State v. Cabral

859 A.2d 285

159 Md. App. 354

STATE of Maryland v. Yerson Rafael CABRAL.

No. 261, September Term, 2004.

Court of Special Appeals of Maryland.

October 6, 2004.

Steven L. Holcomb (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant.

Todd E. Carroll (William F. Riddle, on the brief), Elkton, for appellee.

Panel: HOLLANDER, JAMES R. EYLER and SHARER, JJ.

HOLLANDER, Judge.

This expedited appeal has been brought by the State pursuant to Maryland Code (1974, 2002 Repl. Vol., 2003 Supp.), § 12-302(c)(3)(i) of the Courts & Judicial Proceedings Article ("C.J.").¹ The State challenges the order of the Circuit Court for Cecil County, suppressing contraband and over $175,000 recovered during a warrantless search of a vehicle driven by Yerson Rafael Cabral, appellee. The search was conducted during a traffic stop, after a trained canine alerted to the presence of drugs in the vehicle.

The State asks one question:

Did the motions court err by granting the motion to suppress because the alert by the trained and certified drug dog in this case provided probable cause to conduct a warrantless search of Cabral's vehicle?

The primary issue posed by the State requires us to consider whether probable cause to search a vehicle is undermined because of "the possibility that a drug dog could alert on residual odor...." While challenging probable cause, appellee contends that the circuit court properly granted the suppression motion because the State did not satisfy the best evidence rule; it was unable to play for the court the trooper's digital recording of the traffic stop.

For the reasons set forth below, we shall reverse and remand.

FACTUAL SUMMARY

Cabral was charged with possession of heroin with the intent to distribute, and with following "another vehicle too closely...." Thereafter, he moved to suppress the evidence seized from his vehicle during a warrantless search. An evidentiary hearing was held on February 20, 2004, and on March 17, 2004. A summary of what transpired at the hearings now follows.

On August 28, 2003, Trooper First Class Christopher Spinner was assigned to the Interstate Criminal Enforcement Team. Between 2:45 p.m. and 3:00 p.m. on that date, he effected a traffic stop of a Mercury Villager minivan on Interstate 95 in Cecil County, because it was following another vehicle too closely. Appellee was the driver of the vehicle and he was accompanied by one passenger.

Trooper Spinner testified that he "advised" Cabral of "the reason for the stop." Upon request, Cabral produced his driver's license and vehicle registration, which revealed that "the vehicle was registered to a third party." Spinner "noticed that [Cabral] was breathing very heavily and his chest was rising and falling quickly and his hands were shaking as he gave [Spinner] his driver's license and registration." Spinner recalled "some other interesting things." He noted that "there was a single key in the ignition, no other keys on the key ring, and there were some pump air fresheners throughout the vehicle as well as a strong odor of air freshener coming from the vehicle."

After Cabral produced his driver's license, Spinner "[a]sked him to remain in the vehicle while [he] went back and prepared the paperwork." Spinner also called for assistance. Shortly thereafter, Troopers Catalano and Connor responded to the location, arriving at "just about the same time."² At that point, Spinner "was beginning to fill out the paperwork necessary for the warning as well as calling in the license and registration checks." Spinner added that, when Trooper Catalano arrived, he (Spinner) "was still waiting on the checks and attempting to complete all the paperwork."

Spinner "advised" Catalano of his "initial observations." As Spinner continued to work "on the warning," and while "waiting on the checks," Connor spoke to the driver and Catalano "conducted a K-9 scan of the van...." The K-9 scan of the vehicle "result[ed] in a positive K-9 alert." In his testimony, Spinner made clear that, when the dog alerted, he "was still working on the warning" and had not yet finished the "license and registration check." The following colloquy is pertinent:

[PROSECUTOR]: And as far as the license and registration check that you were conducting, is that the standard operating procedure in making a traffic stop on Interstate 95?

[TROOPER SPINNER]: Yes, it is.

* * *

[PROSECUTOR]: Okay.... You hadn't received the results of that [license and registration] check at the time that the dog alerted?

[TROOPER SPINNER]: No, I had not.

Based upon the alert, Spinner and Connor searched the vehicle, while Catalano remained with the driver and the passenger "for their safety and ours...." During the search of the vehicle, the troopers spotted "a hidden compartment in the driver's side panel of the vehicle," from which they recovered $178,840 in United States currency and "three compressed pellets" of heroin.

On cross-examination, Trooper Spinner testified that he had a DVD camera in his patrol car, which he activated during the stop.³ However, he did not have the DVD with him at the February 2004 hearing. Although Spinner offered to retrieve the DVD from his vehicle, the State did not have the equipment needed to play it.

State Trooper First Class Joseph Catalano testified that he was assigned to the Maryland State Police Special Operations Section, K-9 Division. He had been a K-9 handler for approximately one year prior to the date in question. According to Catalano, his dog, Bruno, was trained to detect the odor of various Schedule II illegal drugs, including heroin, cocaine, and marijuana. Moreover, Bruno was up-to-date on the requisite retraining and certifications, and had been successful in the field in the year prior to the stop. Accordingly, the State offered Bruno as an "expert in detection of controlled dangerous substances."⁴ Defense counsel objected, and was permitted to conduct voir dire.

During voir dire, Catalano testified that in 2002 he and Bruno "initially went through an 11-week course" and, at the end of that course, Bruno was certified. Moreover, Bruno was recertified in November 2003. In addition, Catalano explained that they "go through a 24-hour of monthly training and then an [sic] every quarter we go through, like, a certification training." Catalano claimed that Bruno is unable to detect prescription drugs, such as Codeine, Oxycontin, or Oxycodone.

Catalano explained that Bruno alerts by "paw[ing] at the direct odor of the source [sic]. That's one of his behavior changes. Then it's followed by he sits. That's his final response." As to Bruno's ability to detect illegal drugs, Catalano testified:

Bruno's never had a false positive, I guess. I mean he's never alerted false. He never falsed on anything.

* * *

In training he's never falsed. Wherever he alerts there's a drug. He's never alerted to, say, a blank vehicle. Out on the street there's been times where he's alerted and the trooper searching that vehicle has not found the drug. That's not saying that there wasn't a drug there previously.

* * *

Or even—or if that trooper found the drugs in the car, I've had people admit that—some people admit they were smoking marijuana in the car a day or two prior, maybe earlier that day.

Of significance here, Catalano agreed that, even if drugs were no longer present in a vehicle, Bruno could alert to a residual odor. Indeed, Catalano acknowledged that "there have been alerts by Bruno previously where there hadn't been drugs in the car," but drugs had been in the vehicle up to 72 hours prior to the scan. The following colloquy is pertinent:

[APPELLEE'S COUNSEL]: Would [Bruno] he be able to detect CDS that were present in the vehicle in the past; in other words, that weren't there on that day that may have been there in the recent past?

[TROOPER CATALANO]: Typically the way we're trained is that the vehicle has no drugs in it at all, the residual odor of a drug can last up to 72 hours.

[APPELLEE'S COUNSEL]: So he would have alerted if drugs would have been there in the 72 hours that give off an odor that he's been trained for?

[TROOPER CATALANO]: He could, he could show an indication.

[APPELLEE'S COUNSEL]: Okay. Would he also have alerted if the passenger and or driver, let's say, would have—the passenger on this day would have had drugs on their person and gotten out of that vehicle and you run a scan on the vehicle, could there still be an alert?

[TROOPER CATALANO]: If there was a drug in there within 72 hours or recently, a residual odor in that vehicle.

[APPELLEE'S COUNSEL]: So in other words, if someone smoked marijuana there the day before, let's say, and there still could be a residual odor?

[TROOPER CATALANO]: That's correct.

[APPELLEE'S COUNSEL]: Or if a passenger had been in the vehicle, gotten out of the vehicle and gone someplace else, [sic] still could be a residual odor is it [sic] fair to say?

[TROOPER CATALANO]: That's correct. That's what I'm told.

(Emphasis added).

During voir dire, Catalano also testified about what occurred on the date in question. He stated:

On this date I circled Bruno around the vehicle. Bruno approached the driver's side front door; and at the rear portion of that front door Bruno kicked his head back, which indicates to me that he caught an odor of a, one of the drugs that he's trained in. He kicked back. He ran his nose along the seam of that door. He started pawing at the door and then he went into a sit.

State Trooper First Class Christopher Connor testified that he "advised" Cabral that they had "located a false compartment [in the vehicle] and that we were attempting to access it and I asked for his cooperation."⁵ Cabral then spoke in Spanish to his passenger, and reported to Connor that "the compartment was broken and that it would not open."

Appellee did not testify or call any witnesses. The hearing was continued, however, in order to allow the State to play the digital...