Grimm v. State

Meredith, J. 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 ³⁸⁶ 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. 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. ³⁸⁷ 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, ie., 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 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 ³⁸⁸ 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 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 drug-detection 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 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, ³⁸⁹ 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, 568 U.S. 237 , 133 S.Ct. 1050 , 185 L.Ed.2d 61 (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 dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.” Id., 133 S.Ct. at 1057 . Grimm urged the suppression court to find that Ace was not a reliable drug-detection dog, that his training was deficient, and that his purported alert therefore did not provide support for Sgt. Lamb’s belief that he had probable cause to search the vehicle. During the suppression hearing, each side called two expert witnesses.

Officer Keightley (Ace’s handler) was accepted by the court as an expert in the field of K-9 police dogs and the detection of heroin, marijuana, cocaine, MDMA, and methamphetamine. Officer Keightley explained that he generally trains with Ace one day each week in various scenarios ³⁹⁰ designed to mimic situations they might encounter in the field. The State introduced in evidence written records of training conducted with Ace during 2012, 2013, and 2014. During Officer Keightley’s testimony, the State also introduced the field reports that had been completed by Officer Keightley after each drug scan performed by Ace.

Officer Keightley explained that the Maryland Transportation Authority Police has generated K-9 certification guidelines, and that Ace had first been certified in 2012, and was thereafter recertified every six months. The initial certification of Ace was performed by Officer Michael McNerney (who would later be called by Grimm as an expert witness at the suppression hearing). After reviewing with the court the dash-cam video recording of the scan of Grimm’s Honda, Officer Keightley reiterated that Ace gave an alert indicating that he had detected the odor of narcotics in the vehicle. During cross-examination of Officer Keightley, Grimm’s counsel reviewed with the officer the fact that the field reports reflected that Ace had given positive alerts to vehicles during 51 scans, but no contraband was found in 19 of those vehicles.

Officer Keightley had interviewed the occupants of those 19 vehicles and had been told by occupants of ten of the vehicles that, in fact, drugs had recently been present in those vehicles. On redirect examination, Officer Keightley said that there were several possible explanations other than error on the part of the dog that might explain why no drugs were found on the nine other occasions on which Ace had alerted: [S]omething might have [actually] been in the vehicle and it might not have been located [during the search]. Somebody might have used narcotics recently in the vehicle or used narcotics and touched the vehicle, contaminated the vehicle. Any of those things.

Officer Keightley conceded on cross-examination that, although he generally conducted weekly training with Ace, because of the manner in which he had routinely logged training time before his supervisor mandated a change, the hours he had spent each month had not met the organization’s standard until some point in time after the scan of Grimm’s ³⁹¹ vehicle. He acknowledged that he had not spent 16 hours of actual “sniff time” training with Ace in any of the six months leading up to April 19, 2014. The State also presented testimony from Sergeant Mary Davis, who was a police supervisor and narcotics-detection dog trainer for the Montgomery County Police Department. She had been working in that police department’s canine unit for over twenty years, and had been the head trainer since 2008.

She indicated that, although the State of Maryland does not mandate any particular standards for the performance of drug-detection dogs, she was very familiar with the standards recommended by the United States Police Canine Association and other similar organizations. Defense counsel stipulated that Sgt. Davis “is an expert in K-9 training and K-9 handling.” Sgt. Davis testified that the State of Maryland does not require certification of police dogs, but both the Montgomery County Police Department and the Maryland Transportation Authority Police had adopted requirements for certification and periodic recertification.

She confirmed that the certification protocol adopted by the Maryland Transportation Authority Police does “generally comport with industry standards.” In August 2014, Sgt. Davis and two other officers from the Montgomery County Police Department had conducted an evaluation of the canine teams at the Maryland Transportation Authority Police. Officer Keightley and Ace were tested on that occasion, and they passed the testing conducted by the officers from Montgomery County. Sgt.

Davis further testified that she had reviewed all of the training records that Officer Keightley had maintained for Ace, covering training exercises during 2012 through July of 2014. She saw that, during 2013, Ace had participated in 209 training scenarios in which drugs had been hidden, and during those exercises, Ace had had 24 non-productive responses (sometimes referred to as “NPRs” by dog trainers, and referred to as false alerts by defense counsel). Sgt. Davis said ³⁹² that she would not characterize “any one particular amount [of NPRs] as acceptable or unacceptable.” With respect to the 51 field scans that had been performed by Ace, Sgt.

Davis testified that the fact that no drugs were discovered in nine vehicles (for which the follow-up interviews provided no explanation) would not concern her, “Not even in the least bit.” In her view, even though there was no admission of the prior presence of drugs in those vehicles, the vehicles could have been previously used to transport drugs. She said: “So I would not be shocked that we didn’t [get] an admission and we weren’t able to find target odor. That can occur very easily.” Furthermore, Sgt. Davis considers a dog’s training records more useful than the field records because training typically occurs in a more controlled environment.

Based upon her review of the dash cam video recording of the scan of Grimm’s vehicle conducted by Officer Keightley and Ace, Sgt. Davis expressed an opinion that Ace clearly alerted to the presence of drug odor, and she saw no evidence that the handler cued the dog to alert. Sgt. Davis rejected defense counsel’s suggestion that Ace may have exhibited a false alert at Grimm’s driver-side door simply to get a reward.

She explained: “It looked to me that the dog was working independently to odor. And once he got into the odor he gave the indication.” She agreed that, in her experience, she had observed some dogs give a false alert just for a reward, but, she said: “I don’t see that that’s what occurred here.” When asked directly if she had an opinion regarding the “overall competence of the team of Officer Carl Keightley and K-9 Ace,” Sgt. Davis testified that, “[biased on the totality of the circumstances, looking at all of the training records in their totality, and having observed the team personally on three separate occasions,” she believed that “they are competent to be working the street and deploying, and making probable cause decisions on the street.” When asked, on cross-examination, to comment upon the strength of Ace’s abilities, Sgt. Davis said: “He has a tremendous skill set.

He’s got a lot of drive. He has a huge work ethic.” ³⁹³ The defense likewise called two canine experts as witnesses. Ted Cox was a retired police officer who had extensive experience as a K-9 trainer for the Baltimore City Police Department, including six years as chief trainer. He had also been employed as the K-9 trainer for the Maryland Transportation Authority Police from 2007 to 2012.

The State stipulated that he was an expert in K-9 training and handling. Mr. Cox had analyzed Ace’s training records for the period covering April 15, 2013, through March 24, 2014, and concluded that, by his count, Ace had been put through 179 scenarios, and had made 44 false alerts, which Mr. Cox viewed as unacceptable. He also criticized Ace for “excessive barking” during the approach to Grimm’s vehicle. Mr. Cox expressed opinions that were critical of Ace’s training as reflected in the training records, and he believed that Ace should not have been recertified on August 19, 2014, because of a false alert the dog gave during that testing.

He concluded that Ace’s hours of training, as recorded prior to the scan of Grimm’s vehicle, did not meet “the industry standard,” and he said, “after reviewing the records and the dash cam video, it’s my opinion that the dog is unreliable at this point.” In his opinion, Ace did not alert to the odor of the drugs that were later found in the car, but instead alerted to the “human scent” of the occupants of the car, in particular, Grimm, who had been resting upon the driver-side door for several minutes prior to the scan. Mr. Cox reiterated: “There is no doubt in my mind that the dog is unreliable.” The second dog expert called by the defense was Senior Officer Michael McNerney, who had been a trainer for the Maryland Transportation Authority Police since 2009, and had worked under Ted Cox until the end of 2012. Officer McNer-ney then became the head trainer for explosives-detection dogs, and in September 2013, Officer McNerney assumed the additional responsibility for training of narcotics-detection dogs as well. He was accepted by the court as an expert in the field of canine training and handling. ³⁹⁴ Officer McNerney explained that, in March 2014, when he reviewed the training records for Officer Keightley and Ace, the records did not reflect that that team had met the Transportation Security Administration’s standard requiring 240 minutes of “sniff time” in training each month.

As a consequence of that discovery and other concerns Officer McNerney had communicated to his superiors regarding training deficiencies in the canine unit, Officer McNerney “stepped down” from his position as head trainer on March 11, 2014. But he was ordered back to the position in May 2014. When Officer McNerney resumed the position of head trainer in May 2014, he “decertified” Ace and Officer Keightley because of the manner in which Officer Keightley (and other officers in the K-9 unit) had been recording their training hours. Nevertheless, Ace and Officer Keightley were recerti-fied by Officer McNerney just two days later.

Despite acknowledging that he had recertified Officer Keightley and Ace in May 2014, Officer McNerney testified that he had observed several problems with the manner in which Officer Keightley trained with Ace, including “cuing,” “object focusing,” and “a lot of falsing issues,” in addition to inadequate sniff time. He also reported that he was concerned that the drug samples that were being hidden as training aids for the dogs to find had become stale, and he had replaced several of the samples during the summer of 2014 after a chemist’s analysis confirmed that the sample drugs being used for training contained “significant impurities.” On cross-examination, Officer McNerney acknowledged that, after he became head trainer (in September 2013), he had personally conducted recertification testing of Officer Keightley and Ace in January 2014, and he had certified that they passed the test on January 22, 2014. Pursuant to Maryland Transportation Authority Police standard operating procedures, recertification is supposed to occur every six months. Consequently, the January 22, 2014, certification would have been current and “in effect” at the time of the scan of Grimm’s vehicle on April 19, 2014.

Officer McNerney also acknowledged that he had been “involved with” the initial certification ³⁹⁵ of Officer Keightley and Ace back in 2012, and that they passed the initial certification test on the first try. After the close of evidence at the suppression hearing, defense counsel argued that, based upon the training records and field performance records for Ace and Officer Keightley, the court should find that Ace was not a reliable drug-detection dog on April 19, 2014, and that his alert to narcotics therefore did not provide probable cause to conduct a warrant-less search of Grimm’s vehicle. Grimm also disputed whether Ace actually alerted to contraband at all during the stop. The State countered that the evidence established that Ace was well-trained and certified, and was therefore reliable, which meant that, under Florida v. Harris, Sgt.

Lamb had probable cause to search Grimm’s vehicle based upon Ace’s alert to the presence of contraband. The circuit court denied Grimm’s motion to suppress the evidence discovered during the search of his vehicle. The court observed that there was no dispute that Sgt. Lamb had a reasonable basis to conduct a Whren stop of the vehicle because none of the occupants were wearing seatbelts.

See Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”). And, the court noted, there was no suggestion that the traffic stop was unreasonably extended for the purpose of conducting the dog scan. Cf. Wilkes v. State, 364 Md. 554, 583 , 774 A.2d 420 (2001) (K-9 scan was conducted prior to officer’s completion of tasks incident to the initial purpose of the traffic stop).

The suppression court noted that “the State concedes[,] as I think it rightly should[,] that there is no probable cause absent the K-9 alert.” And, the court added: “I will tell you that[,] absent the K-9 alert, if this had been litigated solely on those issues [i.e., what the officers knew prior to the K-9 alert], I would not have found probable cause.” But the court concluded that, after Ace scanned the vehicle and gave an alert for the presence of narcotics, Sgt. Lamb had ³⁹⁶ probable cause to search Grimm’s vehicle. The court found that Ace and Officer Keightley were certified at the time of the stop and the scan. The court expressly found Sgt.

Davis to be the most credible witness who testified in the case. The court elaborated: “I find her qualifications, her knowledge, her training and experience to be impeccable.... I find her to be the most credible witness and it is she who I rely upon the most and find to be the best and most objective observer.” The court also said: “I find her analysis of the stop and the dog’s actions to be credible.” The court further commented: “She explains, ... to the satisfaction of the Court that I can find Officer Keightley and K-9 Ace to be credible and to be a certified dog that the Court can rely upon for assessing whether or not probable cause exists.” The court therefore concluded that there was probable cause in this case for the officers to believe that there was a “fair probability” that one of the drugs that Ace was trained to detect would be found in the vehicle. Pursuant to Maryland Rule 4-242(d)(2), Grimm entered a conditional plea of guilty to possession of heroin with intent to distribute; he was sentenced to a 15-year term of imprisonment.

This direct appeal followed. DISCUSSION A. Standard of Review of Motions to Suppress Evidence When we review a ruling from the circuit court concerning a motion to suppress evidence, “we must rely solely upon the record developed at the suppression hearing.” Briscoe v. State, 422 Md. 384, 396 , 30 A.3d 870 (2011). “We view the evidence and inferences that may be drawn therefrom in the light most favorable to the party who prevails on the motion,” which was the State in this case. Id. Accord Robinson v. State, 451 Md. 94, 108 , 152 A.3d 661 (2017) (“ ‘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.’ ” (Quot ³⁹⁷ ing Varriale v. State, 444 Md. 400, 410 , 119 A.3d 824 (2015)); Hailes v. State, 442 Md. 488, 499 , 113 A.3d 608 (2015) (“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.” (Internal quotation marks, citations, and alteration marks omitted.)).

As' an appellate court, when we review the denial of a motion to dismiss, “[w]e review the findings of fact for clear error and do not engage in de novo fact-finding.” Haley v. State, 398 Md. 106, 131 , 919 A.2d 1200 (2007) (citing Ornelas v. United States, 517 U.S. 690, 699 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)). Accord Robinson, supra, 451 Md. at 108 , 152 A.3d 661 (“ ‘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 ....’” (Quoting Varriale, supra, 444 Md. at 410 , 119 A.3d 824 .)); Raynor v. State, 440 Md. 71, 81 , 99 A.3d 753 (2014) (“We accept the suppression court’s factual findings unless they are shown to be clearly erroneous.”); see also Ornelas, supra, 517 U.S. at 699, 116 S.Ct. 1657 (“[A] reviewing 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 resident judges and local law enforcement officers.”). The Court of Appeals has made plain that “[fjindings of fact and credibility are to be made by trial courts, not appellate courts.” Longshore v. State, 399 Md. 486, 520-21 , 924 A.2d 1129 (2007); accord Barnes v. State, 437 Md. 375, 398 , 86 A.3d 1246 (2014) (“The credibility of the witnesses and the weight to be given to the evidence fall within the province of the suppression court.”). “ ‘If there is any competent evidence to support the factual findings of the trial court, those findings cannot be held to be clearly erroneous.’ ” Goff v. State, 387 Md. 327, 338 , 875 A.2d 132 (2005) (quoting Solomon v. Solomon, 383 Md. 176, 202 , 857 A.2d 1109 (2004)). When reviewing the suppression court’s interpretation of the applicable law, however, the appellate court “ ‘re ³⁹⁸ views without deference the trial court’s application of the law to its findings of fact.’ ” Robinson, supra, 451 Md. at 108 , 152 A.3d 661 (quoting Varriale, supra, 444 Md. at 410 , 119 A.3d 824 ).

We “ ‘undertake our own independent constitutional appraisal of the record by reviewing the law and applying it to the facts of the present case.’ ” Prioleau v. State, 411 Md. 629, 638 , 984 A.2d 851 (2009) (quoting State v. Tolbert, 381 Md. 539, 548 , 850 A.2d 1192 (2004)). B. Drug-Detection Dog Alerts The Fourth Amendment to the United States Constitution protects against “unreasonable searches and seizures.” U.S. CONST, amend. IV. “ ‘[W]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant.’ ” Riley v. California, — U.S.