BRIAN GRIMM v. STATE OF MARYLAND
Court of Appeals of Maryland, Watts, April 20, 2018,
Standard of Review – K-9 Sniff – “A drug detection dog’s reliability is a factual question” and is reviewed by appellate courts for clear error.
(Concur – Adkins – A drug dog’s reliability should be reviewed without deference by an appellate court)
In 2014, MDTA conducted a car stop for a seatbelt violation. Suspecting that the car was involved in drug trafficking based on a HIDTA tip, MDTA called for a K-9 unit to respond.
While the MDTA sergeant was writing the seatbelt warning, an MDTA officer arrived with his canine, “Ace.”
A positive sniff by Ace resulted in a search of the vehicle and the recovery of a large quantity of heroin and amphetamine from inside the rear, passenger-side door.
At trial, the defendant challenged Ace’s qualifications.
Ace’s handler testified that Ace had performed 51 vehicle scans and no contraband was found in 19 of those. He testified that 10 of the drivers had admitted to recent possession of CDS in the vehicle, explaining the non-productive result (NPR).
A month after the scan, Ace was decertified by MDTA due to an issue with calculating Ace’s training hours. Three days later, Ace was recertified.
Sgt. Davis, a narcotics-detection dog trainer for the Montgomery County Police Department, testified for the state as an expert in K-9 training and handling.
Sgt. Davis testified that there are no state-mandated certifications for canines, but that individual departments adopt requirements for certification. Sgt. Davis testified that she had previously evaluated the MDTA canine teams, including Ace and his handler, and that they passed this evaluation. Sgt. Davis testified that Ace’s 24 NPRs during training exercises out of 209 training scenarios did not, by themselves, disqualify Ace and his handler.
Sgt. Davis also reviewed the dash camera footage of the canine scan and gave her opinion that Ace was not “cued” to give a false alert and that Ace appeared to be acting solely based on detecting an odor.
The defendant called Ted Cox, a retired officer (former chief trainer for BPD’s canine unit and trainer for MDTA’s canine unit). Cox was admitted as an expert in K-9 training and handling. He testified that Ace was unqualified and the scan was improper. Cox testified that Ace’s handler kept improper records and had insufficient training with Ace. Moreover, he testified that the scan was improper in that Ace appeared to alert to the scent of humans and not to the scent of CDS.
The defense also called Senior Officer Michael McNerney, the MDTA chief canine trainer at the time, who testified to the same thing as Cox and to the overall deficiency of training in the MDTA canine unit including stale drug samples, recordkeeping issues, limited trainer supervision, inadequate staffing, and inadequate training. He decertified Ace approximately a month after Grimm’s car scan, though he re-certified Ace two days later.
Training records for Ace were admitted into evidence, including Ace’s re-certification.
The trial judge found that the defense experts were using the case to air “dirty laundry” about MDTA’s canine unit and that the State’s expert was more reliable. Based on this, the court found that Ace’s scan was reliable and admitted the subsequent recovery of CDS.
Grimm challenged this on appeal, arguing that the trial judge made a mistake in certifying Ace and his handler as qualified. He also objected to training records for Ace dated after the scan of Grimm’s vehicle.
The Court of Special Appeals affirmed Grimm’s conviction. Grimm then requested review by the Court of Appeals, arguing that the COSA used an improper standard of review.
Held: An appellate court reviewing probable cause is to take findings of fact from the court and decide for itself whether they add up to probable cause. The review is “de novo” (without deference to the trial court’s decision other than fact-finding).
Probable Cause – In determining probable cause, a court must:
First, identify all of the relevant historical facts that were known to the officer at the time of the search and, if necessary, any relevant or disputed background facts
Second, the court must determine whether those facts give rise to probable cause
K-9 – Probable Cause – A drug detection dog’s training records constitute the most probative evidence of his or her reliability
From the Case: “In this case, Ace’s training records alone constituted more than enough evidence to support the circuit court’s reliability determination… Even if we considered Ace’s percentage of false alerts of 25% during the time period that Cox referenced, that percentage is not dispositive in light of Sergeant Davis’s opinion that she did not consider any particular amount of false alerts to be acceptable or unacceptable. Moreover, as Sergeant Davis pointed out that there is no industry standard with regard to an unacceptable number of false alerts; and, as Cox acknowledged, there are no State-wide requirements for drug detection dogs.”
K-9 – Probable Cause – certification of a dog by a “bona fide organization” after testing its reliability in a controlled setting allows a court to presume that the dog is reliable and an alert gives probable cause to search.
From the Case: Ace was certified four times before the dog scan in question, and twice afterward. Ace was certified on January 22, 2014. That certification was valid for six months, and thus was valid at the time of the April 19, 2014 dog scan. Even though Ace was decertified approximately one month after the dog scan, Ace was recertified just days later.
K-9 – False Field Alerts – A drug detection dog’s percentage of false alerts in the field may be “markedly overstated” for a variety of reasons such as: detecting substances that were too well hidden or present in quantities too small to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.
K-9 – Field Performance – Because of the lack of a controlled environment, a k-9’s field reports have “relatively limited import” in determining reliability