BRIAN GRIMM v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Meredith, April 26, 2017,
K-9 Sniff – The expertise of a canine and handler must be weighed on an individual basis; no set number or percentage of non-productive results disqualifies a canine from being qualified to alert to CDS.
Affirmed by COA
Facts
MDTA conducted a car stop for a seatbelt violation and, suspecting that the car was involved in drug trafficking based on a HIDTA tip, called for K-9.
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).
Ace’s handler admitted that his training hours with Ace had been insufficient to meet MDTA standards at the time of the scan, but that Ace was still certified.
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 after Grimm’s car stop.
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.
Law from the Case
Held: The Court disagreed, holding that the trial court did not make any clear errors in her decision and that the certification records after the scan showed that Ace’s skills had not lapsed since his last certification.
Car Search – The automobile exception (“Carroll Doctrine”) allows officers to conduct a warrantless search of a vehicle based on probable cause
Probable Cause – Probable cause requires only a “fair probability that contraband or evidence of a crime will be found in a particular place”
Car Search – A k-9 alert for CDS by a “properly trained canine” gives probable cause to conduct a warrantless search of a vehicle
As explained by the Supreme Court:
• There is no list of requirements in order for a canine to be certified as “properly trained.”
• At a minimum, the State must produce proof from controlled settings that a dog performs reliably in detecting drugs.
• A canine’s field record “in most cases [] have relatively limited import.” Because there is no way to check a false negative and a false positive could be for numerous reasons (residual odor of drugs, undiscovered drugs, etc).
• Controlled testing environment results are more reliable. Therefore, “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.”
• The Defendant may challenge a dog’s reliability by attacking:
o The adequacy of a certification or training program (lax standards or faulty methods).
o Performance of the dog/handler during training
o Evidence of the dog’s (or handler’s) history in the field
o “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.”
• The court then has to weigh the State’s evidence against the Defendant’s and determine whether it was reasonable to rely on the canine alert.
From the case: The trial court reasonably considered evidence from the State and defense in deciding that Ace was a sufficiently well-trained drug-sniffing dog for MDTA to rely on his alert.