Petition for Writ of Certiorari — Ryan Lawrence Steck, Petitioner v. Maryland

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------RYAN STECK,

Petitioner,

v.

STATE OF MARYLAND,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari To The

Court Of Special Appeals Of Maryland

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------NANCY S. FORSTER

FORSTER & LECOMPTE

210 Allegheny Avenue,

Suite 100

Towson, Maryland 21204

410-685-6000

410-685-0298 Fax

nsforster@gmail.com

Counsel for Petitioner

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

When a drug-sniffing dog fails to alert as trained

to but, according to its handler is behaving as if he is

“in odor” of the presence of drugs, does that alone provide probable cause for police to search a car or does it

merely provide reasonable suspicion for further investigation?

ii

PARTIES TO THE PROCEEDING

Ryan Steck, Petitioner on review, was the Appellant below.

State of Maryland, Respondent on review, was the

Appellee below.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

PARTIES TO THE PROCEEDING........................

ii

OPINION BELOW .................................................

1

JURISDICTION .....................................................

1

CONSTITUTIONAL PROVISION INVOLVED .......

1

INTRODUCTION ...................................................

2

STATEMENT..........................................................

2

A.

Factual Background .....................................

2

B.

Procedural Background ...............................

7

REASONS FOR GRANTING THE PETITION ...

8

WHEN A DRUG-SNIFFING DOG FAILS TO

ALERT AS TRAINED, BUT ACCORDING TO

ITS HANDLER IS BEHAVING AS IF HE IS “IN

ODOR” OF THE PRESENCE OF DRUGS, THIS

ALONE DOES NOT PROVIDE PROBABLE

CAUSE FOR POLICE TO SEARCH A CAR

BUT, RATHER, MERELY PROVIDES REASONABLE SUSPICION FOR FURTHER INVESTIGATION .................................................

8

1.

Pertinent Facts: The Traffic Stop ..............

8

2.

The Court’s Ruling .................................... 12

3.

There Was No Probable Cause To Search

The Car ...................................................... 13

iv

TABLE OF CONTENTS – Continued

Page

4.

An Indication Of Being “In Odor” As Opposed To An Alert By A Drug-Sniffing Dog

Does Not Amount To Probable Cause To

Search ........................................................ 18

CONCLUSION..................................................... 24

APPENDIX

Maryland Court of Special Appeals, Opinion,

November 28, 2018........................................... App. 1

Maryland Court of Appeals, Order Denying Petition, February 22, 2019 ............................... App. 29

v

TABLE OF AUTHORITIES

Page

CASES

Florida v. Harris, 568 U.S. 237 (2013) ................. 17, 18

Gadson v. State, 341 Md. 1 (1995) ..............................13

Longshore v. State, 399 Md. 486 (2007) ............... 21, 22

United States v. Guzman, 75 F.3d 1090 (6th Cir.

1996) ........................................................................23

U.S. v. Heald, 165 F.Supp. 3d 765 (2016) ...................21

U.S. v. Heir, 107 F.Supp. 2d 1088 (2000) ........ 19, 20, 21

United States v. Jacobs, 986 F.2d 1231 (8th Cir.

1993) .................................................................. 20, 22

United States v. Moore, 795 F.3d 1224 (10th Cir.

2015) ........................................................................23

United States v. Rivas, 157 F.3d 364 (5th Cir.

1998) .................................................................. 22, 23

United States v. Thomas, 726 F.3d 1086 (9th Cir.

2013) ........................................................................23

Wilkes v. State, 364 Md. 554 (2001) ............................13

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ............................................... 1, 2

1

OPINION BELOW

The opinion of the Court of Special Appeals of Maryland can be found at 239 Md. App. 440 (2018).

The denial of certiorari review by the Court of Appeals of Maryland can be found at 462 Md. 582 (2019).

------------------------------------------------------------------

JURISDICTION

The Court of Special Appeals of Maryland entered

judgment on November 28, 2018.

Petitioner filed a timely Petition for Writ of Certiorari in the Court of Appeals of Maryland, which was

denied on February 22, 2019.

This Court’s jurisdiction is invoked under 28

U.S.C. § 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment, U.S. Const. amend. IV,

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated * * * .

------------------------------------------------------------------

2

INTRODUCTION

Mr. Steck’s case involves a novel Fourth Amendment question. That is, when a drug-sniffing dog fails

to alert as trained to but, according to its handler is

behaving as if he is “in odor” of the presence of drugs,

does that alone provide probable cause for police to

search a car or should it be deemed the equivalent of

reasonable articulable suspicion for further investigation? The Court of Special Appeals held that this behavior sufficed, given the handler’s interpretation of it,

to establish probable cause to search even though the

handler clearly testified that the dog did not alert to

the presence of drugs as he was trained to do, and there

was no other evidence suggesting the presence of drugs

in the vehicle. If so, this opinion creates an extremely

slippery slope allowing officers to ignore the fact that

a trained dog has failed to alert as trained and nevertheless interpret the actions of the dog in such a way

as to establish probable cause to intrude on the privacy

of individuals. Because this is a reported opinion and

because it concerns a novel issue warranting this

Court’s review, Mr. Steck respectfully requests that

certiorari be granted.

------------------------------------------------------------------

STATEMENT

A. Factual Background

Prior to trial, defense counsel made a Motion to

Dismiss charges because of the state’s destruction of

evidence. Specifically, defense counsel made a written

3

request for the preservation of “all dispatch records,

radio logs and recordings of radio communications by

the Ocean City Police Department and any other agencies that participated” in the stop of Mr. Steck. Despite

receiving the letter and acknowledging its receipt on

October 5, 2016, all such radio communications were

destroyed on November 6, 2016. Defense counsel urged

that the destruction of these documents thwarted his

efforts to properly argue his Motion to Suppress. Judge

Jackson denied the motion to dismiss finding no willful

destruction. Judge Jackson proceeded to hear evidence

on Mr. Steck’s Motion to Suppress and ultimately denied the motion.

After the denial of his Motion to Suppress, Mr.

Steck was able to obtain statements made by several

officers involved in the traffic stop of Mr. Steck that had

not been provided to the defense prior to the previous

hearing. As a result, Judge Groton agreed to reopen the

Motion to Suppress. Officer Neshawn Jubilee testified

that he was operating a marked vehicle around 12:24

a.m. on August 7, 2016 when he heard a dispatch from

Officer Daniel McBride to be on the lookout (“BOLO”),

for a Chevy Impala with Delaware tags. When he spotted the car, Officer Jubilee fell in behind it at a red

light. Jubilee testified that after stopping at a red light,

the car made a left-hand turn and stopped at Eighth

Street after Jubilee, at Seventh Street, activated his

lights to conduct a traffic stop.1 While traveling behind

1

At the first suppression hearing, Jubilee testified that he

activated his lights while on Fifth Street and the car did not stop

until Eighth Street.

4

the Impala, Jubilee testified that he noted the occupants moving, “looking around” and moving their

hands. Jubilee approached the driver, Etoyi Roach, and

requested his license and registration. Jubilee also

requested identification from both the front seat passenger, Jerry Weston, and the rear passenger, Mr.

Steck. Jubilee returned to his car and began running

the license checks. While running the checks, Officer

McBride arrived on the scene. McBride, who was on bicycle patrol, is the officer who originally called in the

BOLO. According to Jubilee, McBride took over the car

stop.

McBride approached the driver and told him that

he was being stopped because McBride saw him engage in an unsafe lane change. While returning to Jubilee’s car to write a warning ticket, McBride called for

a K-9 unit. As for the traffic violation, McBride testified

that he saw the Impala stopped at a stop sign. The car

made a left-hand turn and, in doing so, pulled in front

of a taxi. The cab driver had to slam on his brakes to

avoid an accident. While still in the process of writing

the warning ticket, McBride testified that the K-9 unit

arrived.

Corporal Christopher Larmore2 testified that he

heard the dispatch and was five blocks away from the

scene of the stop. He responded to Eighth Street with

his dog, Simon, arriving within minutes after the

2

Throughout the suppression hearing the corporal’s name is

spelled Larmore; however, at trial it is spelled Laramore. For ease

of reference, Mr. Steck will use the Larmore spelling.

5

dispatch. Larmore testified that he had the occupants

of the car removed so he could conduct the scan. The

occupants were made to sit on a curb behind the car.

Larmore walked Simon around the car and his behavior changed when he reached the rear passenger door.

Larmore testified that he informed McBride that Simon was “in odor around the vehicle and the occupants.” In fact, Simon kept pulling Larmore toward the

car’s occupants seated on the curb. Larmore conceded

that Simon did not engage in an “alert” which occurs

when the dog sits and stares wherever the odor is detected.

Officer Corey Gemerek was also on the scene to

assist. As the occupants sat on the curb, Gemerek

asked Mr. Steck if he could speak with him and Mr.

Steck walked over to Gemerek. Gemerek asked Mr.

Steck if he had any drugs or illegal weapons on his person. Mr. Steck responded that he had a “blunt,” reached

in his pocket and handed it to Gemerek. Gemerek conceded that the amount of marijuana was clearly less

than ten grams and subject to a civil citation. Officers

Gemerek and McBride searched the Impala, without

consent, and discovered 1,000 small bags of heroin

packaged and bundled inside the magazine pocket on

the rear of the passenger seat which was directly in

front of where Mr. Steck sat in the rear. A grocery bag

with five bags of rubber bands was also located on the

back seat. All three occupants were arrested and

searched at the scene and nothing was found other

than two cell phones on Roach, two cell phones on Weston, and one cell phone on Mr. Steck. When searched at

6

the police station, a bag fell from Mr. Steck’s shorts and

was found to contain cocaine and more heroin.

After hearing argument, Judge Groton ruled that

the traffic stop for improper lane change was lawful.

The court further found that there was no undue delay

in writing the warning ticket for the traffic violation

and, finally, the court found that although Simon did

not alert, he did provide an “indication” of the odor of

drugs and this was sufficient to permit the search of

the car.

At trial, Officers Jubilee, McBride, Larmore and

Gemerek testified, essentially, consistently with the

testimony provided during the suppression hearing.

Ian Creech, a Public Safety Aide also testified. Creech

said he worked in the booking area of the Ocean City

station and searched Mr. Steck when he was transported there. While searching Mr. Steck, Creech said a

package fell from his shorts. Mr. Steck stepped on the

package and said it did not belong to him. The package

contained white powder.

Maryland State Police analyst, Jessica Taylor, testified that the 1,000 packages found inside the car that

night were analyzed and proved to be heroin. The package that fell to the floor during the search of Mr. Steck

contained ten bags of heroin and five bags of cocaine.

Detective Rodney Wells testified that, in his expert

opinion, all of the evidence was consistent with distribution rather than personal use.

7

B. Procedural Background

Ryan Lawrence Steck, was charged in the Circuit

Court for Worcester County, Maryland, with one count

of possession with intent to distribute heroin, one

count of possession of heroin, one count of possession

with intent to distribute cocaine, and one count of possession of cocaine. A Motion to Suppress hearing was

held before the Honorable Newton Jackson on March

15, 2017. That motion was denied. On May 16, 2017,

after obtaining documents he did not have previously,

Mr. Steck was granted a Motion to Reopen his Motion

to Suppress. That hearing was held before the Honorable Thomas C. Groton, III, and the Motion to Suppress

was denied. A jury trial began on June 5, 2017 before

the Honorable Richard Bloxom. The jury convicted Mr.

Steck of all charges on June 6, 2017 and he was sentenced to a total of fourteen years to be served consecutively to a sentence he was already serving, the first ten

without parole. A timely appeal was noted. On November

28, 2018, the Court of Special Appeals issued its reported

opinion, affirming the convictions. Mr. Steck sought review by Maryland’s highest court, the Court of Appeals,

by filing a timely Petition for Writ of Certiorari. The

Court of Appeals denied certiorari review on February

22, 2019 and issued its mandate on March 22, 2019.

------------------------------------------------------------------

8

REASONS FOR GRANTING THE PETITION

WHEN A DRUG-SNIFFING DOG FAILS TO ALERT

AS TRAINED, BUT ACCORDING TO ITS HANDLER IS BEHAVING AS IF HE IS “IN ODOR” OF

THE PRESENCE OF DRUGS, THIS ALONE

DOES NOT PROVIDE PROBABLE CAUSE FOR

POLICE TO SEARCH A CAR BUT, RATHER,

MERELY PROVIDES REASONABLE SUSPICION FOR FURTHER INVESTIGATION.

1. Pertinent Facts: The Traffic Stop.

The action of Officer Jubilee in stopping the car

driven by Roach was based entirely on the 12:24 a.m.

report of a traffic offense as dispatched by Officer

McBride. Jubilee testified that McBride described the

car that had committed an unsafe lane change. Jubilee

spotted the car and got behind it while it was stopped

at a red light. He followed the car as it turned onto Baltimore Avenue and activated his lights at Seventh

Street. The car pulled over at Eighth Street. Prior to

the actual stop, however, Jubilee testified that, “[w]hile

[he] was initiating a traffic stop, [he] observed that the

occupants in the vehicle were making movements in

the vehicle.” He explained that the “occupants were looking around. Their hands were moving about the car. I did

not know exactly what they were doing, but they were

looking around at each other and their hands were

also moving in the car.” Jubilee testified that he obtained the driver’s licenses of all three occupants

and returned to his car to run license checks on all

three. Jubilee stated that Roach was polite and cooperative and he smelled no odor of alcohol or marijuana

9

while retrieving the licenses. The license of the driver,

Roach, was valid. Jubilee confirmed during crossexamination that he had “no articulable facts” upon

which to believe there were any weapons inside the car

or any criminal activity taking place. While Jubilee

was conducting the check, McBride arrived on the

scene.

McBride testified that, while on bicycle patrol, in

the area of First Street and St. Louis Avenue, he saw

the Impala stopped at a stop sign in the 300 block of

First Street “facing east.” He testified that “[w]hen the

vehicle went to make a left-hand turn, it pulled out in

front of a taxicab, which caused the taxicab to hit his

brakes in the roadway, given that the vehicle had

pulled out right in front of him. The vehicle made a lefthand turn and began traveling north on St. Louis Avenue.” Because there was “almost . . . an accident,”

McBride broadcasted a description of the car which

was eventually stopped by Jubilee. McBride arrived at

the scene of the stop within three to four minutes.

When he arrived, McBride saw Jubilee talking to the

driver. McBride waited until Jubilee returned to his

car and then McBride approached the driver to tell him

why he was being stopped. McBride then returned to

Jubilee’s car, got inside and began writing a warning

ticket for an unsafe lane change and failure to yield on

a left-hand turn.3 He also called for a K-9 unit at this

time. McBride testified that the written warning was

not yet completed when the K-9 unit arrived. When

3

McBride confirmed that the warning ticket was ultimately

shredded by him after the arrest was made of the occupants.

10

asked why he requested a K-9 unit, McBride testified

that it was based on the “behavior of the occupants . . .

that . . . Jubilee had relayed to me, different indicators

when the vehicle was pulling over and stopping.” When

asked what ‘indicators’ he meant, McBride noted that

he was told “it took a little longer to pull over than

usual.[4] [Jubilee] said that it almost ran a red light

when it pulled over and kind of coasted to a stop.[5] And

he said that as he approached the vehicle, the driver –

the occupants were making some furtive movements

around the vehicle.[6]”

Corporal Larmore arrived with his dog, Simon, after driving five blocks to the scene. He spoke to

McBride and asked that the occupants be removed

from the car. Larmore then began the scan.

I give him his command to scan the vehicle.

As he begins to go around the vehicle, we

4

Jubilee did, in fact, testify at the first suppression hearing

that he activated his lights while on Fifth Street and the Impala

pulled over on Eighth Street. However, he admitted at the second

hearing that he activated his lights on Seventh Street and the

Impala stopped on Eighth Street.

5

There is nothing in the record to support this claim by

McBride. Jubilee never testified that the Impala almost ran a red

light or that he told McBride that this occurred.

6

Jubilee never testified to “furtive” movements. Indeed, at

the first hearing, Jubilee said “the occupants of the vehicle were

making movements inside the vehicle. I do not know exactly what

they were doing, but they were all moving about inside the vehicle.” In the second hearing, Jubilee was a little more descriptive

saying their “hands were moving about the car. I did not know

exactly what they were doing, but they were looking around at

each other and their hands were also moving in the car.”

11

walked west on 8th Street, walking up the

passenger side of the vehicle. And at that

point in time, I notice a change of his breathing and posture and his general behavior. And

it’s consistent with when he’s in the odor of

narcotics. He is certified to detect five different narcotic odors – or drug odors, I should

say. And that is marijuana, cocaine, methamphetamine, heroin and ecstasy. When he got in

the area of the rear passenger door . . . he began to go back and forth between sniffing the

vehicle and sniffing the gusts of wind that

were blowing from the general direction of the

occupants. So, basically, at this point in time,

he is showing the signs of behavior of being in

odor, but he’s actually going back and forth,

trying to pull me in different directions. . . .

He’s trying to pull me to [the occupants], and

I’m trying to pull him back to come to the car.

Larmore conceded that Simon did not give a “final

alert, which is his sit . . . his trained response.” Larmore made the determination that “he’s not going to

go into that final sit, so I put him back in the vehicle. . . .” Larmore then informed McBride and Gemerek

that he believed “the odor was probably coming from

the occupants.” Gemerek suggested that he try to get

consent to search. At this point, Gemerek questioned

Mr. Steck who admitted having marijuana in his

pocket and gave it to the officer. Gemerek conceded it

was clearly less than ten grams of marijuana that Mr.

Steck had. Weston also gave him permission to search

his person which also turned up nothing. No consent to

search the car was ever provided.

12

2. The Court’s Ruling

After hearing argument, the court denied the motion to suppress, ruling as follows:

Well, we depart company on several things.

Number one, that the behavior, the actions, of

the defendant in driving the vehicle in front of

the cab certainly is grounds for a traffic offense. So I find that that was warranted to

have the vehicle pulled over and begin writing

at that time what would be a warning. As far

as the timeline goes, whether there was a delay longer than necessary to affect the purpose of the stop, I don’t find that there was any

undue delay. The stop was at 12:24. Officer

McBride got there three or four minutes later,

and Deputy Sheriff Larmore arrived at 12:32

with his dog out. So I don’t find that that was

an undue delay in light of the testimony that

Officer McBride provided that he was still

writing a citation.

I will tell you this. I’m certainly concerned

about the destruction of the warning. He testified that that’s what he’s been taught to do.

And if it is, then maybe the State’s Attorney’s

Office ought to talk to the Ocean City Police

Department. That does cause the court concern, but not sufficient based on that alone to

grant the motion. Now, you indicated if – if

we’re going to go beyond an alert and have the

issue determined by the handler’s reading of

the dog’s behavior at the car. Well, that’s

where we’re going, so maybe you could make

some new law. But I find that the testimony of

13

Deputy Larmore was very compelling and

specific as to what the dog did for him to determine that, in fact – even though I’ve used

the word alert, it’s not the quote/unquote

“alert,” but an indication that there were

drugs there. So based on all that, I’ll deny your

motions to suppress.

3. There Was No Probable Cause To Search The

Car.

Assuming that McBride continued writing the

warning ticket while the dog scan took place, he plainly

abandoned the initial purpose of the traffic stop when

he and others conducted a search of the Impala unsupported by probable cause. It is settled “that once a drug

dog has alerted a trooper ‘to the presence of illegal

drugs in a vehicle, sufficient probable cause exist[s]

to support a warrantless search of [a vehicle].’ ” Wilkes

v. State, 364 Md. 554, 586 (2001) (quoting Gadson v.

State, 341 Md. 1, 8 (1995)). Simon did not alert to the

presence of drugs inside the Impala and thus, there

was no probable cause for the search of the car. Larmore, the dog handler, testified as follows:

Q. Okay. And can you describe to the court

what exactly occurred during the scan of the

vehicle?

A. So, Your Honor, I walk up to the vehicle.

The vehicle, is facing east on 8th Street, towards the beach and the boardwalk. I walk up

to the vehicle. I give my K-9 the command to

scan the vehicle. The command is given in

Czechoslovakian. The word that he uses is

14

sook. I give him the command of sook. And let

me back up just a little bit to paint the picture

of the scene. The occupants of the vehicle,

there was three of them. They were all seated

on a curb directly west and, I guess, a little bit

south. So the vehicle was right on the curb,

and the occupants – if the vehicle is here, the

occupants are seated back here, around the –

around the front of the police vehicle, somewhere in that area, if that makes sense.

So I get up to scan the vehicle with my K-9

partner. I give him his command to scan the

vehicle. As he begins to go around the vehicle,

we walked west on 8th Street, walking up the

passenger side of the vehicle. And at that

point in time, I notice a change of his breathing and posture and his general behavior. And

it’s consistent with when he’s in the odor of

narcotics. He is certified to detect five different narcotic odors – or drug odors, I should

say. And that is marijuana, cocaine, methamphetamine, heroin and ecstasy.

When he got in the area of the rear passenger

door, Your Honor, he began to go back and

forth between sniffing the vehicle and

sniffing the gusts of wind that were blowing from the general direction of the occupants. So, basically, at this point in time,

he is showing the signs of behavior of being in

odor, but he’s actually going back and forth,

trying to pull me in different directions. Because of safety reasons, obviously, I can’t let

him go to the people. He’s trying to pull me

15

to them, and I’m trying to pull him back

to come to the car.

Q. At that point in time, did you make any

extra passes around the vehicle? Did you confirm this odor that you claim that your K-9

partner was in?

A. I can’t – I do – I do no more than two

passes around the vehicle. So at that point

in time, he won’t actually – because he’s –

he’s, kind of, fighting two different odors

here, he won’t actually go into what’s

called a final alert, which is his sit.

That’s his trained response. All of the other

responses that he’s giving me are involuntary

responses. Those are the responses that he

gives when he’s in the odor of the five odors

that I just mentioned. So at this point in time,

I determine he’s not going to go into that

final sit, so I put him back in the vehicle,

and I made contact with Officer McBride.

Q.

What did you tell Officer McBride?

A. I told him that at that point the source

was coming – there was odor source from both

the vehicle and the occupants. I told him

that I believed that the odor was probably

coming from the occupants and the reason he was in odor at the car as well was

because of the odor having been recently

in the vehicle from the occupants who obviously had gotten out just before I did

the scan. The odor – just because the odor

is – if the odor is, say, in their pockets and

they get out of the car, the odor doesn’t

16

immediately leave the car. There is still

odor that lingers in the vehicle.

Q. Did you tell officer McBride that he had

alerted to the vehicle or not?

A. I don’t believe I used the specific word

alert. What I used was, he’s in odor

around the vehicle and the occupants,

and he’s getting odor sourced from both.

Q. Did you tell Officer McBride or any other

officers that they shouldn’t search the car at

that point in time?

A.

I did not, no.

Q. At some point in time was there a further

conversation with Officer Gemerek?

A. Officer – when I spoke to Officer McBride,

Officer Gemerek was also present. When I was

explaining that – in my opinion, at that

time, Your Honor, I believed the odor was

mostly coming from the occupants and

that’s why he kept trying to pull me to

them. I explained that to Officer McBride.

And Officer Gemerek heard it and said, hey,

why don’t I go ask for consent, and we’ll see if

they’ll let us consent to a search of their person. We hadn’t ruled out searching the car by

any means at that point. We were just – because they were believing me that the odor

was coming from the people, as well as the car,

that the people were probably where any

odors that my dog was smelling were coming from.

17

The Supreme Court recently addressed the probable cause to search calculus when a drug detection dog

positively alerts to the presence of drugs inside a car.

In Florida v. Harris, 568 U.S. 237 (2013), the Court addressed “how a court should determine if the ‘alert’ of

a drug-detection dog during a traffic stop provides

probable cause to search a vehicle.” Id. at 240. The

Court held:

A police officer has probable cause to conduct

a search when “the facts available to [him]

would ‘warrant a [person] of reasonable caution in the belief ’ ” that contraband or evidence of a crime is present. . . . The test for

probable cause is not reducible to “precise definition or quantification. . . .” “Finely tuned

standards such as proof beyond a reasonable

doubt or by a preponderance of the evidence

. . . have no place in the [probable-cause] decision. . . .” All we have required is the kind of

“fair probability” on which “reasonable and

prudent [people,] not legal technicians, act. . . .”

In evaluating whether the State has met this

practical and common-sensical standard, we

have consistently looked to the totality of

the circumstances. . . . We have rejected rigid

rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-thingsconsidered approach. . . . Probable cause, we

emphasized, is “a fluid concept – turning on

the assessment of probabilities in particular

factual contexts – not readily, or even usefully,

reduced to a neat set of legal rules.”

18

Id. at 243-244 (citations omitted). Because the state

had introduced evidence of the dog’s training and certification demonstrating his reliability and it was uncontested by the defense that the dog did, in fact and

as trained, positively alert to the presence of drugs, the

Court concluded that there was probable cause to

search the car in Harris. Applying these principles to

Mr. Steck’s case, the lower court erred in finding that

the actions of Simon resulted in probable cause to

search the Impala. The totality of facts available to Officers McBride and Gemerek, who searched the car,

would not warrant a person of reasonable caution to

believe contraband would be found there. Those facts

include: the failure of Simon to positively alert to the

car; Simon’s continuous pulling of Larmore to the occupants seated on the curb; Larmore’s having to “try[ ]

to pull him back to come to the car”; Larmore’s conclusion that Simon would not positively alert to the car;

Larmore’s belief that the odor emanated from the occupants; and Larmore’s belief that Simon’s behavior of

being “in odor” near the car was due to the fact that the

occupants had been in the car and the odor on them

lingered in the car. Under the totality of these circumstances, there was no probable cause to search the Impala.

4. An Indication Of Being “In Odor” As Opposed

To An Alert By A Drug-Sniffing Dog Does Not

Amount To Probable Cause To Search.

If a positive alert by a canine provides probable

cause to search a car, something less than a positive

19

alert, i.e., the dog is “in odor,” cannot provide probable

cause to search particularly when that is the sole basis

for the search of the car. Here, Larmore specifically testified that Simon would not provide an alert which

would have been signified by sitting. Larmore testified

instead, that Simon’s behaviors indicated that he was

“in odor around the vehicle and the occupants. . . .”

Larmore testified that he never used “the specific word

alert” when giving McBride the result of the vehicle

scan. Instead, he told McBride that Simon was “in

odor.” This is similar to the facts in U.S. v. Heir, 107

F.Supp. 2d 1088 (2000). There,

After completing the traffic stop and issuing

Heir a warning ticket for crossing the yellow

shoulder line and following too closely,

Trooper Duis informed Heir that he was free

to go but that Duis would like to ask him a few

more questions. Heir agreed and stayed in the

patrol car. Duis asked Heir if he had any

drugs in the car. Heir looked at the car and

shook his head. Duis asked if he could search

the car. Heir said, “No.” Duis then informed

Heir that he would be detained while Duis

walked his dog, Robbie, around the car. Duis

had Heir stand by the front passenger side of

the patrol car while he got Robbie out of the

back seat. He walked Robbie around Heir’s

rented vehicle three times in a span of about

ninety seconds. He then informed Heir that

Robbie had detected the odor of drugs coming

from the vehicle and that Duis was going to

conduct a search. After a search of the trunk

20

revealed what appeared to be controlled substances, Heir was placed under arrest.

Id. at 1090. On the question of whether the dog’s actions provided probable cause to search the car, the

court held:

Trooper Duis testified that in this case Robbie

“alerted” to the presence of drugs by sniffing

more intensely around certain areas of the

car, but he acknowledged that such “alert” behavior was subtle and might only be recognized by himself or another person who was

familiar with Robbie’s tendencies. Although

Robbie was trained to “indicate” (by scratching) when he located the strongest source of

the drug odor, he did not do so in this case.

Defendants’ experts testified that the “alert”

behavior described by Trooper Duis could

easily be attributed to his “cuing” of the animal, either intentionally or unintentionally,

by changing the leash from one hand to the

other, by stopping, by blocking the way, or by

other actions. They saw nothing on the videotape to indicate that Robbie had detected the

presence of drugs.

As further found by Magistrate Judge Piester,

even if the “alert” behavior described by

Trooper Duis had in fact occurred, this is too

subjective a standard to establish probable

cause. I agree that there must be an objectively observable “indication” by the dog of the

presence of drugs. See United States v. Jacobs,

986 F.2d 1231 (8th Cir. 1993) (warrant affidavit

stating that drug sniffing dog had displayed

21

interest in package, without disclosing that no

“alert” had occurred, rendered warrant invalid). Because it is undisputed that Robbie did

not positively “indicate” the presence of drugs

in the vehicle, as he was trained to do, there

was no probable cause for the search.

Id. at 1091 (footnote omitted); see also U.S. v. Heald,

165 F.Supp. 3d 765, 780 (2016) (dog trained to alert by

sitting who, instead, jumped into the car through a

window, did not constitute an alert and, even if it did,

it was not sufficiently reliable to provide probable

cause to search). In Mr. Steck’s case, Simon did not positively alert as trained. Rather, his handler, Larmore,

interpreted his behavior, e.g., “a change of his breathing and posture and his general behavior,” as meaning

he was “in the odor of narcotics.” Such a subjective interpretation of vaguely described behavior does not

support a finding of probable cause, even under the

‘fluid’ definition of probable cause.

Moreover, the failure to positively alert must be

included in the totality of the circumstances. The Court

of Appeals in Longshore v. State, 399 Md. 486 (2007),

considered the effect, in the probable cause to search

analysis, of a drug-detection dog’s failure to positively

alert and held:

We do not agree with either court’s lack of consideration given to the failed sniff in their

probable cause determinations. The failed

drug sniff is exactly the type of evidence that

tends to undermine the conclusion of the presence of drugs. It is a negating factor that has

22

a substantial impact on the determination of

probable cause, and cannot be lightly ignored.

Moreover, the weight to be given to the dog

sniff is directly related to the credibility of the

dog’s abilities, which, in turn, can be inferred

from the dog’s performance under the circumstances. If a dog fails to alert to the presence

of drugs, and no explanation for why such a

failure occurred is given, the trial court should

weigh this differently than it would a failure

of a drug dog to alert, accompanied by a plausible justification for the failure.

Id. at 532-533. In Mr. Steck’s case, the trial court failed

to consider the lack of a positive alert and the failure

to explain why Simon did not positively alert to the car.

When considered in its proper manner in the totality

of other circumstances including that this was the sole

basis found by the court to support the search of the

car, it simply cannot be concluded that probable cause

existed to search the car and thus, the motion to suppress should have been granted.

Cases from federal circuits are in disagreement

and fail to shed light on a situation, as here, involving

no alert by a trained dog, but actions showing the dog

was “in odor” of drugs and whether this amounts to

probable cause to search. For instance, in United States

v. Jacobs, 986 F.2d 1231 (8th Cir. 1993), the trained dog

“showed an interest” in the object but “had not given a

full alert.” Under these circumstances, the Eighth Circuit Court of Appeals found probable cause to search to

be lacking. Similarly, the Fifth Circuit Court of Appeals

in United States v. Rivas, 157 F.3d 364 (5th Cir. 1998),

23

held that when a dog engages in “casting,” as opposed

to providing an alert to the presence of drugs, this “casting” does not provide probable cause to search. The

term “casting” was defined by the dog-handler as “in a

sense the dog maybe feels not a strong alert, but something that temporarily stops him and deters his attention at that point. And although he doesn’t pursue as

an aggressive alert, he does stop and give it minute attention and continues with his duties by continuing his

examination.” Id. at 368. And, finally, the Sixth Circuit

Court of Appeals has held that a “dog’s ‘interest’ in the

bag alone would not constitute probable cause,” but

can be taken into account in “determining whether the

totality of the circumstances established probable

cause.” United States v. Guzman, 75 F.3d 1090 (6th Cir.

1996).

On the other hand, the Tenth Circuit Court of Appeals in United States v. Moore, 795 F.3d 1224 (10th

Cir. 2015), found that a dog’s “positive alert” without

“final indication by setting and staring at the source of

the odor” was sufficient to establish probable cause to

search. Also, the Ninth Circuit in United States v.

Thomas, 726 F.3d 1086 (9th Cir. 2013), held that “[e]vidence from a trained and reliable handler about alert

behavior he recognized in his dog can be the basis for

probable cause,” and thus court rejects defendant’s

claim “the dog never completed his trained indication.”

Given this split in the circuits, review of this issue by

this Court is warranted.

------------------------------------------------------------------

24

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

NANCY S. FORSTER

FORSTER & LECOMPTE

210 Allegheny Avenue,

Suite 100

Towson, Maryland 21204

410-685-6000

410-685-0298 Fax

nsforster@gmail.com

Counsel for Petitioner