Agurs v. State

Dissenting Opinion by BARBERA, J., which ADKINS, J., joins.

Respectfully, I dissent. This case involves the applicability of the “good faith” exception to the Fourth Amendment exclusionary rule, which the Supreme Court first recognized in United States v. Leon, 468 U.S. 897, 900, 104 S.Ct. 3405, 3409, 82 L.Ed.2d 677, 684 (1984) and its companion case, Massachusetts v. Sheppard, 468 U.S. 981, 987-88, 104 S.Ct. 3424, 3427, 82 L.Ed.2d 737, 743 (1984). In the ensuing years, a number of states have rejected the good faith exception as incompatible with those states’ constitutions. See 1W. LaFave, Search and Seizure § 1.3(d) (4th ed. 2004) (collecting cases). Maryland, however, is among the states that have recognized and applied the good faith doctrine, as outlined in Leon and Sheppard. See Patterson v. State, 401 Md. 76, 105, 930 A.2d 348, 366 (2007); McDonald v. State, 347 Md. 452, 468-70, 701 A.2d 675, 683-84 (1997); Connelly v. State, 322 Md. 719, 729, 589 A.2d 958, 963 (1991).

To date, this Court has not recognized an exclusionary rule for evidence seized in violation of Article 26 of the Maryland Declaration of Rights.1 See Fitzgerald v. State, 384 Md. 484, 508-09, 864 A.2d 1006, 1020-21 (2004) (recognizing the “current absence of an exclusionary rule under our state’s constitution,” and stating that “this is not the case to revisit whether *103Article 26 contains an exclusionary rule”). But see id. at 520, 864 A.2d at 1026 (Greene, J., dissenting, joined by Bell, C.J.) (stating that the Court should take the opportunity presented in the case “to break with the tradition of reading Article 26 of the Maryland Declaration of Rights in pari materia with the Fourth Amendment” and “should interpret Article 26, in such a fashion, so as to afford [Maryland] citizens greater protections than those as interpreted under the Fourth Amendment”).

Unless and until this Court recognizes an Article 26-based exclusionary rule and disclaims any exception for “good faith” violations of that state constitutional provision, I feel bound to follow the good faith doctrine as explicated and applied in Leon, Sheppard, and the cases that have applied that doctrine in Maryland.2 Faithful application of those cases, in my view, compels the conclusion that the police acted in good faith when they searched Petitioner’s home pursuant to the search warrant.3

In Leon, the Supreme Court declared: “[Suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in unusual cases in which exclusion will further the purposes of the exclusionary rule.” 468 U.S. at 918-19, 104 S.Ct. at 8418, 82 L.Ed.2d at 695-96. Therefore, “the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by proba*104ble cause.” Id. at 900, 104 S.Ct. at 3409, 82 L.Ed.2d at 684. The Leon Court reasoned that, because the affidavit in support of the warrant at issue in that case set forth the results of an extensive police investigation, the warrant “provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause.” Id. at 926, 104 S.Ct. at 3422, 82 L.Ed.2d at 701. Consequently, “the officers’ reliance on the magistrate’s determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion [was] inappropriate.” Id., 104 S.Ct. at 3422, 82 L.Ed.2d at 701.

In Sheppard, the Court stated the good faith exception this way: “[T]he exclusionary rule should not be applied when the officer conducting the search acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate that subsequently is determined to be invalid[.]” 468 U.S. at 987-88, 104 S.Ct. at 3427, 82 L.Ed.2d at 743. Applying the exception to the facts before it, the Court concluded that the warrant was facially defective in that it misstated the items that could be seized, yet the evidence the police obtained while executing the warrant was admissible because the affiant had properly set out the items to be seized and the police reasonably relied on the magistrate’s representation that the warrant authorized them to conduct the requested search.

The Supreme Court emphasized in Leon that evidence seized pursuant to an invalid warrant will rarely be suppressed because “a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.” Id. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698 (internal quotation marks and citations omitted). The Court identified four circumstances, however, in which “the officer will have no reasonable grounds for believing that the warrant was properly issued”:

(1) In cases where “the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for [the officer’s] reckless disregard for the truth,” *105(citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978));
(2) “[I]n cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979),” such that “no reasonably well trained officer” would rely on the warrant;
(3) In cases where the officer relies “on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,’ ” (quoting Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)); and
(4) In cases where the warrant is “so facially deficient—ie., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume [the warrant] to be valid” (citing Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984)).

Leon, 468 U.S. at 922-23, 104 S.Ct. at 3420-21, 82 L.Ed.2d at 698-99. In any of those four circumstances, the good faith exception to the exclusionary rule does not apply, and suppression of the evidence is the remedy for the Fourth Amendment violation. Id. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699.

Petitioner asserts the applicability of the third circumstance outlined in Leon, which applies the exclusionary rule when “the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Petitioner contends, in particular, that the affidavit in support of the search warrant provides no indicia of probable cause that contraband would be found in his home. The majority agrees with Petitioner. I do not.

I begin with the proposition that the Supreme Court has not set a particularly high bar for demonstrating a probable cause belief that evidence of a crime might be found in a particular place. The Court has described “probable cause” as “a practical, nontechnical conception that deals with the factual and *106practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 799, 157 L.Ed.2d 769, 775 (2003) (internal quotation marks and citations omitted). The probable cause showing requires only a “fair probability” that the evidence sought is at the place designated to be searched. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). Probable cause, moreover, “is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Pringle, 540 U.S. at 370-71, 124 S.Ct. at 800, 157 L.Ed.2d at 775. Consequently, “the quanta ... of proof appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision.” Id. at 371, 124 S.Ct. at 800, 157 L.Ed.2d at 775 (internal quotation marks and citations omitted). Rather, “ ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’” Gates, 462 U.S. at 235, 103 S.Ct. at 2330, 76 L.Ed.2d at 546 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637, 645 (1969)).

Furthermore, any court that is called upon to review a warrant that is alleged to have lacked probable cause is required to give deference to the warrant-issuing judge’s probable cause determination. There need be only a “substantial basis” for that determination, and, if that test is satisfied, then any reviewing court is bound to find the warrant in compliance with the dictates of the Fourth Amendment. See Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.4

*107I accept for purposes of this opinion that there was not a substantial basis for the warrant-issuing judge’s conclusion that the affidavit supplied probable cause to believe that Petitioner’s house contained evidence of his suspected drug activity.5 The issue thus focuses solely on whether the good faith doctrine applies to foreclose application of the exclusionary rule.

To state the obvious, the raison d’etre of the good faith doctrine is to exempt from exclusion evidence seized pursuant to a warrant that falls short of satisfying the dictates of the Fourth Amendment, that is, a warrant that supplies fewer facts in support of probable cause than would be necessary to satisfy the “substantial basis” test. This Court recognized as much, in Patterson. See 401 Md. at 105, 930 A.2d at 365 (stating that “application of the good faith exception does not hinge upon the affidavit providing a substantial basis for determining the existence of probable cause”). We explained in Patterson why this is so:

“If a lack of a substantial basis also prevented application of the Leon objective good faith exception, the exception would be devoid of substance. In fact, Leon states that ... a finding of objective good faith is [prevented] ... when an officer’s affidavit is ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ Leon, 468 U.S. at 923 [104 S.Ct. 3405]. This is a less demanding showing than the ‘substantial basis’ threshold *108required to prove the existence of probable cause in the first place.”

401 Md. at 105, 930 A.2d at 365-66 (quoting United States v. Bynum, 293 F.3d 192, 195 (4th Cir.2002) (citations omitted)); accord United States v. Washington, 380 F.3d 236, 241-42 (6th Cir.2004); United States v. Danhauer, 229 F.3d 1002, 1007 n. 1 (10th Cir.2000). We further explained in Patterson that the third Leon exception requires an objective inquiry that asks whether “ ‘officers, exercising professional judgment, could have reasonably believed that the averments of their affidavit related to a present and continuing violation of law, not remote from the date of their affidavit, and that the evidence sought would be likely found at [the place identified in the affidavit].’ ” 401 Md. at 107, 930 A.2d at 367 (quoting Connelly, 322 Md. at 735, 589 A.2d at 967). Only if the answer to that inquiry is that no “thoughtful and competent judge” could find that an officer could reasonably believe there was probable cause for the search does the third exception to the good faith doctrine apply. See Leon, 468 U.S. at 926, 104 S.Ct. at 3422, 82 L.Ed.2d at 701. In other words, “[t]he affidavit cannot be so ‘bare bones’ in nature as to suggest that the issuing judge acted as a ‘rubber stamp’ in approving the application for the warrant.” Patterson, 401 Md. at 107, 930 A.2d at 367 (internal quotation marks and citations omitted).

The affidavit in support of the warrant in the present case is not a “bare bones” affidavit. The warrant contains sufficient facts demonstrating, either directly or by reasonable inference, that Petitioner was an upper level distributor of crack cocaine in two Baltimore City neighborhoods and was engaged in that enterprise with his cousin Andrew Tillman; that Petitioner then lived at 3 Six Point Ct., Windsor Mill, Maryland, 21244 (a Baltimore City address); and that he kept at that address expensive assets belonging to him yet not corresponding to his reported income as an employee of Baltimore City.6

*109Further, the two affiants, both of whom had significant experience and expertise in drug investigations, asserted that drug traffickers, as Petitioner was suspected of being, are likely to keep evidence of their drug distribution enterprise in their homes. Reviewing courts, like warrant-issuing magistrates in the first instance, are entitled to give credence to the expertise and experience of police officers in developing knowledge about the practices and proclivities of drug dealers. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740, 749-50 (2002) (stating that such a totality of the circumstances approach “allows officers to draw on their own experience and specialized training to make *110inferences from and deductions about the cumulative information available to them that might well elude an untrained person”).

To be sure, the affidavit in the present case does not provide a direct nexus between Petitioner’s suspected high-level drug distribution and his home as a repository of evidence of his drug activity. But no such direct nexus need be established in this case in order to conclude that the police acted in good faith in relying on the warrant. Several decisions of this Court explain why.

One such case is State v. Ward, 350 Md. 372, 712 A.2d 534 (1998). In that case, we considered “whether there was probable cause [contained in a search warrant] to believe that instrumentalities and evidence of a street murder could be found in the residence and/or motor vehicle of the person identified as the murderer.” Id. at 374, 712 A.2d at 534. We held that there was probable cause for such belief and, in so holding, we rejected the respondent’s contention that there was an insufficient nexus between the item sought (the murder weapon or, at least, evidence that the respondent owned or possessed a firearm) and the places to be searched (the respondent’s home and car). Id. at 377-78, 712 A.2d at 536.

In reaching that conclusion, we relied on an earlier decision, Mills v. State, 278 Md. 262, 363 A.2d 491 (1976), as well as decisions from our sister jurisdictions that “sustained warrants, without any express evidence of nexus,” when the affidavits “contained probable cause to believe that a crime of violence, involving the use of a weapon, had been committed, that the defendant was the criminal agent, and that the defendant resided at the place to be searched.” See Ward, 350 Md. at 378-386, 712 A.2d at 536-40. We also relied in Ward on a passage from United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970), a case involving prosecution for theft from the mails:

[T]his court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on *111direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property.

Ward, 850 Md. at 379, 712 A.2d at 537 (noting our favorable treatment of Lucarz in Mills) (internal quotation marks and citations omitted). We added:

Concrete firsthand evidence that the items sought are in the place to be searched is not always required in a search warrant [.] The question is whether one would normally expect to find those items at that placet.] We think it clear that [the defendant’s] residence would be a logical place to search for the weapon and clothing used in the crime.

Ward, 350 Md. at 383, 712 A.2d at 539 (quoting Blount v. State, 511 A.2d 1030, 1033 (Del.1986)). We recognized in Ward that, even though the affidavit contained no facts indicating that the murder weapon and related evidence would be found in the respondent’s home, there was sufficient evidence to infer a nexus between the two, or at the least, to defer to the magistrate’s drawing such an inference. See 350 Md. at 386, 389, 712 A.2d at 540, 542.

Holmes v. State, 368 Md. 506, 796 A.2d 90 (2002), a case factually closer to the present case, is to like effect. That case involved a challenge to the issuance of a warrant to search the home of a suspected drug dealer. Holmes argued that the warrant affidavit did not establish a nexus between a single instance of his suspected involvement in drug dealing and his home as the repository of evidence of that activity. We disagreed, relying in large part upon the reasoning of Ward, Mills, and a number of federal cases that “approach! ] the nexus issue in terms of pure deductive reasoning.” Id. at 522, 796 A.2d at 99 (citing United States v. Feliz, 182 F.3d 82 (1st Cir.1999); United States v. Cruz, 785 F.2d 399 (2d Cir.1986); United States v. Hodge, 246 F.3d 301 (3d Cir.2001); United States v. Williams, 974 F.2d 480 (4th Cir.1992); United States v. McClellan, 165 F.3d 535 (7th Cir.1999); United States v. *112Riedesel, 987 F.2d 1388 (8th Cir.1993); United States v. Terry, 911 F.2d 272 (9th Cir.1990); United States v. Reyes, 798 F.2d 380 (10th Cir.1986)).

We recognized that “the mere observation, documentation or suspicion of a defendant’s participation in criminal activity will not necessarily suffice, by itself, to establish probable cause that inculpatory evidence will be found in the home.” Id. at 523, 796 A.2d at 101 (internal citations omitted). We added that “[t]here must be something more that, directly or by reasonable inference, will allow a neutral magistrate to determine that the contraband may be found in the home.” Id. at 523, 796 A.2d at 101 (internal citations omitted). We observed, however, that

[t]he reasoning, supported by both experience and logic, is that, if a person is dealing in drugs, he or she is likely to have a stash of the product, along with records and other evidence incidental to the business, that those items have to be kept somewhere, that if not found on the person of the Defendant, they are likely to be found in a place that is readily accessible to the Defendant but not accessible to others, and that the Defendant’s home is such a place.

Id. at 521-22, 796 A.2d at 100. We held that the facts set forth in the warrant rendered Holmes’s case one that “[a]t the very least [ ] would fall within the realm of a marginal case in which ... deference must be given to the warrant.” Id., 368 Md. at 523, 796 A.2d at 101.

Holmes, Ward and Mills all involved warrants that were deemed to have satisfied the Fourth Amendment because, in each, there were sufficient facts alleged to permit at least a substantial basis for a reasonable inference of a nexus between the suspected criminal activity and the suspect’s home. Here, of course, we are beyond determining whether the warrant satisfies the Fourth Amendment, because we have accepted that it does not. Therefore, we need only decide whether the warrant affidavit was so lacking in indicia of probable cause of a nexus between Petitioner’s drug activity and his home as a repository of evidence of that activity as to render official *113belief in its existence entirely unreasonable. If thoughtful and competent judges could disagree on this point, then it follows that the police relied in good faith upon the warrant.

In my view, the facts alleged in the warrant affidavit are sufficient to allow reasonable officers, exercising their professional judgment, to believe that there was a fair probability that Petitioner’s house contained evidence of his suspected drug activity. Therefore, the police could rely in good faith upon the warrant directing them to search Petitioner’s home for such evidence. I therefore would affirm the judgment of the Court of Special Appeals, which comes to the same conclusion.

Judge ADKINS has authorized me to state that she joins in the opinion.

. Article 26 provides:

That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.

Although Article 26 does not expressly address warrantless searches and seizures, this Court has long interpreted it to prohibit unreasonable searches and seizures under the same circumstances as does the Fourth Amendment. See, e.g., Givner v. State, 210 Md. 484, 492-93, 124 A.2d 764, 768 (1956); Miller v. State, 174 Md. 362, 371, 198 A. 710, 716 (1938).

. This is not the case to consider breaking from current Maryland law on this subject because the issue was neither briefed nor argued. See Garner v. Archers Glen Partners, Inc., 405 Md. 43, 46, 949 A.2d 639, 641 (2008) (stating that "appellate court[s] should use great caution in exercising [ ] discretion to comment gratuitously on issues beyond those necessary to be decided”); accord People’s Counsel for Balt. County v. Loyola College in Md., 406 Md. 54, 92 n. 29, 956 A.2d 166, 189 n. 29 (2008).

. As does the majority, I include in my reference to Petitioner's “home” the vehicles that were also searched pursuant to the warrant.

. The Supreme Court’s adoption of the "substantial basis” test reflects the Court’s strong preference that police act with a warrant, rather than without one. As the Court stated long ago in United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684, 687 (1965), "a search under a warrant may be sustainable where without one it would *107fail.” This deference to the decision of the magistrate to issue a warrant means that “a reviewing court is not to conduct a de novo probable cause determination,” Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721, 724 (1984), but instead is to decide only "whether the evidence viewed as a whole provided a 'substantial basis’ for the Magistrate’s finding.” Id. at 732-33, 104 S.Ct. at 2088, 80 L.Ed.2d at 727.

. I must assume the lack of a substantial basis for the magistrate's probable cause decision because this Court denied the State’s conditional cross-petition raising that question. We do not consider questions on which we declined to grant certiorari review. See e.g., Jackson v. State, 364 Md. 192, 195 n. 2, 772 A.2d 273, 275 n. 2 (2001).

. Unlike the majority, I am satisfied that the affidavit contains sufficient evidence of Petitioner’s connection to a drug trafficking enterprise. *109The Affiants reported that, during their three-week investigation of drug trafficking in Edmondson Village and Cherry Hill, "multiple confidential informants” advised the police that "Gary Samuel Agurs [Petitioner] and associates were upper level distributors supplying crack cocaine in and around these locations." Both of the two informants specifically identified in the affidavit had proven themselves reliable in connection with prior drug arrests.

One of the informants identified Petitioner as a Baltimore City employee and described him “as an upper level supplier of the suspected narcotics to the street dealers in the area.” The police confirmed that Petitioner is employed at the Baltimore City Department of Public Works. And, during surveillance of Petitioner, the police witnessed an incident between him and another man that suggested a possible transfer of drugs. The same confidential informant disclosed that Petitioner was assisted by his cousin, "Dru,” whom police later identified as Andrew Tillman. The police conducted surveillance of Tillman, setup two controlled purchases from him of crack cocaine in Cherry Hill, and observed Tillman engage in other suspected drug transactions.

Finally, the police observed Petitioner and Tillman meet outside an "auto detail shop,” where the police watched Petitioner "entering the passenger side of [Tillman’s] car. After approximately two minutes, [Petitioner] exited the vehicle and Andrew Tillman quickly left the area.”

The observations of the police, considered in their totality "and giving appropriate deference to what the officers reasonably could infer from those observations,” provide some corroboration of the reliable informant’s report that Petitioner is a high level drug distributor. Given that not every detail of even a mere "tipster’s” reports need be corroborated for it to be accorded some reliability, see generally Gates, 462 U.S. at 245-46, 103 S.Ct. at 2336, 76 L.Ed.2d at 553, I am persuaded that the police could have reasonably believed, based on information in the affidavit, that there was a fair probability that Petitioner was trafficking in illegal drugs.