Appellate courts must defer to a trial judge’s determination that a drug-sniffing dog was reliable unless that finding was clearly wrong, Maryland’s top court has ruled in setting the review standard for the often-decisive factor in whether police had probable cause to search a vehicle.
In its decision Friday, the Court of Appeals said trial judges are in the best position to assess the credibility of witnesses testifying for and against the dogs’ reliability based on their records of positive sniffs during training and prior traffic stops.
The court’s decision on reviewability is significant because a canine’s positive sniff for drugs often forms the basis for police officers having probable cause to search a vehicle.
Such was the case for Brian Grimm, who appealed his drug conviction to the high court, saying it should review anew the trial judge’s finding the drug-detecting dog, Ace, was reliable.
Rejecting Grimm’s argument, the Court of Appeals held a dog’s reliability is primarily a question of fact to be determined by the judge. Appellate courts then apply that factual finding in determining if police had probable cause, an issue of law, the high court added.
“Our holding will not affect the well-established principle that an appellate court reviews without deference a trial court’s probable cause determination,” Judge Shirley M. Watts wrote for the court. “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.”
The office of Maryland Attorney General Brian E. Frosh praised the high court’s ruling in a statement Tuesday.
“With this decision, the Court of Appeals has confirmed the ordinary rule in a suppression hearing – that the circuit court determines which facts are true and the appellate court applies the law to those facts,” the office stated. “Like the Court of Appeals, the attorney general believes that a trained police dog’s involvement in an investigation should not affect the way judges later carry out their jobs.”
Assistant Maryland Public Defender Jeffrey M. Ross, who represented Grimm, did not return a request for comment Tuesday on the court’s ruling.
In its decision, the Court of Appeals essentially upheld the sniffing talents of Ace, who alerted his police handler to the potential presence of drugs in Grimm’s car after police had stopped him for failing to wear a seatbelt on the Baltimore-Washington Parkway near Arundel Mills 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 his constitutional Fourth Amendment right against unreasonable searches had been violated because Ace was an unreliable drug sniffer.
The Court of Appeals rejected Grimm’s suggestions to review Mulford’s determination anew and to set standards for judging a drug-sniffing dog’s reliability.
“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,” Watts wrote.
“The Fourth Amendment does not require such standards,” she added. “Just as no constitutional provision requires set standards for the training and certification of drug detection dogs, no Maryland statute does, either.”
Judge Sally D. Adkins, in a concurring opinion, said appellate courts should review a drug-sniffing dog’s reliability based on the “totality of the circumstances.” Adkins found that the totality of the circumstances, including testimony from officers who trained Ace and the dog’s training record, showed the canine to be reliable.
The Court of Appeals rendered its decision in Brian Grimm v. State of Maryland, No. 37 September Term 2017.