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Supreme Court appeal rests on what Simon didn’t say

A drug-sniffing dog’s failure to give a definitive alert to Ocean City police forms the basis of a convicted would-be heroin dealer’s appeal to the U.S. Supreme Court.

In his bid for high court review, Ryan Steck claims officers in the beachfront city lacked probable cause to search the car he was in during a traffic stop because Simon, the investigating canine, never sat — as he was trained to do upon detecting the odor of illegal drugs.

That constitutional argument has failed so far, as lower courts have sided with the officers’ position that the dog’s jittery behavior — though short of the final sign, or sit — clearly indicated to them that the dog smelled contraband, thus giving the police probable cause.

During their search of the car, officers found 1,000 bags of heroin, according to court testimony.

Steck was convicted in Worcester County Circuit Court of possession with intent to distribute heroin and sentenced to 14 years in prison. The Court of Special Appeals upheld the search and affirmed Steck’s conviction in a reported decision last year.

The Maryland Court of Appeals declined to hear Steck’s appeal in February, prompting him to seek review by the Supreme Court.

In papers filed with the justices last week, Steck’s defense attorney argued that permitting officers to search a vehicle based on their interpretation of the dog’s behavior short of a definitive signal violates the Fourth Amendment’s prohibition on unreasonable searches.

“When a drug-sniffing dog fails to alert as trained, but according to its handler is behaving as if he is ‘in odor’ of the presence of drugs, this alone does not provide probable cause for police to search a car but, rather, merely provides reasonable suspicion for further investigation,” attorney Nancy S. Forster wrote.

“In Mr. Steck’s case, Simon did not positively alert as trained,” added Forster, of Forster & LeCompte in Towson. “Rather, his handler, (officer Christopher) Larmore, interpreted his behavior, e.g., ‘a change of his breathing and posture and his general behavior,’ as meaning he was ‘in the odor of narcotics.’ Such a subjective interpretation of vaguely described behavior does not support a finding of probable cause, even under the ‘fluid’ definition of probable cause.”

The Maryland Attorney General’s Office has until June 27 to respond to Steck’s request for Supreme Court review.

The justices have not set a date for their vote on whether to hear Steck’s appeal. The case is docketed at the Supreme Court as Ryan Lawrence Steck v. Maryland, No. 18-1478.

The case arose in the early morning of Aug. 7, 2016, when police pulled over a 2008 black Chevy Impala after the driver failed to yield for another car at an intersection, nearly causing a collision, according to court papers. Steck was a backseat passenger.

An officer cited the driver, Etoyi Roach, for an unsafe lane change.

Simon was summoned to sniff around the automobile after the occupants were requested to leave and sit on a nearby curb. Simon, according to police testimony, never sat but his breathing and posture changed as they always did when he smelled narcotics.

The Court of Special Appeals, in upholding the constitutionality of the search, rejected what it called the defense’s “stringent rule” that probable cause exists only when a dog gives a definitive signal and not when he or she otherwise indicates to officers that illegal drugs are present.

The finding of probable cause “was supported by Deputy Larmore’s testimony, wherein he explained that he recognized Simon’s behavior to be ‘consistent with when he’s in the odor of narcotics’ and provided a credible explanation as to why Simon went ‘back and forth’ between the vehicle and its occupants sitting on the curb,” the Court of Special Appeals held last November.

Roach was also convicted of possession with intent to distribute heroin. His case is on appeal before Maryland courts.

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