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Law Digest — Maryland Court of Special Appeals — Dec. 13, 2018

Court of Special Appeals

Criminal Procedure, Search & seizure: Drug-detection dog’s alert to presence of drugs in defendant’s car was sufficient to establish probable cause to search car, even though dog did not provide final, trained alert that drugs were present, where dog’s handler testified credibly that even though the dog did not provide a final alert, the dog’s behavior was consistent with the presence of drugs, albeit in two places. Ryan Lawrence Steck v. State of Maryland, No. 705, Sept. Term, 2017.

Negligence, Public duty doctrine: Under the public duty doctrine, the appellant could not establish that a defendant police officer who failed to make contact with a 911 caller owed a duty enforceable in tort to the caller because the special relationship exception to the public duty doctrine did not apply, where there was no allegation that the officer and the caller ever met or communicated with each other or that any affirmative act by the officer induced reliance by the caller. Carolyn Howard v. Ben Crumlin, et al., No. 1025, Sept. Term, 2017.

Criminal Procedure

Search & seizure

BOTTOM LINE: Drug-detection dog’s alert to presence of drugs in defendant’s car was sufficient to establish probable cause to search car, even though dog did not provide final, trained alert that drugs were present, where dog’s handler testified credibly that even though the dog did not provide a final alert, the dog’s behavior was consistent with the presence of drugs, albeit in two places.

CASE: Ryan Lawrence Steck v. State of Maryland, No. 705, Sept. Term, 2017 (Filed Nov. 28, 2018) (Judges Woodward, Shaw Geter & BATTAGLIA (Senior Judge, Specially Assigned)).

FACTS: On August 7, 2016, while working bicycle patrol in the area of First Street and St. Louis Avenue in Ocean City, Officer Dan McBride, of the Ocean City Police Department, observed a 2008 black Chevy Impala with a Delaware registration stop at a stop sign and then make a left turn, crossing over one lane of the roadway. According to McBride, when the “vehicle went to make a left-hand turn, it pulled out in front of a taxicab, which caused the taxicab [driver] to… slam on his brakes to avoid a collision with the vehicle.” Believing that the driver had committed a traffic violation, McBride broadcast a description of the vehicle and the occupants over the police radio. The vehicle was subsequently stopped by Officer Neshawn Jubilee. McBride arrived about three minutes later.

Upon arriving, McBride confirmed that the vehicle stopped was the car he witnessed and identified Etoyi Roach as the driver, Ryan Lawrence Steck in the backseat, and another passenger in the front seat. After speaking with the occupants, McBride entered Jubilee’s patrol car and began issuing Roach a written warning. He also requested a K-9 unit to respond to the scene.

McBride later testified that he requested a canine unit “based on the behavior of the occupants, which [was] noted in [his] report, as well as the information that Officer Jubilee had relayed,” including that “it took a little longer to pull over than usual…the Impala almost ran a red light when it pulled over and kind of coasted to a stop. And Jubilee said that as he approached the vehicle, the driver – the occupants were making some furtive movements around the vehicle.”

Similarly, Jubilee testified that, the Impala did not stop until three city blocks further than where he initiated the traffic stop. As he pulled up to the vehicle, he noticed that, “the occupants were looking around. Their hands were moving about the car. I did not know exactly what they were doing, but they were looking around at each other and their hands were also moving.” The occupants provided Jubilee their licenses upon request, and at that point, McBride arrived on the scene and took control of the traffic stop. McBride further testified that after he made his request for the canine unit, it took a few minutes for a team to arrive, and he was still in the process of writing Roach’s warning when it arrived.

Deputy Christopher Larmore, of the Worcester County Sheriff’s Office Patrol Division, testified that he was in the area of Third Street and Atlantic Avenue when he received a request for canine support. He and his partner arrived at the scene a few minutes later. Upon arrival, Larmore requested that McBride and the other officers remove the occupants from the vehicle for safety reasons. Shortly thereafter, Larmore conducted a scan of the vehicle, at which time Roach, Steck, and the other passenger were all seated on a nearby curb.

When Larmore and his dog checked the rear of the vehicle, the dog showed signs of having detected two different odors in two different places. Larmore explained that since the dog “was kind of, fighting two different odors here, he won’t actually go into what’s called a final alert, which is his sit.” Larmore “believed that the odor was mostly coming from the occupants and that’s why the dog kept trying to pull me to them.” Larmore further testified that Simon’s behavior was “consistent with odor coming from the vehicle” and “odor coming from the individuals sitting on the curb.”

Detective Corey Gemerek, of the Criminal Investigation Division, Ocean City Police Department, testified that after the scan was complete, he approached Steck and asked if he had any drugs or weapons on his person. According to Gemerek, Steck replied “that he had a blunt inside his pocket.” Gemerek then asked Steck to remove it from his pocket; Steck, in turn, retrieved a clear plastic bag containing marijuana and handed it to Gemerek. After the seizure of the marijuana, the officers searched the vehicle and discovered one thousand bags of what turned out to be heroin.

Steck filed two motions to suppress the seizure of the heroin, both of which were denied. Steck appealed to the Court of Special Appeals, which affirmed.

LAW: Steck argued that the initial traffic stop was unlawful, as it was not supported by reasonable articulable suspicion that a traffic violation had occurred. Specifically, he contended that neither Sections 21-309(b)5 nor 21- 402(a)6 of the Transportation (“TR”) Article, Maryland Code (1977, 2012 Repl. Vol.), was violated by the driver of the vehicle, and as a result, the stop was illegal from its inception. Steck further averred that the traffic stop was prolonged beyond the time necessary to effectuate the purpose of the stop, to write a warning ticket, in order to permit a K-9 unit to arrive and conduct a scan of the car.

The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures by the government. Whren v. United States, 517 U.S. 806 (1996); United States v. Mendenhall, 446 U.S. 544 (1980). The Supreme Court has maintained that, the “[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Whren, 517 U.S. at 809–10; see also Holt v. State, 435 Md. 443, 459 (2013).

The Fourth Amendment, however, is not “a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682 (1985); Cartnail v. State, 359 Md. 272, 283 (2000). Therefore, the touchstone of the analysis under the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S. 106, 108–09 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). In assessing the reasonableness of a traffic stop, the Supreme Court has adopted a “dual inquiry,” examining “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Sharpe, 470 U.S. at 682.

A traffic stop is permissible under the Fourth Amendment “where the police have a reasonable suspicion supported by articulable facts that criminal activity is afoot.” Lewis, 398 Md. at 361. Thus, a traffic stop violates the Fourth Amendment where there is no “reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable laws.” Delaware v. Prouse, 440 U.S. 648, 650 (1979); Rowe v. State, 363 Md. 424, 433 (2001).

In assessing whether the articulable reasonable suspicion standard is satisfied, it is well settled that the police have the right to stop and detain the operator of a vehicle when they witness a violation of a traffic law. Cartnail, 359 Md. at 289. See, e.g., Byndloss v. State, 391 Md. 462 (2006) (validating a traffic stop where petitioner was stopped for having her license plate obscured by a plastic license plate cover).

Here, Steck argued that the driver of the Impala was lawfully operating his vehicle and that almost causing an accident was insufficient to support a traffic stop. Steck relied on Lewis v. State, a case in which the Court of Appeals did not uphold a traffic stop and subsequent vehicle search because the Court determined that Lewis had not violated any law, traffic or other. 398 Md. at 368.

What differentiated Lewis from the present case was that the motions judge found that, “the behavior, the actions, of [Roach] in driving the vehicle in front of the cab certainly is grounds for a traffic offense. So I find that that was warranted to have the vehicle pulled over and begin writing at that time what would have been a warning.” The judge’s finding was supported by the testimony of McBride, who had a “clear and unobstructed view of the event” and observed the Impala pull “out in front of a taxicab, which caused the taxicab to hit his brakes in the roadway,” in order to avoid a collision. Unlike Lewis, therefore, where police officers grounded their decision to stop a vehicle on an alleged traffic violation which was not one—the vehicle used its turn signal, began to pull into the street from a parallel parking space, and “nearly” struck the back of a police car—the behavior observed by McBride and credited by the circuit court, in the present case, provided the officers reasonable suspicion to stop Roach’s Impala.

The next issue, therefore, was whether the stop was unnecessarily prolonged. While the reasonableness of a “traffic-based detention is not measured by the clock alone,” State v. Ofori, 170 Md. App. 211, 237, cert. denied, 396 Md. 13 (2006), it must also “be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Id. The purpose of a traffic stop should be limited to “the period of time reasonably necessary for the officer to (1) investigate the driver’s sobriety and license status, (2) establish that the vehicle has not been reported stolen, and (3) issue a traffic citation[.]” Pryor v. State, 122 Md. App. 671, 682, cert. denied, 352 Md. 312 (1998). Police activity at a traffic stop, however, would not justify “a detention that extend[s] beyond the period of time that it would reasonably have taken for a uniformed officer to go through the procedure involved in issuing a citation to a motorist.” Id.

When evaluating “the effect of the length of the detention, we take into account whether the police diligently pursued the purpose of their investigation.” Henderson v. 12 State, 416 Md. 125, 144 (2010) (quoting United States v. Place, 462 U.S. 696, 709 (1983)). Once the mission of the original traffic stop has been completed, “the continued detention of a vehicle and its occupant(s) constitutes a second stop and must be independently justified by reasonable suspicion.” Munafo v. State, 105 Md. App. 662, 670 (1995).

While not entirely dispositive, time is a consideration in this calculus. For example, in Padilla v. State, the Court found that no Fourth Amendment violation occurred when a drug-sniffing canine provided an alert “within twelve minutes of the inception of the traffic stop, at a point when Trooper Kennard had not yet received the results of the registration and license check[.]” 180 Md. App. 210, 224, cert. denied, 405 Md. 507 (2008). See also Wilkes v. State, 364 Md. 554, 570 (2001) (validating a traffic stop where the “K-9 unit arrived on the scene and conducted the scan of petitioner’s Escort prior to Trooper receiving radio verification of the validity of petitioner’s driver’s license, vehicle registration card, and warrants check”).

Here, the circuit court found that there was no undue delay. The stop was at 12:24. McBride got there three or three minutes later, and Larmore arrived at 12:32 with his dog. This was not an undue delay in light of the testimony that McBride provided that he was still writing a citation. Thus, the record supported that only an eight minute lapse in time occurred, which was not an undue delay, especially because the officer was writing the citation.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Steck also argued that, under the totality of the circumstances, there was no probable cause to search the Impala, as evidenced by the failure of the dog to positively alert.

The Supreme Court has consistently held that a police officer “has probable cause to conduct a search when ‘the facts available to [the officer] would warrant a [person] of reasonable caution in the belief’ that contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237, 243 (2013) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion)). The test for probable cause, however, “is not reducible to ‘precise definition or quantification.’” Id. (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)). Probable cause “is a nontechnical conception of a reasonable ground for belief of guilt,” State v. Wallace, 372 Md. 137, 148 (2002), cert. denied, 540 U.S. 1140 (2004) (quoting Doering v. State, 313 Md. 384, 403 (1988)), which “requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion.” Id.

The evaluation as to whether probable cause existed “requires a nontechnical, common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible by the trial judge.” Id. It thus follows that police “must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably” permit a warrantless search. Id. at 148.

It is settled law in Maryland that when a drug detection dog “alerts to a vehicle indicating the likelihood of contraband, sufficient probable cause exists to conduct a warrantless ‘Carroll’ search of the vehicle. Id. at 146. There may be situations, however, where a drug detection dog fails to provide its final alert, but probable cause exists, based upon the evidence presented.

In addressing whether a dog’s conduct provides a sufficient basis for probable cause for a warrantless car search, evaluation of the credibility of the dog’s handler and other witnesses on the scene is key. In the present case, the judge specifically commented on the “compelling” nature of Larmore’s testimony, finding the dog’s behavior indicative that drugs were present. Thus, the court did not err in finding that, based on Larmore’s testimony, the probability that a search might yield contraband, based on the dog’s scan which was consistent with the presence of narcotics, amounted to probable cause. Because probable cause existed to search the car in the instant case, the fruits of that search were admissible.

PRACTICE TIPS: A canine scan that occurs during a valid, lawful traffic stop may not be considered a Fourth Amendment “search” that requires additional reasonable suspicion or probable cause, Gadson v. State, 341 Md. 1, 8 n.4 (1995), cert. denied, 517 U.S. 1203 (1996), because drug detection dogs do not seek out items that are lawful to possess, only contraband, and as such, the “use of a well-trained narcotics-detection dog…during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Illinois v. Caballes, 543 U.S. 405, 409 (2005) (quoting United States v. Place, 462 U.S. 696, 707 (1983)). It is “perfectly legitimate” to use a drug detection dog during a traffic stop as a “free investigative bonus,” as long as the traffic stop is “still genuinely in progress.” State v. Ofori, 170 Md. App. 211, 235, cert. denied, 396 Md. 13 (2006).

Negligence

Public duty doctrine

BOTTOM LINE: Under the public duty doctrine, the appellant could not establish that a defendant police officer who failed to make contact with a 911 caller owed a duty enforceable in tort to the caller because the special relationship exception to the public duty doctrine did not apply, where there was no allegation that the officer and the caller ever met or communicated with each other or that any affirmative act by the officer induced reliance by the caller.

CASE: Carolyn Howard v. Ben Crumlin, et al., No. 1025, Sept. Term, 2017 (filed Nov. 28, 2018) (Judges Beachley, Shaw Geter & FADER).

FACTS: On February 19, 2014, Nicole Sade Enoch was in her apartment in Silver Spring. A male friend of a woman who was staying with Ms. Enoch may have been there as well. Shortly after 2:00 a.m., Ms. Enoch called 911. In response, Montgomery County Police Officer Ben Crumlin was dispatched to the apartment building, attempted to enter, but found the door locked. He left without making contact with Ms. Enoch. At some point, Ms. Enoch went to the roof of her apartment building and either jumped, fell, or was pushed off. Her body was discovered at 8:20 a.m. and she was pronounced dead at the scene.

Carolyn Howard, Ms. Enoch’s mother, brought suit for herself and on behalf of Ms. Enoch’s estate in the Circuit Court for Montgomery County. The operative complaint was the Fourth Amended Complaint, in which Ms. Howard brought claimed against Officer Crumlin and Montgomery County Chief of Police J. Thomas Manger for negligence and wrongful death. Ms. Howard alleged that Officer Crumlin and Chief Manger owed a duty to Ms. Enoch that they breached by failing to investigate the 911 call, protect Ms. Enoch, enter the building and make contact with Ms. Enoch, maintain proper policies and procedures for responding to 911 calls, provide adequate training for responding to 911 calls, and monitor the response of officers to 911 calls. According to the complaint, these failures were the direct and proximate cause of Ms. Enoch’s death.

The circuit court dismissed the claims against Officer Crumlin and Chief Manger on the ground that those defendants did not owe a duty to Ms. Enoch that was enforceable in tort. Ms. Howard appealed to the Court of Special Appeals, which affirmed.

LAW: This appeal centered on two different legal doctrines that are distinct but too often confused: the public duty doctrine and public official immunity. Each independently required a ruling in favor of Officer Crumlin and Chief Manger.

The public duty doctrine provides that statutory or common law duties imposed on public officials or entities that are duties “to the public as a whole,” and not to any particular group or individual, are unenforceable in tort. Cooper v. Rodriguez, 443 Md. 680, 714 (2015). Where it is applicable, the plaintiff cannot ordinarily establish that the defendant owed a duty to the plaintiff or a group of which the plaintiff is a member. Without such a duty, there can be no liability in tort. Jones v. State, 425 Md. 1, 19 (2012).

The seminal case applying the public duty doctrine is Ashburn v. Anne Arundel County, 306 Md. 617 (1986). There, a police officer found a drunk individual behind the wheel of a pickup truck in a parking lot with the engine running. Id. at 620. Rather than detain him, the officer told the driver to pull to the side and stop driving. Id. As soon as the officer left, the individual drove away and promptly hit a pedestrian. The pedestrian, Mr. Ashburn, sued the officer for negligence.

The Court of Appeals held that Mr. Ashburn had failed to establish that the officer “owed him a duty in tort.” Id. at 626. The Court invoked “the general rule that there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a ‘special relationship’ exists either between the actor and the third person or between the actor and the person injured.” Id. at 628. Absent such a special relationship “between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie against police officers.” Id. Instead, the duty owed by police officers “is a duty to protect the public” and any breach of that duty can and should be addressed not by a tort action but by “criminal prosecution or administrative disposition.” Id.

The rationale for this doctrine is that public officials involved in fighting crime make decisions in circumstances that are “fraught with uncertainty” and, therefore, “must have broad discretion to proceed without fear of civil liability in the unflinching discharge of their duties.” Ashburn, 306 Md. at 629. In such circumstances, “the public interest is not served by allowing a jury of lay (persons) with the benefit of 20/20 hindsight to second guess the exercise of a police [officer]’s discretionary professional duty. Such discretion is no discretion at all.” Id.

An exception to the public duty doctrine lies when a public official creates a special relationship with the victim “upon which [the victim] relied.” Id. at 630-31. For such a relationship to exist, the public official must have “affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim’s specific reliance upon the police protection.” Id. at 631. No such special relationship existed in Ashburn as there was no allegation that the officer undertook any affirmative act of protection or that any statute imposed a specific duty enforceable by tort. Id. at 631-32

In McNack v. State, 398 Md. 378 (2007), relatives of seven members of a family that were killed in the fire-bombing of a home brought a lawsuit alleging that Baltimore City had encouraged the members of the family to engage in behavior that led to the bombing—the reporting of drug activity— while knowing that the police could not protect them. The plaintiffs alleged that a special relationship was created between the police and the family by virtue of the more than 100 calls to 911 the family had made, the fact that police were dispatched to the house on many occasions, and a claim that the police had told the family that they would be placed on a “special protection list.” Id. at 399. The Court found that none of these things, individually or collectively, were sufficient to create a special relationship. Id. at 400-01. The Court specifically noted the absence of any sufficiently-pled allegation that the police officers who responded on those many occasions to the family’s home “affirmatively acted for the [family’s] benefit, that they did anything to induce the [] family to rely on them, or that they acted in any way differently than they would act responding to any complaint of any other member of the general public.” Id. at 401. To the contrary, responding “on the basis of a 911 call was part of the police officers’ public duty.” Id.

In the absence of a duty owed to Ms. Enoch, there could be no liability in tort to her. Because the allegations of the complaint failed to identify any duty owed by Officer Crumlin or Chief Manger to Ms. Enoch, the circuit court was correct to dismiss Ms. Howard’s claims against them.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Even if Ms. Howard could succeed in establishing that Officer Crumlin and Chief Manger had owed a duty to protect Ms. Enoch, her claim would still have failed because the officers were entitled to common law public official immunity. Public official immunity protects public officials—including police officers—who perform negligent acts during the course of their discretionary, as opposed to ministerial, duties. Cooper, 443 Md. at 713. “When applied to public officials, discretion is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience and uncontrolled by the judgment or conscience of others.” Id. Public official immunity does not apply to acts undertaken with malice or, since Cooper, gross negligence. Id. at 729.

Gross negligence is “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.” Id. at 708 (quoting Barbre v. Pope, 402 Md. 157, 187 (2007)). One “is guilty of gross negligence or acts wantonly and willfully only when he [or she] inflicts injury intentionally or is so utterly indifferent to the rights of others that he [or she] acts as if such rights did not exist.” Id.

Here, taking all factual allegations and all inferences that can reasonably be drawn from them in the light most favorable to Ms. Howard, the complaint still fell short of demonstrating conduct by Officer Crumlin or Chief Manger that was undertaken in reckless disregard of its consequences. Indeed, the complaint did not even allege that either Officer Crumlin or Chief Manger had any knowledge regarding Ms. Enoch or her situation, nor did it identify what information might have been conveyed in the 911 call that could possibly have been communicated to Officer Crumlin. One cannot act in reckless disregard of consequences of which she or he is unaware.

PRACTICE TIPS: “[A] 911 employee generally owes no duty in tort for the negligent performance of his or her duties to an individual in need of emergency telephone services.” Muthukumarana v. Montgomery County, 370 Md. 447, 492 (2002). Applying the “special relationship test” from Ashburn, a plaintiff would have to show that a “911 employee affirmatively acted to protect or assist the specific individual, or a specific group of individuals like the individual, in need of assistance, thereby inducing the specific reliance of the individual on the employee.” Id. at 496.