Fitzgerald v. State

• Decision Date: 10 December 2004
• Docket Number: No. 8,8
• Citation: 864 A.2d 1006,384 Md. 484
• Parties: Matthew Thomas FITZGERALD v. STATE of Maryland.
• Court: Maryland Court of Appeals

864 A.2d 1006

384 Md. 484

Matthew Thomas FITZGERALD v. STATE of Maryland.

No. 8, September Term, 2004.

Court of Appeals of Maryland.

December 10, 2004.

Reconsideration Denied February 3, 2005.

Mark Colvin, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for Petitioner.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for Respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, Judge.

This case raises the issue of whether a canine sniff of an apartment door is a search under the Fourth Amendment of the United States Constitution. The United States Supreme Court and this Court have held that canine sniffs are non-searches for Fourth Amendment purposes. As the canine sniff doctrine does not depend upon the sniff's location, we shall hold that a sniff of an apartment door from a common area is a permissible non-search under the Fourth Amendment.

I.

In February 2002, an anonymous source informed Detective Leeza Grim of the Howard County Police Department Criminal Investigation Bureau, Vice and Narcotics Division, that Petitioner Fitzgerald and his girlfriend Allison Mancini lived together in an apartment at 3131 Normandy Woods Drive in Ellicott City, Howard County. The source also stated that Fitzgerald and Mancini drove a white pick-up truck and regularly sold a high quality grade marijuana called "Kind Bud." Grim's subsequent investigation confirmed that the couple lived in the building and that the car was registered to Alicia Joy Mancini, apparently Allison Mancini's relative. Grim also learned that Fitzgerald had a juvenile record of separate 1998 arrests for distribution of marijuana near a school and for three first degree burglaries.

Based on these events, Grim met with Officer Larry Brian of the Howard County Police Department's K-9 unit on March 19, 2002. Brian then visited Fitzgerald and Mancini's apartment building accompanied by Alex, Brian's certified drug detecting dog. Alex's olfactory acumen previously had precipitated numerous arrests.¹ Brian and Alex entered the building through unlocked glass doors leading to a vestibule with a stairwell and mailboxes. Brian led Alex to scan apartment doors A, B, C, and D. Alex "alerted"² at apartment A, indicating the presence of narcotics. Apartment A was Fitzgerald and Mancini's apartment. Sniffs of the other three apartments did not result in alerts. Alex repeated the sniffs with the identical outcome. Finally, on March 20, the anonymous source contacted Grim again and asserted that Fitzgerald and Mancini continued to sell "Kind Bud" marijuana.

The next day, District Court Judge JoAnn Ellinghaus-Jones issued a search and seizure warrant for Fitzgerald and Mancini's apartment based on Grim's affidavit. The warrant was executed on April 2, 2002. Grim seized substantial amounts of marijuana and other evidence of marijuana use and distribution. Fitzgerald and Mancini were arrested and charged with possession of marijuana with intent to distribute and related offenses.

In the Circuit Court for Howard County, Fitzgerald moved to suppress the evidence seized pursuant to the search and seizure warrant. Fitzgerald challenged the canine sniff as a search of his apartment without a warrant. Further, he claimed that without the canine sniff, the police would have lacked the requisite probable cause for the warrant.

After hearings on September 18 and October 3, 2002, Judge Lenore Gelfman denied the motion on October 21, 2002. Judge Gelfman held that the apartment hallway was open to the public and that the Supreme Court and this Court have held dog sniffs not to be searches.

This case proceeded before the Circuit Court on a plea of not guilty, agreed statement of facts. The Circuit Court found petitioner guilty of possession with intent to distribute a controlled dangerous substance and sentenced him to two years incarceration, all suspended, and a $1000 fine, all but $250 suspended, with two years supervised probation. The State entered a nolle prosequi to the other counts.

Fitzgerald noted a timely appeal of Judge Gelfman's denial of his Motion to Suppress. In a thorough and well-written opinion authored by Judge Charles Moylan, the Court of Special Appeals affirmed. We granted certiorari on April 8, 2004. 380 Md. 617, 846 A.2d 401 (2004). Fitzgerald presents this Court with three questions, which we list in slightly altered form:

I. Does a dog sniff constitute a search under the Fourth Amendment of the United States Constitution or Article 26 of the Maryland Declaration of Rights?

II. If so, was the sniff an unlawful search?

III. If the dog sniff is unlawful and its results excised from Grim's affidavit, would the remaining information establish probable cause to issue the warrant?

II.

We review first Fitzgerald's contention that a canine sniff of an apartment's exterior is a search under the Fourth Amendment. Fitzgerald argues first that the United States Supreme Court decisions in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) and Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), created a distinction between canine sniffs of residences and all other canine sniffs. He also argues that Alex's ability to detect diazepam tablets, available by prescription, as well as prohibited narcotics, expanded the scope of Alex's sniff resulting in it becoming a search.

The State responds that Karo and Kyllo are inapplicable to dog sniffs and that the Supreme Court and this Court have held a dog sniff not to be a search. The State argues that this Court should not consider the diazepam issue, because Fitzgerald did not raise it below.

Our review of the propriety of the denial of a motion to suppress is confined to the record of the suppression hearing. See State v. Carroll, 383 Md. 438, 859 A.2d 1138, 1142 (2004)

; Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999). We review the trial court's legal conclusions de novo for clear error and the factual findings in the light most favorable to the State. See Ferris, 355 Md. at 368,

735 A.2d at 497.

A.

The United States Supreme Court determined the constitutionality of a warrantless canine sniff in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).³ In Place, an airline passenger raised the suspicions of law enforcement officers before takeoff. The police officers contacted Drug Enforcement Administration agents in the arrival city. As part of their investigation, the agents had a trained narcotic detection dog sniff the passenger's two pieces of luggage. Id. at 698-99, 103 S.Ct. at 2639-40 The Supreme Court held that a canine sniff is not a search under the Fourth Amendment.⁴ Id. at 707, 103 S.Ct. at 2645. The Court noted the limited nature of a canine sniff:

"A `canine sniff' by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

"In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a `search' within the meaning of the Fourth Amendment."

Id. at 707, 103 S.Ct. at 2644-45. From the above language alone, it is possible to view the Court's holding either as narrowly directed at airplane luggage or as a general categorization of canine sniffs as non-searches. Subsequent Supreme Court decisions make clear that the Court has adopted the latter view.⁵ In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Supreme Court affirmed the Court's Place dog sniff holding. After concluding that federal agents' seizure of a white powdery substance discovered by private freight carrier employees was not unreasonable, the Court held that a chemical test to determine whether the powder was cocaine was not a search. Id. at 121-23, 104 S.Ct. at 1661-62. The Jacobsen Court asserted that its holding "is dictated by United States v. Place." Id. at 123, 104 S.Ct. at 1662. Indeed, the Jacobsen Court relied on the same reasoning as Place. The Court based its decision on the test's narrow scope of determining whether or not the powder was cocaine; "It could tell him nothing more, not even whether the substance was sugar or talcum powder." Id. at 122, 104 S.Ct. at 1661. Because of its limited scope, the test "does not compromise any legitimate interest in privacy." Id. at 123, 104 S.Ct. at 1661.

The Jacobsen Court held that there is no legitimate privacy interest in the presence of illegal narcotics:

"... [M]erely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided ... to treat the interest in `privately' possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably `private'

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