a dog’s training
records more useful than the field records because training typically occurs in a more
controlled environment.
Based upon her review of the dash cam video recording of the scan of Grimm’s
vehicle conducted by Officer Keightley and Ace, Sgt. Davis expressed an opinion that Ace
clearly alerted to the presence of drug odor, and she saw no evidence that the handler cued
the dog to alert. Sgt. Davis rejected defense counsel’s suggestion that Ace may have
exhibited a false alert at Grimm’s driver-side door simply to get a reward. She explained:
“It looked to me that the dog was working independently to odor. And once he got into the
odor he gave the indication.” She agreed that, in her experience, she had observed some
dogs give a false alert just for a reward, but, she said: “I don’t see that that’s what occurred
here.”
When asked directly if she had an opinion regarding the “overall competence of the
team of Officer Carl Keightley and K-9 Ace,” Sgt. Davis testified that, “[b]ased on the
totality of the circumstances, looking at all of the training records in their totality, and
having observed the team personally on three separate occasions,” she believed that “they
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are competent to be working the street and deploying, and making probable cause decisions
on the street.” When asked, on cross-examination, to comment upon the strength of Ace’s
abilities, Sgt. Davis said: “He has a tremendous skill set. He’s got a lot of drive. He has a
huge work ethic.”
The defense likewise called two canine experts as witnesses. Ted Cox was a retired
police officer who had extensive experience as a K-9 trainer for the Baltimore City Police
Department, including six years as chief trainer. He had also been employed as the K-9
trainer for the Maryland Transportation Authority Police from 2007 to 2012. The State
stipulated that he was an expert in K-9 training and handling.
Mr. Cox had analyzed Ace’s training records for the period covering April 15, 2013,
through March 24, 2014, and concluded that, by his count, Ace had been put through 179
scenarios, and had made 44 false alerts, which Mr. Cox viewed as unacceptable. He also
criticized Ace for “excessive barking” during the approach to Grimm’s vehicle. Mr. Cox
expressed opinions that were critical of Ace’s training as reflected in the training records,
and he believed that Ace should not have been recertified on August 19, 2014, because of
a false alert the dog gave during that testing.
He concluded that Ace’s hours of training, as recorded prior to the scan of Grimm’s
vehicle, did not meet “the industry standard,” and he said, “after reviewing the records and
the dash cam video, it’s my opinion that the dog is unreliable at this point.” In his opinion,
Ace did not alert to the odor of the drugs that were later found in the car, but instead alerted
to the “human scent” of the occupants of the car, in particular, Grimm, who had been
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resting upon the driver-side door for several minutes prior to the scan. Mr. Cox reiterated:
“There is no doubt in my mind that the dog is unreliable.”
The second dog expert called by the defense was Senior Officer Michael McNerney,
who had been a trainer for the Maryland Transportation Authority Police since 2009, and
had worked under Ted Cox until the end of 2012. Officer McNerney then became the head
trainer for explosives-detection dogs, and in September 2013, Officer McNerney assumed
the additional responsibility for training of narcotics-detection dogs as well. He was
accepted by the court as an expert in the field of canine training and handling.
Officer McNerney explained that, in March 2014, when he reviewed the training
records for Officer Keightley and Ace, the records did not reflect that that team had met
the Transportation Security Administration’s standard requiring 240 minutes of “sniff
time” in training each month. As a consequence of that discovery and other concerns
Officer McNerney had communicated to his superiors regarding training deficiencies in
the canine unit, Officer McNerney “stepped down” from his position as head trainer on
March 11, 2014. But he was ordered back to the position in May 2014.
When Officer McNerney resumed the position of head trainer in May 2014, he
“decertified” Ace and Officer Keightley because of the manner in which Officer Keightley
(and other officers in the K-9 unit) had been recording their training hours. Nevetheless,
Ace and Officer Keightley were recertified by Officer McNerney just two days later.
Despite acknowledging that he had recertified Officer Keightley and Ace in May 2014,
Officer McNerney testified that he had observed several problems with the manner in
which Officer Keightley trained with Ace, including “cuing,” “object focusing,” and “a lot
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of falsing issues,” in addition to inadequate sniff time. He also reported that he was
concerned that the drug samples that were being hidden as training aids for the dogs to find
had become stale, and he had replaced several of the samples during the summer of 2014
after a chemist’s analysis confirmed that the sample drugs being used for training contained
“significant impurities.”
On cross-examination, Officer McNerney acknowledged that, after he became head
trainer (in September 2013), he had personally conducted recertification testing of Officer
Keightley and Ace in January 2014, and he had certified that they passed the test on January
22, 2014. Pursuant to Maryland Transportation Authority Police standard operating
procedures, recertification is supposed to occur every six months. Consequently, the
January 22, 2014, certification would have been current and “in effect” at the time of the
scan of Grimm’s vehicle on April 19, 2014. Officer McNerney also acknowledged that he
had been “involved with” the initial certification of Officer Keightley and Ace back in
2012, and that they passed the initial certification test on the first try.
After the close of evidence at the suppression hearing, defense counsel argued that,
based upon the training records and field performance records for Ace and Officer
Keightley, the court should find that Ace was not a reliable drug-detection dog on April
19, 2014, and that his alert to narcotics therefore did not provide probable cause to conduct
a warrantless search of Grimm’s vehicle. Grimm also disputed whether Ace actually alerted
to contraband at all during the stop. The State countered that the evidence established that
Ace was well-trained and certified, and was therefore reliable, which meant that, under
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Florida v. Harris, Sgt. Lamb had probable cause to search Grimm’s vehicle based upon
Ace’s alert to the presence of contraband.
The circuit court denied Grimm’s motion to suppress the evidence discovered
during the search of his vehicle. The court observed that there was no dispute that Sgt.
Lamb had a reasonable basis to conduct a Whren stop of the vehicle because none of the
occupants were wearing seatbelts. See Whren v. United States, 517 U.S. 806, 810 (1996)
(“As a general matter, the decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has occurred.”). And, the court noted,
there was no suggestion that the traffic stop was unreasonably extended for the purpose of
conducting the dog scan. Cf. Wilkes v. State, 364 Md. 554, 583 (2001) (K-9 scan was
conducted prior to officer’s completion of tasks incident to the initial purpose of the traffic
stop). The suppression court noted that “the State concedes[,] as I think it rightly should[,]
that there is no probable cause absent the K-9 alert.” And, the court added: “I will tell you
that[,] absent the K-9 alert, if this had been litigated solely on those issues [i.e., what the
officers knew prior to the K-9 alert], I would not have found probable cause.”
But the court concluded that, after Ace scanned the vehicle and gave an alert for the
presence of narcotics, Sgt. Lamb had probable cause to search Grimm’s vehicle. The court
found that Ace and Officer Keightley were certified at the time of the stop and the scan.
The court expressly found Sgt. Davis to be the most credible witness who testified in the
case. The court elaborated: “I find her qualifications, her knowledge, her training and
experience to be impeccable. . . . I find her to be the most credible witness and it is she who
I rely upon the most and find to be the best and most objective observer.” The court also
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said: “I find her analysis of the stop and the dog’s actions to be credible.” The court further
commented: “She explains, . . . to the satisfaction of the Court that I can find Officer
Keightley and K-9 Ace to be credible and to be a certified dog that the Court can rely upon
for assessing whether or not probable cause exists.” The court therefore concluded that
there was probable cause in this case for the officers to believe that there was a “fair
probability” that one of the drugs that Ace was trained to detect would be found in the
vehicle.
Pursuant to Maryland Rule 4-242(d)(2), Grimm entered a conditional plea of guilty
to possession of heroin with intent to distribute; he was sentenced to a 15-year term of
imprisonment. This direct appeal followed.
DISCUSSION
A. Standard of Review of Motions to Suppress Evidence
When we review a ruling from the circuit court concerning a motion to suppress
evidence, “we must rely solely upon the record developed at the suppression hearing.”
Briscoe v. State, 422 Md. 384, 396 (2011). “We view the evidence and inferences that may
be drawn therefrom in the light most favorable to the party who prevails on the motion,”
which was the State in this case. Id. Accord Robinson v. State, 451 Md. 94, 108 (2017)
(“‘The appellate court views the trial court’s findings of fact, the evidence, and the
inferences that may be drawn therefrom in the light most favorable to the party who
prevails on the issue that the defendant raises in the motion to suppress.’” (Quoting
Varriale v. State, 444 Md. 400, 410 (2015)); Hailes v. State, 442 Md. 488, 499 (2015)
(“The appellate court views the trial court’s findings of fact, the evidence, and the
13
inferences that may be drawn therefrom in the light most favorable to the party who
prevails on the issue that the defendant raises in the motion to suppress.” (Internal quotation
marks, citations, and alteration marks omitted.)). As an appellate court, when we review
the denial of a motion to dismiss, “[w]e review the findings of fact for clear error and do
not engage in de novo fact-finding.” Haley v. State, 398 Md. 106, 131 (2007) (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)). Accord Robinson, supra, 451 Md. at
108 (“‘In reviewing a trial court’s ruling on a motion to suppress, an appellate court reviews
for clear error the trial court’s findings of fact . . . .’” (Quoting Varriale, supra, 444 Md. at
410.)); Raynor v. State, 440 Md. 71, 81 (2014) (“We accept the suppression court’s factual
findings unless they are shown to be clearly erroneous.”); see also Ornelas, supra, 517 U.S.
at 699 (“[A] reviewing court should take care both to review findings of historical fact only
for clear error and to give due weight to inferences drawn from those facts by resident
judges and local law enforcement officers.”).
The Court of Appeals has made plain that “[f]indings of fact and credibility are to
be made by trial courts, not appellate courts.” Longshore v. State, 399 Md. 486, 520–21
(2007); accord Barnes v. State, 437 Md. 375, 398 (2014) (“The credibility of the witnesses
and the weight to be given to the evidence fall within the province of the suppression
court.”). “‘If there is any competent evidence to support the factual findings of the trial
court, those findings cannot be held to be clearly erroneous.’” Goff v. State, 387 Md. 327,
338 (2005) (quoting Solomon v. Solomon, 383 Md. 176, 202 (2004)).
When reviewing the suppression court’s interpretation of the applicable law,
however, the appellate court “‘reviews without deference the trial court’s application of the
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law to its findings of fact.’” Robinson, supra, 451 Md. at 108 (quoting Varriale, supra, 444
Md. at 410). We “‘undertake our own independent constitutional appraisal of the record by
reviewing the law and applying it to the facts of the present case.’” Prioleau v. State, 411
Md. 629, 638 (2009) (quoting State v. Tolbert, 381 Md. 539, 548 (2004)).
B. Drug-Detection Dog Alerts
The Fourth Amendment to the United States Constitution protects against
“unreasonable searches and seizures.” U.S. CONST. amend. IV. “‘[W]here a search is
undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . .
reasonableness generally requires the obtaining of a judicial warrant.’” Riley v. California,
___ U.S. ___, 134 S.Ct. 2473, 2482 (2014) (quoting Vernonia School Dist. 47J v. Acton,
515 U.S. 646, 653 (1995)).
But, in Carroll v. United States, 267 U.S. 132, 149 (1925), the Supreme Court of
the United States recognized an “automobile exception” to the general requirement for a
search warrant. The automobile exception, or Carroll doctrine, “allows vehicles to be
searched without a warrant provided that the officer has probable cause to believe that a
crime-connected item is within the car.” State v. Wallace, 372 Md. 137, 146 (2002).
In Florida v. Harris, the Supreme Court further explained that “[a] police officer
has probable cause to conduct a search when ‘the facts available to [him] would “warrant
a [person] of reasonable caution in the belief”’ that contraband or evidence of a crime is
present.” 133 S.Ct. at 1055 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (alterations
added in Harris)). The Harris Court observed: “All we have required is the kind of ‘fair
probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’”
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Florida v. Harris, supra, 133 S.Ct. at 1055 (quoting Illinois v. Gates, 462 U.S. 213, 238
and 231 (1983); alteration added in Harris). In other words, probable cause requires only
a “fair probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates, supra, 462 U.S. at 238. Accord Robinson, supra, 451 Md. at 109–
10. We look to the “totality of the circumstances” in any given situation in “evaluating
whether the State has met this practical and common-sensical standard.” Florida v. Harris,
supra, 133 S.Ct. at 1055; see also Johnson v. State, ___ Md. ___, ___ No. 2465, September
Term, 2015, slip op. at 2 (filed March 29, 2017) (suppression court erred by concluding
that officers had probable cause to conduct a warrantless search of the trunk of a car under
the Carroll Doctrine based solely on the discovery of drugs found in the waistband and on
the breath of the front-seat passenger).
In Florida v. Harris, the Supreme Court noted that a drug-sniffing dog’s alert,
without more, suffices to establish probable cause for a search: “[A] well-trained dog’s
alert establishes a fair probability—all that is required for probable cause—that either drugs
or evidence of a drug crime . . . will be found.” 133 S.Ct. at 1056 n.2. Similarly, the
Maryland Court of Appeals has held “that when a properly trained canine alerts to a
vehicle indicating the likelihood of contraband, sufficient probable cause exists to
conduct a warrantless ‘Carroll’ search of the vehicle.” Wallace, supra, 372 Md. at 146(emphasis added). Accord Wilkes, supra, 364 Md. at 586–87 (“once a drug dog has alerted
a trooper ‘to the presence of illegal drugs in a vehicle, sufficient probable cause exist[s] to
support a warrantless search of [a vehicle],’” quoting Gadson v. State, 341 Md. 1, 8 (1995));
Bowling v. State, 227 Md. App. 460, 469, 476 (2016) (“the Maryland appellate courts
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consistently have held that the detection of the odor of marijuana by a trained drug dog
establishes probable cause to conduct a warrantless Carroll doctrine search of a vehicle,”
and the partial decriminalization of possession of small quantities of marijuana “does not
change the established precedent that a drug dog’s alert to the odor of marijuana, without
more, provides the police with probable cause to authorize a search of a vehicle”); Jackson
v. State, 190 Md. App. 497, 504 (2010) (“[A] trained drug-sniffing dog made a positive
alert on the vehicle, thereby signaling the likely presence of narcotic drugs somewhere
inside the vehicle. Once such a positive alert takes place, there is, ipso facto, probable cause
for a Carroll–Doctrine search of the automobile.” (Footnote omitted.)); see also Robinson,
supra, 451 Md. at 118 n.7.
In Florida v. Harris, the Supreme Court emphasized that the prosecutor could
establish the reliability of a drug-detection dog by presenting evidence of the dog’s
certification or training:
[E]vidence of a dog’s satisfactory performance in a certification or
training program can itself provide sufficient reason to trust his alert. If
a bona fide organization has certified a dog after testing his reliability in
a controlled setting, a court can presume (subject to any conflicting
evidence offered) that the dog’s alert provides probable cause to search.
The same is true, even in the absence of formal certification, if the dog
has recently and successfully completed a training program that
evaluated his proficiency in locating drugs.
133 S.Ct. at 1057 (emphasis added).
But the Supreme Court in Florida v. Harris further explained that, notwithstanding
a dog’s certification and training, a defendant must have the opportunity to contest the
reliability of a drug-detection dog, noting:
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A defendant, however, must have an opportunity to challenge such
evidence of a dog’s reliability, whether by cross-examining the testifying
officer or by introducing his own fact or expert witnesses. The defendant, for
example, may contest the adequacy of a certification or training program,
perhaps asserting that its standards are too lax or its methods faulty. So too,
the defendant may examine how the dog (or handler) performed in the
assessments made in those settings. Indeed, evidence of the dog’s (or
handler’s) history in the field, although susceptible to the kind of
misinterpretation we have discussed, may sometimes be relevant . . . . And
even assuming a dog is generally reliable, circumstances surrounding a
particular alert may undermine the case for probable cause—if, say, the
officer cued the dog (consciously or not), or if the team was working under
unfamiliar conditions.
Id. at 1057–58.
The Harris Court expressly rejected “rigid rules, bright-line tests, and mechanistic
inquiries in favor of a more flexible, all-things-considered approach” for a suppression
court to apply when assessing whether a drug-detection dog was sufficiently reliable for its
alert to be used in establishing probable cause to conduct a warrantless search. Id. at 1056.
The Court observed that, as with any other probable cause analysis, “[a] gap as to any one
matter . . . should not sink the State’s case; rather, that ‘deficiency . . . may be compensated
for’” with additional evidence rebutting any deficiency. Id. at 1056 (quoting Illinois v.
Gates, supra, 462 U.S. at 233).
In reversing the Supreme Court of Florida, the Harris Court criticized the Florida
court for adopting an “inflexible set of evidentiary requirements” for that state’s judges to
utilize when assessing the reliability of a drug-detection dog for purposes of establishing
probable cause:
To assess the reliability of a drug-detection dog, the [Florida Supreme C]ourt
created a strict evidentiary checklist, whose every item the State must tick
off. Most prominently, an alert cannot establish probable cause under the
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Florida court’s decision unless the State introduces comprehensive
documentation of the dog’s prior “hits” and “misses” in the field. (One
wonders how the court would apply its test to a rookie dog.) No matter how
much other proof the State offers of the dog’s reliability, the absent field
performance records will preclude a finding of probable cause. That is the
antithesis of a totality-of-the-circumstances analysis.
Id.The Supreme Court summarized the proper approach to be followed by the court
hearing a motion to suppress a warrantless search for which the State claims probable cause
was provided by an alert by a drug-detection dog:
In short, a probable-cause hearing focusing on a dog’s alert should
proceed much like any other. The court should allow the parties to make
their best case, consistent with the usual rules of criminal procedure. And the
court should then evaluate the proffered evidence to decide what all the
circumstances demonstrate. If the State has produced proof from controlled
settings that a dog performs reliably in detecting drugs, and the defendant has
not contested that showing, then the court should find probable cause. If, in
contrast, the defendant has challenged the State’s case (by disputing the
reliability of the dog overall or of a particular alert), then the court should
weigh the competing evidence. In all events, the court should not prescribe,
as the Florida Supreme Court did [in Harris v. State, 71 So. 3d 756, 759 (Fla.
2011)], an inflexible set of evidentiary requirements. The question—similar
to every inquiry into probable cause—is whether all the facts surrounding
a dog’s alert, viewed through the lens of common sense, would make a
reasonably prudent person think that a search would reveal contraband
or evidence of a crime. A sniff is up to snuff when it meets that test.
Id. at 1058 (emphasis added).
C. Ace’s Reliability
In Grimm’s briefs in this Court, he urges us to review de novo the question of
whether Ace was a “well-trained dog.” He asserts: “Specifically, the question of whether
Ace is well-trained or otherwise reliable for purposes of establishing probable cause is a
mixed question of law and fact subject to de novo review.” Citing Ornelas, supra, 517
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U.S. at 696–98, Grimm argues that appellate courts are obligated to conduct de novo review
of probable cause determinations. But he neglects to take sufficient notice of the point that,
although the Ornelas Court held that, “as a general matter[,] determinations of reasonable
suspicion and probable cause should be reviewed de novo on appeal,” id. at 699, the Court
also emphasized, in the very next sentence, that findings of fact are reviewed for clear error,
with deference to the trial-level court: “Having said this, we hasten to point out that a
reviewing court should take care both to review findings of historical fact only for clear
error and to give due weight to inferences drawn from those facts by resident judges and
local law enforcement officers.” Id.
Grimm’s request for us to conduct de novo review of the evidence presented
regarding Ace’s ability (or lack of ability) to detect drugs invites us to commit an error
similar to the one that ensnared the Florida Supreme Court in Harris v. State, 71 So. 3d
756, 772–75 (2011), wherein that appellate court was highly critical of the quality and
quantity of evidence the State of Florida had presented at the suppression hearing regarding
the drug dog’s successes and failures during training sessions and scans in the field. But,
after the United States Supreme Court reversed and remanded that case, the Florida
Supreme Court abandoned its list of evidentiary hurdles the prosecution was required to
overcome, and summarily affirmed the suppression court’s denial of Harris’s motion to
suppress. Harris v. State, 123 So. 3d 1144 (Fla. 2013) (per curiam).
Whether Ace was -- at the time of the scan of Grimm’s vehicle -- a well-trained or
reliable dog, whose alerts could be relied upon by Officer Keightley as indicating that there
was a fair probability that the vehicle contained one of illegal drugs Ace had been trained
20
to detect, was a question of fact properly committed to the adjudicatory skill of the judge
who heard the evidence presented at the hearing on the motion to suppress. An appellate
court is ill-equipped to determine the proper amount of weight to be given to various pages
of the extensive documentation in evidence regarding a dog’s performance during training
exercises, or to evaluate the credibility of witnesses, or weigh the conflicting testimony of
experts. Such factual determinations are best left to the suppression court judge who hears
the evidence, and are best reviewed under a “clearly erroneous” standard that gives
deference to that judge’s superior opportunity to evaluate credibility and weigh the
evidence. See Longshore, supra, 399 Md. at 520–21 (stating that “[f]indings of fact and
credibility are to be made by trial courts, not appellate courts”); Haley, supra, 398 Md. at
131 (explaining that appellate courts “do not engage in de novo fact-finding.”). As an
appellate court, we are obligated to “give deference to the first-level factual findings made
by the suppression court, and we accept those findings unless shown to be clearly
erroneous,” Briscoe, supra, 422 Md. at 396, while giving “due regard to the [suppression]
court’s opportunity to assess the credibility of witnesses.” Gorman v. State, 168 Md. App.
412, 421 (2006). As the Supreme Court stated in Florida v. Harris, “a probable-cause
hearing focusing on a dog’s alert should proceed much like any other. . . . [If] the defendant
has challenged the State’s case (by disputing the reliability of the dog overall or of a
particular alert), then the court should weigh the competing evidence.” 133 S.Ct. at 1058.
Clearly, the court that “should weigh the competing evidence” is the suppression court, not
the appellate court reviewing a challenge to the suppression court’s finding on the issue of
the reliability of the dog.
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Here, the circuit court evaluated all the evidence and expert testimony, and
determined that Sgt. Mary Davis was the most credible of the experts who testified.
Although the court, in the judicious exercise of courtroom courtesy, commented that the
experts called by the defense were “both credible,” the court also expressed concern that
their testimony was colored by some “dissension in the ranks” regarding management at
the Maryland Transportation Authority Police, and “some of this [testimony by Mr. Cox
and Officer McNerney] was an airing of dirty laundry.” The weighing of testimony and
evaluation of which experts’ opinions to credit are functions quintessentially best
performed by the judge who hears the witnesses testify.
Although Grimm urges us to review de novo the question of whether Ace was a
well-trained dog, he argues, in the alternative, that, even “if the lower court’s findings
bearing on whether Ace was well-trained or reliable are not themselves subject to de novo
review, they are clearly erroneous . . . .” In support of this argument, Grimm points to
several aspects of the suppression court’s ruling with which he disagrees. He asserts that
the court’s conclusion that Sgt. Davis was “the most credible expert” was clearly erroneous
because the court also commented: “I find her to be a witness who has no ties to the case,
neutral and unbiased and has – I find that she has no issue with the handler or the dog.”
Grimm asserts that, because Sgt. Davis had performed a recertification of Ace in August
2014, “her [own] professional reputation was also challenged” and she “had a direct
investment in the outcome of this suppression hearing—her reputation.” This argument
addresses the suppression court’s weighing of the evidence, and does not support a claim
that the court made a clearly erroneous finding of material fact.
22
In United States v. Ludwig, 641 F.3d 1243 (10th Cir. 2011), the suppression court
had resolved in favor of the prosecution conflicting testimony of dog experts. The appellate
court found no clear error, and explained:
[A]t the end of this battle of the experts, the district court chose to credit [the
government’s expert] rather than [the defendant’s] expert. On appeal, we
may not revisit the site of this battle, recreate it in our imaginations, and
resolve it for ourselves anew. Neither is it enough for [the defendant] to ask
us (as he does) simply to credit his expert’s conclusions rather than the
government’s. Instead, it is incumbent on [the defendant] to show that the
district court’s resolution of the experts’ credibility contest was not just
wrong but clearly or pellucidly (and so reversibly) wrong. And this he has
not done.
Id. at 1253.
So, too, in this case, the suppression court chose to credit the testimony of the State’s
expert rather than the defendant’s experts. We detect no clear error in the suppression
court’s decision to accept the expert opinions offered by Sgt. Davis regarding the reliability
of Ace, the adequacy of his training, and the validity of his alert to Grimm’s vehicle.
Grimm also urges us to conclude that the court’s finding that Ace was a reliable dog
was clearly erroneous in the face of evidence of training deficiencies. Grimm states:
“Perhaps the most obvious flaw in Ace’s training is the fact that Keightley [personally]
placed Ace’s training aids, with cuing being the result.” A double-blind training regimen
would have been preferable, according to the Scientific Working Group on Dog and
Orthogonal Detector Guidelines. Further, according to Grimm, Ace’s training records did
not reflect adequate training efforts to address the dog’s “false alerts.” Mr. Cox opined that
too little effort was documented to satisfy him that Officer Keightley had conducted
training exercises sufficient to “extinct” Ace from alerting to non-target odors. And,
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according to Grimm, Sgt. Davis’s testimony as to why she was not overly concerned about
Ace’s false alerts was not supported by the training records.
Grimm further urges us to conclude that the suppression court was clearly erroneous
in finding Ace to be reliable because there was evidence presented at the suppression
hearing to show that the drug samples used as training aids had become contaminated with
impurities, which may have led to Ace responding to odors other than the five target
narcotics. In addition, Grimm contends that the training conducted by Officer Keightley
had “inadequate trainer supervision,” which was a problem for all of the dog handlers at
the Maryland Transportation Authority Police due to inadequate staffing—part of the “dirty
laundry” to which the suppression court made reference. Grimm states in his brief:
“McNerney eventually resigned over the dysfunction surrounding the training of Ace and
other MTA K-9s.”
As noted above, Officer McNerney decertified Ace and Officer Keightley in May
2014 because of the manner in which the handlers logged training time. But Officer
McNerney also recertified Ace and Officer Keightley just two days after decertifying them,
and presumably, they could not have completed much compensatory training during those
two days. Sgt. Davis said she would not have “decertified” Ace and Officer Keightley,
and she saw no issue with the manner in which Officer Keightley had been logging training
hours; she said that, in her experience, she had seen handlers typically record training hours
in the same manner as Officer Keightley.
Grimm nevertheless argues that the fact that Ace was decertified in May 2014
proved that “Ace was not actually certified in any meaningful sense at the time of the scan”
24
of his vehicle. He makes this argument in spite of the fact that his expert witness was the
trainer who conducted Ace’s recertification in January 2014 and testified that certifications
are valid for six months.
Grimm asserts that Mr. Cox’s analysis of the dash-cam video recording of the scan
should have been accepted by the suppression court as proof that Ace did not actually alert
to an odor of narcotics. But Sgt. Davis presented a different analysis, putting a stamp of
approval on the scan and the alert; and the suppression court found her to be the more
credible witness.
Grimm also urges us to focus on Mr. Cox’s testimony regarding his analysis of
Ace’s training records that showed 44 “false alerts” in 179 training scenarios. Mr. Cox
considered that unacceptable. But, in contrast to Mr. Cox’s analysis, Sgt. Davis had
analyzed a different period of time and found a much lower rate of false alerts during
training scenarios. And she testified that there was no particular amount of false alerts that
she would find unacceptable. Instead, she said, “I would always be wondering why they
are occurring. . . . And I would make a plan to address them if I thought they were
problematic.”
After pointing out evidence that was favorable to the defense, Grimm argues, “there
was overwhelming evidence that Ace was not well-trained and not reliable when he
scanned Appellant’s vehicle.” Grimm urges us to conclude: “Even under a clearly
erroneous standard, when this Court reviews the ‘entire evidence’ on its own it will be ‘left
with the definite and firm conviction that a mistake has been committed,’ i.e., that Ace was
neither well-trained, nor reliable. Kusi [v. State], 438 Md. [362,] 383 [(2014)].”
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The State takes issue with most of Grimm’s characterizations of the evidence, and
devotes a portion of its brief to a countering review of Ace’s training records. The State
asserts that the records from 2012 through July 2014 reflect that “Ace was tested 679 times
in his training history,” and it appears that, during those tests, “Ace gave false positive
alerts 16 times. . . . That equates to a mere 2 percent false-positive rate.” And, the State
argues, “Ace failed to alert to the presence of drugs 32 times, . . . which equates to a false-
negative rate of 4.7 percent.” Grimm disagrees with the State’s analysis of how well Ace
performed during his training classes.
But, because our standard of appellate review requires us to view “the trial court’s
findings of fact, the evidence, and the inferences that may be drawn therefrom in the light
most favorable to the [prevailing] party,” Robinson, supra, 451 Md. at 108, we need not
respond to each item of evidence that Grimm highlights. It is sufficient for us to say that
there was competent evidence in the record that, when viewed in the light most favorable
to the prevailing party, supported the suppression court’s finding that Ace was a
sufficiently well-trained drug-sniffing dog that it was appropriate for Officer Keightley and
Sgt. Lamb to rely on Ace’s alert as an indication that there was a fair probability they would
find narcotics in Grimm’s vehicle.
D. Admission of Ace’s Post-Scan Certification
Grimm’s final argument as to why we should reverse the ruling of the suppression
court is based upon the admission of evidence regarding the recertification of Ace four
months after the scan of his vehicle. Grimm asserts: “Whether Ace passes a certification
four months after the scan of Appellant’s vehicle is not relevant to an assessment of his
26
reliability on the day of the scan . . . .” Grimm argues that the court committed reversible
error in admitting irrelevant evidence.
The issue arose during the direct examination of Sgt. Davis, who testified that she
and other officers from the Montgomery County Police had participated in an evaluation
and certification of the Maryland Transportation Authority Police’s canine unit during
August 2014 (i.e., approximately four months after the scan of Grimm’s vehicle). When
the prosecutor offered documents relative to the August visit, defense counsel objected,
and the following colloquy transpired:
[Counsel for Grimm]: Objection.
THE COURT: Grounds?
[Counsel for Grimm]: Relevance, Your Honor. These documents are
all from August of 2014. The incident in question here happened on April
19th, 2014. So this is months after the fact. So it’s just a question of
relevance.
THE COURT: I understand that, but it still relates to the overall
training of the dog . . . . I’m going to overrule. I think it’s relevant. I mean,
I think that the field performance and the training that they do after can be
just as important as before. It confirms whether or not the dog still can do
what the dog was trained to do or the dog can’t do what the dog was trained
to do. So I think it can come in a couple different ways.
[Counsel for Grimm]: Oh, I understand, Your Honor –
THE COURT: I don’t know how much weight I’m going to give it . .
. but in terms of admissibility I think it’s admissible for a couple of reasons.
We review a question of whether evidence is legally relevant for legal error. State
v. Simms, 420 Md. 705, 725 (2011); Parker v. State, 408 Md. 428, 437 (2009).
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Maryland Rule 5-401 defines “relevant evidence” to mean “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” Here, a
primary issue for the suppression court to decide was whether Ace was a well-trained,
reliable dog on the date of the scan of Grimm’s vehicle. There was no dispute in the
testimony that Ace had been certified by the Maryland Transportation Authority Police,
and had been recertified many times, to be well-trained in the detection of heroin and other
narcotics. Yet, although Ace had been recertified in January 2014, Grimm was arguing at
the suppression hearing that Ace was no longer reliable in April 2014. Grimm’s attack
upon Ace’s reliability—despite the fact that his own expert had previously certified him as
reliable—was tantamount to arguing that Ace had somehow lost his ability to reliably
detect the odor of narcotics. Although, as the suppression court noted, the recertification in
August 2014 might be of limited weight in establishing whether Ace had lost the ability to
detect narcotics as of April 19, 2014, it was evidence that had some tendency to make it
improbable that Ace had suffered a loss of his olfactory sense, and consequently, this
evidence would rule out one potential argument or possible explanation as to why Ace
might have been less reliable on April 19, 2014, than he had been in January 2014. The
evidence was, therefore, not irrelevant as a matter of law, and the suppression court did not
err in admitting the evidence.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
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