State v. Jenkins

MOYLAN, JR., J. (retired, specially assigned). CHARLES E. MOYLAN, JR., Judge (retired, specially assigned). As if stripping an onion, we are here called upon to peel away layer after layer of judicial review and to lay each under a microscope.

In the context of authorizing a search and seizure warrant, it is the warrant-issuing judge who first takes a set of facts, generally set forth in the application for the warrant, and assesses the warrant request for Fourth Amendment reasonableness. Looking over the shoulder of the warrant-issuing judge, however, is a suppression hearing judge. But then looking over the shoulder of the suppression hearing judge may be a trial judge, on a motion for reconsideration, or, in any event, a panel of intermediate appellate judges. Looking over their shoulders, in turn, may be the Court of Appeals, and looking over its shoulder hovers menacingly the Supreme Court of the United States.

The criteria to be invoked as one judge looks over the shoulder of another, moreover, may shift as we move up or down the totem pole of judicial review. Highly pertinent is the sage perspective of Ogden Nash: Even fleas have little fleas, On their backs to bite ‘em. And those fleas have littler fleas, And so ad infinitum. A State Appeal A criminal information filed by the State’s Attorney for Talbot County charged the appellee, Demetrius Sylvester Jenkins, with the possession of cocaine and related charges.

The appellee moved to have the physical evidence suppressed on the ground that its seizure had been in violation of the Fourth Amendment. Following a hearing on that motion on July 9, 2007, the suppression hearing court, on July 17, 2007, issued an opinion and order, directing that the evidence be suppressed. ¹⁶⁰ The State appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c), which provides in pertinent part: (c) Criminal case.—In a criminal case, the State may appeal as provided in this subsection. (3)(i) In ... cases under §§ 5-602 through 5-609 and §§ 5-612 though 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. (iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding.

The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final. (iv) If the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. (Emphasis supplied).

Accordingly, our decision in this case, should we have opted to reverse, had to have been filed no later than January 22, 2008. We did opt to reverse, and, in compliance with that deadline, we filed a decision on January 10, 2008, holding that the suppression order must be vacated and the case remanded for a trial on the merits, with the physical evidence being unsuppressed. We further indicated that a fuller opinion, explaining the basis for our decision, would follow. It now does. ¹⁶¹ Our ultimate holding that the physical evidence in this case should not have been suppressed is based on two very distinct analyses.

The first, which we will address in Part I, is that the search warrant itself should never have been ruled to have been unconstitutional under the Fourth Amendment. The second analysis, which we will address in Part II, deals with the purely contingent alternative that the execution by the police of even a flawed warrant should not lead to the exclusion of evidence because of the “good faith exception” to exclusion articulated by United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984) and Massachusetts v. Sheppard, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984). Our conclusion in this regard is that the suppression hearing court erred in ruling that the “good faith exception” would not be available to fend off exclusion. Part I: The Warrant Itself A. The Issuance of the Warrant On September 29, 2006, Corporal John F. Jones, III, of the Special Operations Unit of the Easton Police Department, presented an eight-page application for a search and seizure warrant to Judge Sidney S. Campen, Jr., of the Circuit Court for Talbot County.

Judge Campen issued the warrant, which directed Corporal Jones to search the person of the appellee and to seize any controlled dangerous substances and drug paraphernalia found on his person. On October 11, 2006, Corporal Jones and other members of the Special Operations Unit seized the appellee and executed the warrant. They recovered from his left front pants pocket a quantity of crack cocaine, broken down into rocks for sale purposes. The appellee moved to have that physical evidence suppressed, and the hearing on that motion took place on July 9, 2007.

No witnesses were presented at the hearing. The hearing consisted simply of the arguments of counsel and the discussion was confined to the “four corners” of the warrant ¹⁶² application. The appellee’s position was that the application “lacked sufficient credible and corroborated evidence for there to be probable cause for its issuance.” B. The Standard of Judicial Review of a Search Warrant Before going on to the question of the “good faith exception” to the Exclusionary Rule, the suppression hearing court determined that the warrant was invalid because the warrant application had failed to establish probable cause. Our reversal of the suppression order is based, in part, on our conclusion that the suppression court evaluated the wrong predicate and applied, therefore, the wrong standard of judicial review.

We find that the suppression court made a direct ruling on the sufficiency of the warrant application itself, as if it were being called upon to issue the warrant, instead of conducting a more deferential appraisal of another judge’s earlier ruling on that subject, to wit, on Judge Campen’s decision to issue the warrant. The direct focus was on the warrant itself rather than on the distinct question of whether Judge Campen had some substantial basis for issuing the warrant. After making his argument about the warrant itself, appellee’s counsel asked for a ruling in the following terms: I would ask Your Honor to hold that there was not probable cause for this warrant to have been issued and suppress the evidence that was obtained by the State as a result thereof. (Emphasis supplied).

In all of the argument at the hearing, there was no mention of the “substantial basis” test. At the conclusion of the hearing, the court deferred judgment on the “good faith exception” but made a square ruling on the invalidity of the warrant itself. First of all that there is no doubt about the fact that the warrant is invalid. It does not undertake to establish the credibility of the confidential informant.

It does not undertake to indicate that any more than hearsay from a person ¹⁶³ whose veracity is not known. That’s what it comes down to. I have no hesitation about saying the warrant is not valid. (Emphasis supplied).

As recently as Greenstreet v. State, 392 Md. 652, 667-68 , 898 A.2d 961 (2006), Judge Harrell stressed for the Court of Appeals the critical difference between a de novo appraisal of a warrant itself and the more deferential appraisal of the warrant-issuing judge’s decision to issue the warrant. We determine first whether the issuing judge had a substantial basis to conclude that the warrant was supported by probable cause. State v. Amerman, 84 Md.App. 461, 463-64 , 581 A.2d 19 (1990). We do so not by applying a de novo standard of review, but rather a deferential one.

The task of the issuing judge is to reach a practical and commonsense 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. The duty of a reviewing court is to ensure that the issuing judge had a “substantial basis for ... concluding] that probable cause existed. ” The U.S. Supreme Court explained in Gates that the purpose of this standard of review is to encourage the police to submit to the warrant process. (Emphasis supplied). See also Patterson v. State, 401 Md. 76, 89-90 , 930 A.2d 348 (2007), as it quoted with approval that discussion of the appropriate standard of judicial review.

The precise section of State v. Amerman, 84 Md.App. 461, 463-64 , 581 A.2d 19 (1990), to which Judge Harrell made approving reference, made it clear that the more deferential substantial-basis standard governed judicial review generally, nisi prius suppression hearing courts and appellate courts alike. The controlling principle dictating this reversal of a suppression order is that when a judge, either at a pretrial suppression hearing or at trial, sits in review of another judge’s earlier determination that probable cause existed to issue a search and seizure warrant (or an arrest warrant), ¹⁶⁴ the reviewing judge sits in an appellate-like capacity with all of the attendant appellate constraints. Although he may ordinarily be accustomed to assessing probable cause as a matter of fact, he is in this less characteristic role called upon to assess it as a matter of law. The issue is no longer the familiar one of whether probable cause exists; that has already been determined by someone else.

The distinct issue, at the reviewing level, is whether that earlier decision now being reviewed was or was not legally in error. Under the circumstances, it is perfectly logical and not at all unexpected that a suppression hearing judge might say, “I myself would not find probable cause from these circumstances; but that is immaterial. I cannot say that the warrant-issuing judge who did find probable cause from them lacked a substantial basis to do so; and that is material.” There is a Voltairean echo, “I may disagree with what you decide but I will defend with my ruling your right to decide it.” (Emphasis supplied). The constitutional tap-root of authority for the way in which the Fourth Amendment views a search warrant is Illinois v. Gates, 462 U.S. 213, 236 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983): [W]e have repeatedly said that after-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 towards warrants,” is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant “courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.” (Emphasis supplied). The Supreme Court explicated that the raison d’etre for the special preference a warrant enjoys is that it is a practical way ¹⁶⁵ to encourage the police to resort to warrants rather than to warrantless searches. The Gates Court explained: We also have said that “[although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants,” United States v. Ventresca, 380 U.S. 102, 109 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965). This reflects both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. 462 U.S. at 236 n. 10, 103 S.Ct. 2317 (emphasis supplied).

The substantial basis standard was determined by the Supreme Court to be an efficacious way of implementing the “preference for the warrant process.” Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate’s probable-cause determination has been that so long as the magistrate had a “substantial basis for ... concludfingj” that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Id. at 236 , 103 S.Ct. 2317 (emphasis supplied). Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984), followed within the year with resounding reaffirmation. The Supreme Judicial Court of Massachusetts had ruled a search warrant invalid for the reason that, inter alia, the credibility of an anonymous informant had not been adequately established. 390 Mass. 562, 568-70 , 458 N.E.2d 717 (1983).

The Supreme Court of the United States sternly reversed: The Supreme Judicial Court also erred in failing to grant any deference to the decision of the Magistrate to issue a warrant. Instead of merely deciding whether the evidence viewed as a whole provided a “substantial basis” for the Magistrate’s finding of probable cause, the court conducted ¹⁶⁶ a de novo probable-cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.

Examined in light of Gates , Lieutenant Beland’s affidavit provides a substantial basis for the issuance of the warrant. 466 U.S. at 732-33 , 104 S.Ct. 2085 (emphasis supplied). Maryland has followed suit. As this Court stated in State v. Riley, 147 Md.App. 113, 119 , 807 A.2d 797 (2002), “Under the capricious wings of Illinois v. Gates, the Maryland case law on deference to warrants sprang up profusely.” As early as 1984, this Court, in Ramia v. State, 57 Md.App. 654, 660 , 471 A.2d 1064 , cert. denied, 300 Md. 154 , 476 A.2d 722 (1984), made it clear that the deferential standard of review applied to suppression hearing courts and appellate courts alike. Illinois v. Gates leaves no room for doubt that reviewing courts, at the appellate level or at the suppression hearing level, have no business second-guessing the probable cause determinations of warrant-issuing magistrates by way of de novo determinations of their own.

(Emphasis supplied). Chief Judge Robert C. Murphy wrote for the Court of Appeals in Potts v. State, 300 Md. 567, 572 , 479 A.2d 1335 (1984), in confirming the deferential standard of review in appraising search warrants: After-the-fact judicial scrutiny of the 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 attitude toward warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. (Emphasis supplied). See also Valdez v. State, 300 Md. 160, 169-70 , 476 A.2d 1162 (1984) (noting that Maryland will not construe warrants in a hypertechnical manner, but instead will give them the benefit of the doubt); Malcolm v. State, 314 Md. 221, 229 , 550 A.2d 670 (1988) (“As the key protection from ¹⁶⁷ unreasonable government searches, warrants continue to be favored at law”).

In Birchead v. State, 317 Md. 691, 701 , 566 A.2d 488 (1989), it was again Chief Judge Murphy who wrote for the Court of Appeals. Our review of the judge’s decision to issue the search warrants is limited to vjhether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application for the warrant. Moreover, we generally pay great deference to a magistrate’s determination of probable cause. (Emphasis supplied).

See also McDonald v. State, 347 Md. 452, 467 , 701 A.2d 675 (1997) (“We review the judge’s ... decision to issue a search warrant to determine whether there was ‘a substantial basis for concluding that the evidence ... would be discovered in the place described in the application.’ ”); State v. Coley, 145 Md.App. 502, 521 , 805 A.2d 1186 (2002) (“The substantial basis standard involves ‘something less than finding the existence of probable cause.’ ” (Emphasis supplied)); Braxton v. State, 123 Md.App. 599, 620-22 , 720 A.2d 27 (1998) (“We must determine if the judge who issued the search warrant had ‘a substantial basis for concluding that the evidence sought would be discovered in the place described in the application.’ ”); Trussell v. State, 67 Md.App. 23, 29 , 506 A.2d 255 (1986) (“[T]he reviewing judge does not (at the suppression hearing level or at the appellate level) make a de novo determination of probable cause but simply determines whether there was a ‘substantial basis’ for the warrant-issuing magistrate’s determination that probable cause existed.” (Emphasis supplied)). In Herbert v. State, 136 Md.App. 458, 486-87 , 766 A.2d 190 (2001), this Court picked up on Illinois v. Gates’s explanation of why reviewing courts are, and ought to be, thus deferential in their review of search warrants. Over the course of decades, the Supreme Court has not been content to deliver to American prosecutors and American police a schoolmarmish civics lesson or lecture on ¹⁶⁸ investigative restraint. It has, in an exercise of shrewd practicality, provided prosecutors and police with significant incentives for searching and seizing via the favored or preferred modality, to wit, with judicially issued warrants.

Conversely, it has strewn the field with at times vexing disincentives for operating in the disfavored or non-preferred modality, to -wit, warrantlessly. The Introduction to William W. Greenhalgh, The Fourth Amendment Handbook, Criminal Justice Section of the American Bar Association (1995), p. 9, describes the sage deployment of “the stick .and the carrot” by the Supreme Court: In encouraging the police to act in the preferred warranted mode rather than in the nonpreferred warrantless mode, the Supreme Court has, in a very practical way, “put its money where its mouth is.” It has given law enforcement an “edge” when it takes the trouble to investigate in the preferred manner____ In a variety of ways, law enforcement has been given a bonus for relying on such warrants. (Emphasis supplied). In West v. State, 137 Md.App. 314, 322 , 768 A.2d 150 , cert. denied, 364 Md. 536 , 774 A.2d 409 (2001), Judge Thieme reaffirmed that deference to a warrant-issuing judge’s determination of probable cause is something owed by the suppression hearing court as well as by the appellate courts.

Previewing courts (at the suppression hearing level or at the appellate level) do not undertake de novo review of the magistrate’s probable cause determination but, rather, pay “great deference” to that determination. Reflecting a preference for the warrant process, the traditional standard for review of an issuing magistrate’s probable cause determination has been that, so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. (Emphasis supplied). In State v. Riley, 147 Md.App. 113, 117-18 , 807 A.2d 797 (2002), this Court was discussing the limitations on subsequent ¹⁶⁹ judicial review of “no-knock” warrants rather than on warrants generally.

That discussion, however, is equally pertinent to the review of warrants generally. The principle controlling our decision is that neither the appellate court nor the suppression hearing court is authorized to make the decision on the merits .... That decision was delegated exclusively to the judge who was called upon to include that provision in the warrant. The limited after-the-fact review permitted either the circuit court or the appellate court requires that the reviewing judges transcend any personal opinion as to what they, coincidentally, might have decided on the merits and concern themselves exclusively with whether the warrant-issuing judge had some rational basis for reaching the decision he did.

The focus ... should be only on the legitimacy of another judge’s prior decision in that regard. (Emphasis supplied). In Fitzgerald v. State, 153 Md.App. 601, 627 , 837 A.2d 989 (2003), aff'd, 384 Md. 484 , 864 A.2d 1006 (2004), this Court again stressed the limited reviewing role of a suppression hearing court when dealing with a search warrant. Once again, [the suppression hearing judge] commendably recognized the constraints on her reviewing role.

She did not presume to find probable cause. That was not her job. What she found was that [the warrant-issuing judge] had had a “substantial basis” for finding probable cause. That was her job.

(Emphasis supplied). In that case, we elaborated on the limited nature of judicial review when applied to the issuance of a search warrant. When, by contrast, the subject before the suppression hearing is the issuance of a warrant, as it partially was in this case, the focus of both the suppression hearing court and the appellate court shifts dramatically. With respect to the warrant that was issued on March 21, Judge Gelfman was not the judge of first impression.

Judge EllinghausJones was, and Judge Gelfman, like us, sat only in a far ¹⁷⁰ more restrained, reviewing capacity, subject to the typical appellate disciplines. Whether she herself would have issued the warrant was beside the point, just as whether we would have issued the warrant is beside the point. All that mattered was that Judge Ellinghaus-Jones had had a “substantial basis” to justify her having done so. 158 Md.App. at 653, 837 A.2d 989 (emphasis supplied). In Volkomer v. State, 168 Md.App. 470, 486 , 897 A.2d 276 (2006), Judge Kenney referred to the preferred status of warrants in terms of the warrant’s enjoying a presumption of validity.

Appellant asserts that the burden was on the State to prove by a preponderance of evidence that the evidence the State sought to introduce was obtained legally. We disagree. When the State seeks to introduce evidence obtained pursuant to a warrant, “there is a presumption that the warrant is valid[J” and “[t]he burden of proof is allocated to the defendant to rebut that presumption by proving otherwise.” The presumption that a search warrant is valid provides an incentive to police officers to seek judicial approval before effectuating a search. (“When the State has procured evidence of guilt by the favored and preferred modality of a warranted search, it is rewarded by a presumption of validity in favor of its warrant application.”).

(Emphasis supplied). C. Our Deference Is To The Warrant-Issuing Judge, Not to the Suppression Court It is commonplace that upon appellate review our mandate is to be deferential. The question, however, is, “Deferential to whom?” In a review posture such as the present one, the deference that is owed by us is to the warrant-issuing judge, just as the deference of the suppression hearing judge was owed to the warrant-issuing judge. This is inherent in the substantial-basis test.

In Fitzgerald v. State, 153 Md.App. at 653-54 , 837 A.2d 989 , we described specifically the nature of our review in a posture such as this. ¹⁷¹ Upon appellate review of the issuance of a warrant, we do not so much review the decisional process of the suppression hearing judge as we sit in the place of the suppression hearing judge. Our primary focus, as was the focus of Judge Gelfman, is upon the warrant-issuing magistrate and the “substantial basis” vel non for her decision. (Emphasis supplied). The spirit that should thus animate a reviewing court’s deference to a warrant was best articulated by the Supreme Court in United States v. Ventresca, 380 U.S. 102, 108 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965): These decisions reflect the recognition that the 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 common-sense 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 pleading 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.

(Emphasis supplied). See also Tucker v. State, 244 Md. 488, 497 , 224 A.2d 111 (1966); Henderson v. State, 243 Md. 342, 346 , 221 A.2d 76 (1966); State v. Swales, 12 Md.App. 69, 73-75 , 277 A.2d 449 (1971). As a practical incentive for prosecutors and police to search, whenever possible, with warrants, the Supreme Court has sent a clear signal to reviewing judicial referees to give the State the benefit of the “close calls” when the validity of a search warrant is in issue. In Herbert v. State, 136 Md.App. at 489-90 , 766 A.2d 190 , this Court picked up on that theme of awarding the “close calls” as a deliberately applied incentive for good police behavior. ¹⁷² The Supreme Court is telling judges generally to use “straight talk” with American police officers, convincing them that it will be “to their advantage” whenever they take the trouble to get warrants.

The incentive of having the “close calls” go in one’s favor is particularly strong when fine balances of probable cause are on the scales. Although there is a tendency to think, with Gertrude Stein, that probable cause is probable cause is probable cause, the reality is not always that clear-cut. When the probable cause issue is right on the cusp, when it teeters at the brink and could be nudged in either direction by a feather, the Fourth Amendment’s preference for warrants asserts itself as the critical tie-breaker. Most frequently, to be sure, the “call” as to probable cause will be “up” or “down” regardless of the investigative modality.

Statistically, however, there will be enough agonizingly close calls over the course of an investigative season to make it a pronounced advantage to hold the tie-breaker in one’s pocket. (Emphasis supplied). The likelihood that the scales could be weighted in one direction or the other, thereby manifesting the reviewing court’s approval or disapproval, appeared as handwriting on the wall as early as Johnson v. United States, 333 U.S. 10, 13-14 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948). Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.

If probable cause were an absolute or a mathematical immutability, those words would be pointless. Aguilar v. Texas, 378 U.S. 108, 111 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), also made clear that the same quantum of suspicion that might not suffice in the warrantless investiga ¹⁷³ tive context might well carry the day when a warrant application is being reviewed. [WJhen a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant. ” (Emphasis supplied). United States v. Ventresca, 380 U.S. at 109 , 85 S.Ct. 741 , also made reference to the preference that frequently serves as a tiebreaker: Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. (Emphasis supplied).

The preference clearly can influence the measurement. Greenhalgh, Fourth Amendment Handbook, p. 9, also refers to the shifting standard for measuring probable cause. [I]n a marginal case that could go either way, the quantum of suspicion that will qualify as probable cause in the context of a warrant review is less than that which may be required to support warrantless activity. (Emphasis supplied). Sitting en banc in Hignut v. State, 17 Md.App. 399, 413 , 303 A.2d 173 (1973), this Court subscribed to the principle of backing up the judicial preference for warrants by providing the practical incentive of a favorable tiebreaker.

We are admonished, in the interests of enhancing the Fourth Amendment protections, to “accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.’ ” ... Under that mandate, the furthering of valuable liberties under the Fourth Amendment requires that we read possibly ambiguous language with an eye ¹⁷⁴ toward upholding the warrant rather than toward striking it down. (Emphasis supplied). In the service of this constitutionally mandated interpretive approach, we will be deferential to the warrant-issuing judge as we assess whether there was a substantive basis for the warrant.

As a practical matter, that means that, at the very least, we will accept Judge Campen’s implicit fact-finding, unless clearly erroneous, and, beyond that, we will view the factual recitations in the warrant application in the light most favorable to the State. The deference goes well beyond that. It does, however, include both of those manifestations of deference. D. What Exactly Is a “Substantial Basis” for Issuing a Warrant?

The caselaw overwhelmingly demonstrates that finding a “substantial basis” for the issuance of a warrant means something less than establishing probable cause in the context of reviewing warrantless police activity. In State v. Amer-man, swpra, this Court undertook a further analysis of the “substantial basis” test and concluded that it means less than establishing a legally sufficient or prima facie case, to wit, some factually sufficient allegations as to each and every element of some set of required elements. We looked first at the requirement for meeting the prima facie case standard generally. The “substantial basis” standard is less demanding than even the familiar “clearly erroneous” standard by which appellate courts review judicial fact finding in a trial setting.

Although in that setting an appellate court may not, of course, determine credibility or weigh evidence for itself, it does nonetheless insist that there be some credible evidence which, if believed, could establish each and every distinct element of an offense. Williams v. State, 5 Md. App. 450 , 247 A.2d 731 (1968); Metz v. State, 9 Md.App. 15 , 262 A.2d 331 (1970). In a jury trial, the judge, as a legal referee, must subject the evidence to this test of legal ¹⁷⁵ sufficiency—this requirement of a prima facie case—before passing the question to the jury. In the bench trial, the judge must, in effect, subject the evidence to the same test before passing the question from the left hemisphere of his brain (where he functions as a legal referee) to the right hemisphere of is brain (where he functions as a lay fact finder with subconscious feelings and nonverbal senses intermingling with logic in his final verdict).

If that final verdict is not supported by such a prima facie or legally sufficient case, it is, by definition, clearly erroneous. Williams v. State, supra; Metz v. State, supra. The fact-finding judge is, in short, held to the standard of a legal technician. 84 Md.App. at 472 , 581 A.2d 19 (emphasis supplied). The warrant-issuing judge, by contrast, is not held to the same standard of the legal technician.

It is not so with the warrant-issuing magistrate. “The judge’s task is ‘simply to make a practical, common-sense decision’ whether probable cause exists.” Birchead v. State, supra, 317 Md. at 701 , 566 A.2d 488 , quoting Illinois v. Gates, 462 U.S. at 238 , 103 S.Ct. at 2332 . “ ‘[T]he quanta ... of proof appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant.” Illinois v. Gates, 462 U.S. at 235 , 103 S.Ct. at 2330 . The magistrates themselves are admonished to remember that the supporting affidavits “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.” United States v. Ventresca, 380 U.S. at 108 , 85 S.Ct. at 746 . Illinois v. Gates reminded us, 462 U.S. at 235-236 , 103 S.Ct. at 2330 , that the warrant-issuing magistrates themselves need not be legally trained, that search warrants “long have been issued by persons who are neither lawyers nor judges” and that “warrants are—quite properly ...— issued on the basis of nontechnical, commonsense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.” ¹⁷⁶ 84 Md.App. at 473 , 581 A.2d 19 (emphasis supplied).

See also Patterson v. State, 401 Md. at 119-20 , 930 A.2d 348 (Dissenting opinion by Battaglia, J.); State v. Coley, 145 Md.App. 502, 521-22 , 805 A.2d 1186 (2002). Our review of the Supreme Court pronouncements left no doubt of the fact that a “substantial basis” test for issuing a warrant did not require the establishing of a prima facie or legally sufficient case of criminal activity. Thus, while the “clearly erroneous” test demands some legally sufficient evidence for each and every element to be proved-to wit, that a prima facie case be established— Illinois v. Gates rejected such a rigorous standard for establishing probable cause and opted instead for a “totality of circumstances” approach wherein an excess of evidence as to one aspect of proof may make up for a deficit as to another. Illinois v. Gates expressly stated, 462 U.S. at 235 , 103 S.Ct. at 2330 , that a legally sufficient or prima facie showing is not required: “[I]t is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ ” Id.

(emphasis supplied). E. The “Controlled Buy” Over the course of three full pages, the applicant for the warrant, Detective Corporal Jones, recited his extensive specialized training and field experience as a narcotics investigator, including, significantly, his experience as a surveillance officer. Turning to the specifics of the present case, Detective Jones recited that in September of 2006, a suspect was arrested by the Special Operations Division and that the suspect then became a confidential informant (“Cl”). The Cl provided information “regarding ongoing criminal activity in the area of the Rails to Trails between Dover and Goldsborough St., Easton, Md.” The Cl advised that “several suspects sell crack cocaine on the trail.” Detective Jones arranged with the Cl to make a controlled buy from the appellee. ¹⁷⁷ During the fourth week of September 2006 your affiant met with a confidential informant for the purposes of making a controlled purchase of crack cocaine within the Town of Easton.

Cl advised he/she could make a controlled purchase of crack cocaine from a suspect in the areas of the Rails to Trails who goes by “D”, also known as Demetrius, who is described as a heavy set black male with a dark complexion. Jones has received information from other sources regarding the same suspect who has been identified as Demetrius Sylvester Jenkins DOB: 04/15/71. During the fourth week of September 2006 your Affiant, Cpl. John F. Jones met with a confidential informant for the purposes of planning a controlled purchase of a controlled dangerous substance from Demetrius Jenkins.

The Cl was briefed on the plan and agreed to making the controlled purchase under my direction. Det. Bordley and your Affiant were assigned to conduct surveillance for this operation. Your affiant was also assigned to handling the CL (Emphasis supplied).

In the application for the warrant, Detective Jones then recited his description of the “controlled buy” itself. Your Affiant met with the Cl at a secluded location within the Town of Easton. At the location a complete and thorough search was done of the Cl. No controlled dangerous substances were located on his/her person.

Your Affiant then explained the route the CL was to take to make the controlled purchase. Your Affiant then handed the Cl an amount of U.S. currency from the Easton Police Department Special Operations Drug Fund. The Cl then went the predetermined route and met with Jenkins. An exchange for U.S. currency took place for crack cocaine.

After the buy took place the Cl then went back to the predetermined location and [met] with your Affiant. At the predetermined location, your affiant took possession of the suspected crack cocaine. A thorough search was then conducted of the CL. There was no money or controlled ¹⁷⁸ dangerous substances located on his/her person.

The Cl was then debriefed and excused. At the Easton Police Department your Affiant field tested the suspected crack cocaine utilizing a Narcotics Identification Kit cocaine ID swab which yielded a positive reaction for the presence of cocaine. The crack cocaine was placed in the Eastern Police Departments Evidence system. (Emphasis supplied).

With respect to that “controlled buy,” the bottom line is that if the controls were adequate, probable cause to issue the warrant to search the person of the appellee was ipso facto established. If, on the other hand, the controls were not fully adequate, some further analysis, considering other portions of the warrant application, would be required. A large part of the appellee’s attack on the warrant application, both at the suppression hearing and in his appellate brief, is an attack on the credibility of the Cl. The heart of that attack is that the State failed to establish for the Cl any “track record” of demonstrated reliability in terms of the Cl’s past performance.

If, however, the controls are adequate in a “controlled buy” exercise, the credibility of the controlled buyer is utterly immaterial. The en banc decision of this Court in Hignut v. State, 17 Md.App. 399 , 303 A.2d 173 , is the leading Maryland case on the investigative technique of a controlled buy. In Hignut , we described the front end and the back end of the exercise. Although the narrative language is again trimmed to the bone, its clear import is that the affiants (or the appropriate one of them) searched the informant and found him “clean,” 4 and sent him into the suspect premises, whence he came out “dirty”. 5 This is the typical “controlled buy” 6 investigative technique.

So long as the controls are adequate, the “controlled buy” alone may well establish probable cause to search a suspect premises, let alone verify from scratch an informant’s otherwise unestablished “credibility”. ¹⁷⁹ 17 Md.App. at 412 , 303 A.2d 173 . If the rest of the controls, linking up the front end to the back end of the exercise, are established, the credibility of the buyer is self-evidently beside the point, as Hignut went on to point out. If the informant had been nothing more than a robot or a trained ape, the directly observed “controlled buy”—with the informant as a mere mechanical agent—would have been sufficient to establish probable cause. Id. at 415 , 303 A.2d 173 (emphasis supplied).

In this case, the controls at the front end and at the back end—the Cl went in “clean” and came out “dirty”—were expressly established. It is the middle which is in issue. Was the “buy” itself directly observed? That is ambiguous.

We do not absolutely know, one way or the other, because the critical event is unfortunately described in the passive voice: “An exchange for U.S. currency took place for crack cocaine.” From what was recited as having happened just before the buy and just after the buy, however, it could be inferred that the Cl remained under the direct visual observation of the police. It could also be inferred, on the other hand, that he did not. At the suppression hearing, the court declined to make the inference urged upon it by the State. THE PROSECUTOR: [T]he operative point of this warrant, the part ... that gave the Judge that issued the warrant the basis was what’s known as a controlled buy....

THE COURT: No, we don’t know it was a controlled buy .... We don’t know that at all .... We know that this man left, for all that the warrant shows, left the view of the affiant and came back later and said, “I made a buy.” ¹⁸⁰ That’s all that there is. There is no evidence.

As I’ve said, I’ve never seen a warrant before where the police didn’t follow and watch the Cl go in and out ... I mean this unknown person walks off into the evening and comes back without some money. And he has some drugs. We don’t know what he did with [the money].

We don’t know where they [the drugs] came from. (Emphasis supplied). The State’s Attorney challenged that assumption. He and the judge ultimately agreed that the recitation in the application did not establish with any certainty whether the buy had been directly observed by the police or not.

MR. PATTERSON: Your Honor, with all due respect the Court is ... making an assumption. The warrant is silent as to whether or not the officers, from the time they searched them and found them to have no drugs or money and gave him money, which is specified in the warrant, it’s silent as to whether they followed him and watched from that point on or not. THE COURT: It certainly is.

THE COURT: It’s silence must be observed because ... I’m, not to interpolate anything into it. I must read it and base the determination on its four corners. MR.

PATTERSON: I understand that. I understand that. But since it’s silent ... you’ve got two things that could have happened, either they did follow him or they didn’t. But it’s silent and Mr. Jennings is saying well since it’s silent therefore it means they didn’t.

And all I’m saying is you can’t make that assumption. All you can ... know is it doesn’t say what they did. THE COURT: I’ll agree with you. But let me say at the same time you can’t make the assumption that he did.

MR. PATTERSON: And I’m not assuming that. All I’m saying is it’s silent. ¹⁸¹ THE COURT: All right. (Emphasis supplied).

How, then, should the ambiguity be resolved? Using the appropriately deferential “substantial basis” standard, we hold that Judge Campen would have been permitted to draw the inference that the buy, which occurred outside in the open air, did take place under direct police surveillance. The application had recited that “Detective Bordley and your Affiant were assigned to conduct surveillance for this operation.” With no indication of any glitch in the operation, the application routinely described a step-by-step exercise. “Your Affiant then explained the route the Cl was to take to make the controlled purchase. Your Affiant then handed the Cl an amount of U.S. currency....

The Cl then went the predetermined route and met with Jenkins. An exchange for U.S. currency took place for crack cocaine. After the buy took place the Cl then went back to the predetermined location and met with your Affiant. At the predetermined location, your Affiant took possession of the suspected crack cocaine.” It is a Hemingwayesque rat-tat-tat of short declarative sentences. 1 ¹⁸² What does the standard of review tell us should be done with an inference that could be drawn or could be declined?

Which way is the table tilted? When the validity of a warrant is the issue, Hignut v. State, 17 Md.App. at 413 , 303 A.2d 173 , directs us as to how to resolve such ambiguity: “[T]he Fourth Amendment requires that we read possibly ambiguous language with an eye toward upholding the warrant rather than toward striking it down.” It seems that Judge Campen implicitly found that the controlled buy was made under police surveillance, and such a finding would not have been clearly erroneous. Lacking that, that version of the facts recounted in the application most favorable to the State would be the version in which the inference is drawn. A fortiori, what was before Judge Campen afforded him a substantial basis for the issuance of the warrant.

That, in and of itself, is sufficient reason to vacate the suppression order. F. Alternative Grounds for Finding a “Substantial Basis” Even if, however, we were to assume, purely arguendo, that the police surveillance of the “controlled buy” was not uninterrupted, we would then have to turn with a more critical eye to what we know about the Cl. Although Illinois v. Gates in 1983 liberated law enforcement from the theretofore rigid constraints of Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969), and the legendary “two-pronged test,” much of the analysis that informed the Aguilar-Spinelli regime still enhances our understanding of how to handle information from informants. 2 ¹⁸³ The first of the two prongs—the two necessary inquiries— was universally referred to as the “basis of knowledge” prong. Its focus was, “Even if the informant is telling the truth, how does the informant know what he’s talking about?” That historic, and still vital, inquiry poses no problem in this case.

The Cl, both in the past and on the day described in the warrant application, purchased cocaine directly from the appellee. It is the other prong, or inquiry, that becomes critical in this case, if, arguendo, the need for its satisfaction is not obviated by the adequacy of the controls on the controlled buy. This prong was universally referred to as the “veracity” prong. Its focus was, “Why should we believe the informant?” That veracity prong actually consisted of two separate spurs or modalities of satisfaction.

With respect to the satisfaction of this prong, Aguilar, 378 U.S. at 114-15 , 84 S.Ct. 1509 , required that the warrant-issuing judge be informed of “some of the underlying circumstances from which the officer concluded that the informant ... was ‘credible’ or his information ‘reliable.’ ” That test, in the disjunctive, was further explicated by Spinelli, 393 U.S. at 415-18 , 89 S.Ct. 584 . For a professional police informant, one from the “criminal mileau” rather than a “citizen-informer,” the usual way of establishing credibility directly was by showing a “track record” of reliable past performances. There was, to be sure, no such showing with respect to the Cl in this case. The reliability spur, however, provides an alternative way of satisfying the veracity prong.

Information available to the police, other than through the mouth of the informant, may adequately corroborate the informant’s story. Spinelli, 393 U.S. at 415 , 89 S.Ct. 584 , described this buttressing technique. If the tip is found inadequate under Aguilar , the other allegations which corroborate the information contained in the hearing report should then be considered. In Hignut v. State, 17 Md.App. at 411 , 303 A.2d 173 , this Court described this alternative way of establishing veracity. ¹⁸⁴ Spinelli , however, points out an alternate route to the establishment of “credibility”.

Even where the internal evidence about the informant himself, or about the circumstances under which the information was furnished, fails to establish intrinsically personal “credibility” or informational “reliability,” external evidence, contained elsewhere in the application, may be examined to see what buttressing it provides. Independent police observation may tend to verify—to corroborate—the story as told by the informant. A direct showing that some of the story has been verified as true lends credence to the remaining unverified portions of the story. How much verification is needed depends upon how much bolstering the “credibility” requires.

(Emphasis supplied). This alternative verifying technique is regularly referred to as that of “independent police verification.” The technique enjoys the endorsement of 2 Wayne R. LaFave, Search and Seizure (3d ed. 1996), § 3.3(f), p. 167, with a nod of approval to Maryland analysis. Assume now a situation where information has been obtained from an informant in such a manner as to show his basis of knowledge (i.e., a direct statement of the basis, or a recitation of self-verifying details), but without indicating veracity in any of the ways previously discussed. Is it possible that corroboration may remedy this deficiency?

None of the Supreme Court opinions previously summarized question such use of corroborating facts, and rightly so. As explained in the well reasoned case of Stanley v. State, [ 19 Md.App. 507, 529 , 313 A.2d 847 (1974)]; The relevance of this particular remedy to this particular defect is clear. When independent police observations have verified part of the story told by an informant, that corroboration lends credence to the remaining unverified portion of the story by demonstrating that the informant has, to the extent tested, spoken truly. * * * The verification helps to demonstrate his “credibility.” Present good performance shows him to be probably “credible” just as surely as does past good performance. ¹⁸⁵ (Emphasis supplied). See also West v. State, 137 Md.App. 314, 337-46 , 768 A.2d 150 (2001).

There was in this case a lot by way of independent police verification of the Cl’s veracity. Even assuming, therefore, that his/her veracity was in issue, that veracity could not be summarily dismissed simply because of the absence of a “track record” of past performances. There was independent police verification. 1. The Cl Was Not an Anonymous Tipster A minor factor, but one nonetheless worth noting, was that the Cl was not an anonymous tipster.

The Cl had been arrested by the Special Operations Division within the preceding three weeks and was known to them. The Cl’s cooperation with the