State v. Jacobs

DAVIS, Judge. William James Jacobs was charged with possession of narcotics with intent to distribute and related offenses. On June 3, 1987, the Circuit Court for Talbot County denied Jacobs’s pretrial motion to suppress tangible evidence and concluded that the probable cause upon which a search and seizure warrant was based was not stale when the warrant was issued. On August 4, 1987, the case was submitted on an agreed statement of facts and Jacobs was convicted of possession of controlled dangerous substances with intent to distribute and maintaining a common nuisance.

Jacobs’s initial convictions were overturned on direct appeal. On September 7, 1987, Jacobs was retried by the Circuit Court (William S. Horne, J.) and convicted of possession of cocaine with intent to distribute. Jacobs’s motion to suppress had been renewed and denied prior to his retrial based on the June 3, 1987 ruling. The court imposed an eight-year sentence, with five years suspended in favor of five years probation.

On September 19, 1989 Jacobs appealed to this Court, claiming that the trial court erroneously denied his motion to suppress. Holding that the probable cause set forth in the application for the warrant was stale, this Court, in a per curiam opinion (No. 1477, filed June 18, 1990) remanded the case. Citing our decision in Connelly v. State, 82 Md.App. 358, 367 , 571 A.2d 881 (1990), the panel concluded that “whether the police are entitled to the benefit of the good faith exception is a factual issue, to be determined by the trial court ... we may not decide it.” Slip op. at 7. At the conclusion of the hearing on remand on November 5, 1990, the court (William S. Horne, J.) granted Jacobs’s ⁶⁴⁴ motion to suppress, finding that the evidence at issue was seized by police not acting in good faith reliance on a facially valid search warrant.

The State appeals from that decision. The sole question presented for our review is whether the trial court, on remand, erred in finding that, pursuant to the good faith exception to the exclusionary rule, Detective Rogers reasonably could not have believed that the issuance of the warrant was predicated on “fresh” probable cause. We issued an order on April 30, 1991, reversing the order of the Circuit Court for Talbot County. We now give our reasons for the determination.

FACTS Prior to his first trial, Jacobs moved to suppress evidence regarding approximately 105 grams of cocaine and related items seized from his car on January 19, 1987, pursuant to the warrant. The application and affidavit for the warrant established that the investigation of Jacobs had been triggered by a report from a reliable confidential informant. The affidavit described two controlled narcotics buys by the informant, the first during the week of October 26, 1986 from Jacobs’s Doverbrook address, and the second during the week of November 16, 1986 from Jacobs’s car. Judge William Adkins, III, issued the search and seizure warrant on January 14, 1987, almost two months after the last controlled narcotics buy.

At the hearing on remand, the affidavit was introduced into evidence and the affiant, Detective James Rogers, testified. Detective Rogers stated that the controlled buys had taken place on October 31, 1986 and November 22, 1986, but that he used the phrase “the week of” in the application to make it more difficult for Jacobs to identify the informant. Detective Rogers stated that he began to prepare the affidavit on or about December 19, 1986, and forwarded it to the State’s Attorney before the Christmas holiday. Detective Rogers also explained that he did not go immediately to Judge Adkins after preparing the affidavit because the Talbot County State’s Attorney, Phillip C. Fos ⁶⁴⁵ ter, wanted to conduct a personal review of all search warrant applications of rookie investigators, such as Detective Rogers.

The application was accordingly reviewed and approved. Not until January 14, 1987, however, seven weeks after the last controlled narcotics buy, was the application presented by Detective Rogers to Judge Adkins, who issued the search and seizure warrant. Detective Rogers also testified that up to January 14, 1987, he had conducted “continual investigation” including several surveillance operations and a third controlled narcotics purchase at the suspect’s Doverbrook address, during which he taped a conversation on January 14, 1987, which was subsequent to the issuance of the warrant, and he had received updates from the confidential informant. Detective Rogers testified, however, that he did not include this additional information in the application for a search warrant because the State’s Attorney was unwilling to approve warrant applications which were based on surveillance reports.

Although Detective Rogers could not point to anything in the application itself that would have indicated any continuing involvement of Jacobs’s car in the drug trafficking, he explained that the quantities of cocaine involved could only be transported to the house by car. He also testified that he had information that Jacobs planned to change residences, but this information was not included in the warrant application because of the reluctance of the State’s Attorney’s Office which had a policy against basing warrant applications solely on surveillance. Detective Rogers stated that he informed Judge Adkins of Jacobs’s possible move, asking Judge Adkins “to stall another buy to allow for some surveillance time.” DISCUSSION Appellant contends that the evidence in the case sub judice was seized by a police officer acting in reasonable good faith reliance on a search warrant issued by a de ⁶⁴⁶ tached and neutral magistrate, but ultimately found to be unsupported by probable cause. Appellant refers us to the Supreme Court’s opinion in United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), which established a good faith exception to the exclusionary rule where the police rely on a facially valid search warrant issued by a detached and neutral magistrate.

Appellant asserts that “[t]he evidence adduced at the hearing uniformly established that the officers were acting in good faith reliance on a facially valid warrant.” Appellant further cites the lower court’s observation “that the officers were following a procedure ‘not of their choosing,’ and that ‘any delays in this case were not necessarily the idea of the officers involved.’ ” The State argues that by basing its decision on policies over which the police had no control, the lower court committed error in denying the application of the good faith exception. The lower court, in finding the good faith exception inapplicable, stated: The warrant depended on the probable cause that was set forth in the application for the warrant. That probable cause was stale and the Court cannot find that the officers had any objective reasonable belief in the freshness of that probable cause. They had other probable cause, it wasn’t stated in the application.

It may or may not have been known to the issuing Judge. It was not stated in the warrant and it therefore is not the probable cause upon which the warrant depended. For all of those reasons the Court finds that the police officers did not act within the good faith exception in this case. And accordingly the good faith exception was not available to the police officers in this case.

Accordingly the Court must grant the motion to suppress the evidence seized pursuant to that warrant and it does so grant the motion. Appellant, in support of its argument that the lower court based its decision on policies over which the police had no ⁶⁴⁷ control, refers us to the comments of the lower court to Detective Rogers in an apparent attempt to assuage any feelings of blame or responsibility Detective Rogers might have entertained: In conclusion, the Court would like to make one statement for the record, and for Detective Rogers. The Court’s ruling this afternoon is in no way, nor is it in any way designed to be a criticism of the police officers involved in this case. The Court is aware that those officers were following a procedure which was laid down for them which was not of their choosing.

And I just want to make it clear that I am aware that any delays in this case were not necessarily the idea of the officers involved. The procedural posture of the instant case is unique in that we have, in a previous appeal (William James Jacobs v. State, No. 1477, September Term, 1989, filed June 18, 1990) rendered our decision on the limited issue of whether the probable cause contained in the search warrant was stale. Upon deciding that the probable cause was stale, we remanded the case to the Circuit Court for Talbot County on the limited issue of whether the good faith exception to the exclusionary rule under United States v. Leon, supra, is applicable to the facts of this case. On the limited issue of whether the probable cause was stale, the lower court’s decision was based on the following three premises: 1.

That the probable cause set forth in the application for the warrant was stale (a conclusion reached by us in the previous opinion); 2. That the warrant depended upon the probable cause already found to be stale; 3. That Detective Rogers relied, not upon the probable cause stated in the affidavit, but rather on the “other probable cause” represented by the “continual investigation” from November until the issuance of the search warrant on January 14, including a second controlled narcotics purchase with a taped conversation on December 19, 1986. ⁶⁴⁸ Undergirding the analysis of the lower court is the legal conclusion that we are restricted to a review of Detective Rogers’s objective reasonable belief of the freshness of the probable cause in the application. The State urges that we look, not just to the objective reasonable belief that Detective Rogers may have had as to the freshness of the probable cause contained in the affidavit, but also to the other information possessed by Detective Rogers, including his continuing surveillance as well as the reasons offered in his testimony as to why the information in the affidavit was not supplemented.

The questions thus presented are: (1) Given the present posture of this case, what is the proper standard of review? (2) In light of the prior determination that the probable cause in the application was stale, did the Circuit Court err in confining its consideration to the officer’s objective good faith belief in the freshness of the probable cause to that which was contained in the warrant? (3) When Leon speaks of objective reasonable good faith reliance on a facially valid warrant, are we required to determine (as apparently did the trial judge) whether the officer’s reliance was on something other than the probable cause in the warrant or is the underlying rationale simply that the officer, absent dishonesty or recklessness, should not be penalized because of the fact of issuance of the warrant and the finding of probable cause by one better schooled in the law than he? Since our discussion is limited to whether the officer harbored an objective good faith belief in the freshness of the probable cause, the purpose of requiring that information relied upon to constitute probable cause be recent is instructive.

Speaking for this Court in Yeagy v. State, 63 Md.App. 1 , 491 A.2d 1199 (1985) Judge Rosalyn Bell noted the rationale for the requirement that information constituting probable cause be recent: Even though probable cause may exist initially, it becomes stale when the facts and information in the affidavit are ‘so remote from the date of the affidavit as to render it improbable that the alleged violation of law ⁶⁴⁹ authorizing the search was extant at the time the application for the search warrant was made.’ Peterson [v. State], 281 Md. [309] at 314, 379 A.2d 164 [1977], quoting Garza v. State, 120 Tex.Cr.R. 147, 149 , 48 S.W.2d 625 (1932). Remoteness does not depend solely upon the lapse of a particular amount of time, such as ten days, or two months; it requires determination of the ‘likelihood that the evidence sought is still in place’ in light of ‘the character of the crime ... of the criminal ... of the place to be searched____’ Andresen v. State, 24 Md.App. 128, 172 , 331 A.2d 78 , cert. denied, 274 Md. 725 (1975), aff'd, 427 U.S. 463 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976); Davidson v. State, 54 Md.App. 323, 331-32 , 458 A.2d 875 (1983). Id. at 11 , 491 A.2d 1199 . The ultimate determination before the lower court was whether Detective Rogers harbored an objective good faith belief in the likelihood that the evidence sought was still in the Doverbrook residence and in the appellee’s car at the time of the execution of the warrant.

STANDARD OF REVIEW In Riddick v. State, 319 Md. 180 , 571 A.2d 1239 (1990), the Court of Appeals explained at 183, 571 A.2d 1239 : When the question is whether a constitutional right, such as the one here, has been violated, we make our own independent constitutional appraisal. We make the appraisal by reviewing the law and applying it to the peculiar facts of the particular case. When the facts are in dispute, we accept them as found by the trial judge unless he is clearly erroneous in his judgment on the evidence before him. In ascertaining whether he is clearly erroneous, we give “due regard to the opportunity of the trial court to judge the credibility of the witnesses,” as commanded by Md.Rule 8-131(c).

(Citations omitted). Citing Davis v. North Carolina, 384 U.S. 737, 741 , 86 S.Ct. 1761, 1764 , 16 L.Ed.2d 895 (1966), we said, in Whit ⁶⁵⁰ man v. State, 25 Md.App. 428, 435 , 336 A.2d 515 (1975), that “[w]ith respect to the scope of our review, we observe that in the presence of alleged infringements of constitutionally protected rights, we are required to examine the entire record and to make an independent, reflective constitutional judgment on the facts.” Judge Moylan, speaking for this Court in Walker v. State, 12 Md.App. 684, 695 , 280 A.2d 260 (1971), discussed our role: What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of voluntariness. Accordingly, we must accord deference to the trial judge as to the first level of facts — the length of the delay in applying for a warrant, the pertinent dates, what the state’s attorney and the officer did prior to January 14, 1987. It is for us, however, to determine the legal significance of those facts — whether they demonstrate that the officer acted in good faith.

We shall therefore examine the entire record and make our own independent evaluation since the instant case clearly involved the review of a constitutionally protected right. THE PROPER SCOPE OF THE HEARING As indicated above, the trial judge limited his