Accelerant detection dogs are usually used at fire scenes to make an initial—sometimes the only—determination that gasoline or another accelerant was used to start a fire. In a case coming out of Maryland in September, however, the dog was used to identify accelerants on and inside a car belonging to a suspect, in his bedroom, and on shoes he wore when attempting to set fire to a car in the driveway of the house where a former girlfriend lived. Although a Maryland appellate court determined that the testimony of the handler of the arson dog was improperly admitted—because he had given expert opinions without being qualified as an expert under Maryland evidentiary procedures—the court excused this as harmless error.
Fires in the Night
At about 1 a.m. on the morning on November 15, 2009, Jeffrey Byers saw fire coming through the front of his detached, two-car garage and its three-bedroom loft. He alerted his wife and daughter and called the fire department. The garage was engulfed by the blaze but the firemen who arrived kept the fire from spreading to the main house. The police were informed because the fire was deemed suspicious. A fire official concluded that the fire was probably set by human hand and the fire department installed surveillance cameras around the home, but subsequently removed them on April 3, 2010.
On April 4, 2010, Byers awoke around 3 a.m. and found his house full of smoke. He saw the roof above the dining room on fire in two places and his wife called 911. Byers got a water hose and attempted to extinguish the flames. A fireman who arrived detected a strong smell of accelerant. Law enforcement officials collected samples of burned wood, tar paper, pieces of roofing, soil, and debris for testing. Unburned roofing was taken as a control. Everything but the unburned roofing contained gasoline.
A scriptwriter turning this case into a segment of, say, Rizzoli and Isles, would make much of the fact that the cameras came down on April 3 and the horror resumed on April 4, but the court does not. Presumably the perpetrator was watching the house, though for plot structure I suspect that he would be found to have a friend in the fire department, or even be in the fire department himself.
What the family did next is described by the court as follows:
“Following the fire of April 4, 2010, the Byers family replaced the two-camera surveillance system they originally used at their residence with an eight-camera system and a built-in DVR. Mr. Byers purchased an additional four cameras, resulting in a twelve-camera surveillance system that monitored the entire perimeter of the Byers' residence. The system was equipped with infrared motion detection and recording capabilities that enabled the Byers to remotely survey the home. Additionally, Mr. and Ms. Byers began sleeping in shifts to monitor the security of their home.”
On May 16, at approximately 1 a.m., Yolanda Byers, Jeffrey’s wife, was watching the surveillance camera when she saw someone walking go from the street into the driveway. The individual was wearing a hood and a mask and carrying a container. He began dousing the vehicle with liquid. The family gathered at the living room window and began shouting at the man to leave, but he gave them the finger. He initially dropped a bag and the container but then picked them up and began running away. Jasmine, the Byers’ daughter, based on the man’s posture, walk, and body frame, thought that he was a former boyfriend from high school. When the police arrived, they saw the family’s car had been doused with gasoline. The family gave the police the name and address of the person they suspected.
Police Pursue Lead with Arson Dog
Investigator Robert Kaleda and another officer drove to the suspect’s house and performed “an exterior canine scan” of the suspect’s vehicle. The dog, Joy, “had two positive alerts to the presence of accelerants: (1) at the driver’s door handle, and (2) at the trunk’s keyhole.”
The officers could have applied for a warrant because of the dog’s alerts to the car, but decided to knock on the door of the house. The suspect answered the door. When the officers entered the house, they smelled a strong odor of gasoline and placed William Simpson III under arrest. The suspect consented to a canine search of his person and a canine and physical search of his vehicle. The dog alerted to the presence of accelerants in the trunk and underneath the driver’s seat.
The suspect and his father also consented to a canine search of the suspect’s bedroom and the laundry room. The dog alerted to a pair of athletic shoes in the suspect’s closet. An analysis by gas chromatography-mass spectrometry indicated the presence of gasoline on the shoes. (It would seem that gasoline might also have been detected on the suspect’s mask and other clothing but the opinion makes no further mention of these items.)
After being read his Miranda rights, the suspect admitted he had poured gasoline on the Byers’ vehicle and was going to ignite it with a lighter in his front pocket. He also admitted setting the prior fires. In addition he wrote a statement about the crimes. At trial he was convicted of attempted second degree arson and sentenced to ten years in prison.
Various issues were raised on appeal, and the Maryland Special Court of Appeals reviewed trial evidence.
Investigator Kaleda testified regarding the training he received with Joy, his canine partner. Their initial training was at the BATF Canine Academy in Front Royal, Virginia. He testified:
“The initial training is pretty much cans, similar to these, and there is substances put in the cans. Some have odor on them and some do not. And when I say ‘odor,’ of hydrocarbon-based fuel. The dog repetitively goes over them hundreds of times a day to distinguish between the products and the products with fuel.”
Officer Kaleda explained that Joy had completed BATF training before she was assigned to him.
“[W]hen we receive the dogs, they are already imprinted, which is the process of where they are trained to the odors. They know that before we get there. They, indeed, have -- and the ATF training staff does that for about 8 weeks, I believe, before we get there. So our six-week program is just pretty much acclimating, and being able to learn how to distinguish what the dog is doing.”
He also explained what Joy does when she detects a target odor:
“[H]er behavior will change when she gets in the area of an odor, and she will sniff more rapidly, she'll move around a little more quickly. When she finds the highest concentration of odor, she will sit and she'll put her nose on it, and then she'll be fed. I will ask her to show me the location and she'll put her nose on the highest concentration of odor.”
Was the Handler an Expert?
When Officer Kaleda began to testify regarding use of the dog in the case at trial, the defense objected that he had not been qualified as an expert. Although overruled, the trial court allowed a standing objection to be recorded. The appellate court concluded that it was, in fact, error to admit the officer’s testimony without qualifying him as an expert, but determined that the error was “harmless beyond a reasonable doubt.” The appellate court stated that “an officer’s observations of his/her detection canine qualifies as expert testimony.” A significant part of the court’s analysis concerned a previous Maryland case, Terrell v. Maryland, 3 Md. App.340, 239 A.2s 128 (1968), an important tracking case because of its extensive discussion of the history of tracking law (referred to numerous times in Police and Military Dogs).
The failure to qualify the arson canine’s handler as an expert was an oversight that should not be waived in subsequent trials of this sort in Maryland, but is the correct decision here. The appellate court included long excerpts from the trial transcript, probably to demonstrate that if the prosecutor had made the effort, Officer Kaleda could have been qualified as an expert by the trial judge.
The case is important for showing that arson dogs may provide valuable evidence when deployed at locations other than the location of a fire. Whether the canine evidence would have held up without laboratory confirmation of the presence of gasoline on the defendant’s car and his shoes is a separate issue, but fortunately for the prosecution was not in question here.
Simpson III v. State of Maryland, 2013 Md. App. LEXIS 134 (Ct. of Special Appeals, 2013)
This blog was written by John Ensminger and L.E. Papet.