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State of Maryland v. Earmon Alvin Wallace, Sr. No. 29, September Term, 2002 Headnote: The Court of Appeals holds that a general canine alert to the presence of illegal drugs in a vehicle, w ithout more , does not es tablish prob able cause to search non-o wning , non-d riving p asseng ers of th at vehic le.

Circuit Co urt for Anne A rundel Co unty Case #K991173

IN THE COURT OF APPEALS OF MARYLAND No. 29 September Term, 2002

State of Maryland

v.

Earmon A lvin Wallace, Sr.

Bell, C. J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ.

Opinion by Cathell, J. Harrell and Battaglia, JJ. dissent

Filed:

December 11, 2002

On July 26, 1999, respondent was charged in a three-count indictment with various narcotics violations arisin g from h is arrest on July 9, 1999. On February 1, 2000, the Circuit Court for Anne Arundel County held a hearing on a pre-trial motion to suppress evidence during which respondent argued that his search was not based upon probable cause and as a result the contraban d seized fro m him on the night of his arrest shou ld not be pe rmitted into evidence at trial. On February 3, 2000, the motions court filed a written opinion denying respondent's motion to suppress. On September 28 , 2000, follo wing a b ench trial,

respondent was convicted on an agreed statement of facts and was found guilty of possession with intent to distribute cocaine. On November 29, 2000, that court sentenced respondent to 20 years' incarceration, with all but five years suspended. On December 14, 2000, respondent noted a timely appeal to the Court of Special Appeals. On February 27, 2002, in a reported o pinion, the in termediate a ppellate cou rt reversed th e judgme nt of the circu it court. Wallace v . State , 142 Md. App. 673, 791 A.2d 968 (2002). On June 10, 2002 , we granted the State 's Petitio n for W rit of Ce rtiorari. State v. Wallace , 369 Md. 301, 799 A.2d 1262 (20 02). Petitione r presents on e question f or our revie w: "Did the Court of Special Appea ls incorrectly hold that a passen ger in a vehicle could not be searched after a drug dog has alerted an officer to the presence of illegal drugs in the vehicle, notwithstanding that the alert provided probable cause to believe drugs were present in the vehicle and/or on the person of one or more of the occupants of the vehicle?" We affirm the judgment of the Court of Special Appeals, answer no to petitioner's question, and hold that the police did not have probable cause to search respondent, a passenger in the vehicle. Furt her, w e hold that the Cou rt of Spe cial A ppeals prope rly held that a positive canine alert to contraband in a vehicle, without more, does not establish probable c ause to

search all of the passen gers in a vehicle . I. Facts On July 9, 20 00, at appro ximately 3:00 a.m., Officer Jessica Hertik was driving her marked police car eastbou nd on Fo rest Drive in Annapolis, Maryland. As she approached Hilltop Lane, a forty mile per hour road, she observed a four-door Buick driving at a high rate of speed in th e oppo site direc tion. Sh e mad e a U-tu rn and a ccelera ted to 90 m.p.h. to catch up to th e Buic k. In addition to speeding, Officer Hertik saw the vehicle run a red light. Officer Hertik then activated her emergen cy equipment and the B uick pulled over. Officer Hertik stopped behind the vehicle, exited her car and app roached the driver's side of the Buick. Sitting inside of the vehicle was the male driver, a male front seat passenger, and three back seat passengers - respondent and two w omen. O fficer He rtik recognized respondent and two of the other passengers from a previous encounter, although in her testimony at the suppression hearing she did not describe that encounter. She informed the driver that she had stopped the vehicle for speeding and for n ot stopping at a traffic light. The driver of the car complied when Officer Hertik requested to see his driver's license and car registration. When Officer Hertik w alked back to her car, she met another officer who had arrived at the scene. She was Officer Elizabeth Nelson who was on duty with Bosco, her drug detection dog.1 Officer Hertik explained what had occurred and then proceeded to run a
1

Officer N elson had been w ith the Ann apolis City Police Departmen t for seven years

and had been a certified K-9 officer for four of those years. Testimony at the suppression (continued...) -2-

license check and write two tickets. In the meantime, other police units had arrived on the scene and these additional officers watched the Buick while Bosco scanned the vehicle. Bosco made tw o positive ale rts to the presence of drugs at the front and rear seam of the driver's side front door. Off icer Nelson testified that, because o f various factor s, i.e., air currents in the vehicle, there is little correlation between w here a canine alerts and w here drugs are found in the vehicle; rather it is just a general alert to the whole of the passenger compartment of the car itself. Officer Nelson advised Officer Hertik, who was still in the process of writing tickets, that Bosco had made a positive alert on the vehicle. While Officer Nelson returned Bosco to her patrol car, Officer Hertik approached the Buick to s peak w ith the driver. She informed the driver that she suspected that the vehicle contained drugs and asked the occup ants to exit the vehicle so the police could search them. The occupants we re taken out of the car one at a time and se arched while the othe rs remained in the car. Th e other off icers watch ed the occ upants of the car wh ile the searches were being conducted. Officer Jonathan Supko, one of the officers who had arrived at the scene, searched the three males. Officer S upko testified that his actions w ere not a mere "frisk" or "pat down" but were intended to discover anything suspicious, for "anything apparent . . . [w]eapons and what not." Officer Supko first searched the driver and then he search ed the f ront sea t passen ger.

(...continued) hearing revealed that both Officer Nelson and Bosco have undergone extensive training and updating of their skills each year. -3-

Officer Supko next searched respondent, who was sitting behind the front passenger seat. During the search Officer Supko felt a hard object near respondent's groin, which he said he knew was not a gun, knife, or other weapon. Officer Supko handcuffed respondent with his hands behind his back, told him he was "not under arrest at th[at] time" and walked him to a grassy area away from the road to complete the search. Officer Supko stated that he had ha ndcuf fed res ponde nt "just f or my saf ety and h is safety." As they walked over to the grassy area, respondent moved his hips in an apparent attempt to shake the object loose. When the officer searched respondent's groin area again, the object was gone. Officer Supko saw, howev er, something protruding from responde nt's left pants leg, which turned out to be a clear plastic baggie containing several pieces of suspected cocaine. R esponde nt was pla ced unde r arrest. The two females were searched after respondent. Officer Hertik searched one of them herself. Officer Hertik searched the vehicle only after each of the occupants of the car was searched. She found $1,155 in cash in someone's shorts in the front passenger seat and a knife in a purse in the bac kseat. No drugs w ere found in the car. Respondent alleged at a suppression hearing that there was not proba ble cause f or his search and, as a result, the cocaine seized from him at the time of his search should be suppressed as evidenc e to be used at trial. The trial court denied his suppression motion and respondent was, as indicated supra , ultimately conv icted of po ssession w ith intent to distribute cocaine. O n appeal, the Court of Special A ppeals reve rsed the jud gment of the circuit co urt and that cou rt's deni al of res ponde nt's mo tion to su ppress .

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II. Standard of Review Our review of a circuit court's denial of a motion to suppress evidence under the Fourth Amendment, ordinarily, is limited to the information contained in the record of the suppression hearing and no t the reco rd of th e trial. Carter v. S tate , 367 Md. 447, 788 A.2d 646 (2002): Ferris v. State , 355 Md. 356, 368, 735 A.2d 491, 497 (1999); In re Tariq A-R-Y , 347 Md. 484, 488, 701 A.2d 691, 693 (1 997), cert. denied, 522 U.S. 1140, 118 S. Ct. 1105, 140 L. Ed. 2d 158 (1998); Simpler v . State , 318 Md. 311 , 312, 568 A.2d 2 2, 22 (1990); Trusty v. State , 308 Md. 658, 670, 521 A.2d 749, 755 (1987). When there is a denial of a motion to suppress , we are fu rther limited to c onsidering facts in the ligh t most favo rable to the State as the preva iling part y on the m otion. See Scott v. S tate , 366 Md. 121, 143, 782 A.2d 862, 875 (2001); Riddick v. S tate , 319 Md. 180, 183, 571 A.2d 1239, 1240 (19 90); Simpler, 318 Md. at 312, 568 A.2d at 22. Even so, we review legal questions de novo , and where, as here, a party has raised a constitutional challenge to a search or seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts an d circum stances of the c ase. See Stoke s v. State , 362 Md. 407, 414, 765 A.2d 612, 615 (2001) (quoting Jones v. Sta te , 343 Md. 448, 457-58, 682 A.2d 248, 253 (1996)); Wilkes v. Sta te , 364 Md. 554, 569, 774 A.2d 42 0 (2001); In re Tariq A-R-Y , 347 Md. at 489, 701 A.2d at 693. We will not disturb the trial court's fac tual findings unless they are clearly erro neous . See Wen gert v. State , 364 M d. 76, 84 , 771 A .2d 389 , 394 (2 001). III. Discussion Petitioner contends that a positive canine alert in and of itself prov ides the polic e with

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probable cause to search all passengers in an automobile and that the Court of Special Appea ls imprope rly held that the positive canine alert in this case did not give the police probable cause to search respondent on the night in question. As indicated supra , we disagree with petitioner's contention and affirm the decision of the Court of Special Appeals. The Fourth Amendm ent to the United State's Constitution states: "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person s or thing s to be se ized." There are certain well-defined exceptions to the Fourth Amendmen t's requirement that searches be based upon probable cause and conducted pursuant to a valid warrant, but for purpo ses of th is opinio n we n eed no t note or discuss them a ll. See gene rally , United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427(1973) (permitting a search of a person incident to a full cus tody arrest supported by probable cause to effectuate the arrest

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