Riddick v. State

1

BRANDON E. RIDDICK v. STATE OF MARYLAND

No. 1901-2023

Court of Special Appeals of Maryland

May 17, 2024

UNREPORTED ^[*]

Circuit Court for Baltimore City Case Nos. 123167003

Graeff, Tang, Meredith, Timothy E. (Senior Judge, Specially Assigned), JJ.

OPINION

TANG J.

Brandon E. Riddick, the appellant, was indicted in the Circuit Court for Baltimore City and charged with five counts of possessing a firearm and one count of possession with intent to distribute cocaine. After his motion to suppress the physical evidence was denied, the appellant entered into a conditional plea agreement as to one count of possessing a firearm and possession with intent to distribute cocaine. The court sentenced him to a concurrent sentence of 15 years, suspending all but five years without parole.

The appellant timely appealed, and he presents the following question for our review: Did the motions court err in denying his motion to suppress?^[1] We answer in the affirmative and therefore reverse the judgments of conviction.

FACTS

On May 1, 2023, Detective Nevin Nolte and other officers with the Baltimore City Police Department arrested the appellant pursuant to an open warrant. The open warrant was for the appellant's "[f]leeing and eluding" from a traffic stop on an earlier occasion and for "several narcotics violations to include distribution of controlled dangerous substance[.]"

During the arrest, Detective Nolte seized the appellant's keys to his silver BMW sedan. Detective Nolte, who was familiar with the appellant's vehicle and knew where it was typically parked, directed two officers to find the appellant's car. The officers located the vehicle legally parked on the street in the 400 block of North Patterson Park Avenue.

The officers requested a K-9 unit to conduct a scan of the vehicle. K-9 Loci arrived and "hit" on the vehicle. Once Loci alerted on the appellant's car, the officers used the BMW keys to open and search the vehicle. The officers located "a handgun containing live rounds as well as a plethora of CDS, controlled dangerous substances" and a "decent amount of U.S. currency."

Detective Nolte was not present during the K-9 scan and was the State's sole witness at the suppression hearing. He testified that Loci had "hit[,] which is what they used to describe it, that indicates a narcotic or what it's trained to indicate on, on the vehicle." Detective Nolte explained that a "hit" on the vehicle meant "that the K-9 indicates that there's-that it is sensing whatever it's-that there's something in that vehicle." He stated that when Loci "hit" on the vehicle, the officers "were good to search the vehicle[.]"

On cross-examination, Detective Nolte indicated that he was familiar with Loci but knew nothing about the K-9's training or testing:

[DEFENSE COUNSEL:] And you were not there when the K-9 hit on the car; correct?

[DET. NOLTE:] I was not.

[DEFENSE COUNSEL:] And you don't know anything in particular about this particular K-9?

[DET. NOLTE:] I know that it was K-9 Loci.

* * * [DEFENSE COUNSEL:] Are you familiar with K-9 Loci?

[DET. NOLTE:] I believe I have worked with that dog on previous occasions, yes.

[DEFENSE COUNSEL:] And do you know what K-9 Loci is trained to sniff for?

[DET. NOLTE:] I know in previous experiences it was for narcotics.

[DEFENSE COUNSEL:] And that would include marijuana; correct?

[DET. NOLTE:] I do not believe so, no.

[DEFENSE COUNSEL:] Not for marijuana?

[DET. NOLTE:] No.

[DEFENSE COUNSEL:] And do you know anything about K-9 Loci's training or testing?

[DET. NOLTE:] No[.]

MOTION TO SUPPRESS

Before the suppression hearing, the defense filed a motion followed by a supplemental motion to suppress all evidence seized as violative of the appellant's rights under the Fourth Amendment and Article 26 of the Maryland Declaration of Rights.^[2] First, the defense argued that the K-9 scan constituted a search that required reasonable articulable suspicion, of which the officers had none.

Second, the defense claimed that the K-9 alert did not amount to probable cause to search the vehicle because the K-9 was unreliable. At the hearing, the defense argued that Detective Nolte, who was not present during the K-9 scan, could not testify to the "accuracy" of Loci's alert nor provide details about the scan. Detective Nolte was not "even sure exactly what K-9 Loci [was] trained to sniff for[.]"

Even if the K-9 alert established probable cause, the appellant argued that the officers could have obtained a search warrant for the car but did not. According to the appellant, not only did the officers violate the Fourth Amendment, but their conduct was also "grievous and oppressive" under Article 26.

The circuit court denied the appellant's motion to suppress. The court explained that a K-9 scan was not a search, and thus the Fourth Amendment was not implicated. It noted the appellant's "argument for the record" that Detective Nolte "couldn't articulate what the K-9 in this instance was trained to do or train to hit on or anything of that nature. But be that as it may, the K-9 hit, the officers then decided to search the vehicle." The court explained: "[I]f a K-9 hit on a parked car and officers get into the car and search the vehicle, the way the case law is written now is that the Fourth Amendment is not implicated." Accordingly, it denied the motion on Fourth Amendment grounds.

Regarding Article 26, the court remarked that it was "conflicted" because it did not "like" that the officers did not obtain a search warrant before using the appellant's keys to access and search his vehicle. It commented that the officers' conduct was "outrageous" but concluded that their actions were neither grievous nor oppressive under Article 26.

After the court denied the motion to suppress, the appellant entered a conditional plea and noted a timely appeal.

STANDARD OF REVIEW

"When reviewing the denial of a motion to suppress, the record at the suppression hearing is the exclusive source of facts for our review." Darling v. State, 232 Md.App. 430, 445 (2017) (citation omitted). We review the evidence "in the light most favorable to the party that prevailed on the motion[,]" Scott v. State, 247 Md.App. 114, 128 (2020) (citation omitted), and "give due regard to the [suppression] court's opportunity to assess the credibility of witnesses." Spell v. State, 239 Md.App. 495, 506 (2018) (citation omitted). In doing so, "[w]e accept the suppression court's factual findings unless they are shown to be clearly erroneous." Raynor v. State, 440 Md. 71, 81 (2014). "Nevertheless, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case." Darling, 232 Md.App. at 446.

DISCUSSION

The appellant argues that the circuit court erred in denying his motion to suppress on Fourth Amendment and Article 26 grounds. As to the Fourth Amendment, the appellant contends that (1) officers lacked reasonable articulable suspicion to support a K-9 scan of his car; and (2) even if the K-9 scan did not implicate the Fourth Amendment, the officers lacked probable cause to conduct a warrantless search of his car because the State failed to establish that the K-9 alert was reliable. Regarding Article 26, the appellant argues that the officers' failure to obtain a search warrant before searching his car demands suppression of the physical evidence discovered in his vehicle.

The State responds that the appellant's Fourth Amendment rights were not violated. First, a K-9 scan is not a search. Second, the K-9 alert established probable cause to support the warrantless search of the car under the automobile exception. As to Article 26, the State argues that the claim is foreclosed as a matter of law in part because Article 26 is viewed in pari materia with the Fourth Amendment.

We conclude that the court erred in denying the motion to suppress on Fourth Amendment grounds. Because we reverse on that basis, we need not address the appellant's Article 26 argument.

I. K-9 SCAN OF VEHICLE PARKED ON PUBLIC STREET

The appellant contends that a K-9 scan of his car was a search under the Fourth Amendment. We disagree. It is well-established that a "K-9 scan alone constitutes neither an intrusive search in the traditional sense nor a seizure and thus, there are few Fourth Amendment implications." Wilkes v. State, 364 Md. 554, 581 n.20 (2001); see United States v. Place, 462 U.S. 696, 707 (1983) (holding that a canine "sniff" of luggage in a public place is not a search within the meaning of the Fourth Amendment).

Darling v. State, 232 Md.App. 430 (2017), is on point. There, we expressly held that "a canine scan of an empty car in a public area does not implicate the Fourth Amendment." Id. at 453 (involving a K-9 scan of the defendant's car parked on the street, which later revealed evidence tying the defendant to the murder). For support, we cited Wilkes, 364 Md. at 581-82, 581 n.20, United States v. Jacobsen, 466 U.S. 109, 114 (1984), and Place, 462 U.S. at 707. The appellant contends, however, that the cases on which Darling relied pre-dated United States v. Jones, 565 U.S. 400 (2012), which purportedly changed the Fourth Amendment landscape in a way that casts doubt on Darling's holding. The appellant also relies on Florida v. Jardines, 569 U.S. 1 (2013), to argue that there was no reason to expect the presence of a K-9 around his car, just as homeowners do not expect the presence of trained detection K-9s around their homes.

Neither case is relevant to our analysis. Jones did not involve a canine search. Rather, the case arose from a narcotics investigation in which law enforcement officers attached a GPS tracking device to the underside of a vehicle...