Steck v. State

Ryan Lawrence Steck v. State of Maryland, No. 705, September Term, 2017. Opinion by
Battaglia, J.

FOURTH AMENDMENT – PROBABLE CAUSE – CONTROLLED
SUBSTANCES – ODOR DETECTION – USE OF DOG

Drug-detection dog’s alert to presence of drugs in co-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.
Circuit Court for Worcester County
Case No.: 23-K-16-000512
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 705

September Term, 2017

______________________________________

RYAN LAWRENCE STECK

v.

STATE OF MARYLAND
______________________________________

Woodward, C.J.,
Shaw Geter,
Battaglia, Lynne, A.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Battaglia, J.
______________________________________

Filed: November 28, 2018

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.

2018-11-28
10:56-05:00

Suzanne C. Johnson, Acting Clerk
Ryan Lawrence Steck, appellant, was convicted by a jury sitting in the Circuit

Court for Worcester County of possession with intent to distribute heroin, possession of

heroin, possession with intent to distribute cocaine, and possession of cocaine, after

which the court sentenced him to a term of imprisonment for fourteen years.

Prior to trial, Steck had filed a Motion to Dismiss the charges against him, alleging

that the State had destroyed exculpatory evidence. After having had his motion denied,

the judge proceeded to hear evidence regarding Steck’s Motion to Suppress, which was

also subsequently denied. About two months later, but prior to trial, after receiving

additional material from the State, Steck successfully filed a Motion to Reopen his

Motion to Suppress, which was, again, ultimately denied. Before us, Steck presents the

following questions for our review:

1. Did the lower court err in denying Mr. Steck’s Motion to Suppress?

2. Did the lower court err in denying Mr. Steck’s Motion to Dismiss?

Finding no error or abuse of discretion, we affirm, for the reasons set forth below.

FACTUAL BACKGROUND

In the early morning of 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-hand turn, crossing over one lane of

the roadway. At the suppression hearing, Officer McBride testified that 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, Officer McBride, according to

his testimony, “broadcast a description of the vehicle and the occupants” over a radio

network used by the Ocean City Police Department. The vehicle was subsequently

stopped by Officer Neshawn Jubilee of the Ocean City Police Department. Officer

McBride testified further that after broadcasting this information, he immediately began

riding his bicycle to the area of the traffic stop, arriving within three or four minutes after

witnessing the “unsafe lane change.”

Upon arriving on the scene of the traffic stop, Officer McBride confirmed that the

vehicle stopped was the Chevy Impala he witnessed nearly get into an accident with the

taxicab and identified Etoyi Roach1 as the driver, Steck in the backseat, and another

passenger in the front seat. After speaking with the vehicle’s occupants, Officer McBride

testified that he walked to Officer Jubilee’s patrol car, sat inside it, and “began issuing

Mr. Roach a written warning [for the unsafe lane change] and then requested a K-9 unit

to respond to the scene.”

At the suppression hearing, Officer McBride informed the court that he chose to

request 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 [Officer Jubilee] said that as he

1
In a separate proceeding, Roach was convicted and also has an appeal pending
before this Court. Roach v. State, No. 1899, Sept. Term, 2017.
2
approached the vehicle, the driver – the occupants were making some furtive movements

around the vehicle.”

Similarly, Officer Jubilee testified that, the Impala “did not stop until the ocean

block of 8th street, which is three city blocks further than where I 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 of the vehicle provided Officer Jubilee their licenses upon request, and at

that point, Officer McBride arrived on the scene and took control of the traffic stop.

Officer McBride further testified that after he made his request for the canine unit, it took

a “couple minutes” for a team to arrive, and he was still in the process of writing Roach’s

warning when it arrived.

At the suppression hearing, Deputy Christopher Larmore, of the Worcester County

Sheriff’s Office Patrol Division, testified, also, that he was in the area of Third Street and

Atlantic Avenue when he received a request for canine support. He further testified that

it took him and his canine partner, Simon, a “couple of minutes” to travel from the

location wherein they received the request to the scene of the traffic stop. Upon the K-9

team’s arrival, Deputy Larmore requested that Officer McBride and the other officers

remove the occupants from the vehicle for safety reasons. Shortly thereafter, Deputy

Larmore and Simon conducted a scan of the vehicle, at which time Roach, Steck, and the

other passenger were all seated on a nearby curb. Deputy Larmore further related:

3
So I get up to scan the vehicle with my K-9 partner. I give him his
command to scan the vehicle. . . . And at that point in time, I notice a
change of his breathing and posture and his general behavior. And it’s
consistent with when he’s in the odor of narcotics. . . .

When he got in the area of the rear passenger door, Your Honor, he
began to go back and forth between sniffing the vehicle and sniffing the
gusts of wind that were blowing from the general direction of the
occupants. So, basically, at this point in time, he is showing the signs of
behavior of being in odor, but he’s actually going back and forth, trying to
pull me in different directions.

Deputy Larmore explained through his testimony that since Simon was

kind of, fighting two different odors here, he won’t actually go into what’s
called a final alert, which is his sit. That’s his trained response. All of the
other responses that he’s giving me are involuntary responses. Those are
the responses that he gives when he’s in the odor of the five odors I just
mentioned.2

When asked by Officer McBride whether Simon provided an alert at the scene, Deputy

Larmore testified that he informed the lead officer that he “believed that the odor was

mostly coming from the occupants and that’s why [Simon] kept trying to pull me to

them.” Deputy 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.”

Deputy Larmore also testified on direct examination that he believed the odor to

have originated from the occupants, but explained that, perhaps, Simon was also

indicating to the car because “of the odor having been recently in the vehicle from the

occupants who obviously had gotten out just before.” At the end of his direct

2
According to Deputy Larmore, Simon, the drug detection dog, is certified to detect
marijuana, cocaine, methamphetamine, heroin, and ecstasy.
4
examination, Deputy Larmore concluded that, at the time of the scan, he considered there

to be “two sources” of the odor – the vehicle and the occupants.

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 and/or illegal weapons on his person.” According to

Detective Gemerek, Steck replied “that he had a blunt inside his pocket.”3 Detective

Gemerek then asked Steck to remove it from his pocket; Steck, in turn, “retrieved a clear

plastic bag containing marijuana and handed it to” Detective Gemerek.4 Detective

Gemerek then handed Officer McBride the marijuana.

After the seizure of the marijuana, the officers searched the vehicle and,

discovered one thousand bags of what turned out to be heroin.

DISCUSSION

Motions to Suppress

Steck filed two motions to suppress the seizure of the heroin, both of which were

denied. All of the testimony discussed herein relates solely to that which was developed

at the suppression hearings.

“When reviewing the denial of a motion to suppress evidence,” appellate courts

“ordinarily consider only the information contained in the record of the suppression

hearing, and not the trial.” Lewis v. State, 398 Md. 349, 358 (2007) (citations omitted).

3
At the hearing, Detective Gemerek defined a blunt as a “hand-rolled marijuana
cigarette.”
4
Detective Gemerek testified that the amount of marijuana in Steck’s possession
was likely less than ten grams.
5
In these cases, we are limited to viewing “the evidence and all reasonable inferences

drawn therefrom in the light most favorable to the prevailing party on the motion[,]”

which here, is the State. Id. (citations omitted). While “we will not disturb the [circuit]

court’s factual findings unless clearly erroneous[,]” we “review legal questions de

novo[.]” Grant v. State, 449 Md. 1, 14–15 (2016) (quoting State v. Wallace, 372 Md.

137, 144 (2002), cert. denied, 540 U.S. 1140 (2004)). Where a party “has raised a

constitutional challenge to a search or a seizure, we must make an independent

constitutional evaluation by reviewing the relevant law and applying it to the unique facts

and circumstances of the case.” Id.

Steck proffers several arguments to support his claim that the heroin recovered

from the vehicle should have been suppressed. He first argues that the initial traffic stop

was unlawful, as it was not supported by reasonable articulable suspicion that a traffic

violation had occurred. Specifically, he contends that neither Sections 21-309(b)5 nor 21-

402(a)6 of the Transportation (“TR”) Article, Maryland Code (1977, 2012 Repl. Vol.),

5
TR § 21-309(b) provides:

Driving in a single lane required. – A vehicle shall be driven as nearly
as practicable entirely within a single lane and may not be moved from that
lane or moved from a shoulder or bikeway into a lane until the driver has
determined that it is safe to do so.
6
TR § 21-402(a) provides:

Turning left. – If the driver of a vehicle intends to turn to the left in an
intersection or into an alley or a private road or driveway, the driver shall
yield the right-of-way to any other vehicle that is approaching from the
(continued)

6
was violated by the driver of the vehicle, Etoyi Roach, and as a result, the stop was illegal

from its inception. Steck further avers 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.” He next argues that there was

no probable cause to search the vehicle, as the drug detection dog failed to provide “a

positive alert” and that the dog handler failed “to explain why Simon did not positively

alert to the car.”

The State conversely avers that, “[t]he facts testified to by Officer McBride, which

were credited by the suppression court, were sufficient to support a traffic stop based on a

reasonable suspicion of a violation of TR §21-403(b) or (c),7 for a failure to yield the

right-of-way to a vehicle on a through highway.” The State also argues that Steck’s

(continued)
opposite direction and is in the intersection or so near to it as to be an
immediate danger.
7
TR § 21-403(b) provides:

Stopping at entrance to through highway. – If the driver of a vehicle
approaches a through highway, the driver shall:
(1) Stop at the entrance to the through highway; and
(2) Yield the right-of-way to any other vehicle approaching on the through
highway.

TR § 21-403(c) provides:

Stopping in obedience to stop signs. – If a stop sign is placed at the entrance
to an intersecting highway, even if the intersecting highway is not part of a through
highway, the driver of a vehicle approaching the intersecting highway shall:
(1) Stop in obedience to the stop sign; and
(2) Yield the right-of-way to any other vehicle approaching on the intersecting
highway.
7
contention that the traffic stop was unnecessarily prolonged or abandoned to allow the

canine unit to arrive and scan the vehicle is waived on appeal, because it was not

preserved. In the alternative, if not waived, the State contends that there “was no

unnecessary delay or abandonment of the original traffic stop[.]” The State next avers

that “the canine’s detection and indication of both the vehicle and the vehicle occupants

as separate sources of the odor of drugs provided probable cause for police to conduct a

warrantless search of the vehicle.”

The Fourth Amendment to the United States Constitution, made applicable to the

States through the Fourteenth Amendment, 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); Lewis, 398 Md. at 360–61. 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) (italics in original); Cartnail v. State, 359 Md. 272, 283 (2000).

Therefore, the “touchstone of our 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)

8
(quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)); Sellman v. State, 449 Md. 526, 540

(2016) (quoting Lewis, 398 Md. at 361). 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

(quoting Terry, 392 U.S. at 20).

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 (original citations omitted). 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); State v. Green, 375

Md. 595, 609 (2003) (stating that “when a police officer has probable cause to believe

that a driver has broken a traffic law, the officer may detain the driver temporarily ‘to

9
enforce the laws of the roadway, and ordinarily to investigate the manner of driving with

intent to issue a citation or warning’” (quoting Ferris v. State, 355 Md. 356, 372 (1999))).

Steck not only urges this Court to find that the driver of the Impala did not violate

Section 21-309(b) of the Transportation Article, the offense for which Mr. Roach

ultimately received a citation, but also urges us to find that Mr. Roach “was lawfully

operating his vehicle” and that “‘almost’ causing an accident is insufficient to support a

traffic stop.” Steck relies 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 differentiates Lewis from the present case is 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 Officer 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 Officer McBride and credited by the Circuit Court,

in the present case, provided the officers reasonable suspicion to stop Mr. Roach’s

Impala.

10
Steck next contends that, even if “the traffic stop was lawful, it was nevertheless

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.”

Steck further contends that Officer McBride “ceased writing the warning ticket so as to

help focus on the dog sniff[,]” hence, abandoning the original purpose of the stop. The

State counters that “there is no evidence that Officer McBride unnecessarily prolonged

the original traffic stop, or abandoned” its original purpose because he was “still in the

process of preparing the warning when the scan occurred, and aside from briefly speaking

to [Deputy] Larmore when he arrived, there is no evidence that he suspended his

activities in preparing a warning for Roach.”

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. (italics in original). 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 pursue[d the purpose] of their investigation.” Henderson v.

11
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).

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.”

Ofori, 170 Md. App. at 235.

If a dog scan, however, unnecessarily exceeds the scope of the original seizure,

then a Fourth Amendment violation has occurred. Munafo, 105 Md. App. at 670–72.

Police officers may not prolong an initial stop to effectuate a canine search, especially

when the purpose of that stop has been completed (e.g., complete license check and ticket

writing). Florida v. Royer, 460 U.S. 491, 500 (1983). See Snow v. State, 84 Md. App.

243, 267 (1990) (“The case at bar demonstrates a police officer’s ‘hunch’ that there were

illegal drugs in Snow’s vehicle. It so happens that the ‘hunch’ was correct, but this does

12
not justify the seizure of Snow and his passenger, which was an additional intrusion on

Snow’s Fourth Amendment rights.”). The issue turns on “not whether the dog sniff

occurs before or after the officer issues a ticket . . . but whether conducting the sniff adds

time to the stop.” Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015).

If the officer issuing the citation is diligently and “legitimately still working on

those citations when the K-9 unit arrives, the traffic stop is still ongoing, and the

detention will be considered reasonable for Fourth Amendment purposes.” Partlow v.

State, 199 Md. App. 624, 638 (2011) (citing Ofori, 170 Md. App. at 243). See e.g.,

Rodriguez, 135 S. Ct. at 1613 (vacating a judgment which found it lawful to conduct a

canine scan after police officer returned driver’s license and issued a written warning for

momentarily crossing into the shoulder—the purpose of the stop); In re Montrail M., 87

Md. App. 420, 437 (1991), aff’d, 325 Md. 527 (1992) (affirming the legitimacy of a

canine sniff that occurred during a traffic stop, where the deputy who initiated the stop

was still running the defendant’s license and registration when the canine scan took

place).

While not entirely dispositive, time is a consideration in this calculus. For

example, in Padilla v. State, this 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

13
Escort prior to Trooper Graham receiving radio verification of the validity of petitioner’s

driver’s license, vehicle registration card, and warrants check” (italics in original)).

The motions judge in the present case, found that

[a]s far as the timeline goes, whether there was a delay longer than
necessary to affect the purpose of the stop, I don’t find that there was any
undue delay. The stop was at 12:24. Officer McBride got there three or
four minutes later, and Deputy Sheriff Larmore arrived at 12:32 with his
dog out. So I don’t find that that was an undue delay in light of the
testimony that Officer McBride provided that he was still writing a citation.

The record supports that only an eight minute lapse in time occurred, which is not an

undue delay, especially because the officer was writing the citation.

Steck, though, further argues that the traffic stop was unnecessarily prolonged

such that its original purpose was abandoned to permit a canine scan of the vehicle. The

State contends that Steck waived this argument on appeal because of his failure to bring it

up at the suppression hearing, citing Johnson v. State, 138 Md. App. 539, 560, cert.

denied, 365 Md. 267 (2001). In that case, Johnson argued on appeal that he was not

advised of his Miranda rights until the end of a police interview and that he had asked for

an attorney. Id. At trial, however, counsel for Johnson only had argued that Johnson was

coerced into making his statements by physical force and threats, rather than a Miranda-

based argument. Id. We, therefore, found that a Miranda-based theory was waived. Id.

In the instant case, at the suppression hearing, Steck argued that it was unlawful

for the officers to delay the completion of the traffic warning to seek consent from Roach

to search the vehicle, which occurred after Simon’s scan, rather than the traffic stop was

unlawfully prolonged by waiting for Deputy Lamore and Simon to arrive. Whether this

14
issue was properly preserved for our review or not, it is clear from the record that Steck’s

contention is, nonetheless, without merit because the judge found, based on the evidence

at the suppression hearing, that Officer McBride was processing the citation at the time of

the scan.

Steck next avers that, under the totality of the circumstances, “there was no

probable cause to search the Impala[,]” as evidenced by “the failure of Simon to

positively alert[.]” The State, conversely, argues that under “the totality of the facts and

circumstances of [Deputy] Larmore’s testimony and Simon’s scan, detection, and

indication of the vehicle as a source of drug odor,” probable cause existed to search the

vehicle despite the lack of a final, trained 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. (citations omitted). Our evaluation as to whether probable cause

exists “requires a nontechnical, common sense evaluation of the totality of the

15
circumstances in a given situation in light of the facts found to be credible by the trial

judge.” Id. (citations omitted). 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 (quoting Collins v. State, 322 Md.

675, 680 (1991)).

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. See also Wilkes, 364 Md. at 586

(“We have noted that once a drug dog has alerted a trooper ‘to the presence of illegal

drugs in a vehicle, sufficient probable cause exist[s] to support a warrantless search of [a

vehicle].’” (quoting Gadson, 341 Md. at 8)); Stokeling v. State, 189 Md. App. 653, 664

(2009), cert. denied, 414 Md. 332 (2010) (finding that the dog’s “alert to the Chrysler

gave the police probable cause to search it for illegal drugs”); Ofori, 170 Md. App. at 221

(“[O]nce the K-9 ‘alerted’ to the probable presence of contraband drugs in the [vehicle],

all Fourth Amendment uncertainty came to an end.”). 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.

The Eighth and Tenth Circuit Courts of Appeals have held that probable cause

exists in a situation in which a drug detection dog failed to provide its final, trained alert,

but nonetheless, exhibited behavior consistent with positive drug detection, based upon

the testimony presented by its handler. See United States v. Holleman, 743 F.3d 1152,

1156 (8th Cir. 2014), cert. denied, 134 S. Ct. 2890 (2014). In United States v. Holleman,

16
the K-9 officer-handler explained why his dog, Henri, may have failed to give a final,

trained alert. Id. at 1156–57. The officer-handler stated that Henri may have been so

overwhelmed by the odor of marijuana that he had difficulty pinpointing the strongest

source of the odor. Id. at 1157. As Henri traced the passenger-side of Holleman’s truck,

the officer-handler stated that Henri “stop[ped] dead in his tracks and be[gan] to really

detail the area between the bed of the truck and the cab of the truck.” Id. at 1154

(alteration in original). The officer-handler then “pulled Henri away” from the truck and

directed him “to sniff the vehicle parked next to Holleman’s truck.” Id. Henri “did not

alert, indicate, or otherwise change his behavior when sniffing” the other vehicle. Id.

Henri was then directed to re-sniff Holleman’s truck, and upon doing so, “stopped and

detailed the same area as the first time.” Id. As such, the officer-handler concluded that

Henri was informing him that Holleman’s truck, more likely than not, contained

contraband. Id.

The Eighth Circuit, thus, held that, “[c]onsidering ‘all the facts surrounding

[Henri’s] alert[s], viewed through the lens of common sense,’ we conclude those facts

‘would make a reasonably prudent person think that a search would reveal contraband or

evidence of a crime.’ We are thus satisfied Henri’s sniffs were ‘up to snuff.’” Id. at 1158

(quoting Harris, 568 U.S. at 248). In so finding, the court reasoned that its Fourth

Amendment jurisprudence did not “require drug dogs to abide by a specific and

consistent code in signaling their sniffing of drugs to their handlers.” Id. at 1156. As

long as law enforcement officers are able to “articulate specific, reasonable examples of

the dog’s behavior that signaled the presence of illegal narcotics, [the] Court will not

17
engage itself in the evaluation of whether that dog should have an alternative means to

indicate the presence of drugs.” Id. (quoting United States v. Clayton, 374 F. App’x 497,

502 (5th Cir. 2010)).

Similarly, in United States v. Parada, the United States Court of Appeals for the

Tenth Circuit determined that the district court did not clearly err in finding that Rico, the

drug detection dog, provided sufficient probable cause to search a vehicle, despite the

fact that Rico did not act commensurately with his typical final, trained alert in

“stiffening his body, breathing deeply, and attempting to jump into the window.” 577

F.3d 1275, 1281 (2009), cert. denied, 560 U.S. 927 (2010). In so holding, the appellate

court necessarily deferred to the trial judge’s evaluation of the testifying officer’s

credibility. Id.

The officer-handler, Officer Oehm, like the officer-handler in Holleman, explained

that while Rico did not provide his final, trained alert, the fact that Rico “stiffened” and

began to breathe deeper and more rapidly, provided him with probable cause to believe

that the vehicle contained contraband. Id. Upon detecting the odor of drugs, Rico

attempted to jump through the window of the vehicle, but Officer Oehm pulled him back

before he could enter the car. Id. at 1279. Officer Oehm further testified that, but for

preventing Rico from entering through the window, he believed that Rico would have

provided his final, trained alert. Id. Based on this explanation, the court rejected “the

stricter rule urged by [the defendant],” which would require a dog to give its final, trained

alert, as it found Officer Oehm’s testimony about Rico’s behavior demonstrating

probable cause more credible than the defendant’s expert. Id. at 1282.

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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 Deputy Larmore’s testimony, finding the dog’s

behavior indicative that drugs were present:

[n]ow, you indicated if – if we’re going to go beyond an alert and have the
issue determined by the handler’s reading of the dog’s behavior at the car.
Well, that’s where we’re going, so maybe you could make some new law.
But I find that the testimony of Deputy Larmore was very compelling and
specific as to what the dog did for him to determine that, in fact – even
though I’ve used the word alert, it’s not the quote/unquote “alert”, but an
indication that there were drugs there.

So based on all that, I’ll deny your motions.

The motions court did not err in finding that, based on Deputy Larmore’s testimony, the

probability that a search might yield contraband, based on Simon’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.

Steck, however, posits that a drug detection dog must provide a trained, final alert

in order for probable cause to exist, relying on two non-persuasive and wholly

distinguishable federal district court opinions to support this position. We do not think

such a stringent rule practical nor in accord with Fourth Amendment jurisprudence.

Steck cites United States v. Heir, in which the court found that probable cause did

not exist to search a vehicle when the drug detection dog, Robbie, “alerted” to the

19
presence of drugs by sniffing more intensely around certain parts of the vehicle. 107 F.

Supp. 2d 1088, 1091 (D. Neb. 2000). There, the dog was trained to provide an

“aggressive” alert when he detected drugs by pawing and scratching at the car. Id. While

the dog did not provide its trained response, his handler, Trooper Duis, testified that

Robbie’s alert was “subtle” and might only be recognized by himself or another person

familiar with Robbie’s behaviors, but nonetheless, should be seen as a valid basis for

probable cause. Id. The court, however, disagreed and suppressed the evidence

discovered in the vehicle, finding that “there must be an objectively observable

‘indication’ by the dog of the presence of drugs” because the behavior described by

Trooper Duis was too subjective to use as a standard to establish probable cause. Id. The

court also questioned the credibility of the handler’s testimony because there was

testimony that he may have cued the dog. Id. at 1096. In the present case, the judge

found that indication, and there was no evidence adduced of cueing.

Steck also erroneously relies on United States v. Heald, 165 F. Supp. 3d 765

(W.D. Ark. 2016), as authority to support his claim that anything short of a trained, final

alert can never support a finding of probable cause. In Heald, the drug detection dog,

Bosco, was negatively impacted by the heat at the time he was directed by Officer

Hernandez to scan the vehicle in question. Id. at 777–78. The government’s own expert

even testified that he could see from the video of the scan that Bosco’s performance had

been so adversely affected. Id. at 778. Officer Hernandez, the handler, testified that he

was uncertain about whether Bosco’s behavior—jumping into the air conditioned car—

even constituted an alert and “debated” it “because Bosco is never supposed to jump in

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cars.” Id. at 779. The court suppressed the evidence and found that “a reasonable person

would no doubt share Officer Hernandez’s skepticism. An overheated dog exhibiting a

new and untrained behavior is not a shining example of reliability.” Id. In so finding,

however, the court noted that it “does not intend to imply that anything less than a full,

final indication is inherently unreliable. On the contrary, in most circumstances such

actions may be reliable.” Id. at 779, n.20 (citing United States v. Holleman, 743 F.3d

1152 (8th Cir. 2014); United States v. Parada, 577 F.3d 1275, 1281–82 (10th Cir. 2009);

United States v. Clayton, 374 F. App’x 497, 500–02 (5th Cir. 2010)). The court made

clear that

on a spectrum of reliability, a final indication consistent with the K-9’s
training is at the most reliable end, and other changes of behavior fall
somewhere short of that. As the Court makes clear below, this fact alone—
in isolation—would not cause it to doubt Bosco’s reliability. Rather, it is
one factor viewed in combination with several others identified by the
Court herein, including, for example, Officer Hernandez’s uncertainty
about whether Bosco’s jump could even be classified as an alert.

Id.

In the present case, again, the judge found Deputy Larmore’s testimony

“compelling” to inform the handler that it was probable that drugs would be found in the

Impala. The judge’s finding 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.

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Motion to Dismiss

Steck moved to dismiss the case against him before trial, arguing that the State

wrongfully destroyed police records that he had requested be preserved by letter on

October 3, 2016, which asked “that all dispatch records, radio logs and recordings of

radio communications by the Ocean City Police Department and any other agencies that

participated in this stop in the investigation be preserved and maintained.” In writing the

letter, defense counsel aimed “to enlist [the State’s Attorney’s] assistance in preserving

these items for later discovery,” and requested that the State’s Attorney’s Office “direct

those law enforcement agencies that regularly report” to it, to “retain and preserve [those]

items for later discovery.” The State’s Attorney’s Office received the letter on October 5,

2016, but Steck’s counsel never received a reply. A formal discovery request for the

material, however, was not made until January 3, 2017, when Steck’s counsel entered his

appearance.

The State’s Attorney, however, informed Steck’s counsel that Emergency Services

of Worcester County “only keep[s] their radio communications for 90 days after the

event.” The radio recordings requested by Steck had been destroyed on November 6,

2016.

Steck, before us, contends that the trial court abused its discretion in denying his

motion to dismiss the charges against him because the exculpatory value of the police

recordings “was of such a nature that no comparable evidence could be obtained.” Had

the recordings been properly preserved, he argues, they “could have established that [he]

was illegally arrested after an unlawful search of the car . . .. [that a]ll of the evidence

22
against [him] emanated from the unlawful search of the car and thus, without this

evidence, the state could not have obtained a conviction.” Steck further avers that, “at the

very least,” the evidence sought was “potentially useful” and “destroyed in bad faith.”

Steck proffers that the State acted in bad faith because it received the letter requesting the

preservation of the recordings, the request was “acknowledged by the State[,]” but the

State “did nothing to prevent the destruction of the tapes by the police department and

gave the defense no warning that, after 90 days, it would be destroyed.”

The State counters that it was under no duty to preserve the evidence and that the

recordings possessed no exculpatory quality. The State argues that “Steck presented

nothing to support a claim that the recordings contained apparently exculpable evidence”

that was not otherwise reflected in the event reports obtained by him, which reflect the

timing of the radio calls. Furthermore, the State claims that “there is no evidence that

even if the [police] recordings were improperly destroyed, that Steck was so prejudiced

as to justify the extreme sanction of dismissal.” Finally, the State alleges that because the

recordings were destroyed in accordance with police policy, no bad faith existed to

support Steck’s due process challenge.

Although dismissal could be envisioned for discovery violations under Rule 4-

236(d), it is “well-settled . . . that the sanction of dismissal should be used sparingly, if at

all.” State v. Graham, 233 Md. App. 439, 459 (2017) (quoting Thompson v. State, 395

Md. 240, 261 (2006)). Rule 4-263(d) provides, “[w]ithout the necessity of a request, the

State’s Attorney shall provide to the defense: (5) Exculpatory Information. All material

or information in any form, whether or not admissible, that tends to exculpate the

23
defendant or negate or mitigate the defendant’s guilty or punishment as to the offense

charged[.]” A defendant that alleges a discovery violation, must demonstrate that the

evidence possesses exculpatory value, value that was apparent before it was destroyed,

and “be of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479,

489 (1984).

Similarly, where an appellant alleges a due process violation based on the failure

of the State to preserve “potentially useful evidence,” as Steck does here, the appellant

must demonstrate that the State acted in bad faith, a high standard for an individual to

satisfy, typically found only in the most egregious of cases. Arizona v. Youngblood, 488

U.S. 51 (1988).

The judge herein found that the destroyed materials had no probative value. He

further found that there was “no willful destruction of the evidence by the State’s

Attorney’s Office or any of the underlying police agencies.” As a result, there was no

violation of Rule 4-263(d) nor a due process violation with respect to the records.

JUDGMENT OF THE CIRCUIT COURT
FOR WORCESTER COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

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