Grimm v. State , 458 Md. 602 ( 2018 )

Brian Grimm v. State of Maryland, No. 37, September Term, 2017
FOURTH AMENDMENT – PROBABLE CAUSE – DETERMINATION OF DRUG
DETECTION DOG’S RELIABILITY – STANDARD OF REVIEW – Court of
Appeals held that ultimate question of probable cause to conduct warrantless search of
vehicle based on drug detection dog’s alert is reviewed de novo; i.e., standard of review as
to issue of probable cause to search based on drug detection dog’s alert is de novo.
Determination of probable cause involves two-step process. First, court must identify all
relevant historical facts that were known to officer at time of search and, if necessary, any
relevant or disputed background facts. Second, court must determine whether those facts
give rise to probable cause to search. Issue of drug detection dog’s reliability is factual
question; accordingly, appellate court reviews for clear error trial court’s determination as
to whether drug detection dog is, or is not, reliable. Upon determination of reliability, court
must determine whether drug detection dog’s reliability and any other relevant
circumstances, viewed from standpoint of objectively reasonable officer, give rise to
probable cause. Court held that trial court did not clearly err in determining that drug
detection dog was reliable, as abundance of evidence supported trial court’s determination
as to reliability, and, under totality of circumstances, probable cause existed.
Circuit Court for Anne Arundel County
Case No. 02-K-14-001188
Argued: February 1, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 37
September Term, 2017
______________________________________
BRIAN GRIMM
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Opinion by Watts, J.
Adkins, J., concurs.
______________________________________
Filed: April 20, 2018
It is undisputed that the ultimate question of probable cause to conduct a warrantless
search is reviewed by an appellate court de novo; i.e., the standard of review for the issue
of probable cause is de novo, or without deference. “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, and reviews without deference the trial court’s application of the law to its findings of
fact.” Varriale v. State, 444 Md. 400, 410, 119 A.3d 824, 830 (2015) (citation omitted). It
may be less clear, however, whether a particular determination by a trial court is a finding
of fact, and thus subject to deference, or a conclusion of law, and thus subject to no
deference. See Miller v. Fenton, 474 U.S. 104, 113 (1985) (“[T]he appropriate
methodology for distinguishing questions of fact from questions of law has been, to say
the least, elusive.” (Citations omitted)).
This case requires us to determine whether, in the context of a probable cause
determination, the issue of a drug detection dog’s reliability is a factual question to be
reviewed for clear error, or a legal one to be reviewed de novo. This is a matter of first
impression, and our resolution of the issue will govern the standard of review of a trial
court’s determination as to whether a drug detection dog is, or is not, reliable.
We set the stage. In this case, Sergeant Christopher Lamb of the Maryland
Transportation Authority Police initiated a traffic stop of a vehicle that Brian Grimm,
Petitioner, had been driving. Officer Carl Keightley of the Maryland Transportation
Authority Police, a K-9 handler, and Ace, his Belgian Malinois K-9 partner, arrived at the
scene of the traffic stop.1 Ace scanned the vehicle and alerted to it. Sergeant Lamb
searched the vehicle and found drugs inside.
In the Circuit Court for Anne Arundel County, the State, Respondent, charged
Grimm with various drug-related crimes. Grimm moved to suppress the drugs, alleging
that Sergeant Lamb lacked probable cause to search his vehicle. At a hearing on the motion
to suppress, the circuit court admitted into evidence several documents, including Ace’s
training records, Ace’s field reports, 2 and Officer Keightley’s and Ace’s certifications. The
State called two expert witnesses: Officer Keightley and Sergeant Mary Davis, the
Montgomery County Police Department’s K-9 Unit’s head trainer. Grimm also called two
expert witnesses: Ted Cox, the former head trainer of the Baltimore Police Department’s
K-9 Unit and the Maryland Transportation Authority Police’s K-9 Unit, 3 and Officer
Michael McNerney, a trainer of the Maryland Transportation Authority Police’s K-9 Unit.
Sergeant Davis essentially testified that Ace was reliable, while Cox and Officer McNerney
opined that Ace was unreliable. The circuit court denied the motion to suppress,
concluding that Sergeant Lamb had probable cause to search the vehicle. The circuit court
found that Sergeant Davis was “the most credible witness[,]” and “accept[ed]” her opinion
as to Ace’s reliability.
1
“[T]he Belgian Malinois is an alert, high-energy breed, popular as both a police
and military working dog[.]” Brooks v. Anderson Police Dep’t, City of Anderson, 975
N.E.2d 395, 397 n.4 (Ind. Ct. App. 2012) (cleaned up).
2
Field reports are records that result from a drug detection dog’s performance in the
field—as opposed to a drug detection dog’s performance during training, which result in
training records.
3
In the circuit court, at his request, Cox was not referred to as an officer, as he no
longer worked for a law enforcement agency.
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Before us, as to the standard of review, Grimm contends that we must review
without deference, as opposed to for clear error, the circuit court’s determination that Ace
was reliable. As to the merits, Grimm argues that, no matter which standard of review
applies, the circuit court erred in determining that probable cause existed. The State
responds that the standard of review is for clear error, and asserts that the circuit court did
not clearly err in determining that Ace was reliable. Alternatively, the State maintains that,
even if probable cause did not exist, the “good faith” exception to the exclusionary rule
applies.
In Part I below, we conclude that the ultimate question of probable cause to conduct
a warrantless search of a vehicle based on a drug detection dog’s alert is reviewed de novo;
i.e., the standard of review as to the issue of probable cause to search based on a drug
detection dog’s alert is de novo. A determination of probable cause involves a two-step
process. First, a court must identify all of the relevant historical facts that were known to
the officer at the time of the search and, if necessary, any relevant or disputed background
facts. Second, the court must determine whether those facts give rise to probable cause to
search. We conclude that the issue of a drug detection dog’s reliability is a factual question.
Accordingly, an appellate court reviews for clear error a trial court’s determination as to
whether a drug detection dog is, or is not, reliable. In Miller, 474 U.S. at 114, the Supreme
Court concluded that, where an issue falls somewhere between a clear legal issue and a
simple historical fact, the determination of the nature of the issue turns on an analysis of
which judicial actor is better positioned to decide the question. As explained below, the
issue of a drug detection dog’s reliability is, in our view, a background fact that falls
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somewhere between a clear legal issue and a simple fact. A trial court is better positioned
than an appellate court to determine the issue. An issue as to a drug detection dog’s
reliability requires a trial court to assess the credibility of lay and expert witnesses; to
watch, when available, a recording of a drug detection dog’s scan; to weigh and determine
the weight to be given documentary evidence, such as the drug detection dog’s training
records, field reports, and certifications; to consider the qualifications of any experts, and
their opinions about the evidence; and to determine whether, under the totality of the
circumstances, the drug detection dog is reliable; and whether the drug detection dog’s alert
indicated that drugs were present. As such, a trial court is better positioned than an
appellate court to determine a drug detection dog’s reliability.
In Part II below, we hold that the circuit court did not clearly err in determining that
Ace was reliable, as an abundance of evidence supports the circuit court’s finding that Ace
was reliable. We conclude that, under the totality of the circumstances, Sergeant Lamb
had probable cause for the search, and we do not address the State’s argument as to good
faith.
BACKGROUND
Charges and Motion to Suppress
On April 19, 2014, in the circuit court, the State charged Grimm with possession of
heroin with intent to distribute and other drug-related crimes. On May 23, 2014, Grimm
filed a motion to suppress drugs that had been found in a vehicle that he had been driving.
On multiple days, December 17, 2014, January 5 and 13, 2015, and March 17, 2015, the
circuit court conducted a hearing on the motion to suppress.
-4-
Sergeant Lamb’s Testimony Regarding the Traffic Stop
At the hearing, as a witness for the State, Sergeant Lamb testified that, on April 18,
2014, a detective with the High Intensity Drug Trafficking Area team provided him with a
description of a man who was suspected to be driving north on Interstate 95 from Atlanta,
Georgia to the Baltimore area with a large quantity of controlled dangerous substances. On
April 19, 2014, Sergeant Lamb was informed that the man was driving a maroon Honda
that was registered in Georgia, that there were multiple occupants in the Honda, and that
the man was expected to drive from Maryland Route 100 onto the northbound side of
Maryland Route 295. That same day, Sergeant Lamb saw the Honda travel from Maryland
Route 100 onto Maryland Route 295, and saw that, including the driver, the Honda had
three occupants who were not wearing seat belts. Sergeant Lamb initiated a traffic stop.
Sergeant Lamb testified that Grimm was in the Honda’s driver’s seat. According to
Sergeant Lamb, Grimm’s “clothing looked disheveled,” and “[h]is hair looked unkempt[,]”
which indicated to Sergeant Lamb that “he had been driving for a long time . . . and had[
not] been staying anywhere.” Sergeant Lamb spoke with Grimm, who “was kind of
mumbling” and “rambling a little bit.” Grimm did not make eye contact when he was
addressing Sergeant Lamb. Grimm, however, appeared to be “very calm.”
Grimm provided Sergeant Lamb with his Maryland driver’s license and the Honda’s
registration. Two days earlier, the Honda had been registered in Georgia to a man named
Johnny Lee Oglesbee, Jr. Grimm told Sergeant Lamb that he had bought the Honda, but
could not afford to register the Honda in his name. Grimm did not say who Oglesbee was.
Grimm told Sergeant Lamb that he and three other people had traveled from Baltimore to
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Atlanta for approximately one week to visit friends and buy the Honda. Grimm said that
he had paid for plane tickets from Baltimore to Atlanta for all four of them.
A woman named Davita Henry was in the front passenger seat. A man named Aaron
Chase was in the backseat, 4 directly behind Grimm. During the traffic stop, Henry stared
straight ahead, and never turned to look at Sergeant Lamb, who was standing on the
Honda’s passenger side while speaking to Grimm. Meanwhile, Chase, who “was leaning
forward to engage [Sergeant Lamb] in conversation” while he was speaking to Grimm,
“was very open with the fact that he was[]” not wearing a seat belt, and was “overly
polite[.]” Sergeant Lamb explained that people who are “overly polite” may be trying to
distract law enforcement officers from “what[ is] going on[.]” Grimm told Sergeant Lamb
that there had been a fourth occupant in the Honda, who had been dropped off at an Element
Hotel. Grimm told Sergeant Lamb that the fourth occupant and Henry were women whom
he knew from a dance club, and that Chase was his friend.
At some point, Sergeant Lamb asked Grimm to exit the Honda and walk to the rear
of the Honda. Grimm did so. And, after speaking to Sergeant Lamb, Grimm returned to
the driver’s seat. Grimm did not fully close the driver’s door, and kept his left foot on the
asphalt. Grimm also placed a pillow on the door’s “windowsill[,]” then laid his head on
the pillow. Sergeant Lamb became concerned that Grimm would try to run away.
Sergeant Lamb suspected that criminal activity was afoot, in light of the information
4
In a separate case, the State charged Chase with drug-related crimes. Although
Grimm and Chase were not codefendants, the hearing on the motion to suppress concerned
both of their cases. Each defendant was represented by his own counsel.
-6-
he had received from Grimm that four individuals had flown from Baltimore to Atlanta to
buy the Honda, and Grimm had paid for the airline tickets, yet, Grimm allegedly was not
able to afford to register the Honda in his name, and the circumstance that Chase was overly
polite while Henry stared straight ahead. Sergeant Lamb observed that the Honda was a
dented, older model, two-door Accord with high mileage and faded paint. Sergeant Lamb
testified that both Baltimore and Atlanta are “source cities for” controlled dangerous
substances.
Sergeant Lamb used his radio to obtain information about Grimm’s Maryland
driver’s license and the Honda’s registration, and he learned that both were valid. Based
on his observations, Sergeant Lamb requested a K-9. While Sergeant Lamb was writing
warnings for the failure to wear seat belts, Officer Keightley of the K-9 Unit arrived with
Ace, a drug detection dog. Sergeant Lamb informed Officer Keightley of what he had
observed, and requested a dog scan of the Honda. Officer Keightley told Sergeant Lamb
that he wanted the Honda’s occupants to exit the Honda before the dog scan occurred.
After the Honda’s occupants exited the Honda, Officer Keightley and Ace performed a dog
scan, and Officer Keightley advised that Ace had alerted. Sergeant Lamb searched the
Honda, and found a large amount of heroin and amphetamine in the “right rear panel[,]”
which he described as the “plastic and vinyl armrest and side rail” behind the passenger’s
door.
Testimony of Officer Keightley, Ace’s Handler and One of the State’s Experts
As a witness for the State, Officer Keightley of the Maryland Transportation
Authority Police testified that he had been a member of the K-9 Unit since February 2012.
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In April 2012, Officer Keightley started working with Ace. Officer Keightley testified
about Ace’s training and certification. For three months, from April 2012 to July 2012,
Cox and Officers McNerney and McCarty provided Ace’s initial training. During Ace’s
initial training, he was trained to recognize the odors of five drugs: marijuana, cocaine,
heroin, methamphetamine, and methylenedioxy-methamphetamine. 5 After Ace’s initial
training, he was trained once a week, for an average of seven hours a week, using “narcotic
aids”—i.e., substances that the crime laboratory had tested and determined to be drugs.
The training is designed to mimic events that occur in the field. During Ace’s training,
usually, a trainer would set one or multiple narcotic aids in a given area, such as a vehicle
or a building; the narcotic aids would sit for twenty to thirty minutes; and then, Officer
Keightley and Ace would search the area. Ace’s training was documented with a training
record that listed dates, times, the narcotic aids that were used, the weights thereof (ranging
from a gram to ten pounds), where they were hidden, and whether Ace found them.
The Maryland Transportation Authority Police certifies dogs and their handlers
every six months. Like other drug detection dogs, to become certified, Ace was tested in
“two or three” capacities from among “various areas[,]” including a building, a vehicle,
luggage, and an outdoor area. Officer Keightley and Ace were first certified on July 6,
2012. Officer Keightley and Ace had been certified five times, and were certified as of
April 19, 2014. At that time, Officer Keightley and Ace had most recently been certified
5
Methylenedioxy-methamphetamine is also known as “MDMA,” “Molly,” and
“Ecstasy.” National Institute on Drug Abuse, MDMA (Ecstasy/Molly) (Oct. 2016), https://
www.drugabuse.gov/publications/drugfacts/mdma-ecstasymolly [https://perma.cc/S4A7-
ZSY3].
-8-
on January 22, 2014. As of the date of the hearing, Ace had performed dog scans during
approximately 100 traffic stops. The circuit court admitted Officer Keightley as an expert
in the field of “K-9 police dog[s] and the detection of controlled dangerous substances”—
specifically, marijuana, cocaine, heroin, methamphetamine, and methylenedioxy-
methamphetamine.
Without objection, the circuit court admitted into evidence: Ace’s training records
from April 2012 through April 2014; Ace’s field reports—which Officer Keightley
completed every time that he utilized Ace—from when Officer Keightley and Ace were
first certified on July 6, 2012 until April 19, 2014; the Maryland Transportation Authority
Police Narcotic/Explosive K-9 Certification Guidelines; and the Maryland Transportation
Authority Police K-9 Standard Operating Procedures, which included guidelines for
training dogs and handling explosive aids and narcotic aids. The circuit court also admitted
into evidence: Officer Keightley’s and Ace’s July 6, 2012 certification, which was
accompanied by score sheets that showed which narcotic aids were used, where they were
hidden, and whether Ace found them; Officer Keightley’s and Ace’s December 10 and 14,
2012 certification, and Officer Keightley’s and Ace’s July 1, 2013 certification. The
second-to-last certification was associated with two dates because, on December 10, 2012,
Officer Keightley and Ace passed a test that involved a dog scan of a vehicle, but did not
pass a test that involved a dog scan in a building; on December 14, 2012, Officer Keightley
and Ace re-took, and passed, the test that involved a dog scan in a building, and Officer
McNerney recertified Officer Keightley and Ace.
According to Ace’s field reports, between July 6, 2012 and April 19, 2014, Ace had
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alerted to a vehicle on 51 occasions. Of those 51 occasions, no drugs were found in the
vehicle on 19 occasions. Officer Keightley testified that a “non-productive response”
occurs when a drug detection dog alerts to a vehicle or building, and an officer searches
the vehicle or building, but does not find any contraband. 6 Officer Keightley explained
that Ace might alert where drugs used to be, but are no longer, inside a vehicle. Indeed,
with regard to 10 of the 19 non-productive responses to vehicles, during interviews, at least
one of the vehicle’s occupants admitted that drugs had recently been in the vehicle. Thus,
Ace had only 9 non-productive responses where there was no discovery of drugs, and no
admission that drugs had recently been in the vehicle. In response to Ace’s non-productive
responses, Officer Keightley extended Ace’s searching time during training. Between
January 22, 2014—Officer Keightley’s and Ace’s most recent certification before the time
of the traffic stop on April 19, 2014—and April 19, 2014, Officer Keightley did not receive
any warnings that he was doing anything inappropriate.
Officer Keightley testified that, on April 19, 2014, he responded to a traffic stop that
Sergeant Lamb had initiated. At the scene, Officer Keightley was asked to conduct a dog
scan of the Honda with his K-9, Ace. At the time, both of the Honda’s windows were
rolled down. Officer Keightley brought Ace to the front of the Honda. On the way to the
front of the Honda, Officer Keightley and Ace passed the passenger’s door, where Sergeant
Lamb ultimately found drugs. Officer Keightley did not notice any reaction by Ace while
6
Officer Keightley testified that the term “non-productive response,” like the term
“false alert,” indicates that a drug detection dog alerted to an area, and an officer searched
the area, but did not find any contraband.
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they passed the passenger’s door. At that time, Officer Keightley had not yet commanded
Ace to search. Once in front of the Honda, Officer Keightley told Ace to “foot”—i.e., to
sit next to him. When Ace was quiet, Officer Keightley commanded Ace to search. Officer
Keightley and Ace started walking around the Honda counter-clockwise. As Officer
Keightley “was trying to present the passenger-side headlight[,]” Ace pulled toward the
driver’s side on two occasions. After Ace came around to the driver’s side, he
“bracketed”—i.e., he moved his head in an attempt to locate an odor. Once Officer
Keightley and Ace reached the driver’s door, Ace stopped walking, put his forelegs on the
driver’s door, stuck his head into the Honda, and did a “focus sniff”—i.e., closed his mouth
and sniffed extremely rapidly. Then, Ace sat, which Officer Keightley testified was an
alert that the Honda was contaminated with, or had recently been contaminated with, drugs.
The dog scan took thirty-seven seconds. While drug detection dogs may be trained to alert
by staring, scratching, or biting at the source of the odor, Ace was trained to alert by sitting.
On May 16, 2014, Officer Keightley received an e-mail from a member of the K-9
Unit with a recommendation by Officer McNerney concerning an issue as to the calculation
of Ace’s training hours. Before receiving the e-mail, Officer Keightley would indicate in
Ace’s training records that he was trained for seven hours on one day each week. In the e-
mail, however, Officer Keightley was advised that there was a new method of calculating
the number of hours of Ace’s training, and that Officer Keightley should count only the
time from when the first narcotic aid was set to when the last test was conducted. Under
the new calculation method, Ace had not received the sixteen hours of monthly training
that was required for certification, and Officer Keightley and Ace were decertified. After
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Officer Keightley received the e-mail, he trained Ace on two additional days. On May 19,
2014, Officer McNerney recertified Officer Keightley and Ace. The circuit court admitted
Officer Keightley’s and Ace’s May 19, 2014 recertification into evidence. Officer
Keightley testified that, after Officer McNerney recertified Ace, he usually trained Ace at
least four days a week, for a total of sixteen to twenty hours a month.
On cross-examination, Officer Keightley acknowledged that Ace had previously
alerted to tobacco, air fresheners, a tennis ball, and the odor of “KONG” chew toys. Officer
Keightley also acknowledged that, at some point, Officer McNerney told Officer Keightley
that, by standing still behind Ace, Officer Keightley was “cueing” Ace—i.e., giving Ace a
cue to take certain actions. Officer Keightley testified that he did not cue Ace during the
dog scan of the Honda.
Officer Keightley acknowledged that, in November 2013, Ace was trained only
twice, for a total of three hours and fifteen minutes—calculated from when the first narcotic
aid was set to when the last test was conducted. In February 2013, Ace was trained a total
of eleven hours and nineteen minutes, calculated in the same way. According to a summary
of Ace’s training records that Grimm’s counsel had prepared, using the new formula for
calculating the number of hours that Ace had been trained, Ace had not received the
required sixteen hours of training in any month from July 2012 through 2014. Officer
Keightley testified that this was so because the new formula for calculating the number of
hours that Ace had been trained had not yet been implemented.
Testimony of Sergeant Davis, One of the State’s Experts
As a witness for the State, Sergeant Davis testified that, in 1991, she became a
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handler with the K-9 Unit of the Montgomery County Police Department. Sergeant Davis
testified that, initially as a handler, she managed five K-9 teams, and that throughout her
career she managed both patrol K-9 teams and narcotics K-9 teams. In 1998 or 1999,
Sergeant Davis became a K-9 trainer. In 2001, Sergeant Davis placed in the top twenty K-
9 officers in the United States Police Canine Association’s Patrol Dog Field Trials. In
2008, Sergeant Davis was assigned as the K-9 unit’s head trainer. During that time, she
developed the K-9 Unit’s current mandatory certification processes for patrol K-9s and
narcotics K-9s, and trained the K-9 Unit’s first firearms detection K-9 teams. In 2009,
Sergeant Davis began writing for Police K-9 Magazine. In that capacity, between 2009
and 2014, Sergeant Davis responded to questions about training dogs in Police K-9
Magazine. Sergeant Davis testified that she had run events at the United States Police
Canine Association’s national training seminar, and had given presentations at Police K-9
Magazine’s conference. Sergeant Davis had trained a total of sixty-five K-9 patrol teams,
and trained a total of thirty-six K-9 detection teams. The parties stipulated that Sergeant
Davis was an expert in K-9 training and handling. Sergeant Davis testified that she was
not being paid for her testimony, apart from what she was paid for being on duty while
testifying.
Sergeant Davis explained that Maryland law does not require drug detection dogs
to be certified, and that there are no State-wide requirements for drug detection dog
performance. Although Maryland law does not require that drug detection dogs be
certified, Sergeant Davis developed a process for certifying drug detection dogs in the
Montgomery County Police Department’s K-9 Unit. Sergeant Davis testified that the K-9
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Unit uses its best efforts to follow or exceed the standards that are recommended by the
United States Police Canine Association. According to Sergeant Davis, the K-9 Unit trains
drug detection dogs with both odor recognition tests and “environmental hides[,]” which
are searches of buildings, vehicles, and parcels. Sergeant Davis described the process
through which the Montgomery County Police Department’s K-9 Unit trains drug detection
dogs, to consist of: use of odors of controlled dangerous substances; distractions, such as
dog food; and a reward, in the form of a ball on a rope. Sergeant Davis testified that the
Maryland Transportation Authority Police’s K-9 Unit’s certification process generally
comports with industry standards. Sergeant Davis advised that the Montgomery County
Police Department’s K-9 Unit trains approximately twelve other local K-9 Units—
including, at one point, the Maryland Transportation Authority Police’s K-9 Unit.
In August 2014, the Maryland Transportation Authority Police’s K-9 Unit requested
that members of the Montgomery County Police Department’s K-9 Unit serve as judges in
the Maryland Transportation Authority Police’s K-9 Unit’s certification process. Sergeant
Davis and two other members of the Montgomery County Police Department’s K-9 Unit
served as judges. The certification process took place on August 19, 2014, and included a
search of a vehicle, then a search of a parcel, and then a search of an indoor area. Officer
Keightley and Ace participated in, and were successful in, the certification process.
According to Sergeant Davis, on one occasion during the certification process, Ace alerted
to a vehicle containing a controlled dangerous substance, but Officer Keightley moved Ace
so fast that they passed the vehicle that contained the controlled dangerous substance, and
then moved to the next vehicle. At that time, Ace tried to get Officer Keightley to return
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to the original vehicle. Sergeant Davis referred to this situation as “a handler miss[,]” for
which Ace was not responsible—i.e., Officer Keightley missed Ace’s alert. Sergeant Davis
stated that Ace had been “correct in his work.” Sergeant Davis opined that the handler
miss was not a basis for failure because, in any certification, one handler miss is
permissible.
Before testifying, Sergeant Davis reviewed Officer Keightley’s and Ace’s
certifications, as well as Ace’s training records from his initial training in 2012 to July
2014. Sergeant Davis testified that she did not observe any major changes in the process
of training Ace, including the training routine and the types of narcotic aids that were used,
between April 19, 2014—when the traffic stop occurred—and July 2014. Sergeant Davis
testified that Officer Keightley and Ace performed satisfactorily during training.
Sergeant Davis testified that she was aware that Officer Keightley and Ace had been
decertified in May 2014 as a result of the issue with the calculation of the number of Ace’s
training hours. Sergeant Davis testified that she would not have decertified Officer
Keightley and Ace, as Ace’s “skills . . . were not affected one iota by the way” in which
the Ace’s training hours were calculated. Similarly, Sergeant Davis testified that the issue
with regard to the calculation of the number of Ace’s training hours did not affect Officer
Keightley’s and Ace’s January 22, 2014 certification. Sergeant Davis explained: “Either
[Ace] knows the odors[,] or he does[ not]. And he can perform, or he cannot.” Sergeant
Davis testified that she did not know of any other K-9 Unit that had decertified a handler
and a drug detection dog “based on training hours.” Sergeant Davis testified that, when a
drug detection dog has not been trained for enough time, there is usually “an opportunity
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for remediation[,]” which Ace received.
According to Sergeant Davis, in 2013, during Ace’s training, he was placed in a
total of 209 scenarios. Of those, Ace falsely alerted on 24 occasions. Sergeant Davis
explained that she “expect[ed false alerts] to occur[,]” and that she did not think that any
“particular amount” of false alerts was “acceptable or unacceptable.” Sergeant Davis noted
that there is no industry standard with regard to an unacceptable number of false alerts, and
that the Montgomery County Police Department’s K-9 Unit did not have such a standard.
Sergeant Davis testified that she “would look at each scenario and ask [] what is the cause
of the” false alert. Sergeant Davis testified that Ace’s false alerts during training were not
“[s]ignificant” in light of the reasons for Ace’s false alerts. According to Sergeant Davis,
on multiple occasions, Ace falsely alerted when he was “asked to search for a very long
time in an environment where there was no” controlled dangerous substance. Sergeant
Davis opined that such environments were “counter-productive” because they simply
provided Ace with “an opportunity to fail.”
During Sergeant Davis’s testimony, the recording of the traffic stop from the
dashboard camera in Sergeant Lamb’s vehicle was played. Addressing the circumstance
that Ace did not alert as he passed by the passenger side, Sergeant Davis explained that
Officer Keightley needed to ensure that Ace would pass by the Honda’s occupants safely,
and was probably tightly controlling Ace with his leash and with voice commands.
Sergeant Davis opined that, although Ace “was clearly excited and [] wanted to work[,]”
he appeared to be “in an obedient state” as he passed by the passenger side.
Sergeant Davis observed that, once Officer Keightley and Ace reached the front of
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the Honda, Ace was barking and “still a little bit excited.” Officer Keightley calmed Ace,
and had Ace sit near him. Sergeant Davis noted that, after Officer Keightley gave the
command to search, Ace immediately moved toward the driver’s door. With physical or
verbal commands, Officer Keightley had Ace move toward the front right headlight. Ace
briefly checked the front of the Honda, then moved toward the driver’s door again. Again,
Officer Keightley had Ace return to the front right headlight. Afterward, however, Ace
moved toward the driver’s door for a third time. According to Sergeant Davis, while
Officer Keightley was trying to direct Ace to the front right headlight, Ace independently
insisted on moving to the driver’s side. Sergeant Davis testified that Ace’s behavior
indicated that he had made an “independent discovery of” an odor of controlled dangerous
substances, and was attempting to locate the source. Sergeant Davis testified that, while in
front of the Honda, Ace engaged in “bracketing”—i.e., whipping his head. Ace moved
toward the driver’s door and jumped on it “independently.” Then, Ace lifted his head into
the window, and engaged in “focus sniffing[.]”
Sergeant Davis observed that, for six minutes during the traffic stop, the driver’s
door was open. Sergeant Davis explained that the vehicles on Maryland Route 295 that
were passing by the Honda “would create a vacuum and pull air[,]” as well as the odor of
controlled dangerous substances, out of the driver’s doorway. Sergeant Davis also noted
that, because vehicles are climate-controlled, simply driving down a highway can “create
odor pockets in places” that do not contain the source of the odor.
Addressing Ace’s alert near the driver’s door, Sergeant Davis testified that Ace “was
very firm in[,]” and “very committed in[,] his sit. . . . [Ace] held it very nicely.” Sergeant
- 17 -
Davis testified that Ace was not “unsure of himself” when he alerted. Sergeant Davis
testified that the dog scan “took a very little bit of [] time” because “there was a lot of odor”
and it was not “difficult for” Ace to identify the odor. Sergeant Davis testified that the dog
scan’s length—thirty-seven seconds—was within Ace’s “capacity to manage himself
without” falsely alerting.
Sergeant Davis testified that the recording of the traffic stop from the dashboard
camera in Sergeant Lamb’s vehicle contained no evidence that Ace’s alert was false.
Sergeant Davis explained that Ace’s “work was very independent[,]” as evinced by the
circumstance that Ace moved toward the driver’s door on two occasions before Officer
Keightley allowed him to go there. According to Sergeant Davis, Officer Keightley’s
“direction was more of a distraction than it was an influence on” Ace. Sergeant Davis
testified that Ace “already had clear identification of” the odor of a controlled dangerous
substance, and that, when Ace alerted, he was indicating “that he knew there was odor
there.” Sergeant Davis advised that Officer Keightley did not cause Ace’s alert “in any
way, shape, or form[.]” Sergeant Davis testified that she did not see any evidence of cueing
by Officer Keightley. Sergeant Davis testified that, to a reasonable degree of certainty,
based on her training, knowledge, and experience as a K-9 trainer, Officer Keightley and
Ace were “competent to be working the street and deploying, and making probable cause
decisions on the street.” Sergeant Davis testified that her opinion was “[b]ased on the
totality of the circumstances, [and] looking at all of the training records” and having
observed Officer Keightley and Ace on three occasions.
On cross-examination, Sergeant Davis acknowledged that, before testifying, she had
- 18 -
not reviewed Ace’s field reports, which, according to her, did not have “as much bearing”
as his training records, because Ace’s training took place in environments that were more
controlled than those in the field. Sergeant Davis explained that, in the field, “unintended
cross-contamination” can occur. Addressing the circumstance that, according to his field
reports, Ace alerted 9 times when there was no discovery of drugs, and no admission that
drugs had been in the vehicle, Sergeant Davis testified that that did not concern her “even
in the least” and explained: “It[ i]s like putting garbage in a garbage can. And you take the
garbage out[,] and you try to clean it, . . . but you stick your head in that garbage can[,] and
it still smells like garbage.”
Testimony of Cox, One of Grimm’s Experts
As a witness for Grimm, Cox—one of the people who provided Ace’s initial training
in 2012—testified that, in 1997, he joined the Baltimore Police Department’s K-9 Unit as
a handler. In 2000, Cox became the Baltimore Police Department’s K-9 Unit’s chief
trainer. Cox trained a total of approximately eighty dogs. In 2006, Cox left the Baltimore
Police Department. In 2007, Cox became the Maryland Transportation Authority Police’s
K-9 Unit’s only trainer. In October 2012, Cox left the Maryland Transportation Authority
Police. The parties stipulated that Cox was an expert in K-9 training and handling.
Cox acknowledged that he was compensated for his travel and, additionally, that he
was paid $200 an hour, and that he had earned approximately between $4,000 and $5,000 7
7
On cross-examination, after Cox testified that he was paid $200 an hour, the
prosecutor asked Cox: “[H]ow many hours have you spent?” Cox responded: “I guess
we’re somewhere around, between reviewing documents, this whole book, and gathering
- 19 -
working on this case. Cox testified that, because he was being paid to testify, “apparently[,
he] was not allowed to speak about the things that went on while [he] was employed [by]
the State”—“[k]ind of like a gag order.”
Before testifying, Cox reviewed, among other documents, Ace’s training records,
his field reports, the Maryland Transportation Authority Police Narcotic/Explosive K-9
Certification Guidelines, and the recording of the traffic stop from the dashboard camera
in Sergeant Lamb’s vehicle.
Similar to Sergeant Davis, Cox testified that Ace’s training records were more
important than his field reports. Cox testified that, in his opinion, after reviewing Ace’s
training records and the recording of the traffic stop, Ace was unreliable “at this point.”
According to Cox, the Maryland Transportation Authority Police’s K-9 Unit had failed to
maintain Ace’s maintenance training for over a year. Cox testified that once a drug
detection dog is certified “[i]t takes a keen eye in order for a trainer . . . to watch a dog
perform and work and understand what the team is actually saying and doing. And in this
case, it didn’t happen.” Cox testified that he felt that Officer Keightley was “basically,
just like a rogue police.” Cox opined that it was not Officer Keightley’s fault, as the
Maryland Transportation Authority Police’s K-9 Unit did not “provide him a trainer to sit
with him[,] because he’s still green for a period of time[,] in order for him to gain the
experience that was necessary.”
things[,] probably about between four and five thousand.” Given that 4,000 hours is equal
to more than 166 entire days, it is evident that Cox was referring to the amount of money
that he had earned while working on this case, not the number of hours that he had spent
working on this case.
- 20 -
After being asked whether he noticed that there was a training session for Ace on
November 12, 2012 and there was no other training session until December 12, 2012, Cox
testified that, due to “the gag order[,]” he could not answer that. Cox indicated, however,
that a drug detection dog should not go twenty or thirty days without being trained unless
the officer is on extended leave. Cox noted that, when he went through the federal trainer
certification, there was a distinction between “clock time” and “sniff time.” According to
Cox, sniff time is the time that a dog is actually engaged in performing scans. Cox testified
that, even if a law enforcement officer were at a training facility for eight hours, a drug
detection dog might spend only a small portion of that time performing scans.
Cox testified that he wanted to train his dogs to be as close to “100 percent as” he
could. According to Cox, he “usually tr[ied] to hold [drug detection] dog[s] to a 95 percent
ratio” and, if a dog dropped under 90 percent, he would “pull him off the road and find out
why[.]” Cox indicated that, when a dog is being evaluated, he sets a standard to figure out
if the dog “has a problem in falsing.” Cox stated: “There’s a percentage rate that I give,
it’s usually four percent.” According to Cox, between April 15, 2013 and March 24, 2014,
during Ace’s training, he performed 179 scans. Of those, Ace falsely alerted to vehicles
15 times, and falsely alerted indoors 29 times, for a total of 44 false alerts. Cox calculated
that 4% of 179 scans is approximately 7.16. Cox stated that Ace’s number of false alerts—
44—is “five times over, or six times over [Cox’s] allotted falsing.” Cox acknowledged
that, as Sergeant Davis testified, there are no State-wide requirements for drug detection
dog performance. Cox opined, however, that Maryland should have such requirements.
Cox testified that users of marijuana make blunts by sprinkling marijuana into
- 21 -
tobacco leaves. Cox explained that this circumstance can condition drug detection dogs to
alert to the odor of tobacco. Cox testified that Ace’s records showed that Ace had alerted
on plastic and “indicated on blanks which is possibly human odor.” According to Cox, this
was “a red flag” and someone should have investigated what may have been going on with
Ace.
During Cox’s testimony, the recording of the traffic stop from the dashboard camera
in Sergeant Lamb’s vehicle was played. Without specifically testifying that Ace was
engaged in excessive barking, Cox asked that the video be paused and stated: “I usually
don’t like that excessive barking[.]” Cox testified that “excessive barking” “usually takes
[] energy away from” a drug detection dog, and the dog then does not perform as well.
Cox stated that he “would actually want the officer to just calm the dog down” so that the
dog would not be “coming into the field already exhausted.”
Cox testified that, according to the National Weather Service, on April 19, 2014,
there was a four-mile-an-hour wind. Cox theorized that, “if we assume that, for argument’s
sake,” the wind was “blowing from the bumper to the front bumper[,]” he would expect
that, when he passed the passenger door, Ace would “whip his head around and catch some
type of odor.” According to Cox, if the wind were blowing in that direction, “there’s
enough that’s going to plume out on the side,” and Ace “should catch the odor when he
passed the car passenger door.”
Cox noted that, even though Ace always started scans by going counterclockwise,
on this occasion, he went in the other direction “on his own.” Cox explained that Officer
Keightley used a dog toy to motivate Ace to come to the headlight. Cox observed that, at
- 22 -
that point, Officer Keightley was behind Ace. Cox observed that Officer McNerney had
once told Officer Keightley that he was “cueing” Ace by standing still behind him.
Cox testified that he would not have “move[d Ace] unless he was . . . actually
performing his task[,]” and that, when Ace came “running around” to the driver’s side, he
did not “actively sniff at all.” Cox opined that Ace “just jumped into object search” and
then jumped onto the driver’s door. Cox opined that Ace alerted to a “human scent[,]”
which resulted from Grimm leaning on the driver’s door. According to Cox, Ace was
“imprinted on” human scent because, during his training, the narcotic aids were not
properly maintained. Cox testified that Ace’s training records contained no evidence that
human scent had been used as a distracter—a substance that a drug detection dog is
“extincted” off of during training. Cox also opined that the narcotic aids were not
replenished often enough to ensure that they were still “producing” a narcotics odor.
Cox testified that, although there was evidence that Ace was trained to go to the
source of an odor, he did not attempt to jump through the driver’s door’s window. Grimm’s
counsel asked whether it was significant that, after alerting, Ace turned his head toward
Officer Keightley. Cox responded that this indicated that Ace was getting “weak in his
field[,]” and that he was essentially asking Officer Keightley: “[D]id I [do] right?” When
asked whether he observed any evidence of Ace “bracketing[,]” Cox responded: “No[.]”
Cox opined that, based on his experience and expertise, “[t]here was no doubt in
[his] mind that [Ace] was unreliable.” As reasons for his opinion, Cox referenced “how
many times [Ace had] falsed, what type of odors [Ace had] falsed on,” “the human odor,”
“the lack of odor being produced by the narcotics [aids] that were set out,” deficiencies in
- 23 -
Ace’s training, and the lack of “a certified trainer to . . . watch [Ace] and make sure . . .
[that] the behavior that he[ was] offering in training [was] stopped at the appropriate
time[.]” Cox also opined that Officer Keightley and Ace should have failed the
certification process on August 19, 2014.
On cross-examination, Cox acknowledged that the Maryland Transportation
Authority Police Narcotic/Explosive K-9 Certification Guidelines do not set a maximum
percentage of false alerts of 5%. Cox also acknowledged that the Maryland Transportation
Authority Police K-9 Standard Operating Procedures did not require analysis of the purity
of narcotic aids. Cox testified: “I wish [that] I could speak about the steps and measures
that I took [] to try to clear this up, but I[ am] not allowed to at this point. But if I could I
would tell you what I tried to do.”
Testimony of Officer McNerney, One of Grimm’s Experts
As a witness for Grimm, Officer McNerney—one of the people who provided Ace’s
initial training in 2012—testified that, in 2006, he started working for the Transportation
Security Administration’s K-9 Unit. Officer McNerney became a handler for an explosive
detection dog. In 2009, Officer McNerney joined the Maryland Transportation Authority
Police’s K-9 Unit as a trainer. Initially, Officer McNerney trained dogs only in explosive
detection. At that time, Cox was the head trainer, and Officers McNerney and McCarty
were assistant trainers in explosive detection and drug detection, respectively. In October
2012, Cox left the Maryland Transportation Authority Police, leaving only Officers
McNerney and McCarty as trainers. In September 2013, Officer McCarty went on medical
leave, and Officer McNerney assumed responsibility for training dogs in both explosive
- 24 -
detection and drug detection. Officer McNerney testified that “it was tough” to train dogs
in both explosive detection and drug detection. Officer McNerney testified that he went to
command and asked that training explosive and drug detection dogs be made a full-time
position, but his request was denied. Officer McNerney testified that, “numerous times,”
he communicated to his command staff that he was available only ten of the twenty-six
training days between September 2013 and March 2014, and that handlers did not show up
for training on eight of the days when he was not present. On March 11, 2014, Officer
McNerney stepped down as a trainer because he did not “want the liability” and because
he was concerned that the drug detection and explosive detection dogs were not proficient
because they were not being trained. In May 2014, however, Officer McNerney “was
ordered back” to the K-9 Unit as part of “a full-time position.” The circuit court admitted
Officer McNerney as an expert in the field of K-9 training and handling.
Officer McNerney was responsible for Officer Keightley’s training from September
2013 through March 2014. Officer McNerney testified that he determined that Ace had “a
lot of [] issues” as to false alerts, and that Ace was not trained for the required amount of
time. According to Officer McNerney, Ace had a “pretty high” number of false alerts, and
he extended to Officer Keightley an offer to train Ace, but Officer Keightley did not “show
up to train on those days[.]” According to Officer McNerney, the purpose of such training
would be to “proof” Ace off of such sources of odor as air fresheners and tobacco.
Contrary to Officer Keightley’s testimony, Officer McNerney testified that,
between September 2013 (when Officer McNerney assumed responsibility for training
dogs in both explosive detection and drug detection) and April 19, 2014 (the date of the
- 25 -
traffic stop), Ace was not trained seven hours a week, or sixteen hours a month. Officer
McNerney testified that, between those dates, he trained Ace only ten times. Officer
McNerney testified that, according to Ace’s training records, between those dates, Ace was
not trained the required sixteen hours a month that was required for certification. On May
17, 2014, pursuant to Officer McNerney’s recommendation, Officer Keightley and Ace
were decertified. Two days later, on May 19, 2014, Officer Keightley and Ace were
recertified.
At some point during Ace’s training, Officer McNerney noticed that Officer
Keightley was cueing Ace. According to Officer McNerney, because Officer Keightley
knew where the narcotic aids were, he cued Ace by subconsciously slowing down and
walking behind him. Officer McNerney opined that it was a disfavored practice for
handlers to set the narcotic aids, as that can lead to cueing. Officer McNerney also testified
that he believed that the narcotic aids had not been “switched out” since 2009. Officer
McNerney opined that it was important to use fresh narcotic aids during training.
Officer McNerney opined that, as of March 11, 2014, when he resigned, Ace was
unreliable “[b]ased on . . . the falsing issues compared to the training that was conducted
from the previous -- the previous trainer had set the requirements of [90%] and [Ace] fell
below that [90%] range where, if he wasn’t reliable.” Officer McNerney acknowledged
that, to be certified by the K-9 Unit, a drug detection dog need only score 87.5%. Officer
McNerney opined, however, that he held drug detection dogs to a higher standard in
training because, unlike scans in the field, training takes place in controlled environments.
Officer McNerney agreed with Sergeant Davis that the “handler miss” was not a
- 26 -
basis for failure of the August 19, 2014 certification process. On cross-examination,
Officer McNerney acknowledged that, on January 22, 2014, he conducted a certification
test, which Officer Keightley and Ace passed; and, on that date, he approved the
certification. Officer McNerney acknowledged that Officer Keightley and Ace were not
decertified before April 19, 2014—i.e., that the certification was valid when the traffic stop
occurred.
Circuit Court’s Ruling and Findings
After hearing arguments by counsel, the circuit court denied the motion to suppress,
finding as follows:
Grimm was driving the [Honda]. It had the Georgia plates; it was here in
Anne Arundel County. [] Chase was a passenger, as well as [Henry]. And[,]
back on April 19[,] 2014, Sergeant Lamb received some type of be[-]on[-
]the[-]lookout, . . . from his contacts in [the Drug Enforcement
Administration] and [the High Intensity Drug Trafficking Area].
***
[] Sergeant [Lamb stopped] the [Honda], and[,] unfortunately for []
Grimm and [] Chase and [Henry], none of them were wearing seat[ ]belts,
which gave [] Sergeant [Lamb] th[e] reasonable suspicion that he needed to
conduct the traffic stop[.]
***
At the [Honda], before [Ace] arrives[, t]here is the discussion about
Atlanta and airline tickets[,] and [] Grimm puts his head on the pillow[,] and
he leans with [his left] foot out of the [Honda], and the [back]seat passenger,
[] Chase, is overly talkative, and [Henry] is not talkative. And all of those
things go into [] Sergeant [Lamb]’s mind[,] and[,] in his mind[,] they are all
indicia that he has someone who is a drug dealer, the nervousness and all that
stuff.
***
- 27 -
[A]bsent [Ace’s] alert, . . . I would not have found probable cause. I
would not have found [] Atlanta being a source city, the nervousness, the
airline[] tickets to be enough to get into the [Honda]. So, this case rightly
turns on Officer Keightl[e]y and [] Ace.
Not surprisingly[,] we have a divergence of views and a difference of
opinion as to what the Court should consider to be credible. It will spoil the
ending when I tell you who[m] I find to be the most credible witness. But I
cannot analyze this case without telling you who[m] I find to be the most
credible witness. Because[,] when I discuss Officer Keightl[e]y, he [and Ace
were] certified at the time of the [traffic] stop and the [dog] scan. And
[Officer Keightley and Ace were] certified on January 22[], 2014, and it was[
not] until about a month after that [when they] lost [their] certification, and
it was[ not] too long after that before the certification was restored to [them].
[Officer Keightley] used all the proper terminology[—]bracketing,
focus sniffing, response, et cetera. And [Officer Keightley] was certified and
qualified as an expert in this area. And the Court has found [Officer
Keightley] credible, but that[ is] not necessarily the ultimate finding because
I have witnesses with expertise [that is] vastly superior to his. And I must
analyze that before I can come back to Keightl[e]y to determine whether he
did something [that] was proper or improper. I found [Officer Keightley]
credible[,] and I found him [and Ace] to be certified[,] and I considered his
training as to be in compliance or not in compliance with standard operating
procedures. This is a fuzzy area.
Sergeant [] Davis and [] Cox and [] Officer McNerney presented
different views of what the standard operating procedures should be. Each
department writes their own standard operating procedures. Each
department prepares their own standard operating procedures. And each
department decides what their standard operating procedures shall be so that
their K-9 officers -- well, handlers, and the dogs and the trainers are certified.
Sergeant Davis has a different view than [] Cox does of what the
ultimate standards should be, but there are standards in place. And []
Maryland has not ad[o]pted rigid standards. I think that[ is] what Florida v[].
Harris[, 568 U.S. 237 (2013),] was telling us.
So, the question for the Court is, were those standards that were in
place appropriate? And I think that they were. I find that there were. Was
there compliance with those standards? That[ is] the second part of that issue.
We have to look at the hours, we have to look at the [narcotic] aids, and we
have to look at whether or not the training was in compliance with the
standard operating procedures, and was there a significant or serious enough
deviation to say that [Ace] or [Officer Keightley] was not competent to
provide the work in the field. And we can analyze the 51 alerts, the 19 [false
alert]s. And we can analyze what it . . . was due to[,] and the reasons behind
it. We can look at the extended time, the distance for the training exercises,
- 28 -
the staleness of the [narcotic] aids, et cetera.
And[,] to do that, the Court has to look to the experts. And the experts
are Sergeant [] Davis and [] Cox. [] Cox is in a perilous position at times[,]
and I do think [that] he walked that tightrope that he was presented
appropriately. I do not find that he strayed over any line. And I think that
his answers were credible in terms of what he said and how he said it.
[Cox] and [] Officer McNerney are very close in their views. They
are good and fair in their analysis. And while [Cox] is retired and [Officer
McNerney] is an active [law enforcement] officer, they presented to the
Court what appeared to be their view of what the optimum standards should
be. . . . I am convinced that there is dissension in the ranks. And I think
that some of this was an airing of dirty laundry. But there appears to be
almost a[ “]they did[ not] do it today as I did it then[”] view from [] Cox.
And there seemed to be from Officer McNerney, [“]you[ are] not
listening to me.[”] Having said that, they[ are] both credible. There is
some bias, but they are credible and they have presented credible
testimony.
The Court will comment on Sergeant [] Davis. I find [Sergeant
Davis] to be the most credible witness . . . . I find [Sergeant Davis’s]
qualifications, her knowledge, [and] her training and experience to be
impeccable. Again, I[ am] going to spoil the ending, but I find her to be the
most credible witness[,] and it is she who[m] I rely upon the most and find
to be the best and most objective observer.
[Sergeant Davis’s] comments, and I hope [that] I quote this correctly,
have stuck with me ever since she said it. And when I went over and
examined everything and everything over and over and over again, I could
not get this comment out of my mind. [“Ace] knows the odor[,] or he does[
not]. He can perform[,] or he can[not.”] And[,] with that in mind, I find
[Sergeant Davis] to be a witness who has no ties to th[is] case, neutral
and unbiased and has -- I find she has no issue with [Officer Keightley] or
[Ace]. And I find [Sergeant Davis’s] analysis of the [traffic] stop and
[Ace]’s actions to be credible.
[Sergeant Davis] explains, . . . succinctly and carefully and
expansively at times[,] the issues with [false alerts] or certification or
protocols to the satisfaction of the Court that I can find Officer Keightl[e]y
and [] Ace to be credible and to be a certified [drug detection] dog that the
Court can rely upon for assessing whether or not probable cause exist[ed].
When the Court analyzes Sergeant Lamb’s observations, comments, the
[Drug Enforcement Administration] tip with [Ace] or, which I find credible,
I find probable cause . . . to believe that there is a reasonable probability
and/or a fair probability that contraband [would] be found in [the Honda].
***
- 29 -
I disagree with [] Officer McNerney and [] Cox that there was no alert by
[Ace]. I[ am] not an expert. I must analyze it on the totality of the
circumstances. And I must rely upon the expert testimony. And I find the
most credible expert to be Sergeant [] Davis. When she broke the [traffic]
stop down and she went, “[]lead is tight to prevent [Ace] go in window,
shows dog [Ace] has independent intention from [Officer Keightley]’s
[in]tention. [Ace] insists to go to driver’s [] door not once, two time[s].
Indicates target odor, get[s] to source. [Officer Keightley] took control dog
leash tight, not have contact with civilian’s dog, excited, wants to work.
[Ace] obedience, stay, lose heel, not expect indication.”
Then[,] when [Sergeant Davis] goes through all of this[,] she
concludes [that] there might have been a little odor, there might have been a
lot of odor, but [Ace] alerted. And she concludes that [Ace] committed, sat,
held it nicely[, that] there was no evidence of a false alert, [and] that [Ace]
was independent. [Officer Keightley] was more of a distraction. [Ace] knew
the odor, there was no [] interference[ by Officer Keightley], no cueing from
[Officer Keightley]. There was an obvious change of behavior, the head dip,
the bracketing, the focused sniffing. That[,] in [Sergeant Davis’s] opinion[,]
the competence of [] Ace was that he was competent to make [a] probable
cause decision based upon the training records, observing the team
personally[,] and reviewing the video.
The Court accepts that[,] and the Court finds that to be the most
credible evidence in the case.
(Emphasis added).
Conviction and Opinion of the Court of Special Appeals
On July 7, 2015, Grimm pled guilty to possession of heroin with intent to distribute,
on the condition that he could appeal the circuit court’s denial of the motion to suppress.
On August 4, 2015, Grimm noted an appeal.
On April 26, 2017, the Court of Special Appeals affirmed the
conviction. See Grimm v. State, 232 Md. App. 382, 386, 158 A.3d 1037, 1039 (2017).
The Court of Special Appeals held that an appellate court reviews for clear error a trial
court’s determination as to whether a drug detection dog is reliable. See id. at 403, 158
- 30 -
A.3d at 1050. The Court of Special Appeals explained:
Whether Ace was—at the time of the [dog] scan of Grimm’s
vehicle—a well-trained or reliable [drug detection] dog, whose alerts could
be relied upon by Officer Keightley as indicating that there was a fair
probability that [Grimm’s] vehicle contained one of illegal drugs [that] Ace
had been trained to detect, was a question of fact [that was] properly
committed to the adjudicatory skill of the [trial court that] heard the evidence
[that was] presented at the hearing on the motion to suppress. An appellate
court is ill-equipped to determine the proper amount of weight to be given to
various pages of the extensive documentation in evidence regarding a [drug
detection] dog’s performance during training exercises, or to evaluate the
credibility of witnesses, or weigh the conflicting testimony of experts. Such
factual determinations are best left to the [trial court that] hears the evidence,
and are best reviewed under a “clearly erroneous” standard that gives
deference to [the trial court]’s superior opportunity to evaluate credibility and
weigh the evidence.
Id. at 403-04, 158 A.3d at 1050 (citations omitted).
Addressing the merits, the Court of Special Appeals rejected Grimm’s contention
that the circuit court clearly erred in making certain findings of fact, such as the circuit
court’s finding that Sergeant Davis was the most credible witness. Id. at 404-05, 158 A.3d
at 1050-51. The Court of Special Appeals also rejected Grimm’s assertion that, in light of
alleged evidence of deficiencies in Ace’s training, the circuit court clearly erred in finding
that Ace was reliable. See id. at 406-07, 158 A.3d at 1051-52. The Court of Special
Appeals observed that Ace and Officer Keightley were decertified for only two days, and
that Sergeant Davis testified that she would not have decertified Ace and Officer
Keightley. See id. at 406-07, 158 A.3d at 1052. The Court of Special Appeals rejected
Grimm’s contention that Officer Keightley and Ace were not “meaningful[ly]” certified at
the time of the dog scan of his vehicle in April 2014, noting that Officer Keightley and Ace
had been certified in January 2014, and that certifications are valid for six months. See id.
- 31 -
at 407, 158 A.3d at 1052. The Court of Special Appeals rejected Grimm’s argument that
the video of the dog scan showed that Ace did not alert, as the circuit court credited
Sergeant Davis’s testimony that Ace alerted. See id. at 407, 158 A.3d at 1052. The Court
of Special Appeals was unpersuaded by Grimm’s reliance on Cox’s testimony that Ace had
44 false alerts in 179 training scenarios, as Sergeant Davis analyzed a different time period,
found a much lower rate of false alerts, and “testified that there was no particular amount
of false alerts that she would find unacceptable.” Id. at 407, 158 A.3d at 1052. 8
Petition for Writ of Certiorari and Cross-Petition
On June 15, 2017, Grimm filed a petition for a writ of certiorari, raising the
following two issues:
1. When a defendant challenges the reliability of a drug-sniffing dog
overall and the reliability of the dog’s purported alert to the possible presence
of drugs in a vehicle driven by the defendant, in accordance with [] Harris,
568 U.S. 237[], and the trial court rules that the dog’s alert established
probable cause to search the vehicle, what is the applicable standard of
appellate review?
2. Whatever standard of appellate review applies, did the [circuit]
court err in ruling that [law enforcement] had probable cause to search the
[Honda that was] driven by [Grimm]?
On June 30, 2017, the State filed a conditional cross-petition for a writ of certiorari, raising
the following issue: “Even if [law enforcement officers] did not possess probable cause to
search Grimm’s [Honda], should this Court decline to apply the Fourth Amendment’s
exclusionary rule because the [law enforcement officers] relied on Ace’s [] alert in
8
The Court of Special Appeals also held that the circuit court did not err in admitting
evidence that, on August 19, 2014, Ace was recertified. See Grimm, 232 Md. App. at 410,
158 A.3d at 1054. That issue is not before us.
- 32 -
objective good faith?” On September 12, 2017, this Court granted the petition and the
conditional cross-petition. See Grimm v. State, 456 Md. 54, 170 A.3d 290 (2017).
DISCUSSION
I.
The Parties’ Contentions
Grimm contends that the Court of Special Appeals erred in reviewing for clear error
the circuit court’s determination that Ace was reliable, and argues that the correct standard
of review is de novo—i.e., without deference. Grimm asserts that the appellate court must
review without deference the issue of whether a drug detection dog is reliable because an
appellate court reviews without deference the issue of whether probable cause existed.
Grimm maintains that a trial court is not better positioned than an appellate court to
determine whether a drug detection dog is reliable. Grimm contends that the circuit court
did not have an advantage in assessing the expert testimony because the experts’ credibility
turned not on the experts’ demeanor, but rather on the plausibility and coherence of the
experts’ explanations of the relevant documents and the recording of the traffic stop.
Grimm argues that it would be inappropriate to defer to the circuit court’s determination of
the experts’ credibility because the experts’ opinions essentially constituted opinions as to
whether probable cause existed.
Grimm maintains that, even if the circuit court had an advantage in weighing the
evidence, to maintain control of the probable cause standard and satisfy the Fourth
Amendment, an appellate court must still review without deference the circuit court’s
determination that Ace was reliable. Grimm contends that, because there are no generally
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accepted standards in Maryland regarding the training and certification of drug detection
dogs, appellate courts must provide guidance to law enforcement agencies on the issue,
and review without deference would provide the opportunity for such guidance. Grimm
asserts that, if appellate courts review trial courts’ reliability determinations for clear error,
then a drug detection dog might be considered reliable in one county or one courtroom, but
not another. Grimm maintains that, in Harris, 568 U.S. 237, the Supreme Court analyzed
the issue of whether a drug detection dog was reliable in a manner that was consistent with
review without deference.
The State responds that an appellate court reviews a determination of probable cause
in the same manner in all warrantless search cases, regardless of whether a law enforcement
officer or a drug detection dog detected an odor of controlled dangerous substances. The
State contends that an appellate court reviews for clear error a trial court’s findings of fact,
and reviews without deference the ultimate question of whether probable cause existed.
The State argues that the relevant finding of fact is whether a drug detection dog detected
an odor of controlled dangerous substances. The State asserts that, just as an appellate
court defers to a trial court’s finding that a law enforcement officer was credible in
testifying that he or she smelled marijuana emanating from a vehicle, an appellate court
defers to a trial court’s factual finding that a drug detection dog smelled drugs. The State
maintains that the only difference in a case that involves a drug detection dog is that the
State must prove that the drug detection dog smelled drugs through circumstantial
evidence, such as the drug detection dog’s training and performance in the field. The State
argues that, in Harris, the Supreme Court applied the well-established standard of review
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of a determination of probable cause, and did not apply a different standard of review
because a drug detection dog, rather than a law enforcement officer, detected drugs.
Law
In Miller, 474 U.S. at 105, 110, the Supreme Court held that the issue of whether a
confession was voluntary was a legal question, not a factual question that was entitled to
the presumption of correctness that was afforded to State court factual findings under what
was then 28 U.S.C. § 2254(d). The Supreme Court concluded that there was no support
for the position that the enactment of what was then 28 U.S.C. § 2254(d) in 1966 altered
the Court’s prior cases holding that the issue of voluntariness is a legal question. See id.
at 111. In Miller, id. at 106-07, while interviewing a defendant, a law enforcement officer
made false statements and “stated that he did not consider [the defendant] to be a criminal
because the perpetrator of the [murder] had a ‘mental problem[,]’ and needed medical help
rather than punishment.” The defendant confessed, and was convicted. See id. at 107-08.
The defendant appealed, contending that his confession was involuntary. See id. at 108.
A State supreme court determined that the defendant’s confession was voluntary. See id.
Later, the defendant petitioned for a writ of habeas corpus. See id. The United
States District Court for the District of New Jersey dismissed the petition, and the United
States Court of Appeals for the Third Circuit affirmed, concluding that the District Court’s
dismissal of the petition was proper because the issue of whether a confession was
voluntary was a factual question. See id. The Court of Appeals concluded that the habeas
proceeding was governed by what was then 28 U.S.C. § 2254(d), which stated in pertinent
part: “In any proceeding instituted in a Federal Court by an application for writ of habeas
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corpus by a person in custody pursuant to the judgment of a State court, a determination
after a hearing on the merits of a factual issue, made by a State court of competent
jurisdiction shall be presumed to be correct[.]” Id. at 108, 105 n.1. 9
The Supreme Court reversed, explaining that its precedent established that “the
ultimate issue of voluntariness is a legal question requiring independent federal
determination.” Id. at 109-10 (cleaned up). In other words, the Supreme Court “was not
bound by a [S]tate-court voluntariness finding[,]” and had a “historic duty to make an
independent evaluation of the record.” Id. at 110 (cleaned up). The Court acknowledged
that “subsidiary factual questions, such as whether a drug has the properties of a truth
serum, or whether in fact [law enforcement officers] engaged in the intimidation tactics
[that are] alleged by [a] defendant, are entitled to the [28 U.S.C.] § 2254(d)
presumption.” Id. at 112 (citations omitted). The Court, however, reiterated that “the
ultimate question whether, under the totality of the circumstances, the challenged
confession was obtained in a manner compatible with the requirements of the Constitution
is a matter for independent federal determination.” Id. at 112.
The Court observed that “the appropriate methodology for distinguishing questions
of fact from questions of law has been, to say the least, elusive.” Id. at 113 (citations
omitted). The Court distinguished factual questions from legal questions as follows:
Perhaps much of the difficulty in this area stems from the practical
truth that the decision to label an issue a “question of law,” a “question of
9
28 U.S.C. § 2254(d) is now codified at 28 U.S.C. § 2254(e)(1), which states, in
pertinent part: “In a proceeding instituted by an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State court, a determination of a factual
issue [that is] made by a State court shall be presumed to be correct.”
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fact,” or a “mixed question of law and fact” is sometimes as much a matter
of allocation as it is of analysis. At least in those instances in which Congress
has not spoken[,] and in which the issue falls somewhere between a pristine
legal standard and a simple historical fact, the fact/law distinction at times
has turned on a determination that, as a matter of the sound administration
of justice, one judicial actor is better positioned than another to decide
the issue in question. Where, for example, as with proof of actual malice in
First Amendment libel cases, the relevant legal principle can be given
meaning only through its application to the particular circumstances of a
case, the Court has been reluctant to give the trier of fact’s conclusions
presumptive force and, in so doing, strip a federal appellate court of its
primary function as an expositor of law. . . .
[By] contrast, other considerations often suggest the appropriateness
of resolving close questions concerning the status of an issue as one of “law”
or “fact” in favor of extending deference to the trial court. When, for
example, the issue involves the credibility of witnesses[,] and therefore
turns largely on an evaluation of demeanor, there are compelling and
familiar justifications for leaving the process of applying law to fact to
the trial court and according its determinations presumptive weight.
Id. at 113-14 (emphasis added) (citations omitted). Significantly, the Court stated that “an
issue does not lose its factual character merely because its resolution is dispositive of the
ultimate constitutional question.” Id. at 113 (citation omitted).
In Ornelas v. United States, 517 U.S. 690, 691 (1996), the Supreme Court held that
the ultimate questions of reasonable suspicion and probable cause are to be reviewed de
novo. The Supreme Court stated that the “principal components” of the inquiry are a
determination of the events leading up to the stop or search, and a determination of whether
these “historical facts” viewed from the standpoint of an objectively reasonable officer give
rise to reasonable suspicion or probable cause. Id. at 696. In Ornelas, id. at 691-92, a law
enforcement officer observed a two-door General Motors vehicle with California license
plates in the parking lot of a motel in Milwaukee. The vehicle “attracted [the officer]’s
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attention . . . because older model, two-door General Motors [vehicle]s are a favorite
[among] drug couriers [as] it is easy to hide things in them; and because California is a
‘source State’ for drugs.” Id. at 692. The officer radioed a dispatcher, and learned that the
vehicle’s registered owner was one of the two defendants. See id. The officer also learned
that, at 4 a.m., the other defendant, accompanied by another man, had checked into the
hotel without a reservation. See id.The officer and his partner contacted the Drug Enforcement Administration, and
learned that, according to the Narcotics and Dangerous Drugs Information System, one of
the defendants was a heroin dealer from California, while the other defendant was a cocaine
dealer from Arizona. See id. The officers summoned a drug detection dog and his handler;
however, no dog scan of the vehicle occurred. See id. The defendants left the motel and
entered the vehicle. See id. One of the officers approached the vehicle, identified himself,
and asked whether the defendants had any drugs or other contraband. See id. The
defendants responded: “No.” Id. The officer asked for, and received, the defendants’
identification. See id. at 692-93. The officer asked for permission to search the vehicle,
and the defendants consented. See id. at 693. Another officer—who had searched
approximately 2,000 vehicles for drugs—searched the vehicle, and noticed that a panel
above the passenger-side backseat armrest felt somewhat loose. See id. According to the
officer, a screw in the doorjamb that was next to the panel was rusty, indicating that it had
been removed at some point. See id. The officer dismantled the panel, and found cocaine
inside. See id.The defendants moved to suppress the cocaine, contending that the officers violated
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the Fourth Amendment by detaining them in the motel’s parking lot and searching the
vehicle’s panel without a warrant. See id. The government conceded that the officers
initiated an investigatory stop when they approached the defendants. See id. A magistrate
judge determined that the officers had reasonable suspicion to initiate the investigatory
stop, but lacked probable cause to search the vehicle. See id. at 694. The United States
District Court for the Eastern District of Wisconsin determined that the officers had both
reasonable suspicion to initiate the investigatory stop and probable cause to search the
vehicle, and concluded that “reasonable suspicion became probable cause when [the
officer] found the loose panel.” See id. The United States Court of Appeals for the Seventh
Circuit concluded that it would reverse “the District Court’s determinations of reasonable
suspicion and probable cause . . . only upon a finding of ‘clear error.’” Id. (cleaned up).
The Court of Appeals reasoned that the District Court’s determination of reasonable
suspicion was not clearly erroneous, but remanded for a determination of whether the
officer was credible in testifying about the panel. See id. at 695. On remand, the magistrate
judge expressly found the officer’s testimony credible, and the District Court again
determined that probable cause existed. See id. The Court of Appeals affirmed, reasoning
that the District Court’s determination of probable cause was not clearly erroneous. See id.Significantly, the Supreme Court reversed and remanded the case to the Court of
Appeals with instructions to review the District Court’s determinations of reasonable
suspicion and probable cause without deference. See id. at 700. The Supreme Court
distinguished factual questions from legal questions, in the context of determinations of
probable cause and reasonable suspicion, as follows:
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The principal components of a determination of reasonable suspicion
or probable cause will be the events [that] occurred leading up to the stop or
search, and then the decision whether these historical facts, viewed from the
standpoint of an objectively reasonable [law enforcement] officer, amount to
reasonable suspicion or to probable cause. The first part of the analysis
involves only a determination of historical facts, but the second is a mixed
question of law and fact: The historical facts are admitted or established, the
rule of law is undisputed, and the issue is whether the facts satisfy the
relevant statutory or constitutional standard, or[,] to put it another way,
whether the rule of law[,] as applied to the established facts[,] is or is not
violated.
Id. at 696-97 (cleaned up). The Supreme Court also discussed “background facts” as
follows:
A trial [court] views the facts of a particular case in light of the
distinctive features and events of the community; likewise, a police officer
views the facts through the lens of his police experience and expertise. The
background facts provide a context for the historical facts, and when seen
together yield inferences that deserve deference. For example, what may not
amount to reasonable suspicion at a motel located alongside a
transcontinental highway at the height of the summer tourist season may rise
to that level in December in Milwaukee. That city is unlikely to have been
an overnight stop selected at the last minute by a traveler coming from
California to points east. The 85-mile width of Lake Michigan blocks any
further eastward progress. And while the city’s salubrious summer climate
and seasonal attractions bring many tourists at that time of year, the same is
not true in December. Milwaukee’s average daily high temperature in that
month is 31 degrees and its average daily low is 17 degrees; the percentage
of possible sunshine is only 38 percent. It is a reasonable inference that a
Californian stopping in Milwaukee in December is either there to transact
business or to visit family or friends. The background facts, though rarely
the subject of explicit findings, inform the [trial court]’s assessment of the
historical facts.
Id. at 699.
The Supreme Court observed that it had never expressly deferred to a trial court’s
determination of reasonable suspicion or probable cause. See id. at 697. The Supreme
Court stated that, “as a general matter[,] determinations of reasonable suspicion and
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probable cause should be reviewed [without deference] on appeal.” Id. at 699. The
Supreme Court, however, “hasten[ed] to point out that a[n appellate] 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 [trial court]s and local law enforcement officers.” Id.The Court directed that an appellate “court should give due weight to a trial court’s finding
that [an] officer was credible and [that] the inference was reasonable.” Id. at 700.
In Harris, 568 U.S. at 250, the Supreme Court held that a law enforcement officer
had probable cause to search a defendant’s vehicle where “training records established [a
drug detection dog]’s reliability in detecting drugs[,] and [the defendant] failed to
undermine that showing[.]” Unlike in Ornelas, 517 U.S. at 691, in Harris, 568 U.S. 237,
the Supreme Court was not required to address the applicable standard of review of a
probable cause determination. Nor was the Supreme Court in Harris required to address
whether the issue of a drug detection dog’s reliability is a question of fact or law. In
upholding the trial court’s determination that a law enforcement officer had probable cause
to search a defendant’s truck, the Supreme Court explained that a law enforcement “officer
has probable cause to conduct a search when the facts [that are] available to [the officer]
would warrant a person of reasonable caution in the belief that contraband or evidence of
a crime is present.” Id. at 243 (cleaned up). The Supreme Court stated that “evidence of a
[drug detection] dog’s satisfactory performance in a certification or training program can
itself provide sufficient reason to trust his [or her] alert.” Id. at 246.
In Harris, id. at 240, a law enforcement officer was on a patrol with a drug detection
dog who had been trained to detect marijuana, cocaine, heroin, ecstasy and
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methamphetamine. The officer initiated a traffic stop of the defendant’s vehicle due to an
expired license plate. See id. The officer observed that the defendant “was ‘visibly
nervous,’ unable to sit still, shaking, and breathing rapidly.” Id. The officer walked the
drug detection dog around the defendant’s vehicle, and the drug detection dog alerted to
the driver’s side door handle. See id. The officer searched the defendant’s vehicle, and
did not find any drugs; however, the officer found multiple ingredients for making
methamphetamine, including pseudoephedrine pills. See id. at 240-41. The officer
arrested the defendant, who admitted that he routinely made methamphetamine, and that
he could not go for more than a few days without using methamphetamine. See id. at 241.
After the defendant was released on bail, the officer initiated another traffic stop of the
defendant’s vehicle due to a broken brake light. See id. The drug detection dog performed
another scan, and alerted to the driver’s side door handle again; however, the officer did
not find anything of interest while searching the defendant’s vehicle. See id. The State of
Florida charged the defendant with possession of pseudoephedrine for use in
manufacturing methamphetamine. See id.The defendant moved to suppress the evidence found in his vehicle, contending that
the drug detection dog’s alert did not provide the officer with probable cause to search the
defendant’s vehicle. See id. At the hearing on the motion to suppress, the officer testified
that, approximately two years before the traffic stops in Harris, the officer and a different
drug detection dog completed a 160-hour course in drug detection. See id. With a different
officer, the drug detection dog in Harris completed a 120-hour course in drug detection,
and the drug detection dog received a certification—valid for one year—from a company
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that tested and certified drug detection dogs. See id. The following year, the drug detection
dog and the officer became a team, and completed a 40-hour refresher course. See id. For
four hours a week, the officer trained the drug detection dog by hiding drugs in certain
vehicles or buildings, but not others, to determine whether the drug detection dog alerted
to the drugs’ locations. See id. The officer testified the drug detection dog’s performance
during training was “really good.” Id. The drug detection dog’s training records
demonstrated that he always found hidden drugs, and that he performed satisfactorily on
each day of training. See id. at 241-42. The officer testified that, although there were no
drugs in the defendant’s vehicle during either traffic stop, the drug detection dog alerted
both times because the defendant had likely transferred a “residual odor” of
methamphetamine to the driver’s side door handle. See id. at 242.
While cross-examining the officer, the defendant’s counsel did not challenge the
officer’s and the drug detection dog’s training. See id. The officer acknowledged that the
drug detection dog’s certification had expired the year before the traffic stops, but noted
that Florida law did not require drug detection dogs to be certified. See id. The officer
acknowledged that he made field reports only when the drug detection dog’s alert resulted
in an arrest. See id.The trial court denied the motion to suppress, determining that the officer had
probable cause to search the defendant’s truck. See id. The Florida First District Court of
Appeal affirmed. See id. The Supreme Court of Florida reversed, reasoning that, when a
drug detection dog alerts, “the fact that the [drug detection] dog has been trained and
certified is simply not enough to establish probable cause.” Id. (cleaned up). The Supreme
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Court of Florida concluded that the State of Florida needed to produce
the [drug detection] dog’s training and certification records, an explanation
of the meaning of the particular training and certification, field performance
records (including any unverified alerts), and evidence concerning the
experience and training of the officer handling the [drug detection] dog, as
well as any other objective evidence known to the officer about the [drug
detection] dog’s reliability.
Id. at 242-43 (cleaned up).
The Supreme Court of the United States reversed, concluding that the Florida
Court’s requirement of a particular set of records was “inconsistent with the flexible,
common[]sense standard of probable cause.” Id. at 250, 240 (cleaned up). The Supreme
Court determined that the Florida Court had “flouted th[e] established approach to
determining probable cause” by “creat[ing] a strict evidentiary checklist, whose every item
the State must tick off.” Id. at 244 (footnote omitted). The Supreme Court critiqued the
Florida Court’s creation of a checklist as follows:
Most prominently, an alert cannot establish probable cause under the Florida
[C]ourt’s decision unless the State introduces comprehensive documentation
of the [drug detection] dog’s prior “hits” and “misses” in the field. (One
wonders how the [Florida C]ourt would apply its test to a rookie [drug
detection] dog.) No matter how much other proof the State offers of the [drug
detection] dog’s reliability, the absent field performance records will
preclude a finding of probable cause. That is the antithesis of a totality-of-
the-circumstances analysis.
Id. at 244-45.
The Supreme Court explained that the Florida Court’s reasoning was also flawed
because that Court had “treat[ed] records of a [drug detection] dog’s field performance as
the gold standard in evidence, when[,] in most cases[,] they have relatively limited
import.” Id. at 245. The Supreme Court noted that field reports usually do not reflect a
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drug detection dog’s false negatives—i.e., the drug detection dog’s failure to alert where
drugs are present—because, generally, a search does not ensue in such scenarios. See id.The Supreme Court observed that field reports “may markedly overstate a [drug detection]
dog’s” false alerts, given that, when a drug detection dog falsely alerts, the drug detection
dog “may not have made a mistake at all” because the drug detection “dog may have
detected substances that were too well[-]hidden[,] or present in quantities too small for [a
law enforcement] officer to locate. Or the [drug detection] dog may have smelled the
residual odor of drugs [that were] previously in the vehicle or on the driver’s person.” Id.
at 245-46 (footnote omitted). The Supreme Court explained that, accordingly, in contrast
to field reports, training records are “[t]he better measure of a [drug detection] dog’s
reliability” because they result from “controlled testing environments” in which it is known
“where drugs are hidden and where they are not[.]” Id. at 246 (footnote omitted).
In this context, the Supreme Court stated that “evidence of a [drug detection] dog’s
satisfactory performance in a certification or training program can itself provide sufficient
reason to trust his [or her] alert.” Id. The Court provided examples of such evidence of a
drug detection dog’s satisfactory performance as follows:
If a bona fide organization has certified a [drug detection] dog after testing
his [or her] reliability in a controlled setting, a court can presume (subject to
any conflicting evidence offered) that the [drug detection] dog’s alert
provides probable cause to search. The same is true, even in the absence of
formal certification, if the [drug detection] dog has recently and successfully
completed a training program that evaluated his [or her] proficiency in
locating drugs.
Id. at 246-47.
The Supreme Court added, however, that a defendant “must have an opportunity to
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challenge such evidence of a [drug detection] dog’s reliability, whether by cross-examining
the testifying officer[,] or by introducing his [or her] own fact or expert witnesses.” Id. at
247. The Supreme Court provided examples of ways in which a defendant may challenge
a drug detection dog’s reliability as follows:
The defendant . . . may contest the adequacy of a certification or training
program, perhaps asserting that its standards are too lax or its methods faulty.
So too, the defendant may examine how the [drug detection] dog (or handler)
performed in the assessments made in those settings. Indeed, evidence of the
[drug detection] dog’s (or handler’s) history in the field, although susceptible
to . . . misinterpretation . . . , may sometimes be relevant[.] . . . And even
assuming [that] a [drug detection] dog is generally reliable, [the]
circumstances surrounding a particular alert may undermine the case for
probable cause—if, say, the officer cued the [drug detection] dog
(consciously or not), or if the team was working under unfamiliar conditions.
Id.In conclusion, the Supreme Court stated:
[A] probable[ ]cause hearing focusing on a [drug detection] dog’s alert
should proceed much like any other. The court should allow the parties
to make their best case, consistent with the usual rules of criminal
procedure. And the court should then evaluate the proffered evidence
to decide what all the circumstances demonstrate. If the State has
produced proof from controlled settings that a [drug detection] dog
performs reliably in detecting drugs, and the defendant has not
contested that showing, then the court should find probable cause. If,
[by] contrast, the defendant has challenged the State’s case (by disputing
the reliability of the [drug detection] dog overall or of a particular alert),
then the court should weigh the competing evidence. In all events, the
court should not prescribe, as the [] Supreme Court [of Florida] did, an
inflexible set of evidentiary requirements. The question—similar to every
inquiry into probable cause—is whether all the facts surrounding a [drug
detection] dog’s alert, viewed through the lens of common sense, would
make a reasonably prudent person think that a search would reveal
contraband or evidence of a crime. A sniff is up to snuff when it meets that
test.
Id. at 247-48 (emphasis added).
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Notably, in evaluating the case, the Supreme Court held that “[t]he record in this
case amply supported the trial court’s determination that [the drug detection dog]’s
alert gave [the officer] probable cause to search [the defendant]’s truck.” Id. at 248(emphasis added). Specifically, the Supreme Court observed that the State had produced
“substantial evidence of [the drug detection dog]’s training and his proficiency in finding
drugs.” Id. And, the officer testified, and the drug detection dog’s training “records
confirmed, that [the drug detection dog] always performed at the highest level” during
training. Id. The Supreme Court concluded that the drug detection dog’s completion of
two recent courses in drug detection, as well as his weekly training, “sufficed to establish
[the drug detection dog]’s reliability”—“with or without the prior certification[.]” Id. at
249. As to the ultimate issue of probable cause, the Supreme Court concluded that the
officer “had good cause to view [the drug detection dog] as a reliable detector of drugs.
And no special circumstance here gave [the officer] reason to discount [the drug detection
dog]’s usual dependability[,] or distrust his response to [the defendant]’s truck.” Id. at 249-
50.
The Supreme Court noted that the defendant had not challenged the drug detection
dog’s training in the trial court, and thus could not do so for the first time on appeal. See id.
at 248-49. The Supreme Court concluded that the defendant’s cross-examination of the
officer, “which focused on [the drug detection dog]’s field performance, failed to rebut the
State’s case.” Id. at 249. The Supreme Court was unpersuaded by the defendant’s reliance
in the trial court on the drug detection dog’s false alerts during the traffic stops
in Harris. See id. The Supreme Court reiterated that it was inappropriate to “infer[] too
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much from” a false alert. Id. The Supreme Court further explained that the drug detection
dog’s false alerts were likely due to odors that the defendant had transferred to the driver’s
side door handle, as the defendant regularly made and used methamphetamine. See id.The Supreme Court stated: “A well-trained drug-detection dog should alert to such odors;
his [or her] response to them might appear a mistake, but in fact is not. And still more
fundamentally, we do not evaluate probable cause in hindsight, based on what a search
does or does not turn up.” Id. (emphasis in original) (citations omitted).
Analysis
Here, we conclude that the ultimate question of probable cause to conduct a
warrantless search of a vehicle based on a drug detection dog’s alert is reviewed de novo;
i.e., the standard of review as to the issue of probable cause to search based on a drug
detection dog’s alert is de novo. A determination of probable cause involves a two-step
process. First, a court must identify all of the relevant historical facts that were known to
the officer at the time of the search and, if necessary, any relevant or disputed background
facts. Second, the court must determine whether those facts give rise to probable cause to
search. We conclude that the issue of a drug detection dog’s reliability is a factual question,
specifically, a question involving a background fact that falls somewhere between a clear
legal issue and a simple fact. Accordingly, an appellate court reviews for clear error a trial
court’s finding as whether a drug detection dog is, or is not, reliable.
We begin by discussing how to distinguish factual questions from legal questions.
Generally, where an issue falls between a pristine legal question and a factual matter, the
issue is treated as a factual question where a trial court “is better positioned than [an
- 48 -
appellate court] to decide the issue[.]” Miller, 474 U.S. at 114. And, an issue is a factual
question where “the issue involves the credibility of witnesses[,] and therefore turns largely
on an evaluation of demeanor[.]” Id. By contrast, generally, an issue is a legal question
“where the relevant legal principle can be given meaning only through its application to
the particular circumstances of a case[.]” Ornelas, 517 U.S. at 697 (quoting Miller, 474
U.S. at 114) (internal quotation marks omitted).
Even where an issue is a legal question, the issue may involve “subsidiary factual
questions[.]” Miller, 474 U.S. at 112. For example, although the issue of whether a
defendant’s confession was voluntary is a legal question, the issue involves the following
“subsidiary factual questions”: the interrogation’s “length and circumstances”; “the
defendant’s prior experience with the legal process, and familiarity with the Miranda
warnings”; whether the defendant took a drug that had “the properties of a truth serum”;
and whether law enforcement officers “engaged in [] intimidation tactics[.]” Id. at 110,
112, 117 (citations omitted). Similarly, although the issue of whether probable cause for a
search exists is a legal question, the issue may involve both “historical facts” and
“background facts[.]” Ornelas, 517 U.S. at 691, 700. Historical facts are the events that
give rise to a case—e.g., the fact that a car with California license plates was parked in the
parking lot of a motel in Milwaukee. See id. at 691-92. Meanwhile, background facts
include generally-known circumstances that may be relevant to a case—for example, the
fact that a person who is traveling from California to points east is “unlikely” to choose to
stay overnight in Milwaukee. Id. at 699. In describing background facts, the Supreme
Court stated that “a police officer views the facts through the lens of his police experience
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and expertise[,]” and “[t]he background facts provide a context for the historical
facts[.]” Id.Although the ultimate issue of whether probable cause existed is a legal question,
resolution of the issue may involve the determination of factual questions. We are
convinced that an issue as to a drug detection dog’s reliability is one such factual question.
Much like whether a law enforcement officer has the experience and expertise to detect the
odor of a controlled dangerous substance, the issue of whether a drug detection dog is
reliable, i.e., has the requisite training and experience to be reliable, is a factual question.
The actual detection of an odor of a controlled dangerous substance by a law enforcement
officer and a drug detection dog’s alert to the odor of a controlled dangerous substance in
a vehicle are historical facts, i.e., events that occur leading up to a warrantless search. By
contrast, the experience and expertise of a law enforcement officer and the training and
field performance by a drug detection dog are background facts, i.e., general “facts [that]
provide a context for the historical facts, and when seen together yield inferences that
deserve deference.” Ornelas, 517 U.S. at 699. A background fact may range from a
circumstance that is generally known, such as the weather on a particular day, to a fact
involving a law enforcement officer’s knowledge based on his experience and expertise.
A drug detection dog’s alert and reliability are critical facts in the probable cause
determination. As such, it cannot be said that, when disputed, a drug detection dog’s
reliability is a simple background fact. Rather, it is a background fact, the determination
of which largely informs the determination of probable cause based on a drug detection
dog’s alert. Both historical and background facts, including those that fall between a clear
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legal issue and simple fact, are reviewed for clear error.
Plainly, a trial court is better positioned than an appellate court to determine whether
a drug detection dog is reliable. This is because the issue of a drug detection dog’s
reliability requires a trial court to, among things, assess the credibility of witnesses; to
review, where available, a recording of the drug detection dog’s scan; to determine the
weight to be given documentary evidence, such as the drug detection dog’s training
records, field reports, and certifications; to consider the qualifications of any experts, and
assess their credibility and opinions about the evidence; and to determine whether, under
the totality of the circumstances, the drug detection dog is reliable.
The circumstances of this case demonstrate that a trial court is better-equipped than
an appellate court to determine a drug detection dog’s reliability. The circuit court admitted
into evidence a recording of the traffic stop from the dashboard camera in Sergeant Lamb’s
vehicle. With the recording, both the circuit court and the expert witnesses were able to
view the entirety of Ace’s scan of the Honda. The recording was played during the
testimony of both Sergeant Davis, one of the State’s experts, and Cox, one of Grimm’s
experts. Sergeant Davis and Cox pointed out and explained various events in the recording,
such as the circumstance that Ace was barking before Officer Keightley commanded him
to search. Sergeant Davis testified that Ace’s barking was simply a sign that he was “still
a little bit excited[,]” and explained that Officer Keightley calmed Ace before commanding
him to search. By contrast, Cox opined that a dog barking excessively may cause a loss of
energy and affect the dog’s performance. Although we have access to both the recording
and a transcript of Sergeant Davis’s and Cox’s testimony, we lack the circuit court’s ability
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to view the recording simultaneously with Sergeant Davis and Cox, with them making
observations about the recording while testifying.
The circuit court properly made determinations as to the expert witnesses’
credibility. Just as the expert witnesses had conflicting interpretations of the events in the
recording, so, too, did the expert witnesses have conflicting interpretations of other
evidence. For example, the evidence showed that, on May 17, 2014—nearly a month after
the traffic stop on April 19, 2014—pursuant to Officer McNerney’s recommendation,
Officer Keightley and Ace were decertified as a result of an issue with regard to the
calculation of the number of Ace’s training hours. As one of Grimm’s experts, Officer
McNerney testified that he recommended that Officer Keightley and Ace be decertified
because, according to Ace’s training records, he was not trained the sixteen hours a month
that was required for certification. By contrast, Sergeant Davis testified that she would not
have decertified Ace on that basis, as his “skills . . . were not affected one iota by the way”
in which his training hours were calculated. Sergeant Davis testified that the issue with
regard to how the number of hours of Ace’s training was calculated did not affect Officer
Keightley’s and Ace’s January 22, 2014 certification, explaining: “Either [Ace] knows the
odors[,] or he does[ not]. And he can perform, or he cannot.” The circuit court expressly
found credible Sergeant Davis’s opinion about the issue of calculating the number of hours
of Ace’s training, stating: “[W]hen I went over and examined everything and everything
over and over and over again, I could not get this comment out of my mind. [‘Ace] knows
the odor[,] or he does[ not]. He can perform[,] or he can[not.’]” Although the record
includes, among other things, documentary evidence and a transcript of the expert
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witnesses’ testimony, we lack the circuit court’s ability to consider the evidence with the
benefit of observing the expert witnesses’ demeanor and level of certainty while testifying.
The circuit court was better positioned to determine the expert witnesses’ credibility
and whether the expert witnesses displayed demeanors that were indicative of bias. Here,
the circuit court expressly found Sergeant Davis “to be the most credible witness[,]” and
found that she was “neutral and unbiased” and had “no ties to th[is] case[.]” By contrast,
although the circuit court deemed Cox and Officer McNerney also credible, the circuit
court found that they had “some bias”; that “there [was] dissension in the ranks”; and that,
while testifying, Cox and Officer McNerney “air[ed] dirty laundry.” In one instance,
Officer McNerney testified that “it was tough” to train dogs in both explosive detection
and drug detection, and that he “went to command and asked to make that a full-time
position due to the fact that [he] was being detailed out[,]” but his request was denied. In
a similar vein, Cox testified, with regard to the circumstance that the Maryland
Transportation Authority Police K-9 Standard Operating Procedures did not require
analysis of the purity of narcotic aids: “I wish [that] I could speak about the steps and
measures that I took [] to try to clear this up, but I[ am] not allowed to[.]” Cox also testified
at one point that he thought Officer Keightley was “basically, just like a rogue police.”
Because an appellate court can only read a transcript, rather than see and hear testimony
firsthand, the appellate court lacks the circuit court’s ability to assess the witness’s attitude
and demeanor, which may be indicative of bias and is relevant to a credibility
determination.
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Contrary to Grimm’s assertions, a trial court may properly assess an expert witness’s
credibility, and make decisions based on its impression of an expert witness’s credibility.
In Smallwood v. State, 451 Md. 290, 309 n.15, 152 A.3d 776, 786 n.15 (2017), this Court
rejected a defendant’s contention that this Court should review a trial court’s ruling on a
petition for a writ of actual innocence under the de novo standard of review, as opposed to
the abuse of discretion standard of review. This Court concluded that the correct standard
of review was abuse of discretion because, “[u]nder well-established rules of appellate
review, this Court is not a fact-finder, and we cannot set aside the [trial court]’s credibility
assessments of [the defendant’s psychiatric expert]’s and [the State’s psychiatric expert]’s
respective testimony.” Id. at 309 n.15, 152 A.3d at 786 n.15 (emphasis added). Thus,
in Smallwood, id. at 309 n.15, 152 A.3d at 786 n.15, this Court not only indicated that a
trial court may assess an expert’s credibility, but also determined that such a credibility
assessment is entitled to deference.
Consistently, in various instances, this Court has referred to the “credibility” of
expert witnesses. See, e.g., Falik v. Hornage, 413 Md. 163, 178, 991 A.2d 1234, 1243
(2010) (“Obviously, a party has a strong interest in the fact-finder’s assessment of the
credibility of its expert witnesses. . . . [T]he fact that an expert witness is being paid to
testify may bear on his or her credibility and may be revealed through cross-
examination.” (Citations omitted)); McGhie v. State, 449 Md. 494, 512, 144 A.3d 752,
763 (2016) (“[W]hen an expert is called to testify, it is conceivable that, based on the
cumulative body of evidence [that is] presented at a given trial, falsity regarding the
expert’s credibility and qualifications might create a substantial or significant possibility
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that the result may have been different.” (Cleaned up)); Derr v. State, 434 Md. 88, 134, 73
A.3d 254, 281 (2013) (“The [jury] instructions [that were] given sufficiently protected [the
defendant]’s right to have the jury judge the credibility of all the evidence[,] including [the]
testimony[ of an expert in forensic serology and forensic DNA analysis].”).
In addition to the circuit court being in a superior position to determine Ace’s
reliability, our conclusion is supported by the Supreme Court’s holding in Harris, 568 U.S.
at 248-50, in which the Supreme Court essentially followed the two-step process for
appellate review of the issue of probable cause set forth in Ornelas, 517 U.S. at 696-97,
699-700—namely, (1) identifying all of the relevant historical facts that were known to the
officer at the time of the search, and (2) determining whether those facts give rise to
probable cause to search. In Harris, id. at 249, the Supreme Court determined that the drug
detection dog’s completion of two recent courses in drug detection, and his weekly training,
sufficed to establish the drug detection dog’s reliability. Next, the Court determined that
the officer “had good cause to view” the drug detection dog as reliable, and that there were
no circumstances that gave the officer reason to discount the drug detection dog’s
reliability. Id. at 249-50. The Supreme Court determined the factual question of the drug
detection dog’s reliability, and then, under the totality of the circumstances, determined the
issue of probable cause. See id.
Indeed, in Harris, id. at 248, the Supreme Court stated: “The record in this case
amply supported the trial court’s determination that [the drug detection dog]’s alert
gave [the officer] probable cause to search [the defendant]’s truck.” (Emphasis added).
The Supreme Court’s use of the language “[t]he record in this case amply supported the
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trial court’s determination” would have had no meaning if the Court were reviewing the
trial court’s reliability determination without deference. To the contrary, this language
indicates that the Supreme Court viewed the trial court’s reliability determination as a
finding of fact, which would be upheld if it were supported by the record. See Cooper v.
Harris, ___ U.S. ___, 137 S. Ct. 1455, 1465 (2017) (“[F]indings of fact . . . are subject to
review only for clear error. . . . A finding that is plausible in light of the full record—even
if another is equally or more so—must govern.” (Cleaned up)). The language in the
Supreme Court’s holding in Harris, 568 U.S. at 248, is telling. The Supreme Court’s
language is consistent with the conclusion that the trial court’s reliability determination
was not a conclusion of law, but instead was a finding of fact—i.e., a resolution of one of
the factual questions involved in the issue of determining whether probable cause existed.
Our conclusion that a trial court’s reliability determination is a finding of fact is
supported not only by manner in which the Supreme Court phrased its holding in Harris,
but also by the manner in which the Supreme Court reviewed the trial court’s
determinations. Instead of re-weighing the evidence or independently determining the
credibility of the officer who handled the drug detection dog, the Supreme Court
summarized the evidence of the drug detection dog’s training and his proficiency in finding
drugs. See id. at 248-49. The Supreme Court concluded that the drug detection dog’s
completion of two recent courses in drug detection, as well as his weekly training, “sufficed
to establish [the drug detection dog]’s reliability.” Id. at 249 (citation omitted). The
Supreme Court stated that the defendant had not challenged the drug detection dog’s
training in the trial court, and determined that the defendant “failed to undermine” the
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circumstance that the drug detection dog’s training records established his reliability. Id.
at 249-50. The Supreme Court explained that “evidence of a [drug detection] dog’s
satisfactory performance in a certification or training program can itself provide sufficient
reason to trust his [or her] alert.” Id. at 246. The Supreme Court specifically stated that,
“[i]f a bona fide organization has certified a [drug detection] dog after testing his reliability
in a controlled setting, a court can presume (subject to any conflicting evidence offered)
that the [drug detection] dog’s alert provides probable cause to search.” Id. at 246-47. This
analysis is a strong indication that the Supreme Court viewed the trial court’s reliability
determination as a factual determination, to be upheld as long as it was “plausible in light
of the full record[.]” Cooper, 137 S. Ct. at 1465 (cleaned up).
It is also worth noting that, in critiquing the Florida Court’s creation of “a strict
evidentiary checklist,” the Supreme Court stated that the Florida Court had done “the very
thing” that the Supreme Court had “criticized in” Illinois v. Gates, 462 U.S. 213, 233
(1983), in which the Supreme Court “overhauled [its] method for assessing the
trustworthiness of an informant’s tip.” Harris, 568 U.S. at 244-45. In Harris, id. at 245,
the Supreme Court explained: “No more for [drug detection] dogs than for human
informants is [] an inflexible checklist the way to prove reliability, and thus establish
probable cause.” Given that the Supreme Court warned against distinguishing drug
detection dogs from “human informants” for purposes of establishing reliability, id., it
makes sense to also avoid distinguishing drug detection dogs from humans, whether
informants or law enforcement officers, for purposes of the standard of review. For
example, where a law enforcement officer testified that he or she smelled an odor of
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marijuana emanating from a vehicle, and a trial court determined that the officer’s
testimony was credible, the trial court’s determination would obviously be a finding of fact,
not a conclusion of law. Likewise, where a law enforcement officer receives information
from an informant that gives rise to probable cause for a search, the issue of the informant’s
reliability would be a question of fact as opposed to an issue of law. Similarly, where a
trial court determines that a drug detection dog is reliable, the trial court is essentially
determining that the drug detection dog had the ability to accurately detect an odor of a
controlled dangerous substance. It makes little sense to treat a trial court’s reliability
determination as a conclusion of law, rather than a finding of fact, because it was a drug
detection dog, rather than a law enforcement officer, who detected the controlled dangerous
substance.
For a myriad of reasons, the Supreme Court’s holding in Harris informs our
conclusion that a trial court’s reliability determination is a finding of fact, and is subject to
review for clear error. We are unpersuaded by Grimm’s reliance on the circumstance that,
in Harris, the Supreme Court did not expressly raise any issue as to the circumstance that
the Supreme Court of Florida engaged in review without deference. In Harris v. State, 71
So. 3d 756, 765 (Fla.), as revised on denial of reh’g (Sept. 22, 2011), the Florida Court
stated:
[T]he question presented concerns the showing that the State must make to
establish probable cause for a warrantless search of a vehicle based on a
drug[] detection dog’s alert to the vehicle. This issue involves a trial court’s
determination of the legal issue of probable cause, which we review de novo.
(Citations omitted). The first case that the Florida Court relied upon in support of this
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proposition was Ornelas, 517 U.S. at 699. Respectfully, Ornelas, id., does not support the
proposition that an appellate court reviews without deference a trial court’s reliability
determination. To the contrary, as discussed above, the Supreme Court’s holding
in Ornelas, id. at 699-700, indicates that, although the issue of whether probable cause
exists is a legal question, the issue may involve underlying factual questions regarding both
historical and background facts.
It is of no consequence that, in Harris, the Supreme Court did not expressly refer to
the standard of review that the Florida Court had employed. There was no need for the
Supreme Court to do so, as the standard of review that the Florida Court had employed was
not the subject of the petition for writ of certiorari—i.e., the standard of review was not
the issue in the Supreme Court’s review of the Florida Court’s decision. Rather, the issue
was whether the Florida Court had erred in creating a strict evidentiary checklist, whose
every item the State must tick off. See Harris, 568 U.S. at 244.
We are unpersuaded by Grimm’s argument that non-deferential review of a trial
court’s reliability determination is necessary for appellate courts to maintain control of the
probable cause standard. Our holding will not affect the well-established principle that an
appellate court reviews without deference a trial court’s probable cause
determination. See Ornelas, 517 U.S. at 691. We simply hold that, within the probable
cause analysis, the issue of whether a drug detection dog is reliable is a factual question.
After a trial court has made a reliability determination, the trial court—and, ultimately, an
appellate court—must conclude, as a matter of law, under the totality of the circumstances,
whether probable cause existed.
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We reject Grimm’s contention that deferring to a trial court’s determination of an
expert witness’s “credibility” is inappropriate where, as here, that determination is likely
to be dispositive of the issue of whether probable cause existed. “[A]n issue does not lose
its factual character merely because its resolution is dispositive of the ultimate
constitutional question.” Miller, 474 U.S. at 113 (citation omitted). The circumstance that
an expert opinion may be dispositive does not furnish any basis for providing a defendant
who failed to convince a trial court that a drug detection dog was unreliable with a second
bite at the apple in an appellate court.
Grimm barks up the wrong tree in asserting that, because there are no generally
accepted standards in Maryland regarding the training and certification of drug detection
dogs, appellate courts must provide guidance to law enforcement agencies. The Fourth
Amendment does not require such standards. Indeed, in Harris, 568 U.S. at 249, 242, the
Supreme Court concluded that evidence of the drug detection dog’s training “sufficed to
establish [the drug detection dog]’s reliability[,]” even though the drug detection dog’s
certification expired the year before the traffic stop. Just as no constitutional provision
requires set standards for the training and certification of drug detection dogs, no Maryland
statute does, either.
We find no merit in Grimm’s contention that, if appellate courts review trial courts’
reliability determinations for clear error, a drug detection dog might be considered reliable
in one county or one courtroom, but not another. Just as probable cause determinations are
case-specific, so, too, are reliability determinations. See id. at 244, 247-48 (“In evaluating
whether the State has met th[e] practical and common[sense] standard[ of probable cause],
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we have consistently looked to the totality of the circumstances. . . . [T]he court should
then evaluate the proffered evidence to decide what all the circumstances demonstrate.”).
When the issue is contested, whether a trial court will find a drug detection dog reliable in
a particular case depends not only on the drug detection dog’s training records, but also on
all of the other evidence in the case, such as expert testimony, which may vary from case-
to-case concerning the same dog, lay witness testimony, a recording (when available), and
a description of the circumstances of the drug detection dog’s scan and alert.
In sum, we agree with the conclusion of the Court of Special Appeals that the
question of whether a drug detection dog is reliable is a question of fact “best left to the
[trial court that] hears the evidence, and [is] best reviewed under a ‘clearly erroneous’
standard that gives deference to [the trial court]’s superior opportunity to evaluate
credibility and weigh the evidence.” Grimm, 232 Md. App. at 403-04, 158 A.3d at 1050
(citations omitted).
II.
The Parties’ Contentions
Grimm contends that, no matter which standard of review applies to the circuit
court’s reliability determination, the circuit court erred in determining that Sergeant Lamb
had probable cause to search Grimm’s vehicle. Grimm argues that, if the applicable
standard of review is review for clear error, then the circuit court clearly erred in finding
Sergeant Davis the most credible witness. Grimm asserts that the circuit court was wrong
in finding that Sergeant Davis was not biased, as she certified Officer Keightley and Ace
on August 19, 2014, and thus was invested in this case’s outcome. Grimm maintains that
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the circuit court’s finding that there was “dissension in the ranks” as to Cox and Officer
McNerney was in the context of the circuit court’s finding that they were credible and
“good and fair in their analysis.”
Grimm contends that Ace did not meet the minimum of sixteen hours of monthly
training that was required for certification, and points out that, nearly a month after the
traffic stop, Officer Keightley and Ace were decertified as a result of the issue with regard
to how the number of hours of Ace’s training was calculated. Grimm argues that, because
the issue of Ace’s training hours predated the traffic stop, Officer Keightley and Ace were
“not actually certified in any meaningful sense” when the traffic stop occurred. Grimm
contends that Sergeant Davis’s certification of Officer Keightley and Ace approximately
four months after the traffic stop reveals little, if anything, about Ace’s reliability at the
time of the traffic stop. Grimm notes that, according to Cox, between April 15, 2013 and
March 24, 2014, during Ace’s training, he performed 179 scans, and falsely alerted 44
times—i.e., 25% of the time. Grimm contends that the circumstances surrounding Ace’s
scan of the Honda showed that he was unreliable. Grimm observes that Ace alerted to the
driver’s door, even though the drugs were found near the passenger door. Grimm notes
that, even though Ace would alert without being commanded to search, he did not alert
when he walked by the open passenger-side window.
The State responds that the totality of the circumstances, including Ace’s alert,
established probable cause for the search. The State notes that the circuit court found that,
in addition to Ace’s alert, Sergeant Lamb considered the behavior of the Honda’s occupants
to be “indicia” that he was dealing with “a drug dealer[.]” The State contends that the
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circuit court did not clearly err in finding Sergeant Davis to be the most credible witness
concerning Ace’s reliability. The State argues that, as a member of the Montgomery
County Police Department’s K-9 Unit, Sergeant Davis was “the only outside observer[,]”
and was not subject to bias, as Cox and Officer McNerney were. The State asserts that
Sergeant Davis was the only witness to have conducted a comprehensive review of all of
Ace’s training records from his initial training in 2012 to July 2014, and that she opined
that Ace performed satisfactorily during his training.
The State points out that, in the field, Ace alerted 51 times, and falsely alerted 19
times, or 37% of the time; however, with regard to 10 of the 19 false alerts, one of the
vehicle’s occupants admitted that drugs had recently been in the vehicle. The State
contends that, accordingly, in the field, Ace’s percentage of false alerts was 18%, and his
percentage of accuracy was 82%. The State observes that the circuit court found credible
Sergeant Davis’s opinion that Ace alerted on Grimm’s vehicle, and that there was no
evidence of a false alert.
Analysis
We hold that the circuit court did not clearly err in finding that Ace was reliable,
and that the circuit court correctly concluded that Sergeant Lamb had probable cause to
search Grimm’s vehicle. In this case, the circuit court’s assessment of the experts’
credibility was critical to the circuit court’s reliability determination. Indeed, the circuit
court stated: “I[ am] not an expert. . . . I must rely upon the expert testimony”; “I cannot
analyze this case without telling you who[m] I find to be the most credible witness.” After
finding Sergeant Davis “to be the most credible witness[,]” the circuit court “accept[ed]”
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Sergeant Davis’s opinion that Ace “was competent”—i.e., reliable. In reviewing the circuit
court’s reliability determination, we must ascertain whether the circuit court clearly erred.
We readily conclude that there was no such clear error.
“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.” Varriale, 444
Md. at 410, 119 A.3d at 830 (citation omitted). A trial court’s finding of fact “is not clearly
erroneous if the record shows that there is legally sufficient evidence to support it.” Kusi
v. State, 438 Md. 362, 380, 91 A.3d 1192, 1202 (2014) (cleaned up). And, an appellate
court must “give due regard to the opportunity of the trial court to judge the credibility of
the witnesses.” Md. R. 8-131(c).
Here, the circuit court’s finding that Ace was reliable was not clearly erroneous. To
begin, the evidence substantiates the circuit court’s finding that Sergeant Davis was the
most credible expert witness. Sergeant Davis’s “qualifications, [] knowledge, [] training[,]
and experience [were] impeccable[.]” At the time of the hearing, Sergeant Davis had
approximately seven or eight years of experience as a K-9 handler and approximately
fifteen or sixteen years of experience as a K-9 trainer, including approximately seven years
as the Montgomery County Police Department’s K-9 Unit’s head trainer. During one of
her years as a trainer, Sergeant Davis was one of the top twenty K-9 officers in the United
States Police Canine Association’s Patrol Dog Field Trials. For approximately five years,
Sergeant Davis answered questions about training dogs in Police K-9 Magazine. Sergeant
Davis had run events at the United States Police Canine Association’s national training
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seminar, and had given presentations at Police K-9 Magazine’s conference. Sergeant Davis
had managed a total of five K-9 teams, trained a total of sixty-five K-9 patrol teams, and
trained a total of thirty-six K-9 detection teams.
The evidence substantiates the circuit court’s finding that Sergeant Davis was
“neutral and unbiased”; that she was “the best and most objective observer”; and that she
“ha[d] no ties to th[is] case[.]” Sergeant Davis was not paid for her testimony, apart from
what she was paid for being on duty while testifying. Sergeant Davis was the only expert
witness who had never been a member of the Maryland Transportation Authority Police’s
K-9 Unit. As far as the record reveals, Sergeant Davis’s only interaction with Officer
Keightley and/or Ace occurred approximately four months after the dog scan in question.
Specifically, on August 19, 2014, Sergeant Davis and two other members of the
Montgomery County Police Department’s K-9 Unit served as judges in the Maryland
Transportation Authority Police’s K-9 Unit’s certification process, in which Officer
Keightley and Ace were successful.
We reject Grimm’s contention that Sergeant Davis was biased because she had
previously certified Officer Keightley and Ace on August 19, 2014, after the dog scan in
question. By certifying Officer Keightley and Ace, Sergeant Davis did not indicate that
Ace had been reliable at all times prior to August 19, 2014; instead, Sergeant Davis simply
determined that, on that particular date, Ace performed satisfactorily on the tests that were
part of the certification process. Indeed, there is no evidence that Sergeant Davis reviewed
any of Ace’s training records or field reports on or before August 19, 2014. As far as the
record reveals, Sergeant Davis did not know Officer Keightley or Ace or review Ace’s
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training records until she prepared for her testimony in this case, at which point she
assessed, for the first time, whether Ace was reliable at the time of the dog scan on April
19, 2014.
The evidence of Sergeant Davis’s credibility is even more pronounced upon
comparing her circumstances to those of Grimm’s experts, Cox and Officer McNerney.
Despite labeling Cox and Officer McNerney credible, 10 the circuit court found that they
had “some bias”; that “there [was] dissension in the ranks”; and that, while testifying, Cox
and Officer McNerney “air[ed] dirty laundry.” An example of this is Cox’s testimony that
he wished that he could testify, but was not permitted to speak, about “the steps and
measures that [he] took [] to try to clear [] up” the circumstance that the Maryland
Transportation Authority Police K-9 Standard Operating Procedures did not require
analysis of the purity of narcotic aids. In the circuit court’s words, Cox’s view appeared
to be that: “[T]hey did[ not] do it today as I did it then[.]” It is also worth noting that Cox
earned approximately between $4,000 and $5,000 working on this case, unlike Sergeant
Davis, who was not paid, apart from what she was paid for being on duty while testifying.
With regard to Officer McNerney, the circuit court stated that his position appeared to be
10
At oral argument, in response to a question about what the circuit court meant
when it found Cox and Officer McNerney credible while finding Sergeant Davis the most
credible, the Assistant Attorney General responded that he thought that the circuit court
did not believe that any of the witnesses were lying, and that the circuit court was
“attempting to be polite” to Cox and Officer McNerney, who were “reputable” and
“credentialed.” Consistently, the Court of Special Appeals referred to the circuit court’s
finding that Cox and Officer McNerney were credible as a “judicious exercise of courtroom
courtesy[.]” Grimm, 232 Md. App. at 404, 158 A.3d at 1050. We agree with the State and
the Court of Special Appeals on this matter.
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that: “[Y]ou[ are] not listening to me.” The record supports the circuit court’s finding.
Officer McNerney testified that command staff initially denied his request for his position
to be made full-time, and that he stepped down as a trainer due to his concerns about the
lack of training. Officer McNerney testified that, in the same month in which he was “was
ordered back” to the K-9 Unit as a full-time trainer, he met with his superiors regarding
training deficiencies within the K-9 Unit. Additionally, Officer Keightley and Ace were
decertified pursuant to Officer McNerney’s recommendation.
In addition to the findings with respect to Sergeant Davis’s credibility and lack of
bias, the record reflects that Sergeant Davis’s qualifications were objectively superior to
Cox’s and Officer McNerney’s. Cox had approximately three years of experience as a
handler, and approximately twelve years of experience as a trainer. Officer McNerney had
approximately three years of experience as a handler, and approximately five years of
experience as a trainer. By contrast, Sergeant Davis had approximately seven or eight years
of experience as a K-9 handler and approximately fifteen or sixteen years of experience as
a K-9 trainer. Additionally, unlike Sergeant Davis, neither Cox nor Officer McNerney
testified that he had participated in national training seminars and conferences, earned a
distinction in a national police dog field trial, or been published in the field of training
police dogs.
A drug detection dog’s training records constitute the most probative evidence of
his or her reliability. As the Supreme Court explained in Harris, 568 U.S. at 246, compared
to a drug detection dog’s field reports, his or her training records are “[t]he better measure
of [his or her] reliability” because they result from “controlled testing environments.”
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(Footnote omitted). Consistent with the Supreme Court’s holding in Harris, Sergeant Davis
testified that Ace’s field reports did not have “as much bearing” as his training records,
because Ace’s training took place in environments that were more controlled than those in
the field.
In this case, Ace’s training records alone constituted more than enough evidence to
support the circuit court’s reliability determination. The Supreme Court concluded
in Harris, 568 U.S. at 249, that a sufficient amount of training alone can “suffice[] to
establish [a drug detection dog]’s reliability.” (Citation omitted). As to Ace’s training
records, the record reveals that, in testifying about Ace’s alleged false alerts, Sergeant
Davis and Cox referenced training records from different time periods. Specifically,
Sergeant Davis testified about Ace’s training records from 2013, in which Ace was in a
total of 209 scenarios, and falsely alerted on only 24 occasions. In other words, in 2013,
Ace falsely alerted approximately just 11% of the time. In contrast, Cox testified about
Ace’s training records from April 15, 2013 to March 24, 2014, during which Cox calculated
that Ace was in a total of 179 scenarios, and falsely alerted on 44 occasions. In other words,
under Cox’s calculation, between April 15, 2013 and March 24, 2014, Ace falsely alerted
approximately 25% of the time. We need not determine which of these two time periods
was more indicative of Ace’s reliability, as Sergeant Davis reviewed Ace’s training records
from his initial training in 2012 to July 2014, and testified that Officer Keightley and Ace
performed satisfactorily during the course of training. Even if we considered Ace’s
percentage of false alerts of 25% during the time period that Cox referenced, that
percentage is not dispositive in light of Sergeant Davis’s opinion that she did not consider
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any “particular amount” of false alerts to be “acceptable or unacceptable.” Moreover, as
Sergeant Davis pointed out that there is no industry standard with regard to an unacceptable
number of false alerts; and, as Cox acknowledged, there are no State-wide requirements
for drug detection dogs.
Grimm fails to effectively undermine the circuit court’s reliability finding by
pointing to alleged flaws in Ace’s training. The bottom line is that the circuit court
considered all of the evidence, including the expert witness testimony, and found the most
credible witness to be Sergeant Davis—who opined that Ace was competent, and that he
performed satisfactorily during training. Although the evidence of Ace’s training alone
supports the circuit court’s reliability finding, we observe that Officer Keightley’s and
Ace’s certifications provide even more support for that finding. As the Supreme Court
explained in Harris, 568 U.S. at 246-47, “[i]f a bona fide organization has certified a [drug
detection] dog after testing his [or her] reliability in a controlled setting, a court can
presume (subject to any conflicting evidence offered) that the [drug detection] dog’s alert
provides probable cause to search.” Here, Officer Keightley and Ace were certified four
times before the dog scan in question, and twice afterward. At the time of the dog scan on
April 19, 2014, Officer McNerney had most recently certified Officer Keightley and Ace
on January 22, 2014. That certification was valid for six months, and thus was valid at the
time of the dog scan, as Officer McNerney acknowledged. And, even though Officer
McNerney caused Officer Keightley and Ace to be decertified approximately one month
after the dog scan, Officer McNerney recertified Officer Keightley and Ace just two days
later.
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We acknowledge that a drug detection dog’s field reports, “in most cases[,] have
relatively limited import.” Id. at 245. For what it is worth, however, we observe that,
according to Ace’s field reports, between July 6, 2012 and April 19, 2014, Ace alerted to
vehicles 51 times. Of those 51 occasions, no drugs were found in the vehicle 19 times.
That said, with regard to 10 of the 19 alerts to vehicles, one of the vehicle’s occupants
admitted that drugs had recently been in the vehicle. As the Supreme Court stated in Harris,
a drug detection dog’s percentage of false alerts in the field may be “markedly overstate[d]”
due to the circumstance that “[t]he [drug detection] dog may have detected substances that
were too well[-]hidden[,] or present in quantities [that were] too small for [a law
enforcement] officer to locate. Or the [drug detection] dog may have smelled the residual
odor of drugs previously in the vehicle or on the driver’s person.” Id. at 245-46 (footnote
omitted). The whole of the evidence, including Ace’s training records and field
performance, established that Ace was reliable. For all of the above reasons, the circuit
court’s reliability determination was not clearly erroneous, and, upon de novo review,
under the totality of the circumstances, Sergeant Lamb had probable cause to search
Grimm’s vehicle.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED. PETITIONER TO PAY
COSTS.
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Circuit Court for Anne Arundel County
Case No.: 02-K-14-001188
Argued: February 1, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 37
September Term, 2017
BRIAN GRIMM
v.
STATE OF MARYLAND
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Concurring Opinion by Adkins, J.
Filed: April 20, 2018
Most respectfully, I write separately because while I concur that Ace was reliable,
and probable cause was satisfied here, I reach a different conclusion regarding the
appropriate standard of review for a drug-detecting dog’s reliability. The Majority explains
that while probable cause to search a vehicle based on a drug dog’s alert is reviewed
without deference, the question of whether the dog is reliable is one of fact and should
therefore be reviewed for clear error. Maj. Slip Op. at 48. I disagree. Florida v. Harris,
568 U.S. 237, 247–48 (2013), has established that determining whether a dog is reliable
requires an analysis of the totality of the circumstances, which this Court has always
reviewed as a question of law. State v. Wallace, 372 Md. 137, 144 (2002). Therefore, a
trial court’s assessment of reliability should be reviewed without deference.
A law enforcement officer may search a vehicle without a warrant if the officer has
probable cause. See Robinson v. State, 451 Md. 94, 108–109 (2017). Probable cause exists
where, based on the available facts, a person of reasonable caution would believe that
“contraband or evidence of a crime is present.” Harris, 568 U.S. at 243. It is a
“nontechnical common sense evaluation of the totality of the circumstances in a given
situation in light of the facts found to be credible by the trial judge.” Wallace, 372 Md. at
148. When a “properly trained canine alerts to a vehicle indicating the likelihood of
contraband, sufficient probable cause exists to conduct a warrantless ‘Carroll [v. United
States, 267 U.S. 132 (1925)]’ search of the vehicle.” Id. at 146.
In Harris, 568 U.S. at 240, the Supreme Court addressed how a court should decide
if a dog’s alert provides probable cause to search a vehicle. The Florida Supreme Court
had held that to demonstrate whether a drug-detection dog is reliable, the State had to
satisfy a list of specific evidence showing the dog’s reliability. Id. at 242–43. The Court
reversed, reiterating that evaluating whether the State has satisfied probable cause depends
on the totality of the circumstances, and a checklist approach “flouted this established
approach to determining probable cause.” Id. at 244.
The Court drew parallels between Harris and Illinois v. Gates, 462 U.S. 213 (1983).
In Gates, id. at 233, the Court concluded that an informant’s veracity, historical reliability,
and basis of knowledge are all “relevant considerations” in a totality of the circumstances
analysis to determine the “overall reliability of a tip.” A deficiency in one area may be
compensated for by a strong showing of other areas proving general reliability. Id. Harris
imported this analysis, explaining that “[n]o more for dogs than for human informants is
such an inflexible checklist the way to prove reliability, and thus establish probable
cause.” 568 U.S. at 245 (emphasis added).
The Court established a procedure for suppression hearings addressing whether a
dog’s alert provided probable cause. If the dog has been certified by a “bona fide
organization” after his reliability has been tested in a controlled setting, then a court may
presume that the alert provides probable cause. Id. at 246–47. Even if the dog is not
formally certified, if it has “recently and successfully completed a training program that
evaluated his proficiency in locating drugs,” then the same presumption exists. Id. at 247.
A defendant must have a chance to challenge this evidence of reliability, and the Court
posited various avenues a defendant may use to refute that evidence. This procedure
contemplated a totality of the circumstances analysis to find that a dog is reliable. “Even
assuming a dog is generally reliable,” the Court cautioned, “circumstances surrounding
2
a particular alert may undermine the case for probable cause—if, say, the officer cued
the dog (consciously or not), or if the team was working under unfamiliar conditions.” Id.(emphasis added).
In summarizing this procedure, the Court laid out the appropriate analysis and test:
In short, a probable-cause hearing focusing on a dog’s alert
should proceed much like any other. The court should allow
the parties to make their best case, consistent with the usual
rules of criminal procedure. And the court should then
evaluate the proffered evidence to decide what all the
circumstances demonstrate. If the State has produced proof
from controlled settings that a dog performs reliably in
detecting drugs, and the defendant has not contested that
showing, then the court should find probable cause. If, in
contrast, the defendant has challenged the State’s case (by
disputing the reliability of the dog overall or of a particular
alert), then the court should weigh the competing evidence. In
all events, the court should not prescribe, as the Florida
Supreme Court did, an inflexible set of evidentiary
requirements. The question—similar to every inquiry into
probable cause—is whether all the facts surrounding a
dog’s alert, viewed through the lens of common sense,
would make a reasonably prudent person think that a
search would reveal contraband or evidence of a crime. A
sniff is up to snuff when it meets that test.
Id. at 247–48 (emphasis added).
The Majority makes much of the Supreme Court’s pronouncement that “[t]he record
in this case amply supported the trial court’s determination that [the drug detection dog]’s
alert gave [the officer] probable cause to search Harris’s truck.” Id. at 248; see also Maj.
Slip Op. at 55–56. The Majority insists that this language “would have had no meaning if
the Court were reviewing the trial court’s reliability determination without deference.”
Maj. Slip Op. at 56. I disagree with this interpretation. A totality of the circumstances
3
analysis necessarily considers the record and defers to findings of fact while applying those
facts to the law. See Varriale v. State, 444 Md. 400, 410 (2015).
Under the totality of the circumstances in Harris, it was reasonable to conclude that
the dog was reliable. Florida had shown “substantial evidence” of the dog’s training, past
certification, and regular practice, the totality of which demonstrated that the dog was
reliable. By contrast, Harris had not challenged the dog’s training before the suppression
court and had only cross-examined the officer about the dog’s field record. Harris, 568
U.S. at 248–49. There were no circumstances that would suggest that the officer could not
trust the dog’s alert. Id. at 249–50. The totality of the circumstances in the record before
the Court demonstrated that the dog was sufficiently reliable to support probable cause. Id.
at 250.
Other jurisdictions have reached the conclusion that the “totality of the
circumstances” analysis is most appropriate for determining whether a dog is reliable. Two
years before the Supreme Court decided Harris, the Supreme Court of Oregon considered
the appropriate standard for assessing a drug-detecting dog’s reliability in State v. Foster,
252 P.3d 292 (Or. 2011). It held that “an alert by a properly trained and reliable drug dog
can provide probable cause to search.” Id. at 301. In language like that used by the
Supreme Court in Harris, the Court explained:
Whether in any particular case an alert provides probable cause
requires an individualized inquiry, one that will depend on the
totality of the information available to the officers. In the usual
case, that information likely will include the dog-handler
team’s training, certification, and performance. But it can also
include any other information relevant to the dog’s reliability
or fallibility.
4
Id. “Based on the totality of the circumstances bearing on [the dog’s] particular reliability
in this case” the Court decided that there was probable cause to search the defendant’s car.
Id. at 302. See also State v. Helzer, 252 P.3d 288, 289 (Or. 2011).
Following Harris, both the Fourth and Seventh Circuits have applied a “totality of
the circumstances” test to assessing canine reliability on review. In United States v. Green,
740 F.3d 275, 281–82 (4th Cir. 2014), the Fourth Circuit applied Harris to decide whether
a dog’s record was sufficiently reliable to provide probable cause to search a vehicle. The
State had presented substantial factual evidence about the dog’s abilities to meet the
presumption of reliability, and the defendant had not offered any evidence that undermined
the showing. Id. at 283. The Fourth Circuit affirmed the district court’s determination,
concluding that based on the dog’s “field performance records in conjunction with his
degree of training, his performance during training and recertification exercises, and his
evaluations by [State Troopers], the totality of the circumstances establish [the dog’s]
reliability in detecting drugs.” Id. at 283–84.
In United States v. Bentley, 795 F.3d 630, 635 (7th Cir. 2015), the Seventh Circuit
considered whether Bentley had shown that a drug-detecting dog was not adequately
trained or reliable. It reasoned that Harris required a suppression court to hold a probable
cause hearing to assess whether a dog’s training was adequate, a procedure that the lower
court had “dutifully followed.” Id. at 635–36. The hearing judge heard testimony about
the dog’s performance, “weighed all the evidence, decided to credit the government’s
experts over Bentley’s, and decided that [the dog’s] alert was reliable enough to support
5
probable cause.” Id. at 636. The Seventh Circuit considered the evidence presented below
adding to or detracting from the dog’s reliability, and concluded that while the dog’s record
was problematic, it was sufficient for probable cause. Thus, the lower court did not err in
finding the dog to be reliable based on “his training records, his 59.5% field rate, and [the]
C[anine] T[raining] I[nstitute]’s curriculum.” Id. at 637. While the dog’s “mixed record”
was less than ideal, “under Harris’s totality-of-the-circumstances test” there was no reason
to reverse the lower court. Id. Although the Seventh Circuit acknowledged that a lower
court’s choice between “version[s] of the evidence” is entitled to deference, it accorded
that deference to the hearing judge’s assessment of various witnesses’ explanations and
credibility. Id. at 636.
Other jurisdictions have followed a similar approach, treating the Harris analysis of
reliability as one that considers the totality of the circumstances. 1 See, e.g., United States
v. Foreste, 780 F.3d 518, 527–28 (2d Cir. 2015); United States v. Holleman, 743 F.3d 1152,
1157 (8th Cir. 2014); United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir. 2014); United
States v. Brown, 179 F. Supp. 3d 595, 603 (E.D. Va. 2016); Bennett v. State, 111 So. 3d
1At least two jurisdictions have taken the position that reliability is a question of
fact. In Jackson v. State, 427 S.W.3d 607, 615 (Ark. 2013), the Supreme Court of Arkansas
concluded that a trial court’s ruling that a dog was reliable was not “clearly erroneous.”
Likewise, in People v. Caballes, 851 N.E.2d 26, 31 (Ill. 2006), the Illinois Supreme Court
explained that the determination that the police dog was “well trained and sufficiently
reliable” was a factual one, subject to clear error review. Caballes, however, came some
years before Florida v. Harris, 538 U.S. 237 (2013). And Jackson, although
acknowledging Harris, did not fully consider the analysis established by that case. 427
S.W.3d at 615. Special Justice Gregory Jones concurred in judgment, providing a more
nuanced analysis of the of the test set forth in Harris, an analysis that bore greater
resemblance to a probable cause determination based on the totality of the circumstances,
rather than a purely factual one. Id. at 625–26 (Gregory, J., concurring).
6
983, 985–86 (Fla. App. 2013); see also Phippen v. State, 297 P.3d 104, 109 (Wyo. 2013);
McKinney v. State, 755 S.E.2d 315, 318 (Ga. App. 2014).
The Majority reasons that a trial court is “better positioned” than an appellate court
to decide reliability. Maj. Slip Op. at 51. But the kind of evidence the Majority cites—
training records, field records, videos of the scan, expert qualifications, and factual
testimony—are materials this Court regularly considers in appellate review. This Court
can review these materials while according the appropriate deference to a hearing judge’s
assessment of witness credibility when determining whether a lower court correctly applied
the law. An expert witness’s credibility in assessing and explaining evidence relating to
canine training and behavior does not automatically correlate to a dog’s reliability,
particularly when other circumstances indicate the dog’s performance may have been
unreliable during a stop.
According to Harris, a court must consider all the circumstances surrounding the
dog’s alert—training, certification, reliable performance—and decide whether, under the
totality of those circumstances, a dog’s alert is reliable. 568 U.S. at 247–48. Whether a
dog alerted is undoubtedly a question of fact, particularly if the alert appears ambiguous.
See, e.g., Phippen, 297 P.3d at 109 (lower court resolved conflicting testimony and
concluded that dog alerted); McKinney, 755 S.E.2d at 318. But the alert itself is
meaningless unless the alert is reliable. An alert does not establish probable cause without
reliability. And reliability necessitates consideration of the circumstances of dog’s
training, certification, history, and experience—or lack thereof.
7
The hearing judge found that Ace completed an initial training course, continued
training with his handler regularly, and was certified at the time that he detected the drugs
in Grimm’s vehicle. While Ace had some false alerts, his error rate was not so high that
he was obviously unreliable. The hearing judge found Sergeant Davis’s testimony
explaining Ace’s training and reliability to be more credible, and we should defer to that
credibility assessment. Grimm offered evidence that undermined Ace’s reliability.
Weighing all the facts surrounding Ace’s alert—his training, certification, and experience,
viewed “through the lens of common sense” it is reasonable to find that when he alerted, a
reasonable officer would believe that Ace was reliable and therefore “a search would reveal
contraband or evidence of a crime.” Harris, 568 U.S. 247–48. Under the totality of the
circumstances test set forth in Harris, id., I conclude that Ace was sufficiently reliable, and
therefore probable cause was met.
The lack of generally accepted standards in Maryland for training and assessing
drug detection dogs is troubling. I agree with the Majority that this Court should not wade
into the fray by creating our own standards. Maj. Slip Op. at 60. That is a matter best left
to the Legislature, rather than an appellate court.
As Chief Judge Wood observed in Bentley, 795 F.3d at 637, “[w]e hope and trust
that the criminal justice establishment will work to improve the quality of training and the
reliability of the animals they use . . . .” I have no doubt that Maryland officers work hard
to train their canine companions to be accurate and reliable. But this Court should not
abdicate its responsibility to make an independent review of probable cause, which in this
case, relied entirely on a canine alert. See Wallace, 372 Md. at 144 (court makes an
8
independent constitutional evaluation of probable cause when a party challenges a search
or seizure).
9