State v. Carroll

BELL, Chief Judge. In Carroll v. State, 149 Md.App. 598 , 817 A.2d 927 (2003), the Court of Special Appeals held that the failure of police officers in that case to knock-and-announce their presence prior to executing a search and seizure warrant was unreasonable. We granted the State’s petition for a writ of certiorari, State v. Carroll, 374 Md. 582 , 824 A.2d 58 (2003), to decide the correctness of that ruling. The respondent, Kevin Powers Carroll, was arrested and charged with possessing a regulated firearm after having been convicted of a “felony crime of violence,” as proscribed by Md.Code (1957, 1996 Repl.

Vol.), Article 27, § 445(d)(1), presently codified at Md.Code (2003), § 5-133(c)(l) of the Public Safety Article, and possession of marijuana and drug paraphernalia. The evidence that formed the basis for the charges was obtained as a result of a search of the respondent’s Columbia, Maryland home, pursuant to a search and seizure warrant issued by a judge of the District Court of Maryland, sitting in Howard County. In support of the search and seizure warrant, the applicant, Officer Verderaime, submitted an affidavit containing the following information: ⁴⁴² “Within the past seventy-two (72) hours your affiant ... was contacted by a known and reliable source. This source wished to provide your affiant with information regarding a person possessing marijuana and as well as illegally possessing several handguns. “The source stated to your affiant that within the aforementioned time period the source was inside the residence of 5738 Margrave Mews, Columbia, Howard County, Maryland.

The source continued that Kevin Carroll lives at said residence. The source observed inside of Carroll’s residence and in Carroll’s possession five handguns. The source described the handguns as one Ruger, one .45 cal, one 9mm and two 380 semi-automatics. In addition, the source observed Carroll in possession of a quantity of marijuana.

The source described Carroll as a white male, 5-10” tall, 180 pounds, brown hair, and approximately 23 years old. Moreover, the source directed your affiant to Carroll’s house and pointed Carroll out to your affiant. ‘Your affiant ... says that this source is reliable based on information and active cooperation by this source in other investigation [sic].... “The source has a basis of knowledge regarding handguns. The source explained to your affiant the difference between a revolver and a semi-automatic handgun. * * # * ‘Your affiant ... caused the records of the Howard County Police Department Central Records to be checked for Kevin Carroll. These records indicate that Kevin Carroll is a white male 5-10 tall, 170 pounds, brown hair and with a date of birth of 11-26-1978; and residing at 5738 Margrave Mews, Columbia, Howard County, Maryland. “Your affiant ... caused the official records of the Maryland Justice Information System Data Base to be checked on any criminal convictions on Kevin Powers Carroll with a date of birth of 11-26-1978.

The official records indicated that in the year on [sic] 1999 Kevin Carroll was convicted of third ⁴⁴³ degree felony burglary and given a sentence of five years of which five years was [sic] suspended.” The affiant did not request permission from the warrant issuing judge for the police to enter the premises to be searched without knocking and announcing their presence; he did not ask, in other words, that a clause be included in the warrant authorizing a “no-knock” entry. 1 After the warrant was issued, the affiant sought the assistance of the Tactical Section of the Howard County Police Department in executing it. The Tactical Section often assisted with the execution of warrants when there were concerns for officer safety. Sergeant Merritt Bender, the head of the Tactical Section, consistent with the practice of the Section, conducted an investigation of the respondent’s criminal history, to determine whether Carroll had previously been arrested or convicted of a violent crime or a crime using a weapon. As a result, he learned that the respondent had been convicted of third-degree burglary in 1999 and that he had prior arrests for possession of marijuana and robbery.

Also as usual, Sergeant Bender investigated the location to be searched, including determining who occupied and frequented that location. With respect to this investigation, he learned from the affiant that the respondent was reputed to associate with an individual, Gregory Daniel Price, with whom Bender was familiar. Price, who had prior arrests for first degree assault, a number of robberies and CDS offenses, was believed to be carrying a handgun. Notwithstanding that there had been no request for a “no-knock” warrant, and thus, the warrant did not authorize entry without knocking and announcing, Sergeant Bender concluded that knocking and announcing before entry potentially would expose the officers to the danger of significant harm.

This conclusion was based on the respondent’s criminal back ⁴⁴⁴ ground, his known association with an individual with a history of violent crime, Sergeant Bender’s experience in executing between five and six hundred search warrants and consultations with his Captain, the affiant’s Captain and the Howard County State’s Attorney. The respondent moved, prior to trial, to suppress the evidence seized during the search. The Circuit Court for Howard County denied that motion. Pointing to the affidavit in support of the warrant, the court concluded that the “information at Sergeant Bender’s disposal was of sufficient substance and reliability to rise to the level of reasonable suspicion based on particularized facts.” It explained: “Here, Sergeant Bender knew that Defendant, previously convicted of third degree burglary, was in possession of firearms and drugs, had a previous arrest for robbery (a crime of violence), and associated with individuals with extensive criminal records, including crimes of violence.

The Court is convinced that Sergeant Bender had a reasonable suspicion of danger sufficient to allow the Howard County Police officers to enter the house without a knock.” The Court of Special Appeals reversed. It held that the “no-knock” entry was invalid where the police “purposely did not seek a ‘no-knock’ warrant,” Carroll, 149 Md.App. at 602 , 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 611-18 , 817 A.2d at 935-36 . In this Court, the State argues that the Court of Special Appeals “erred in finding that the no-knock entry was unreasonable, and in creating a rule that a [‘]no-knock[’] entry is reasonable only if authorized by the warrant itself, unless the exigency arises between the time the search warrant is issued and served.” It maintains, moreover, that there is no basis for a rule requiring that magistrate approval of a “no-knock” entry must be obtained at the time the warrant is issued, unless the facts establishing the exigency warranting a “no-knock” entry arise after the officer applies for, and obtains, ⁴⁴⁵ the search and seizure warrant.

The State argues, in any event, that the facts known to the officers at the time of their entry justified a “no-knock” entry. The respondent does not agree. He disputes the State’s contention that the Court of Special Appeals announced a new rule, that “no-knock” entries are inappropriate when police officers do not seek a “no-knock” warrant and the circumstances pertinent to the execution of the warrant do not change between the issuance of the warrant and its execution. As the respondent sees it, the intermediate appellate court simply announced a preference for “no-knock” warrants and, thus, for a neutral magistrate to conduct a pre-entry review of all facts bearing on the mode of entry, and disapproved of the way the officers, in this case, circumvented this preferred procedure.

The respondent submits that the intermediate appellate court, fully cognizant of the facts known to the officers, made an independent determination that the “no-knock” entry, in this case, was not based upon sufficient particularized facts, as required by Richards v. Wisconsin, 520 U.S. 385 , 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997) and Wilson v. Arkansas, 514 U.S. 927 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995). I. When we consider the propriety of the denial of a motion to suppress under Maryland Rule 4-252, we review only the record of the suppression hearing. Rowe v. State, 363 Md. 424, 431 , 769 A.2d 879, 883 (2001). See also Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95, 98 (1989); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749, 755 (1987).

In conducting that review, we give great deference to the hearing judge’s credibility determinations and first-level fact-finding. Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491, 497 (1999); Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372, 377 (2003). When, there is conflicting evidence, we are to consider it in the light most favorable to the State, Rowe, 363 Md. at 432 , 769 A.2d at 883 , we accept the facts as found by the hearing judge unless those findings are clearly erroneous. Dashiell, 374 Md. at 93 , ⁴⁴⁶ 821 A.2d at 377 ; McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430, 435 (1992); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990).

Legal conclusions, however, are reviewed “de novo.” Rowe, 363 Md. at 432 , 769 A.2d at 883 ; Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519, 525 ; Ferris, 355 Md. at 368 , 735 A.2d at 497 . Stated differently, we must make our own independent constitutional appraisal as to the ultimate conclusion, the propriety of the ruling under review. Dashiell, 374 Md. at 93-94 , 821 A.2d at 377 ; Riddick, 319 Md. at 183 , 571 A.2d at 1240 . II In Davis v. State, 383 Md. 394 , 859 A.2d 1112 , 2004 WL 2360589 (2004), we considered an issue quite relevant to the resolution of the case sub judice, “whether, where there is no statute so providing, a judge is authorized to issue a £no-knock’ search and seizure warrant, on the basis of which the police may make a ‘no knock’ entry to execute that warrant.” Id. at 397, 859 A.2d at 1113 .

We held that a Maryland judge had no such authority. Id. at 427-28 , 859 A.2d at 1132 . In that case, two police officers, having conducted an investigation, applied for a search and seizure warrant for, inter alia, premises, in which, they had been informed by a confidential source, Davis and his co-defendant, Adams, kept a major supply of marijuana. Id. at 398-99 n. 5, 859 A.2d at 1114-15, n. 5 .

Listing their prior experience, which they said “indicates that nareotic/drug dealers/users have, carry, and use Firearms to protect their operations,” the officers’ affidavit informed the judge reviewing their application for warrant that they would “attempt to gain entry by the rush or No-Knock forced entry.” Id. at 400 , 859 A.2d at 1116 . The judge issued the warrant, incorporating the affidavit by reference. Id. at 400 , 859 A.2d at 1116 . As they stated that they intended to do, the police gained entry to the premises without knocking and announcing and through the use of force.

As a result of the search, Davis and Adams were arrested and various weapons, drug paraphernalia and marijuana were recovered. Id. at 400 , 859 A.2d at 1116 . ⁴⁴⁷ Davis and Adams moved to suppress the evidence seized during the search. They argued, “inter alia,[ 2 ] that the facts alleged in the affidavit submitted in support of the search and seizure warrant were insufficient to justify a ‘no-knock entry.’” Davis, 383 Md. at 400-01 , 859 A.2d at 1116 . The Circuit Court for Baltimore City denied the motion, reasoning: “ ‘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. “ T 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 close question for the Court. “ ‘However, crediting the affiants’ experience which involves hundreds of narcotics arrests, extensive training, and considerable experience in narcotics law enforcement, 1 ⁴⁴⁸ cannot conclude that their conclusion with respect to the likeliness of firearms on the property is an irrational one.’ ” Id. at 401-02 , 859 A.2d at 1116 . Thus, it was the police officers’ wealth of experience in narcotics law enforcement that tipped the scales in favor of finding a reasonable suspicion for the “no-knock” entry.

Both petitioners timely, but unsuccessfully, appealed. Different panels of the Court of Special Appeals, in separate opinions, affirmed the judgments of the Circuit Court. 3 Only one of the opinions, Davis v. State, 144 Md.App. 144 , 797 A.2d 84 (2002) (Davis I), addressed the merits of the “no-knock” warrant issue. As to the merits, the court concluded that the affidavit in support of the warrant “contained sufficient facts to establish reasonable suspicion of the then existence of exigent circumstances and, thus, to permit a judge to make a pre-entry finding that a ‘no-knock’ entry onto the premises was justified.” Id. at 152 , 797 A.2d at 89 . Like the warrant issuing court, although it articulated additional rationale, the intermediate appellate court primarily relied on the experience of the affiant officers to credit their conclusion that those involved in the drug trade often are dangerous, carry weapons, and that drugs are easily and quickly destroyed when entry onto the premises is delayed or stalled.

Id. at 158 , 797 A.2d at 93 . Although the petitioners in Davis questioned, on appeal, only the sufficiency of the factual allegations offered to justify ⁴⁴⁹ issuance of a “no-knock” warrant, assuming, as it were, the authority of Maryland judges to issue such warrants, we surveyed other jurisdictions to determine how “no-knock” warrants are handled. 383 Md. at 408-10 , 859 A.2d at 1120-21 . That survey revealed that, although some states have enacted “no-knock” warrant statutes, expressly authorizing such warrants, there is a split of authority among states without such statutes with respect to the authority of judicial officers in those states to issue “no-knock” warrants. Id. at 415-18 , 859 A.2d at 1125-26 .

One line of cases, characterized by 2 Wayne R. LaFave, Search And Seizure: A Treatise On The Fourth Amendment § 4.8(g) (1996), as “ftjhe prevailing but not unanimous view,” and exemplified by Parsley v. Superior Court, 9 Cal.3d 934 , 109 Cal.Rptr. 563 , 513 P.2d 611, 615 (1973); State v. Bamber, 630 So.2d 1048, 1050-51 (Fla.1994); State v. Eminowicz, 21 Ariz.App. 417 , 520 P.2d 330, 332 (1974); State v. Acre, 83 Or.App. 185 , 730 P.2d 1260, 1262 (1987), holds that statutory authority is a prerequisite to the issuance of “no-knock” warrants. The other line, exemplified by Commonwealth v. Scalise, 387 Mass. 413 , 439 N.E.2d 818, 822 (1982); State v. Lien, 265 N.W.2d 833, 838 (Minn.1978); State v. Henderson, 245 Wis.2d 345 , 629 N.W.2d 613, 622-23 (2001); Poole v. State, 266 Ga.App. 113 , 596 S.E.2d 420, 422 (2004); White v. State, 746 So.2d 953, 956 (Miss.App.1999); see State v. Johnson, 168 N.J. 608 , 775 A.2d 1273 (2001); United States v. Dupras, 980 F.Supp. 344, 348-49 (D.Mont.1997), reaches the opposite result, leaving the decision whether to issue such a warrant to the discretion of the judicial officer. Some of these latter courts, we discovered, “require the police at the scene to make a ‘threshold reappraisal of the threat,”’ notwithstanding the fact that a “no-knock” warrant had been issued. 383 Md. at 416 , 859 A.2d at 1125 , quoting Scalise, 439 N.E.2d at 823 and citing Lien, 265 N.W.2d at 839 . Having conducted the survey, we observed that the Court of Special Appeals, in Davis I addressed, as a threshold matter, an issue not theretofore decided by a Maryland court, whether “no-knock” warrants are authorized by Maryland law and ⁴⁵⁰ concluded that they were.

Davis, 383 Md. at 418 , 859 A.2d at 1126 . To arrive at that conclusion, we noted the court’s reliance on the warrant preference, id. at 418 , 859 A.2d at 1126 , citing and quoting Davis I, 144 Md.App. at 155-56 , 797 A.2d at 91-92 , and its determination that “ ‘[t]his preference should be equally applicable to ‘no-knock’ warrants.’ ” [ 3 ] Id. at 418, 859 A.2d at 1127 , quoting Davis I, 144 Md.App. at 156 , 797 A.2d at 92 . We also took note of the intermediate appellate court’s application of the warrant preference in the “no-knock” warrant context: “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 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 shoum 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 ⁴⁵¹ 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 418-19, 859 A.2d at 1127 , quoting Davis I, 144 Md.App. at 156-57 , 797 A.2d at 92 (footnotes omitted).

We reviewed two subsequent opinions of the intermediate appellate court, 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 latter of which is the subject of review in the case sub judice. Those opinions confirmed the approach announced in Davis I. Id. at 420-22, 859 A.2d at 1127-29 . The issue in Riley , we characterized as “involving] determining to what deference a decision by a warrant issuing judge is entitled to be given by a reviewing judge.” Id. at 420-21, 859 A.2d at 1127-28 . Analogizing to the warrant preference and concluding 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,” Riley, 147 Md.App. at 120-121 , 807 A.2d at 802 , the court opined, ‘jjjust as the decision WHETHER to cross the threshold should be submitted to a neutral and detached judicial figure, so too should the decision as to HOW to cross that threshold.” Id. at 121 , 807 A.2d at 802 .

It was from this premise, we pointed out, that the Court of Special Appeals “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.” 383 Md. at 421 , 859 A.2d at 1128 . In Carroll, we summarized as follows: “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 ⁴⁵² a “no-knock” warrant,’ Carroll, 149 Md.App. at 602 , 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 “particularized 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