Kostelec v. State

EYLER, Judge. A jury in the Circuit Court for Howard County convicted Joseph Kostelec, the appellant, of possession of more than 16 ounces of phencyclidine (“PCP”) with intent to distribute, simple possession of PCP, possession of cocaine, possession of marijuana, and two counts of possession of controlled drug paraphernalia. The court merged simple possession of PCP into possession of PCP with intent to distribute and imposed a mandatory prison sentence of five years without possibility of parole. 1 It then imposed prison sentences of six months for possession of cocaine and six months for possession of marijuana, to run concurrently with the mandatory sentence. The court further imposed $50.00 fines for each of the convictions for possession of controlled drug paraphernalia.

In this appeal, appellant argues, in essence, that: ⁶⁶⁰ I. The trial court erred by denying his motion to suppress evidence, in that the evidence was seized during the execution of an “anticipatory” search warrant; II. The evidence was insufficient to support his conviction for possession of PCP; III. The trial court erred by refusing to admit an out-of-court statement made by an alleged accomplice as a statement against penal interest; IV. The trial court erred by refusing to permit the defense to introduce evidence that he had not previously used PCP or cocaine; and V. The trial court erred by refusing to ask a proposed voir dire question.

On September 27, 1996, this Court issued, for publication, an opinion by which we affirmed the judgments of the trial court. Kostelec v. State, No. 2005, September Term, 1995, slip op. (September 27,1996). Thereafter, on October 25,1996, appellant filed a motion for reconsideration.

Appellant does not specify in his motion what actions he desires this Court to take, other than to correct perceived inaccuracies in the September 27 opinion. In particular, appellant asserts that (i) in part III of the opinion, we erroneously indicated that the trial court found that a statement made by a witness was not against the witness’s penal interest, and (ii) in part V of the opinion, we erroneously indicated that defense counsel failed to object to the trial court’s refusal to ask a proposed voir dire question. Presumably, appellant believes that once these perceived inaccuracies are corrected, reversal of his convictions will follow. Because defense counsel did indeed object to the trial court’s failure to ask the proposed voir dire question, we withdraw our September 27 opinion, grant the motion for reconsideration, and issue this revised opinion by which we correct and clarify part V of that opinion.

We are satisfied that our characterization of the trial court’s finding as to the witness’s statement is accurate, so we leave intact part III of the September 27 opinion. Again, we affirm the judgments of the trial court. ⁶⁶¹ Facts In March of 1995, appellant permitted his long-time friend, Roarke Boulton, who was down on his luck, to move into his Elkridge home. On April 5, 1995, Howard County police intercepted a Federal Express package addressed to “Joey Labaugh, 7118 Dogwood Road, Baltimore, Maryland 21244.” Police obtained a search warrant for the package and determined that it contained two bottles of PCP. They then resealed the package and made a controlled delivery to 7118 Dogwood Road.

The package was accepted by Randal Lucabaugh, who was placed under arrest. Lucabaugh told police that a portion of the package was ultimately to be delivered to Roarke Boulton, who lived in Elkridge. Lucabaugh then agreed to make a monitored telephone call to Boulton, who confirmed that he was to receive a portion of the package. Lucabaugh informed Boulton that a third person would deliver the package to Boulton’s residence, and that the third person would contact Boulton to make arrangements for the delivery.

An undercover officer then telephoned Boulton at the number provided by Lucabaugh, and Boulton stated that he was to receive the entire package. Boulton gave the officer appellant’s address. A police check established that the telephone number at which Boulton was reached was listed to appellant. Police then obtained a search warrant for appellant’s home, on the condition that the warrant would not be executed until the package was delivered to and accepted by someone therein.

They attached an electronic device to the package that would secretly alert them when the package was opened. Later during the evening of April 5, an undercover officer delivered the package. Appellant answered the door and accepted the package for Boulton, and the officer departed. Within minutes, the electronic device signalled the police that the package had been opened.

The police immediately made a no-knock entry into appellant’s home. Both appellant and Boulton were in the living room, with appellant sitting on a love seat and Boulton sitting ⁶⁶² on the adjacent couch. The opened package was on the coffee table, with one bottle of PCP still inside it. The other bottle of PCP was sitting on the floor between Boulton and the coffee table.

Neither bottle had been opened, but the odor of PCP emanated from the bottle on the floor. Appellant and Boulton were handcuffed and the search warrant was executed. The two bottles of PCP were seized, and subsequent analysis confirmed that together they contained nearly 40 ounces of PCP. Under the kitchen sink, police found an aluminum can that had been crushed and perforated, apparently for use as a pipe.

The can proved to contain a trace amount of cocaine. A second pipe, also containing a trace amount of cocaine, was found in a dresser drawer in appellant’s bedroom. A third pipe — this one containing marijuana residue — was found in a china hutch in appellant’s dining room. Three large bottles of parsley flakes were found in the kitchen.

A police expert testified that PCP is commonly poured over parsley, which is in turn ingested by smoking. I Search Warrant In State v. Lee, 93 Md.App. 408, 420 , 613 A.2d 395 (1992), aff'd, 330 Md. 320 , 624 A.2d 492 (1993), this Court commented: “Whether Maryland will or should approve the issuance and use of anticipatory search warrants is an interesting question, which will undoubtedly have to be met squarely and decided some day.” That day is upon us. There is no dispute that the warrant in issue was an anticipatory one, i.e., “based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” 2 Wayne R. LaFave Search & Seizure § 3.7(c), at 362 (3rd ed. 1996). As we have observed, Howard County Police obtained a warrant to search appellant’s home after they confirmed that Boulton was expecting a delivery there but before the con ⁶⁶³ trolled delivery was actually made.

The affidavit attached to the application for search warrant stated, in pertinent part: Your affiant ... prays that an anticipatory Search and Seizure Warrant be issued for said premises and persons. Your affiant will only execute said warrant if the following actions are observed at 5967 Rowanberry Drive [appellant’s address], within the next fifteen (15) days: 1. A member of the Howard County Police Department will visit the residence at 5967 Rowanberry Drive and present the package containing phencyclidine for delivery. 2. An individual within the residence accepts the package containing the phencyclidine. 3.

This individual is observed to carry the package containing the phencyclidine into said residence after the delivery; and 4. Law enforcement officials conduct a constant surveillance of the residence from the time of delivery until the time the warrant is served. Other than the anticipated controlled delivery of the Federal Express package, the affidavit set forth no probable cause to believe that evidence of a crime would be found in appellant’s home. The warrant itself incorporated the affidavit by reference. 2 The Fourth Amendment to the Constitution of the United States provides, in pertinent part, that “no Warrants shall issue, but upon probable cause.... ” Article 26 of Maryland’s Declaration of Rights directs: “That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grevious [grievous] and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing ⁶⁶⁴ the place, or the person in special, are illegal, and ought not to be granted.” Finally, article 27, § 551(a) of the Annotated Code of Maryland (1957, 1996 RepLVol.) provides, in pertinent part: Whenever it be made to appear to any judge of any of the circuit courts in the counties of this State, or to any judge of the District Court, by written application signed and sworn to by the applicant, accompanied by an affidavit or affidavits containing facts within the personal knowledge of the affiant or affiants, that there is probable cause, the basis of which shall be set forth in said affidavit or affidavits, to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge, or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing, then the judge may forthwith issue a search warrant....

Appellant reads all three of these provisions to require that the evidence sought be situated in the place to be searched at the time the warrant is issued. He asserts that because, by definition, the evidence sought is not yet situated in the place to be searched, anticipatory search warrants are invalid as a matter of law. He further complains that such warrants improperly “placet] the ultimate determination of probable cause in the hands of the police officer who applie[s] for the warrant.” In the alternative, appellant asserts that even if anticipatory warrants are not per se invalid, the warrant in the instant case was invalid because it was not based on probable cause, in that the source of the information that the package was to be delivered to someone at appellant’s house was unreliable. As we have observed, neither this Court nor the Court of Appeals has yet ruled upon the validity in general of anticipatory search warrants.

An overwhelming majority of courts from other jurisdictions that have considered the matter have concluded that such warrants do not per se offend the Fourth ⁶⁶⁵ Amendment. See United States v. Gendron, 18 F.3d 955 (1st Cir.), cert. denied, — U.S. —, 115 S.Ct. 654 , 130 L.Ed.2d 558 (1994); United States v. Tagbering, 985 F.2d 946 (8th Cir.1993); United States v. Wylie, 919 F.2d 969 (5th Cir.1990); United States v. Garcia, 882 F.2d 699 (2d Cir.), cert. denied sub. nom. Grant v. United States, 493 U.S. 943 , 110 S.Ct. 348 , 107 L.Ed.2d 336 (1989); United States v. Dornhofer, 859 F.2d 1195 (4th Cir.1988), cert. denied, 490 U.S. 1005 , 109 S.Ct. 1639 , 104 L.Ed.2d 155 (1989); United States v. Hale, 784 F.2d 1465 (9th Cir.), cert. denied, 479 U.S. 829 , 107 S.Ct. 110 , 93 L.Ed.2d 59 (1986); United States v. Lowe, 575 F.2d 1193 (6th Cir.), cert. denied, 439 U.S. 869 , 99 S.Ct. 198 , 58 L.Ed.2d 180 (1978); U.S. ex rel. Beal v. Skaff, 418 F.2d 430 (7th Cir.1969); United States v. McGriff, 678 F.Supp. 1010 (E.D.N.Y.1988); State v. Stott, 243 Neb. 967 , 503 N.W.2d 822 (1993); State v. Engel, 465 N.W.2d 787 (S.D.1991); State v. Coker, 746 S.W.2d 167 (Tenn.1987), cert. denied, 488 U.S. 871 , 109 S.Ct. 180 , 102 L.Ed.2d 149 (1988); Commonwealth v. Soares, 384 Mass. 149 , 424 N.E.2d 221 (1981); People v. Shapiro, 37 Cal.App.3d 1038 , 113 Cal.Rptr. 54 (1974); Johnson v. State, 617 P.2d 1117 (Alaska 1980); People v. Glen, 30 N.Y.2d 252 , 331 N.Y.S.2d 656 , 282 N.E.2d 614 , cert. denied sub nom.

Baker v. New York, 409 U.S. 849 , 93 S.Ct. 58 , 34 L.Ed.2d 91 (1972); State v. Folk, 74 Ohio App.3d 468 , 599 N.E.2d 334 (1991); Commonwealth v. Reviera, 387 Pa.Super. 196 , 563 A.2d 1252 (1989), appeal dismissed as improvidently granted, 526 Pa. 41 , 584 A.2d 308 (1991); Mehrens v. State, 138 Ariz. 458 , 675 P.2d 718 (Ariz.App.1983), cert. denied, 469 U.S. 870 , 105 S.Ct. 219 , 83 L.Ed.2d 149 (1984); State v. Mier, 147 N.J.Super. 17 , 370 A.2d 515 (N.J.Super.Ct.App.Div.1977); State v. Parent, 110 Nev. 114 , 867 P.2d 1143 (1994) (per curiam); Bernie v. State, 524 So.2d 988 (Fla.1988) (per curiam). See generally 2 LaFave, Search and Seizure § 3.7(c). In State v. Lee, 93 Md.App. 408 , 613 A.2d 395 (1992), this Court was asked to determine whether a search warrant that was issued in anticipation of a controlled buy of LSD by an unidentified confidential informant passed constitutional muster. We observed that because the assertions in the affidavit ⁶⁶⁶ that the buy would take place were based on information supplied by the confidential informant, who had not been proven reliable, they came “precariously close to ‘mere speculation.’ ” Id. at 417 , 613 A.2d 395 .

We further observed that the police failed to “maintain surveillance” as the buy was taking place, and that they failed to field test the suspected LSD before they executed the warrant. Id. at 420 , 613 A.2d 395 . We therefore found it unnecessary to decide the issue and explained that, even if anticipatory warrants are not per se violative of the Fourth Amendment, the warrant in this case is, because (1) there was at the time of issuance no probable cause to believe — only speculation — that at some point in time a transaction would occur that would demonstrate the existence of contraband in the premises to be searched; and (2) it was left to the unrestricted judgment of the executing officer to determine whether the triggering event ... had occurred. Id. at 421-22 , 613 A.2d 395 .

See State v. Lee, 330 Md. 320, 328-29 , 624 A.2d 492 (1993) (where, in affirming this Court’s decision, the Court of Appeals explained that the “warrant failed by its own criteria” in that, by failing to field test the suspected LSD before executing the warrant, the police “failed to fulfill the condition precedent on which the warrant was made contingent by its own terms”). We nevertheless recognized that federal and state courts that have addressed the issue are almost unanimous in holding that [anticipatory] warrants are not per se unconstitutional____ The linchpin of the Fourth Amendment is reasonableness, and courts have concluded that it is “not unreasonable for a magistrate to believe certain controllable events will occur in the near future, e.g., that the post office will deliver a package the next day, when responsible officials so advise him.” ... 93 Md.App. at 412-13 , 613 A.2d 395 (citations omitted). We further explained in Lee, in dicta, that ⁶⁶⁷ [c]ourts consistently have rejected the argument that at the time of issuance of the warrant there must be probable cause to believe that property subject to seizure is presently located at the place to be searched, so long as “ ‘there is probable cause to believe that it will be there when the search warrant is executed.’ ” Id. at 413, 613 A.2d 395 (quoting Garcia, 882 F.2d at 702 (citation omitted)). We added: In fact, “it may fairly be said that as a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon known prior location of the item to be seized at the place to be searched.” 93 Md.App. at 413-14 , 613 A.2d 395 (quoting 2 LaFave, Search and Seizure § 3.7(c), at 97 (2d ed. 1987)).

Such is the situation, we suggested, when the evidence is “on a ‘sure and irreversible course to its destination.’ ” 93 Md.App. at 414 , 613 A.2d 395 (citation omitted). We acknowledged, in Lee, that a judge who failed to require a particularized showing as to the anticipated crime risked “abdicat[ing] to law enforcement agents the essential function of determining whether probable cause exists.” Id. at 417, 613 A.2d 395 . We pointed out, however, that if a particularized showing [has been made] that the items to be seized will be in the place to be searched at a specified time .... [then] ... the issuing magistrate can foresee with near certainty not only that the crime will come to fruition, but also that it will unfold precisely as set forth in the warrant application. Id. at 416 , 613 A.2d 395 .

We indicated that where such a showing has been made, it is the magistrate and not the officers in the field who “ ‘determined when, and whether, there should be a search.’ ” Id. at 417 , 613 A.2d 395 (citation omitted). While not deciding the issue, we strongly suggested in Lee that, under certain circumstances, an anticipatoiy ⁶⁶⁸ search warrant could withstand Fourth Amendment scrutiny. For the reasons set forth in Lee and reiterated above, we how hold that anticipatory search warrants do not, as a matter of law, offend the Fourth Amendment. We further conclude that anticipatory search warrants do not, as a matter of law, violate Article 26 of this State’s Declaration of Rights.

It is well established that Article 26 is in pari materia with the Fourth Amendment. See Givner v. State, 210 Md. 484, 492 , 124 A.2d 764 (1956). We are satisfied, moreover, that the issuing judge in the instant case complied with the mandates of the Fourth Amendment by particularizing the circumstances under which the warrant could be executed. By incorporating by reference into the warrant the affidavit in support of the application for search warrant, the judge ensured that the warrant could not be executed until the triggering event — the controlled delivery of the package of PCP — had occurred.

Appellant points out that § 551(a) provides that a search warrant may issue if there “is probable cause ... to believe that [1] any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing,” or that “[2] any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, or thing[.]” (Emphasis added.) In appellant’s view, this language makes clear that the evidence to be seized must be present at the place to be searched at the time the warrant is issued. 3 As the Court of Appeals recently explained: ⁶⁶⁹ “When called upon to construe the meaning of statutory language, our goal is to ascertain and effectuate legislative intent____ We first examine the primary source of legislative intent, the words of the statute, giving them their ordinary and natural meaning.... If the meaning of the language is unclear or ambiguous, “we must consider ‘not the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment,’ in our attempt to discern the construction that will best further the legislative objectives or goals____” Whack v. State, 338 Md. 665, 672 ,