Fitzgerald v. State

864 A.2d 1006, 384 Md. 484, 2004 Md. LEXIS 784
CourtCourt of Appeals of Maryland
DecidedDecember 10, 2004
Docket8, September Term, 2004
StatusPublished
Cited by93 cases

This text of 864 A.2d 1006 (Fitzgerald v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzgerald v. State, 864 A.2d 1006, 384 Md. 484, 2004 Md. LEXIS 784 (Md. 2004).

Opinions

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 sniffs 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 [488]*488separate 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. Aiex “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 [489]*489claimed 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 Gelñnan 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 [490]*490distinction 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 [491]*491Amendment.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.

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Bluebook (online)
864 A.2d 1006, 384 Md. 484, 2004 Md. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-state-md-2004.