State v. Faulkner

DEBORAH S., J. In this appeal, the State challenges an order by the Circuit Court for Baltimore City suppressing evidence of narcotics ⁴¹ trafficking and firearm-related offenses recovered from an apartment used by John Faulkner, the appellee. 1 The State presents a single question for review, which we have rephrased slightly: Did the circuit court err in granting the motion to suppress when there was a substantial basis for the issuing judge to find probable cause to issue the warrant and when, even if not, the police officers executed the warrant in good faith? For the reasons that follow, we answer “Yes” and therefore shall reverse the suppression order and remand the case to the circuit court for further proceedings. FACTS AND PROCEEDINGS The search warrant at issue here was the product of a month-long investigation by detectives with the Organized Crime Division of the Baltimore City Police Department into suspected narcotics trafficking by Faulkner. The information collected during the investigation formed the basis for an affidavit by Detectives George Davis and Mark Rutkowski (“detectives” or “affiants”) in support of applications for an arrest warrant for Faulkner and five search warrants: two for vehicles used by Faulkner, one for a business owned and operated by him, and two for residential dwellings linked to him.

The affidavit set forth the following relevant facts. In early July 2007, Detectives Davis and Rutkowski began investigating suspected narcotics trafficking in certain areas of Baltimore City by a person they knew only as “Poops.” A police registered confidential informant (“Cl”) gave the detectives information that “Poops” was selling bulk quantities of cocaine out of Jaffes Package Goods and Groceries (“Jaffes”), ⁴² a store he owned and operated at 1616 E. Oliver Street. The Cl also informed them that “Poops” was using a green 1994 Mitsubishi Galant with a cream colored left fender (“Mitsubishi”) to transport the cocaine to various distribution points. To verify the information from the Cl, the detectives began surveillance of Jaffes.

They saw a Mitsubishi matching the description provided by the Cl parked in front of Jaffes; and then saw a black male approximately 5' 8" to 5' 10" tall and between 185 and 200 pounds exit the store and enter the vehicle. A check of the vehicle’s license plate number revealed that Faulkner was the Mitsubishi’s owner and that his registered address was 485 E. 28th Street, in Baltimore City. The detectives met -with the Cl and showed him a photograph of Faulkner obtained from the Maryland Motor Vehicle Administration. The Cl “immediately and without hesitation” identified the person in the photograph as “Poops.” The Cl said he did not know any personal information about “Poops,” but he could engage in a controlled purchase of narcotics from him.

The detectives decided to consider the idea after further investigation. By entering Faulkner’s name into various law enforcement databases, the detectives confirmed Faulkner’s registered home address of 435 E. 28th Street. They also uncovered a second address linked to Faulkner: 5722 Plainfield Avenue, Apartment F (“the Plainfield Apartment”). They learned that on October 3, 2005, Faulkner had opened a Baltimore Gas and Electric account, which still was active, for the Plainfield Apartment.

Police set up surveillance of the E. 28th Street address and the Plainfield Apartment. More than ten times in the month of July 2007, they witnessed Faulkner drive to the Plainfield Apartment in the evening between 11:00 p.m. and midnight. They concluded from these observations that Faulkner was using the Plainfield Apartment as a residence without identifying it as such. After another meeting with the Cl, police decided to move forward with a controlled buy of cocaine from Faulkner.

During the third week of July 2007, the Cl contacted Faulkner ⁴³ to arrange a time and a location in Baltimore City for the purchase. (The precise location is not revealed in the record, presumably to protect the Cl’s identity.) With police in place to observe the transaction, the Cl went to the agreed meeting point. Faulkner arrived in the Mitsubishi. He was accompanied by a black female in her late 20s or early 80s.

The Cl made a successful purchase of cocaine from Faulkner, who then drove directly to Jaffes. Over the following weeks, police on “many occasions” observed Faulkner drive to the Plainfield Apartment after closing Jaffes. Sometimes Faulkner would leave Jaffes in the Mitsubishi. Other times, a black female with physical characteristics similar to those of the woman present at the controlled buy would arrive in a silver 1997 Audi (“Audi”), exit the vehicle, and re-enter on the passenger side to allow Faulkner to drive the car.

On one occasion, police followed the Audi to a parking area on Guilford Avenue, under the Jones Falls Expressway. Faulkner exited the vehicle carrying a dark plastic bag and entered the passenger side of a waiting Ford automobile operated by a black male. Faulkner spent several minutes in the Ford in “animated conversation” with the driver. When he exited the Ford, he no longer was carrying the plastic bag but instead was holding U.S. currency, which he placed in his pants pocket.

He and the unidentified black female then drove to Jaffes. Based on the affiants’ experience and training, they believed the interaction they had witnessed beneath the Jones Falls Expressway was an illegal drug transaction. During the fourth week of July 2007, under police supervision, the Cl made a second controlled purchase of cocaine from Faulkner. This time, Faulkner arrived alone at the meeting place (again undisclosed), in the Mitsubishi.

After completing the sale, he drove to Jaffes. A criminal background check of Faulkner revealed that he was arrested in 2004 on the charge of murder in the first degree “with a disposition of Criminal Jeopardy and a charge of Handgun: Use in Committing a Crime resulting in Probation Before Judgment.” The affiants also noted that their ⁴⁴ supervisor had discovered two properly documented handguns during a bar inspection of Jaffes in early 2006. The affidavit concluded with the detectives stating their belief that Faulkner was using his person as well as Jaffes, his “observed address” at Plainfield Avenue, the Mitsubishi, and the Audi “for the illegal ... storage, transportation and concealment of controlled dangerous substances, related paraphernalia and suspected proceeds from [narcotics] sales”; and that documentation of the drug trafficking would be found at Faulkner’s registered address, on E. 28th Street. The affidavit was accompanied by statements of “expertise” for both affiants.

The statement prepared by Detective Rutkowski included the following: As a result of the extensive knowledge gained by training, conversations, and the actual experience executing [narcotics-related] warrant[s][and] arrests, your Affiant can make certain statements relating to methods ... narcotics trafficking. Individuals involved in the narcotic[s] trade often use numerous different addresses to facilitate and aide in the furtherance of their illegal activity. Official documents and various personal documents and identification can verify this. (Emphasis added.) Detective Rutkowski’s statement went on to list the various types of evidence often recovered from addresses used by narcotics traffickers, including narcotics, objects used for processing and storing narcotics, U.S. currency, documents, and firearms.

On August 2, 2007, a judge in the District Court for Baltimore City, after reviewing the applications and attached documents submitted by the detectives, issued an arrest warrant for Faulkner and search warrants for Jaffes, the Plain-field Apartment, the E. 28th Street address, and the Mitsubishi and Audi automobiles. The warrants were executed on August 4, 2007. In the Plainfield Apartment, the detectives found four clear plastic bags containing what was later confirmed to be cocaine with street values ranging from approximately $800 to $2,000; several firearms, including one with an obliterated serial number; ammunition; U.S. currency stored ⁴⁵ in a shoe box; a digital scale with suspected cocaine residue; and other items associated with the processing and packaging of cocaine. In addition, they recovered various documents listing Faulkner’s name in association with that address.

The detectives also seized property from Jaffes, the E. 28th Street address, the Mitsubishi, and Faulkner himself. 2 Only the search of the Plainfield Apartment uncovered narcotics and weapons, however. Faulkner was charged with several crimes, including possession with intent to distribute cocaine and possession of a firearm during a drug trafficking crime. He moved to suppress the evidence recovered from the Plainfield Apartment as the product of an invalidly issued warrant. At a suppression hearing on June 8, 2009, the court granted Faulkner’s motion.

In so ruling, the motion judge reasoned that there was nothing in the affidavit linking Faulkner’s narcotics trafficking activities to the Plainfield Apartment, and therefore the warrant for that location was not issued upon probable cause. In particular, he commented that there is nothing unusual about a person’s returning to his home at night. The judge observed: “There’s just nothing to show the [Plainfield Apartment] was used for drug dealing, other than we can infer. Which the law says we can’t do.” Further, the motion judge found the affidavit so lacking in probable cause to search the Plainfield Apartment that the police could not have relied upon it in good faith.

Accordingly, the court ordered the evidence seized from that location suppressed. We shall provide additional facts as pertinent to our discussion. DISCUSSION “Substantial Basis” Test The Fourth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amend ⁴⁶ ment, Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), states that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [3] The task of a judicial officer presented with a warrant application “is to reach a practical and common-sense decision, given all of the circumstances set forth in the affidavit, as to whether there exists a fair probability that contraband or evidence of a crime will be found in a particular search.” Greenstreet v. State, 392 Md. 652, 668 , 898 A.2d 961 (2006) (citing Illinois v. Gates, 462 U.S. 213, 238-39 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983)); see Patterson v. State, 401 Md. 76, 91 , 930 A.2d 348 (2007) (“Probable cause has been defined by this Court as ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” (quoting Malcolm v. State, 314 Md. 221, 227 , 550 A.2d 670 (1988))) 4 When evidence has been recovered in a warrant-authorized search, it is not the task of a court ruling on a motion to suppress, or an appellate court reviewing the suppression decision on appeal, to conduct a de novo review of the issuing judge’s probable cause decision. State v. Jenkins, 178 Md.App. 156, 163 , 941 A.2d 517 (2008).

Rather, those courts ⁴⁷ are to determine whether the issuing judge had a “substantial basis” for finding probable cause to conduct the search. Id. “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.” State v. Coley, 145 Md.App. 502, 521 , 805 A.2d 1186 (2002) (internal quotation marks omitted) (citations omitted). Moreover, reviewing courts must assess affidavits for search warrants in “a eommonsense and realistic fashion,” keeping in mind that they “are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965). In Illinois v. Gates, supra, the Supreme Court explained that this deferential “substantial basis” standard of review is a function of the Fourth Amendment’s strong preference for searches carried out pursuant to warrants: [A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.

A magistrate’s determination of probable cause should be paid great deference by reviewing courts. A grudging or negative attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hyper-technical, rather than a eommonsense, manner. 462 U.S. at 236 , 103 S.Ct. 2317 (internal quotation marks omitted) (citations omitted). Indeed, the Gates Court further observed that over-scrutiny of affidavits prepared by police officers in support of warrant applications might cause them to eschew the warrant process altogether, thus increasing the perception of unlawful and intrusive police conduct. Acknowledging the difficulty in some cases of determining whether an affidavit demonstrates probable cause, the Court reasoned that the preference for warrants dictates that their validity be upheld in “ ‘doubtful or marginal cases.’ ” Id. at 237 n. 10, 103 S.Ct. 2317 (quoting Ventresca, 380 U.S. at 109 , 85 S.Ct. 741 ). ⁴⁸ See also Holmes v. State, 368 Md. 506, 521 , 796 A.2d 90 (2002); Ferguson v. State, 157 Md.App. 580, 593 , 853 A.2d 784 (2004).

The transcript of the suppression hearing in the case at bar reveals that the motion judge was making his own de novo decision as to whether there was probable cause to believe there would be evidence of drug dealing in the Plain-field Apartment. “The court’s responsibility, however, was not to assess to its satisfaction the existence of probable cause, but, rather, to determine if the issuing magistrate’s decision was supported by substantial evidence.” Coley, 145 Md.App. at 521 , 805 A.2d 1186 . Thus, the motion court erred in deciding the issue of probable cause de novo. If there indeed was a substantial basis for the issuing judge’s finding of probable cause, the court’s error was not harmless. Therefore, we must decide the “substantial basis” question ourselves, giving preference to the validity of the warrant to the extent that this is a close case.

The State argues that the affidavit’s descriptions of Faulkner’s sale of illegal narcotics, his travel from Jaffes to the Plainfield Apartment in the same vehicles he used for narcotics transactions, and the surveillance and utility records linking Faulkner to the Plainfield Apartment furnished a substantial basis for the issuing judge to find probable cause to believe narcotics and weapons were being kept at the Plain-field Apartment. The State implicitly acknowledges that the affidavit contains no factual assertions directly linking Faulkner’s criminal activity to the Plainfield Apartment. It maintains, however, that the totality of the circumstances establish a “common sense nexus” between Faulkner’s narcotics trafficking activities and that apartment. Before we can assess whether the warrant application furnished a substantial basis for the issuing judge to find probable cause to search the Plainfield Apartment, we must decide whether the detectives’ statements of expertise properly were before the issuing judge as part of the warrant application.

The motion judge made several comments to the effect that the statements of expertise could not be considered by the issuing judge, as they were not given under oath ⁴⁹ (although it is unclear from the record whether that played a part in the suppression court’s ruling). The statements of expertise, although part of the warrant application, were not contained within the document labeled “affidavit.” Each page of the statements was initialed by the issuing judge, however, so it is clear he reviewed and considered them as part of the warrant application. Under the “four corners” rule, an issuing judge’s decision as to whether probable cause exists for a search warrant for a particular location must be made solely from the contents of the affidavit submitted in support of the warrant request. Collins v. State, 17 Md.App. 876 , 381, 302 A.2d 693 (1973); Brooks v. State, 18 Md.App. 151, 154 , 282 A.2d 516 (1971); see Md.Code (2008 Repl.Vol., 2009 Supp.), Criminal Procedure Article, § 1-203(a)(2)(i) (“An application for a search warrant shall be: 1. in writing; 2. signed and sworn to by the applicant; and 3. accompanied by an affidavit that: A. sets forth the basis for probable cause as described in paragraph (1) of this subsection; and B. contains facts within the personal knowledge of the affiant that there is probable cause.”).

In this case, for each requested warrant, the issuing judge was given an application consisting of a multi-page affidavit, signed by the detectives; exhibits; and a typed, unsigned statement of expertise for each detective, setting forth his background, experience, and areas of knowledge respecting drug trafficking. At most, the detectives’ failure to label their statements of expertise as part of the affidavit or to include language in the affidavit incorporating the statements of expertise was a technical oversight. The detectives and the issuing judge understood them to be sworn statements contained within the warrant application. Indeed, the detectives referred to themselves in the statements as “affiants.” 5 In our view, given that the detectives presented the issuing judge with a sworn “application for search and seizure” war ⁵⁰ rant to which the statements of expertise, like the affidavit, were attached, and that the judge considered the statements as if they were part of the affidavit, it would exalt hypertechnicality over common sense to review the issuing judge’s decision as if it had been made without the statements.

Gates, 462 U.S. at 286 , 103 S.Ct. 2317 . 6 We return to the central question in this appeal: Did the issuing judge have a substantial basis for finding probable cause to search the Plainfield Apartment for narcotics and weapons? The controlling Maryland case on this issue is Holmes v. State, supra, 368 Md. 506 , 796 A.2d 90 . In Holmes , the Court upheld search warrants for narcotics for two houses on the same street in Baltimore City: one for Holmes’s house and the other for a house owned by the parents of Brian Coveil, Holmes’s confederate in crime. The police had observed Holmes entering and leaving both houses shortly before he and Covell walked to a nearby corner and engaged in hand-to-hand drug sales to one or two men; and they included that information in the warrant applications for the houses.

The Holmes Court declined to hold, as some courts have held, that, for a search warrant to issue for a suspect’s home, ⁵¹ there must be direct, ie., not inferential, evidence linking the criminal acts to the home. See, e.g., Yancey v. State, 345 Ark. 103 , 44 S.W.3d 315 (2001) (invalidating warrants to search defendants’ homes for drugs after they were seen by a wildlife officer watering 18 marijuana plants in a remote wooded area five to six miles from where they lived; court concluded that one could not rationally infer from the facts in the affidavit that the homes were being used in any criminal enterprise). The Court explained: Direct evidence that contraband exists in the home is not required for [the] search warrant [to issue]; rather, probable cause may be inferred from the type of crime, the nature of the items sought, the opportunity for concealment, and reasonable inferences about where the defendant may hide the incriminating items. Holmes, supra, 368 Md. at 522 , 796 A.2d 90 .

On the opposite end of the spectrum, the Holmes Court likewise rejected the idea that evidence of a person’s mere status as a drug dealer, that is, that he is known to deal drugs, can support a reasonable inference that he will have the tools or fruits of drug dealing in his home, so as to support a finding of probable cause to search his home. See State v. Coley, 145 Md.App. at 527 n. 18, 805 A.2d 1186 (interpreting Holmes as having “explicitly rejected [the] notion” that “there is probable cause to believe that drug dealers will keep drugs and records of the drug trade in their homes” and instead “requiring] some nexus be established, even in the absence of direct evidence, between the nature of the items sought and the place where they are to be seized.”). Accord United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005) (distinguishing cases in which police informants actually witnessed drug dealing activities by a suspect from those in which they merely alleged the suspect’s status as a known drug dealer; and observing that “the allegation that the defendant is a drug dealer, without more, is insufficient to tie the alleged criminal activity to the defendant’s residence”). See also United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir.1994) (reasoning that an ⁵² officer’s training and experience can be considered in determining probable cause but cannot “substitute for the lack of [an] evidentiary nexus” between the place to be searched and any criminal activity); State v. Thein, 138 Wash.2d 133 , 977 P.2d 582 (1999) (holding that general assertions in a warrant application affidavit that the suspect was a drug dealer and drug dealers commonly store narcotics and related evidence where they live were not sufficient to establish probable cause).

The Holmes Court adopted a middle ground that probable cause to search a suspect’s home can be found when there is a nexus between the suspect’s criminal actions and his home sufficient to support a reasonable inference that the tools or fruits of the crime probably will be found at his home. It reasoned by analogy to Mills v. State, 278 Md. 262 , 363 A.2d 491 (1976), and State v. Ward, 350 Md. 372 , 712 A.2d 534 (1998), which involved search warrants for weapons in the defendants’ homes. The defendants in those two cases were arrested away from their homes for crimes in which particular weapons were used, and were not in possession of the weapons when arrested. In upholding the warrants, the Court in both cases employed what it later characterized in Holmes as “pure deductive reasoning” to draw a reasonable inference that the weapons would be found in the homes: [A] particular kind of weapon was used in the crime; there was evidence linking the defendant to the crime; the weapon was of a kind likely to be kept, and not disposed of, by the defendant; when arrested shortly after the crime, the defendant was not in direct possession of the weapon; ergo, it was likely to be found in a place accessible to him—his home or car. 368 Md. at 521 , 796 A.2d 90 .

The Holmes Court likened this “deductive approach, based on reasonable factual assumptions,” id., to the approach other courts have employed to find a nexus between a suspect’s illegal drug activity and the probability that evidence of that activity will be found in his home. Applying the logic to the facts before it, the Holmes Court concluded that the issuing ⁵³ judge reasonably could infer from the circumstances, including that Holmes was seen selling drugs soon after he had entered and exited his house, at a location near his house, that evidence of drug trafficking probably would be found in his home. Accordingly, there was a substantial basis for the issuing court’s probable cause determination. Likewise, in Coley, supra, 145 Md.App. 502 , 805 A.2d 1186 , this Court held that there was a substantial basis for the issuing judge’s probable cause finding respecting Coley’s house.

There, police officers began surveilling Coley after a confidential informant told them that Coley was dealing drugs and that he lived alone at a particular address. The police had the informant call Coley, in his house, and arrange a controlled buy. Coley told the informant to meet him at a particular location. The police then watched Coley leave his house, drive his car to the location, which was near his house, and sell drugs to the informant.

In a second controlled buy, Coley drove to a meeting point, picked up the informant, and drove back to his (Coley’s) house. Coley went in the house alone and then came out and made contact with the informant, to whom he sold drugs. Relying upon Holmes , we held that, considered together, the controlled buys, the information from the informant about Coley, and Coley’s record of drug trafficking crimes constituted a sufficient nexus between Coley’s alleged criminal acts and his house to create probable cause that the tools or fruits of his crimes would be found there; and therefore there was a substantial basis for the issuing judge’s probable cause belief that evidence of drug trafficking would be found in Coley’s house. In Holmes and Coley , there was a close-in-time and location nexus between the defendants, their residences, and the actual drug sales that made quite reasonable the inferences that the residences were being used to store