Cruz v. State

• Decision Date: 04 April 2006
• Docket Number: No. 1417 September Term, 2005.,1417 September Term, 2005.
• Citation: 168 Md. App. 149,895 A.2d 1076
• Parties: Oscar E. CRUZ v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

895 A.2d 1076

168 Md. App. 149

Oscar E. CRUZ v. STATE of Maryland.

No. 1417 September Term, 2005.

Court of Special Appeals of Maryland.

April 4, 2006.

Edward A. Richitelli, Elkton, for Appellant.

Gary E. O'Connor (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: HOLLANDER, DEBORAH S. EYLER and KENNEY, JJ.

HOLLANDER, Judge.

In this appeal, we must determine whether a canine scan of a motor vehicle constituted an illegal search under the Fourth Amendment when, during the scan, the dog poked his head through an open window of the vehicle and then immediately alerted. After the dog alerted, the police searched the vehicle and recovered almost twelve pounds of cocaine. Claiming the canine scan was unlawful, Oscar E. Cruz, appellant, moved to suppress the drugs. The Circuit Court for Cecil County (Jackson, J.) denied his motion. Cruz subsequently tendered a plea of not guilty pursuant to an agreed statement of facts, and was convicted of importing a controlled dangerous substance into Maryland. The court (Lidums, J.) sentenced appellant to four years' imprisonment.

On appeal, Cruz presents one question, which we quote:

Did the [motion] court err in denying appellant's motion to suppress the evidence and statements seized, which motion was based upon appellant's claim that the evidence was the product of an unconstitutional search, where the dog scanning the appellant's vehicle did not have a right to invade any part of the interior of appellant's vehicle prior to alerting his police-officer master to the presence of contraband?

For the reasons that follow, we shall affirm.

FACTUAL AND PROCEDURAL SUMMARY¹

On the afternoon of February 15, 2005, Maryland State Police Sergeant Mike Lewis "observed a silver-colored 2005 Chevy Trailblazer traveling southbound on Interstate 95 directly behind a pickup truck in front of it." Lewis testified that his "initial thought was that it was likely being towed because it was so close" to the vehicle in front of it. He also "noticed a Chevy Monte Carlo directly behind the Trailblazer also following it entirely too closely." Although Lewis "attempt[ed] to stop both vehicles," he was only able to effect a stop of the Trailblazer, which occurred at about 12:47 p.m. Appellant, the sole occupant of the vehicle, "was identified by a Massachusetts driver's license."

The traffic stop was recorded by a video camera located in Officer Lewis's vehicle. The videotape was admitted into evidence, without objection, and was played in open court.²

Describing his initial encounter with appellant, Lewis stated:

As he surrendered his driver's license to me, I noticed his hands were trembling very badly. I noticed he avoided all eye contact with me. I also asked for a registration card. He informed me that the vehicle was a rental. As he looked for a rental agreement for the vehicle, I noticed his chest was palpitating. I noticed the carotid pulse was pounding on the right side of his neck and I was standing at the passenger side open window of the SUV.

Upon review of the registration documents produced by appellant, Lewis noticed "that the vehicle had been rented at 6 a.m. that morning from Logan International Airport" and that it "had to be back to Logan ... the following morning." But, Lewis saw no luggage when he "peered" through the glass. He testified:

Observing no luggage in the vehicle coupled with the indicators I saw present in Mr. Cruz, that being the trembling hands, the evasive eye contact, the chest palpitating, the carotid pulse pounding in his neck, as I walked back to my car I peered through the side tinted glass in the vehicle. From the outside I saw one cardboard box on the rear cargo floor indicating a Dremel rotary power tool would be inside. I noticed the box to be taped at one end.

Based on his observations, Sergeant Lewis returned to his vehicle and requested "a certified drug detection K-9 handler." He also requested "a driver's license check and wanted check" on appellant. Trooper Joseph Catalano, a drug dog handler, promptly responded to the scene, along with Bruno, a yellow Labrador Retriever "certified in the detection of controlled dangerous substances."³ Lewis directed Trooper Catalano and Bruno to conduct "a K-9 scan of the vehicle." Trooper First Class Mike Conner, who had also arrived at the scene, "had Mr. Cruz step away from the vehicle so the K-9 scan could be safely conducted."

Sergeant Lewis testified that he "observed Trooper Catalano scan the vehicle" and also "observed the dog sit down, which indicates a passive alert for the presence of narcotics being inside the vehicle." Sergeant Lewis then saw "Trooper Catalano open the right rear door of the Chevy Trailblazer and put Bruno inside the vehicle." According to Lewis, "Trooper Catalano would only do this if the dog had alerted for the presence of narcotics outside of the vehicle."

Sergeant Lewis described what happened next:

I stepped from my car. I then approached the SUV. I opened the rear tailgate to remove the cardboard box, the only item I saw in the entire vehicle, and as I went to open the rear tailgate, the cardboard box actually fell out of the vehicle onto my feet on the roadside and hit my toes. I picked the box up. I quickly removed the tape from the one end. Inside the box was 5,370 grams of cocaine or 5.3 kilograms of cocaine inside the box.

Sergeant Lewis added that the U.S. customary weight of the cocaine was equal to 11.9 pounds. Appellant "was arrested on the spot," and was advised of his Miranda rights.⁴

During Trooper Catalano's testimony, the videotape was played for the court a second time, as Catalano explained "to the court what [was] being depicted on the videotape." Notably, the videotape does not show whether Bruno put his head through the window of appellant's car. The following testimony is pertinent:

[THE COURT]: Did you just say that as you came up to the vehicle you gave the command to seek?

[TROOPER CATALANO]: As I come up I was giving [Bruno] the command to seek. As you can see he immediately goes to this one corner here and he stops, and that I would consider a behavior change because he stopped his forward motion. He already knows what he needs to know when we walked up to the car. What he does, he stops and corners in on the one corner of the tailgate or the hatch where it meets the bumper.

I believe here, [Y]our Honor, this — you can see his tail wagging. That indicates — he's still on all four legs in an upright position, and he on his own jumps up into the window, open window, jumps up; puts his paws up on like the window sill. Now, your Honor, you see his tail is now sweeping the ground area, which indicates to me that he — I know he did sit, but because according to this he's not able to see — you can see his tail sweeping the ground which indicates that he's sitting.

[THE COURT]: What was the significance of the sit?

[TROOPER CATALANO]: A sit — they are trained to give a final response of alerting to — on a particular odor of drugs that he is trained on, and a sit is his final response. That tells me that he has alerted to that vehicle.

[PROSECUTOR]: So as of — according to the videotape, Trooper Catalano, that would be at 1256 approximately, is that correct?

[TROOPER CATALANO]: That's correct.

(Emphasis added).

Thereafter, Catalano "put [Bruno] inside the vehicle to scan the general area." The videotape shows that Bruno entered through the right rear door of the vehicle at 12:56:43. At 12:56:53, another officer approached the vehicle and opened the rear hatch. The box with the cocaine fell out of the hatch at 12:56:55, and Catalano removed Bruno from the vehicle at 12:56:56.

The following exchange is relevant:

[PROSECUTOR]: Now let me ask you something while we still have the tape in front of us. Trooper Catalano, would you ever put Bruno into a vehicle without him having alerted to the outside of the vehicle?

[TROOPER CATALANO]: No, I would not. He would have to alert to the outside before I would ever put him on the inside of a vehicle.

[PROSECUTOR]: Is it your testimony that on this particular stop he had alerted prior to your going to the door and opening it and letting him into the car?

[TROOPER CATALANO]: That's correct. I first observed the behavior change in the rear corner by his forward moving stop. I then — that's why I do pull him around, get him — give him a second chance at it, which he then comes around, then shoots down to the side, goes into the — automatically goes to the open window. As a trained handler I observe. He is directed to go to the source. Stronger odor — he's catching a stronger odor in the open window than he is in the rear axle door.

[PROSECUTOR]: Then thereafter he sat — actually made —

[TROOPER CATALANO]: After jumping up to the window he then went into the — actually does a swipe, another indicator of behavior changes. Took his paw and goes to the source. That's his dominant possession of that vehicle, pawing it.

(Emphasis added).

On cross-examination, the following ensued:

[APPELLANT'S COUNSEL]: So after jumping up through the window he gives you the indication that you believe is an alert?

[TROOPER CATALANO]: I know he did alert by sitting. That's his final response. You have behavior — several behavior changes, and then he still might want to search, trying to get to the — directly to that odor, closest to the odor; then final response, him saying yes that is a hot car, he sits down.

[APPELLANT'S COUNSEL]: My thinking at your earlier testimony — correct me if I am wrong — he did that after jumping to the — through the window?

[TROOPER CATALANO]: Which is — always indicates a behavior change. There is something in that window he wanted to get to. Swerves around, then he falls — goes into a sit. Excuse me. Let me correct it. He didn't jump through the window. He just jumped up to get a better sniff.

[APPELLANT'S COUNSEL]: He stuck his head in the...