Kostelec v. State

RODOWSKY, Judge. In this drug case the petitioner, Joseph Kostelec (Kostelec), moved to suppress evidence that had been seized during a search of his home under an anticipatory search warrant. As grounds for the motion, Kostelec contended, inter alia, that an anticipatory warrant violates Maryland Code (1957, 1996 Repl. Vol.), Art. 27, § 551(a).

For the reasons set forth below we shall hold that § 551(a) does not authorize anticipatory search warrants. Further, inasmuch as the State never argued to the courts below the unavailability of suppression as a remedy for a search without statutory authorization, and the State never raised that issue by a cross-petition for certiorari, we ²³² shall direct that the motion to suppress in this case be granted. The relevant portion of § 551(a) reads as follows: “Whenever it be made to appear to any judge ... by written application signed and sworn to by the applicant, accompanied by an affidavit ... containing facts within the personal knowledge of the affiant ... that there is probable cause, the basis of which shall be set forth in said affidavit ... to believe that any misdemeanor or felony is being committed by any individual or in any building ... 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, ... then the judge may forthwith issue a search warrant____” At the hearing in the circuit court on the motion to suppress no testimony was taken. Counsel for the parties argued exclusively legal issues derived from the face of the application for the search warrant.

Thus, for this review, the facts justifying the search are those found in the application sworn to on April 5, 1995. See Perry v. State, 344 Md. 204, 226 , 686 A.2d 274, 285 (1996) (“The State ordinarily is bound on appeal of a suppression hearing issue by the record made at the suppression hearing.”), cert. denied, — U.S. —, 117 S.Ct. 1318 , 137 L.Ed.2d 480 (1997); Trusty v. State, 308 Md. 658, 670-72 , 521 A.2d 749, 755 (1987). The affiant on the search warrant application was a detective of the Howard County Police Department, Criminal Investigation Bureau, Vice and Narcotics Division. In addition to presenting his background and experience, the affiant presented the following facts: Less than eight hours earlier a Federal Express package had been seized under a warrant.

This package contained a large quantity of liquid phencycli-dine (PCP), confirmed by a field test. The package was addressed to one Joey Labaugh at 7118 Dogwood Road, Baltimore, Maryland 21244. Based on the absence of any entries for that name in official data bases, the affiant believed the name Joey Labaugh to be fictitious. Subsequently the ²³³ police made a controlled delivery of the package to 7118 Dogwood Road where it was accepted by Randal Lucabaugh (Lucabaugh) who, shortly after accepting delivery, was arrested when he left his residence with the package.

In a post-arrest interview Lucabaugh stated that a portion of the package was to be delivered to Roarke Boulton (Boulton) who lived near Route 103 in Elkridge. Lucabaugh placed “a controlled telephone call” to Boulton and advised Boulton that “a friend” of Lucabaugh’s would deliver the package to Boulton. Within three hours of the warrant application a police officer had dialed the same telephone number dialed by Luca-baugh and, after first speaking to an unknown male, was referred to another male who identified himself as Boulton. Boulton said that all of the package was his and that it was to be delivered to his home address at 5967 Rowanberry Drive in Elkridge.

A crisscross telephone directory showed that the number called was listed to Kostelec at 5967 Rowanberry Drive. The affiant “pray[ed] that an Anticipatory Search and Seizure Warrant be issued for said premises and persons” and further stated: “Your affiant will only execute said warrant if the following actions are observed at 5967 Rowanberry Drive, 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 the [PCP] for delivery. “2. An individual within the residence accepts the package containing the [PCP]. “3.

This individual is observed to carry the package containing the [PCP] 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.” ²³⁴ Additional facts, developed at Kostelec’s trial, reveal that Boulton was a longtime Mend of Kostelec’s and that Kostelec permitted Boulton to move into Kostelec’s Elkridge home in March of 1995 because Boulton was down on his luck. When the delivery was made to Kostelec’s home on the evening of April 5, 1995, Kostelec answered the door and accepted the package for Boulton. The police had attached an electronic device to the package that would secretly alert them when the package was opened.

Within minutes after the delivery the signal was activated. The police immediately made a no-knock entry and found both Kostelec and Boulton in the living room, the former seated on a love seat and the latter on an adjacent couch. The package contained nearly forty ounces of PCP in two bottles. When the police entered one bottle was still inside the open package, and the other bottle was sitting on the floor between Boulton and the coffee table.

In addition to the PCP, the police seized an aluminum can that had been crushed and perforated, apparently for use as a pipe, and which contained a trace of cocaine. In Kostelec’s bedroom the police seized from a dresser drawer a pipe containing a trace of cocaine. Another pipe containing marijuana residue was found in a china hutch in Kostelec’s dining room. Three large bottles of parsley flakes were found in the kitchen.

Kostelec was indicted on multiple charges, including possession of a controlled dangerous substance with intent to distribute. 1 Kostelec moved to suppress, contending in part “[t]hat the Application for Search and Seizure Warrant failed to allege facts then in existence which would have constituted probable cause for the issuance of a Search and Seizure Warrant by a judge under Article 27, Section 551(a)....” In his memorandum in support of the motion to suppress, Kostelec argued that the warrant “does not comply with the ²³⁵ narrowly drawn Maryland statute permitting the issuance of search and seizure warrants” and that “anticipatory warrants have never been validated by the legislature----” Citing § 551(a) he submitted that “probable cause was not shown within the Affidavit because the anticipatory search and seizure warrant executed upon lacked facts indicating that there was any misdemeanor or felony being committed.” At a hearing before Judge Raymond J. Kane, Jr., Kostelec included in his oral argument the contention set forth above. The court took the matter sub curia. It denied the motion to suppress in a memorandum and order which viewed the issue to be “whether the Defendant’s constitutional rights were violated by the issuance of what is commonly referred to as an ‘anticipatory search warrant.’ ” Kostelec was convicted in a jury trial and sentenced to five years without parole, to certain concurrent sentences, and to payment of a fine. On direct appeal, the Court of Special Appeals affirmed.

Kostelec v. State, 112 Md.App. 656 , 685 A.2d 1222 (1996). That court rejected Kostelec’s argument based on § 551(a), reasoning that although Kostelec’s interpretation of § 551(a) was “a plausible one, the language could also be read merely to require that probable cause be present at the time the warrant is executed.” Id. at 669, 685 A.2d at 1229 . Hence the language was “at best, ambiguous.” Id. Inasmuch as the Court of Special Appeals had held earlier in its opinion that anticipatory warrants did not violate the Fourth Amendment, the court concluded that § 551(a), for the problem under consideration, should be construed in pari materia with the Fourth Amendment to permit anticipatory search warrants.

We granted Kostelec’s petition for certiorari. Our order limited review solely to the following question: “Whether an anticipatory search warrant, issued on the basis of an affidavit which lacked probable cause that a crime was being committed at the time of issuance ... is constitutional and in compliance with Article 27, Section 551(a).” ²³⁶ This Court should not decide a constitutional issue unless the record compels it. See State v. Lee, 330 Md. 320, 329 , 624 A.2d 492, 495 (1993). Our decision rests on the construction of § 551(a).

I The Court of Special Appeals pointed out in this ease, 112 Md.App. at 662 , 685 A.2d at 1225 , that “[t]here is no dispute that the warrant in issue was an anticipatory one, ie., ‘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).” The argument of Kostelec that we address here is not whether the warrant-issuing judge had probable cause to conclude that the PCP would in the future be at the premises to be searched, that is, whether the PCP was on a “sure course” to Kostelec’s home. The issue, quite simply, is whether § 551(a) authorizes a warrant to search for and seize evidence of crime on described premises when the affidavit in support of issuing the warrant shows that the evidence of crime to be seized is not on the premises to be searched when the warrant is issued. Section 551 requires “that there is probable cause ... to believe that any misdemeanor or felony is being committed ... or that any property subject to seizure ... is situated or located ... in or on any such building.... ” This probable cause must “be made to appear” to the judge who is asked to issue the warrant. The time to which the present tense of these verbs in § 551(a) refers is the time when the warrant is sought.

Literally, the statute contemplates that the crime “is being committed” and that the property “is situated or located” on the described premises when the judge is asked to rule. We do not agree with the conclusion of the Court of Special Appeals that § 551(a) can be read to refer to the time when the warrant is executed. ²³⁷ The incompatibility of the language of § 551(a) with anticipatory warrants is explained by the fact that the language under consideration formed part of the statute’s original enactment by Chapter 749 of the Acts of 1939, long before anticipatory warrants came into use. Indeed, the language under consideration antedates Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967) (abolishing the “mere evidence rule”). In one of its early decisions the Court of Special Appeals, speaking through Chief Judge Robert C. Murphy, later Chief Judge of this Court, described the operation of § 551 in light of Warden v. Hayden.

The court said: “It is thus clear from the provisions of the statute that what it, in effect, authorizes is a search of persons, places or things, as reasonably particularized in the warrant, for specifically designated property, unlawfully obtained or held, or of evidence of the commission of the crime, now including items relating thereto which are purely evidentiary in nature.2 As the search warrant is issued for the basic purpose of making a search, the probable cause necessary to support its issuance requires a proper showing not only that a crime has been or is being committed, but also that the evidence of the crime is upon the person or within the place or thing to be searched. "2See Warden v. Hayden, 385 U.S. 926 [ 87 S.Ct. 290 , 17 L.Ed.2d 210 ].” Salmon v. State, 2 Md.App. 513 , 519 & n. 2, 235 A.2d 758 , 761 & n. 2 (1967). This Court cited to Salmon in State v. Intercontinental, Ltd., 302 Md. 132 , 486 A.2d 174 (1985), in support of the following statement: ²³⁸ Id. at 138 , 486 A.2d at