Davis v. State

¹⁴⁸ MURPHY, Chief Judge. In the Circuit Court for Baltimore City, the Honorable William D. Quarles convicted Robert Davis, appellant, of possession of marijuana with intent to distribute. The State’s evidence, seized from appellant’s residence during the execution of a search warrant issued by the Honorable Kathleen M. Sweeney of the District Court of Maryland for Baltimore City, was sufficient to prove him guilty of that offense. Appellant does not argue to the contrary.

He does argue, however, that the State’s evidence was acquired in violation of his Fourth Amendment right to protection from unreasonable searches, and he presents a single question for our review: Whether the trial court erred in denying the appellant’s motion to suppress all evidence during the execution of the “no-knock” warrant issued in this case. For the reasons that follow, we shall answer “no” to this question and affirm the judgment of the circuit court. Background Prior to trial, appellant filed a motion to suppress the evidence on the grounds that (1) the no-knock provision in the search warrant was invalid, 1 and (2) the search warrant lacked probable cause. Judge Quarles denied that motion in an oral opinion that included the following findings and conclusions: Okay.

Pending ... are the motions of the defendants for suppression of evidence. The motion is based on the contention that the warrant executed in this case lacked probable cause, and that the entry to effect that warrant was unconstitutional because it was a no-knock entry. The warrant was issued on February 4 of the year 2000 by a district court judge. The warrant itself contains a section detailing the experience of the affiants, Police Officer Christopher O’Ree and Police Officer Jonathan Brickas. ¹⁴⁹ And the warrant, as I said, contains their experience, which includes several hundred arrests for narcotics violation, in excess of seventy warrants done, and further details training in undercover and uniform capacities.

The warrant recites the information received from a confidential source relating to marijuana sales in the 5100 block of Park Heights Avenue. The source details knowledge of persons known to it as “Meatball” and “Biggie” who are, respectively, defendants Robert Davis and Damont Adams. It is alleged in the warrant that they maintained an apartment at 4011 Boreman Avenue on the second floor, where they stored marijuana. And it is also alleged that a black two-door Nissan Sentra is used for the transport of such marijuana.

The police, in the affidavit, recite their knowledge of the 5100 Block of Park Heights Avenue as an area known to them and others for its high level of marijuana sales. The officers recite their observations of the defendants in the 5100 block of Park Heights Avenue. The defendant’s admission that they had operated a black Nissan Sentra, which the affiants also observed in the driveway of the— observed the defendants drive away in the Nissan. The confidential source also provided information with respect to the interior of the Boreman Avenue address, which information was verified by the affiants.

The confidential informant, who is discussed in the affidavit—the information relating to the reliability of that informant is detailed. And that reliability includes the seizure of substantial amounts of narcotics and firearms and cash. The affiants, relying on their experience and training, state their belief that they are likely to encounter firearms in the Boreman Avenue address and request permission for a no-knock entry, which permission was granted. A probable cause involves the determination of sufficient facts to show an interconnectedness between a crime, a criminal act, and a location.

The warrant sufficiently de ¹⁵⁰ scribes the connection between the defendants and the location and the allegations of marijuana dealing, and thus meets the rudiments of probable cause. Somewhat more vexing is the consideration whether the warrant itself provides say a sufficient basis for a no-knock entry. The cases, which have been discussed by the defense, and reviewed by the Court, largely involve situations in which law enforcement officers were confronted with situations which post entry were determined either to rise to level of exigency permitting no-knock entry or failed to meet that standard, and thus requires suppression. No cases were found in which the issue presented was, in this context, in which there was pre-raid approval for a no-knock entry on a set of facts which essentially recite the officer’s general and specific experience in law enforcement, from which they extrapolate the need, as they see it, for a no-knock entry.

It is, of course, well-settled in search and seizure law that the issuing judge is permitted to rely upon the experience of law enforcement officers and the conclusions which reasonably flow from that experience in making the probable cause determination. I see no reason to depart from that pattern when the examination is not the presence or absence of probable cause, but is instead the existence of exigencies meriting a no-knock entry. It is, in any event, a close question for the Court. However, crediting the affiants’ experience which involves hundreds of narcotics arrest, extensive training, and considerable experience in narcotics law enforcement, I cannot conclude that their conclusion with respect to the likeliness of firearms on the property is an irrational one.

Accordingly, I find that the agents, the police officers, acted appropriately in reliance upon the no-knock authority given by the warrant and conclude that the motion to suppress be denied. ¹⁵¹ Appellant preserved the suppression issue for our review by proceeding on an “agreed statement of facts” dictated into the record by the prosecutor. 2 ¹⁵² Standard for Issuing a “No-Knock” Warrant Appellant first contends that Judge Quarles failed to apply the proper standard of review to Judge Sweeney’s issuance of the search warrant at issue in this case. 3 We disagree. From our review of Richards v. Wisconsin, 520 U.S. 385 , 117 S.Ct 1416 , 137 L.Ed.2d 615 (1997), we are persuaded that, when the suppression hearing court reviews the issuing judge’s decision to include a no-knock entry provision in the search warrant, the suppression hearing court should uphold that provision as long as the warrant application provided the issuing judge with a substantial basis for concluding that there existed a reasonable suspicion that, under the circumstances in which the warrant was to be executed, the knock and announce requirement would be dangerous to the executing officers or would result in the destruction of the items described in the search warrant. 4 ¹⁵³ In Richards v. Wisconsin, supra, the United States Supreme Court held that, when determining whether to suppress evidence seized by law enforcement officers who executed a search warrant without announcing their authority and purpose, ... in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock- and-announce requirement. In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard—as opposed to a probable cause requirement— strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries.

This showing is not high, but the police ¹⁵⁴ should be required to make it whenever the reasonableness of a no-knock entry is challenged. Richards, 520 U.S. at 394-95 , 117 S.Ct. 1416 (1997) (citations omitted). In Richards , although the law enforcement officers did not have no-knock authorization in the search warrant, they proceeded to enter without knocking and announcing based upon observations that they made when they arrived on the scene of the premises to be searched. Subsequent to Richards , this Court has considered two cases in which we were asked to order suppression of evidence seized as a result of no-knock entries: Wynn v. State, 117 Md.App. 133 , 699 A.2d 512 (1997), rev’d on other grounds, 351 Md. 307 , 718 A.2d 588 (1998) and Lee v. State, 139 Md.App. 79 , 774 A.2d 1183 , cert. granted, 366 Md. 246 , 783 A.2d 221 (2001).

In each of those cases, the search warrant did not include a no-knock provision, and the suppression hearing court accepted the testimony of the law enforcement officers who explained why they believed it was necessary to serve the warrant without announcing their purpose and authority. In each case, we applied Richards , affirming the judgment in Wynn, and reversing the judgment in Lee on the ground that “[t]he record is bare of any evidence of exigent circumstances that could possibly eliminate the constitutional necessity to knock and announce.” Lee, 139 Md.App. at 91 , 774 A.2d 1183 . In Dashiell v. State, 143 Md.App. 134 , 792 A.2d 1185 , No. 1182, September Term, 2001 (2002), we rejected the contention that officers serving a “no-knock” warrant had no right to conduct a pre-search pat-down of the persons on the premises when the warrant was served. Although that case did not involve a challenge to the “no-knock” provision in the search warrant, Judge James Eyler explained that “the nature of drug trafficking” compounded “the degree of danger present at [the scene of the search],” stating: Persons associated with the drug business are prone to 'carrying weapons.

See Ybarra [v. Illinois], 444 U.S. [85] at 106[, 100 S.Ct. 338 , 62 L.Ed.2d 238 ] (Rehnquist J., dissenting) (“[F]irearms are as much ‘tools of the trade’ as are ¹⁵⁵ most commonly recognized articles of narcotic paraphernalia”) (quoting United States v. Oates, 560 F.2d 45, 62 (C.A.2 1977)); Whiting v. State, 125 Md.App. 404, 417 , 725 A.2d 623 (1999) (nexus between drugs and guns); Banks v. State, 84 Md.App. 582, 591 , 581 A.2d 439 (1990) (“[0]ne who is involved in distribution of narcotics, it is thought, a faction, would be more prone to possess, and/or use, firearms, or other weapons, than a person not so involved.”). The connection of guns and drugs exposes officers to greater risks when confronting suspects who deal drugs. See [Michigan v.] Summers, 452 U.S. [692] at 702[, 101 S.Ct. 2587 , 69 L.Ed.2d 340 ] (even where “no special danger to the police [was] suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence.... The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”); People v. Broadie, 37 N.Y.2d 100, 112 , 371 N.Y.S.2d 471 , 332 N.E.2d 338 (N.Y.1975) (“Because of their illegal occupation, however, drug traffickers do often commit crimes of violence against law enforcement officers”).

In the application for the search warrant, affiants stated they were keenly aware through their training and experience “that individuals in the distribution of controlled dangerous substances ... carry all types of weapons which puts the officers in danger during the execution of search and seizure warrants.” 143 Md.App. at 134 , 792 A.2d at 1196 . Due to the preference that searches be conducted pursuant to warrants issued by judicial officers, officers who obtain a search warrant have the benefit of (1) the good faith exception to the exclusionary rule, (2) a more deferential standard of review by the suppression hearing court, 5 and (3) ¹⁵⁶ the presumption that the affidavit does establish probable cause for the search. Herbert v. State, 136 Md.App. 458, 485-494 , 766 A.2d 190 (2001). This preference should be equally applicable to “no-knock” warrants.

If at the time he or she is applying for a search warrant, a law enforcement officer believes that the circumstances under which the warrant will be executed justify dispensing with the knock and announce requirement, the officer should seek no-knock authorization from the warrant issuing judge. If the judge is satisfied that the request for a no-knock entry is reasonable, the judge should include in the warrant a mandate that, in substantially the following form, 6 provides: Good cause being shown therefor, the executing law enforcement officers are authorized to enter the premises to be searched without giving notice of their authority and purpose. Moreover, when they apply for no-knock authorization in a search warrant, law enforcement officers do not have to include in the affidavit the kind of search scene case-specific, ¹⁵⁷ particularized circumstances of exigency that they would have to establish during the suppression hearing if they did not have a no-knock provision in the warrant and made the no-knock entry determination on their own. 7 In the case at bar, the affidavit at issue included the following statements: Based on information provided from an extremely reliable confidential source of the detailed information on “Meatball” and Damont Adams marijuana sales and storage in 4011 Boarman Ave. The corroborated information of the source.

Your Affiant believes that “Meatball” and Damont Adams are storing large amounts of marijuana in 4011 Boarman Ave. Your Affiant prays of the issuance of a search and seizure warrant for the address of 4011 Boarman Ave., the vehicle known as a two door Nissan Sentra tag # FXF894, a black male known as “Meatball” and Damont Adams for violations of the Maryland C.D.S. laws. The prior experience of Your Affiant indicates that narcotic/drug dealers/users have, carry and use Firearms to protect their operations. This protection is both from the Police and other drug dealers/users who may try to seize the drugs or moneys gained from the operation.

These Firearms include handguns, rifles and shotguns. These weapons allow the drug dealer/user to operate freely and openly, also enabling them to retaliate against anyone they fell [sic] threatened by. The possession of these weapons is an extension of