Gadson v. State

MOYLAN, Judge. The appellant, Tyrone Jerome Gadson, was convicted in the Circuit Court for Anne Arundel County by Judge Raymond G. Thieme, Jr., sitting without a jury, of possession of cocaine with intent to distribute and of possession of marijuana with intent to distribute. On this appeal, he raises the single contention that, at the pretrial suppression hearing, Judge Thieme erroneously failed to exclude the physical evidence seized from him by the police. The merits of the conviction are not in dispute.

The case was submitted to Judge Thieme on an agreed statement of facts. On September 12, 1992, the appellant drove a truck to the guard shack in front of the Maryland House of Correction in Jessup. Maryland State Police Trooper Charles Prince searched the truck and recovered from the glove compartment three bags of crack cocaine and two bags of marijuana. Also ⁵⁵⁶ recovered from under the driver’s seat and floor mat were cigarette rolling papers.

There was also found in the truck an electronic scale. The appellant freely admitted to Trooper Prince that the drugs were his and that he sold them to pay his bills because he did not have a job. The only issue on this appeal is the Fourth Amendment reasonableness of the search of the truck that produced that evidence. By a process of elimination, we can isolate the single narrow issue before us.

To do that, it behooves us to work backward from the ultimate search to the antecedent actions that preceded that search. A Non-Issue: The Ultimate Search of the Truck There can be no disputing that the ultimate search of the cab of the truck and its glove compartment for narcotics was a legitimate warrantless search under the Carroll Doctrine. Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970). A good warrantless search under the Carroll Doctrine or so-called “automobile exception” requires, of course, the combination of exigency plus probable cause.

The ready mobility of the appellant’s truck satisfied the exigency requirement. California v. Carney, 471 U.S. 386 , 105 S.Ct. 2066 , 85 L.Ed.2d 406 (1985). The probable cause to believe that the truck contained contraband narcotics was supplied by “Sandy,” a member of the Maryland State Police K-9 corps, who had been licensed as a certified drug detection dog and who worked regularly with Trooper Prince. As Sandy stood outside the appellant’s truck, with its doors closed, he “alerted” to the presence of narcotics.

That the “alert” to the presence of narcotics by a trained and certified drug-sniffing canine is ample to establish probable cause is well established law. Snow v. State, 84 Md.App. 243, 247-248 , 578 A.2d 816 (1990); In re Montrail M. , 87 Md.App. 420, 435-437 , 589 A.2d 1318 (1991), aff'd, 325 Md. 527 , 601 A.2d 1102 (1992); Grant v. State, 55 Md.App. 1, ⁵⁵⁷ 14-15, 461 A.2d 524 (1983), cert. dismissed, 299 Md. 309 , 473 A.2d 455 (1984). See also Florida v. Royer, 460 U.S. 491, 505-506 , 103 S.Ct. 1319,1328-1329 , 75 L.Ed.2d 229, 241-242 (1983). Looking forward from the moment when Sandy, by “alerting,” communicated his belief to Trooper Prince that narcotics were in the truck, the Fourth Amendment was not offended by the ensuing warrantless Carroll Doctrine search of the truck for those narcotics.

Another Non-Issue: The Antecedent Sniffing of the Truck The question remains, however, of whether, looking backward, the Fourth Amendment was offended by Sandy’s sniffing of the truck. Whether the Fourth Amendment was even involved, so as to require satisfaction, at that particular stage of the total investigative episode depends upon whether a sniff or smell by a drug detection dog constitutes a “search” within the contemplation of the Fourth Amendment. It does not. Trooper Prince described what he and his colleagues refer to as the “drug checkpoint.” He explained that after vehicles have entered the property of the Department of Corrections and are approaching the House of Correction itself, they have to come to a stop at a guardhouse.

The driver is questioned by the guard on duty and advises him as to which facility the driver wishes to visit. Trooper Prince then described the modus operandi of the attendant scan of the vehicle by a drug sniffing canine: While they’re at that guard house, at this time, either a Maryland State Police K-9 or Department of Corrections, Narcotics K-9, will go up and scan the vehicles. When I say scan the vehicles I mean just walk the dog on the outside of the vehicle, (emphasis supplied). The elementary physics of the olfactory sense, at least in circumstances such as these, is that the dog’s nose never intrudes into a constitutionally protected area, such as the ⁵⁵⁸ appellant’s truck.

It is rather the case that the dog’s nose remains outside, where the dog’s nose has a constitutionally unassailable right to be, and that the suspicious and incriminating vapors come wafting out across the public air to meet the dog’s nose on the dog’s nose’s turf. We see no doctrinal difference, be the investigator man or beast, between standing outside and smelling aromas emanating from a truck, on the one hand, and standing outside and hearing sounds resonating from a truck, on the other. In each case, the sensory receptor remains outside where it has a right to be and the stimuli come out to meet it there. If Trooper Prince, while standing outside, had himself detected a suspicious smell escaping from the truck, no one could dispute his entitlement to factor that sensory data into his accumulation of probable cause.

Taylor v. United States, 286 U.S. 1 , 52 S.Ct. 466 , 76 L.Ed. 951 (1932); Johnson v. United States, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948). That the Maryland State Police chose to rely on Sandy’s nose rather than on Trooper Prince’s nose was a tactical decision without constitutional significance; it was nothing more than the most efficient deployment of the respective investigative talents of available personnel. Utilizing an alternative framework of analysis, the Supreme Court in United States v. Place; 462 U.S. 696, 707 , 103 S.Ct. 2637, 2644-2645 , 77 L.Ed.2d 110, 121 (1983), agreed that a “canine sniff’ of a piece of luggage (or of a vehicle or of a school locker, etc.) made from outside the repository does not constitute a “search” of the repository within the contemplation of the Fourth Amendment: A “canine sniff’ by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage.

Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the ⁵⁵⁹ fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

The Supreme Court was dealing in that instance with a piece of luggage. The analysis of Justice O’Connor would apply with equal validity to any repository of possible evidence: [T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. . Therefore, we conclude that the particular course of investigation that the agents intended to pursue here—exposure of respondent’s luggage, which was located in a public place, to a trained canine—did not constitute a “search” within the meaning of the Fourth Amendment. 462 U.S. at 707 , 103 S.Ct. at 2644-2645.

And see In re Montrail M., 87 Md.App. 420, 435 , 589 A.2d 1318 (1991), aff'd, 325 Md. 527 , 601 A.2d 1102 (1992). Looking forward from the instant when Sandy stood close by but still scrupulously outside the truck and prepared to inhale his first whiff, the Fourth Amendment could not conceivably have been offended by the immediately ensuing sniff or sniffs for the reason that the Fourth Amendment does not guard against sniffing, reasonable or unreasonable, and was not, therefore, in any way involved. A Possible Issue: The Detention That Preceded or Attended the Sniff The question remains, however, of whether, looking backward, the Fourth Amendment was offended by Trooper Prince’s ordering of the appellant to turn off the ignition and to leave the truck in place for the few moments, described as less than a minute, that it took to bring Sandy onto the field. ⁵⁶⁰ Everything hinges upon the reasonableness of that brief detention—if the detention was material. It is only by the narrowest of margins that the detention itself is, indeed, material in a Fourth Amendment sense.

Before examining the reasonableness of the detention, it is necessary to determine whether it represented an actual causative link in the investigative chain or whether it was merely a coincidental measure, attendant upon the investigation to be sure but not critical to it. We gather from the testimony that, generally speaking, the drug sniffing dog and its handler are routinely present in the immediate vicinity of the guardhouse as each arriving motorist stops to respond to the questioning of the guard. In such a case, the olfactory scan by the dog would be essentially simultaneous with the conversational exchange between the motorist and the guard. Any further detention beyond pausing at the guard shack would not be indispensable in order for the dog and its trainer to carry out their scanning mission.

Even a vehicle moving from a dead stop into forward gear or reverse would remain vulnerable to the sniffing process and its possibly incriminating results for the time necessary for a canine smell. Indeed, the stated purpose of the police in ordering the motorist to turn off the ignition and to keep the vehicle immobile for the brief period of canine inspection is not to enable the dog and handler to carry out the inspection per se but rather to enable them to do so in a way that more adequately guarantees the safety of dog and handler: When we do this we have the person turn the vehicle off, take, usually take the keys out of the ignition, that prevents the people from trying to run us over. There have been times at the Correctional Institute where people tried to run us over when we were trying to perform these scans. (emphasis supplied).

If the sniffing of the appellant’s truck by Sandy were going to be carried out in any event, regardless of whether the truck was at rest or was shifting into gear and beginning to move, the detention, reasonable or unreasonable, would have no ⁵⁶¹ bearing on the ultimate suppression issue. Trooper Prince would have had the benefit of Sandy’s olfactory sensations, whether that data was gathered safely or perilously. If the only purpose of the detention was to ensure that neither Trooper Prince nor Sandy would be hit or run over by the appellant’s truck, the detention would not have been the source of the incriminating data and would have been a merely coincidental safety measure. Cf.

Pennsylvania v. Mimms, 434 U.S. 106, 109-111 , 98 S.Ct. 330, 332-334 , 54 L.Ed.2d 331, 336-337 (1977). It is a simple matter of cause and effect. If the immobilization of the appellant’s truck made the scan possible, the reasonableness of that immobilization would be material to the suppression issue. If the immobilization did nothing more than guarantee that Sandy, while sniffing, would not go in harm’s way, it would be immaterial to the suppression.

In this particular case, the testimony lends itself to the interpretation that Sandy was not immediately present at the guardhouse when the appellant’s truck came to a stop but had to be brought to the scene from a short distance away, albeit within a fraction of a minute. Since warrantless Fourth Amendment intrusions are presumptively unreasonable and the burden is on the State to rebut that presumption, any doubt in this regard must be resolved in the appellant’s favor. We will, therefore, treat the brief detention as having been a necessary predicate for the olfactory scan and will examine its reasonableness under the Fourth Amendment. Yet Another Non-Issue: Consent, Express or Implied It is clear that the appellant did not consent to that detention.

Consent is in no way a factor in this case. After the initial brief exchange between the appellant and the guard at the guard shack, Trooper Prince approached the appellant and directed him to turn off the ignition because Sandy was about to walk around the truck and smell it. The appellant demurred, expressing his unequivocal desire to turn around and ⁵⁶² drive away from the prison rather than to submit the vehicle to the sniffing. The appellant, however, no longer had any option.

He was ordered to turn off the ignition and remain in place. He complied. Self-evidently, there was no express consent. Neither is this a case in which the appellant’s acquiescence to the police order could be deemed implied consent.

Had the appellant gone on to proceed deeper into the prison compound and had he, for that purpose, complied with the necessary condition precedent of subjecting his truck to the dog sniff, that might be analyzed as an instance of implied consent even if no words of consent were spoken. Implied consent, moreover, is frequently relied upon as the rationale for airport searches, where proceeding through the metal detectors is a precondition for boarding the plane or even for proceeding to the departure gate. In cases of implied consent, however, the person whose consent is requested, either expressly or by the circumstances, retains the option to consent to the search or to forego entry into the prison, onto the plane, etc., thereby avoiding the search. It is an inherent characteristic of consent that it can be denied at any time or, having been given, can be revoked at any time.

The brief immobilization of the appellant’s truck in this case was in direct obedience to an express order from Trooper Prince. Our Fourth Amendment examination will proceed in that context. The Narrow Issue: Ordering the Appellant Not to Drive Away This, in the last analysis, is a “checkpoint” case. We are not dealing with a brief detention of the appellant at a random time or in a random place.

We are dealing, rather, with the reasonableness of a required brief stop at a checkpoint. That a required stop at a checkpoint is a significant enough interference with an individual’s freedom of movement to engage the gears of the Fourth Amendment was made very clear by the Supreme Court in Michigan Dept. of State Police ⁵⁶³ v. Sitz, 496 U.S. 444, 450 , 110 S.Ct. 2481, 2485 , 110 L.Ed.2d 412, 420 (1990), where Chief Justice Rehnquist observed: Petitioners concede, correctly in our view, that a Fourth Amendment “seizure” occurs when a vehicle is stopped at a checkpoint. The question thus becomes whether such seizures are “reasonable” under the Fourth Amendment, (citations omitted). In Little v. State, 800 Md. 485 , 493-494, 479 A.2d 903 (1984), the Court of Appeals spoke to the same effect.

Chief Judge Murphy there observed: It is well recognized that stopping an automobile and detaining its occupants constitutes a “seizure” within the meaning of