Johnson v. State

MURPHY, Judge. In the Circuit Court for Anne Arundel County, a jury convicted Ronald Eugene Johnson, Petitioner, of possession of cocaine with intent to distribute, several other violations of the ²⁰⁸ Maryland Controlled Dangerous Substance Act, and fourth degree burglary. The State’s evidence was sufficient to establish that he committed those offenses in Annapolis, Maryland on April 12, 2005. Petitioner does not argue to the contrary.

He does, however, argue that he is entitled to a new trial on the ground that he was unfairly prejudiced by the introduction of evidence that a drug-sniffing dog “alerted” to currency seized from his person incident to his arrest. In an unreported opinion filed on October 3, 2007, the Court of Special Appeals affirmed Petitioner’s convictions. Johnson v. State, No. 2473, September Term, 2005, 176 Md.App. 758 . Petitioner then filed a Petition for Writ of Certiorari, in which he requested that this Court answer three questions: 1.

Is evidence of a drug-sniffing dog’s alert to currency (and, here, to the pants in which the currency was being carried) ever admissible in criminal prosecutions, and, if so, was it admissible under the circumstances of this case? 2. Did the Court of Special Appeals err in holding that the issue presented in Question 1 is not preserved for appellate review despite the fact that the trial court overruled Petitioner’s objections and gave defense counsel a continuing objection? 3. Did the trial court err in allowing a canine officer to testify that, based on his test of currency drawn from a bank, the belief that most currency in general circulation is contaminated with drug residue and that a drug-sniffing dog, therefore, will always alert to currency is not a “legitimate” belief? We granted the petition. 402 Md. 355 , 936 A.2d 852 (2007).

For the reasons that follow, we shall answer “yes” to each of Petitioner’s questions, vacate the judgments of conviction and remand for a new trial. As to question 1, we are not persuaded that the Circuit Court erred or abused its discretion in overruling Petitioner’s objection to the testimony that the drug-sniffing dog “alerted” to Petitioner’s pants and the currency found therein. As to ²⁰⁹ question 2, we agree with Petitioner that the arguments he presents to this Court have been preserved for our review. As to question 3, we are persuaded that error occurred during the direct examination of the canine officer when (1) the Circuit Court overruled Petitioner’s objection to a question which included the assertion that “some people believe that most currency in general circulation is contaminated with drug residue ... even currency in a bank,” and which asked the canine officer whether such a belief was “legitimate,” and (2) the officer was permitted to opine that, based upon a “test” in which his dog did not alert to “currency drawn from a bank,” such a belief is not a “legitimate” one. 1 Relevant Factual Background The opinion of the Court of Special Appeals includes the following factual summary: Shortly before noon on April 12, 2005, [Petitioner] Ronald Eugene Johnson was spotted by Annapolis City Police Officer Christopher Kintop “fleeing on foot from [his] location on Copeland Street towards Royal Street.” The officer saw [Petitioner] turn a corner but then lost sight of him.

Approximately twenty minutes later, Kintop and other Annapolis police officers gathered at 900 E. Royal Street in front of a house where Shayila Allen resided. The officers, suspecting that [Petitioner] was inside, knocked on Allen’s door and shouted, “Police department,” whereupon [Petitioner] opened the second-floor bedroom window and demanded to know what the officers wanted. They told him to come outside. A few minutes passed, during which time there was “a bunch of commotion” coming from the bedroom where [Petitioner] had appeared. [Petitioner] then shouted from the window a second time at the police officers. ²¹⁰ Seconds later, several officers entered the residence and apprehended [Petitioner].

The officers then proceeded to the second-floor bedroom where they found, strewn on the bed, a plastic bag containing 1.41 grams of marijuana, another bag containing 12 methamphetamine pills, and a small bottle containing 0.024 grams of PCP. Next to the drugs was a Nextel cell phone. [Petitioner] was transported to the Annapolis police station and searched. Police found $845.00 in cash [in] his pants pocket, as well as a Motorola cell phone clip that fit the Nextel cell phone previously uncovered in the residence. The pants that [Petitioner] had been wearing were also seized.

Later that day, an Annapolis police dog named “Aries” was brought in to conduct canine scans of [Petitioner’s pants and the currency found inside. The dog, according to his handler — Annapolis Police Officer Christopher Tucker— was trained to detect the scent of marijuana, heroin, cocaine, methamphetamine and related drug derivatives in “various quantities from residual to larger amounts.” And the dog, according to Officer Tucker, had successfully identified drug-tainted currency on 40-50 prior occasions. In two separate scans, Aries “alerted” to [Petitioner]^ pants and the currency inside. Johnson v. State, No. 2473, September Term, 2005, slip op. at 1-3, 176 Md.App. 758 (footnotes omitted).

Although the State did not need the canine scan evidence to generate a jury question on the issue of whether Petitioner had been in possession of the drugs found in the bedroom, because Petitioner was not in actual possession of any drugs when he was finally taken into custody, the canine scan evidence was obviously of significant consequence to the issue of whether the State had satisfied its burden of persuasion. The following transpired during a pretrial in limine hearing: [DEFENSE COUNSEL]: ... The next [motion in limine] is that the State attorney, I believe, will be trying to ²¹¹ introduce evidence of the dog alert to my client’s pants. I would argue that that would be misleading to the jury.

They would take more weight out of what that particular experience is about and that would unnecessarily lead them to a conclusion that there were actually drugs there when the dog’s alert is really to an owner [odor] — it gives probable cause when you are trying to arrest somebody, but I don’t believe that that should be coming in as substantive evidence against my client on these particular drug charges. The Circuit Court denied the motion “at this moment,” but agreed to “revisit” this issue during the trial. The prosecutor’s opening statement, which made no mention of the canine scan evidence, included the following comments: Well, in this case the Defendant made a mistake. Basically, he was wanted by the police on the date in question. ❖ * * Well Officer Kintop . .. sees the Defendant and he almost gets him.

And he is wanted at this point, but he gets away. But that doesn’t stop the police, they are still looking for this Defendant. And ... the police find him. And they go to the house where the Defendant is.

The police surround the house and, low and behold, they see the Defendant’s face pop up and look out the window. And they know who it is, so they know that it is him. As the police are surrounding the house, something funny happened. They start hearing things moving around, the furniture.

Remember, this is a bedroom that is like looking out over the street. And the police hear all this noise, so they know he is up to something. So the police surround him. They have a consent to search the place from the actual homeowner.

He comes out and he surrenders himself. They take him into custody. And the police go up to that very room where he had just been spotted and, low and behold, there are drugs. ²¹² * * * By the way, something else happened that was kind of significant. When the police come in, all the drugs are on this bed, basically, hastily dumped because the Defendant didn’t have time to do a better job of hiding his stash.

But there is a cell phone on that bed. And when the police actually take this Defendant into custody he has got a cell phone clip on his belt, but no cell phone. The cell phone is one of the things that got dumped because that is probably where he is getting those calls in from people who want to buy drugs. So the police — it is real simple, but they basically take the phone and you know what?

It is a perfect match; it is a fit. And you will be able to see the cell phone. And you will be able to hear from the Detective who seized the clip and ... will tell you that he matched the clip up. The opening statement by Petitioner’s trial counsel likewise made no mention of the canine scan evidence.

When the State called Officer Tucker to the stand, Petitioner’s trial counsel requested a bench conference, and the Circuit Court granted that request. The following transpired at the bench: [DEFENSE COUNSEL]: I just want to preserve this issue. I hear the Court’s ruling and I just want to say that I object to anything that Officer Tucker has to say. I think that his testimony will be irrelevant.

And if it is deemed relevant, it will be confusing and misleading to the jury. He can testify about probable cause. If he is not able to say yes, the drug dog is, you know, like a chemical reaction test that gives us proof that it was drugs in his pants. THE COURT: All right.

I will take that under advisement. My ruling stands right now. At this point, Petitioner’s trial counsel requested a “continuing objection” to the canine scan evidence, and the Circuit Court granted that request. During Officer Tucker’s direct ²¹³ examination, he was asked a series of “qualifications” questions, most of which are included in § 4.1 (Predicate questions for direct examination of [the] canine handler) of a “guide” prepared by a staff attorney in the Drug Enforcement Administration’s Office of Chief Counsel, and “designed to suggest ways the canine handler and prosecutor can strengthen the impact of canine alert ‘testimony’ in court.” This guide includes the following recommendations: 4 Preparing The Canine Handler For Trial The canine handler, having followed the proper procedures governing the use of the canine and having thoroughly documented the activities of the canine, must still be prepared to persuade a judge or jury that the canine is competent to detect the scent of drugs and that the handler is competent to interpret the canine’s message.

The government counsel, likewise, should be prepared to counter challenges to the canine’s evidence, which often takes the form of evidence of currency contamination. 4.1 Predicate questions for direct examination of canine handler The government attorney must be prepared to set out the qualifications of both the canine and the handler in a convincing manner at trial. The following is a sample of predicate questions which may assist the government attorney in doing this. 1. How long have you been employed in your present occupation and what is the nature of your duties and responsibilities? 2. What specialized training have you had in the handling of a drug canine?

How long have you been paired with this canine? 3. What specialized training has the canine had in the detection of drugs? What was the canine required to do in order to successfully complete that training? 4. Has the canine been trained on controlled substances or “pseudo-substances”?

Is it better to train a canine ²¹⁴ on controlled substances? What do you use when training your canine? . Describe the process by which the canine is certified to detect drugs and you are certified to handle the canine. . How often are you each recertified and describe that process? .

How many hours per week do you train your canine? Describe the training activities and explain the importance of these activities to the canine’s performance. Do you document this training? . Have you ever discovered that your canine was alerting to a scent other than a drug scent, and, if so, what steps have you taken to correct that behavior?

Have you .documented these instances? . Has the canine ever alerted and a subsequent search failed to reveal either drugs or money? In those instances, has your follow-up discovered evidence to suggest that drugs were in fact present at one time in that area? Have you documented these instances? .

What quantity of drugs has your dog been trained on and what quantity do you use when training your dog? 11. Have you ever tested your canine with currency drawn from a bank to determine if your canine is mistakenly alerting just to the scent of currency in general circulation? Have you documented those instances? 12. Some people believe that most of the currency in general circulation is contaminated with drug residue, and that therefore a canine will always alert to currency, even currency in a bank.

Based upon your tests with currency drawn from banks, is that a legitimate belief? 13. When seized currency is to be tested by [the] canine, how is the testing area prepared and how.is the curren ²¹⁵ cy handled to insure that the canine is not alerting to a scent other than the scent of drugs? William E. Ringel, Searches and Seizures, Arrests and Confessions, app. 6, §§ 4 & 4.1 (West ed. Supp. 2008).

The following transpired during Officer Tucker’s direct examination: [THE PROSECUTOR:] And have you ever discovered that your canine was alerting to a scent other than a drug scent? [OFFICER TUCKER:] No. [THE PROSECUTOR:] And has the canine ever alerted [where] a subsequent search failed to reveal either drugs or money? [OFFICER TUCKER:] Neither drugs or money. Is that what you said? [THE PROSECUTOR:] Yes. Or either drugs or money? [OFFICER TUCKER:] Yes, that has occurred. [THE PROSECUTOR:] And in those instances[,] has your follow-up discovered evidence to suggest that drugs were in fact present at one time in that area? [OFFICER TUCKER:] Yes, many times. [THE PROSECUTOR:] And have you documented those instances? [OFFICER TUCKER:] Yes, I have. * * * [THE PROSECUTOR:] And how many times have you used your canine to examine currency? [OFFICER TUCKER:] Approximately, I’d say 50-40, 50 times. [THE PROSECUTOR:] And how many times that you know of has your dog alerted? [OFFICER TUCKER:] In street patrol, those 40 to 50 times[,] they’ve actually all been positive alerts. [THE PROSECUTOR:] And have you ever tested your canine with currency drawn from a bank to determine if ²¹⁶ your canine is mistakenly alerting just to the scent of currency in general circulation? [OFFICER TUCKER:] Yes, I have. [THE PROSECUTOR:] And what [were] the results of that? [OFFICER TUCKER:] It was a controlled — training situation. The dog did not alert to the — it was circulated currency drawn from a bank. [THE PROSECUTOR:] And some people believe that most of the currency in general circulation is contaminated with drug residue and that therefore canine will always alert to currency, even currency in a bank.

Based on your test of the currency drawn from a bank, was that a legitimate [belief]? [DEFENSE COUNSEL:] Objection. THE COURT: Overruled. You may answer. [OFFICER TUCKER:] I don’t believe so, no. [THE PROSECUTOR:] And when seized currency is to be tested by the canine, how is the testing area prepared? [OFFICER TUCKER:] Well, I always make sure that the [officer] is instructed to have the money packaged in a clean package, whether it’s an envelope or bag. I also make sure I always bring my canine into the area that’s going to be used for the testing before the money is placed by that officer and allow them to search the area to insure that they don’t give any positive alerts; that is, they aren’t being contaminated by controlled substances at some other prior time or some other drugs there that could compromise the actual search of the currency that’s going to be performed.

Officer Tucker then testified about the scans performed on Petitioner’s clothing and on the cash seized from Petitioner’s person. According to Officer Tucker, “the dog was alerting to the scent of controlled substances, which he is trained to detect[.]” ²¹⁷ The prosecutor’s closing argument included the following comments: Finally, perhaps some of the best evidence is the dog. This is a good dog. The dog is named Aries.

He and his handler have been through a ton of training. And I invite you to take a look at the exhibits that were entered. The certifications that he has been through. Not only does he get these certifications, but he goes through them on a yearly basis.

He keeps training with the dog. He goes to the classes. But importantly, every single day he is working with that dog. He lives with that dog.

That dog is a very important part of his life. He knows that dog well. They hang around at the station and make up drills for the dog sometimes just for fun. Sometimes they try to trick the dog.

They give him a non-CDS item and they try to see if the dog will alert on it. And what Officer Tucker said was really important. This is a good dog. This is a dog that doesn’t make mistakes.

He hasn’t had to go through and try to retrain the dog except that when it takes out the wrong substance. It doesn’t. When that dog smells what it believes to be CDS, it sits. It alerts is what we call it.

And in this case, they have the Defendant take off his pants. They clear the room. They have the dog search the room when there is nothing in it; no drugs, no items. They bring the dog back out.

They hide the pants. They hide the $845 that the Defendant had and guess what? The dog alerts. You can’t fool the dog.

The dog alerted to the Defendant’s pants pocket. So you will have that as evidence. The — was cut out; it was not the entire pair of pants. But the dog alerted because the drugs were in the Defendant’s pants.

They were on his person when the house got surrounded and the Defendant ha[d] to unload the drugs. You can’t fool the dog. During the closing argument for the defense, Petitioner’s trial counsel emphasized the fact that no “fingerprint” evi ²¹⁸ dence or “DNA” evidence linked Petitioner to the drugs, suggested that the drugs belonged to the occupants of the house, and urged the jurors “to ask yourself if you had five to ten minutes do you leave the drugs out in the middle of the bedroom?” Petitioner’s trial counsel did not, however, say anything about the canine scan evidence. During the State’s rebuttal argument, the prosecutor stated: Number two, if Ms. Allen is the person whose drugs they were; whose phone was there, why is the dog picking out his pants out of the room?

Why is the dog picking out the Defendant’s money in this room? As stated above, Petitioner was convicted of the burglary and controlled dangerous substances violations, those convictions were affirmed by the Court of Special Appeals, and this Court granted his petition for writ of certiorari. Discussion I. Petitioner’s argument that the canine scan evidence should have been excluded under Md. Rules 5-401 and/or 5-408 is based upon the argument that the Circuit Court should have taken judicial notice of the “currency contamination theory.” We are persuaded, however, that the Circuit Court did not err or abuse its discretion in overruling Petitioner’s objection to Officer Tucker’s testimony that “the dog was alerting to the scent of controlled substances[.]” The currency contamination theory is based upon the assumption that a high percentage of United States currency bills in circulation contain trace amounts of cocaine and/or other drug residue. See, e.g., Illinois v. Caballes, 548 U.S. 405 , 412, 125 S.Ct. 834 , 160 L.Ed.2d 842 (2005) (Souter, J., dissenting) (noting “the pervasive contamination of currency by cocaine”); Bennis v. Michigan, 516 U.S. 442 , 460 n. 1, 116 S.Ct. 994 , 134 L.Ed.2d 68 (1996) (Stevens, J., dissenting) (noting that “[i]t has been estimated that nearly every United States bill in circulation — some $230 billion worth — carries trace amounts of cocaine”); Muhammed v. Drug Enforcement ²¹⁹ Agency, 92 F.3d 648, 653 (8th Cir.1996) (“[I]t is well established that an extremely high percentage of all cash in circulation in America today is contaminated with drug residue.”); United States v. Saccoccia, 58 F.3d 754, 777 (1st Cir.1995) (recognizing the “widespread contamination of currency”).

Although not yet “as numerous as the sands of the sea,” cases discussing the currency contamination theory often cannot be reconciled. 2 Because Petitioner did not present any expert testimony in support of his argument that canine scan evidence is “misleading,” the case at bar does not present admissibility issues involving such testimony. 3 Petitioner requests that, pursuant to Md. Rule 5-201(b), this Court “judicially notice” that currency contamination is so widespread as to require the exclusion of the canine scan evidence in the case at bar. Maryland Rule 5-201(b), which is identical to Rule 201(b) of the Federal Rules of Evidence, requires that a judicially noted fact be “either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy ²²⁰ cannot reasonably be questioned.” Of the cases that have addressed the question of whether the trial court should take judicial notice of the fact that most currency in circulation contains detectable traces of controlled dangerous substances, we are persuaded that the better reasoned cases are the ones holding that such a fact should not be judicially noticed. Cases holding that the result of a properly conducted canine scan test does have some probative value include United States v. Carr, 25 F.3d 1194 (3d Cir.1994), United States v. Funds in Amount of Thirty Thousand Six Hundred Seventy Dollars, 403 F.3d 448, 459-60 (7th Cir.2005), United States v. Jaimes, 297 F.Supp.2d 1254, 1255-56