Terrell v. State

• Decision Date: 12 March 1968
• Docket Number: No. 135,135
• Citation: 3 Md.App. 340,239 A.2d 128
• Parties: Joel TERRELL, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 340

3 Md.App. 340

239 A.2d 128

Joel TERRELL, Jr. v. STATE of Maryland.

No. 135.

Court of Special Appeals of Maryland.

March 12, 1968.

Beverly S. Pearson, Rockville, for appellant.

Dickee M. Howard, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, William A. Linthicum, Jr., State's Atty., for Montgomery County, Page J. Digman, Asst. State's Atty., for Montgomery County, Rockville, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON JJ.

THOMPSON, Judge.

Joel Terrell, Jr., the appellant, complains of a conviction of robbery in the Circuit Court for Montgomery County in a trial before Judge Walter H. Moorman and a jury. His specific complaints are that evidence concerning tracking of the defendant by a German Shepherd dog was admitted into evidence over objection, that certain articles allegedly seized as a result of an illegal search and seizure were admitted into evidence over objection and that the determination of the lawfulness of the arrest and of the ensuing search and seizure should have been made out of the presenct of the jury.

On September 20, 1966, at approximately 10:15 P.M. three Negro males, two of whom displayed revolvers, held up the desk clerk at the Park Silver Motel on Thirteenth Street in Silver Spring, Maryland and seized a cash box containing one hundred dollars ($100.00) belonging to the motel and eighteen dollars ($18.00) belonging to the clerk. Police, who arrived within two or three minutes, brought to the motel eight to ten suspects found in the area for identification by the clerk. He declared them not to be the robbers. The trial judge sustained an objection to the question as to what description of the suspects was given to the police. ¹ Later, however, the clerk testified 'Well, they had beards. One of them, the defendant on the left, had on a white windbreaker of some sort. The fellow on your left had on a hat, beard, and he had a turtle neck sweater of some dark color with a coat over a suit coat like what he has on now.' Although he admitted he made some mistakes in giving the description to the police, presumably some similar description was given at the time he reported the robbery or soon thereafter. Inspector Howes of the Montgomery County Police Department was the first officer who responded to the clerk's call. He testified that upon his arrival he observed a trail of coins leading from the front of the motel to a nearby alley. He stayed at the entrance to the alley to protect the scene until Fred Helton, an officer of the K-9 Corps with his dog, 'Rocky', a German Shepherd K-9 dog, arrived at the scene. Officer Helton started the dog on a track at the entrance to the alley. The dog led the officer up the alley and turned right into another alley leading out of Eastern Avenue. Officer Helton took the dog across the street to a church lawn. The dog continued the trail south on the sidewalk to a Plymouth automobile which was parked on Eastern Avenue. There was a light rain falling and causing a mist on the car windows so that the oficer could not readily see inside the car; but, however, he did see one subject lying on the front seat and one subject lying on the back seat. Three people were in the automobile; one of whom was Joel Terrell, Jr., the appellant. Officer Helton then radioed for assistance. One subject in the car opened the car door and the officer told him to stay inside. Assistance arrived within minutes and the three suspects were ordered out of the car and placed in separate police vehicles; within a few minutes the motel clerk was brought to the scene and identified the three persons as the ones who had robbed him. It was now approximately 11:00 P.M.

One of the occupants of the car, Kaiser Booker, admitted that he had been involved in the hold-up and during pre-trial questioning, he told the police that the defendants had been with him, but at the trial he denied the defendants had been with him and named a different person and another whose name he could not remember as his accomplices.

Cpl. Daly, of the Montgomery County Police Department, testified that after the subjects got out of the Plymouth automobile, he looked in the open door and observed a ten dollar bill protruding from the driver's seat. In the rear of the automobile, he observed folded United States currency protruding from underneath the rear seat. On the floor he observed the butt of a pistol protruding from beneath some newspapers. Upon moving the newspapers he saw two pistols. The Plymouth was immediately towed to the Silver Spring Police Station, which was about half to three-quarters of a mile away. It was thoroughly searched at the station and $100.13 in United States money and the two pistols were seized; all of which were admitted into evidence at the trial. In addition, pictures of the interior of the car were taken and admitted into evidence. Some of the pictures were taken on the street at the place where the vehicle was found, others were taken at the police station soon after the car was taken there.

Terence P. Cahill was qualified as an expert in the training of dogs for use by law enforcement agencies. He testified that over a period of five years in London he had trained approximately 150 dogs and supervised the training of others that he trained twenty-five dogs in one year's service in Baltimore; started the K-9 Corps in the District of Columbia, where he's trained at least eighty dogs. In addition, he has lectured on the subject since 1959 and has trained men to become dog trainers for other jurisdictions. He testified that he trained this particular German Shepherd dog and Officer Helton daily for a period of fifteen weeks and once a week for many weeks thereafter; he further testified that the dog was reliable in the tracking of human beings and had been given an excellent rating in his fifteen week training course. Officer Helton also testified that the dog had been trained in tracking and had shown ability to follow a trail.

I

The first question presented is whether or not the evidence of tracking by the German Shepherd police dog was properly admitted into evidence.

The ability of a dog to follow the human scent is not an inherent characteristic, but one that must be instilled into the animal through arduous training. A very colorful page of American folklore deals with the bloodhound tracking down a fugitive. It was not until 1893, Hodge v. State, 98 Ala. 10, 13 So. 385, 39 Am.St.Rep. 17, that an accused raised the issue that evidence showing that a bloodhound tracked him down was not admissible. The Supreme Court of Alabama in a one page opinion allowed the evidence, citing no authority, stating that it was 'common knowledge' that such dogs, if properly trained, could track down a person. Four years later, the Alabama Supreme Court reiterated its position, Simpson v. State, 111 Ala. 6, 20 So. 572 (1896) citing Hodge, supra, as precedent. Nonetheless, the formulation of a general rule with restrictions was in the making.

The Kentucky Supreme Court set forth the basic rule in 1898 when it handed down Pedigo v. Commonwealth, 103 Ky. 41, 44 S.W. 143, 19 Ky.L.Rep. 1723, 42 L.R.A. 432, 82 Am.St.Rep. 566, at 44 S.W. at 145:

'After a careful consideration of this case by the whole court, we think it may be safely laid down that, in order to make such testimony competent, even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must also be established that the dog in question is possessed of these qualities, and has been trained or tested in their exercise in the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. We think it must also appear that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicated to have been made by him. When so indicated, testimony as to trailing by a bloodhound may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime of which he is accused. When not so indicated, the trial court should exclude the entire testimony in that regard from the jury.'

Besides stating the majority rule, Pedigo, supra, set the groundwork for the minority by referring to the superstitious attitude towards the bloodhound. In 1903, the Nebraska Supreme Court in Brott v. State, 70 Neb. 395, 97 N.W. 593, 63 L.R.A. 789 reversed a burglary conviction based on 'bloodhound evidence.' The evidence so adduced was not competent for, 'It is unsafe evidence, and both reason and instinct condemn it.' A close examination of the facts in Brott shows that there had been a time lapse before the dogs were used, during which time the trail had been walked on 'a hundred times' by observers. Therefore, even under Pedigo, supra, the evidence would be excluded.

The minority rule established by Brott, supra, which like Hodge, supra, cited no authority except its own version of 'common knowledge', set out two reasons why the evidence should be excluded. The superstitious awe in which the bloodhound is held may exert an undo effect on the jury which cannot know first hand 'whether the reasons on which he acted were good or bad.' Furthermore, because the dog is not infallible, a wrong man may be tracked.

Although there was a rapid evolvement of the minority rule with Brott, supra, as its focal point-support for the rule was slow. Several jurisdictions were placed in the minority camp merely because they excluded such evidence under circumstances that courts following the majority rule would also have excluded it. For a complete discussion see State v. Dickerson, 77 Ohio St. 34, 82 N.E....