Petition for Writ of Certiorari — Brian Grimm, Petitioner v. Maryland
Supreme Court briefJul 19, 2018
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion and Concurring Opinion in
the Court of Appeals of Maryland
(April 20, 2018) . . . . . . . . . . . . . . App. 1
Appendix B Opinion in the Court of Special
Appeals of Maryland
(April 26, 2017) . . . . . . . . . . . . . App. 94
Appendix C Official Transcript of Proceedings
Hearing in the Circuit Court for Anne
Arundel County, Maryland
(March 17, 2015) . . . . . . . . . . . App. 127
Appendix D Signed “Proposed Order” in the Circuit
for Anne Arundel County
(March 17, 2015) . . . . . . . . . . . App. 147
App. 1
APPENDIX A
IN THE COURT OF APPEALS
OF MARYLAND
No. 37
September Term, 2017
[Filed April 20, 2018]
________________________
BRIAN GRIMM
)
)
v.
)
)
STATE OF MARYLAND )
_______________________ )
Circuit Court for Anne Arundel County
Case No. 02-K-14-001188
Argued: February 1, 2018
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Opinion by Watts, J.
Adkins, J., concurs.
______________________________________
App. 2
Filed: April 20, 2018
It is undisputed that the ultimate question of
probable cause to conduct a warrantless search is
reviewed by an appellate court de novo; i.e., the
standard of review for the issue of probable cause is de
novo, or without deference. “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,
and reviews without deference the trial court’s
application of the law to its findings of fact.” Varriale v.
State, 444 Md. 400, 410, 119 A.3d 824, 830 (2015)
(citation omitted). It may be less clear, however,
whether a particular determination by a trial court is
a finding of fact, and thus subject to deference, or a
conclusion of law, and thus subject to no deference. See
Miller v. Fenton, 474 U.S. 104, 113 (1985) (“[T]he
appropriate methodology for distinguishing questions
of fact from questions of law has been, to say the least,
elusive.” (Citations omitted)).
This case requires us to determine whether, in the
context of a probable cause determination, the issue of
a drug detection dog’s reliability is a factual question to
be reviewed for clear error, or a legal one to be
reviewed de novo. This is a matter of first impression,
and our resolution of the issue will govern the standard
of review of a trial court’s determination as to whether
a drug detection dog is, or is not, reliable.
We set the stage. In this case, Sergeant Christopher
Lamb of the Maryland Transportation Authority Police
initiated a traffic stop of a vehicle that Brian Grimm,
Petitioner, had been driving. Officer Carl Keightley of
the Maryland Transportation Authority Police, a K-9
handler, and Ace, his Belgian Malinois K-9 partner,
App. 3
arrived at the scene of the traffic stop.1 Ace scanned the
vehicle and alerted to it. Sergeant Lamb searched the
vehicle and found drugs inside.
In the Circuit Court for Anne Arundel County, the
State, Respondent, charged Grimm with various drugrelated crimes. Grimm moved to suppress the drugs,
alleging that Sergeant Lamb lacked probable cause to
search his vehicle. At a hearing on the motion to
suppress, the circuit court admitted into evidence
several documents, including Ace’s training records,
Ace’s field reports,2 and Officer Keightley’s and Ace’s
certifications. The State called two expert witnesses:
Officer Keightley and Sergeant Mary Davis, the
Montgomery County Police Department’s K-9 Unit’s
head trainer. Grimm also called two expert witnesses:
Ted Cox, the former head trainer of the Baltimore
Police Department’s K-9 Unit and the Maryland
Transportation Authority Police’s K-9 Unit,3 and
Officer Michael McNerney, a trainer of the Maryland
Transportation Authority Police’s K-9 Unit. Sergeant
Davis essentially testified that Ace was reliable, while
Cox and Officer McNerney opined that Ace was
unreliable. The circuit court denied the motion to
1
“[T]he Belgian Malinois is an alert, high-energy breed, popular as
both a police and military working dog[.]” Brooks v. Anderson
Police Dep’t, City of Anderson, 975 N.E.2d 395, 397 n.4 (Ind. Ct.
App. 2012) (cleaned up).
2
Field reports are records that result from a drug detection dog’s
performance in the field—as opposed to a drug detection dog’s
performance during training, which result in training records.
3
In the circuit court, at his request, Cox was not referred to as an
officer, as he no longer worked for a law enforcement agency.
App. 4
suppress, concluding that Sergeant Lamb had probable
cause to search the vehicle. The circuit court found that
Sergeant Davis was “the most credible witness[,]” and
“accept[ed]” her opinion as to Ace’s reliability.
Before us, as to the standard of review, Grimm
contends that we must review without deference, as
opposed to for clear error, the circuit court’s
determination that Ace was reliable. As to the merits,
Grimm argues that, no matter which standard of
review applies, the circuit court erred in determining
that probable cause existed. The State responds that
the standard of review is for clear error, and asserts
that the circuit court did not clearly err in determining
that Ace was reliable. Alternatively, the State
maintains that, even if probable cause did not exist, the
“good faith” exception to the exclusionary rule applies.
In Part I below, we conclude 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; i.e., the standard of review as to
the issue of probable cause to search based on a drug
detection dog’s alert is de novo. A determination of
probable cause involves a two-step process. First, a
court must 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 to search. We conclude
that the issue of a drug detection dog’s reliability is a
factual question. Accordingly, an appellate court
reviews for clear error a trial court’s determination as
to whether a drug detection dog is, or is not, reliable. In
Miller, 474 U.S. at 114, the Supreme Court concluded
App. 5
that, where an issue falls somewhere between a clear
legal issue and a simple historical fact, the
determination of the nature of the issue turns on an
analysis of which judicial actor is better positioned to
decide the question. As explained below, the issue of a
drug detection dog’s reliability is, in our view, a
background fact that falls somewhere between a clear
legal issue and a simple fact. A trial court is better
positioned than an appellate court to determine the
issue. An issue as to a drug detection dog’s reliability
requires a trial court to assess the credibility of lay and
expert witnesses; to watch, when available, a recording
of a drug detection dog’s scan; to weigh and determine
the weight to be given documentary evidence, such as
the drug detection dog’s training records, field reports,
and certifications; to consider the qualifications of any
experts, and their opinions about the evidence; and to
determine whether, under the totality of the
circumstances, the drug detection dog is reliable; and
whether the drug detection dog’s alert indicated that
drugs were present. As such, a trial court is better
positioned than an appellate court to determine a drug
detection dog’s reliability.
In Part II below, we hold that the circuit court did
not clearly err in determining that Ace was reliable, as
an abundance of evidence supports the circuit court’s
finding that Ace was reliable. We conclude that, under
the totality of the circumstances, Sergeant Lamb had
probable cause for the search, and we do not address
the State’s argument as to good faith.
App. 6
BACKGROUND
Charges and Motion to Suppress
On April 19, 2014, in the circuit court, the State
charged Grimm with possession of heroin with intent
to distribute and other drug-related crimes. On May 23,
2014, Grimm filed a motion to suppress drugs that had
been found in a vehicle that he had been driving. On
multiple days, December 17, 2014, January 5 and 13,
2015, and March 17, 2015, the circuit court conducted
a hearing on the motion to suppress.
Sergeant Lamb’s Testimony
Regarding the Traffic Stop
At the hearing, as a witness for the State, Sergeant
Lamb testified that, on April 18, 2014, a detective with
the High Intensity Drug Trafficking Area team
provided him with a description of a man who was
suspected to be driving north on Interstate 95 from
Atlanta, Georgia to the Baltimore area with a large
quantity of controlled dangerous substances. On
April 19, 2014, Sergeant Lamb was informed that the
man was driving a maroon Honda that was registered
in Georgia, that there were multiple occupants in the
Honda, and that the man was expected to drive from
Maryland Route 100 onto the northbound side of
Maryland Route 295. That same day, Sergeant Lamb
saw the Honda travel from Maryland Route 100 onto
Maryland Route 295, and saw that, including the
driver, the Honda had three occupants who were not
wearing seat belts. Sergeant Lamb initiated a traffic
stop.
Sergeant Lamb testified that Grimm was in the
Honda’s driver’s seat. According to Sergeant Lamb,
App. 7
Grimm’s “clothing looked disheveled,” and “[h]is hair
looked unkempt[,]” which indicated to Sergeant Lamb
that “he had been driving for a long time . . . and
had[ not] been staying anywhere.” Sergeant Lamb
spoke with Grimm, who “was kind of mumbling” and
“rambling a little bit.” Grimm did not make eye contact
when he was addressing Sergeant Lamb. Grimm,
however, 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 that he had bought the Honda, but
could not afford to register the Honda in his name.
Grimm did not say who Oglesbee was. Grimm told
Sergeant Lamb that he and three other people had
traveled from Baltimore to Atlanta for approximately
one week to visit friends and buy the Honda. Grimm
said that he had paid for plane tickets from Baltimore
to Atlanta for all four of them.
A woman named Davita Henry was in the front
passenger seat. A man named Aaron Chase was in the
backseat,4 directly behind Grimm. During the traffic
stop, Henry stared straight ahead, and never turned to
look at Sergeant Lamb, who was standing on the
Honda’s passenger side while speaking to Grimm.
Meanwhile, Chase, who “was leaning forward to engage
[Sergeant Lamb] in conversation” while he was
4
In a separate case, the State charged Chase with drug-related
crimes. Although Grimm and Chase were not codefendants, the
hearing on the motion to suppress concerned both of their cases.
Each defendant was represented by his own counsel.
App. 8
speaking to Grimm, “was very open with the fact that
he was[]” not wearing a seat belt, and was “overly
polite[.]” Sergeant Lamb explained that people who are
“overly polite” may be trying to distract law
enforcement officers from “what[ is] going on[.]” Grimm
told Sergeant Lamb that there had been a fourth
occupant in the Honda, who had been dropped off at an
Element Hotel. Grimm told Sergeant Lamb that the
fourth occupant and Henry were women whom he knew
from a dance club, and that Chase was his friend.
At some point, Sergeant Lamb asked Grimm to exit
the Honda and walk to the rear of the Honda. Grimm
did so. And, after speaking to Sergeant Lamb, Grimm
returned to the driver’s seat. Grimm did not fully close
the driver’s door, and kept his left foot on the asphalt.
Grimm also placed a pillow on the door’s “windowsill[,]”
then laid his head on the pillow. Sergeant Lamb
became concerned that Grimm would try to run away.
Sergeant Lamb suspected that criminal activity was
afoot, in light of the information he had received from
Grimm that four individuals had flown from Baltimore
to Atlanta to buy the Honda, and Grimm had paid for
the airline tickets, yet, Grimm allegedly was not able
to afford to register the Honda in his name, and the
circumstance that Chase was overly polite while Henry
stared straight ahead. Sergeant Lamb observed that
the Honda was a dented, older model, two-door Accord
with high mileage and faded paint. Sergeant Lamb
testified that both 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, and he learned that both were
App. 9
valid. Based on his observations, 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, a drug
detection dog. Sergeant Lamb informed Officer
Keightley of what he had observed, and requested a
dog scan of the Honda. Officer Keightley told Sergeant
Lamb that he wanted the Honda’s occupants to exit the
Honda before the dog scan occurred. After the Honda’s
occupants exited the Honda, 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[,]” which he
described as the “plastic and vinyl armrest and side
rail” behind the passenger’s door.
Testimony of Officer Keightley,
Ace’s Handler and One of the State’s Experts
As a witness for the State, Officer Keightley of the
Maryland Transportation Authority Police testified
that he had been a member of the K-9 Unit since
February 2012. In April 2012, Officer Keightley started
working with Ace. Officer Keightley testified about
Ace’s training and certification. For three months, from
April 2012 to July 2012, Cox and Officers McNerney
and McCarty provided Ace’s initial training. During
Ace’s initial training, he was trained to recognize the
odors of five drugs: marijuana, cocaine, heroin,
methamphetamine, and methylenedioxymethamphetamine.5 After Ace’s initial training, he was
5
Methylenedioxy-methamphetamine is also known as “MDMA,”
“Molly,” and “Ecstasy.” National Institute on Drug Abuse, MDMA
App. 10
trained once a week, for an average of seven hours a
week, using “narcotic aids”—i.e., substances that the
crime laboratory had tested and determined to be
drugs. The training is designed to mimic events that
occur in the field. During Ace’s training, usually, a
trainer would set one or multiple narcotic aids in a
given area, such as a vehicle or a building; the narcotic
aids would sit for twenty to thirty minutes; and then,
Officer Keightley and Ace would search the area. Ace’s
training was documented with a training record that
listed dates, times, the narcotic aids that were used,
the weights thereof (ranging from a gram to ten
pounds), where they were hidden, and whether Ace
found them.
The Maryland Transportation Authority Police
certifies dogs and their handlers every six months. Like
other drug detection dogs, to become certified, Ace was
tested in “two or three” capacities from among “various
areas[,]” including a building, a vehicle, luggage, and
an outdoor area. Officer Keightley and Ace were first
certified on July 6, 2012. Officer Keightley and Ace had
been certified five times, and were certified as of
April 19, 2014. At that time, Officer Keightley and Ace
had most recently been certified on January 22, 2014.
As of the date of the hearing, Ace had performed dog
scans during approximately 100 traffic stops. The
circuit court admitted Officer Keightley as an expert in
the field of “K-9 police dog[s] and the detection of
controlled dangerous substances”—specifically,
(Ecstasy/Molly) (Oct. 2016), https:// www.drugabuse.gov/
publications/drugfacts/mdma-ecstasymolly [https://perma.cc/S4A7ZSY3].
App. 11
marijuana, cocaine, heroin, methamphetamine, and
methylenedioxy-methamphetamine.
Without objection, the circuit court admitted into
evidence: Ace’s training records from April 2012
through April 2014; Ace’s field reports—which Officer
Keightley completed every time that he utilized
Ace—from when Officer Keightley and Ace were first
certified on July 6, 2012 until April 19, 2014; the
Maryland Transportation Authority Police
Narcotic/Explosive K-9 Certification Guidelines; and
the Maryland Transportation Authority Police K-9
Standard Operating Procedures, which included
guidelines for training dogs and handling explosive
aids and narcotic aids. The circuit court also admitted
into evidence: Officer Keightley’s and Ace’s July 6, 2012
certification, which was accompanied by score sheets
that showed which narcotic aids were used, where they
were hidden, and whether Ace found them; Officer
Keightley’s and Ace’s December 10 and 14, 2012
certification, and Officer Keightley’s and Ace’s July 1,
2013 certification. The second-to-last certification was
associated with two dates because, on December 10,
2012, Officer Keightley and Ace passed a test that
involved a dog scan of a vehicle, but did not pass a test
that involved a dog scan in a building; on December 14,
2012, Officer Keightley and Ace re-took, and passed,
the test that involved a dog scan in a building, and
Officer McNerney recertified Officer Keightley and Ace.
According to Ace’s field reports, between July 6,
2012 and April 19, 2014, Ace had alerted to a vehicle on
51 occasions. Of those 51 occasions, no drugs were
found in the vehicle on 19 occasions. Officer Keightley
testified that a “non-productive response” occurs when
App. 12
a drug detection dog alerts to a vehicle or building, and
an officer searches the vehicle or building, but does not
find any contraband.6 Officer Keightley explained that
Ace might alert where drugs used to be, but are no
longer, inside a vehicle. Indeed, 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. In response to
Ace’s non-productive responses, Officer Keightley
extended Ace’s searching time during training.
Between January 22, 2014—Officer Keightley’s and
Ace’s most recent certification before the time of the
traffic stop on April 19, 2014—and April 19, 2014,
Officer Keightley did not receive any warnings that he
was doing anything inappropriate.
Officer Keightley testified that, on April 19, 2014,
he responded to a traffic stop that Sergeant Lamb had
initiated. At the scene, Officer Keightley was asked to
conduct a dog scan of the Honda with his K-9, Ace. At
the time, both of the Honda’s windows were rolled
down. Officer Keightley brought Ace to the front of the
Honda. On the way to the front of the Honda, Officer
Keightley and Ace 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. At that time, Officer
6
Officer Keightley testified that the term “non-productive
response,” like the term “false alert,” indicates that a drug
detection dog alerted to an area, and an officer searched the area,
but did not find any contraband.
App. 13
Keightley had not yet commanded Ace to search. Once
in front of the Honda, Officer Keightley told Ace to
“foot”—i.e., to sit next to him. When Ace was quiet,
Officer Keightley commanded Ace to search. Officer
Keightley and Ace started walking around the Honda
counter-clockwise. As Officer Keightley “was trying to
present the passenger-side headlight[,]” Ace pulled
toward the driver’s side on two occasions. After Ace
came around to the driver’s side, he “bracketed”—i.e.,
he moved his head in an attempt to locate an odor.
Once Officer Keightley and Ace reached the driver’s
door, Ace stopped walking, put his forelegs on the
driver’s door, stuck his head into the Honda, and did a
“focus sniff”—i.e., closed his mouth and sniffed
extremely rapidly. Then, Ace sat, which Officer
Keightley testified was an alert that the Honda was
contaminated with, or had recently been contaminated
with, drugs. The dog scan took thirty-seven seconds.
While drug detection dogs may be trained to alert by
staring, scratching, or biting at the source of the odor,
Ace was trained to alert by sitting.
On May 16, 2014, Officer Keightley received an email from a member of the K-9 Unit with a
recommendation by Officer McNerney concerning an
issue as to the calculation of Ace’s training hours.
Before receiving the e-mail, Officer Keightley would
indicate in Ace’s training records that he was trained
for seven hours on one day each week. In the e-mail,
however, Officer Keightley was advised that there was
a new method of calculating the number of hours of
Ace’s training, and that Officer Keightley should count
only the time from when the first narcotic aid was set
to when the last test was conducted. Under the new
calculation method, Ace had not received the sixteen
App. 14
hours of monthly training that was required for
certification, and Officer Keightley and Ace were
decertified. After Officer Keightley received the e-mail,
he trained Ace on two additional days. On May 19,
2014, Officer McNerney recertified Officer Keightley
and Ace. The circuit court admitted Officer Keightley’s
and Ace’s May 19, 2014 recertification into evidence.
Officer Keightley testified that, after Officer McNerney
recertified Ace, he usually trained Ace at least four
days a week, for a total of sixteen to twenty hours a
month.
On cross-examination, Officer Keightley
acknowledged that Ace had previously alerted to
tobacco, air fresheners, a tennis ball, and the odor of
“KONG” chew toys. Officer Keightley also
acknowledged that, at some point, Officer McNerney
told Officer Keightley that, by standing still behind
Ace, Officer Keightley was “cueing” Ace—i.e., giving
Ace a cue to take certain actions. Officer Keightley
testified that he did not cue Ace during the dog scan of
the Honda.
Officer Keightley acknowledged that, in November
2013, Ace was trained only twice, for a total of three
hours and fifteen minutes—calculated from when the
first narcotic aid was set to when the last test was
conducted. In February 2013, Ace was trained a total of
eleven hours and nineteen minutes, calculated in the
same way. According to a summary of Ace’s training
records that Grimm’s counsel had prepared, using the
new formula for calculating the number of hours that
Ace had been trained, Ace had not received the
required sixteen hours of training in any month from
July 2012 through 2014. Officer Keightley testified that
App. 15
this was so because the new formula for calculating the
number of hours that Ace had been trained had not yet
been implemented.
Testimony of Sergeant Davis,
One of the State’s Experts
As a witness for the State, Sergeant Davis testified
that, in 1991, she became a handler with the K-9 Unit
of the Montgomery County Police Department.
Sergeant Davis testified that, initially as a handler, she
managed five K-9 teams, and that throughout her
career she managed both patrol K-9 teams and
narcotics K-9 teams. In 1998 or 1999, Sergeant Davis
became a K-9 trainer. In 2001, Sergeant Davis placed
in the top twenty K-9 officers in the United States
Police Canine Association’s Patrol Dog Field Trials. In
2008, Sergeant Davis was assigned as the K-9 unit’s
head trainer. During that time, she developed the K-9
Unit’s current mandatory certification processes for
patrol K-9s and narcotics K-9s, and trained the K-9
Unit’s first firearms detection K-9 teams. In 2009,
Sergeant Davis began writing for Police K-9 Magazine.
In that capacity, between 2009 and 2014, Sergeant
Davis responded to questions about training dogs in
Police K-9 Magazine. Sergeant Davis testified that she
had run events at the United States Police Canine
Association’s national training seminar, and had given
presentations at Police K-9 Magazine’s conference.
Sergeant Davis had trained a total of sixty-five K-9
patrol teams, and trained a total of thirty-six K-9
detection teams. The parties stipulated that Sergeant
Davis was an expert in K-9 training and handling.
Sergeant Davis testified that she was not being paid for
App. 16
her testimony, apart from what she was paid for being
on duty while testifying.
Sergeant Davis explained that Maryland law does
not require drug detection dogs to be certified, and that
there are no State-wide requirements for drug
detection dog performance. Although Maryland law
does not require that drug detection dogs be certified,
Sergeant Davis developed a process for certifying drug
detection dogs in the Montgomery County Police
Department’s K-9 Unit. Sergeant Davis testified that
the K-9 Unit uses its best efforts to follow or exceed the
standards that are recommended by the United States
Police Canine Association. According to Sergeant
Davis, the K-9 Unit trains drug detection dogs with
both odor recognition tests and “environmental
hides[,]” which are searches of buildings, vehicles, and
parcels. Sergeant Davis described the process through
which the Montgomery County Police Department’s K9 Unit trains drug detection dogs, to consist of: use of
odors of controlled dangerous substances; distractions,
such as dog food; and a reward, in the form of a ball on
a rope. Sergeant Davis testified that the Maryland
Transportation Authority Police’s K-9 Unit’s
certification process generally comports with industry
standards. Sergeant Davis advised that the
Montgomery County Police Department’s K-9 Unit
trains approximately twelve other local K-9
Units—including, at one point, the Maryland
Transportation Authority Police’s K-9 Unit.
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
App. 17
Authority Police’s K-9 Unit’s certification process.
Sergeant Davis and two other members of the
Montgomery County Police Department’s K-9 Unit
served as judges. The certification process took place on
August 19, 2014, and included a search of a vehicle,
then a search of a parcel, and then a search of an
indoor area. Officer Keightley and Ace participated in,
and were successful in, the certification process.
According to Sergeant Davis, on one occasion during
the certification process, 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 then moved to the next vehicle. At that
time, Ace tried to get Officer Keightley to return to the
original vehicle. Sergeant Davis referred to this
situation as “a handler miss[,]” for which Ace was not
responsible—i.e., Officer Keightley missed Ace’s alert.
Sergeant Davis stated that Ace had been “correct in his
work.” Sergeant Davis opined that the handler miss
was not a basis for failure because, in any certification,
one handler miss is permissible.
Before testifying, 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. Sergeant Davis testified that she did not
observe any major changes in the process of training
Ace, including the training routine and the types of
narcotic aids that were used, between April 19,
2014—when the traffic stop occurred—and July 2014.
Sergeant Davis testified that Officer Keightley and Ace
performed satisfactorily during training.
App. 18
Sergeant Davis testified that she was aware that
Officer Keightley and Ace had been decertified in May
2014 as a result of the issue with the calculation of 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
one iota by the way” in which the Ace’s training hours
were calculated. Similarly, Sergeant Davis testified
that the issue with regard to the calculation of the
number of Ace’s training hours did not affect Officer
Keightley’s and Ace’s January 22, 2014 certification.
Sergeant Davis explained: “Either [Ace] knows the
odors[,] or he does[ not]. And he can perform, or he
cannot.” Sergeant Davis testified that she did not know
of any other K-9 Unit that had decertified a handler
and a drug detection dog “based on training hours.”
Sergeant Davis testified that, when a drug detection
dog has not been trained for enough time, there is
usually “an opportunity for remediation[,]” which Ace
received.
According to Sergeant Davis, in 2013, during Ace’s
training, he was placed in a total of 209 scenarios. Of
those, Ace falsely alerted on 24 occasions. Sergeant
Davis explained that she “expect[ed false alerts] to
occur[,]” and that she did not think that any “particular
amount” of false alerts was “acceptable or
unacceptable.” Sergeant Davis noted that there is no
industry standard with regard to an unacceptable
number of false alerts, and that the Montgomery
County Police Department’s K-9 Unit did not have such
a standard. Sergeant Davis testified that she “would
look at each scenario and ask [] what is the cause of
the” false alert. Sergeant Davis testified that Ace’s
false alerts during training were not “[s]ignificant” in
App. 19
light of the reasons for Ace’s false alerts. According to
Sergeant Davis, on multiple occasions, Ace falsely
alerted when he was “asked to search for a very long
time in an environment where there was no” controlled
dangerous substance. Sergeant Davis opined that such
environments were “counter-productive” because they
simply provided Ace with “an opportunity to fail.”
During Sergeant Davis’s testimony, the recording of
the traffic stop from the dashboard camera in Sergeant
Lamb’s vehicle was played. Addressing the
circumstance that Ace did not alert as he passed by the
passenger side, Sergeant Davis explained that Officer
Keightley needed to ensure that Ace would pass by the
Honda’s occupants safely, and was probably tightly
controlling Ace with his leash and with voice
commands. Sergeant Davis opined that, although Ace
“was clearly excited and [] wanted to work[,]” he
appeared to be “in an obedient state” as he passed by
the passenger side.
Sergeant Davis observed that, once Officer
Keightley and Ace reached the front of the Honda, Ace
was barking and “still a little bit excited.” Officer
Keightley calmed Ace, and had Ace sit near him.
Sergeant Davis noted that, after Officer Keightley gave
the command to search, Ace immediately moved toward
the driver’s door. With physical or verbal commands,
Officer Keightley had Ace move toward the front right
headlight. Ace briefly checked the front of the Honda,
then moved toward the driver’s door again. Again,
Officer Keightley had Ace return to the front right
headlight. Afterward, however, Ace moved toward the
driver’s door for a third time. According to Sergeant
Davis, while Officer Keightley was trying to direct Ace
App. 20
to the front right headlight, Ace independently insisted
on moving to the driver’s side. Sergeant Davis testified
that Ace’s behavior indicated that he had made an
“independent discovery of” an odor of controlled
dangerous substances, and was attempting to locate
the source. Sergeant Davis testified that, while in front
of the Honda, Ace engaged in “bracketing”—i.e.,
whipping his head. Ace moved toward the driver’s door
and jumped on it “independently.” Then, Ace lifted his
head into the window, and engaged in “focus sniffing[.]”
Sergeant Davis observed that, for six minutes
during the traffic stop, the driver’s door was open.
Sergeant Davis explained that the vehicles on
Maryland Route 295 that were passing by the Honda
“would create a vacuum and pull air[,]” as well as the
odor of controlled dangerous substances, out of the
driver’s doorway. Sergeant Davis also noted that,
because vehicles are climate-controlled, simply driving
down a highway can “create odor pockets in places”
that do not contain the source of the odor.
Addressing Ace’s alert near the driver’s door,
Sergeant Davis testified that Ace “was very firm in[,]”
and “very committed in[,] his sit. . . . [Ace] held it very
nicely.” Sergeant Davis testified that Ace was not
“unsure of himself” when he alerted. Sergeant Davis
testified that the dog scan “took a very little bit of []
time” because “there was a lot of odor” and it was not
“difficult for” Ace to identify the odor. Sergeant Davis
testified that the dog scan’s length—thirty-seven
seconds—was within Ace’s “capacity to manage himself
without” falsely alerting.
Sergeant Davis testified that the recording of the
traffic stop from the dashboard camera in Sergeant
App. 21
Lamb’s vehicle contained no evidence that Ace’s alert
was false. Sergeant Davis explained that Ace’s “work
was very independent[,]” as evinced by the
circumstance that Ace moved toward the driver’s door
on two occasions before Officer Keightley allowed him
to go there. According to Sergeant Davis, Officer
Keightley’s “direction was more of a distraction than it
was an influence on” Ace. Sergeant Davis testified that
Ace “already had clear identification of” the odor of a
controlled dangerous substance, and that, when Ace
alerted, he was indicating “that he knew there was
odor there.” Sergeant Davis advised that Officer
Keightley did not cause Ace’s alert “in any way, shape,
or form[.]” Sergeant Davis testified that she did not see
any evidence of cueing by Officer Keightley. Sergeant
Davis testified that, to a reasonable degree of certainty,
based on her training, knowledge, and experience as a
K-9 trainer, Officer Keightley and Ace were “competent
to be working the street and deploying, and making
probable cause decisions on the street.” Sergeant Davis
testified that her opinion was “[b]ased on the totality of
the circumstances, [and] looking at all of the training
records” and having observed Officer Keightley and Ace
on three occasions.
On
cross-examination,
Sergeant
Davis
acknowledged that, before testifying, she had not
reviewed Ace’s field reports, which, according to her,
did not have “as much bearing” as his training records,
because Ace’s training took place in environments that
were more controlled than those in the field. Sergeant
Davis explained that, in the field, “unintended crosscontamination” can occur. Addressing the circumstance
that, according to his field reports, Ace alerted 9 times
when there was no discovery of drugs, and no
App. 22
admission that drugs had been in the vehicle, Sergeant
Davis testified that that did not concern her “even in
the least” and explained: “It[ i]s like putting garbage in
a garbage can. And you take the garbage out[,] and you
try to clean it, . . . but you stick your head in that
garbage can[,] and it still smells like garbage.”
Testimony of Cox, One of Grimm’s Experts
As a witness for Grimm, Cox—one of the people who
provided Ace’s initial training in 2012—testified that,
in 1997, he joined the Baltimore Police Department’s
K-9 Unit as a handler. In 2000, Cox became the
Baltimore Police Department’s K-9 Unit’s chief trainer.
Cox trained a total of approximately eighty dogs. In
2006, Cox left the Baltimore Police Department. In
2007, Cox became the Maryland Transportation
Authority Police’s K-9 Unit’s only trainer. In October
2012, Cox left the Maryland Transportation Authority
Police. The parties stipulated that Cox was an expert
in K-9 training and handling.
Cox acknowledged that he was compensated for his
travel and, additionally, that he was paid $200 an
hour, and that he had earned approximately between
$4,000 and $5,0007 working on this case. Cox testified
7
On cross-examination, after Cox testified that he was paid $200
an hour, the prosecutor asked Cox: “[H]ow many hours have you
spent?” Cox responded: “I guess we’re somewhere around, between
reviewing documents, this whole book, and gathering things[,]
probably about between four and five thousand.” Given that 4,000
hours is equal to more than 166 entire days, it is evident that Cox
was referring to the amount of money that he had earned while
working on this case, not the number of hours that he had spent
working on this case.
App. 23
that, because he was being paid to testify, “apparently[,
he] was not allowed to speak about the things that
went on while [he] was employed [by] the
State”—“[k]ind of like a gag order.”
Before testifying, Cox reviewed, among other
documents, Ace’s training records, his field reports, the
Maryland Transportation Authority Police
Narcotic/Explosive K-9 Certification Guidelines, and
the recording of the traffic stop from the dashboard
camera in Sergeant Lamb’s vehicle.
Similar to Sergeant Davis, Cox testified that Ace’s
training records were more important than his field
reports. Cox testified that, in his opinion, after
reviewing Ace’s training records and the recording of
the traffic stop, Ace was unreliable “at this point.”
According to Cox, the Maryland Transportation
Authority Police’s K-9 Unit had failed to maintain Ace’s
maintenance training for over a year. Cox testified that
once a drug detection dog is certified “[i]t takes a keen
eye in order for a trainer . . . to watch a dog perform
and work and understand what the team is actually
saying and doing. And in this case, it didn’t happen.”
Cox testified that he felt that Officer Keightley was
“basically, just like a rogue police.” Cox opined that it
was not Officer Keightley’s fault, as the Maryland
Transportation Authority Police’s K-9 Unit did not
“provide him a trainer to sit with him[,] because he’s
still green for a period of time[,] in order for him to gain
the experience that was necessary.”
After being asked whether he noticed that there was
a training session for Ace on November 12, 2012 and
there was no other training session until December 12,
2012, Cox testified that, due to “the gag order[,]” he
App. 24
could not answer that. Cox indicated, however, that a
drug detection dog should not go twenty or thirty days
without being trained unless the officer is on extended
leave. Cox noted that, when he went through the
federal trainer certification, there was a distinction
between “clock time” and “sniff time.” According to Cox,
sniff time is the time that a dog is actually engaged in
performing scans. Cox testified that, even if a law
enforcement officer were at a training facility for eight
hours, a drug detection dog might spend only a small
portion of that time performing scans.
Cox testified that he wanted to train his dogs to be
as close to “100 percent as” he could. According to Cox,
he “usually tr[ied] to hold [drug detection] dog[s] to a
95 percent ratio” and, if a dog dropped under 90
percent, he would “pull him off the road and find out
why[.]” Cox indicated that, when a dog is being
evaluated, he sets a standard to figure out if the dog
“has a problem in falsing.” Cox stated: “There’s a
percentage rate that I give, it’s usually four percent.”
According to Cox, between April 15, 2013 and March
24, 2014, during Ace’s training, he performed 179
scans. Of those, Ace falsely alerted to vehicles 15 times,
and falsely alerted indoors 29 times, for a total of 44
false alerts. Cox calculated that 4% of 179 scans is
approximately 7.16. Cox stated that Ace’s number of
false alerts—44—is “five times over, or six times over
[Cox’s] allotted falsing.” Cox acknowledged that, as
Sergeant Davis testified, there are no State-wide
requirements for drug detection dog performance. Cox
opined, however, that Maryland should have such
requirements.
App. 25
Cox testified that users of marijuana make blunts
by sprinkling marijuana into tobacco leaves. Cox
explained that this circumstance can condition drug
detection dogs to alert to the odor of tobacco. Cox
testified that Ace’s records showed that Ace had alerted
on plastic and “indicated on blanks which is possibly
human odor.” According to Cox, this was “a red flag”
and someone should have investigated what may have
been going on with Ace.
During Cox’s testimony, the recording of the traffic
stop from the dashboard camera in Sergeant Lamb’s
vehicle was played. Without specifically testifying that
Ace was engaged in excessive barking, Cox asked that
the video be paused and stated: “I usually don’t like
that excessive barking[.]” Cox testified that “excessive
barking” “usually takes [] energy away from” a drug
detection dog, and the dog then does not perform as
well. Cox stated that he “would actually want the
officer to just calm the dog down” so that the dog would
not be “coming into the field already exhausted.”
Cox testified that, according to the National
Weather Service, on April 19, 2014, there was a fourmile-an-hour wind. Cox theorized that, “if we assume
that, for argument’s sake,” the wind was “blowing from
the bumper to the front bumper[,]” he would expect
that, when he passed the passenger door, Ace would
“whip his head around and catch some type of odor.”
According to Cox, if the wind were blowing in that
direction, “there’s enough that’s going to plume out on
the side,” and Ace “should catch the odor when he
passed the car passenger door.”
Cox noted that, even though Ace always started
scans by going counterclockwise, on this occasion, he
App. 26
went in the other direction “on his own.” Cox explained
that Officer Keightley used a dog toy to motivate Ace to
come to the headlight. Cox observed that, at that point,
Officer Keightley was behind Ace. Cox observed that
Officer McNerney had once told Officer Keightley that
he was “cueing” Ace by standing still behind him.
Cox testified that he would not have “move[d Ace]
unless he was . . . actually performing his task[,]” and
that, when Ace came “running around” to the driver’s
side, he did not “actively sniff at all.” Cox opined that
Ace “just jumped into object search” and then jumped
onto the driver’s door. Cox opined that Ace alerted to a
“human scent[,]” which resulted from Grimm leaning
on the driver’s door. According to Cox, Ace was
“imprinted on” human scent because, during his
training, the narcotic aids were not properly
maintained. Cox testified that Ace’s training records
contained no evidence that human scent had been used
as a distracter—a substance that a drug detection dog
is “extincted” off of during training. Cox also opined
that the narcotic aids were not replenished often
enough to ensure that they were still “producing” a
narcotics odor.
Cox testified that, although there was evidence that
Ace was trained to go to the source of an odor, he did
not attempt to jump through the driver’s door’s
window. Grimm’s counsel asked whether it was
significant that, after alerting, Ace turned his head
toward Officer Keightley. Cox responded that this
indicated that Ace was getting “weak in his field[,]” and
that he was essentially asking Officer Keightley: “[D]id
I [do] right?” When asked whether he observed any
evidence of Ace “bracketing[,]” Cox responded: “No[.]”
App. 27
Cox opined that, based on his experience and
expertise, “[t]here was no doubt in [his] mind that [Ace]
was unreliable.” As reasons for his opinion, Cox
referenced “how many times [Ace had] falsed, what
type of odors [Ace had] falsed on,” “the human odor,”
“the lack of odor being produced by the narcotics [aids]
that were set out,” deficiencies in Ace’s training, and
the lack of “a certified trainer to . . . watch [Ace] and
make sure . . . [that] the behavior that he[ was] offering
in training [was] stopped at the appropriate time[.]”
Cox also opined that Officer Keightley and Ace should
have failed the certification process on August 19,
2014.
On cross-examination, Cox acknowledged that the
Maryland Transportation Authority Police
Narcotic/Explosive K-9 Certification Guidelines do not
set a maximum percentage of false alerts of 5%. Cox
also acknowledged that the Maryland Transportation
Authority Police K-9 Standard Operating Procedures
did not require analysis of the purity of narcotic aids.
Cox testified: “I wish [that] I could speak about the
steps and measures that I took [] to try to clear this up,
but I[ am] not allowed to at this point. But if I could I
would tell you what I tried to do.”
Testimony of Officer McNerney,
One of Grimm’s Experts
As a witness for Grimm, Officer McNerney—one of
the people who provided Ace’s initial training in
2012—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
App. 28
as a trainer. Initially, Officer McNerney trained dogs
only in explosive detection. 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 “it was
tough” to train dogs in both explosive detection and
drug detection. Officer McNerney testified that he went
to command and asked that training explosive and
drug detection dogs be made a full-time position, but
his request was denied. 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
App. 29
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
App. 30
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 crossexamination, 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
After hearing arguments by counsel, the circuit
court denied the motion to suppress, finding as follows:
Grimm was driving the [Honda]. It had the
Georgia plates; it was here in Anne Arundel
County. [] Chase was a passenger, as well as
[Henry]. And[,] back on April 19[,] 2014,
App. 31
Sergeant Lamb received some type of
be[-]on[-]the[-]lookout, . . . from his contacts in
[the Drug Enforcement Administration] and [the
High Intensity Drug Trafficking Area].
***
[] Sergeant [Lamb stopped] the [Honda],
and[,] unfortunately for [] Grimm and [] Chase
and [Henry], none of them were wearing
seat[ ]belts, which gave [] Sergeant [Lamb] th[e]
reasonable suspicion that he needed to conduct
the traffic stop[.]
***
At the [Honda], before [Ace] arrives[, t]here
is the discussion about Atlanta and airline
tickets[,] and [] Grimm puts his head on the
pillow[,] and he leans with [his left] foot out of
the [Honda], and the [back]seat passenger, []
Chase, is overly talkative, and [Henry] is not
talkative. And all of those things go into []
Sergeant [Lamb]’s mind[,] and[,] in his mind[,]
they are all indicia that he has someone who is
a drug dealer, the nervousness and all that stuff.
***
[A]bsent [Ace’s] alert, . . . I would not have
found probable cause. I would not have found []
Atlanta being a source city, the nervousness, the
airline[] tickets to be enough to get into the
[Honda]. So, this case rightly turns on Officer
Keightl[e]y and [] Ace.
App. 32
Not surprisingly[,] we have a divergence of
views and a difference of opinion as to what the
Court should consider to be credible. It will spoil
the ending when I tell you who[m] I find to be
the most credible witness. But I cannot analyze
this case without telling you who[m] I find to be
the most credible witness. Because[,] when I
discuss Officer Keightl[e]y, he [and Ace were]
certified at the time of the [traffic] stop and the
[dog] scan. And [Officer Keightley and Ace were]
certified on January 22[], 2014, and it was[ not]
until about a month after that [when they] lost
[their] certification, and it was[ not] too long
after that before the certification was restored to
[them].
[Officer Keightley] used all the proper
terminology[—]bracketing, focus sniffing,
response, et cetera. And [Officer Keightley] was
certified and qualified as an expert in this area.
And the Court has found [Officer Keightley]
credible, but that[ is] not necessarily the
ultimate finding because I have witnesses with
expertise [that is] vastly superior to his. And I
must analyze that before I can come back to
Keightl[e]y to determine whether he did
something [that] was proper or improper. I
found [Officer Keightley] credible[,] and I found
him [and Ace] to be certified[,] and I considered
his training as to be in compliance or not in
compliance with standard operating procedures.
This is a fuzzy area.
Sergeant [] Davis and [] Cox and [] Officer
McNerney presented different views of what the
App. 33
standard operating procedures should be. Each
department writes their own standard operating
procedures. Each department prepares their
own standard operating procedures. And each
department decides what their standard
operating procedures shall be so that their K-9
officers -- well, handlers, and the dogs and the
trainers are certified.
Sergeant Davis has a different view than []
Cox does of what the ultimate standards should
be, but there are standards in place. And []
Maryland has not ad[o]pted rigid standards. I
think that[ is] what Florida v[]. Harris[, 568 U.S.
237 (2013),] was telling us.
So, the question for the Court is, were those
standards that were in place appropriate? And
I think that they were. I find that there were.
Was there compliance with those standards?
That[ is] the second part of that issue. We have
to look at the hours, we have to look at the
[narcotic] aids, and we have to look at whether
or not the training was in compliance with the
standard operating procedures, and was there a
significant or serious enough deviation to say
that [Ace] or [Officer Keightley] was not
competent to provide the work in the field. And
we can analyze the 51 alerts, the 19 [false
alert]s. And we can analyze what it . . . was due
to[,] and the reasons behind it. We can look at
the extended time, the distance for the training
exercises, the staleness of the [narcotic] aids, et
cetera.
App. 34
And[,] to do that, the Court has to look to the
experts. And the experts are Sergeant [] Davis
and [] Cox. [] Cox is in a perilous position at
times[,] and I do think [that] he walked that
tightrope that he was presented appropriately.
I do not find that he strayed over any line. And
I think that his answers were credible in terms
of what he said and how he said it.
[Cox] and [] Officer McNerney are very close
in their views. They are good and fair in their
analysis. And while [Cox] is retired and [Officer
McNerney] is an active [law enforcement]
officer, they presented to the Court what
appeared to be their view of what the optimum
standards should be. . . . I am convinced that
there is dissension in the ranks. And I
think that some of this was an airing of
dirty laundry. But there appears to be
almost a[ “]they did[ not] do it today as I
did it then[“] view from [] Cox. And there
seemed to be from Officer McNerney,
[“]you[ are] not listening to me.[“] Having
said that, they[ are] both credible. There is
some bias, but they are credible and they
have presented credible testimony.
The Court will comment on Sergeant []
Davis. I find [Sergeant Davis] to be the most
credible witness . . . . I find [Sergeant
Davis’s] qualifications, her knowledge,
[and] her training and experience to be
impeccable. Again, I[ am] going to spoil the
ending, but I find her to be the most credible
witness[,] and it is she who[m] I rely upon the
App. 35
most and find to be the best and most
objective observer.
[Sergeant Davis’s] comments, and I hope
[that] I quote this correctly, have stuck with me
ever since she said it. And when I went over and
examined everything and everything over and
over and over again, I could not get this
comment out of my mind. [“Ace] knows the
odor[,] or he does[ not]. He can perform[,] or he
can[not.”] And[,] with that in mind, I find
[Sergeant Davis] to be a witness who has
no ties to th[is] case, neutral and unbiased
and has -- I find she has no issue with [Officer
Keightley] or [Ace]. And I find [Sergeant
Davis’s] analysis of the [traffic] stop and
[Ace]’s actions to be credible.
[Sergeant Davis] explains, . . . succinctly and
carefully and expansively at times[,] the issues
with [false alerts] or certification or protocols to
the satisfaction of the Court that I can find
Officer Keightl[e]y and [] Ace to be credible and
to be a certified [drug detection] dog that the
Court can rely upon for assessing whether or not
probable cause exist[ed]. When the Court
analyzes Sergeant Lamb’s observations,
comments, the [Drug Enforcement
Administration] tip with [Ace] or, which I find
credible, I find probable cause . . . to believe that
there is a reasonable probability and/or a fair
probability that contraband [would] be found in
[the Honda].
***
App. 36
I disagree with [] Officer McNerney and [] Cox
that there was no alert by [Ace]. I[ am] not an
expert. I must analyze it on the totality of the
circumstances. And I must rely upon the expert
testimony. And I find the most credible
expert to be Sergeant [] Davis. When she
broke the [traffic] stop down and she went,
“[]lead is tight to prevent [Ace] go in window,
shows dog [Ace] has independent intention from
[Officer Keightley]’s [in]tention. [Ace] insists to
go to driver’s [] door not once, two time[s].
Indicates target odor, get[s] to source. [Officer
Keightley] took control dog leash tight, not have
contact with civilian’s dog, excited, wants to
work. [Ace] obedience, stay, lose heel, not expect
indication.”
Then[,] when [Sergeant Davis] goes through
all of this[,] she concludes [that] there might
have been a little odor, there might have been a
lot of odor, but [Ace] alerted. And she concludes
that [Ace] committed, sat, held it nicely[, that]
there was no evidence of a false alert, [and] that
[Ace] was independent. [Officer Keightley] was
more of a distraction. [Ace] knew the odor, there
was no [] interference[ by Officer Keightley], no
cueing from [Officer Keightley]. There was an
obvious change of behavior, the head dip, the
bracketing, the focused sniffing. That[,] in
[Sergeant Davis’s] opinion[,] the competence
of [] Ace was that he was competent to
make [a] probable cause decision based
upon the training records, observing the
team personally[,] and reviewing the video.
App. 37
The Court accepts that[,] and the Court
finds that to be the most credible evidence
in the case.
(Emphasis added).
Conviction and Opinion of the
Court of Special Appeals
On July 7, 2015, 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. On August 4, 2015, Grimm noted an
appeal.
On April 26, 2017, the Court of Special Appeals
affirmed the conviction. See Grimm v. State, 232 Md.
App. 382, 386, 158 A.3d 1037, 1039 (2017). The Court
of Special Appeals held that an appellate court reviews
for clear error a trial court’s determination as to
whether a drug detection dog is reliable. See id. at 403,
158 A.3d at 1050. The Court of Special Appeals
explained:
Whether Ace was—at the time of the [dog]
scan of Grimm’s vehicle—a well-trained or
reliable [drug detection] dog, whose alerts could
be relied upon by Officer Keightley as indicating
that there was a fair probability that [Grimm’s]
vehicle contained one of illegal drugs [that] Ace
had been trained to detect, was a question of fact
[that was] properly committed to the
adjudicatory skill of the [trial court that] heard
the evidence [that was] 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
App. 38
extensive documentation in evidence regarding
a [drug detection] 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 [trial court that] hears the evidence,
and are best reviewed under a “clearly
erroneous” standard that gives deference to [the
trial court]’s superior opportunity to evaluate
credibility and weigh the evidence.
Id. at 403-04, 158 A.3d at 1050 (citations omitted).
Addressing the merits, the Court of Special Appeals
rejected Grimm’s contention that the circuit court
clearly erred in making certain findings of fact, such as
the circuit court’s finding that Sergeant Davis was the
most credible witness. Id. at 404-05, 158 A.3d at 105051. The Court of Special Appeals also rejected Grimm’s
assertion that, in light of alleged evidence of
deficiencies in Ace’s training, the circuit court clearly
erred in finding that Ace was reliable. See id. at 406-07,
158 A.3d at 1051-52. The Court of Special Appeals
observed that Ace and Officer Keightley were
decertified for only two days, and that Sergeant Davis
testified that she would not have decertified Ace and
Officer Keightley. See id. at 406-07, 158 A.3d at 1052.
The Court of Special Appeals rejected Grimm’s
contention that Officer Keightley and Ace were not
“meaningful[ly]” certified at the time of the dog scan of
his vehicle in April 2014, noting that Officer Keightley
and Ace had been certified in January 2014, and that
certifications are valid for six months. See id. at 407,
158 A.3d at 1052. The Court of Special Appeals rejected
Grimm’s argument that the video of the dog scan
App. 39
showed that Ace did not alert, as the circuit court
credited Sergeant Davis’s testimony that Ace alerted.
See id. at 407, 158 A.3d at 1052. The Court of Special
Appeals was unpersuaded by Grimm’s reliance on Cox’s
testimony that Ace had 44 false alerts in 179 training
scenarios, as Sergeant Davis analyzed a different time
period, found a much lower rate of false alerts, and
“testified that there was no particular amount of false
alerts that she would find unacceptable.” Id. at 407,
158 A.3d at 1052.8
Petition for Writ of Certiorari
and Cross-Petition
On June 15, 2017, Grimm filed a petition for a writ
of certiorari, raising the following two issues:
1. When a defendant challenges the
reliability of a drug-sniffing dog overall and the
reliability of the dog’s purported alert to the
possible presence of drugs in a vehicle driven by
the defendant, in accordance with [] Harris, 568
U.S. 237[], and the trial court rules that the
dog’s alert established probable cause to search
the vehicle, what is the applicable standard of
appellate review?
2. Whatever standard of appellate review
applies, did the [circuit] court err in ruling that
[law enforcement] had probable cause to search
the [Honda that was] driven by [Grimm]?
8
The Court of Special Appeals also held that the circuit court did
not err in admitting evidence that, on August 19, 2014, Ace was
recertified. See Grimm, 232 Md. App. at 410, 158 A.3d at 1054.
That issue is not before us.
App. 40
On June 30, 2017, the State filed a conditional crosspetition for a writ of certiorari, raising the following
issue: “Even if [law enforcement officers] did not
possess probable cause to search Grimm’s [Honda],
should this Court decline to apply the Fourth
Amendment’s exclusionary rule because the [law
enforcement officers] relied on Ace’s [] alert in objective
good faith?” On September 12, 2017, this Court granted
the petition and the conditional cross-petition. See
Grimm v. State, 456 Md. 54, 170 A.3d 290 (2017).
DISCUSSION
I.
The Parties’ Contentions
Grimm contends that the Court of Special Appeals
erred in reviewing for clear error the circuit court’s
determination that Ace was reliable, and argues that
the correct standard of review is de novo—i.e., without
deference. Grimm asserts that the appellate court must
review without deference the issue of whether a drug
detection dog is reliable because an appellate court
reviews without deference the issue of whether
probable cause existed. Grimm maintains that a trial
court is not better positioned than an appellate court to
determine whether a drug detection dog is reliable.
Grimm contends that the circuit court did not have an
advantage in assessing the expert testimony because
the experts’ credibility turned not on the experts’
demeanor, but rather on the plausibility and coherence
of the experts’ explanations of the relevant documents
and the recording of the traffic stop. Grimm argues
that it would be inappropriate to defer to the circuit
court’s determination of the experts’ credibility because
App. 41
the experts’ opinions essentially constituted opinions as
to whether probable cause existed.
Grimm maintains that, even if the circuit court had
an advantage in weighing the evidence, to maintain
control of the probable cause standard and satisfy the
Fourth Amendment, an appellate court must still
review without deference the circuit court’s
determination that Ace was reliable. Grimm contends
that, because there are no generally accepted standards
in Maryland regarding the training and certification of
drug detection dogs, appellate courts must provide
guidance to law enforcement agencies on the issue, and
review without deference would provide the
opportunity for such guidance. Grimm asserts that, if
appellate courts review trial courts’ reliability
determinations for clear error, then a drug detection
dog might be considered reliable in one county or one
courtroom, but not another. Grimm maintains that, in
Harris, 568 U.S. 237, the Supreme Court analyzed the
issue of whether a drug detection dog was reliable in a
manner that was consistent with review without
deference.
The State responds that an appellate court reviews
a determination of probable cause in the same manner
in all warrantless search cases, regardless of whether
a law enforcement officer or a drug detection dog
detected an odor of controlled dangerous substances.
The State contends that an appellate court reviews for
clear error a trial court’s findings of fact, and reviews
without deference the ultimate question of whether
probable cause existed. The State argues that the
relevant finding of fact is whether a drug detection dog
detected an odor of controlled dangerous substances.
App. 42
The State asserts that, just as an appellate court defers
to a trial court’s finding that a law enforcement officer
was credible in testifying that he or she smelled
marijuana emanating from a vehicle, an appellate court
defers to a trial court’s factual finding that a drug
detection dog smelled drugs. The State maintains that
the only difference in a case that involves a drug
detection dog is that the State must prove that the
drug detection dog smelled drugs through
circumstantial evidence, such as the drug detection
dog’s training and performance in the field. The State
argues that, in Harris, the Supreme Court applied the
well-established standard of review of a determination
of probable cause, and did not apply a different
standard of review because a drug detection dog, rather
than a law enforcement officer, detected drugs.
Law
In Miller, 474 U.S. at 105, 110, the Supreme Court
held that the issue of whether a confession was
voluntary was a legal question, not a factual question
that was entitled to the presumption of correctness
that was afforded to State court factual findings under
what was then 28 U.S.C. § 2254(d). The Supreme Court
concluded that there was no support for the position
that the enactment of what was then 28 U.S.C.
§ 2254(d) in 1966 altered the Court’s prior cases
holding that the issue of voluntariness is a legal
question. See id. at 111. In Miller, id. at 106-07, while
interviewing a defendant, a law enforcement officer
made false statements and “stated that he did not
consider [the defendant] to be a criminal because the
perpetrator of the [murder] had a ‘mental problem[,]’
and needed medical help rather than punishment.” The
App. 43
defendant confessed, and was convicted. See id. at 10708. The defendant appealed, contending that his
confession was involuntary. See id. at 108. A State
supreme court determined that the defendant’s
confession was voluntary. See id.
Later, the defendant petitioned for a writ of habeas
corpus. See id. The United States District Court for the
District of New Jersey dismissed the petition, and the
United States Court of Appeals for the Third Circuit
affirmed, concluding that the District Court’s dismissal
of the petition was proper because the issue of whether
a confession was voluntary was a factual question. See
id. The Court of Appeals concluded that the habeas
proceeding was governed by what was then 28 U.S.C.
§ 2254(d), which stated in pertinent part: “In any
proceeding instituted in a Federal Court by an
application for writ of habeas corpus by a person in
custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction
shall be presumed to be correct[.]” Id. at 108, 105 n.1.9
The Supreme Court reversed, explaining that its
precedent established that “the ultimate issue of
voluntariness is a legal question requiring independent
federal determination.” Id. at 109-10 (cleaned up). In
other words, the Supreme Court “was not bound by a
9
28 U.S.C. § 2254(d) is now codified at 28 U.S.C. § 2254(e)(1),
which states, in pertinent part: “In a proceeding instituted by an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a
factual issue [that is] made by a State court shall be presumed to
be correct.”
App. 44
[S]tate-court voluntariness finding[,]” and had a
“historic duty to make an independent evaluation of the
record.” Id. at 110 (cleaned up). The Court
acknowledged that “subsidiary factual questions, such
as whether a drug has the properties of a truth serum,
or whether in fact [law enforcement officers] engaged
in the intimidation tactics [that are] alleged by [a]
defendant, are entitled to the [28 U.S.C.] § 2254(d)
presumption.” Id. at 112 (citations omitted). The Court,
however, reiterated that “the ultimate question
whether, under the totality of the circumstances, the
challenged confession was obtained in a manner
compatible with the requirements of the Constitution
is a matter for independent federal determination.” Id.
at 112.
The Court observed that “the appropriate
methodology for distinguishing questions of fact from
questions of law has been, to say the least, elusive.” Id.
at 113 (citations omitted). The Court distinguished
factual questions from legal questions as follows:
Perhaps much of the difficulty in this area
stems from the practical truth that the decision
to label an issue a “question of law,” a “question
of fact,” or a “mixed question of law and fact” is
sometimes as much a matter of allocation as it is
of analysis. At least in those instances in which
Congress has not spoken[,] and in which the
issue falls somewhere between a pristine legal
standard and a simple historical fact, the
fact/law distinction at times has turned on a
determination that, as a matter of the sound
administration of justice, one judicial actor
is better positioned than another to decide
App. 45
the issue in question. Where, for example, as
with proof of actual malice in First Amendment
libel cases, the relevant legal principle can be
given meaning only through its application to
the particular circumstances of a case, the Court
has been reluctant to give the trier of fact’s
conclusions presumptive force and, in so doing,
strip a federal appellate court of its primary
function as an expositor of law. . . .
[By] contrast, other considerations often
suggest the appropriateness of resolving close
questions concerning the status of an issue as
one of “law” or “fact” in favor of extending
deference to the trial court. When, for
example, the issue involves the credibility
of witnesses[,] and therefore turns largely
on an evaluation of demeanor, there are
compelling and familiar justifications for
leaving the process of applying law to fact
to the trial court and according its
determinations presumptive weight.
Id. at 113-14 (emphasis added) (citations omitted).
Significantly, the Court stated that “an issue does not
lose its factual character merely because its resolution
is dispositive of the ultimate constitutional question.”
Id. at 113 (citation omitted).
In Ornelas v. United States, 517 U.S. 690, 691
(1996), the Supreme Court held that the ultimate
questions of reasonable suspicion and probable cause
are to be reviewed de novo. The Supreme Court stated
that the “principal components” of the inquiry are a
determination of the events leading up to the stop or
search, and a determination of whether these
App. 46
“historical facts” viewed from the standpoint of an
objectively reasonable officer give rise to reasonable
suspicion or probable cause. Id. at 696. In Ornelas, id.
at 691-92, a law enforcement officer observed a twodoor General Motors vehicle with California license
plates in the parking lot of a motel in Milwaukee. The
vehicle “attracted [the officer]’s attention . . . because
older model, two-door General Motors [vehicle]s are a
favorite [among] drug couriers [as] it is easy to hide
things in them; and because California is a ‘source
State’ for drugs.” Id. at 692. The officer radioed a
dispatcher, and learned that the vehicle’s registered
owner was one of the two defendants. See id. The
officer also learned that, at 4 a.m., the other defendant,
accompanied by another man, had checked into the
hotel without a reservation. See id.
The officer and his partner contacted the Drug
Enforcement Administration, and learned that,
according to the Narcotics and Dangerous Drugs
Information System, one of the defendants was a
heroin dealer from California, while the other
defendant was a cocaine dealer from Arizona. See id.
The officers summoned a drug detection dog and his
handler; however, no dog scan of the vehicle occurred.
See id. The defendants left the motel and entered the
vehicle. See id. One of the officers approached the
vehicle, identified himself, and asked whether the
defendants had any drugs or other contraband. See id.
The defendants responded: “No.” Id. The officer asked
for, and received, the defendants’ identification. See id.
at 692-93. The officer asked for permission to search
the vehicle, and the defendants consented. See id. at
693. Another officer—who had searched approximately
2,000 vehicles for drugs—searched the vehicle, and
App. 47
noticed that a panel above the passenger-side backseat
armrest felt somewhat loose. See id. According to the
officer, a screw in the doorjamb that was next to the
panel was rusty, indicating that it had been removed at
some point. See id. The officer dismantled the panel,
and found cocaine inside. See id.
The defendants moved to suppress the cocaine,
contending that the officers violated the Fourth
Amendment by detaining them in the motel’s parking
lot and searching the vehicle’s panel without a
warrant. See id. The government conceded that the
officers initiated an investigatory stop when they
approached the defendants. See id. A magistrate judge
determined that the officers had reasonable suspicion
to initiate the investigatory stop, but lacked probable
cause to search the vehicle. See id. at 694. The United
States District Court for the Eastern District of
Wisconsin determined that the officers had both
reasonable suspicion to initiate the investigatory stop
and probable cause to search the vehicle, and concluded
that “reasonable suspicion became probable cause
when [the officer] found the loose panel.” See id. The
United States Court of Appeals for the Seventh Circuit
concluded that it would reverse “the District Court’s
determinations of reasonable suspicion and probable
cause . . . only upon a finding of ‘clear error.’” Id.
(cleaned up). The Court of Appeals reasoned that the
District Court’s determination of reasonable suspicion
was not clearly erroneous, but remanded for a
determination of whether the officer was credible in
testifying about the panel. See id. at 695. On remand,
the magistrate judge expressly found the officer’s
testimony credible, and the District Court again
determined that probable cause existed. See id. The
App. 48
Court of Appeals affirmed, reasoning that the District
Court’s determination of probable cause was not clearly
erroneous. See id.
Significantly, the Supreme Court reversed and
remanded the case to the Court of Appeals with
instructions to review the District Court’s
determinations of reasonable suspicion and probable
cause without deference. See id. at 700. The Supreme
Court distinguished factual questions from legal
questions, in the context of determinations of probable
cause and reasonable suspicion, as follows:
The principal components of a determination
of reasonable suspicion or probable cause will be
the events [that] occurred leading up to the stop
or search, and then the decision whether these
historical facts, viewed from the standpoint of an
objectively reasonable [law enforcement] officer,
amount to reasonable suspicion or to probable
cause. The first part of the analysis involves only
a determination of historical facts, but the
second is a mixed question of law and fact: The
historical facts are admitted or established, the
rule of law is undisputed, and the issue is
whether the facts satisfy the relevant statutory
or constitutional standard, or[,] to put it another
way, whether the rule of law[,] as applied to the
established facts[,] is or is not violated.
Id. at 696-97 (cleaned up). The Supreme Court also
discussed “background facts” as follows:
A trial [court] views the facts of a particular
case in light of the distinctive features and
events of the community; likewise, a police
App. 49
officer views the facts through the lens of his
police experience and expertise. The background
facts provide a context for the historical facts,
and when seen together yield inferences that
deserve deference. For example, what may not
amount to reasonable suspicion at a motel
located alongside a transcontinental highway at
the height of the summer tourist season may
rise to that level in December in Milwaukee.
That city is unlikely to have been an overnight
stop selected at the last minute by a traveler
coming from California to points east. The 85mile width of Lake Michigan blocks any further
eastward progress. And while the city’s
salubrious summer climate and seasonal
attractions bring many tourists at that time of
year, the same is not true in December.
Milwaukee’s average daily high temperature in
that month is 31 degrees and its average daily
low is 17 degrees; the percentage of possible
sunshine is only 38 percent. It is a reasonable
inference that a Californian stopping in
Milwaukee in December is either there to
transact business or to visit family or friends.
The background facts, though rarely the subject
of explicit findings, inform the [trial court]’s
assessment of the historical facts.
Id. at 699.
The Supreme Court observed that it had never
expressly deferred to a trial court’s determination of
reasonable suspicion or probable cause. See id. at 697.
The Supreme Court stated that, “as a general matter[,]
determinations of reasonable suspicion and probable
App. 50
cause should be reviewed [without deference] on
appeal.” Id. at 699. The Supreme Court, however,
“hasten[ed] to point out that a[n appellate] 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 [trial court]s and local law
enforcement officers.” Id. The Court directed that an
appellate “court should give due weight to a trial
court’s finding that [an] officer was credible and [that]
the inference was reasonable.” Id. at 700.
In Harris, 568 U.S. at 250, the Supreme Court held
that a law enforcement officer had probable cause to
search a defendant’s vehicle where “training records
established [a drug detection dog]’s reliability in
detecting drugs[,] and [the defendant] failed to
undermine that showing[.]” Unlike in Ornelas, 517 U.S.
at 691, in Harris, 568 U.S. 237, the Supreme Court was
not required to address the applicable standard of
review of a probable cause determination. Nor was the
Supreme Court in Harris required to address whether
the issue of a drug detection dog’s reliability is a
question of fact or law. In upholding the trial court’s
determination that a law enforcement officer had
probable cause to search a defendant’s truck, the
Supreme Court explained that a law enforcement
“officer has probable cause to conduct a search when
the facts [that are] available to [the officer] would
warrant a person of reasonable caution in the belief
that contraband or evidence of a crime is present.” Id.
at 243 (cleaned up). The Supreme Court stated that
“evidence of a [drug detection] dog’s satisfactory
performance in a certification or training program can
itself provide sufficient reason to trust his [or her]
alert.” Id. at 246.
App. 51
In Harris, id. at 240, a law enforcement officer was
on a patrol with a drug detection dog who had been
trained to detect marijuana, cocaine, heroin, ecstasy
and methamphetamine. The officer initiated a traffic
stop of the defendant’s vehicle due to an expired license
plate. See id. The officer observed that the defendant
“was ‘visibly nervous,’ unable to sit still, shaking, and
breathing rapidly.” Id. The officer walked the drug
detection dog around the defendant’s vehicle, and the
drug detection dog alerted to the driver’s side door
handle. See id. The officer searched the defendant’s
vehicle, and did not find any drugs; however, the officer
found multiple ingredients for making
methamphetamine, including pseudoephedrine pills.
See id. at 240-41. The officer arrested the defendant,
who admitted that he routinely made
methamphetamine, and that he could not go for more
than a few days without using methamphetamine. See
id. at 241. After the defendant was released on bail, the
officer initiated another traffic stop of the defendant’s
vehicle due to a broken brake light. See id. The drug
detection dog performed another scan, and alerted to
the driver’s side door handle again; however, the officer
did not find anything of interest while searching the
defendant’s vehicle. See id. The State of Florida
charged the defendant with possession of
pseudoephedrine for use in manufacturing
methamphetamine. See id.
The defendant moved to suppress the evidence
found in his vehicle, contending that the drug detection
dog’s alert did not provide the officer with probable
cause to search the defendant’s vehicle. See id. At the
hearing on the motion to suppress, the officer testified
that, approximately two years before the traffic stops
App. 52
in Harris, the officer and a different drug detection dog
completed a 160-hour course in drug detection. See id.
With a different officer, the drug detection dog in
Harris completed a 120-hour course in drug detection,
and the drug detection dog received a certification—
valid for one year—from a company that tested and
certified drug detection dogs. See id. The following
year, the drug detection dog and the officer became a
team, and completed a 40-hour refresher course. See id.
For four hours a week, the officer trained the drug
detection dog by hiding drugs in certain vehicles or
buildings, but not others, to determine whether the
drug detection dog alerted to the drugs’ locations. See
id. The officer testified the drug detection dog’s
performance during training was “really good.” Id. The
drug detection dog’s training records demonstrated
that he always found hidden drugs, and that he
performed satisfactorily on each day of training. See id.
at 241-42. The officer testified that, although there
were no drugs in the defendant’s vehicle during either
traffic stop, the drug detection dog alerted both times
because the defendant had likely transferred a
“residual odor” of methamphetamine to the driver’s
side door handle. See id. at 242.
While cross-examining the officer, the defendant’s
counsel did not challenge the officer’s and the drug
detection dog’s training. See id. The officer
acknowledged that the drug detection dog’s
certification had expired the year before the traffic
stops, but noted that Florida law did not require drug
detection dogs to be certified. See id. The officer
acknowledged that he made field reports only when the
drug detection dog’s alert resulted in an arrest. See id.
App. 53
The trial court denied the motion to suppress,
determining that the officer had probable cause to
search the defendant’s truck. See id. The Florida First
District Court of Appeal affirmed. See id. The Supreme
Court of Florida reversed, reasoning that, when a drug
detection dog alerts, “the fact that the [drug detection]
dog has been trained and certified is simply not enough
to establish probable cause.” Id. (cleaned up). The
Supreme Court of Florida concluded that the State of
Florida needed to produce
the [drug detection] dog’s training and
certification records, an explanation of the
meaning of the particular training and
certification, field performance records
(including any unverified alerts), and evidence
concerning the experience and training of the
officer handling the [drug detection] dog, as well
as any other objective evidence known to the
officer about the [drug detection] dog’s
reliability.
Id. at 242-43 (cleaned up).
The Supreme Court of the United States reversed,
concluding that the Florida Court’s requirement of a
particular set of records was “inconsistent with the
flexible, common[]sense standard of probable cause.”
Id. at 250, 240 (cleaned up). The Supreme Court
determined that the Florida Court had “flouted th[e]
established approach to determining probable cause”
by “creat[ing] a strict evidentiary checklist, whose
every item the State must tick off.” Id. at 244 (footnote
omitted). The Supreme Court critiqued the Florida
Court’s creation of a checklist as follows:
App. 54
Most prominently, an alert cannot establish
probable cause under the Florida [C]ourt’s
decision unless the State introduces
comprehensive documentation of the [drug
detection] dog’s prior “hits” and “misses” in the
field. (One wonders how the [Florida C]ourt
would apply its test to a rookie [drug detection]
dog.) No matter how much other proof the State
offers of the [drug detection] 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. at 244-45.
The Supreme Court explained that the Florida
Court’s reasoning was also flawed because that Court
had “treat[ed] records of a [drug detection] dog’s field
performance as the gold standard in evidence, when[,]
in most cases[,] they have relatively limited import.” Id.
at 245. The Supreme Court noted that field reports
usually do not reflect a drug detection dog’s false
negatives—i.e., the drug detection dog’s failure to alert
where drugs are present—because, generally, a search
does not ensue in such scenarios. See id. The Supreme
Court observed that field reports “may markedly
overstate a [drug detection] dog’s” false alerts, given
that, when a drug detection dog falsely alerts, the drug
detection dog “may not have made a mistake at all”
because the drug detection “dog may have detected
substances that were too well[-]hidden[,] or present in
quantities too small for [a law enforcement] officer to
locate. Or the [drug detection] dog may have smelled
the residual odor of drugs [that were] previously in the
vehicle or on the driver’s person.” Id. at 245-46
App. 55
(footnote omitted). The Supreme Court explained that,
accordingly, in contrast to field reports, training
records are “[t]he better measure of a [drug detection]
dog’s reliability” because they result from “controlled
testing environments” in which it is known “where
drugs are hidden and where they are not[.]” Id. at 246
(footnote omitted).
In this context, the Supreme Court stated that
“evidence of a [drug detection] dog’s satisfactory
performance in a certification or training program can
itself provide sufficient reason to trust his [or her]
alert.” Id. The Court provided examples of such
evidence of a drug detection dog’s satisfactory
performance as follows:
If a bona fide organization has certified a [drug
detection] dog after testing his [or her] reliability
in a controlled setting, a court can presume
(subject to any conflicting evidence offered) that
the [drug detection] dog’s alert provides probable
cause to search. The same is true, even in the
absence of formal certification, if the [drug
detection] dog has recently and successfully
completed a training program that evaluated his
[or her] proficiency in locating drugs.
Id. at 246-47.
The Supreme Court added, however, that a
defendant “must have an opportunity to challenge such
evidence of a [drug detection] dog’s reliability, whether
by cross-examining the testifying officer[,] or by
introducing his [or her] own fact or expert witnesses.”
Id. at 247. The Supreme Court provided examples of
App. 56
ways in which a defendant may challenge a drug
detection dog’s reliability as follows:
The defendant . . . 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 [drug detection] dog (or
handler) performed in the assessments made in
those settings. Indeed, evidence of the [drug
detection] dog’s (or handler’s) history in the
field, although susceptible to . . .
misinterpretation . . . , may sometimes be
relevant[.] . . . And even assuming [that] a [drug
detection] dog is generally reliable, [the]
circumstances surrounding a particular alert
may undermine the case for probable cause—if,
say, the officer cued the [drug detection] dog
(consciously or not), or if the team was working
under unfamiliar conditions.
Id.
In conclusion, the Supreme Court stated:
[A] probable[ ]cause hearing focusing on a
[drug detection] 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 [drug detection]
dog performs reliably in detecting drugs,
App. 57
and the defendant has not contested that
showing, then the court should find
probable cause. If, [by] contrast, the
defendant has challenged the State’s case
(by disputing the reliability of the [drug
detection] 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 [] Supreme Court [of
Florida] did, an inflexible set of evidentiary
requirements. The question—similar to every
inquiry into probable cause—is whether all the
facts surrounding a [drug detection] 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 247-48 (emphasis added).
Notably, in evaluating the case, the Supreme Court
held that “[t]he record in this case amply
supported the trial court’s determination that
[the drug detection dog]’s alert gave [the officer]
probable cause to search [the defendant]’s truck.”
Id. at 248 (emphasis added). Specifically, the Supreme
Court observed that the State had produced
“substantial evidence of [the drug detection dog]’s
training and his proficiency in finding drugs.” Id. And,
the officer testified, and the drug detection dog’s
training “records confirmed, that [the drug detection
dog] always performed at the highest level” during
training. Id. The Supreme Court concluded that the
drug detection dog’s completion of two recent courses in
App. 58
drug detection, as well as his weekly training, “sufficed
to establish [the drug detection dog]’s reliability”—
“with or without the prior certification[.]” Id. at 249. As
to the ultimate issue of probable cause, the Supreme
Court concluded that the officer “had good cause to
view [the drug detection dog] as a reliable detector of
drugs. And no special circumstance here gave [the
officer] reason to discount [the drug detection dog]’s
usual dependability[,] or distrust his response to [the
defendant]’s truck.” Id. at 249-50.
The Supreme Court noted that the defendant had
not challenged the drug detection dog’s training in the
trial court, and thus could not do so for the first time on
appeal. See id. at 248-49. The Supreme Court
concluded that the defendant’s cross-examination of the
officer, “which focused on [the drug detection dog]’s
field performance, failed to rebut the State’s case.” Id.
at 249. The Supreme Court was unpersuaded by the
defendant’s reliance in the trial court on the drug
detection dog’s false alerts during the traffic stops in
Harris. See id. The Supreme Court reiterated that it
was inappropriate to “infer[] too much from” a false
alert. Id. The Supreme Court further explained that
the drug detection dog’s false alerts were likely due to
odors that the defendant had transferred to the driver’s
side door handle, as the defendant regularly made and
used methamphetamine. See id. The Supreme Court
stated: “A well-trained drug-detection dog should alert
to such odors; his [or her] response to them might
appear a mistake, but in fact is not. And still more
fundamentally, we do not evaluate probable cause in
hindsight, based on what a search does or does not turn
up.” Id. (emphasis in original) (citations omitted).
App. 59
Analysis
Here, we conclude 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; i.e., the standard of review as to the
issue of probable cause to search based on a drug
detection dog’s alert is de novo. A determination of
probable cause involves a two-step process. First, a
court must 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 to search. We conclude
that the issue of a drug detection dog’s reliability is a
factual question, specifically, a question involving a
background fact that falls somewhere between a clear
legal issue and a simple fact. Accordingly, an appellate
court reviews for clear error a trial court’s finding as
whether a drug detection dog is, or is not, reliable.
We begin by discussing how to distinguish factual
questions from legal questions. Generally, where an
issue falls between a pristine legal question and a
factual matter, the issue is treated as a factual
question where a trial court “is better positioned than
[an appellate court] to decide the issue[.]” Miller, 474
U.S. at 114. And, an issue is a factual question where
“the issue involves the credibility of witnesses[,] and
therefore turns largely on an evaluation of
demeanor[.]” Id. By contrast, generally, 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.
App. 60
at 697 (quoting Miller, 474 U.S. at 114) (internal
quotation marks omitted).
Even where an issue is a legal question, the issue
may involve “subsidiary factual questions[.]” Miller,
474 U.S. at 112. For example, although the issue of
whether a defendant’s confession was voluntary is a
legal question, the issue involves the following
“subsidiary factual questions”: the interrogation’s
“length and circumstances”; “the defendant’s prior
experience with the legal process, and familiarity with
the Miranda warnings”; whether the defendant took a
drug that had “the properties of a truth serum”; and
whether law enforcement officers “engaged in []
intimidation tactics[.]” Id. at 110, 112, 117 (citations
omitted). Similarly, although the issue of whether
probable cause for a search exists is a legal question,
the issue may involve both “historical facts” and
“background facts[.]” Ornelas, 517 U.S. at 691, 700.
Historical facts are the events that give rise to a case—
e.g., the fact that a car with California license plates
was parked in the parking lot of a motel in Milwaukee.
See id. at 691-92. Meanwhile, background facts include
generally-known circumstances that may be relevant to
a case—for example, the fact that a person who is
traveling from California to points east is “unlikely” to
choose to stay overnight in Milwaukee. Id. at 699. In
describing background facts, the Supreme Court stated
that “a police officer views the facts through the lens of
his police experience and expertise[,]” and “[t]he
background facts provide a context for the historical
facts[.]” Id.
Although the ultimate issue of whether probable
cause existed is a legal question, resolution of the issue
App. 61
may involve the determination of factual questions. We
are convinced that an issue as to a drug detection dog’s
reliability is one such factual question. Much like
whether a law enforcement officer has the experience
and expertise to detect the odor of a controlled
dangerous substance, the issue of whether a drug
detection dog is reliable, i.e., has the requisite training
and experience to be reliable, is a factual question. The
actual detection of an odor of a controlled dangerous
substance by a law enforcement officer and a drug
detection dog’s alert to the odor of a controlled
dangerous substance in a vehicle are historical facts,
i.e., events that occur leading up to a warrantless
search. By contrast, the experience and expertise of a
law enforcement officer and the training and field
performance by a drug detection dog are background
facts, i.e., general “facts [that] provide a context for the
historical facts, and when seen together yield
inferences that deserve deference.” Ornelas, 517 U.S.
at 699. A background fact may range from a
circumstance that is generally known, such as the
weather on a particular day, to a fact involving a law
enforcement officer’s knowledge based on his
experience and expertise. A drug detection dog’s alert
and reliability are critical facts in the probable cause
determination. As such, it cannot be said that, when
disputed, a drug detection dog’s reliability is a simple
background fact. Rather, it is a background fact, the
determination of which largely informs the
determination of probable cause based on a drug
detection dog’s alert. Both historical and background
facts, including those that fall between a clear legal
issue and simple fact, are reviewed for clear error.
App. 62
Plainly, a trial court is better positioned than an
appellate court to determine whether a drug detection
dog is reliable. This is because the issue of a drug
detection dog’s reliability requires a trial court to,
among things, assess the credibility of witnesses; to
review, where available, a recording of the drug
detection dog’s scan; to determine the weight to be
given documentary evidence, such as the drug detection
dog’s training records, field reports, and certifications;
to consider the qualifications of any experts, and assess
their credibility and opinions about the evidence; and
to determine whether, under the totality of the
circumstances, the drug detection dog is reliable.
The circumstances of this case demonstrate that a
trial court is better-equipped than an appellate court to
determine a drug detection dog’s reliability. The circuit
court admitted into evidence a recording of the traffic
stop from the dashboard camera in Sergeant Lamb’s
vehicle. With the recording, both the circuit court and
the expert witnesses were able to view the entirety of
Ace’s scan of the Honda. The recording was played
during the testimony of both Sergeant Davis, one of the
State’s experts, and Cox, one of Grimm’s experts.
Sergeant Davis and Cox pointed out and explained
various events in the recording, such as the
circumstance that Ace was barking before Officer
Keightley commanded him to search. Sergeant Davis
testified that Ace’s barking was simply a sign that he
was “still a little bit excited[,]” and explained that
Officer Keightley calmed Ace before commanding him
to search. By contrast, Cox opined that a dog barking
excessively may cause a loss of energy and affect the
dog’s performance. Although we have access to both the
recording and a transcript of Sergeant Davis’s and
App. 63
Cox’s testimony, we lack the circuit court’s ability to
view the recording simultaneously with Sergeant Davis
and Cox, with them making observations about the
recording while testifying.
The circuit court properly made determinations as
to the expert witnesses’ credibility. Just as the expert
witnesses had conflicting interpretations of the events
in the recording, so, too, did the expert witnesses have
conflicting interpretations of other evidence. For
example, the evidence showed that, on May 17, 2014—
nearly a month after the traffic stop on April 19, 2014
—pursuant to Officer McNerney’s recommendation,
Officer Keightley and Ace were decertified as a result
of an issue with regard to the calculation of the number
of Ace’s training hours. As one of Grimm’s experts,
Officer McNerney testified that he recommended that
Officer Keightley and Ace be decertified because,
according to Ace’s training records, he was not trained
the sixteen hours a month that was required for
certification. By contrast, Sergeant Davis testified that
she would not have decertified Ace on that basis, as his
“skills . . . were not affected one iota by the way” in
which his training hours were calculated. Sergeant
Davis testified that the issue with regard to how the
number of hours of Ace’s training was calculated did
not affect Officer Keightley’s and Ace’s January 22,
2014 certification, explaining: “Either [Ace] knows the
odors[,] or he does[ not]. And he can perform, or he
cannot.” The circuit court expressly found credible
Sergeant Davis’s opinion about the issue of calculating
the number of hours of Ace’s training, stating: “[W]hen
I went over and examined everything and everything
over and over and over again, I could not get this
comment out of my mind. [‘Ace] knows the odor[,] or he
App. 64
does[ not]. He can perform[,] or he can[not.’]” Although
the record includes, among other things, documentary
evidence and a transcript of the expert witnesses’
testimony, we lack the circuit court’s ability to consider
the evidence with the benefit of observing the expert
witnesses’ demeanor and level of certainty while
testifying.
The circuit court was better positioned to determine
the expert witnesses’ credibility and whether the
expert witnesses displayed demeanors that were
indicative of bias. Here, the circuit court expressly
found Sergeant Davis “to be the most credible
witness[,]” and found that she was “neutral and
unbiased” and had “no ties to th[is] case[.]” By contrast,
although the circuit court deemed Cox and Officer
McNerney also credible, the circuit court found that
they had “some bias”; that “there [was] dissension in
the ranks”; and that, while testifying, Cox and Officer
McNerney “air[ed] dirty laundry.” In one instance,
Officer McNerney testified that “it was tough” to train
dogs in both explosive detection and drug detection,
and that he “went to command and asked to make that
a full-time position due to the fact that [he] was being
detailed out[,]” but his request was denied. In a similar
vein, Cox testified, with regard to the circumstance
that the Maryland Transportation Authority Police K-9
Standard Operating Procedures did not require
analysis of the purity of narcotic aids: “I wish [that] I
could speak about the steps and measures that I took
[] to try to clear this up, but I[ am] not allowed to[.]”
Cox also testified at one point that he thought Officer
Keightley was “basically, just like a rogue police.”
Because an appellate court can only read a transcript,
rather than see and hear testimony firsthand, the
App. 65
appellate court lacks the circuit court’s ability to assess
the witness’s attitude and demeanor, which may be
indicative of bias and is relevant to a credibility
determination.
Contrary to Grimm’s assertions, a trial court may
properly assess an expert witness’s credibility, and
make decisions based on its impression of an expert
witness’s credibility. In Smallwood v. State, 451 Md.
290, 309 n.15, 152 A.3d 776, 786 n.15 (2017), this Court
rejected a defendant’s contention that this Court
should review a trial court’s ruling on a petition for a
writ of actual innocence under the de novo standard of
review, as opposed to the abuse of discretion standard
of review. This Court concluded that the correct
standard of review was abuse of discretion because,
“[u]nder well-established rules of appellate review, this
Court is not a fact-finder, and we cannot set aside the
[trial court]’s credibility assessments of [the
defendant’s psychiatric expert]’s and [the State’s
psychiatric expert]’s respective testimony.” Id. at 309
n.15, 152 A.3d at 786 n.15 (emphasis added). Thus, in
Smallwood, id. at 309 n.15, 152 A.3d at 786 n.15, this
Court not only indicated that a trial court may assess
an expert’s credibility, but also determined that such a
credibility assessment is entitled to deference.
Consistently, in various instances, this Court has
referred to the “credibility” of expert witnesses. See,
e.g., Falik v. Hornage, 413 Md. 163, 178, 991 A.2d
1234, 1243 (2010) (“Obviously, a party has a strong
interest in the fact-finder’s assessment of the
credibility of its expert witnesses. . . . [T]he fact that an
expert witness is being paid to testify may bear on his
or her credibility and may be revealed through cross-
App. 66
examination.” (Citations omitted)); McGhie v. State,
449 Md. 494, 512, 144 A.3d 752, 763 (2016) (“[W]hen an
expert is called to testify, it is conceivable that, based
on the cumulative body of evidence [that is] presented
at a given trial, falsity regarding the expert’s credibility
and qualifications might create a substantial or
significant possibility that the result may have been
different.” (Cleaned up)); Derr v. State, 434 Md. 88,
134, 73 A.3d 254, 281 (2013) (“The [jury] instructions
[that were] given sufficiently protected [the
defendant]’s right to have the jury judge the credibility
of all the evidence[,] including [the] testimony[ of an
expert in forensic serology and forensic DNA
analysis].”).
In addition to the circuit court being in a superior
position to determine Ace’s reliability, our conclusion is
supported by the Supreme Court’s holding in Harris,
568 U.S. at 248-50, in which the Supreme Court
essentially followed the two-step process for appellate
review of the issue of probable cause set forth in
Ornelas, 517 U.S. at 696-97, 699-700—namely,
(1) identifying all of the relevant historical facts that
were known to the officer at the time of the search, and
(2) determining whether those facts give rise to
probable cause to search. In Harris, id. at 249, the
Supreme Court determined that the drug detection
dog’s completion of two recent courses in drug
detection, and his weekly training, sufficed to establish
the drug detection dog’s reliability. Next, the Court
determined that the officer “had good cause to view”
the drug detection dog as reliable, and that there were
no circumstances that gave the officer reason to
discount the drug detection dog’s reliability. Id. at 24950. The Supreme Court determined the factual
App. 67
question of the drug detection dog’s reliability, and
then, under the totality of the circumstances,
determined the issue of probable cause. See id.
Indeed, in Harris, id. at 248, the Supreme Court
stated: “The record in this case amply supported
the trial court’s determination that [the drug
detection dog]’s alert gave [the officer] probable cause
to search [the defendant]’s truck.” (Emphasis added).
The Supreme Court’s use of the language “[t]he record
in this case amply supported the trial court’s
determination” would have had no meaning if the
Court were reviewing the trial court’s reliability
determination without deference. To the contrary, this
language indicates that the Supreme Court viewed the
trial court’s reliability determination as a finding of
fact, which would be upheld if it were supported by the
record. See Cooper v. Harris, ___ U.S. ___, 137 S. Ct.
1455, 1465 (2017) (“[F]indings of fact . . . are subject to
review only for clear error. . . . A finding that is
plausible in light of the full record—even if another is
equally or more so—must govern.” (Cleaned up)). The
language in the Supreme Court’s holding in Harris, 568
U.S. at 248, is telling. The Supreme Court’s language
is consistent with the conclusion that the trial court’s
reliability determination was not a conclusion of law,
but instead was a finding of fact—i.e., a resolution of
one of the factual questions involved in the issue of
determining whether probable cause existed.
Our conclusion that a trial court’s reliability
determination is a finding of fact is supported not only
by manner in which the Supreme Court phrased its
holding in Harris, but also by the manner in which the
Supreme Court reviewed the trial court’s
App. 68
determinations. Instead of re-weighing the evidence or
independently determining the credibility of the officer
who handled the drug detection dog, the Supreme
Court summarized the evidence of the drug detection
dog’s training and his proficiency in finding drugs. See
id. at 248-49. The Supreme Court concluded that the
drug detection dog’s completion of two recent courses in
drug detection, as well as his weekly training, “sufficed
to establish [the drug detection dog]’s reliability.” Id. at
249 (citation omitted). The Supreme Court stated that
the defendant had not challenged the drug detection
dog’s training in the trial court, and determined that
the defendant “failed to undermine” the circumstance
that the drug detection dog’s training records
established his reliability. Id. at 249-50. The Supreme
Court explained that “evidence of a [drug detection]
dog’s satisfactory performance in a certification or
training program can itself provide sufficient reason to
trust his [or her] alert.” Id. at 246. The Supreme Court
specifically stated that, “[i]f a bona fide organization
has certified a [drug detection] dog after testing his
reliability in a controlled setting, a court can presume
(subject to any conflicting evidence offered) that the
[drug detection] dog’s alert provides probable cause to
search.” Id. at 246-47. This analysis is a strong
indication that the Supreme Court viewed the trial
court’s reliability determination as a factual
determination, to be upheld as long as it was “plausible
in light of the full record[.]” Cooper, 137 S. Ct. at 1465
(cleaned up).
It is also worth noting that, in critiquing the Florida
Court’s creation of “a strict evidentiary checklist,” the
Supreme Court stated that the Florida Court had done
“the very thing” that the Supreme Court had “criticized
App. 69
in” Illinois v. Gates, 462 U.S. 213, 233 (1983), in which
the Supreme Court “overhauled [its] method for
assessing the trustworthiness of an informant’s tip.”
Harris, 568 U.S. at 244-45. In Harris, id. at 245, the
Supreme Court explained: “No more for [drug
detection] dogs than for human informants is [] an
inflexible checklist the way to prove reliability, and
thus establish probable cause.” Given that the Supreme
Court warned against distinguishing drug detection
dogs from “human informants” for purposes of
establishing reliability, id., it makes sense to also avoid
distinguishing drug detection dogs from humans,
whether informants or law enforcement officers, for
purposes of the standard of review. For example, where
a law enforcement officer testified that he or she
smelled an odor of marijuana emanating from a
vehicle, and a trial court determined that the officer’s
testimony was credible, the trial court’s determination
would obviously be a finding of fact, not a conclusion of
law. Likewise, where a law enforcement officer receives
information from an informant that gives rise to
probable cause for a search, the issue of the informant’s
reliability would be a question of fact as opposed to an
issue of law. Similarly, where a trial court determines
that a drug detection dog is reliable, the trial court is
essentially determining that the drug detection dog had
the ability to accurately detect an odor of a controlled
dangerous substance. It makes little sense to treat a
trial court’s reliability determination as a conclusion of
law, rather than a finding of fact, because it was a drug
detection dog, rather than a law enforcement officer,
who detected the controlled dangerous substance.
For a myriad of reasons, the Supreme Court’s
holding in Harris informs our conclusion that a trial
App. 70
court’s reliability determination is a finding of fact, and
is subject to review for clear error. We are unpersuaded
by Grimm’s reliance on the circumstance that, in
Harris, the Supreme Court did not expressly raise any
issue as to the circumstance that the Supreme Court of
Florida engaged in review without deference. In Harris
v. State, 71 So. 3d 756, 765 (Fla.), as revised on denial
of reh’g (Sept. 22, 2011), the Florida Court stated:
[T]he question presented concerns the showing
that the State must make to establish probable
cause for a warrantless search of a vehicle based
on a drug[] detection dog’s alert to the vehicle.
This issue involves a trial court’s determination
of the legal issue of probable cause, which we
review de novo.
(Citations omitted). The first case that the Florida
Court relied upon in support of this proposition was
Ornelas, 517 U.S. at 699. Respectfully, Ornelas, id.,
does not support the proposition that an appellate court
reviews without deference a trial court’s reliability
determination. To the contrary, as discussed above, the
Supreme Court’s holding in Ornelas, id. at 699-700,
indicates that, although the issue of whether probable
cause exists is a legal question, the issue may involve
underlying factual questions regarding both historical
and background facts.
It is of no consequence that, in Harris, the Supreme
Court did not expressly refer to the standard of review
that the Florida Court had employed. There was no
need for the Supreme Court to do so, as the standard of
review that the Florida Court had employed was not
the subject of the petition for writ of certiorari—i.e., the
standard of review was not the issue in the Supreme
App. 71
Court’s review of the Florida Court’s decision. Rather,
the issue was whether the Florida Court had erred in
creating a strict evidentiary checklist, whose every
item the State must tick off. See Harris, 568 U.S. at
244.
We are unpersuaded by Grimm’s argument that
non-deferential review of a trial court’s reliability
determination is necessary for appellate courts to
maintain control of the probable cause standard. Our
holding will not affect the well-established principle
that an appellate court reviews without deference a
trial court’s probable cause determination. See Ornelas,
517 U.S. at 691. We simply hold that, within the
probable cause analysis, the issue of whether a drug
detection dog is reliable is a factual question. After a
trial court has made a reliability determination, the
trial court—and, ultimately, an appellate court—must
conclude, as a matter of law, under the totality of the
circumstances, whether probable cause existed.
We reject Grimm’s contention that deferring to a
trial court’s determination of an expert witness’s
“credibility” is inappropriate where, as here, that
determination is likely to be dispositive of the issue of
whether probable cause existed. “[A]n issue does not
lose its factual character merely because its resolution
is dispositive of the ultimate constitutional question.”
Miller, 474 U.S. at 113 (citation omitted). The
circumstance that an expert opinion may be dispositive
does not furnish any basis for providing a defendant
who failed to convince a trial court that a drug
detection dog was unreliable with a second bite at the
apple in an appellate court.
App. 72
Grimm barks up the wrong tree in asserting that,
because there are no generally accepted standards in
Maryland regarding the training and certification of
drug detection dogs, appellate courts must provide
guidance to law enforcement agencies. The Fourth
Amendment does not require such standards. Indeed,
in Harris, 568 U.S. at 249, 242, the Supreme Court
concluded that evidence of the drug detection dog’s
training “sufficed to establish [the drug detection dog]’s
reliability[,]” even though the drug detection dog’s
certification expired the year before the traffic stop.
Just as no constitutional provision requires set
standards for the training and certification of drug
detection dogs, no Maryland statute does, either.
We find no merit in Grimm’s contention that, if
appellate courts review trial courts’ reliability
determinations for clear error, a drug detection dog
might be considered reliable in one county or one
courtroom, but not another. Just as probable cause
determinations are case-specific, so, too, are reliability
determinations. See id. at 244, 247-48 (“In evaluating
whether the State has met th[e] practical and
common[sense] standard[ of probable cause], we have
consistently looked to the totality of the
circumstances. . . . [T]he court should then evaluate the
proffered evidence to decide what all the circumstances
demonstrate.”). When the issue is contested, whether
a trial court will find a drug detection dog reliable in a
particular case depends not only on the drug detection
dog’s training records, but also on all of the other
evidence in the case, such as expert testimony, which
may vary from case-to-case concerning the same dog,
lay witness testimony, a recording (when available),
App. 73
and a description of the circumstances of the drug
detection dog’s scan and alert.
In sum, we agree with the conclusion of the Court of
Special Appeals 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 credibility and weigh the
evidence.” Grimm, 232 Md. App. at 403-04, 158 A.3d at
1050 (citations omitted).
II.
The Parties’ Contentions
Grimm contends that, no matter which standard of
review applies to the circuit court’s reliability
determination, the circuit court erred in determining
that Sergeant Lamb had probable cause to search
Grimm’s vehicle. Grimm argues that, if the applicable
standard of review is review for clear error, then the
circuit court clearly erred in finding Sergeant Davis the
most credible witness. Grimm asserts that the circuit
court was wrong in finding that Sergeant Davis was
not biased, as she certified Officer Keightley and Ace
on August 19, 2014, and thus was invested in this
case’s outcome. Grimm maintains that the circuit
court’s finding that there was “dissension in the ranks”
as to Cox and Officer McNerney was in the context of
the circuit court’s finding that they were credible and
“good and fair in their analysis.”
Grimm contends that Ace did not meet the
minimum of sixteen hours of monthly training that was
required for certification, and points out that, nearly a
App. 74
month after the traffic stop, Officer Keightley and Ace
were decertified as a result of the issue with regard to
how the number of hours of Ace’s training was
calculated. Grimm argues that, because the issue of
Ace’s training hours predated the traffic stop, Officer
Keightley and Ace were “not actually certified in any
meaningful sense” when the traffic stop occurred.
Grimm contends that Sergeant Davis’s certification of
Officer Keightley and Ace approximately four months
after the traffic stop reveals little, if anything, about
Ace’s reliability at the time of the traffic stop. Grimm
notes that, according to Cox, between April 15, 2013
and March 24, 2014, during Ace’s training, he
performed 179 scans, and falsely alerted 44 times—i.e.,
25% of the time. Grimm contends that the
circumstances surrounding Ace’s scan of the Honda
showed that he was unreliable. Grimm observes that
Ace alerted to the driver’s door, even though the drugs
were found near the passenger door. Grimm notes that,
even though Ace would alert without being commanded
to search, he did not alert when he walked by the open
passenger-side window.
The State responds that the totality of the
circumstances, including Ace’s alert, established
probable cause for the search. The State notes that the
circuit court found that, in addition to Ace’s alert,
Sergeant Lamb considered the behavior of the Honda’s
occupants to be “indicia” that he was dealing with “a
drug dealer[.]” The State contends that the circuit court
did not clearly err in finding Sergeant Davis to be the
most credible witness concerning Ace’s reliability. The
State argues that, as a member of the Montgomery
County Police Department’s K-9 Unit, Sergeant Davis
was “the only outside observer[,]” and was not subject
App. 75
to bias, as Cox and Officer McNerney were. The State
asserts that Sergeant Davis was the only witness to
have conducted a comprehensive review of all of Ace’s
training records from his initial training in 2012 to
July 2014, and that she opined that Ace performed
satisfactorily during his training.
The State points out that, in the field, Ace alerted
51 times, and falsely alerted 19 times, or 37% of the
time; however, with regard to 10 of the 19 false alerts,
one of the vehicle’s occupants admitted that drugs had
recently been in the vehicle. The State contends that,
accordingly, in the field, Ace’s percentage of false alerts
was 18%, and his percentage of accuracy was 82%. The
State observes that the circuit court found credible
Sergeant Davis’s opinion that Ace alerted on Grimm’s
vehicle, and that there was no evidence of a false alert.
Analysis
We hold that the circuit court did not clearly err in
finding that Ace was reliable, and that the circuit court
correctly concluded that Sergeant Lamb had probable
cause to search Grimm’s vehicle. In this case, the
circuit court’s assessment of the experts’ credibility was
critical to the circuit court’s reliability determination.
Indeed, the circuit court stated: “I[ am] not an
expert. . . . I must rely upon the expert testimony”; “I
cannot analyze this case without telling you who[m] I
find to be the most credible witness.” After finding
Sergeant Davis “to be the most credible witness[,]” the
circuit court “accept[ed]” Sergeant Davis’s opinion that
Ace “was competent”—i.e., reliable. In reviewing the
circuit court’s reliability determination, we must
ascertain whether the circuit court clearly erred. We
readily conclude that there was no such clear error.
App. 76
“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.” Varriale, 444 Md. at
410, 119 A.3d at 830 (citation omitted). A trial court’s
finding of fact “is not clearly erroneous if the record
shows that there is legally sufficient evidence to
support it.” Kusi v. State, 438 Md. 362, 380, 91 A.3d
1192, 1202 (2014) (cleaned up). And, an appellate court
must “give due regard to the opportunity of the trial
court to judge the credibility of the witnesses.” Md. R.
8-131(c).
Here, the circuit court’s finding that Ace was
reliable was not clearly erroneous. To begin, the
evidence substantiates the circuit court’s finding that
Sergeant Davis was the most credible expert witness.
Sergeant Davis’s “qualifications, [] knowledge, []
training[,] and experience [were] impeccable[.]” At the
time of the hearing, Sergeant Davis had approximately
seven or eight years of experience as a K-9 handler and
approximately fifteen or sixteen years of experience as
a K-9 trainer, including approximately seven years as
the Montgomery County Police Department’s K-9
Unit’s head trainer. During one of her years as a
trainer, Sergeant Davis was one of the top twenty K-9
officers in the United States Police Canine
Association’s Patrol Dog Field Trials. For
approximately five years, Sergeant Davis answered
questions about training dogs in Police K-9 Magazine.
Sergeant Davis had run events at the United States
Police Canine Association’s national training seminar,
and had given presentations at Police K-9 Magazine’s
conference. Sergeant Davis had managed a total of five
App. 77
K-9 teams, trained a total of sixty-five K-9 patrol
teams, and trained a total of thirty-six K-9 detection
teams.
The evidence substantiates the circuit court’s
finding that Sergeant Davis was “neutral and
unbiased”; that she was “the best and most objective
observer”; and that she “ha[d] no ties to th[is] case[.]”
Sergeant Davis was not paid for her testimony, apart
from what she was paid for being on duty while
testifying. Sergeant Davis was the only expert witness
who had never been a member of the Maryland
Transportation Authority Police’s K-9 Unit. As far as
the record reveals, Sergeant Davis’s only interaction
with Officer Keightley and/or Ace occurred
approximately four months after the dog scan in
question. Specifically, on August 19, 2014, Sergeant
Davis and two other members of the Montgomery
County Police Department’s K-9 Unit served as judges
in the Maryland Transportation Authority Police’s K-9
Unit’s certification process, in which Officer Keightley
and Ace were successful.
We reject Grimm’s contention that Sergeant Davis
was biased because she had previously certified Officer
Keightley and Ace on August 19, 2014, after the dog
scan in question. By certifying Officer Keightley and
Ace, Sergeant Davis did not indicate that Ace had been
reliable at all times prior to August 19, 2014; instead,
Sergeant Davis simply determined that, on that
particular date, Ace performed satisfactorily on the
tests that were part of the certification process. Indeed,
there is no evidence that Sergeant Davis reviewed any
of Ace’s training records or field reports on or before
August 19, 2014. As far as the record reveals, Sergeant
App. 78
Davis did not know Officer Keightley or Ace or review
Ace’s training records until she prepared for her
testimony in this case, at which point she assessed, for
the first time, whether Ace was reliable at the time of
the dog scan on April 19, 2014.
The evidence of Sergeant Davis’s credibility is even
more pronounced upon comparing her circumstances to
those of Grimm’s experts, Cox and Officer McNerney.
Despite labeling Cox and Officer McNerney credible,10
the circuit court found that they had “some bias”; that
“there [was] dissension in the ranks”; and that, while
testifying, Cox and Officer McNerney “air[ed] dirty
laundry.” An example of this is Cox’s testimony that he
wished that he could testify, but was not permitted to
speak, about “the steps and measures that [he] took []
to try to clear [] up” the circumstance that the
Maryland Transportation Authority Police K-9
Standard Operating Procedures did not require
analysis of the purity of narcotic aids. In the circuit
court’s words, Cox’s view appeared to be that: “[T]hey
did[ not] do it today as I did it then[.]” It is also worth
noting that Cox earned approximately between $4,000
10
At oral argument, in response to a question about what the
circuit court meant when it found Cox and Officer McNerney
credible while finding Sergeant Davis the most credible, the
Assistant Attorney General responded that he thought that the
circuit court did not believe that any of the witnesses were lying,
and that the circuit court was “attempting to be polite” to Cox and
Officer McNerney, who were “reputable” and “credentialed.”
Consistently, the Court of Special Appeals referred to the circuit
court’s finding that Cox and Officer McNerney were credible as a
“judicious exercise of courtroom courtesy[.]” Grimm, 232 Md. App.
at 404, 158 A.3d at 1050. We agree with the State and the Court
of Special Appeals on this matter.
App. 79
and $5,000 working on this case, unlike Sergeant
Davis, who was not paid, apart from what she was paid
for being on duty while testifying. With regard to
Officer McNerney, the circuit court stated that his
position appeared to be that: “[Y]ou[ are] not listening
to me.” The record supports the circuit court’s finding.
Officer McNerney testified that command staff initially
denied his request for his position to be made full-time,
and that he stepped down as a trainer due to his
concerns about the lack of training. Officer McNerney
testified that, in the same month in which he was “was
ordered back” to the K-9 Unit as a full-time trainer, he
met with his superiors regarding training deficiencies
within the K-9 Unit. Additionally, Officer Keightley
and Ace were decertified pursuant to Officer
McNerney’s recommendation.
In addition to the findings with respect to Sergeant
Davis’s credibility and lack of bias, the record reflects
that Sergeant Davis’s qualifications were objectively
superior to Cox’s and Officer McNerney’s. Cox had
approximately three years of experience as a handler,
and approximately twelve years of experience as a
trainer. Officer McNerney had approximately three
years of experience as a handler, and approximately
five years of experience as a trainer. By contrast,
Sergeant Davis had approximately seven or eight years
of experience as a K-9 handler and approximately
fifteen or sixteen years of experience as a K-9 trainer.
Additionally, unlike Sergeant Davis, neither Cox nor
Officer McNerney testified that he had participated in
national training seminars and conferences, earned a
distinction in a national police dog field trial, or been
published in the field of training police dogs.
App. 80
A drug detection dog’s training records constitute
the most probative evidence of his or her reliability. As
the Supreme Court explained in Harris, 568 U.S. at
246, compared to a drug detection dog’s field reports,
his or her training records are “[t]he better measure of
[his or her] reliability” because they result from
“controlled testing environments.” (Footnote omitted).
Consistent with the Supreme Court’s holding in Harris,
Sergeant Davis testified that Ace’s field reports did not
have “as much bearing” as his training records, because
Ace’s training took place in environments that were
more controlled than those in the field.
In this case, Ace’s training records alone constituted
more than enough evidence to support the circuit
court’s reliability determination. The Supreme Court
concluded in Harris, 568 U.S. at 249, that a sufficient
amount of training alone can “suffice[] to establish [a
drug detection dog]’s reliability.” (Citation omitted). As
to Ace’s training records, the record reveals that, in
testifying about Ace’s alleged false alerts, Sergeant
Davis and Cox referenced training records from
different time periods. Specifically, Sergeant Davis
testified about Ace’s training records from 2013, in
which Ace was in a total of 209 scenarios, and falsely
alerted on only 24 occasions. In other words, in 2013,
Ace falsely alerted approximately just 11% of the time.
In contrast, Cox testified about Ace’s training records
from April 15, 2013 to March 24, 2014, during which
Cox calculated that Ace was in a total of 179 scenarios,
and falsely alerted on 44 occasions. In other words,
under Cox’s calculation, between April 15, 2013 and
March 24, 2014, Ace falsely alerted approximately 25%
of the time. We need not determine which of these two
time periods was more indicative of Ace’s reliability, as
App. 81
Sergeant Davis reviewed Ace’s training records from
his initial training in 2012 to July 2014, and testified
that Officer Keightley and Ace performed satisfactorily
during the course of training. 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.
Grimm fails to effectively undermine the circuit
court’s reliability finding by pointing to alleged flaws in
Ace’s training. The bottom line is that the circuit court
considered all of the evidence, including the expert
witness testimony, and found the most credible witness
to be Sergeant Davis—who opined that Ace was
competent, and that he performed satisfactorily during
training. Although the evidence of Ace’s training alone
supports the circuit court’s reliability finding, we
observe that Officer Keightley’s and Ace’s certifications
provide even more support for that finding. As the
Supreme Court explained in Harris, 568 U.S. at 246-47,
“[i]f a bona fide organization has certified a [drug
detection] dog after testing his [or her] reliability in a
controlled setting, a court can presume (subject to any
conflicting evidence offered) that the [drug detection]
dog’s alert provides probable cause to search.” Here,
Officer Keightley and Ace were certified four times
before the dog scan in question, and twice afterward.
At the time of the dog scan on April 19, 2014, Officer
McNerney had most recently certified Officer Keightley
App. 82
and Ace on January 22, 2014. That certification was
valid for six months, and thus was valid at the time of
the dog scan, as Officer McNerney acknowledged. And,
even though Officer McNerney caused Officer
Keightley and Ace to be decertified approximately one
month after the dog scan, Officer McNerney recertified
Officer Keightley and Ace just two days later.
We acknowledge that a drug detection dog’s field
reports, “in most cases[,] have relatively limited
import.” Id. at 245. For what it is worth, however, we
observe that, according to Ace’s field reports, between
July 6, 2012 and April 19, 2014, Ace alerted to vehicles
51 times. Of those 51 occasions, no drugs were found in
the vehicle 19 times. That said, with regard to 10 of the
19 alerts to vehicles, one of the vehicle’s occupants
admitted that drugs had recently been in the vehicle.
As the Supreme Court stated in Harris, a drug
detection dog’s percentage of false alerts in the field
may be “markedly overstate[d]” due to the
circumstance that “[t]he [drug detection] dog may have
detected substances that were too well[-]hidden[,] or
present in quantities [that were] too small for [a law
enforcement] officer to locate. Or the [drug detection]
dog may have smelled the residual odor of drugs
previously in the vehicle or on the driver’s person.” Id.
at 245-46 (footnote omitted). The whole of the evidence,
including Ace’s training records and field performance,
established that Ace was reliable. For all of the above
reasons, the circuit court’s reliability determination
was not clearly erroneous, and, upon de novo review,
under the totality of the circumstances, Sergeant Lamb
had probable cause to search Grimm’s vehicle.
App. 83
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
PETITIONER TO PAY COSTS.
App. 84
Concurring Opinion by Adkins, J.
Most respectfully, I write separately because while
I concur that Ace was reliable, and probable cause was
satisfied here, I reach a different conclusion regarding
the appropriate standard of review for a drug-detecting
dog’s reliability. The Majority explains that while
probable cause to search a vehicle based on a drug
dog’s alert is reviewed without deference, the question
of whether the dog is reliable is one of fact and should
therefore be reviewed for clear error. Maj. Slip Op. at
48. I disagree. Florida v. Harris, 568 U.S. 237, 247–48
(2013), has established that determining whether a dog
is reliable requires an analysis of the totality of the
circumstances, which this Court has always reviewed
as a question of law. State v. Wallace, 372 Md. 137, 144
(2002). Therefore, a trial court’s assessment of
reliability should be reviewed without deference.
A law enforcement officer may search a vehicle
without a warrant if the officer has probable cause. See
Robinson v. State, 451 Md. 94, 108–109 (2017).
Probable cause exists where, based on the available
facts, a person of reasonable caution would believe that
“contraband or evidence of a crime is present.” Harris,
568 U.S. at 243. It is a “nontechnical common sense
evaluation of the totality of the circumstances in a
given situation in light of the facts found to be credible
by the trial judge.” Wallace, 372 Md. at 148. When a
“properly trained canine alerts to a vehicle indicating
the likelihood of contraband, sufficient probable cause
exists to conduct a warrantless ‘Carroll [v. United
States, 267 U.S. 132 (1925)]’ search of the vehicle.” Id.
at 146.
App. 85
In Harris, 568 U.S. at 240, the Supreme Court
addressed how a court should decide if a dog’s alert
provides probable cause to search a vehicle. The
Florida Supreme Court had held that to demonstrate
whether a drug-detection dog is reliable, the State had
to satisfy a list of specific evidence showing the dog’s
reliability. Id. at 242–43. The Court reversed,
reiterating that evaluating whether the State has
satisfied probable cause depends on the totality of the
circumstances, and a checklist approach “flouted this
established approach to determining probable cause.”
Id. at 244.
The Court drew parallels between Harris and
Illinois v. Gates, 462 U.S. 213 (1983). In Gates, id. at
233, the Court concluded that an informant’s veracity,
historical reliability, and basis of knowledge are all
“relevant considerations” in a totality of the
circumstances analysis to determine the “overall
reliability of a tip.” A deficiency in one area may be
compensated for by a strong showing of other areas
proving general reliability. Id. Harris imported this
analysis, explaining that “[n]o more for dogs than for
human informants is such an inflexible checklist the
way to prove reliability, and thus establish
probable cause.” 568 U.S. at 245 (emphasis added).
The Court established a procedure for suppression
hearings addressing whether a dog’s alert provided
probable cause. If the dog has been certified by a “bona
fide organization” after his reliability has been tested
in a controlled setting, then a court may presume that
the alert provides probable cause. Id. at 246–47. Even
if the dog is not formally certified, if it has “recently
and successfully completed a training program that
App. 86
evaluated his proficiency in locating drugs,” then the
same presumption exists. Id. at 247. A defendant must
have a chance to challenge this evidence of reliability,
and the Court posited various avenues a defendant
may use to refute that evidence. This procedure
contemplated a totality of the circumstances analysis
to find that a dog is reliable. “Even assuming a dog is
generally reliable,” the Court cautioned,
“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.
(emphasis added).
In summarizing this procedure, the Court laid out
the appropriate analysis and test:
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, an inflexible set of
App. 87
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 247–48 (emphasis added).
The Majority makes much of the Supreme Court’s
pronouncement that “[t]he record in this case amply
supported the trial court’s determination that [the drug
detection dog]’s alert gave [the officer] probable cause
to search Harris’s truck.” Id. at 248; see also Maj. Slip
Op. at 55–56. The Majority insists that this language
“would have had no meaning if the Court were
reviewing the trial court’s reliability determination
without deference.” Maj. Slip Op. at 56. I disagree with
this interpretation. A totality of the circumstances
analysis necessarily considers the record and defers to
findings of fact while applying those facts to the law.
See Varriale v. State, 444 Md. 400, 410 (2015).
Under the totality of the circumstances in Harris, it
was reasonable to conclude that the dog was reliable.
Florida had shown “substantial evidence” of the dog’s
training, past certification, and regular practice, the
totality of which demonstrated that the dog was
reliable. By contrast, Harris had not challenged the
dog’s training before the suppression court and had
only cross-examined the officer about the dog’s field
record. Harris, 568 U.S. at 248–49. There were no
circumstances that would suggest that the officer could
App. 88
not trust the dog’s alert. Id. at 249–50. The totality of
the circumstances in the record before the Court
demonstrated that the dog was sufficiently reliable to
support probable cause. Id. at 250.
Other jurisdictions have reached the conclusion that
the “totality of the circumstances” analysis is most
appropriate for determining whether a dog is reliable.
Two years before the Supreme Court decided Harris,
the Supreme Court of Oregon considered the
appropriate standard for assessing a drug-detecting
dog’s reliability in State v. Foster, 252 P.3d 292 (Or.
2011). It held that “an alert by a properly trained and
reliable drug dog can provide probable cause to search.”
Id. at 301. In language like that used by the Supreme
Court in Harris, the Court explained:
Whether in any particular case an alert provides
probable cause requires an individualized
inquiry, one that will depend on the totality of
the information available to the officers. In the
usual case, that information likely will include
the dog-handler team’s training, certification,
and performance. But it can also include any
other information relevant to the dog’s reliability
or fallibility.
Id. “Based on the totality of the circumstances bearing
on [the dog’s] particular reliability in this case” the
Court decided that there was probable cause to search
the defendant’s car. Id. at 302. See also State v. Helzer,
252 P.3d 288, 289 (Or. 2011).
Following Harris, both the Fourth and Seventh
Circuits have applied a “totality of the circumstances”
test to assessing canine reliability on review. In United
App. 89
States v. Green, 740 F.3d 275, 281–82 (4th Cir. 2014),
the Fourth Circuit applied Harris to decide whether a
dog’s record was sufficiently reliable to provide
probable cause to search a vehicle. The State had
presented substantial factual evidence about the dog’s
abilities to meet the presumption of reliability, and the
defendant had not offered any evidence that
undermined the showing. Id. at 283. The Fourth
Circuit affirmed the district court’s determination,
concluding that based on the dog’s “field performance
records in conjunction with his degree of training, his
performance during training and recertification
exercises, and his evaluations by [State Troopers], the
totality of the circumstances establish [the dog’s]
reliability in detecting drugs.” Id. at 283–84.
In United States v. Bentley, 795 F.3d 630, 635 (7th
Cir. 2015), the Seventh Circuit considered whether
Bentley had shown that a drug-detecting dog was not
adequately trained or reliable. It reasoned that Harris
required a suppression court to hold a probable cause
hearing to assess whether a dog’s training was
adequate, a procedure that the lower court had
“dutifully followed.” Id. at 635–36. The hearing judge
heard testimony about the dog’s performance, “weighed
all the evidence, decided to credit the government’s
experts over Bentley’s, and decided that [the dog’s]
alert was reliable enough to support probable cause.”
Id. at 636. The Seventh Circuit considered the evidence
presented below adding to or detracting from the dog’s
reliability, and concluded that while the dog’s record
was problematic, it was sufficient for probable cause.
Thus, the lower court did not err in finding the dog to
be reliable based on “his training records, his 59.5%
field rate, and [the] C[anine] T[raining] I[nstitute]’s
App. 90
curriculum.” Id. at 637. While the dog’s “mixed record”
was less than ideal, “under Harris’s totality-of-thecircumstances test” there was no reason to reverse the
lower court. Id. Although the Seventh Circuit
acknowledged that a lower court’s choice between
“version[s] of the evidence” is entitled to deference, it
accorded that deference to the hearing judge’s
assessment of various witnesses’ explanations and
credibility. Id. at 636.
Other jurisdictions have followed a similar
approach, treating the Harris analysis of reliability as
one that considers the totality of the circumstances.1
See, e.g., United States v. Foreste, 780 F.3d 518, 527–28
(2d Cir. 2015); United States v. Holleman, 743 F.3d
1152, 1157 (8th Cir. 2014); United States v. Gadson,
763 F.3d 1189, 1203 (9th Cir. 2014); United States v.
Brown, 179 F. Supp. 3d 595, 603 (E.D. Va. 2016);
Bennett v. State, 111 So. 3d 983, 985–86 (Fla. App.
2013); see also Phippen v. State, 297 P.3d 104, 109
1
At least two jurisdictions have taken the position that reliability
is a question of fact. In Jackson v. State, 427 S.W.3d 607, 615 (Ark.
2013), the Supreme Court of Arkansas concluded that a trial
court’s ruling that a dog was reliable was not “clearly erroneous.”
Likewise, in People v. Caballes, 851 N.E.2d 26, 31 (Ill. 2006), the
Illinois Supreme Court explained that the determination that the
police dog was “well trained and sufficiently reliable” was a factual
one, subject to clear error review. Caballes, however, came some
years before Florida v. Harris, 538 U.S. 237 (2013). And Jackson,
although acknowledging Harris, did not fully consider the analysis
established by that case. 427 S.W.3d at 615. Special Justice
Gregory Jones concurred in judgment, providing a more nuanced
analysis of the of the test set forth in Harris, an analysis that bore
greater resemblance to a probable cause determination based on
the totality of the circumstances, rather than a purely factual one.
Id. at 625–26 (Gregory, J., concurring).
App. 91
(Wyo. 2013); McKinney v. State, 755 S.E.2d 315, 318
(Ga. App. 2014).
The Majority reasons that a trial court is “better
positioned” than an appellate court to decide reliability.
Maj. Slip Op. at 51. But the kind of evidence the
Majority cites—training records, field records, videos of
the scan, expert qualifications, and factual testimony—
are materials this Court regularly considers in
appellate review. This Court can review these
materials while according the appropriate deference to
a hearing judge’s assessment of witness credibility
when determining whether a lower court correctly
applied the law. An expert witness’s credibility in
assessing and explaining evidence relating to canine
training and behavior does not automatically correlate
to a dog’s reliability, particularly when other
circumstances indicate the dog’s performance may have
been unreliable during a stop.
According to Harris, a court must consider all the
circumstances surrounding the dog’s alert—training,
certification, reliable performance—and decide
whether, under the totality of those circumstances, a
dog’s alert is reliable. 568 U.S. at 247–48. Whether a
dog alerted is undoubtedly a question of fact,
particularly if the alert appears ambiguous. See, e.g.,
Phippen, 297 P.3d at 109 (lower court resolved
conflicting testimony and concluded that dog alerted);
McKinney, 755 S.E.2d at 318. But the alert itself is
meaningless unless the alert is reliable. An alert does
not establish probable cause without reliability. And
reliability necessitates consideration of the
circumstances of dog’s training, certification, history,
and experience—or lack thereof.
App. 92
The hearing judge found that Ace completed an
initial training course, continued training with his
handler regularly, and was certified at the time that he
detected the drugs in Grimm’s vehicle. While Ace had
some false alerts, his error rate was not so high that he
was obviously unreliable. The hearing judge found
Sergeant Davis’s testimony explaining Ace’s training
and reliability to be more credible, and we should defer
to that credibility assessment. Grimm offered evidence
that undermined Ace’s reliability. Weighing all the
facts surrounding Ace’s alert—his training,
certification, and experience, viewed “through the lens
of common sense” it is reasonable to find that when he
alerted, a reasonable officer would believe that Ace was
reliable and therefore “a search would reveal
contraband or evidence of a crime.” Harris, 568 U.S.
247–48. Under the totality of the circumstances test set
forth in Harris, id., I conclude that Ace was sufficiently
reliable, and therefore probable cause was met.
The lack of generally accepted standards in
Maryland for training and assessing drug detection
dogs is troubling. I agree with the Majority that this
Court should not wade into the fray by creating our
own standards. Maj. Slip Op. at 60. That is a matter
best left to the Legislature, rather than an appellate
court.
As Chief Judge Wood observed in Bentley, 795 F.3d
at 637, “[w]e hope and trust that the criminal justice
establishment will work to improve the quality of
training and the reliability of the animals they use
. . . .” I have no doubt that Maryland officers work hard
to train their canine companions to be accurate and
reliable. But this Court should not abdicate its
App. 93
responsibility to make an independent review of
probable cause, which in this case, relied entirely on a
canine alert. See Wallace, 372 Md. at 144 (court makes
an independent constitutional evaluation of probable
cause when a party challenges a search or seizure).
App. 94
APPENDIX B
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1172
September Term, 2015
[Filed April 26, 2017]
________________________
BRIAN GRIMM
)
)
v.
)
)
STATE OF MARYLAND )
_______________________ )
In the Circuit Court for Anne Arundel County
Case No. 02-K-14-001188
Meredith,
Graeff,
Friedman,
JJ.
______________________________________
Opinion by Meredith, J.
______________________________________
Filed: April 26, 2017
App. 95
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.
App. 96
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 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
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).
App. 97
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 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
App. 98
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 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 drugdetection 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
App. 99
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 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
App. 100
dog’s reliability, whether by cross-examining the
testifying officer or by i
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