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Md. high court considers whether drug-detecting dogs deserve deference

Court of Appeals weighs Fourth Amendment question

A dog sniffs baggage at the Baltimore cuise terminal. (File)

A dog sniffs baggage at the Baltimore cuise terminal. (File)

ANNAPOLIS – Appellate courts should review anew the qualifications of drug-sniffing dogs when determining if police had probable cause to search a vehicle based on the canines’ whiff, a defense attorney said Thursday in urging Maryland’s top court to question why officers accepted the olfactory findings of a dog that had confused coffee and air fresheners for illicit drugs during training.

But Assistant Maryland Attorney General Daniel J. Jawor urged the Court of Appeals to defer to trial judges’ findings of probable cause unless they are “clearly erroneous.” The police in this case were not “reckless” in relying on the dog’s signal, Jawor said.

That dog, Ace, alerted his handler to the potential presence of drugs in Brian Grimm’s car after police had stopped Grimm for failing to wear a seatbelt on the Baltimore-Washington Parkway near the Arundel Mills shopping center in Hanover on April 9, 2014. Officers found heroin during the subsequent search.

Grimm pleaded guilty to possession of heroin with intent to distribute after Anne Arundel County Circuit Judge William C. Mulford said Ace’s signal gave the officers probable cause to search. Grimm was sentenced to 15 years in prison but permitted to argue on appeal that his constitutional Fourth Amendment right against unreasonable searches had been violated.

The intermediate Court of Special Appeals upheld the search and conviction in a reported opinion last April.

Pressing Grimm’s high-court appeal, attorney Jeffrey M. Ross said the failure of appellate courts to review a canine’s qualifications will improperly leave undisturbed trial judges’ rulings that police had probable cause simply because the dog signaled them to search.

Blind appellate acceptance of an officer’s testimony that “my dog smelled drugs; my dog is reliable” would be “the functional equivalent of probable cause” in every case, said Ross, an assistant Maryland public defender.

Thus, the Court of Appeals owes no deference to Mulford’s decision because Ace’s propensity for false positives belies the officers’ claim of probable cause to search, Ross said.

“Ace is unreliable,” Ross added. With Ace, “a person’s privacy is subject to invasion if they take their coffee to work with them or carry air fresheners in their car.”

But Chief Judge Mary Ellen Barbera interjected that appellate courts properly defer to trial judges on factual matters and the credibility of witnesses, including police officers who testify to the success rates of their canine aides.

She said probable cause is based on a “fair probability” standard that “allows for mistakes” so long as the police are acting in good faith.

“Do we throw out that otherwise legitimate search” when police acted in good faith? Barbera asked.

Ross responded that Ace’s training record shows that police “cannot rule out coffee (or) air fresheners” when the dog alerts them to search.

“That rules out Ace’s reliability,” Ross added.

Jawor urged the high court to defer to the trial judge who heard all the evidence for and against Ace’s qualifications and found the police “reasonably” relied on the dog’s signal for the presence of drugs and thus had probable cause to search.

But Judge Sally D. Adkins said such broad deference to a trial judge might encroach on the role of appellate courts.

“That’s very close to saying the probable cause determination is not ours to make,” Adkins said.

Jawor disagreed, saying that “step of analysis is still yours, it’s always yours.”

Jawor also defended Ace, saying the dog’s false positives occurred early in training, which the lawyer called “a learning process” akin to homework.

“These aren’t final exams,” Jawor said. “He is not stopping cars for coffee.”

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Brian Grimm v. State of Maryland, No. 37 September Term 2017.

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