Connelly v. State

MURPHY, Chief Judge. This case focuses upon the good faith exception to the exclusionary rule first articulated in United States v. Leon, ⁷²¹ 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984); that case holds that the Fourth Amendment exclusionary rule does not preclude the use of evidence obtained by officers acting in objectively reasonable, good faith reliance on a facially valid search warrant issued by a detached and neutral magistrate but later determined to be unsupported by probable cause. The question before us is whether, under Leon , evidence of illegal lottery and gambling activities seized pursuant to a search warrant, which the State now concedes was not issued upon probable cause, was nevertheless admissible at trial under the good faith exception. I. The application for the warrant (with the accompanying affidavit) was submitted by Detectives James Duffey and Gary Pfaff of the Baltimore County Police Department on November 17, 1988.

The affiant officers represented that probable cause existed to believe that the laws relating to illegal lottery and gambling, Maryland Code (1957, 1987 Repl.Vol.), Art. 27, §§ 356 through 363, were being violated by Michael Connelly and James Edenton at Connelly’s residence and place of business, a video rental store, both of which were located at specified addresses in Essex, Maryland. After stating the law enforcement experience of each affiant, the application described, in considerable detail, the methodology by which an illegal lottery operation is conducted; that it is “managed in echelons of authority increasing up the ladder with an increasing responsibility of money and work or action held”; that most of the persons involved in these activities were “writers or runners” who make the “street contacts” and accept bets for cash on any three-digit number; that the writer passes “the action collected for the day on to someone up the ladder before a predetermined time or his action will not be accepted”; that the writer may not pass the money collected “up the line” on a daily basis as winning numbers “may be paid by a runner to his ⁷²² customers from a bankroll which is tallied up weekly”; and that, with respect to the three-digit number selection, a wager can be placed “on the outcome of the Maryland State Lottery number or the street number which is derived by the pari-mutuels at a specified horse track.” The affiants next set forth further intricate details of these illegal activities, which involved other persons known as clerks; that clerks tally the amount of money played on the various numbers, and have authority to “lay off” wagers to other organizations; that clerks pass their “work” to the “bank,” which keeps a tally sheet on all street runners; and that the bank is in contact with the “backer,” who has no contact with the runners, but provides “money for bail or legal counsel to the lower echelon people.” The application states that the affiant Duffey knows that the illegal lottery number is based on the State lottery number, which is drawn at 7:30 p.m. The affiants stated in the application that “[i]n February, 1988,” a confidential informant advised that Connelly and Edenton “were conducting illegal gambling activities and were meeting in Connelly’s video store ... in the evenings.” As a result of this information, the affiants said that “surveillance was conducted on numerous occasions at Connelly's store”; that at approximately 7:25 p.m. on the days “surveilled,” Edenton would enter Connelly’s store and talk with him; that the two men looked at “sheets of paper”; that on one such occasion, Connelly produced the papers from his coat pocket while, on other occasions, Edenton produced the papers from his pocket and showed them to Connelly; that at 7:35 p.m., Edenton would leave the store but “at no time” did he ever rent or purchase a video tape. According to further sworn averments in the application, surveillance was conducted on Edenton “Monday through Friday, from 4 p.m. to 7:30 p.m., over several months”; that it disclosed that at 4:30 p.m., Edenton would leave his residence and drive, in a designated order, to a number of different taverns, bars, and garages, stopping only briefly at each; that at one bar, Detective Duffey observed a man ⁷²³ ask Edenton for his “winnings,” after which Edenton paid the man “from a roll of money in his pocket.” Next, the application outlined that at approximately 6:30 p.m., one Gerald Taylor, a bookmaker with an arrest record, would enter Edenton’s residence carrying small pieces of paper; that at 6:40 p.m., one Betty Farmer would enter Edenton’s residence, remaining for 20-30 minutes, after which Edenton would drive to the residence of one Larry Short, who also was previously arrested for bookmaking; and that upon leaving this location, Edenton would go to Connelly’s video store, arriving before 7:30 p.m.

The affiants recited that “Edenton’s daily activities are characteristic of a bookmaker collecting bets and making payoffs during those times consistent with illegal gambling activities. Betty Farmer and Gerald Taylor’s daily arrivals at Edenton’s house are characteristic of runners in a bookmaking operation. On every occasion Edenton was surveilled driving to Essex, he always arrived at Connelly’s residence or video store prior to the Maryland State Lottery number being drawn. Your affiant, Detective Duffey, feels Edenton reports to and works for Michael Connelly, furthering an illegal gambling scheme.” (Emphasis in original.) Finally, the affiants set forth Edenton and Connelly’s prior conviction records for bookmaking and gambling, which were known to affiants at the time of their surveillance.

The warrant was executed by the affiants on November 28, 1988, eleven days after its issuance. Incriminating evidence of illegal lottery and gambling was found in Connelly’s residence and video store, and he was subsequently charged with multiple violations of the State’s lottery and gambling laws. Prior to trial in the Circuit Court for Baltimore County, Connelly moved to suppress the evidence; he claimed that there was no probable cause to support the issuance of the ⁷²⁴ warrant. He argued that although the affidavit and application for the search warrant was made in November, 1988, it was based on surveillance conducted in February, 1988.

He further argued that the “times” and “numerous occasions” described in the affidavit were not specific as to dates and thus could have been in March, April or May, months before the application for the warrant was made. Connelly argued that in these circumstances, the State’s reliance on Leon’s good faith exception to the exclusionary rule was inappropriate. Not to include the dates when the observations were made, according to Connelly’s argument, misled the court and prevented him from “disputing anything that is in the warrant.” Connelly made clear that he was not accusing the affiants of perjury, but remarked that the warrant application was “skillfully drawn ... to evade any specificity whatsoever.” In denying the motion to suppress, the court (Buchanan, J.) said: “It’s not a question ... whether or not I would have signed [the warrant]. The question is that under Leon , they go to the magistrate, they get a warrant based on information that really was stale or lacked probable cause, and the magistrate signed it.

The magistrate is the one that made the mistake. The exclusionary rule is designed to deter the misconduct of the police rather than punish the errors of the judicial magistrate. I think the good faith exception applies.” Following convictions for possessing lottery tickets, keeping a place for the sale of lottery tickets, and two counts of gambling on a sporting event, Connelly appealed. He again contended that the warrant was invalid and that nothing in Leon permitted the incriminating evidence to be introduced at his trial.

The Court of Special Appeals, in an opinion by Judge Rosalyn Bell, determined that the affidavit was not sufficiently specific to support a finding of probable cause and that it was stale. Connelly v. State, 82 Md.App. 358 , 571 A.2d 881 (1990). It said that nothing in the affidavit indi ⁷²⁵ cated that the individuals under surveillance were engaged in a continuing enterprise, and that there was a considerable probability that their activities, “given the time lag, were no longer being continued.” 82 Md.App. at 364 . Moreover, the court agreed with Connelly that because of the vagueness of the warrant application, as to the specific dates of surveillance, he could not attack the warrant’s validity in the trial court under Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978), to establish that a material omission was made in the affidavit, either intentionally or with reckless disregard for the truth, or show that Connelly was incorrectly identified as the person under surveillance.

As to staleness, the intermediate appellate court, relying upon Peterson v. State, 281 Md. 309, 314 , 379 A.2d 164 (1977), cert. denied. 435 U.S. 945 , 98 S.Ct. 1528 , 55 L.Ed.2d 542 (1978), concluded that because the affidavit supporting the warrant was executed so many months after the time of the affiants’ investigatory observations, probable cause was lacking for that reason. As to Leon , the court held that the trial judge was patently wrong in his determination that that case required, once a magistrate signed the warrant, that there could be no further review of the conduct of the police officers in executing the warrant. The court said that it could not reach a conclusion on the good faith issue because it involved a question of fact which the trial court did not resolve — namely, whether the police officers could have harbored a reasonably objective belief in the existence of probable cause, as set forth in the application for the warrant. If they could, the court said, and the good faith exception was therefore applicable, then the search, “despite the lack of specificity and staleness in the warrant, would be valid and the items obtained from the search were properly admitted into court.” 82 Md.App. at 366 , 571 A.2d 881 .

Accordingly, the intermediate appellate court, by its mandate, remanded the case to the trial court “for the purpose of conducting a suppression hearing on the avail ⁷²⁶ ability of the good faith exception.” Id. at 369 , 571 A.2d 881 . If, on remand, the State is found to be entitled to the exception under Leon , the court said that the convictions would stand; if not, the motion to suppress should be granted and Connelly afforded a new trial. We granted certiorari to consider the significant issue of public importance involved in the case.

II

As stated by the Supreme Court in Franks v. Delaware, supra, 438 U.S. at 164 , 98 S.Ct. at 2680 , the bulwark of the Fourth Amendment protection is the Warrant Clause, which requires, absent certain exceptions, that the police obtain a search warrant, based upon a showing of probable cause, before embarking upon a search. In that case, the question before the Court was whether, after a search warrant had been issued, the defendant had a right “to challenge the truthfulness of factual statements made in an affidavit supporting the warrant.” Id. at 155 , 98 S.Ct. at 2676 . In concluding that there was such a right, the Court held that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at 155-56 , 98 S.Ct. at 2676 . The Court indicated that if the defendant proves at that hearing, by a preponderance of the evidence, “with the affidavit’s false material set to one side, [that] the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided.” Id.

Because the Fourth Amendment demands a factual showing sufficient to comprise probable cause, the Court said that the showing must be truthful “in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” Id. at 164-65 , 98 S.Ct. at 2681 . As ⁷²⁷ to this, the Court stated “that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.” Id. at 165 , 98 S.Ct. at 2681 . It would be an unthinkable imposition upon the authority of the magistrate, the Court said, “if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment.” Id. The Court declined to extend the rule, however, “beyond instances of deliberate misstatements, and those of reckless disregard,” noting that the magistrate is otherwise the sole protection of a citizen’s Fourth Amendment rights “where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination.” Id. at 170 , 98 S.Ct. at 2683 .

The Court concluded in Franks that there is “a presumption of validity with respect to the affidavit supporting the search warrant.” Id. at 171 , 98 S.Ct. at 2684 . To mandate an evidentiary hearing, the Court required that the attack on the warrant “must be more than conclusory and must be supported by more than a mere desire to cross-examine.” Id. Rather, the Court required “allegations of deliberate falsehood or of reckless disregard for the truth [which] must be accompanied by an offer of proof.” Id. The Court said that the allegations “should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons.” Id. “Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Id.

Continuing, the Court said that “[a]llegations of negligence or innocent mistake are insufficient.” Id. In United States v. Leon, supra, 468 U.S. at 914 , 104 S.Ct. at 3416 , the Court explained that because reasonable minds may differ as to whether a particular affidavit establishes probable cause, the preference for warrants is most appropriately effectuated by according great deference to a magistrate’s determination. Citing the Franks case, the ⁷²⁸ Court stated that the deference accorded to a magistrate’s determination of probable cause “is not boundless ... [and] does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based.” Id. It observed that reviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause; that sufficient information must be presented to the magistrate to allow that official to determine probable cause; and the magistrate’s action cannot be a mere ratification of the bare conclusions of others.

Id. at 915, 104 S.Ct. at 3416 . The Court emphasized that “the exclusionary rule was designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at 916 , 104 S.Ct. at 3417 . It said that “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Id. at 918 , 104 S.Ct. at 3418 . In this regard, the Court questioned whether the exclusionary rule has a deterrent effect when the offending officers “acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.” Id.

As to the standard of reasonableness, the Court determined that it was an objective, rather than a subjective one, and required that “officers have a reasonable knowledge of what the law prohibits.” Id. at 919 n. 20, 104 S.Ct. at 3419 n. 20. Thus, where the officers' conduct is objectively reasonable, the Court said that excluding the evidence would not further the ends of the exclusionary rule in any appreciable way. This