Greenstreet v. State

HARRELL, Judge. We granted the petition for writ of certiorari filed by Petitioner, Robert Earl Greenstreet, to consider: 1. Whether the Court of Special Appeals [in State v. Greenstreet, 162 Md.App. 418 , 875 A.2d 177 (2005),] erred in holding that a reviewing court could infer that the issuing judge could have concluded that the date on a warrant affidavit was a typographical error, creating probable cause where none otherwise existed? 2. Whether the Court of Special Appeals erred in suggesting that, consistent with the “four corners” doctrine, the State may present testimony to controvert facts contained in a warrant affidavit to prove that a trash ⁶⁵⁸ seizure was conducted at a different time than that reflected in the warrant application?

Greenstreet v. State, 388 Md. 404 , 879 A.2d 1086 (2005). I. On 15 April 2004, Officer Gregory P. Huck of the Anne Arundel County Police Department applied for a search warrant to search the premises, persons, or things of Petitioner at a Pasadena, Maryland, address. On the same date, a judge of the District Court of Maryland, sitting in Anne Arundel County, issued the warrant as requested. Pursuant to the warrant, police officers, seized a quantity of suspected marijuana from the residence.

Greenstreet was charged with possession with the intent to distribute and related offenses. Petitioner moved to suppress the evidence seized. A hearing was held on 4 October 2004 in the Circuit Court for Anne Arundel County. The warrant and application for the warrant were, placed into evidence.

No live testimony or additional documentary evidence was offered. Regarding the existence of probable cause for issuance of the warrant, the affidavit stated: Within the past month, your Affiant, Officer Greg Huck # 1067, received information from several citizens complaints regarding possible CDS activity occurring at the residence of 8472 Meadow Lane, Pasadena, Anne Arundel County, Maryland. The complaints advised that there is a large amount of vehicle and foot traffic visiting the residence and that the vehicles sometimes stay for short periods and the[n] leave the area. I am aware that this type of activity is often indicative of CDS sales activity.

The complaints also advised that the house often hosts disorderly parties, which disturb the neighborhood. On 04-14-03 Cpl. Thomas Newman # 728 and I conducted a trash seizure of 8472 Meadow Lane, Anne Arundel County, Maryland 21122. I was aware that trash collection days for the residence are Wednesday and Saturday.

We successfully seized 6 bags of trash from the residence. The ⁶⁵⁹ bags were located on the ground and in a trashcan placed at the edge of the roadway in front of the residence. The trash was placed in such a manner that would indicate that it was left for the trash removal company. All the other residences in the area had their trash placed out in a similar manner that would indicate that it was abandoned property.

We placed the trash in the back of a department vehicle and transported the refuse back to Eastern District Station. Upon opening the trash bags I recovered the following items from inside the trash bags. 1. Seven (gallon size) Ziploc freezer bags containing greenish-brown plant residue. 2. Five (sandwich size) plastic bags containing greenish-brown plant substance. 3.

Large Rival heat seal bag containing greenish-brown plant residue. 4. Loose greenish-brown plant substance (approx. 1.55g) 5. Cellophane wrapper containing white powder residue. 6. Millennium cable bill for Robert Greenstreet 8472 Meadow Lane, Pasadena, Md. 21122 7.

Finance statement for Robert E. Greenstreet 8472 Meadow Lane, Pasadena, Md. 21122 8. Household Bank statement for Robert E. Greenstreet 8472 Meadow Lane, Pasadena, Md. 21122 9. Envelope with “Happy Birthday Jay” written on it. 10. Piece of paper with notations “T H Seeds”, “S.A.G.E.

(160 for 10)”, “THE HOG (235 for 10)” Through my training, knowledge, and experience I recognized the greenish-brown plant residue and greenish-brown plant substance in Items 1-4 to be marihuana. I conducted field tests on Items 1 and 4. Both Items tested positive for marihuana. I recognized the large gallon size Ziploc bags (Item 1) and large Rival heat seal bag (Item3) to be indicative of packaging large amounts of marihuana consistent for distribution/sales.

Through my training, knowledge and experience I recognized the white powder residue contained in Item 5 to be cocaine. Item 5 field-tested positive ⁶⁶⁰ for cocaine. I recognized the term “T H Seeds”, on Item 10, to be an Internet site where marihuana seeds are sold. The terms “S.A.G.E.” and “HOG” refer to variations of marihuana.

I have conducted surveillance to the residence and have observed the following cars parked consistently at the residence: 1988 Mitsubishi 2 door (MD tag 393BKM) 1999 Ford 4 door (MD tag GPS274) A check through MVA revealed the owner of the 1998 Mitsubishi is listed as Sharlie Greenstreet, d.o.b. 3/29/33. A check through police department computers revealed that the vehicle was stopped within the past 6 months and at that time the driver was identified as Robert Greenstreet. A check through MVA revealed the owner of 1999 Ford is listed as Mary Watkins, d.o.b. 6/6/32. A check through police department computers revealed that the vehicle was stopped within the past year and at that time the driver of the vehicle was identified as Robert Jay Watkins.

Additional checks through pjliee department computers revealed that Robert Jay Watkins has a prior CDS arrest. He was arrested by the Baltimore City Police Department on 9/1/96 for Possession of CDS. Watkins also has prior arrests for Obstructing and Hindering, Battery, and 3 prior Disorderly Conducts. A check through police department computers revealed that Robert Greenstreet has prior arrests for Robbery, 1st Degree Assault, False Statement to a State Official.

Through investigation it was learned that there are two pit bull dogs at the residence of 8472 Meadow Lane. There is a “Beware of Dogs” sign posted in the front window of the residence to warn other's of the dangerous dogs. Due to the fact that Robert Jay Watkins has prior arrests for crimes of violence (Battery) and for Obstructing and Hindering and that Robert Earl Greenstreet has prior arrests for Robbery and 1st Degree Assault and that there are dangerous dogs on the property, your Affiant requests ⁶⁶¹ that based on this information, and all other information contained in this affidavit, that executing officers need not knock and announce their presence before entering. Based on the merits of this affidavit, your affiant believes that violations of the Maryland Controlled Dangerous Substance Act are occurring with 8472 Meadow Lane, Pasadena, Anne Arundel County, Maryland.

Your Affiant prays a search and seizure warrant be issued for the same. (Emphasis added). Petitioner argued at the hearing on the motion to suppress, and the State conceded, that the warrant was stale on its face because the affidavit indicated that the trash seizure was executed (14 April 2003) more than one year before the warrant’s issuance (on 15 April 2004). THE COURT: Well any time [the State] wants to concede something I certainly would accept it. [PROSECUTOR]: Your Honor, I agree. [DEFENSE COUNSEL]: It’s conceding with an asterisk. [PROSECUTOR]: That on it’s face the date of April 14, 2003, one trash rip a year and a day before the warrant is signed, it’s stale.

I am not going to, I would not argue that a trash rip a year ago makes their marijuana in the house. So on that particular point I concede that the warrant is stale. And I am not even particularly going to argue that it’s freshened enough by the first paragraph. I couldn’t do it.

Greenstreet, therefore, argued before the Circuit Court that the District Court judge lacked a substantial basis to issue the warrant because probable cause, based on the affidavit, was stale. Petitioner contended that the hearing court neither could assume that the date of 14 April 2003 was a typographical error, nor go beyond the four corners of the affidavit to allow the affiant to supplement the affidavit by testifying to a typographical error if a mistake had occurred. Greenstreet continued that the good faith exception does not apply here because (1) the warrant was stale on its face, (2) the issuing ⁶⁶² judge “abandoned” her judicial role nonetheless by issuing a warrant, and (3) Officer Huck, as a well-trained, experienced officer, should have known that the warrant application that he was about to execute was unsupported by probable cause. In response, the State asserted that the date listed for the trash seizure was a typographical error.

Additionally, it proffered that Officer Huck, if allowed to testify, would state that he intended to type or write “04/14/04” instead in the affidavit. The State noted that, although the date for the trash seizure given in a related police report also was listed as “04/14/03,” as in the affidavit, it attributed the companion error in the report to the “cut and paste” function of the departmental computer. The State also contended that, in the alternative, even if the warrant application did not demonstrate probable cause, the evidence seized under the warrant would be admissible under the good faith exception to the exclusionary rule because Officer Huck exercised his professional judgment when he applied for the warrant “on the 15th knowing that he ha[d] found drugs in the trash on the 14th” because “the 2003 [wa]s a typo and not a true fact where he held this [reason for probable cause] for a year.” At the hearing, the State elaborated that, while the court cannot go beyond the four corners of the warrant in deciding the staleness issue, it may consider matters beyond the four corners to discern whether the affiant committed a typographical error, but neither the State nor the court may supplement the facts of the affidavit: [PROSECUTOR]: Well, there is no testimony or contradiction to say that it happened in 2003. The Court, I agree that on its face the Court has to accept 2003.

And that is why I can see that on the face the warrant is stale. But to then go to the second inquiry, which is good faith, that is more, that is not just, okay, you know it’s either this or that. That is when the Court has to look at the test of whether the Officer was objectively reasonable. COURT: Right.

But you are basing that on the fact that you know that the Officer told you that it’s a typo. If that ⁶⁶³ evidence wasn’t there then would you still make the good faith argument? [PROSECUTOR]: No. I think that the Court would have to determine that that comes into evidence. I mean all I can do is say it to bolster my argument. But the Court would have to make the determination that comes into evidence.

And the reason I think it does is because you have to apply the test. COURT: Right. [PROSECUTOR]: And how you apply the test if you don’t know what the objectively reasonable basis for it is. COURT: I understand. [PROSECUTOR]: I guess that is where I am going with that. For good faith, I agree that you can’t supplement the facts.

The Officer can’t say, oh, yeah, well if you don’t like that trash rip I did another one the 18th of April, 2004. I understand you can’t put more facts into it. But to get to the good faith to decide whether there is behavior to punish one must look at the conduct of the police officer in question. And that is why I think that is relevant.

The Circuit Court concluded that the State was not entitled to have Officer Huck testify as to his belief in the existence of probable cause or his good faith in completing the search warrant affidavit and executing the warrant. The hearing judge observed that only upon a showing by a defendant that a governmental affiant has perjured himself on a material matter, when litigating the proprietary of the issuance of a warrant, will witnesses ever be called or extraneous evidence produced, relying on Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978) and Fitzgerald v. State, 153 Md.App. 601 , 837 A.2d 989 (2003), aff'd, 384 Md. 484 , 864 A.2d 1006 (2004). Because the circumstances in the present case did not implicate this rare exception, the judge explained, the court’s consideration of the showing of probable cause was limited to the warrant and its application documents (“The State has no right to ask for a Franks hearing to explain its ⁶⁶⁴ failure to include accurate material facts in a warrant application”). The Circuit Court, therefore, granted Greenstreet’s motion to suppress.

In reaching that result, the Circuit Court determined that the good faith exception to the exclusionary rule was not applicable because the police officer lacked an objective, reasonable good faith basis to believe that the warrant was issued properly by the District Court judge due to the facial staleness of probable cause. In addition, the hearing judge found that “Officer Huck was reckless in preparing the application.” The State appealed to the Court of Special Appeals, arguing that the issuing judge could have concluded from the information presented within the four corners of the affidavit that the date of the trash seizure and search was actually 14 April 2004; hence, probable cause existed and was not stale. Alternatively, the State pressed the notion that the good faith exception to the exclusionary rule should be applied. Green-street retorted that: (1) the State conceded that the warrant was stale and not supported by probable cause; (2) the State waived the argument that the typographical error could be shown within the four corners of the affidavit because that argument was not advanced in the Circuit Court; (3) the Circuit Court correctly applied the four corners rule; and, (4) the good faith exception did not apply.

The Court of Special Appeals reversed the judgment of the Circuit Court. State v. Greenstreet, 162 Md.App. 418 , 875 A.2d 177 (2005). The intermediate appellate court resolved the preservation issues in favor of the State. The State was permitted to argue that the typographical error could be shown within the four corners of the affidavit because the Circuit Court “recognized the issue to be how it was to proceed when the State contended that the affidavit contained a typographical error,” characterizing the appellate change in the State’s trial court argument as “merely advancing] an argument for the resolution of that issue that differs from the argument made by the prosecutor.” Greenstreet, 162 Md.App. at 426 , 875 A.2d at 182 .

(citing Md. Rule 8-131(a) (“Ordinarily, ⁶⁶⁵ the appellate court will not decide any other issue [than a jurisdictional one] unless it plainly appears by the record to have been raised in or decided by the trial court[.]”) and Crown Oil & Wax Company of Delaware, Inc. v. Glen Construction Company of Virginia, Inc., 320 Md. 546, 560-63 , 578 A.2d 1184, 1190-92 (1990)). 1 The Court of Special Appeals characterized the prosecutor’s statement to the trial court, “I agree that on its face the Court has to accept 2003,” as a concession on a point of law that did not bind the appellate court. Greenstreet, 162 Md.App. at 427 , 875 A.2d at 182 . Turning to the merits, the Court of Special Appeals determined that, like the circumstances in Valdez v. State, 300 Md. 160 , 476 A.2d 1162 (1984), testimony to “clarify or explain” the asserted typographical error could be allowed and yet remain consistent with the “four corners” rule that prohibits courts from going beyond the text of a warrant and its supporting application when reviewing the issuing judge’s determination of probable cause. Greenstreet, 162 Md.App. at 429 , 875 A.2d at 183 .

The court looked to a number of cases from foreign jurisdictions to support the proposition that if the affidavit contained an identifiable and certain clerical error, such as a date material to the probable cause finding, the warrant should not be vitiated. Greenstreet, 162 Md.App. at 430-34 , 875 A.2d at 184-86 . Despite this conclusion, the court determined that it did not need to decide whether the reasoning employed in those cases should be adopted as Maryland law or to order testimony be taken in the present case by the Circuit Court because, “from information within the four corners of the affidavit, the District Court judge reasonably could have concluded that that date was a clerical error, and was intended ⁶⁶⁶ to be 4-14-04.” Greenstreet, 162 Md.App. at 435 , 875 A.2d at 186-87 . The intermediate appellate court explained: The logical and commonsense way to read the affidavit is that the affiant is presenting the progress of the investigation in chronological order.

The initial paragraph explains how the activities of Greenstreet were brought to the attention of the police. That was within the “past month,” or within thirty days of 4-15-04. These complaints of neighbors induced the trash trip, mistakenly stated to be on 4-14-03. For “4-14-03” to be considered accurate in this context, one has to accept as logical that the police conducted a trash trip for some unexplained reason and then, for eleven months, sat on the highly incriminating evidence thereby obtained until neighbors complained about possible CDS activity.

One must further assume that the police then took an additional thirty days to apply for a search warrant based on the year-old evidence. More compelling of a finding of typographical error is that the affidavit was presented to the issuing judge on Thursday, 4-15-04. The affidavit states that the trash collection days for the neighborhood of 8472 Meadow Lane “are Wednesday and Saturday,” indicating that the trash trip was the preceding day, 4-14-04. By use of the present tense, the affiant is describing a trash collection day that is relatively contemporaneous with the making of the affidavit, and certainly not as far in the past as one year.

See State v. Edwards, 266 Md. 515, 518-24 , 295 A.2d 465, 466-69 (1972) (discussing “present tense rule” in interpreting search warrant applications). On the other hand, if “4-14-03” must be accepted uncritically, the information about the trash pickup days, which obviously is intended to demonstrate the abandonment of the items recovered, becomes irrelevant. Greenstreet, 162 Md.App. at 435-36 , 875 A.2d at 187 . Because the appellate court determined that the Circuit Court erred when it found that the issuing judge did not have a substantial basis for concluding that the warrant was supported by probable cause, it reversed the suppression order; thus, it became ⁶⁶⁷ unnecessary to address the arguments regarding the good faith exception to the exclusionary rule.

II

We first need to clarify a preservation question. Although the State made confounding statements about its intent to argue the good faith exception at the suppression hearing, the Circuit Court decided that issue by finding that the good faith exception did not apply. Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any [issue other than jurisdiction] unless it plainly appears by the record to have been raised in or decided by the trial court....”). Thus, the good faith exception properly is before us.

In addition, we agree with the Court of Special Appeals when it stated that a party may not concede a point of law to the exclusion of appellate review, as necessary and proper to decide the case. Greenstreet, 162 Md.App. at 427 , 875 A.2d at 182 ; see also Crown Oil, 320 Md. at 567 , 578 A.2d at 1193 (stating that the Court of Appeals is not bound by stipulations on matters of law.) A reviewing court will determine whether evidence in an affidavit is stale by applying a factors test to circumstances of the case before it, see, infra, Section III(C) (discussing stale probable cause). The question of staleness is a question of law requiring the application of facts. Hence, we are not bound by the concession made by the prosecutor at the suppression hearing.

III

A. We determine first whether the issuing judge had a substantial basis to conclude that the warrant was supported by probable cause. State v. Amerman, 84 Md.App. 461, 463-64 , 581 A.2d 19, 20 (1990). We do so not by applying a de novo standard of review, but rather a deferential one. The task of the issuing judge is to reach a practical and commonsense decision, given all of the circumstances set forth in the affidavit, as to whether there exists a fair probability that ⁶⁶⁸ contraband or evidence of a crime will be found in a particular search.

Illinois v. Gates, 462 U.S. 213, 238-39 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527, 548 (1983). The duty of a reviewing court is to ensure that the issuing judge had a “substantial basis for ... concluding] that probable cause existed.” Id. (Quotation and citations omitted); Birchead v. State, 317 Md. 691, 701 , 566 A.2d 488, 492-93 (1989); Potts v. State, 300 Md. 567, 572 , 479 A.2d 1335, 1338 (1984) (Quotation and citation omitted). The U.S. Supreme Court explained in Gates that the purpose of this standard of review is to encourage the police to submit to the warrant process.

Gates, 462 U.S. at 237 n. 10, 103 S.Ct. at 2331 n. 10, 76 L.Ed.2d at 547 n. 10. In United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984) the Court explained the deference due an issuing judge’s probable cause determination: Because a search warrant provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime, we have expressed a strong preference for warrants and declared that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate’s determination. (Quotations and citations omitted).

Leon, 468 U.S. at 913-14 , 104 S.Ct. at 3415-16 , 82 L.Ed.2d 677, 692-93 . Although a reviewing court grants deference to the issuing judge’s probable cause determination, that deference is “not boundless” because the reviewing court must require that (1) the affidavit supporting the warrant application not be based on reckless falsity, (2) the issuing judge not serve merely as a “rubber stamp for the police,” and (3) the affidavit provide the issuing judge with a substantial basis for ⁶⁶⁹ cause. Leon, 468 U.S. at 914 , 104 S.Ct. at 3416 , 82 L.Ed.2d at 693 . (Quotations and citations omitted).

B. When reviewing the basis of the issuing judge’s probable cause finding, we ordinarily confine our consideration of probable cause solely to the information provided in the warrant and its accompanying application documents. Valdez v. State, 300 Md. 160, 168 , 476 A.2d 1162, 1166 (1984); Smith v. State, 191 Md. 329, 335-36 , 62 A.2d 287, 289-90 (1948). We do not consider evidence that seeks to supplement or controvert the truth of the grounds advanced in the affidavit. Valdez, 300 Md. at 168 , 476 A.2d at 1166 ; Carter v. State, 274 Md. 411, 439 , 337 A.2d 415, 431 (1975), Smith, 191 Md. at 335-36 , 62 A.2d at 289-90 .

This principle is known as the “four corners rule.” We conclude that the Circuit Court in the present case was correct to preclude testimony on the issue of whether a date material to the finding of probable cause was a typographical error. There are some occasions where deviations from the four corners rule are appropriate. One instance where evidence outside of the warrant and its affidavit may be considered is where a defendant makes a required showing for a Franks hearing. The case before us is not such a case.

A Franks hearing is permitted where testimony or other proof is proffered by a defendant that the police officer who sought the warrant provided deliberately false material evidence to support the warrant or held a reckless disregard for the truth. Franks, v. Delaware, 438 U.S. 154, 171-72 , 98 S.Ct. 2674, 2684-85 , 57 L.Ed.2d 667 (1978). At the best, the hearing judge in the present case found that the affiant was sloppy in preparing the affidavit for the application for the warrant. A second instance where supplemental testimony or other evidence may be considered, without violating the four corners rule, is where the affidavit supporting the warrant is undecipherable, as in Valdez .

This exception also does not apply to the circumstances of the present case. In Valdez , we ⁶⁷⁰ approved of the use of a District Court judge’s testimony at the suppression hearing for the very limited purpose of translating her contemporaneous notes, which served as the accompanying affidavit to the application for the warrant. Valdez, 300 Md. at 169 , 476 A.2d at 1166 (“[Njothing prohibits considering evidence that aids in deciphering what is within the four corners of the affidavit itself.”). The issuing judge had scribbled notes quickly as she listened to oral statements attested to by police officers during a middle of the night telephone call to her residence, relaying their reasons for believing that a search of a suspect’s residence would reveal evidence of a robbery.

Valdez, 300 Md. at 163-65 , 476 A.2d at 1164 . After the telephone conversation, the police officers traveled to the residence of the judge, swore to the truth of the statements made to her previously, and signed the judge’s written notes of the earlier telephone conversation. Valdez, 300 Md. at 163-65 , 476 A.2d at 1164 . The defense later argued, among other points, that the notes were unreadable and, pursuant to the four corners doctrine, should not have been translated by the issuing judge at the suppression hearing.

Valdez, 300 Md. at 168 , 476 A.2d at 1166 . At the suppression hearing in Valdez , the Circuit Court allowed the issuing judge to testify to the facts assertedly contained in the notes, but she was not permitted to supplement the words used in her original notes, or controvert her notes with new information. Valdez, 300 Md. at 169 , 476 A.2d at 1166-67 . We concluded that the testimony taken was consistent with the four corners precept because (1) no new information outside of the warrant and application was proffered to support the issuing judge’s finding of probable cause and (2) no information from the testimony controverted the statements contained in the notes that served as an affidavit supporting the warrant.

Valdez, 300 Md. at 169-70 , 476 A.2d at 1166-67 . Because the Court of Special Appeals believed that the circumstances here were analogous to those presented in Valdez , it determined that the circumstances of the present case would allow testimony as to whether the 14 April 2003 ⁶⁷¹ date given in the affidavit was a typographical error. We disagree. To permit Officer Huek to testify to a different date of the trash seizure and search than contained in the affidavit would be to allow him to controvert his statement in the affidavit—an unsanctioned violation of the four corners rule and the purpose for its existence.

C. Nor do we agree with the Court of Special Appeals’s conclusion that it may be inferred that the issuing judge recognized the purported typographical error in the affidavit, ignored it, and found a substantial basis to support her finding of probable cause based upon a trash search conducted on 14 April 2004, rather than 14 April 2003. To be sure, issuing judges or magistrates are permitted to grasp such errors, interrogate the affiant about the true facts, and correct the affidavit with the signature or initials of the affiant. United States v. Servance, 394 F.3d 222 (4th Cir.), rev’d on other grounds, 544 U.S. 1047 , 125 S.Ct. 2308 , 161 L.Ed.2d 1086 (2005); see also People v. Royse, 173 Colo. 254 , 477 P.2d 380 (.1970) (“Since only a judicial officer may issue a search warrant, it necessarily follows that only a judicial officer may alter, modify, or correct a warrant.”). Close review of the affidavit supporting the warrant is the purpose of the warrant process itself.

To countenance otherwise is to degrade the purpose of requiring a magistrate or judge to review and issue warrants. A reviewing court does not rewrite deficient or inaccurate warrants after the search has been executed, especially where