Fitzgerald v. State

• Decision Date: 09 December 2003
• Docket Number: No. 2030,2030
• Citation: 153 Md. App. 601,837 A.2d 989
• Parties: Matthew Thomas FITZGERALD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

837 A.2d 989

153 Md. App. 601

Matthew Thomas FITZGERALD v. STATE of Maryland.

No. 2030, Sept. Term, 2002.

Court of Special Appeals of Maryland.

December 9, 2003.

Jason Lyons (Stephen E. Harris, Public Defender, on brief), for appellant.

Annabelle L. Lisc (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Argued before JAMES R. EYLER, ADKINS, CHARLES E. MOYLAN, (retired, specially assigned), JJ.

MOYLAN, J.

In the Circuit Court for Howard County, the appellant, Matthew Thomas Fitzgerald, was found guilty, by Judge Dennis M. Sweeney, sitting without a jury, of the possession of marijuana with the intent to distribute. He was sentenced to two years' imprisonment and a fine of $1,000. All of the prison sentence and all but $250 of the fine were suspended, in favor of two years' probation.

Our concern on this appeal is with the Fourth Amendment correctness of a single pretrial suppression ruling. At issue is the reasonableness of using a drug-sniffing canine to gather probable cause for a search warrant. The ruling to be reviewed is that of Judge Lenore R. Gelfman, who presided over the pretrial hearing. The raw material for our review will be confined to the testimony and other evidence produced during the two days of that hearing.

Two sub-contentions challenge the establishment in the warrant application of probable cause to justify the issuance of the search warrant. They are

A. that the warrant application did not establish probable cause for the search; and

B. that the omission from the warrant application of information on the dog's unreliability fatally compromised, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the integrity of the warrant application.

Working backward in the investigative chronology, two other sub-contentions concern 1) first the threshold applicability and 2) then the satisfaction of the Fourth Amendment, if applicable, with respect to the antecedent dog sniffing, the result of which was included in the warrant application. They are

C. that the smelling by a trained dog of odors emanating from a residence, as opposed to lesser protected places, constitutes a search within the contemplation of the Fourth Amendment; and

D. that, if the dog-sniffing were, indeed, a Fourth Amendment search, then no sufficient justification for it had been shown to satisfy the Fourth Amendment.

The remaining sub-contention is a purely contingent one based upon appellate success on one or more of the earlier subcontentions. It is

E. that, if the result of the dog sniff were excised from the warrant application, the remaining information was not sufficient to establish probable cause.

Even this division by the appellant of the contention into five sub-contentions does not end the proliferating process. The case brings before us so many substantive and procedural nuances that it commits us to a virtual review of the Fourth Amendment, as the outline of what is before us reveals:

I. The Issuance of the Warrant on March 21

A. Probable Cause for the Warrant

1. A Canine "Alert," Without More, Establishes Probable Cause

2. Additional Indications of Probable Criminality

3. The Allocation of the Burden of Proof: The Presumption of a Warrant's Validity

4. A "Substantial Basis" for Issuing the Warrant

5. In Appraising a Search Warrant, The Bar of Judicial Review Is Lowered

B. Does The Requirement of a "Track Record" of Reliability Pertain to the K-9 Corps?

1. The Canine Curriculum Vitae and the "Four Corners" Doctrine

2. The Appellant's Attempt to Stray Outside the "Four Corners"

3. The Franks Hearing That Never Was

4. A Procedural Masquerade: Franks v. Delaware Disguised as Frye-Reed

Interlude:

What We Have Held And What We Have Not Held

II. The Warrantless Activity of March 19

A. The Appellant's Challenge to the Antecedent Police Action of March 19

1. Readjusting the Fourth Amendment Standard of Review

a. In a Single Suppression Hearing, A Judge May Play Different Roles

b. For Warrantless Searches, a Counter Presumption

c. The Sheppard-Leon "Good Faith" Exemption Is Limited to the Execution of a Warrant

2. The Threshold Requirement of Fourth Amendment Applicability

a. The Coverage of the Place Searched

b. The Coverage of the Searcher (State Action)

c. The Coverage of the Defendant (Standing)

d. The Coverage of the Police Conduct (Was It a Search? Was It a Seizure?)

e. The Impact of Katz

f. The Standard of Review for Assessing Applicability

g. The Burden of Proof as to Applicability

3. The Launching Pad From Which the Dog Sniffing Was Conducted: The Non-Coverage of the Place

4. Is a Dog Sniff a "Search," Generally?

5. Does the Presence of a Home Transform a "Non-Search" Into a "Search"?

6. The Use of a Dog's Nose Is Not A New or Startling Investigative Modality

B. The Arguable Justification for the Purported "Search" of March 19 Is Moot

III. An Appraisal of the Discounted Warrant Application Is Moot

The Search of 3131 Normandy Woods Drive

On March 21, 2002, a search and seizure warrant for 3131 Normandy Woods Drive, Apartment A, in Ellicott City was issued by District Court Judge JoAnn Ellinghaus-Jones. The affiant on the warrant was Detective Leeza Grim of the Criminal Investigation Bureau, Vice and Narcotics Division, of the Howard County Police Department. The warrant was executed on April 2. Recovered in the search were substantial amounts of marijuana and other evidence of marijuana use and marijuana distribution. The appellant moved, pretrial, to suppress the evidence. Judge Gelfman denied the motion.

Part I

The Issuance of the Warrant on March 21

A. Probable Cause for the Warrant

Detective Grim was initially put on the trail of the appellant and his live-in girlfriend, Allison Mancini, when she received information from an "anonymous source." The affidavit in support of the warrant application recited:

In February, 2002, DFC. Grim received information from an anonymous source that a white male and white female lived together in Normandy Woods Apartments and sold marijuana on a regular basis. The marijuana in question was a high quality grade called "Kind Bud". The source advised that the names of the individuals were Matt Fitzgerald and Allison Mancini and that they had a white pick-up truck.

Subsequent investigation by Detective Grim—1) of the automobile registration of a white pick-up truck parked close to 3131 Normandy Woods Drive, 2) of Baltimore Gas and Electric Co. service records for Apartment A at that address, and 3) of the Howard County Police Records Management System—confirmed that the appellant and Mancini lived in Apartment A of 3131 Normandy Woods Drive.

The appellant, moreover, had a juvenile arrest history that included:

February 3, 1998-Distribution of Marijuana Near a School

July 6, 1998-First Degree Burglary

August 6, 1998-First Degree Burglary

August 12, 1998-First Degree Burglary

On March 20, Detective Grim received an additional report from the anonymous source:

On March 20, 2002, your affiant received additional information from the anonymous source that the subjects continue to sell the "Kind Bud" marijuana.

To confirm her suspicions, Detective Grim enlisted the aid of Officer Larry Brian of the Howard County Police Department's canine unit and of the trained and certified canine, Alex. The affidavit recited their investigation.

On March 19, 2002, your affiant met with K-9 Officer Brian and requested that he utilize his canine to scan the stairwells and exterior apartment doors at 3131 Normandy Woods Drive. Pfc. Brian conducted a scan of apartment doors A, B, C & D. His canine alerted to the presence of narcotics only at apartment "A". Pfc. Brian repeated the process with identical results. Pfc. Brian's canine is a certified drug detecting dog and scans have resulted in numerous arrests.

(Emphasis supplied).

1. A Canine "Alert," Without More, Establishes Probable Cause

As we affirm the adequacy of the warrant application, we hold that Alex's "alert" to Apartment A was ipso facto enough to establish probable cause. Both the Court of Appeals and this Court have regularly affirmed the dispositive sufficiency of a canine "alert." In Gadson v. State, 341 Md. 1, 8, 668 A.2d 22 (1995), Judge Chasanow stated for the Court of Appeals:

Nor does Gadson dispute that once Sandy the dog alerted Trooper Prince to the presence of illegal drugs in the vehicle, sufficient probable cause existed to support a warrantless search of the truck. See United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir.1990)

(a "dog alert" is sufficient to create probable cause to conduct a warrantless vehicle search).

(Emphasis supplied). In Gadson v. State, 102 Md.App. 554, 556-57, 650 A.2d 1354 (1994), rev'd on other grounds, 341 Md. 1, 668 A.2d 22 (1995), this Court characterized the canine "alert" on which the Court of Appeals, as quoted above, placed its imprimatur.

The probable cause to believe that the truck contained contraband narcotics was supplied by "Sandy," a member of the Maryland State Police K-9 corps, who had been licensed as a certified drug detection dog and who worked regularly with Trooper Prince. As Sandy stood outside the appellant's truck, with its doors closed, he "alerted" to the presence of narcotics. That the "alert" to the presence of narcotics by a trained and certified drug-sniffing canine is ample to establish probable cause is well established law.

Looking forward from the moment when Sandy, by "alerting," communicated his belief to Trooper Prince that narcotics were in the truck, the Fourth Amendment was not offended by the ensuing warrantless Carroll Doctrine search of the truck for those narcotics.

(Emphasis supplied).

In Wilkes v. State, 364 Md. 554, 586, 774 A.2d 420 (2001), Judge Cathell stated authoritatively:

The troopers were able to conduct a lawful search of petitioner's vehicle because after the K-9 scan alerted to the presence of narcotics they had probable cause to do

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