Lindsey v. State

HOTTEN, J. The instant appeal arises from a decision of the Circuit Court for Baltimore County, denying appellant, Shaun Lindsey’s motion to suppress information contained in an affidavit, which provided, inter alia, the basis for issuing a search warrant for his apartment. Appellant was charged by indictment with three counts of narcotics law violations, (Md.Code (2002, 2013 Repl.Vol.) § 5-612 of the Criminal Law Article (“Crim. Law?”), Crim. Law, § 5-602(2), and Crim.

Law, § 5-601), as a result of the large amounts of heroin and drug paraphernalia discovered in his apartment. Thereafter, appellant filed a motion for an evidentiary hearing to suppress information contained in the affidavit. Following a two-day motions hearing, the motion was denied. Appellant subsequently entered a conditional guilty plea pursuant to Md. Rule 4-242(d)(2) and received a ten-year sentence without parole.

This appeal followed. Appellant presents one question for our review, which has been divided into subparts as follows: 1. Did the [circuit] court err in denying [appellant’s] Motion to Suppress? A. By trespassing onto the curtilage of [appellant’s] apartment to have a [K-9] dog investigate the contents of his apartment[,] did police violate [appellant’s] Fourth Amendment rights[?] B. Did [appellant] have a reasonable expectation of privacy in the curtilage around his apartment door?

C. Did the affidavit in support of the search warrant contain misleading factual information as well as uncorroborated information provided by a confidential source not shown to be reliable? ²⁵⁹ D. After redacting all of the unlawfully obtained information from the warrant application, did probable cause to search [appellant’s] apartment exist? For the reasons that follow, we shall affirm the decision of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On August 26, 2013, the circuit court issued a search and seizure warrant for appellant’s apartment located in Cockeys-ville, Maryland, in response to an affidavit authored by Baltimore City Police Officer, Jai Etwaroo (“Officer Etwaroo”). The affidavit was largely predicated on information received from confidential informants, 1 who alleged that heroin was located in appellant’s apartment, as well as information provided by an acquaintance of appellant, Anthony Thomas Hall (“Mr. Hall”), regarding appellant’s alleged drug-related activities.

The affidavit also included information discovered through an on-going police investigation, in which appellant was an alleged target. Members of the Baltimore County Police Department’s Narcotics Unit, in conjunction with the Baltimore City Police Department’s Northeast District Operation Unit/Flex, executed the search warrant for appellant’s apartment. The search was initiated by a positive alert received from a K-9 dog in the area in front of appellant’s apartment door. Upon entry, detectives encountered appellant in the hallway of his apartment and subsequently discovered large amounts of heroin and drug paraphernalia within the apartment.

On September 16, 2013, appellant was indicted for possession of a large quantity of heroin, possession with intent to distribute, and possession of heroin, in violation of Crim. Law, ²⁶⁰ §§ 5-612, 5-602(2), and 5-601. On December 23, 2013, appellant filed a motion requesting an evidentiary hearing to determine whether the search warrant was supported by probable cause. A two-day motions hearing was held before the circuit court on November 3 and 5, 2014.

Officer Etwaroo testified on behalf of the State. Appellant, Mr. Hall, and Stephen Andersen (“Mr. Andersen”), a licensed private investigator and former Maryland State Police officer hired by appellant’s counsel, were witnesses for the defense. Officer Etwaroo testified regarding a conversation that he had with Mr. Hall shortly after his arrest on June 4, 2013, in which Mr. Hall disclosed the alleged drug-related activities of appellant, 2 the information provided by the confidential informants, the events that occurred prior to obtaining a search warrant, and the manner in which the warrant was executed. During Mr. Hall’s testimony, he recanted the statements allegedly made during his conversation with Officer Etwaroo.

Mr. Hall denied ever speaking to Officer Etwaroo after his arrest on June 4th and stated that several references in the affidavit were not true. Mr. Hall also pointed to several inaccuracies contained in the affidavit regarding his arrest for an unrelated charge. However, the circuit court concluded that Mr. Hall’s contentions were not credible. 3 Mr. Andersen testified regarding the security features of appellant’s apartment building. Mr. Andersen also recounted that during an interview with Mr. Hall, he denied ever speak ²⁶¹ ing with Officer Etwaroo.

The contents of the interview were subsequently memorialized in a ten-page affidavit written by Mr. Andersen and signed by Mr. Hall. On November 5th, after considering the evidence and testimony of the witnesses, the judge denied appellant’s motion to suppress. Thereafter, appellant entered a conditional guilty plea 4 to the count of possession with intent to distribute heroin (Crim.Law, § 5-602(2)). On March 2, 2015, appellant was sentenced to a ten-year term of incarceration without parole and granted an appeal bond.

Appellant noted a timely appeal to this Court. Additional facts shall be provided, infra, to the extent they prove relevant in addressing the issues presented. STANDARD OF REVIEW In Carter v. State, 178 Md.App. 400, 408-09 , 941 A.2d 1222 (2008), this Court articulated the standard followed by a judge issuing a warrant and the standard of review exercised by an appellate court reviewing the same. We opined: Our review of the judge’s decision to issue the search warrant[ ] is limited to whether there was a substantial basis for concluding that the evidence sought would be ²⁶² discovered in the place described in the application for the warrant.

The substantial basis standard involves something less than finding the existence of probable cause, and is less demanding than even the familiar ‘clearly erroneous’ standard by which appellate courts review judicial fact finding in a trial setting. Furthermore, [t]he judge’s determination that probable cause exists is entitled to great deference. The issuing judge’s probable cause determination is a practical, common-sense decision based on analyzing the affidavit in light of the totality of the circumstances. [Thus,] [an] after-the-fact scrutiny by an appellate court regarding the sufficiency of an affidavit should not take the form of de novo review. A [warrant-issuing judge’s] determination of probable cause should be paid great deference by reviewing courts.

Doubtful or marginal cases should be resolved in favor of the judge’s decision to issue the warrant. (internal citations and citation omitted). Moreover, when reviewing the denial of a motion to suppress evidence, “we confine ourselves to what occurred at the suppression hearing. We view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion, here, the State.” Gonzalez v. State, 429 Md. 632, 647 , 57 A.3d 484 (2012) (citation omitted).

Furthermore, “[w]e extend great deference to the findings of the motions court as to first-level findings of fact and as to the credibility of witnesses, unless those findings are clearly erroneous.” Brown v. State, 397 Md. 89, 98 , 916 A.2d 245 (2007) (citation omitted). “The [court’s] legal conclusions, however, are not afforded deference, and are reviewed de novo.” Swift v. State, 393 Md. 139, 155 , 899 A.2d 867 (2006) (citations omitted). DISCUSSION I. Substantial Basis for Probable Cause Appellant contends that the affidavit in support of the search warrant contained misleading factual information, as well as uncorroborated information provided by a confidential source that was not shown to be reliable. Appellant relies on ²⁶³ State v. Lee, 330 Md. 320 , 624 A.2d 492 (1993) and asserts that “[t]he Lee case is particularly instructive with regard to [appellant’s] case” because the affidavit in both cases failed to establish the confidential source’s basis of knowledge, veracity, or reliability. However, appellant’s reliance on Lee is misplaced. “Whether information provided by an unidentified informant supports a finding of probable cause depends on a practical, non-technical ‘totality of the circumstances’ approach that considers the informant’s veracity, reliability, and basis of knowledge.” Lee, 330 Md. at 326 , 624 A.2d 492 (citations omitted); accord West v. State, 137 Md.App. 314, 329 , 768 A.2d 150 (2001).

See generally, Illinois v. Gates, 462 U.S. 213, 233 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983). Appellant faded to demonstrate that under the totality of the circumstances, the informants’ basis of knowledge, veracity, or reliability was lacking. The affidavit in Lee, 330 Md. at 323 , 624 A.2d 492 , stated, in part: Frederick Roy Lee reportedly lived in a mobile home on Route 3, Pine Hollow Road, in Rawlings; 2) a confidential informant, or C.I. # 18-2970, had that day informed the police that Lee possessed the illegal drug LSD; 3) the informant stated that Lee ‘is supposedly receiving’ more of the drug on the same day; 4) ‘[t]his C.I. is aware of Freddy Lee being in possession of LSD th[r]ough another individual [the informant’s brother] who has indicated that he can purchase LSD for the C.I.’; 5) the confidential informant would arrange to have this ‘unwitting’ individual purchase LSD from Lee at about 11:30 p.m. that evening; 6) Lee had been convicted of possession of marijuana with intent to distribute in September 1988; and 7) the Cumberland City Police Department had received two anonymous reports in October 1991 that Lee was involved in the distribution of LSD. In support of its conclusion that there was no substantial basis for probable cause based upon the information contained in the affidavit, the Court of Appeals in Lee , observed: ²⁶⁴ Taking all of the circumstances into account, and with due deference to the issuing [judge’s] determination, we hold that probable cause did not exist to search Lee’s mobile home.

The factual predicate set out in [the] application for a warrant, to which we must confíne our review, consisted essentially of a second-hand rumor: the officer merely recounted information about Lee passed through the informant from his brother. The affidavit did not assert that the informant had previously given police truthful and reliable information about criminal activity. The affidavit did not assert that the informant’s brother was truthful and reliable. The affidavit did not explain how the brother obtained the incriminating information about Lee.

The affidavit did not describe how the brother concluded he could buy drugs from Lee.... The affidavit failed entirely to address either factor in the instant case. Id. at 326-27 , 624 A.2d 492 . The circumstances of Lee are inapposite to the case before us.

First, the initial information supplied by informant # 1 was not predicated on second-hand knowledge. The affidavit stated: During the month of May, 2013[,] your affiant, BPD members, received information from a confidential source about black males known as APPLE and [appellant] who sell large amounts of heroin and/or cocaine throughout Baltimore City. For the remainder of this affidavit the confidential source will be referred to as [informant # 1]. [Informant # 1] explained that APPLE drove a white in color Lexus and lived on St. George’s Avenue by Woodbourne Avenue. (emphasis added).

Thus, unlike Lee , where the affidavit consisted of essentially secondhand rumor recounting information about Lee passed through the informant from his brother, the affidavit in the instant case consisted of information directly from the confidential informant. Cf. West, 137 Md.App. at 331-32 , 768 A.2d 150 (stating that the affidavit fails to mention whether the concerned citizens’ whose information provided ²⁶⁵ was used in the affidavit, are speaking from first-hand knowledge received through their own sense or merely passing on information they heard from others). Accordingly, appellant’s reliance on West is also misplaced.

Additionally, unlike the affiant in Lee , Officer Etwaroo demonstrated that informant # 1 had previously provided truthful and reliable information, and also explained how the incriminating information was obtained. As the State noted, “[t]he warrant-issuing judge knew from the affidavit that this same confidential informant’s tips had already reliably led to [Mr.] Hall’s arrest on June 4, 2013.” The affidavit stated: Information obtained from [informant # 1] and investigation by BPD members [led] to the arrest of [Mr. Hall], On June 4, 2013 at approximately 1115 hrs [Mr. Hall], DOB 1.12.74, AKA “APPLE” was arrested in reference to a Search and Seizure warrant conducted at 4924 St. Georges Avenue Baltimore, Maryland. [Mr. Hall] is a convicted murderer and was in possession of approximately one half kilogram of heroin and approximately $54,000 [] U.S. Currency. After being read his Miranda rights, [Mr. Hall] explained to your [a]jfiant that an individual by the name of [appellant] sells a large amount of heroin and cocaine throughout Baltimore City. [Mr. Hall] further explained that [appellant] drives a silver Mercedes Benz in the area of Loch Raven and Joppa Road. [Mr. Hall] advised that [appellant] meets clients off Padonia Road by an apartment complex which is also where he believes [appellant] has an apartment that he uses to store narcotics. [Appellant] was further identified using police databases as Shaun Donte Lindsey (M/B/DOB 2-19-71). [Appellant] is a known convicted felon with multiple arrests for [controlled dangerous substances]. [Appellant] has an OPEN arrest warrant issued by the District Court of Baltimore City under D130452803. Armed with this information [y]our [a]ffiant began an investigation into [appellant].

(emphasis added). Recounting information provided during an encounter with informant # 2 in August 2013, the affidavit further stated: ²⁶⁶ During the middle of August 2013[,] your affiant met with [informant # 2] [ ]. During this meeting we ascertained that [appellant] was now in possession of [a] large amount of heroin and was now about to begin distributing same throughout Baltimore City. [Informant # 2] advised Officers that [appellant] has been laying low (NOT SELLING NARCOTICS) because his best friend APPLE was arrested while in possession of a large amount of heroin. [Informant # 2] explained that [appellant] was laying low because he believed APPLE, ... was snitching (TELLING LAW ENFORCEMENT INFORMATION) about [appellant’s] heroin distribution organization. [Informant # 2] advised that [appellant] knew this to be true because APPLE has a terrible criminal record to include murder and APPLE pled guilty to only five years for this arrest. [Informant # 2] explained that [appellant] believed there was no way APPLE could have only got a five year sentence without his cooperation with Law Enforcement. Due to APPLE’S arrest [informant # 2] advised that [appellant] would run, flee or take off at the first sign of police presence.

Today, August 26[th][,]2013, your affiant received information that [appellant] was heavy and on deck (IN CURRENT POSSESSION OF A LARGE AMOUNT OF NARCOTICS). Your affiant also received information that [appellant] was going to conduct a large narcotics transaction at 7:00 am (August 27, 2013) where the bulk of [appellant’s] heroin would be sold to another source. Baltimore City Police learned that [appellant] was currently operating a silver Mercedes Benz with Maryland registration [ ]. Your affiant was able to locate this vehicle while it was traveling Northbound on Loch Raven crossing Joppa Road.

(emphasis added). The information supplied by both informants later corroborated with the evidence discovered during execution of the warrant. The information supplied also coincided with the evidence Officer Etwaroo obtained through police investigation. In the affidavit, Officer Etwaroo further stated: ²⁶⁷ Using police databases, your affiant was able to determine that the Mercedes was registered to Ellen Hinton.

Your affiant knows that drug distributors often utilize vehicles registered in other people’s names to avoid being identified by the police. Your affiant conducted further investigation using police databases and determined that Hinton and [appellant] have both utilized the address of 4617 W. Forest Park MD in the past and now [appellant] was using the address of 10 Queensbridge Court Apt. K, Coekeysville, MD----This address was given to CBIF by [appellant] on 11/27/2012 when he was last arrested. This information corroborated information that your affiant received [from Mr. Hall] that [appellant] has an apartment near Padonia Road.

Although there is little evidence in the record establishing the veracity, reliability, and basis of knowledge of informant # 2, this circumstance is not fatal to the sufficiency of the affidavit. The information supplied by informant # 2 was only confirmatory of the information previously supplied by informant # 1 and the information Officer Etwaroo discovered through police investigation. In light of the foregoing, appellant failed to discredit the informants’ veracity, reliability, and basis of knowledge. See State v. Coley, 145 Md.App. 502, 531 , 805 A.2d 1186 (2002) (crediting the information contained in the affidavit because “the officers used a ‘past, proven, and reliable’ [informant] who proffered direct statements involving [Coley’s] [controlled dangerous substance] distribution history and place of residence.”).

We also reject appellant’s further argument that “[e]very fact [Officer] Etwaroo attributed to the confidential source is nothing more than a conclusory statement.” There are few, if any, statements in the affidavit that can be considered conclu-sory. In the affidavit, Officer Etwaroo recounted: Using police databases, your affiant was able to determine that the Mercedes was registered to Ellen Hinton. Your affiant knows that drug distributors often utilize vehicles ²⁶⁸ registered, in other people’s names to avoid being identified by the police.... Attempting to further my investigation your affiant followed [appellant’s] vehicle onto the ramp leading to interstate 695 Westbound.

While following this vehicle it continuously changed speeds and lanes dramatically. Based upon your affiant’s training and expertise and what your affiant learned from veteran officers your affiant believed this vehicle was showing characteristics of an individual who is attempting to detect or observe a follow or tail. Your affiant knows that major narcotic distributors utilize this technique in order to avoid police detection and[/]or rival narcotic distributors attempting to rob them.... Your affiant believes that this behavior [unidentified persons entering the apartment of a suspected narcotic dealer and leaving after only visiting for a few minutes] is indicative of narcotics trafficking....

(emphasis added). Assuming these averments are conclusory, appellant’s argument still fails. In West, 137 Md.App. at 323-24 , 768 A.2d 150 , this Court analyzed the Fourth Amendment’s probable cause requirement relative to conclusory statements contained in an affidavit. In that case, we opined: Although the Supreme Court has determined that more than conclusory statements are required in order for an affidavit to be sufficient ground for probable cause, it has stated that a flexible, common-sense standard best serves the purposes of the Fourth Amendment....

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis ²⁶⁹ by scholars, but as understood by those versed in the field of law enforcement. (emphasis added).

Officer Etwaroo’s assertions were based upon his training, experience, and expertise with arrests, searches, and seizures relative to violations of narcotics laws, obtained during his tenure as a Baltimore City police officer. See Agurs v. State, 415 Md. 62, 88 , 998 A.2d 868 (2010) (stating that because of the officers’ significant training, experience, and expertise, their assertions “drug dealers often store drugs, cash, records, and other evidence of drug law violations in their residences[,]” has significance in determining “whether there is substantial basis to conclude police will actually find evidence at a drug dealer’s home.”). A common-sense approach in reviewing the affidavit under West , reveals that Officer Etwaroo’s assertions were reasonable under the circumstances and entitled to deference. See Coley, 145 Md.App. at 530-31 , 805 A.2d 1186 (giving deference to officers’ assertion that in their experience, persons engaged in drug law violations are likely to store contraband and documents related to drug activity at their residences).

Appellant further avers: Not once during his surveillance of [appellant] on August 26 did [Officer] Etwaroo witness any illegal behavior. Indeed he testified that ‘[i]t could be fair to say’ that he witnessed no illegal activity. We are not persuaded. In Dixon v. State, 133 Md.App. 654, 695 , 758 A.2d 1063 (2000), this Court opined: [P]robable cause in the context of an informant’s tip depends on some combination of the substance of the tip and corroborative observation by law enforcement of the suspect’s activities, some of which may appear innocent on its face.

In the case of a confidential informant, as opposed to an anonymous one, evidence as to the informant’s demonstrated reliability is also vital. See [Illinois v. Gates, 462 U.S. 213 , 244 n. 13, 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) ] (acknowledging that ‘innocent behavior frequently will pro ²⁷⁰ vide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens[ ] demands’); Draper v. United States, 358 U.S. 307 [ 79 S.Ct. 329 , 3 L.Ed.2d 327 ] (1959); see also United States v. McCraw, 920 F.2d 224, 227-28 (4th Cir.1990) (stating that combination of tips from reliable confidential informant and first-hand corroborative observation of suspicious activity by law enforcement provided probable cause to arrest); United States v. Shepherd, 714 F.2d 316, 317 (4th Cir.1983) (same) []; Birchead v. State, 317 Md. 691, 703-04 [ 566 A.2d 488 ] (1989) (concluding that search warrant was supported by probable cause when tips from anonymous informants were combined with corroborative observations by police). (emphasis added). Accordingly, Officer Etwaroo’s testimony that he did not witness any illegal activity during surveillance of appellant, is of no consequence.

Appellant further argues: Not only did [Officer] Etwaroo mislead the issuing judge about the number of confidential sources providing him information, he also [misled] the judge through several material omissions. For instance, the affidavit leads one to believe that [Mr.] Hall, when arrested, voluntarily offered [Officer] Etwaroo information about [appellant] when, in fact, as [Officer] Etwaroo testified, [Mr.] Hall began providing information after [Officer] Etwaroo told him that ‘you know [the police] are only here because of [appellant],’ and ... told him to ‘put us onto [appellant] and we’ll leave you alone.’ Had the issuing judge been made aware of the fact that [Mr.] Hall was offered assistance by the police during his arrest ... the judge may have found the claimed information provided by [Mr.] Hall was suspect---- Further, [Officer] Etwaroo wrote in his affidavit that ‘as of [11:00 p.m.]’ [appellant] had not come out of his apartment during the surveillance.[] Also included in the affidavit is the fact that the K-9 unit arrived at 10:45 p.m. Yet [Officer] ²⁷¹ Etwaroo testified that he ‘stayed [at the scene] ‘til I got relieved about 10 o’clock, to go write [ ] the search warrant.” Appellant’s arguments here are similarly unpersuasive. As the State noted, “[appellant] raised some of these same points in support of his Franks claim, 5 but [ ], he has since abandoned that claim on appeal.” Thus, appellant’s arguments were “pulverized by the [circuit] court’s express finding that it credited the officer’s testimony precisely because he took responsibility for and explained” the imperfections in the affidavit.

We agree. During the November 2014 motions hearing, the circuit court concluded: THE COURT: Okay. I did listen very carefully ... to the testimony, because I felt like it — this case truly came down to it, and I did have to make some credibility assessments. And it really comes down to [Officer Etwaroo] ... and Mr. Hall.

And I do think [Officer Etwaroo] was very honest in that he admitted his warrant was not the most technically perfect warrant it could have been. In denying appellant’s motion to suppress, the court further concluded: THE COURT: I believe that Mr. Hall spoke to [Officer Etwaroo], and that [he] used that information in his appliea ²⁷² tion for the warrant. So, I think that our — the Franks doesn’t apply here, because I don’t think that Mr. Hall’s information given to [Officer Etwaroo] needs to be excised from that warrant. THE COURT: So, combining that with what I