State v. Ofori

²¹⁵ MOYLAN, J. The appellee, Michael Jackson Ofori, was indicted by the Grand Jury for Prince George’s County for six separate counts involving controlled dangerous substances and handgun violations. He filed a pretrial motion in the Circuit Court for Prince George’s County, seeking to have the physical evidence suppressed on the ground that the search that led to the evidence violated the Fourth Amendment of the United States Constitution. The motion to exclude the evidence was granted. A State Appeal The State has appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c), which provides in pertinent part: (c) Criminal case. — In a criminal case, the State may appeal as provided in this subsection.

(3)(i) In ... cases under §§ 5-602 through 5-609 and §§ 5-612 though 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. (Hi) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.

(iv) If the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is ²¹⁶ affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. (Emphasis supplied). Accordingly, our decision in this case, should we opt to reverse, must be filed no later than September 14, 2006. Standard of Review Several factual issues 'will be significant factors in our ultimate resolution of the appeal, and it behooves us to set out clearly the rules of review on fact-finding.

First and foremost is that of deference to the non-clearly-erroneous fact-finding of the hearing judge. Morris v. State, 153 Md.App. 480, 489 , 837 A.2d 248 (2003), cert. denied, 380 Md. 618 , 846 A.2d 402 (2004), described that primary standard of fact-finding review. The most basic rule of appellate review of fact-finding is that of extending great deference to the fact finder, be it judge or jury. Appellate judges do not see or hear the witnesses or have the benefit of any sort of non-verbal communication.

They are relatively far less able to assess credibility than are the fact finders on the scene. Appellate judges, moreover, are not immersed in the local context and do not get the sometimes inexpressable “feel” of the case. They are relatively far less able to weigh the evidence than are the fact finders on the scene. The basic rule of fact-finding review, therefore, is that the appellate court will defer to the fact-findings of trial judge or jury whenever there is some competent evidence which, if believed and given maximum weight, could support such findings of fact.

That is the prime directive. (Emphasis supplied). In this case, however, that primary rule of fact-finding review is totally inapplicable. The hearing court made no findings of fact but raced straight to its unadorned constitutional conclusion: THE COURT: All right.

Motion to Suppress Search and Seizure is granted. MR. WOOD: Thank you, Your Honor. ²¹⁷ THE COURT: I don’t think it was reasonable. MS.

ENGEL: The Motion to Suppress is granted? THE COURT: Yes. (Emphasis supplied). That lack of judicial fact-finding, however, does not mean that we need not review the factual evidence in the case to see what conclusions will be drawn from the evidence.

It is precisely in such a situation that the supplemental rule of fact-finding review comes into play. It was also explained in Morris v. State, 153 Md.App. at 489-90 , 837 A.2d 248 : Sometimes the hearing judge may simply have made a ruling on suppression without announcing any findings of fact. How then does the appellate court, in reviewing a suppression hearing ruling, fill those fact-finding gaps, partial or total? What does the appellate court do when there is no fact-finding, or incomplete fact-finding, to which to defer?

It is here that the supplemental rule of interpretation comes into play. In determining whether the evidence was sufficient, as a matter of law, to support the ruling, the appellate court will accept that version of the evidence most favorable to the prevailing party. It will fully credit the prevailing party’s witnesses and discredit the losing party’s witnesses. It will give maximum weight to the prevailing party’s evidence and little or no weight to the losing party’s evidence.

It will resolve ambiguities and draw inferences in favor of the prevailing party and against the losing party. It will perform the familiar function of deciding whether, as a matter of law, a prima facie case was established that could have supported the ruling. This is, however, the supplemental rule that is only brought to bear on the record of the suppression hearing when the hearing judge’s fact-finding itself is 1) ambiguous, 2) incomplete, or 3) non-existent. The supplemental rule guides the appellate court in resolving fact-finding ambiguities and in filling fact-finding gaps. ²¹⁸ (Emphasis supplied).

And see Charity v. State, 132 Md.App. 598, 606 , 753 A.2d 556 (2000). In this case, the prevailing party at the suppression hearing was the appellee. When different plausible versions of the facts, including inferences that may fairly be drawn therefrom, are presented by the record, we will assume as true that version most favorable to the appellee. With respect to the ultimate conclusion of whether the Fourth Amendment was violated, we must make, de novo, our own independent constitutional appraisal.

State v. Carroll, 383 Md. 438, 445-46 , 859 A.2d 1138 (2004); Dashiell v. State, 374 Md. 85, 93-94 , 821 A.2d 372 (2003); Rowe v. State, 363 Md. 424, 432 , 769 A.2d 879 (2001); Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Wynn v. State, 117 Md.App. 133, 165 , 699 A.2d 512 (1997), reversed on other grounds, 351 Md. 307 , 718 A.2d 588 (1998); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990). The Investigative Continuum In making our independent constitutional appraisal, our focus will be on the Fourth Amendment reasonableness of the length of time that the appellee was detained by the police. The investigative continuum that concerns us began on October 27, 2005, at approximately 12:20 p.m., when Officer Geoffrey Shaffer, of the City of Laurel Police Department, made a traffic stop of the black Cadillac being driven by the appellee. The appellee was stopped for two traffic infractions.

One was for failing to give a left-turn signal when turning left onto Route 97 from Hechingers Drive. Maryland Code, Transportation Article, § 21-604. The other was for having tinted car windows of a tint darker than the 35 percent allowed by law. Maryland Code, Transportation Article, § 22-406(i).

Officer Shaffer approached the driver’s side of the Cadillac and asked the appellee for his driver’s license and registration card. He testified: ²¹⁹ I was given a license and registration. The license was a D.C. license with name and picture of an Anthony Kyle Dukes, and that picture did not match the driver. (Emphasis supplied).

Officer Shaffer returned to his patrol car. He attempted to get a computer check on the D.C. license that had been given him in the name of Anthony Kyle Dukes. He also requested that a K-9 unit be sent to the scene. While still inside his vehicle, Officer Shaffer also began writing an equipment repair order, as well as a written warning for the turn signal violation.

Officer James Brooks, a K-9 handler, testified that he received the call to come to the scene at “approximately 12:30 p.m.” and that he arrived at the scene “ten minutes later, 12:40.” After being briefed by Officer Shaffer, Officer Brooks had his dog scan the Cadillac. The dog made a positive “alert,” one that was particularly strong in the area of the driver’s door. The officers removed the appellee and his passenger from the vehicle and then searched it. From inside the door panel on the driver’s side, they recovered suspected marijuana, suspected PCP, and a black handgun.

From inside the door panel on the passenger’s side, they recovered another handgun. After the recovery of the physical evidence from the car, both the appellee and his passenger were placed under arrest. A search of the appellee incident to his arrest revealed a large quantity of U.S. currency. With respect to wrapping up the original traffic stop, Officer Shaffer’s direct examination was as follows: Q. And at the time that you placed the Defendant under arrest, had you fully completed what you needed to do in order to conclude the traffic stop?

A. No, because I had yet to completely identify the driver because I had not gotten a good name for him. Along the time line of that continuum, we are concerned with fixing two points and with assessing the Fourth Amend ²²⁰ ment reasonableness of the length of time that elapsed in getting from the first point to the second. The Initial Traffic Stop: The Clock Begins to Tick The event from which we begin to measure the passage of time is easy, even if the precise time itself is not quite so susceptible to being pinpointed. Our assessment begins, of course, with the initiation of the traffic stop.

That is the moment the Fourth Amendment detention of the appellee begins. Ferris v. State, 355 Md. 356, 369 , 735 A.2d 491 (1999); Munafo v. State, 105 Md.App. 662, 670 , 660 A.2d 1068 (1995); Snow v. State, 84 Md.App. 243, 248-50 , 578 A.2d 816 (1990). Officer Shaffer had probable cause to believe that the appellee had committed both traffic violations. The Fourth Amendment propriety of the initial traffic stop was, therefore, unassailable.

State v. Green, 375 Md. 595, 609-10 , 826 A.2d 486 (2003); Rowe v. State, 363 Md. 424, 433-34 , 769 A.2d 879 (2001); Ferris v. State, 355 Md. 356, 369 , 735 A.2d 491 (1999); Larocca v. State, 164 Md.App. 460, 487-89 , 883 A.2d 986 (2005); Muse v. State, 146 Md.App. 395, 405-06 , 807 A.2d 113 (2002). As long as, objectively speaking, the officer had probable cause for the traffic stop, it is immaterial if, subjectively speaking, he had some other purpose in mind. Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). The appellee, indeed, does not contest the Fourth Amendment reasonableness of the initial traffic stop.

The legality of the beginning of the appellee’s detention is firmly established. Pinpointing the Onset of Detention Pinpointing the precise beginning of the detention on the clock is a bit more problematic. The hearing judge made no findings of fact. The appellee himself did not testify, nor did his passenger.

Officer Shaffer was the only witness to the initial detention who did testify, and he could only give an approximation. The time that he was asked about, moreover, was not the ultimate stopping of the appellee but rather his initial observation of the appellee. ²²¹ Q. And did there come a time when you observed a black Cadillac during your shift? A. Yes, there was. At about 12:20 in the afternoon.

Q. And where were you when you observed this vehicle? A. On Hechingers Drive, which is off of Maryland 197 near 7-Eleven. (Emphasis supplied). It was after that initial observation that Officer Shaffer subsequently saw the Cadillac make the left-turn violation onto Route 197.

At that point, the officer activated his emergency equipment and followed the Cadillac for “about a quarter of a mile” until it came to a stop at the intersection of Route 197 and Cherry Lane. Counsel for both the appellee and the State apparently had dispatch records available to them, however, although those records were not introduced into evidence at the hearing. In any event, in closing argument before the hearing judge, counsel for both the State and the appellee placed the commencement of the actual detention at precisely 12:23 p.m. That is good enough for us.

The lapse of time that we shall assess in this case, therefore, has a precise starting time of 12:23 p.m. The K-9 “Alert”: The Clock Stops At the other end of the time continuum, once the K-9 “alerted” to the probable presence of contraband drugs in the Cadillac, all Fourth Amendment uncertainty came to an end. Officer Shaffer and Officer Brooks had, by virtue of the K-9 “alert,” unquestionable probable cause for a warrantless Car roM-Doctrine search of the Cadillac, which they then proceeded to execute. To the extent to which it might be material, they also had unquestionable probable cause for the warrant-less arrest of the appellee as the driver of the Cadillac (not to mention the arrest of his passenger).

Albeit discussing a dog-sniff of luggage rather than a dog-sniff of an automobile, the Supreme Court in Florida v. Royer, 460 U.S. 491, 505-06 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983), ²²² expressly approved both the legitimacy and the probable-cause-generating significance of a canine “alert.” The courts are not strangers to the use of trained dogs to detect the presence of controlled substances in luggage. There is no indication here that this means was not feasible and available. If it had been used, Royer and his luggage could have been momentarily detained while this investigative procedure was carried out. Indeed, it may be that no detention at all would have been necessary.

A negative result would have freed Royer in short order; a positive result would have resulted in his justifiable arrest on probable cause. (Emphasis supplied). There is no meaningful distinction between the canine ability to smell what is inside a suitcase and to smell what is inside an automobile. Judge Cathell placed the imprimatur of the Court of Appeals on the probable-cause-generating effect of a canine “alert” on an automobile in Wilkes v. State, 364 Md. 554, 586 , 774 A.2d 420 (2001): The troopers were able to conduct a lawful search of petitioner’s vehicle because after the K-9 scan alerted to the presence of narcotics they had probable cause to do so.

We have noted that once a drug dog has alerted a trooper “to the presence of illegal drugs in a vehicle, sufficient probable cause existís] to support a warrantless search of [a vehicle].” (Emphasis supplied). Gadson v. State, 341 Md. 1, 8 , 668 A.2d 22 (1995), had, indeed, foreshadowed the Wilkes holding by six years. Nor does Gadson dispute that once Sandy the dog alerted Trooper Prince to the presence of illegal drugs in the vehicle, sufficient probable cause existed to support a warrantless search of the truck. See United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir.1990) (a “dog alert” is ²²³ sufficient to create probable cause to conduct a warrantless vehicle search).

(Emphasis supplied). In Fitzgerald v. State, 153 Md.App. 601, 619 , 837 A.2d 989 (2003), aff'd, 384 Md. 484 , 864 A.2d 1006 (2004), our holding was unequivocal. As we affirm the adequacy of the warrant application, we hold that Alex’s “alert” to Apartment A was ipso facto enough to establish probable cause. Both the Court of Appeals and this Court have regularly affirmed, the dispositive sufficiency of a canine “alert.” (Emphasis supplied).

This Court was equally emphatic in Carter v. State, 143 Md.App. 670, 674 , 795 A.2d 790 (2002): The dog scanned the vehicle and “alerted” to the presence of drugs. From that point on, there is no question about the Fourth Amendment proprieties. The dog “alert” supplied the probable cause for a warrantless search of the van. (Emphasis supplied).

We similarly stated in State v. Funkhouser, 140 Md.App. 696, 711 , 782 A.2d 387 (2001): When a qualified dog signals to its handler that narcotics are in a vehicle, ... that is ipso facto probable cause to justify a warrantless Carroll Doctrine search of the vehicle. (Emphasis supplied). See also Timmons v. State, 114 Md. App. 410, 417 , 690 A.2d 530 (1997); Gadson v. State, 102 Md.App. 554, 556 , 650 A.2d 1354 (1994), rev’d on other grounds, 341 Md. 1 , 668 A.2d 22 (1995) (“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.”); In Re Montrail M., 87 Md.App. 420, 437 , 589 A.2d 1318 (1991), aff'd, 325 Md. 527 , 601 A.2d 1102 (1992) (“The dog’s reaction properly served as probable cause to search the vehicle.”); Snow v. State, 84 Md.App. 243, 248 , 578 A.2d 816 (1990) (“We agree with the State that, if Paros properly and ²²⁴ constitutionally conducted the scan or sniff of the perimeter of the car using his trained dog, the dog’s responses could be held to provide probable cause to search the interior of the car.”). And cf. Grant v. State, 55 Md.App. 1, 14-15 , 461 A.2d 524 (1983).

In State v. Cabral, 159 Md.App. 354 , 859 A.2d 285 (2004), a suppression hearing judge excluded the evidence on several grounds, one of which was that a trained dog’s olfactory sensitivity may be too good and that gives rise to the risk that the dog may have “alerted” to drugs that were once present but are no longer present in the car. In reversing that suppression ruling and upholding the State’s appeal, Judge Hollander’s opinion reaffirmed the probable-cause-generating value of the K-9 sniff. These cases lead us to conclude that Cabral is “barking up the wrong tree.” He has confused probable cause with proof beyond a reasonable doubt. If a trained drug dog has the ability to detect the presence of drugs that are no longer physically present in the vehicle or container, but were present perhaps as long as 72 hours prior to the alert, such an ability serves to strengthen the argument that the dog has a superior sense of smell on which to rely to support a finding of probable cause.

The possibility that the contraband may no longer be present in the vehicle does not compel the finding that there is no probable cause; for purposes of the probable cause analysis, we are concerned with probability, not certainty. 159 Md.App. at 380-81 , 859 A.2d 285 (emphasis supplied). Pinpointing the K-9 Alert After initially confronting the appellee, Officer Shaffer returned to his patrol car to talk to his dispatcher. He stated that it was “at approximately 12:28 or 12:30 p.m.” that he radioed a request for a K-9 unit to come to the scene. The only other witness to testify was Officer Brooks.

He also placed the time that the call for K-9 assistance came in as 12:30 p.m. Q. Do you recall what time you received this phone call? ²²⁵ A. Approximately 12:30 p.m. With both versions of the timing of the call for assistance placing it at 12:28 p.m. or 12:30 p.m., we will accept that range of time as controlling. It does not appear that either version makes the appellee’s argument better or worse.

The call for the K-9 is thus established as coming five or seven minutes after the detention began at 12:23 p.m. The next temporal landmark is that of when the K-9 unit arrived at the roadside location. Officer Shaffer’s estimate was that the K-9 unit responded within 10 or 12 minutes of the placing of the request. [D]o you recall the length of time from the time that you left the Defendant’s window to the time that the K-9 Officer arrived, do you know what time-what that time frame was? A. I believe it was about ten to twelve minutes.

(Emphasis supplied). Officer Brooks was emphatic that he responded within 10 minutes of receiving the call, to wit, by 12:40 p.m. Q. And do you recall from the point that you received the call, you said at 12:30, what time did you actually get to Cherry Lane? A. It was ten minutes later, 12:1⁰.

(Emphasis supplied). On cross-examination, counsel, apparently with a dispatch record in hand or mind, unsuccessfully sought to shake Officer Brooks’s testimony as to his arrival time. Q. Officer Brooks, you indicated on Direct Examination that you got to the scene at around what time? A. 12:1⁰.

Q. Was it more like 12:1⁷? A. No, it was not. Q. Are you sure about that? ²²⁶ A. Yes, I am. (Emphasis supplied).

Examined about an apparent discrepancy between the dispatch record and his own recollection, Officer Brooks remained steadfast. Q. This is a record kept in the ordinary course of business; correct? A. That’s the record the dispatcher does, not me. I do my own times based on when I arrive.

I can’t speak to what they do. (Emphasis supplied). The so-called “record kept in the ordinary course of business” was never offered in evidence. Officer Brooks’s testimony placed his arrival at 12:40 p.m.

On the other hand, Officer Shaffer’s estimation was between 12:40 and 12:42 p.m. We must accept as binding on us, therefore, 12:42 p.m. for the arrival of the K-9 unit. That version is, by two minutes, better from the appellee’s point of view. The terminal time for our Fourth Amendment appraisal, however, is not when the K-9 unit arrived on the scene, but the time when the actual K-9 “alert” was made.

After arriving at 12:42 p.m., Officer Brooks described his procedure. Q. And when you got there, what did you do? A. Initially spoke with Officer Shaffer as to what he had, what he wanted from me. And at that point got my dog out of the car and prepared him for the scan, and at that point, go ahead and scanned the vehicle.

(Emphasis supplied). He further described the time lapse between his arrival and the K-9 “alert” as “less than five minutes.” Q. And from the time that you arrived on the scene, you said that you arrived on the scene at 12:40 p.m., to the time that your K-9 partner made the first indication, or the hit, how much time had elapsed from the time you arrived to the time that she hit — or he hit, excuse me? ²²⁷ A. It would have been less than five minutes. (Emphasis supplied). For our appraisal purposes then, we have a traffic-based detention that began at 12:23 p.m.; a call for a K-9 unit within seven minutes, to wit, by 12:30 p.m.; the arrival of the K-9 unit by 12:42 p.m., or 19 minutes after the detention began; and the ultimate K-9 alert at shortly before 12:47 p.m., or just less than 24 minutes after the initial detention began.

We will round off the time lapse before us for examination as one of 24 minutes. A Tempest In a Teapot: The Appellee’s Arrest Does Not Concern Us Whatever may have happened after 12:47 p.m. on October 27, 2005 in terms of the appellee’s arrest is utterly immaterial to the outcome of this appeal. Following the positive K-9 “alert,” the appellee and his passenger were ordered out of the car so that the Carroll Doctrine search of the vehicle could begin. As the appellee brought out on cross-examination of Officer Shaffer, when he and his passenger were removed from the car, they were handcuffed.

They were frisked for weapons and, by some modality or other, money was taken out of their pockets and placed on the hood of the Cadillac. Car keys were also taken from the appellee, who was then, along with the passenger, forced to sit on the sidewalk for the duration of the vehicle search. After the vehicle search produced the drugs and the handguns, the appellee and his passenger were, according to Officer Shaffer and according to the State’s present argument, formally arrested. The appellee, on the other hand, contends that he was actually arrested immediately after he was removed from his vehicle and before the Carroll Doctrine search took place.

His counsel argued to the hearing judge. [A]t that point, Your Honor, my client is handcuffed. He has been searched. He has had his keys taken from him. He’s made to sit on the sidewalk.

A reasonable person in ²²⁸ that situation, Your Honor, would believe that they’re under arrest. On that point, the appellee is absolutely correct. Of course he was arrested. The State’s argument that he had not been arrested is ridiculous.

If the appellee had not been arrested, Officer Shaffer might have been permitted to pat down the exterior of his clothing surface as part of a Terry-frisk but, barring the palpable feel of a weapon in the course of that frisk, that would have been the full scope of permissible police activity. You don’t go into pockets and retrieve keys and money unless you are conducting a full-blown search incident to lawful arrest. There is no such thing as a full-blown search of a person, in contrast to a limited pat-down of the exterior of the clothing, as an incident to a Terry-stop. There is no such thing as a full-blown search of a person incident to what the State calls an investigative detention.

The State does not even attempt to suggest how a “frisk” for weapons produced the money that was inside the appellee’s pockets. Did a wad of money feel like a gun? Does the State even have a theory? We fully agree with the appellee that he was arrested immediately after he was ordered to alight from his vehicle.

The problem with the appellee’s argument in this regard is that it does not get him anywhere. To be sure, he was arrested, but he was validly arrested based on the probable cause produced by the K-9 “alert.” The validity of his arrest did not need to abide the results of the vehicle search. What that search revealed only confirmed the pre-existent and fully efficacious probable cause that had already arisen from the K-9 “alert.” Already having probable cause, the police did not need to wait until they had “probable cause plus.” The outcome of the trial on the merits (at which guilt must be proved beyond a reasonable doubt) would, of course, have been another matter, but the State would be on the same solid ground on this appeal of a pretrial suppression ruling if, following the K-9 “alert,” the police had simply packed up and gone home without conducting any follow-up Carroll Doctrine vehicle search. The only thing that would have been lacking ²²⁹ would have been some evidence to suppress.

In terms of pure Fourth Amendment justification, however, the State already had everything it needed. Indeed, we only discuss this matter because the large amount of U.S. currency recovered from the person of the appellee was presumably going to be evidence at the appellee’s trial and was presumably part of the subject matter of the suppression motion. Because the search that produced it was incident to a lawful arrest in either event, it makes no difference whether it was a lawful arrest before the Carroll Doctrine search or a lawful arrest that followed the Carroll Doctrine search. The K-9 “Alert” And Probable Cause to Arrest The appellee, however, vigorously maintains that the K-9 “alert” on the appellee’s vehicle did not give the police probable cause to arrest the appellee.

The linchpin of the appellee’s argument in this regard is: In Fitzgerald v. State, 153 Md.App. 601, 620 , 837 A.2d 989 (2003), aff'd, 384 Md. 484 , 864 A.2d 1006 (2004), this Court declined to rule that the positive alert by a drug dog amounts to probable cause to arrest the driver of the vehicle. That characterization of what we did in Fitzgerald does surprise us. What we actually said was: The same degree of certainty that will support the warrantless Carroll Doctrine search of an automobile will, ipso facto, support the warrantless arrest of a suspect. 153 Md.App. at 620, 837 A.2d 989 . We thought that what we there said meant that, in circumstances such as those involving a K-9 sniff, probable cause to search the vehicle is, ipso facto, probable cause to arrest, at the very least, the driver.

If any further clarification is necessary, that is, indeed, what we meant. The Supreme Court’s decision in Maryland v. Pringle, 540 U.S. 366 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003), is absolutely dispositive. Because of the close association between contra ²³⁰ band in a vehicle and the driver of (or other passenger in) the vehicle, either finding the drugs in the vehicle, as in Pringle , or probable cause to believe that they are in the vehicle, as in this case, necessarily implicates the driver and passengers. Whatever the level of certainty we have reached with respect to the presence of contraband itself, its association with the occupants of the vehicle is the same.

In terms of that inculpatory association, the Supreme Court’s unanimous opinion observed: We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly. 540 U.S. at 372 , 124 S.Ct. 795 (emphasis supplied). In Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983), the Supreme Court, as part of a hypothetical discussion, stated that a positive K-9 “alert” on a suspect’s luggage would amount to probable cause for the suspect’s arrest. A positive result [from the canine sniff] would have resulted in his justifiable arrest on probable cause. 460 U.S. at 506 , 103 S.Ct. 1319 .

In Ricks v. State, 322 Md. 183 , 586 A.2d 740 (1991), the Court of Appeals similarly concluded that a positive “alert” on a suspect’s luggage was not only probable cause to search the luggage but, ipso facto, probable cause to arrest the possessor of the luggage. Ricks does not contest the intermediate appellate court’s determination, which affirmed the trial court’s denial of the motion to suppress, that his arrest was supported by the requisite probable cause. Indeed, at oral argument before us, Ricks conceded that he was lawfully arrested, at least at ²³¹ the point when the dog scratched his bag, indicating that it contained narcotics. 322 Md. at 188 , 586 A.2d 740 (emphasis supplied). In Wilkes v. State, 364 Md. 554 , 774 A.2d 420 (2001), Judge Cathell, after stating that a canine “alert” had supplied probable cause to justify a warrantless automobile search, surmised that it might ipso facto support a warrantless arrest as well: Moreover, some jurisdictions have held that once a drug dog has alerted the trooper to the presence of illegal drugs in a vehicle, sufficient probable cause existed to support a warrantless arrest. 364 Md. at 587 n. 24, 774 A.2d 420 (emphasis supplied).

He cited, with implicit approval, three cases from the federal circuit courts. United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.1994), had no difficulty reaching this conclusion: [WJken the canine “alerted” to the vehicle, the district court held that the officers had probable cause to arrest the defendants and effect an immediate search under the automobile exception to the search warrant requirement. We agree completely with the district court’s analysis of this matter.... [WJhen the dog “alerted, ” there was probable cause to arrest Magee and Klinginsmith. (Emphasis supplied).

United States v. Williams, 726 F.2d 661, 663 (10th Cir.1984), reached the same conclusion: Defendant’s argument that probable cause for his arrest did not exist because the ticket agent lacked training in the drug courier profile fails because defendant ignores that a drug sniffing dog’s detection of contraband in luggage “itself establishfes] probable cause, enough for the arrest, more than enough for the stop.” (Emphasis supplied). The United States Court of Appeals for the Second Circuit held to the same effect in United States v. Waltzer, 682 F.2d 370 (2d Cir.1982). Waltzer was traveling from Fort Lauder-dale, Florida, to New York City. A trained canine, “Kane,” alerted on two pieces of luggage upon its arrival at Kennedy ²³² Airport.

When Waltzer retrieved the luggage from the baggage carousel, he was immediately arrested. The Second Circuit held that probable cause had been shown to justify the warrantless arrest. We regard the dog’s designation of the luggage as itself establishing probable cause, enough for the arrest .... Canine identification is a non-intrusive, discriminating and, in cases such as Kane, reliable method of identifying packages containing narcotics....

Where designation by a dog with a record of accuracy occurs, therefore, we hold that probable cause has been established as to the person possessing the luggage. 682 F.2d at 372-73 (emphasis supplied). United States v. Garcia, 52 F.Supp.2d 1239 (D.Kan.1999), also lends strong support for our conclusion in this regard. On a rural Kansas highway two vehicles, traveling in apparent convoy, were stopped for speeding violations. After a trained canine finally arrived at the scene and made a pertinent “alert” on both vehicles, the occupants of both vehicles were arrested.

With respect to the constitutionality of the warrant-less arrests, the court concluded: Even in the absence of the other information known by the troopers, once the drug dog alerted on the two vehicles, the troopers had probable cause to arrest Garcia and the other occupants of the two vehicles. 52 F.Supp.2d at 1253 (emphasis supplied). We are not unaware of State v. Wallace, 372 Md. 137 , 812 A.2d 291 (2002), in which the Court of Appeals held that a K-9 “alert” on an automobile did not constitute probable cause to search a mere passenger, who was but one of five occupants of the vehicle. The vitality of State v. Wallace is somewhat suspect in view of its heavy reliance on the earlier Court of Appeals decision in Pringle v. State, 370 Md. 525 , 805 A.2d 1016 (2002), which was subsequently reversed by the Supreme Court’s decision in Maryland v. Pringle, supra. Quite aside from that possible invalidation, however, the Wallace decision ²³³ itself clearly drew a distinction between a mere passenger in an automobile and the driver of the vehicle.

A passenger in an automobile is generally not perceived to have the kind of control over the contents of the vehicle as does a driver and cases from this State have noted the distinction between drivers and owners and passengers of vehicles. Therefore, some additional substantive nexus between the passenger and the criminal conduct must appear to exist in order for an officer to have probable cause to either search or arrest a passenger. 372 Md. at 158-59 , 812 A.2d 291 (emphasis supplied). In this case, of course, the appellee was the driver of the vehicle, a person with a more significant connection to the car, a matter not addressed by Wallace . In any event, we are applying the law as we laid it down in State v. Funkhouser, 140 Md.App. 696, 721 , 782 A.2d 387 (2001): The probable cause developed by the initial canine “alert” was at one and the same time probable cause to believe both 1) that drugs were probably then in the car and 2) that its driver and sole occupant probably was then or recently had been in unlawful possession of those drugs.

(Emphasis supplied). The fact that the appellee here was not the “sole occupant,” but only one of two, does not alter the result. The similarity between probable cause for a Carroll Doctrine search and probable cause for an arrest was analyzed by the Funkhouser opinion. The legal conclusions to which probable cause points are, albeit frequently related, slightly different in the cases of a warrantless automobile search and a warrantless arrest.

One concerns a crime by a person; the other concerns evidence in a place. The factual predicate for those respective conclusions was, however, identical in this particular case. In terms of quantifiable probability, moreover, the probable cause for a Carroll Doctrine search is the same as the ²³⁴ probable cause for a warrantless arrest. ... It does not take more probable cause to support a warrantless arrest than it does to support a warrantless automobile search.

The classic Brinegar v. United States, 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949) definition of probable cause is used for both conclusions alike, with no distinction made between the predicate for an automobile search and the predicate for a lawful arrest. Although the closely related predicates may sometimes differ slightly in terms of qualitative content or substance, they do not differ quantitatively in terms of degree of their probability. The measure of likelihood is the same. Id.

(emphasis supplied). The identity of the probable cause focused on the car and on its driver in Funkhouser was indistinguishable from that same identity of probable cause in the case now before us. [T]he canine “alert” could have provided, all else being assumed to have been constitutional, a double justification for two related but separate and distinct Fourth Amendment events. The police not only had probable cause to search the Jeep Wrangler; they also had probable cause to arrest Funkhouser as its driver. Id.

(emphasis supplied). One Detention or Two? At this point, our focus reverts to the 24-minute period of detention between the initiation of the traffic stop and the K-9 “alert.” We cannot even begin to analyze the reasonableness of a detention, however, until we know its purpose. It is the traffic stop that typically poses the problem in terms of its prolongation.

The familiar pattern is one in which, pursuant to Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), an objectively justifiable stop for a traffic violation furnishes a target of opportunity for a subjectively desired narcotics investigation. The investigative instrumentality is frequently a drug-sniffing canine. ²³⁵ There is ambivalence in how we handle Whren . Although the law indulges this almost routine instance of investigative opportunism, it nonetheless maintains a healthy skepticism, as it both tolerates but simultaneously seeks to minimize the degree of exploitation. There is with respect to Whren an ongoing tug-of-war in which the equities are not unmixed.

Using a dog is accepted as a perfectly legitimate utilization of a free investigative bonus as long as the traffic stop is still genuinely in progress. The emphasis in that statement is on the word “genuinely.” In re Montrail M., 87 Md.App. 420, 437 , 589 A.2d 1318 (1991) (“Only one detention occurred in the case sub judice. The trained dog arrived on the scene while Deputy Owens was still running a check on Matio C.’s license and registration, and the scan took place