By David Daggett
This month’s blog focuses on the case of Steck v. State, No. 705, September Term, 2017, Filed on November 28, 2018 with the opinion drafted by the Honorable Lynne Bataglia of the Court of Special Appeals. The case was originally tried in Worcester County by ASA Joaquin Cabrera and argued before the Court of Special Appeals by Jeremy McCoy of the Office of the Attorney General. With the month of December slip sliding away, I thought I’d better get it written up before the holidays.
While this blog was written on a winter’s day, in a deep and dark December, the case originated late in the evening of August 7, 2016 in Ocean City, when Officer Dan McBride, astride his police-issued Schwinn Super Sport, observed a black Chevy Impala making a left-hand turn in front of an oncoming taxi, causing its driver to slam on its brakes to avoid broadsiding the Impala. Believing he had witnessed a traffic violation, Ofc. McBride broadcast a description of the Impala and it was subsequently stopped a few blocks away by Officer Neshawn Jubilee. Officer McBride arrived at the scene of the traffic stop approximately three to four minutes later. The Impala was being driven by Etoyi Roach (aka “Baby Driver.”) The appellant, Ryan Steck, was in the back seat, along with another front seat passenger, who was not identified in the opinion. More on him later. Ofc. McBride spoke briefly with the occupants, and as the conversation dangled, he “began issuing Mr. Roach a written warning for the unsafe lane change while requesting a K-9 unit to respond to the scene.” Deputy Chris Larmore of the Worcester County Sheriff’s Department and his drug dog* arrived “a couple of minutes” after they were summonsed.
Ofc. McBride testified at the suppression hearing, that he requested a canine unit “based on the behavior of the occupants,” as well as on information that Officer Jubilee had relayed, including that “it took a little longer to pull over than usual…that the Impala almost ran a red light when it pulled over and kind of coasted to a stop and that Officer Jubilee said that as he approached the vehicle, the driver and the occupants were making furtive movements around the vehicle.” Slip Opinion @ 2, 3
Officer Jubilee also testified that the Impala “did not stop until the block of 8th Street, which is three blocks further than where I (Jubilee) initiated the traffic stop…the occupants were looking around. Their hands were moving about the car…they were looking at each other and their hands were also moving.” P. 3. As the occupants were providing their licenses, Ofc. McBride arrived and upon speaking with Ofc. Jubilee, made his request for the canine unit. As McBride was on bike patrol, he sat in the back of Jubilee’s cruiser and began hand writing a warning ticket. Significantly, hand writing a ticket takes much longer than does issuing an electronic ticket. McBride further testified that he was still in the process of writing Roach’s warning when the K-9 unit arrived.
Deputy Larmore of the Worcester County Sheriff’s Department** testified that it took him a “couple of minutes” to travel to 8th Street and upon arrival he had all three occupants exit the vehicle as Simon commenced his scan. Roach, Steck and the third occupant waited outside on a nearby curb. Simon soon began exhibiting behavior consistent with the presence of narcotics, showing clues such as a change of breathing and posture, sniffing the vehicle, but also sniffing at gusts of wind blowing from the general direction of the occupants. According to Dep. Larmore, Simon’s attention seemed to be drawn back and forth between the vehicle and the occupants. Simon was certified to detect marijuana, cocaine, methamphetamine, heroin and ecstasy. While Simon did not go into his final alert, which was sitting, Dep. Larmore nonetheless concluded that at the time of the scan, he believed there to be “two sources” of the odor – the vehicle and the occupants.
At that point, when asked if he had drugs on his person, Steck chose not to maintain the sound of silence, but instead replied that he had, “a blunt inside his pocket.” The appellant then removed a clear plastic bag of marijuana from his pocket. Officers then searched the vehicle, discovering one thousand bags of heroin and some additional baggies of cocaine, enough to indicate possession with intent. For those of you paying attention, that was not a typo – ONE THOUSAND baggies! Clearly there was more than enough to keep his customers satisfied.
Motions to Suppress – I. Reasonableness of the Stop
The defense filed a motion to suppress the heroin, cocaine and marijuana in the Circuit Court for Worcester County, but those motions were denied by the trial court. After a trial, Steck was convicted of Possession with Intent to Distribute Heroin and Possession with Intent to Distribute Cocaine. Steck was not homeward bound. In fact, he received a 22-year sentence, of which 14 years were to be served. Unhappy with this sentence, he appealed his conviction and proffered the following arguments before the Court of Special Appeals:
- The original traffic stop was unlawful as it was not supported by a reasonable articulable suspicion that a traffic violation had occurred;
- The traffic stop was “prolonged beyond the time necessary to write the ticket,” thus allowing time for Simon to arrive and conduct the scan; and
- There was no probable cause to search the vehicle, as Simon failed to provide a “positive alert” and that Dep. Larmore failed to explain why Simon did not positively alert to the car.
Regarding the first issue, the Court of Special Appeals gave a brief overview of the Fourth Amendment as it applies to traffic stops, including Delaware v. Prouse, 440 U.S. 468, 650 (1979) and acknowledged that a traffic stop does constitute a seizure and that Fourth Amendment protections are violated when there is “no reasonable suspicion that the vehicle is being driven contrary to motor vehicle laws” or where police don’t have a “reasonable suspicion supported by articulable facts that criminal activity is afoot.” Lewis v. State, 398 Md. 349, 361 (2007). The Court also cited State v. Green, 375 Md. 595, 609 (2003) stating that “when a police officer has probable cause to believe that a driver has broken a traffic law, the officer may detain the driver temporarily to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with intent to issue a citation or warning.”
The Court ultimately made short work of this issue, determining that the observations of Officer McBride provided reasonable suspicion to have the Impala stopped for a violation of the traffic code.
II. Prolonged Length of the Stop
The Court spent much more time on the “prolonged stop” argument. The appellant argued that even if the original stop were deemed to be lawful, it was prolonged beyond the time necessary to effectuate the purpose of the stop – that is, to write the traffic ticket or warning – thereby enabling the canine unit to arrive and conduct a scan. The appellant argued that Ofc. McBride at one point stopped writing the warning citation so as to help focus on the dog search, which was tantamount to an abandonment of the original purpose of the stop. The State responded that other than briefly speaking with Deputy Larmore, there was no evidence that Ofc. McBride unnecessarily prolonged the original stop or abandoned its purpose, as he was still in the process of writing the warning citation when the scan took place.
The COSA agreed that a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. It reiterated that the purpose of a traffic stop should be limited to “the period of time reasonably necessary for the officer to (1) investigate the driver’s sobriety and license status, (2) establish that the vehicle has not been reported stolen, and (3) issue a traffic citation. Pryor v. State, 122 Md. App 671, 682 (1997) and Slip Opinion @ p.11.
It was noted that when evaluating the effect of the length of the detention, the Court must take into account whether the police diligently pursued the purpose of their investigation. The continued detention of a vehicle and its occupants
The Court also pointed out that it is perfectly legitimate to use a drug detection dog during a traffic stop as a “free investigative bonus” as long as the traffic stop is “still genuinely in progress.” State v. Ofori, 170 Md. App. 211, 235 (2005). If a dog scan unnecessarily exceeds the scope of the original seizure, then a Fourth Amendment violation has occurred. As the Supreme Court noted in Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015) “[t]he issue turns not on whether the dog sniff occurs before or after the officer issues a ticket…but whether conducting the sniff adds time to the stop.”
Rodriguez also authorizes law enforcement to check for outstanding warrants; inspect the vehicles registration and proof of insurance; and to attend to any safety -related concerns. In order to justify a continuation of the traffic stop beyond the issuance of relevant traffic citations, reasonable suspicion must exist that there is contraband in the vehicle or that other criminal activity is afoot. Of course, the officer can always ask for consent.
Here, the Court of Special Appeals agreed with the determination of the trial judge that Ofc. McBride wasn’t fakin’ it by dragging out the writing of the citation in order to allow Simon’s scan to take place.
III. No Probable Cause to Search the Vehicle as Simon Failed to Alert
The appellant next argued that under the totality of the circumstances, there was no probable cause to search the Impala as Simon had failed to positively alert on the vehicle. Once again, Steck was attempting to traverse a bridge over troubled water and found no relief with the Court of Special Appeals.
The Court noted that the Supreme Court has consistently held that a police officer “has probable cause to conduct a search when the facts available to the officer would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237, 243 (2013).
Maryland law is also clear that when a drug detection dog alerts on a vehicle to the presence of narcotics, probable cause exists to conduct a warrantless “Carroll” search of the vehicle. Stokeling v. State, 189 Md. App. 653, 664 (2009).
The Court then cited Eighth and Tenth Circuit Appellate cases holding that probable cause exists even in situations in which drug detection dogs failed to provide a final, trained alert, just as long as they exhibit behavior consistent with positive drug detection. (United States v. Holleman, 743 F. 3d 1152 (2014); United States v. Parada, 577 F. 3d 1275 (2009)).
In the case at hand, the Court opined that when determining whether Simon’s conduct provided a sufficient basis for probable cause to enable a warrantless car search, the credibility of the dog’s handler and other witnesses on the scene is key. Slip Opinion @19. The Court noted that the trial judge specifically commented on the compelling nature of Deputy Larmore’s testimony, and of its finding that the dog’s behavior was consistent with the presence of drugs. The COSA determined that the probability that a search might reveal contraband, based on Simon’s scan – which was consistent with the presence of narcotics – amounted to probable cause and thus justified the search. Deputy Larmore’s explanation for Simon’s behavior was very reasonable and was recognized to be totally consistent with the dog’s behavior when he’s “in the odor” of narcotics and that it provided a credible explanation as to why Simon went “back and forth” between the vehicle and its prior occupants sitting on the curb.
Steck v. State provides a good overview of Maryland law related to traffic stops, detentions and searches. It serves as a refresher for what is required to effectuate a stop; how long the initial stop can last; what is necessary to extend the stop beyond its initial purpose; and when the stop can blossom into a search.
Lest anyone think I’m crazy after all these years, thanks to K-9 Simon, I took this opportunity to pay homage to a great American poet and musical artist (and one of my favorites) – Paul Simon – by including references to a number of his songs. How many did you spot?
This case provided an additional interesting (yet horrific) twist: Between the time Officer Jubilee activated his emergency equipment and Roach finally brought the Impala to a stop, the front seat passenger apparently swallowed a baggie of cocaine. Later, while in custody, the baggie ruptured and the subject died of cocaine intoxication.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEYS’ OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THE SUBJECT MATTER HEREIN.
* What makes this case truly unique is the name of the canine – “Simon.” Simon is that rarest of rarities: a police dog that doesn’t sport an aggressive, menacing moniker such as “Bear, “Diablo,” ”Fang,” “Killer” or “Snots.” While Simon’s actual breed is not indicated in the opinion, here’s hoping he was a Boxer. Cecilia is a nice name for a dog.