Davis v. State

BELL, C.J. The Petitioners, Robert Davis and Damont Adams, were arrested, charged with, and convicted of, possession of marijuana with intent to distribute and a handgun violation. The arrests, charges and convictions followed the search of 4011 ³⁹⁷ Boarman Avenue, in Baltimore City, by officers of the Baltimore City Police Department, pursuant to a search and seizure warrant. The warrant incorporated by reference the affidavit of the police officer affiants, O’Ree and Brickus. In that affidavit, they indicated that a “rushed or no knock forced entry” of the premises would be required.

The issue that this case presents is whether, where there is no statute so providing, a judge is authorized to issue a “no-knock” warrant, on the basis of which the police may make a “no-knock” entry to execute a search and seizure warrant. 1 The Court of Special Appeals affirmed the judgments of conviction, holding both that a “no-knock” entry was justified by the exigent circumstances detailed in the search and seizure warrant, thus affirmatively validating the propriety of the issuance of a “no-knock” warrant, and that, in any event, the “good faith” exception to the exclusionary rule “saved” the admissibility of the evidence. 2 We shall reverse. After conducting an investigation, police officers O’Ree and Brickus applied for, and obtained, a search and seizure warrant for the Boarman Avenue premises, the petitioners, 3 and a ³⁹⁸ black Nissan Sentra, which they alleged was driven by the petitioners and associated with their operation. The application for the search warrant, which included the officers’ affidavit, enumerated the applicants’ considerable experience, 4 and detailed their investigation, 5 including the conclusions they ⁴⁰⁰ reached as a result of that investigation. Then, the applicants submitted: “The prior experience of your Affiant [sic] indicates that nareotic/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 openly and freely; also enabling them to retaliate against anyone they feel threatened by. The possession of these weapons is an extension of the narcotic operation and/or conspiracy being conducted.

Due to the nature of the evidence you [sic] Affiant [sic] is seeking to seize in this investigation, specifically Article 27 Section 275-302 of the Annotated Code of Maryland. Your Affiant [sic] must gain entry quickly and safely into the dwelling. If entry is stalled or delayed the controlled dangerous substance can easily and quickly be destroyed. Therefore, Your Affiant [sic] will attempt to gain entry by the rush or No-Knock forced entry.

This will enable the Entry Team to recover the evidence intact and provide members of the entry team with a margin of safety from weapons, which may be on the scene.” A judge issued the search and seizure warrant. Although the warrant did not do so explicitly, no express provision to that effect being included in the warrant, because it “incorporated by reference” the affidavit of Officers O’Ree and Brickus, which stated their intention “to gain entry by the rush or No-Knock forced entry,” the warrant implicitly authorized a “no-knock entry.” In executing the warrant, the police neither knocked, nor announced their presence or purpose; rather, they gained entry, as they stated that they intended to do, through the use of force. The petitioners were found in a second floor bedroom, in which various weapons and drug paraphernalia also were found. In a refrigerator in that same room, the officers recovered a large ziplock baggie containing 60 smaller baggies of suspected marijuana. ⁴⁰¹ The petitioners moved, pre-trial, to suppress 6 the evidence seized during the search.

Their argument was directed to, and challenged, the sufficiency of the showing the affiants made to justify the issuance of the warrant, which the petitioners characterized as a “no-knock” warrant. More particularly, the petitioners argued, inter alia, that the facts alleged in the affidavit submitted in support of the search and seizure warrant were insufficient to justify a “no-knock entry.” 7 The Circuit Court denied the motion to suppress. It held that, in light of their wealth of experience in the area of narcotics drug enforcement, as detailed in their affidavit, the police officers’ determination that a no-knock entry was required was not “irrational.” It reasoned: “Somewhat more vexing is the consideration whether the warrant itself provides say a sufficient basis for a no-knock forced 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 the level of exigency permitting no-knock entry or failed to meet that standard, and thus require 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 officers’ general and specific experience in law enforcement, from which they extrapolate the need, as they perceive 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. ⁴⁰² “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 closet ] question for the Court. “However, crediting the affiant’s experience which involves hundreds of narcotics arrests, 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.” Both of the petitioners timely appealed. In separate opinions, by different panels of the court, the Court of Special Appeals affirmed the judgments of the Circuit Court. With regard to petitioner Adams, the court, in an unreported opinion, declined to consider whether the affidavit submitted in support of the application for the search and seizure warrant sufficiently alleged facts to authorize a “no-knock” warrant.

Instead, it held that “even if the application for the search warrant did not set forth legally sufficient exigent circumstances justifying a ‘no-knock’ warrant, the evidence seized should not be suppressed under the good faith exception to the exclusionary rule.” The court explained: “Although the good faith exception to the exclusionary rule has not been considered by the appellate courts of this State in the context of a ‘no knock’ warrant, facially valid but later determined to have been issued on an insufficient showing of exigent circumstances, other courts have applied it in that context. U.S. v. Carter, 999 F.2d 182, 184-87 (7th Cir.1993); U.S. v. Moore, 956 F.2d 843, 851 (8th Cir.1992); State v. Hughes, 589 N.W.2d 912, 915-16 (N.D.1999). We find those decisions persuasive and accordingly affirm Adams’s convictions and sentences.” Petitioner Davis’s conviction was also affirmed, as previously indicated. In that case, which the intermediate appellate court reported, see Davis v. State, 144 Md.App. 144 , 797 A.2d 84 (2002), however, the court determined that the affidavit contained sufficient facts to establish a reasonable suspicion of the then existence of exigent circumstances and, thus, to ⁴⁰³ permit a judge to make a pre-entry finding that a “no-knock” entry onto the premises was justified.

Id. at 152-58 , 797 A.2d at 89-93 . Pointing to the experience of the affiant officers, as set forth in their affidavit, the court credited their conclusion that those involved in the drug trade often are dangerous and carry weapons and that drugs are easily and quickly destroyed when entry onto the premises is delayed or stalled. The court further observed that the affidavit indicated that large amounts of drugs had been seized as a result of information supplied by one of their sources, the reliable confidential registered source, that several people resided in the dwelling, and that the petitioner’s co-defendant Adams had several previous arrests for drug violations,” 8 id. at 158 , 797 A.2d at 93 , all of which, it concluded, supported its holding. Alternatively, the intermediate appellate court held that, even if the no-knock entry were illegal in that case, the good faith exception to the exclusionary rule applied to render the evidence seized in the case admissible.

Id. at 159 , 797 A.2d at 93 . The court reasoned: “Other courts have applied the good faith exception to cases involving the issuing of a no-knock search warrant. See United States v. Tisdale, 195 F.3d 70 (2nd Cir.1999); United States v. Carter, 999 F.2d 182 (7th Cir.1993); United States v. Moland, 996 F.2d 259 (10th Cir.1993); United States v. Moore, 956 F.2d 843 (8th Cir.1992); United States v. Gonzalez, 164 F.Supp.2d 119 ,(D.Mass.2001); United States v. Rivera, 2000 WL 761976 , 2000 U.S. Dist. Lexis 7997 (D. Maine 2000); United States v. Brown, 69 F.Supp.2d 518 (S.D.N.Y.1999); United States v. Tavarez, 995 F.Supp. 443 (S.D.N.Y.1998); State v. Van Beek, 591 N.W.2d 112 (N.D.1999); State v. Eason, 245 Wis.2d 206 , 629 N.W.2d 625 (2001).

We agree with those decisions. % ^ sfc Hí “[EJven if we had concluded that Judge Sweeney should not have authorized a no-knock entry in this case, we would not ⁴⁰⁴ reverse appellant’s conviction. Suppressing evidence under these circumstances would not serve the purpose of the exclusionary rule, which is designed to deter police misconduct rather than to punish police for the errors of judges and magistrates. When the police officers follow the proper course of conduct by seeking a no-knock search warrant, the good faith exception applies.” Id. at 160, 797 A.2d at 94 . This Court granted the petitions for certiorari in both cases, Adams v. State, 369 Md. 570 , 801 A.2d 1031 (2002); Davis v. State, 370 Md. 268 , 805 A.2d 265 (2002), to address whether the intermediate appellate court correctly resolved the issues they presented.

II

In this Court, petitioner Davis challenges, once again, the sufficiency of the factual support offered to justify the issuance of a “no-knock” warrant. He argues that, taken as a whole, the factual averments simply are insufficient, under Richards v. Wisconsin, 520 U.S. 385 , 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997), to justify use of a “no-knock” entry to execute the subject warrant. In that case, the petitioner notes, the Supreme Court held that police officers may not rely on general allegations that narcotics investigations, per se, present circumstances that warrant no-knock entries, 520 U.S. at 388 , 117 S.Ct. at 1417 , 137 L.Ed.2d at 620 , and that, in each case, the police and/or the court, as the case may be, must consider whether the facts of that particular case constitute an exigency sufficient to warrant a no-knock entry. Id. at 395 , 117 S.Ct. at 1421 , 137 L.Ed.2d at 625 .

Davis characterizes the invocation, by the applicants for the “no-knock” warrant, of their experience to establish that the petitioners, the suspected marijuana dealers, “ha[d], carried] and use[d] Firearms to protect their operations” as “a conclusory statement that drugs and weapons go hand-in-hand” and submits that that use of experience, to create a reasonable suspicion that “[i]f entry is stalled or delayed the controlled ⁴⁰⁵ dangerous substance can easily and quickly be destroyed” results in a “considerable overgeneralization,” of the kind against which the Richards Court cautioned. See 520 U.S. at 393 , 117 S.Ct. at 1421 , 137 L.Ed.2d at 623 . Nor does petitioner Davis agree that the additional factors identified by the Davis court provide the requisite showing: “Even with this additional information, the affidavit fails to establish the requisite reasonable suspicion that exigent circumstances existed to justify not knocking and announcing. Rather, the ‘large amount of drugs’ supports the petitioner’s position that the danger of destruction of evidence was insignificant, the fact that ‘several people resided in the dwelling’ was not alleged to create any extra danger, and unlike the defendant in Wynn [v. State, 117 Md.App. 133 , 699 A.2d 512 (1997) ], the fact that Adams had ‘several arrests for drug violations’ does not in any way suggest that Adams had a propensity for violence.” Both of the petitioners deny that the “good faith” exception to the warrant requirement is applicable to save the admissibility of the evidence in this case.

This is so, they submit, because the police could not have acted objectively and reasonably because the offer of conclusory statements based on unsupported assumptions, rather than case specific and particularized facts, has been rejected, by Richards , as a sufficient basis for establishing a reasonable suspicion of the existence of exigency warranting a “no-knock” entry. As petitioner Adams puts it, “to apply the ‘good faith’ exception to a no-knock authorization based on an affidavit’s categorical statements about drug dealers is to create just another prohibited per se rule.” The State, of course, does not agree. On the contrary, it proffers three arguments as to why this Court, as did the Court of Special Appeals, should affirm the judgment of the Circuit Court. With respect to the sufficiency of the factual allegations in support of a “no-knock” entry, it argues, pointing to the factors the intermediate appellate court identified in Davis, that they were of “details specific to the case and supported the inference that knocking and announcing could ⁴⁰⁶ pose a danger to police officer or risk the destruction of evidence.” Also significant to the State, is the fact that authorization for the “no-knock” entry was sought from a judicial officer, in the request for the search . and seizure warrant, as to which a different, more deferential, standard of review from that applicable to an on the scene determination by the officers applies.

Application of that standard to the case sub judice, the State submits, properly resulted in the trial judge upholding the no knock entry. Referencing the test of objective good faith set out in United States v. Leon, 468 U.S. 897 , 922 n. 23, 104 S.Ct. 3405 , 3420 n. 23, 82 L.Ed.2d 677, 698 (1984), “whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization,” the State argues that the applicants “relied in good faith on the warrant’s authorization to conduct a no-knock entry, and thus, the evidence seized is admissible pursuant to the good faith exception to the exclusionary rule.” Finally, the State submits that, assuming a violation of the knock-and-announce rule, the evidence would be admissible pursuant to the independent source and inevitable discovery doctrines. 9 ⁴⁰⁷ III. The Fourth Amendment of the United States Constitution provides: “The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Its clear and unequivocal purpose is to protect against unreasonable searches and seizures and, because it recognizes “ ‘the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,’ ” Oliver v. U.S., 466 U.S. 170, 178 , 104 S.Ct. 1785 , 1741, 80 L.Ed.2d 214, 224 (1984) (quoting Payton v. New York, 445 U.S. 573, 601 , 100 S.Ct. 1371, 1387 , 63 L.Ed.2d 639, 660 (1980)). See also, Wilson v. Layne, 526 U.S. 603, 610 , 119 S.Ct. 1692, 1697 , 143 L.Ed.2d 818, 827 (1999) (“ ‘the house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose,’ ” quoting Semayne’s Case, 77 Eng.

Rep. 194, 195 (K.B.1603)); Unit ⁴⁰⁸ ed States v. United States Dist. Ct. for Eastern Dist. of Mich., 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752, 764 (1972) (“[P]hysieal entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”), it thus protects the rights of citizens to “retreat into his [or her] own home and be free from unreasonable governmental intrusion.” Kyllo v. United States, 533 U.S. 27, 31 , 121 S.Ct. 2038, 2041 , 150 L.Ed.2d 94, 100 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511 , 81 S.Ct. 679, 683 , 5 L.Ed.2d 734, 739 (1961)). Interpreted as generally in pari materia with the Fourth Amendment, Dua v. Comcast Cable, 370 Md. 604, 622 , 805 A.2d 1061, 1072 (2002); Scott v. State, 366 Md. 121, 139 , 782 A.2d 862, 873 (2001); Gahan v. State, 290 Md. 310, 319-21 , 430 A.2d 49, 53-54 (1981), Article 26 of the Maryland Declaration of Rights has a like, though perhaps not identical, purpose and effect, to prohibit unlawful searches and seizures, Gadson v. State, 341 Md. 1, 21 , 668 A.2d 22, 32 (1995); Givner v. State, 210 Md. 484, 492-93 , 124 A.2d 764, 768-69 (1956), and is subject to a like, but not identical, interpretation. It provides: “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.” A. Unlike many States, whose legislatures have enacted such laws, e.g.

State v. Pierson, 238 Neb. 872 , 472 N.W.2d 898, 900-901 (1991) (citing Neb.Rev.Stat. § 29-411, which permits entry without notice when “the judge or magistrate issuing a search warrant has inserted therein that the officer executing it shall not be required to give such notice”); United States v. Tisdale, 195 F.3d 70, 72 (2nd Cir.1999) (noting that New York’s no-knock statute, N.Y.C. P.L. § 690.35(4)(b)(i) permits the issuance of such a warrant when it is shown that “the property sought may be easily and quickly destroyed or disposed of’); State v. Utvick, 675 N.W.2d 387, 394 (N.D.2004) (“No-knock ⁴⁰⁹ search warrants are authorized under N.D.C.C. § 19-03.1-32(3)” 10 ); State v. Lee, 863 P.2d 49, 52 (Utah App.1993) (quoting Utah Code Ann. § 77-23-10 (2) (1990), authorizing no-knock warrants “upon proof, under oath, that the object of the search may be quickly destroyed ... or that physical harm may result to any person if notice were given”); Lobatos v. State, 875 P.2d 716 (Wyo.1994) (Wyo. Stat. § 35-7-1045 (1988)), we note that Maryland does not statutorily authorize its judicial officers to issue “no-knock” warrants. Indeed, Maryland, by statute, does not in any way prescribe how search warrants are to be executed; unlike many of its sister states, see, e.g. CAL.

Penal Code § 1531 (2000); FLA. STAT. ANN. § 901.19 (West 1997); OHIO REV. CODE.

ANN. § 2935.12 (West 1990); PA. STAT. ANN. § 208 (West 2001), it does not have a “knock and announce” statute. The only statute regulating search and seizure warrants in Maryland when this warrant was issued was codified at Maryland Code (1957, 1996 Replacement Volume) Article 27, § 551. 11 It authorized District and Circuit Court judges to issue search and seizure warrants, established the standard to be applied to their issuance, and prescribed the contents of the application for search warrant and for the search warrant, itself.

That statute has been recodified, without substantive change, at Maryland Code (2001) § 1-203 of the Criminal Procedure Article. In pertinent part, § 1-203, as § 551 had done, provides: “(a) In general. — (1) A circuit court judge or District Court judge may issue forthwith a search warrant whenever it is made to appear to the judge, by application as de ⁴¹⁰ scribed in paragraph (2) of this subsection, that there is probable cause to believe that: “(i) a misdemeanor or felony is being committed by a person or in a building, apartment premises, place, or thing within the territorial jurisdiction of the judge; or “(ii) property subject to seizure under the criminal laws of the State is on the person or in or on the building, apartment, premises, place, or thing. “(2) An application for a search warrant shall be: “(i) in writing; ‘(ii) signed and sworn to by the applicant; and ‘(iii) accompanied by an affidavit that: “1. sets forth the basis for probable cause as described in paragraph (1) of this subsection; and “2. contains facts within the personal knowledge of the affiant that there is probable cause. “(3) The search warrant shall: “(i) be directed to a duly constituted police officer and authorize the police officer to search the suspected person, building, apartment, premises, place, or thing and to seize any property found subject to seizure under the criminal laws of the State; and “(ii) name or describe, with reasonable particularity: “1. the person, building, apartment, premises, place, or thing to be searched; “2. the grounds for the search; and “3. the name of the applicant on whose application the search warrant was issued.” Nevertheless, it has long been the law in Maryland that law enforcement officers executing a search and seizure warrant for an individual’s private residence must knock and announce their presence before entering and searching. State v. Lee, 374 Md. 275, 283-86 , 821 A.2d 922, 926-28 (2003) (detailing the history of the knock and announce doctrine in Maryland); Henson v. State, 236 Md. 518, 521-22 , 204 A.2d 516, 518-19 (1964) (holding that police officer “must give ⁴¹¹ proper notice of his purpose and authority and be denied admittance before he can use force to enter the premises to be searched”); Frankel v. State, 178 Md. 558, 561 , 16 A.2d 98 , 97 (1940) (recognizing that “an officer in executing a warrant to enter a house, which warrant is valid on its face, may break open the doors if denied admittance, but a demand is necessary prior to breaking doors when the premises are in the charge of someone.”); Goodman v. State, 178 Md. 1, 8 , 11 A.2d 635, 639 (1940) (“A demand is necessary prior to the breaking in of the doors only where some person is found in charge of the building to be searched.” (citation omitted)). The reasons for the knock and announce requirement were well stated in Henson , which noted that it is rooted in an individual’s right to privacy in his or her own home and promotes the principle that “because the dweller in the house would not know the purpose of the person breaking in, unless he were notified, and would have a right to resist seeming aggression on his private property.” 236 Md. at 522 , 204 A.2d at 519 .

The Maryland knock and announce requirement is rooted in the Common Law and is consistent with, and mirrors, Supreme Court precedent. That Court, in Miller v. U.S., 357 U.S. 301, 306-307 , 78 S.Ct. 1190, 1194 , 2 L.Ed.2d 1332 (1958) noted that, although the knock and announce law applicable in that case was mandated by a federal statute, namely 18 U.S.C. § 3108 , which provided that “an officer, executing a search warrant, may break open a door only if, ‘after notice of his authority and purpose,’ he is denied admittance,” the requirement that officers announce their presence before entering premises to be searched springs from the “earliest days, [when] the common law drastically limited the authority of law officers to break the door of a house to effect an arrest.” It cautioned that “[t]he requirement of prior notice of authority and purpose before forcing entry into a home ... should not be given grudging application.” 357 U.S. at 313 , 78 S.Ct. at 1198 , 2 L.Ed.2d at 1340 . Relying on Miller , in Sabbath v. U.S., 391 U.S. 585, 589-90 , 88 S.Ct. 1755, 1758-59 , 20 L.Ed.2d 828, 833-834 (1968), the Court held that a California State statute identical to the federal statute prohibiting entry pursu ⁴¹² ant to a search warrant, unless an officer first knocked and announced his or her presence, was not limited only to when force was used to enter the premises but rather, placing emphasis on the lack of announcement, applied to any entry without announcement. See Wilson v. Arkansas, 514 U.S. 927 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995) for a detailed discussion of the knock and announce rule, its vintage and importance.

B. It is now clear that the knock and announce requirement is rooted in the Fourth Amendment reasonableness analysis, see Wilson, 514 U.S. at 929 , 115 S.Ct. at 1915 , 131 L.Ed.2d at 979 , the touchstone of which is the “ ‘reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security; reasonableness depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ” 12 Pennsylvania v. Mimms, 434 ⁴¹³ U.S. 106, 108-109, 98 S.Ct. 330, 332 , 54 L.Ed.2d 331, 335 (1977), quoting Terry v. Ohio, 392 U.S. 1, 19 , 88 S.Ct. 1868, 1878 , 20 L.Ed.2d 889, 904 (1968). In addition, as this Court already had done, see Henson, 236 Md. at 523-25 , 204 A.2d at 519-20 , 13 Wilson made clear that the announcement requirement is not rigid; the Fourth Amendment privacy interests must be balanced with the need for effective law enforcement and police safety. The “flexible requirement of reasonableness [, therefore,] should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Wilson, 514 U.S. at 934 , 115 S.Ct. at 1918 , 131 ⁴¹⁴ L.Ed.2d at 982 (1995). The Court, in Wilson, declined, however, to enunciate clear rules for when a given set of facts would be sufficient to constitute an articulated exigency warranting an exception to the knock and announce rule, preferring to leave that determination to development by the state courts.

Nor did the Court address the timing of the exigency showing. And, although the Court commented on the subject in Richards v. Wisconsin, 520 U.S. 385 , 396 n. 7, 117 S.Ct. 1416 , 1422 n. 7, 137 L.Ed.2d 615 , 625 n. 7 (1997), 14 it has not decided it. As to the latter, as we have seen supra, some states have enacted “no-knock” warrant statutes, thus expressly authoriz ⁴¹⁵ ing the issuance, by judicial officers, of search and seizure warrants, which permit the police to enter the premises to be searched without knocking and announcing. There is a split of authority among states that do not have “no-knock” warrant statutes as to whether judicial officers may, nevertheless, authorize “no-knock” entries when they issue a search and seizure warrant.

Some courts hold that “no-knock” warrants may be issued only if there is statutory authority to do so. Parsley v. Superior Court, 9 Cal.3d 934 , 109 Cal.Rptr. 563 , 513 P.2d 611, 615 (1973) (holding that the magistrate was without power to pre-authorize violation of knock and announce requirement, observing, “the key to permissible unannounced entry is knowledge of exigent circumstances possessed by police officers at the time of entry”); State v. Bamber, 630 So.2d 1048, 1050-51 (Fla.1994) (“No statutory authority exists under Florida law for issuing a no-knock search warrant,” citing Parsley ); State v. Eminowicz, 21 Ariz.App. 417 , 520 P.2d 330, 331-32 (1974) (holding that justice of the peace “had no authority, statutory or judicial, to issue a “no-knock” search warrant,” observing, “Where the legislature has enacted a statute dealing with execution of a search warrant which is clear and unambiguous on its face, we, as a court may not weigh the reasons for and against such a statute-that is the province of the legislature.”); State v. Arce, 83 Or.App. 185 , 730 P.2d 1260, 1262 (1987) (“The limited exceptions to the constitutional knock-and-announce requirement are based on the circumstances as they exist at the time when a warrant is executed, and they necessarily involve a violation of Oregon statutory law. A magistrate cannot validly authorize a statutory violation”). See 2 Wayne R. LaFave, Search And Seizure: A Treatise On The Fourth Amendment § 4.8(g) (1996), referring to this line of cases as “[t]he prevailing but not unanimous view.” Other courts have reached the opposite result.

Commonwealth v. Scalise, 387 Mass. 413 , 439 N.E.2d 818, 822 (1982) (“we conclude it to be a sound principle that the decision whether to dispense with the requirement of announcement ⁴¹⁶ should be left to judicial officers whenever police have sufficient information at the time of application for a warrant to justify such a request”); State v. Lien, 265 N.W.2d 833, 838 (Minn. 1978) (identifying as one of four (4) principles governing unannounced entries in execution of search warrants, that police inform the magistrate of circumstances of which they are aware and believe will justify an unannounced entry and “obtain specific authorization for it”); State v. Johnson, 168 N.J. 608 , 775 A.2d 1273, 1279 (2001); State v. Henderson, 245 Wis.2d 345 , 629 N.W.2d 613, 622 (2001) (holding that Wisconsin judicial officers are authorized to issue no-knock warrants); Poole v. State, 266 Ga.App. 113 , 596 S.E.2d 420 422 (2004) (holding that the notice requirement of the knock and announce statute “may be dispensed with ... by a no-knock provision in the warrant or by the presence of exigent circumstances”); 15 White v. State, 746 So.2d 953, 956 (Miss.App.1999) (upholding “no-knock” warrant, notwithstanding repeal of statute authorizing “no-knock” warrant, explaining, “Mississippi has no statute which specifically prohibits ‘no-knock’ warrants, and our case law has never prohibited issuance of ‘no-knock’ warrants”). See United States v. Dupras, 980 F.Supp. 344, 348-49 (D.Mont.1997). The court in Henderson , amplified its reason for authorizing Wisconsin judicial officers to issue “no-knock” warrants in the absence of a statute, explaining: “ ‘there may be occasions in which facts justifying the unannounced entry would be known at the time the warrant is sought, and ... both law enforcement officers and citizens benefit from review of the entry by a neutral magistrate’ ” 629 N.W.2d at 622, quoting State v. Cleveland, 118 Wis.2d 615 , 348 N.W.2d 512, 519 (1984). Both Massachusetts and Minnesota require the police at the scene to make a “threshold ⁴¹⁷ reappraisal of the actual threat,” 16 even after a “no-knock” warrant has been issued.

Scalise, 439 N.E.2d at 823 . See Lien, 265 N.W.2d at 839 . This is so, as the Scalise court explained, because: “We recognize that the facts existing at the time the warrant is issued may no longer exist at the time the warrant is executed. In those instances, the officers would be required to knock and announce their purpose.

The changed circumstances would render ineffective the magistrate’s decision that a no-knock entry was justified.” 439 N.E.2d at 823 . IV A. As a threshold matter, the intermediate appellate court addressed an issue that was not directly raised by either party 17 and which, although discussed in Dashiell v. State, 143 ⁴¹⁸ Md.App. 134, 152-53, 792 A.2d 1185, 1195-96 (2002), 18 has never been decided by a Maryland court, whether “no-knock” warrants-warrants that determine the propriety of a “no-knock” entry-the existence of exigency excusing compliance with the knock and announce requirement — at the time they are issued — are authorized by Maryland law. It concluded that they are. Noting the “preference that searches be conducted pursuant to warrants issued by judicial officers,” Davis, 144 Md.App. at 155 , 797 A.2d at 90 , and proffering the benefits accruing to the officers who obtain a warrant, i.e. “(1) the good faith exception to the exclusionary rule, (2) a more deferential standard of review by the suppression court, ... ánd (3) the presumption that the affidavit does establish probable cause for the search,” id. at 155-156 , 797 A.2d at 91-92 (footnote omitted) (citing and quoting McDonald v. State, 347 Md. 452, 467 , 701 A.2d 675, 682 (1997) and citing Herbert v. State, 136 Md.App. 458, 484-494 , 766 A.2d 190, 203-209 (2001)), the intermediate appellate court concluded that “[t]his preference should be equally applicable to “no-knock” warrants.” 144 Md.App. at 156 , 797 A.2d at 92 .

Thus, the court instructed: “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 ⁴¹⁹ 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, ... 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, 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.” Id. at 156-57 , 797 A.2d at 91-92 (footnotes omitted). It was from this premise that the Court of Special Appeals, in this case, proceeded to the analysis of the factual allegations in support of exigency. Critical to the analysis was the court’s view that the quality of “the search scene case-specific, particularized circumstances of exigency” required is different when the “no-knock” authorization is obtained from a judicial officer, it is sought when the warrant is applied for, than when the decision to enter the premises without knocking and announcing is made on the scene, without judicial intervention.

As the intermediate appellate court explained: “Dispensing with the search scene case-specific particularized circumstances of exigency for law enforcement officers seeking no-knock authorization from a judicial officer serves the public interest. It is more beneficial for law enforcement officers to seek no-knock authorization in a search warrant, rather than make their own independent on-the-scene determination of whether to enter without knocking and announcing. If law enforcement officers had to make an identical showing of exigency regardless of whether they ⁴²⁰ received no-knock authorization in the search warrant, there would be no incentive to seek judicial authorization prior to entering without knocking and announcing.” Id. at 157 n. 7, 797 A.2d at 92 n. 7. Subsequently, in two cases, See State v. Riley, 147 Md.App. 113 , 807 A.2d 797 (2002) and Carroll v. State, 149 Md.App. 598 , 817 A.2d 927 (2003), the Court of Special Appeals confirmed this approach.

In Riley , the issue was the correctness of a ruling by the Circuit Court for Baltimore County invalidating a search and seizure warrant containing a “no-knock” provision because the application for the warrant did not provide sufficient justification for a “no-knock” entry. Id. at 117 , 807 A.2d at 799-800 . More specifically, the question presented involved determining to what deference a decision by a warrant issuing judge is entitled to be given by a reviewing judge; as the intermediate appellate court framed it: “What will control the outcome of this appeal is the procedural posture in which the set of facts appears. In different postures, the same set of facts may yield diametrically different, albeit equally proper, results.

It may make a critical difference whether the judge whose decision is being appealed was 1) properly making a decision on the merits of such exigency or 2) reviewing another judge’s prior decision in that regard. It may make a critical difference whether the set of ostensibly exigent circumstances 1) was being advanced to justify a warrantless police decision to make a no-knock entry or 2) was the basis for a judge’s decision to issue a no-knock warrant.” Id. at 114 , 807 A.2d at 798 . Reasoning by analogy from the preference for warrants to determine whether a search of a dwelling will be permitted, see Johnson v. United States, 333 U.S. 10, 14 , 68 S.Ct. 367, 369 , 92 L.Ed. 436, 440 (1948), and perceiving that “[t]he fundamental policy undergirding the warrant requirement is just as strong with respect to the no-knock increment as it is with respect to the underlying entry into the home itself,” the court concluded, “[j]ust as the decision WHETHER to cross the threshold should be submit ⁴²¹ ted to a neutral and detached judicial figure, so too should the decision as to HOW to cross that threshold.” Id. at 120-21 , 807 A.2d at 802 . From this premise, which emphasizes the “great deference” a reviewing court owes the probable cause determination of a judicial officer, see Illinois v. Gates, 462 U.S. 213, 236 , 103 S.Ct. 2317, 2331 , 76 L.Ed.2d 527, 547 (1983), and quoting the portion of Davis, 144 Md.App. at 156-57 , 797 A.2d at 92 , set out supra, the court admonished the applicants for search and seizure warrants to advise the issuing judge of all exigencies that would justify a “no-knock” entry and admonished reviewing courts to give “great deference” to the “no-knock” determinations of the warrant issuing judge, that is, “ ‘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.’ ” Id. at 121-22, 807 A.2d at 802-03 , quoting Davis, 144 Md.App. at 152 , 797 A.2d at 84 .

The issue addressed in Carroll was whether the failure to seek a “no-knock” warrant foreclosed the right of the police to execute the warrant using a “no-knock” entry. Building upon Davis and Riley , the intermediate appellate court held that a “no-knock” entry to execute a search and seizure warrant was invalid where the police “purposely did not seek a ‘no-knock’ warrant,” 149 Md.App. at 601 , 817 A.2d at 929 , and, at the time of the entry, the information known to the police was the same as that which they had when they applied for the warrant. Id. at 611-14 , 817 A.2d at 935-36 . The court explained: “What is absent is the absolute lack of material change in the facts or circumstances surrounding the execution of the warrant between the time it was issued and served.

In other words, the officers serving the warrant had no ‘partic ⁴²² ularized knowledge.’ Sergeant Bender’s testimony clearly demonstrated that the ‘particularized knowledge’ was already known at the time they secured the warrant. No additional facts giving rise to a sudden emergency were shown other than what they previously had learned from the officers who secured the warrant, namely Detective Verderaime. ... Moreover, the record indicates that the officers did not witness any suspicious activities or events while surveilling Carroll’s residence that would lead them to believe that the climate had changed and that would give rise to exigent circumstances. Thus, the officers serving the warrant based their decision not to knock and announce on the information previously given to them by Detective Verderaime that was known at the time they secured the search warrant, rather than on exigent circumstances that may have arisen at the time they executed the warrant....

Under these circumstances, there was no evidence of exigent circumstances that could possibly eliminate the constitutional requirement to knock and announce.” ■ Id. at 611-13 , 817 A.2d at 935-36 . B. We reject the rule implicitly, if not expressly, enunciated by the Court of Special Appeals in Davis, Riley and Carroll , requiring applicants for search and seizure warrants to obtain pre-entry authorization for a “no-knock” entry, to obtain judicial approval of the method of entry in addition to the authorization of the search. The propriety of a “no-knock” entry, while certainly related to the question of the propriety of authorizing a search of the premises, is a different issue, both temporally and analytically. Different criteria inform the decision of the form of entry than inform the analysis of whether, or not, there is probable cause to search in the first place.

In Parsley, supra, 109 Cal.Rptr. 563 , 513 P.2d at 614 , the Supreme Court of California explained: “[Ijnformation providing probable cause for the issuance of a search warrant is of a different nature and source than information justifying unannounced entry. While a search ⁴²³ warrant must necessarily rest upon previously obtained information, unannounced entry is excused only on the basis of exigent circumstances existing at the time an officer approaches a site to make an arrest or execute a warrant.” See also Dalia v. U.S., 441 U.S. 238 , 99 S.Ct. 1682 , 60 L.Ed.2d 177 (1979). In Dalia , the Supreme Court granted certiorari to consider two questions: “... may courts authorize electronic surveillance that requires covert entry into private premises for installation of the necessary equipment? ... must authorization for such surveillance include a specific statement by the court that it approves of the covert entry?” Id. at 241 , 99 S.Ct. at 1685 , 60 L.Ed.2d at 182 . The petitioner in that case had been convicted of conspiracy to steal an interstate shipment of goods, partly based on evidence obtained as a result of wiretaps on his office phones.

Surveillance developed probable cause to believe that he was involved in the conspiracy, and FBI agents obtained a warrant for the wiretaps. Id. at 243 , 99 S.Ct. at 1685 , 60 L.Ed.2d at 184 . Although the wiretap warrant expressly identified the phones to be tapped, there was no clause authorizing covert entry into the office to place the taps. Id. at 246 , 99 S.Ct. at 1687 , 60 L.Ed.2d at 185 .

The petitioner’s motion to suppress the evidence obtained pursuant to the warrant was denied and that ruling was affirmed on appeal. In the Supreme Court, he argued, with respect to the second question, “if covert entries are to be authorized ..., the authorizing court must explicitly set forth its approval of such entries before the fact. In this case, as is customary, the court’s order constituted the sole written authorization of the surveillance of petitioner’s office. As it did not state in terms that the surveillance was to include a covert entry, petitioner insists that the entry violated his Fourth Amendment privacy rights.” Id. at 254-255 , 99 S.Ct. at 1692 , 60 L.Ed.2d at 191 .

The Court did not agree. Rather, pointing to the fact that the Fourth Amendment warrant clause requires only three ⁴²⁴ things, namely: “First, warrants must be issued by neutral and disinterested magistrates.... Second, those seeking warrants must demonstrate to the magistrate their probable cause to believe that ‘the evidence sought will aid in a particular apprehension or conviction’ for a particular offense.... Finally, ^warrants must particularly describe the things to be seized’ as well as the place to be searched,” id. at 255 , 99 S.Ct. at 1692 , 60 L.Ed.2d at 191 (citations omitted), the Court noted that authorization of the method of entry is not specified as a warrant requirement: “[n]othing in the language of the Constitution or in this Court’s decisions interpreting that lánguage suggests that, in addition to the three requirements discússed above, search warrants also must include a specification of the precise manner in which they are to be executed.

On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by a warrant-subject of course to the general Fourth Amendment protection ‘against unreasonable searches and seizures.’ ” Id. at 257 , 99 S.Ct. at 1693 , 60 L.Ed.2d at 193 (emphasis added). It added: “[o]ften in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter the suspect’s home in order to take him into custody, and thereby impinge on both privacy and freedom of movement. See e.g., United States v. Cravero, 545 F.2d 406, 421 (C.A.5 1976) (on petition for rehearing).

Similarly, officers executing search warrants on occasion, must damage property in order to perform their duty. See, e.g., United States v. Brown, 556 F.2d 304, 305 (C.A.5 1977), United States v. Gervato, 474 F.2d 40, 41 (C.A.3), cert. denied, 414 U.S. 864 , 94 S.Ct. 39 , 38 L.Ed.2d 84 (1973)) “It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, ⁴²⁵ the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held — and the Government concedes — that the manner in which a warrant is executed is subject to later judicial review as to it’s reasonableness. See Zurcher v. Stanford Daily, 436 U.S. 547, 559-560 , 98 S.Ct. 1970, 1978-1979 , 56 L.Ed.2d 525 (1978).” Id. at 257-258, 99 S.Ct. at 1693-94 , 60 L.Ed.2d at 193 .

The decision as to how entry is to be made balances, at the least, the privacy interest of the individual, the need to protect the safety of police officers and the need to preserve evidence. See Richards, 520 U.S. at 387 , 117 S.Ct. at 1418 , 137 L.Ed.2d at 620 . The probable cause analysis, on the other hand, while ultimately concerned with the privacy issue, is more fact based; it is concerned more specifically with the probability of the item or items that are the subject of the inquiry being in the place to be searched. Id. at 389 , 117 S.Ct. at 1419 , 137 L.Ed.2d at 621 .

Thus, what the Supreme Court pointed out in Johnson v. United States, 333 U.S. 10, 13 , 68 S.Ct. 367, 368 , 92 L.Ed. 436, 439-440 (1948), where the issue was probable cause, is entirely logical, absent exigent circumstances: deference to the determination of a detached warrant-issuing judge rather than a “zealous” officer engaged in the often-adrenaline charged task of “ferreting out crime,” is appropriate, because it supports the goal of encouraging officers to seek warrants. When the issue concerns the manner of entry, however, probable cause for the search already having been established, the appropriate inquiry, and thus the decision to be reviewed, is whether the form of entry used was reasonable in light of the facts as known to the officer at the