State v. Greenstreet

RODOWSKY, J. “The existence of grounds showing probable cause [for the issuance of a search warrant] must ordinarily be shown within the four corners of the affidavit.” Valdez v. State, 300 Md. 160, 168 , 476 A.2d 1162, 1166 (1984). The question presented here is whether the “four corners” rule is so restrictive that it requires the reviewing court to accept a clerical error in the affidavit as fact, particularly when the error is apparent on the face of the affidavit. As explained below, we shall hold that the four corners rule is not so restrictive. On April 15, 2004, Officer Gregory P. Huck, an eleven year veteran of the Anne Arundel County Police Department, with six years experience in the investigation of controlled dangerous substances violations, applied to a judge of the District Court of Maryland, sitting in Anne Arundel County, for the search warrant that is the subject of this appeal.

His affidavit, taken that day by the judge, reads in part as follows: “4.) In Support of the attached application for a Search and Seizure Warrant, the affiant(s) depose(s) and say(s) that the probable cause for the Search and Seizure is as follows: “Within the past month, your Affiant, Officer Greg H,uck # 1067, received information from several citizens ⁴²¹ complaints regarding possible CDS activity occurring at the residence of 8472 Meadow Lane, Pasadena, Anne Arundel County, Maryland. The complaints advised that there is a large amount of vehicle and foot traffic visiting the residence and that the vehicles sometimes stay for short periods and the[n] leave the area. I am aware that this type of activity is often indicative of CDS sales activity. The complaints also advised that the house often hosts disorderly parties, which disturb the neighborhood. “On 4-14-03 Cpl.

Thomas Newman # 728 and I conducted a trash seizure of 8472 Meadow Lane, Anne Arundel County, Maryland 21122. I was aware that trash collection days for the residence are Wednesday and Saturday. We successfully seized 6 bags of trash from the residence. The bags were located on the ground and in a trash can placed at the edge of the roadway in front of the residence.

The trash was placed in such a manner that would indicate that it was left for the trash removal company. All the other residences in the area had their trash placed out in a similar manner that would indicate that it was abandoned property. We placed the trash in the back of a department vehicle and transported the refuse back to Eastern District Station. Upon opening the trash bags I recovered the following items from inside the trash bags. “1.

Seven (gallon size) Ziploc freezer bags containing greenish-brown plant residue. “2. Five (sandwich size) plastic bags containing greenish-brown plant substance. “3. Large Rival heat seal bag containing greenish-brown plant residue. “4. Loose greenish-brown plant substance (approx. 1.55g) “5.

Cellophane wrapper containing white powder residue.” The residue in items 1 and 4 field tested positive for marijuana and the residue in item 5 field tested positive for cocaine. Also recovered were a bill and financial institution ⁴²² statements addressed to the appellant, Robert E. Greenstreet (Greenstreet), at that location. 1 Officer Huck’s affidavit then stated that he had conducted surveillance at the subject premises and had observed two automobiles “consistently” parked there. One was registered to a Sharlie Greenstreet. That vehicle had been stopped “within the past 6 months” while being driven by a person identified as Robert Greenstreet.

The search warrant was executed on April 15, 2004, at 21:50 hours, and the police seized, inter alia, 181.2 grams of marijuana. Greenstreet was arrested and prosecuted in the Circuit Court for Anne Arundel County. Greenstreet moved to suppress the items seized under the warrant, contending that there was no probable cause because the information on which the warrant was based was stale. 2 Appellee’s argument rests entirely on the date, “4-14-03,” stated in the typewritten affidavit to be the date on which the affiant and a police colleague obtained abandoned trash outside of 8472 Meadow Lane. That date is one year and one day prior to the application for the subject warrant.

In preparation for responding to that argument, the State issued a subpoena for Officer Huck, but it was not served. He was unable to comply with the prosecutor’s telephone request, on the day of the hearing, that he appear because he was babysitting his child at home and could not make other arrangements on short notice. At the suppression hearing the ⁴²³ court and the parties undertook to proceed as far as they could go. This resulted in an argument on the law.

The State took the position that the affidavit contained a typographical error in that the year in which the “trash trip” was conducted was '04 and not '03. The prosecutor told the court, “[M]y proffer straight from the Officer’s mouth is that he would testify it was a typo.” From that anticipated evidence, the State argued that the officer acted in good faith, so that the court should apply the good faith exception to the exclusionary rule and deny Greenstreet’s motion. The prosecutor submitted that “the typo would not invalidate the warrant as it relates to the good faith exception,” because the purpose of the exclusionary rule is “to punish misconduct of police officers and not typos.” In reply, Greenstreet asserted that, under the four corners rule, the affiant could not testify at all, even to the extent of explaining that the date was mistakenly typed as “08.” 3 The suppression court’s initial reaction to the arguments presented by counsel is reflected in the passage set forth below. “THE COURT: But surely there must be cases on typos in search warrants. “[DEFENSE COUNSEL]: I don’t know. I don’t think it’s a typo because I am in possession — . “THE COURT: No. No. But I am saying if that is the State’s position there must be cases that say you can go beyond the four corners.” When the defense argued that there was nothing indicating that the affidavit contained a “typo,” the court replied: ⁴²⁴ “Well that is what I am saying.

But there has to, I am sure there are cases somewhere that talks about situations like this. And I don’t know whether it’s the State’s burden to call a witness immediately and say oh, my goodness, Judge, I am so sorry. It’s April of '04 as opposed to '03.” Later, the court said to the prosecutor, “Wait a minute. So I just want to be sure.

So you could not find any scenario where the officer goes to a state’s attorney and says it’s a typo. Put me under oath I will swear that it’s a typo. As far as the search warrant is concerned.” Near the conclusion of the hearing, the court again declared, Well I am shocked that the two of you haven’t found any — ,” at which point defense counsel interrupted to state that he did not have any cases indicating that the affiant could testify. The court instructed counsel to file memoranda, following the consideration of which the court would determine how the case would proceed.

The original record contains a memorandum by the State, which added little, if anything, beyond the oral argument. Any memorandum filed by Greenstreet is not in the file. 4 For the reasons stated in a written opinion, the circuit court suppressed the evidence seized under the warrant. Reasoning that the issuing court was “confined to the averments contained in the search warrant application,” the court concluded that a suppression hearing “should not involve the taking of any evidence other than the submission of the warrant itself, including its application.” The court held that its “consideration of the showing of probable cause should be confined solely to the affidavit itself, and the truth of the alleged grounds stated in the affidavit cannot be controverted by receiving the testimony of the accused and other witnesses.” ⁴²⁵ The “only exception to the ‘four corners rule/ ” the court stated, was under Franks v. Delaware, supra, and that is applied only to an accused who, the circuit court said, “makes a threshold showing that a governmental affiant has perjured himself on a material matter.” The circuit court cited numerous decisions, but none of them involved a contention by the prosecuting authority that a search warrant affidavit contained a clerical error. Applying the confines that it had articulated, the suppression court accepted the 4-14-03 date as fact, found that the trash trip information was stale, and concluded there was no probable cause.

Invoking Maryland Code (1974, 2002 RepLVol.), § 12-302(c)(3) of the Courts and Judicial Proceedings Article, the State appealed. It raises the single question, “Did the trial court err in granting Greenstreet’s motion to suppress physical evidence?” The State argues to us that the warrant-issuing magistrate could have concluded from the information presented within the four corners of the affidavit that the date of the trash trip was 4-14-04. Alternatively, the State argues that the good faith exception to the exclusionary rule should be applied. In this Court, Greenstreet maintains that the suppression court correctly applied the four corners rule, and that the good faith exception does not apply.

In addition, he raises preservation issues which we shall address first. I. Preservation Greenstreet argues that “[t]he State intentionally and expressly conceded on several occasions that the warrant was stale and not supported by probable cause.” The argument overstates the scope of the concession. What the prosecutor said was “[t]hat on its face the date of April 14, 2003, one trash trip a year and a day before the warrant is signed, it’s stale. I am not going to, I would not argue that a trash trip a year ago makes there marijuana in the house. ⁴²⁶ “So on that particular point I concede that the warrant is stale.

I was ready to move on to good faith which is why I needed Officer Huck, but I will, I understand counsel has some more issues with response to the warrant affidavit itself.... And I am not even particularly going to argue that it’s freshened enough by the first paragraph [re: complaints from neighbors]. I couldn’t do it.” (Emphasis added). The concession was that, if the suppression court were obliged to consider that the trash trip was made one year and one day prior to the application for the warrant, the information was stale, a conclusion not altered by the complaints received from neighbors.

There was no concession by the prosecutor that the State could not demonstrate that the affidavit contained a clerical error. Greenstreet also argues that the State should not be permitted to argue in this Court that the typographical error can be shown within the four corners of the affidavit, because that argument was not made in the circuit court. Appellee’s position is based on Maryland Rule 8-131(a) stating, in relevant part, that “[o]rdinarily, the appellate court will not decide any other issue [than a jurisdictional one] unless it plainly appears by the record to have been raised in or decided by the trial court[.]” We have demonstrated above that the suppression court recognized the issue to be how it was to proceed when the State contended that the affidavit contained a typographical error. In this Court, the State merely advances an argument for the resolution of that issue that differs from the argument made by the prosecutor.

The Court of Appeals has recognized the distinction between a new issue, as the term is used in Rule 8-131(a), and a new argument, and the Court has held that Rule 8 — 131(a) does not preclude the latter. See Crown Oil & Wax Co. of Delaware, Inc. v. Glen Constr. Co. of Virginia, Inc., 320 Md. 546, 560-63 , 578 A.2d 1184, 1190-92 (1990). In this Court, the State argues that the typographical error is apparent on the face of the affidavit while, in the trial court, the prosecutor argued ⁴²⁷ that the typographical error may be considered under the good faith exception.

The issue has remained the same. In any event, even if the State has raised a new issue, Rule 8-131(a), by use of the adverb, “ordinarily,” vests discretion in this Court to consider a new issue. We exercise that discretion here because neither party, at either level of court, has presented any authority directly bearing on the issue on which the circuit court urged counsel to inform it. In our view, the “issue” is one that should be resolved.

There is, however, one apparent concession by the prosecutor that needs to be addressed. At argument in the circuit court the prosecutor said, “I agree that on its face the Court has to accept 2003.” If, by that statement, the prosecutor meant that the court was precluded from considering other information presented in the affidavit, then the concession was on a point of law. As we shall hold, infra, the concession was erroneous. A court is not bound by an erroneous concession of law.

See State v. Knighten, 109 Wash.2d 896 , 748 P.2d 1118 (1988) (state’s concession that no probable cause existed to arrest accused was erroneous and not binding on the court). See also Wise v. Schneider, 205 Ala. 537 , 88 So. 662, 664 (1921) (a party cannot establish the existence of a legal duty by mere admission); Berry v. Berry, 290 S.C. 351 , 350 S.E.2d 398 (1986), aff'd, 294 S.C. 334 , 364 S.E.2d 463 (1988) (court refused to accept husband’s erroneous concession that wife’s retirement plan and farm were not marital property); Fletcher v. Eagle River Mem’l Hosp., Inc., 156 Wis.2d 165 , 456 N.W.2d 788, 795 (1990) (“a party should not be bound by any misunderstanding or misapprehension of the law” because “legal concessions, i.e., what is the applicable conclusion of law, is for the judiciary”). We turn now to the merits.

II

The Law In this, Part II, we shall first address the relevant law and then, in Part III, apply that law to the facts of the instant matter. ⁴²⁸ A. General Principles Because Greenstreet seeks to apply the federal exclusionary rule made applicable to the states by Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), cf. Chu v. Anne Arundel County, 311 Md. 673 , 537 A.2d 250 (1988) (no Maryland constitutional exclusionary rule), we look to the teachings of the Supreme Court on interpreting a search warrant affidavit. The Court has said: “[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation.

Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” United States v. Ventresca, 380 U.S. 102, 108 , 85 S.Ct. 741, 746 , 13 L.Ed.2d 684 (1965). In applying the above-described standard, neither the suppression court, nor an appellate court, makes a de novo determination. “ ‘[8 ]o long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.’ ” Fitzgerald v. State, 153 Md.App. 601, 628 , 837 A.2d 989, 1004 (2003), aff'd, 384 Md. 484 , 864 A.2d 1006 (2004) (quoting, with emphasis added, West v. State, 137 Md.App. 314, 322 , 768 A.2d 150, 154 , cert. denied, 364 Md. 536 , 774 A.2d 409 (2001)). The burden of proving that there was no substantial basis for issuing the warrant is on the accused who challenges the validity of the warrant.

Fitzgerald, 153 Md.App. at 624-26 , 837 A.2d at 1002-03 . ⁴²⁹ Notes made by a District Court judge of a midnight telephone conversation with police officers who were seeking a search warrant were central to the controversy in Valdez v. State, 300 Md. 160 , 476 A.2d 1162 (1984). The notes were “coneededly difficult to decipher,” and included “many cross-outs, many interlineations, and several arrowed insertions.” Id. at 168 , 476 A.2d at 1166 . Organization into sentences was rare, and extensive use of abbreviations was made. When the officers arrived at the judge’s home to obtain a search warrant, the judge recited to them the facts in her notes, to which the officers made oath orally and then affixed their signatures.

The Valdez Court held that the notes satisfied the affidavit requirement of the Maryland search warrant statute. Of significance here is that the Valdez Court found no violation of the four corners rule when the