Grimm v. State

232 Md.App. 382

158 A.3d 1037

Brian GRIMM

v.STATE of Maryland

No. 1172, Sept. Term, 2015

Court of Special Appeals of Maryland.

April 26, 2017

Argued by: Jeff Ross (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant

Argued by: Daniel Jawor (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee

Panel: Meredith, Graeff, Friedman, JJ.

Meredith, J.

Brian Grimm, appellant, urges us to hold that the Circuit Court for Anne Arundel County erred in denying his motion to suppress evidence, namely, the heroin that was found in his automobile during a search conducted after an alert by a drug-sniffing dog. Grimm argues that the suppression court erred in concluding that the dog was reliable and that the dog's alert provided probable cause for the police officer to search the vehicle. Grimm entered a conditional guilty plea (to possession of heroin with intent to distribute), reserving the right to challenge the denial of his motion to suppress. After he was convicted and sentenced, he noted this direct appeal.

QUESTIONS PRESENTED

Grimm presents three questions for our review:

I. Did the circuit court err in finding that there was probable cause to search Appellant's vehicle without a search warrant?

II. Does the good faith exception to the warrant requirement apply?

III. Did the lower court err in admitting testimony and documents pertaining to the certification of the canine that scanned Appellant's vehicle, where the certification occurred four months after the scan occurred?

We answer "no" to Questions I and III, which obviates the need for us to address Question II. We will affirm the judgment of the Circuit Court for Anne Arundel County.

FACTUAL & PROCEDURAL BACKGROUND

On April 18, 2014—one day prior to the traffic stop of Grimm's vehicle—Sergeant Christopher Lamb, of the Maryland Transportation Authority Police, received a tip from a federal drug enforcement program referred to as "HIDTA," advising that a suspect named Brian Grimm "may be traveling northbound on Interstate 95 from Atlanta, Georgia to the area of Baltimore, Maryland ... with a large quantity of CDS."¹ Sgt. Lamb's contact at HIDTA provided descriptive information about Grimm, including his race and approximate age.

The following day, while Sgt. Lamb was on patrol, he received telephone calls from HIDTA providing additional information about the suspect: the vehicle of interest was a maroon Honda with Georgia registration, carrying multiple occupants, and it was traveling in Anne Arundel County in the vicinity of the Arundel Mills shopping complex, on Maryland Route 100, about to turn onto Route 295 North, toward Baltimore.

Sgt. Lamb spotted a vehicle matching the description provided by HIDTA, i.e. , a maroon Honda with Georgia tags traveling northbound toward Baltimore on Route 295. When Sgt. Lamb observed that none of the occupants of the Honda were wearing seatbelts, he initiated a traffic stop of the vehicle. Grimm was driving the maroon Honda at the time of the stop; there was one passenger in the front seat, and a second passenger in the back seat. After stopping the vehicle, Sgt. Lamb noted that the front seat passenger would not look at him, and she stared straight ahead throughout the traffic stop. But the back seat passenger seemed "overly polite" throughout the stop.

When Sgt. Lamb asked the driver about his travel itinerary, Grimm explained that he had just purchased the Honda in Atlanta, and that he had flown from Baltimore to Atlanta to pick up the vehicle and also to visit friends in the Atlanta area. Grimm further explained that he had been driving all night to return to the Baltimore area. Grimm possessed a Maryland driver's license, and the vehicle had been registered two days earlier, but it was not registered in Grimm's name. Grimm explained that he did not have enough money to register the vehicle in his own name because he had purchased four airline tickets from Baltimore to Atlanta in order to pick up the vehicle.

Sgt. Lamb testified at the suppression hearing that he asked Grimm to exit the vehicle because he had detected several indicia of possible criminal activity:

The rear seat passenger was over-polite. The front seat passenger was staring forward, she wouldn't speak with me, she wouldn't make eye contact with me. The driver was traveling from source city to source city for drugs—meaning Atlanta, Georgia, which is a source city of drugs to Baltimore City which is a source city of drugs. The fact that they had flown down four individuals from Baltimore, Maryland to Atlanta, Georgia, purchased a vehicle, but then the operator Mr. Grimm who stated [he was] to be the owner was not able to afford to put that vehicle in his name, register that vehicle in his name when he drove it back. And the totality of those things ....

While speaking with Grimm, Sgt. Lamb observed that Grimm looked "disheveled" and "unkempt like he had been on the road and hadn't been staying anywhere." Sgt. Lamb felt that Grimm was "mumbling" and "rambling" when answering questions, and would "look away, and then look back" at Lamb throughout their conversation. Grimm did not, however, appear to be nervous. Sgt. Lamb eventually instructed Grimm to reenter his vehicle. While Sgt. Lamb was writing the seat-belt warnings to be issued to the occupants of the Honda, he noticed that Grimm "never fully closed his door when he got into his vehicle," and he "maintained his left foot out of the vehicle and on the asphalt." Sgt. Lamb considered Grimm's conduct "very unusual," and thought that it indicated that Grimm might be a "flight risk." Nevertheless, Sgt. Lamb testified that he did not believe he had probable cause to search Grimm's vehicle at that point.

While Sgt. Lamb was still in the process of writing out the warnings, Maryland Transportation Authority Police Officer Carl Keightley arrived with his drug-detection dog, a Malinois named "Ace." Officer Keightley had been Ace's handler since 2012. They had gone through an initial three-month training period, and Ace had been trained to detect heroin, methamphetamine, MDMA, marijuana, and cocaine. Both the dog and the handler had been certified by the Maryland Transportation Authority Police through testing in various situations, including searches of buildings, luggage, vehicles, and open areas. Officer Keightley and Ace held current certifications when they were called to scan Grimm's vehicle on April 19, 2014, having been most recently recertified by the Maryland Transportation Authority Police on January 22, 2014.

Officer Keightley and Ace conducted an exterior scan of Grimm's vehicle, and Ace gave a positive alert to the presence of narcotics. Officer Keightley testified that, while he was leading Ace around the vehicle, Ace jumped up and stuck his head inside of the driver's side window, sniffed, and sat, which was Ace's "final alert" to the presence of narcotics. Sgt. Lamb then searched Grimm's vehicle, and discovered a "large quantity of heroin and amphetamine" hidden in the rear panel of the passenger side door. Grimm was arrested and charged with possession with intent to distribute heroin (and other related offenses that are not material to this appeal).

In the circuit court, Grimm moved to suppress the evidence discovered during the search, and contended that Sgt. Lamb lacked probable cause to search his vehicle. The court held a lengthy evidentiary hearing on the motion. Both sides argued that their respective positions were supported by the Supreme Court's opinion in Florida v. Harris , 568 U.S. 237, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013), in which the Court held that "evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert," but also said that a defendant "must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses." Id. , 133 S.Ct. at 1057. Grimm urged the suppression court to find that Ace was not a reliable drug-detection dog, that his training was deficient, and that his purported alert therefore did not provide support for Sgt. Lamb's belief that he had probable cause to search the vehicle.

During the suppression hearing, each side called two expert witnesses. Officer Keightley (Ace's handler) was accepted by the court as an expert in the field of K–9 police dogs and the detection of heroin, marijuana, cocaine, MDMA, and methamphetamine. Officer Keightley explained that he generally trains with Ace one day each week in various scenarios designed to mimic situations they might encounter in the field. The State introduced in evidence written records of training conducted with Ace during 2012, 2013, and 2014. During Officer Keightley's testimony, the State also introduced the field reports that had been completed by Officer Keightley after each drug scan performed by Ace. Officer Keightley explained that the Maryland Transportation Authority Police has generated K–9 certification guidelines, and that Ace had first been certified in 2012, and was thereafter recertified every six months. The initial certification of Ace was performed by Officer Michael McNerney (who would later be called by Grimm as an expert witness at the suppression hearing). After reviewing with the court the dash-cam video recording of the scan of Grimm's Honda, Officer Keightley reiterated that Ace gave an alert indicating that he had detected the odor of narcotics in the vehicle.

During cross-examination of Officer Keightley, Grimm's counsel reviewed with the officer the fact that the field reports reflected that Ace had given positive alerts to vehicles during 51 scans, but no contraband was found in 19 of those vehicles. Officer Keightley had interviewed the occupants of those 19 vehicles and had been told by occupants of ten of the vehicles that, in fact, drugs had recently been present in those vehicles....