State v. Johnson

MOYLAN, J. It is exceedingly difficult for a reviewing judge to be less than demanding. It somehow cuts against the judicial grain to accept that a conclusion one can prove ineluctably to be imperfect may nonetheless be adequate. Possessing such a talent, however, is a core value of the reviewing process. We described in State v. Amerman, 84 Md.App. 461, 463 , 581 A.2d 19 (1990), the tightly confined standard that constrains a suppression hearing judge when reviewing the earlier decision of another judge to issue a search and seizure warrant based on that first judge’s finding of probable cause: 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), the reviewing judge sits in an appellate-like capacity 'with all of the attendant appellate constraints.

(Emphasis supplied). A State Appeal The appellee, Andre Johnson, was charged with two counts of possession of narcotic drugs with the intent to distribute. He moved pre-trial in the Circuit Court for Baltimore County to have suppressed physical evidence that had been seized in a warranted search of his residence. Following a suppression hearing on May 25, 2012, the court ruled that the search warrant was not supported by probable cause and that the evidence would, therefore, be suppressed.

The State filed a notice of appeal from that ruling pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c). That subsection provides that 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.” The record in this case was filed on August 13, 2012. Accordingly, our decision must be rendered no later than December 11, 2012. ⁵⁷⁸ A Shifting Perspective The relationship between a suppression hearing judge and the determination of probable cause can be a tricky one. It shifts dramatically in moving from the warrantless setting to the very different setting wherein a judicially issued warrant is involved.

The reviewing judge must shift gears accordingly. In the warrantless situation, the judge is the ultimate fact finder, determining the existence or absence of probable cause. Where a judicially issued warrant is being reviewed, by contrast, the suppression hearing judge enjoys no such freewheeling latitude. As we announced at the top of this opinion, the suppression judge, in that reviewing posture, “sits in an appellate-like capacity with all of the attendant appellate constraints.” Under those “attendant appellate constraints,” the suppression hearing judge may well be called upon to uphold the warrant-issuing judge for having had a substantial basis for issuing a warrant even if the suppression hearing judge himself would not have found probable cause from the same set of circumstances.

In State v. Amerman, 84 Md.App. at 464 , 581 A.2d 19 , we stressed the difference between those conclusions of the suppression hearing judge that are material and those other conclusions by the same judge that are, in a given review posture, utterly immaterial: 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 ivarrant-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). In the context of a warrantless search, the suppression hearing judge focuses directly on the existence of probable cause. The focus comes naturally for it is the type of first-level call that a trial judge habitually makes on a daily basis. ⁵⁷⁹ In the very different world of reviewing someone else’s warrant, by contrast, the suppression hearing judge must focus on the less familiar issue of whether the warrant-issuing judge was or was not in legal error.

That is a second-level call, and a totally different type of decision. The validity of the warrant, needing only a “substantial basis” (regularly described as something less than probable cause), does not necessarily depend on the solidly established existence of probable cause. The law’s preference for police resort to judicially issued warrants is so hydraulically powerful that the courts, by way of the practical endorsement of that preference, will uphold a warrant even should the warrant-issuing judge have been technically wrong in the assessment of probable cause. Where one comes out on a given proposition is a function of where one goes in.

The answer is controlled by the precise question that is asked. In looking at a set of facts, is the judge being asked to determine probable cause or is the judge being asked to review another judge’s ruling in that regard? In trying to make this critical distinction as perspicuous as possible, we gave in Amerman, 84 Md.App. at 464 n. 2, 581 A.2d 19 , the unusual but theoretically possible example of how the difference in standards could operate: The same discipline could, indeed, constrain a suppression hearing judge even when reviewing his own earlier issuance of a warrant, Trussell v. State, 67 Md.App. 23, 25-29 , 506 A.2d 255 (1986), cert. denied, 306 Md. 514 , 510 A.2d 260 (1986). “Although I would not, as a matter of fact, find probable cause from these circumstances today, I cannot say, as a matter of law, that I was legally in error when I did so yesterday. I, therefore, have no choice at this juncture and in this more confining capacity but to uphold my earlier warrant, although I am frank to admit that I would not reissue it.” (Emphasis supplied).

Applying the Wrong Test In the case before us, the flaw in the suppression hearing judge’s analysis became clear in the opening sentence of his announcement of his decision: ⁵⁸⁰ I do give deference to the issuing judge. That being the case, the standard still is whether there is probable cause for the warrant to issue. (Emphasis supplied). After a thorough-going analysis of the immaterial probable cause issue, his conclusion made his use of the erroneous standard of review unmistakable: Thus, I do not find that there was probable cause for the issuance of the warrant for the reviewing judge to issue that warrant.

(Emphasis supplied). This is indisputably a case wherein the wrong standard was applied. It is precisely the flaw that was before this Court in State v. Jenkins, 178 Md.App. 156, 162 , 941 A.2d-517 (2008): [T]he 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 [the warrant-issuing judgej’s decision to issue the warrant. The direct focus was on the warrant itself rather than on the distinct question of whether [the warrant-issuing judge] had some substantial basis for issuing the warrant. (Emphasis supplied). The suppression hearing judge’s resort to the probable cause standard rather than to the substantial basis standard was not, as the appellee blithely dismisses it, a mere insignificant slip of the tongue.

It was the critical employment of a wrong standard, a mistake readily capable of producing a dispositively different result. ⁵⁸¹ The Warrant Application The ambit of our review, precisely the same as the suppression hearing judge’s review, is bounded by the four corners of the warrant application. The question before us is not whether probable cause existed that evidence would be found in the residence to be searched but whether the judge who issued the search warrant had a “substantial basis” for so finding. Clearly there was such a substantial basis. The warrant application consisted of five single-spaced typed pages.

The application recounted, in far more elaborate detail, the following evidence. On December 4, 2010, as the culmination of an extended incident of road rage on the Baltimore beltway, the driver of a gold-colored Ford Taurus, displaying Maryland registration plates 5FMY72, pulled a black handgun from his waistband and fired two or three shots in the general direction of the victim, who was driving a van. As the victim called 911 and reported the incident, the Ford Taurus fled out of sight. A check of the tag number established that the vehicle was registered to the appellee and that his address was 64 Hand-worth Way in Parkville.

A Baltimore County police surveillance at that address spotted the suspect vehicle, driven by one Tavon Jamal Frisby as its sole occupant, arrive at the residence approximately seven hours after the shooting. Frisby was arrested. Frisby also listed his address as 64 Hand-worth Way. The Ford Taurus was searched and no handgun was found.

The vehicle appeared to have been thoroughly cleaned. The victim was brought to the scene and he identified Frisby as the person who had fired the shots at him. From both a red bandana pointed to by Frisby during the road rage encounter and from information provided by the Baltimore County Police Gang Unit, there was a strong inference that Frisby was a member of a gang known as the Bloods and had been for at least two years. Although what was ultimately found in the search of 64 Handworth Way led to charges against the appellee, the antecedent suspicion that resulted in the issuance of the ⁵⁸² warrant was focused exclusively on Tavon Jamal Frisby, the underaged son of the appellee who lived at the same address.

As the warrant application noted, “Frisby’s date of birth is February 2,1992 (18 years of age), which makes him ineligible to legally purchase a handgun.” Frisby was in the Baltimore County Detention Center from December 4 through December 13, 2010. An intercepted telephone call between him and an unidentified female during that time period revealed his concern about the reaction of someone named “Tony” to the shooting incident, his necessity of promptly seeing Tony and explaining things, his intention of getting a gun from Tony, and his reassurance that “they searched my car and didn’t find anything.” On January 25, 2011, the police conducted a surveillance of 64 Handworth Way. They observed Frisby arriving at the address in a dark blue Toyota, with Maryland tags 7MD2706. That car was registered to the appellee at that address, just as was the gold Ford Taurus.

Frisby unlocked the front door and entered the residence carrying a backpack. Frisby left the residence approximately five minutes later without the backpack. He drove off in the blue Toyota. Detective Donald Frederick, in an undercover vehicle, attempted to follow Frisby but deliberately did not follow too closely.

He recognized, through his “training, knowledge and experience,” that Frisby was making “counter surveillance” maneuvers. Frisby repeatedly made “quick lane changes” and “doubled back in the opposite direction.” Detective Frederick then broke off the surveillance. The application was for a warrant to search 64 Handworth Way and both the gold Ford Taurus and the blue Toyota. What the police were looking for were 1) notes, phone numbers, and documents evidencing gang activity involving Frisby and “Tony”; and 2) the handgun, either that used in the beltway shooting or the one Frisby intended to get from Tony.

With respect to evidence of gang involvement, the application asserted: ⁵⁸³ Based upon their training, knowledge and experience Detective Frederick and Sgt. Atteberry know that individuals involved in the above criminal activity will keep notes, phone numbers of co-conspirators and believes the subject identified in the phone conversation as “Tony” will be identified from these records. Detective Frederick and Sgt. Atteberry also know through their training, knowledge and experience that individuals involved in gang activity will also keep records and items related to that activity, including initiation documents, contacts for other gang members and/or information of potential targets/victims, and, items such as colors (bandanas) and insignias representing their gang affiliation.

(Emphasis supplied). With respect to the handgun, the application asserted: Detective Frederick and Sgt. Atteberry also know from the above phone conversation that this defendant, who is prohibited from, possessing a handgun is attempting to, or ha,s acquired a handgun. Possibly the handgun used in the commission of this offense, and that handguns are a possession that individuals prize and do not readily dispose of.

Detective Frederick and Sgt. Atteberry also know through this same training, knowledge and experience that these individuals will, often times store or conceal these items at their place of residence, on their person and or vehicles they own or are currently vising. (Emphasis supplied). We hold that the warrant application provided a substantial basis for the issuance of the search and seizure warrant.

We offer no opinion as to whether the application established probable cause, because on the issue of suppression it simply does not matter. Probable cause is not the test. What A Reviewing Judge Must Not Do: Determine Probable Cause De Novo Once a duly authorized judicial officer has issued a search (or arrest) warrant, any subsequent review of that ⁵⁸⁴ decision—at a suppression hearing, on a suppression motion at trial, or on appeal—must be appropriately deferential. The reviewing judge does not presume to assess, as of first impression, the existence of probable cause.

That would be to do all over again, redundantly, what had already been done by the first judge. The prohibition of such de novo redundancy was clearly set out by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 236 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983): We 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. Within the year, this Court was on board with Ramia v. State, 57 Md.App. 654, 660 , 471 A.2d 1064 , cert. denied, 300 Md. 154 , 476 A.2d 722 (1984): 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).

Within months, Chief Judge Robert C. Murphy wrote to a similar effect for the Court of Appeals in Potts v. State, 300 Md. 567, 572 , 479 A.2d 1335 (1984) (“After-the-fact judicial scrutiny of the affidavit should not take the form of de novo review.”). In Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984), the Supreme Court repeated the prohibition, but with an exclamation point. The Supreme Judicial Court of Massachusetts had held that a search warrant was invalid because the credibility of an anonymous informant had not been adequately established. 390 Mass. 562, 568-70 , 458 N.E.2d 717 (1983). The United States Supreme Court sternly reversed: 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 a de novo ⁵⁸⁵ probable-cause determination.

We rejected just such after-the-fact, de novo scrutiny in Gates. 466 U.S. at 732-33 , 104 S.Ct. 2085 (emphasis supplied). The Court of Appeals of Maryland has consistently followed suit. Judge Harrell stressed the prohibition on de novo review in Greenstreet v. State, 392 Md. 652, 667-68 , 898 A.2d 961 (2006): We do so [reviewing a warrant] not by applying a de novo standard of review, but rather a deferential one. See also Patterson v. State, 401 Md. 76, 89-90 , 930 A.2d 348 (2007).

What the suppression hearing judge should not concern himself about was made transparently clear in State v. Amerman, 84 Md.App. at 463 , 581 A.2d 19 : The issue is no longer the familiar one of whether probable cause exists; that has already been determined by someone else. If prohibited from making a de novo assessment of probable cause, what then should the reviewing judge do instead? What A Reviewing Judge Should Do: Be Content With A Substantial Basis 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 switched to affirmative terms to praise a suppression hearing judge for doing what a reviewing judge should do: 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).

The relatively lower hurdle that must be cleared by an application for a search warrant is that it must provide a “substantial basis” for the issuance of the warrant. Illinois v. ⁵⁸⁶ Gates described that lower hurdle, 462 U.S. at 236 , 103 S.Ct. 2317 : 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 ... concluding]” that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. (Emphasis supplied). See also Massachusetts v. Upton, 466 U.S. at 732-33 , 104 S.Ct. 2085 .

The Maryland case law has never varied in its commitment to a “substantial basis” as the controlling standard for reviewing a warrant. As Chief Judge Murphy wrote for the Court of Appeals in Birchead v. State, 317 Md. 691, 701 , 566 A.2d 488 (1989): Our review of the judge’s decision to issue the search warrants is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application for the warrant. (Emphasis supplied). See also Greenstreet v. State, 392 Md. at 667 , 898 A.2d 961 (“We determine first whether the issuing judge had a substantial basis to conclude that the warrant was supported by probable cause.”); McDonald v. State, 347 Md. 452, 467 , 701 A.2d 675 (1997); State v. Lee, 330 Md. 320, 326 , 624 A.2d 492 (1993); State v. Faulkner, 190 Md.App. 37, 47 , 985 A.2d 627 (2010) (“The [Supreme] Court reasoned that the preference for warrants dictates that their validity be upheld in ‘doubtful or marginal cases.’ ”); State v. Coley, 145 Md.App. 502, 521 , 805 A.2d 1186 (2002); Braxton v. State, 123 Md.App. 599, 620-22 , 720 A.2d 27 (1998); Trussell v. State, 67 Md.App. 23, 29 , 506 A.2d 255 (1986). “Substantial Basis” Is Less Than “Probable Cause” Terms such as “substantial basis” and “probable cause” can be, however, frustratingly slippery.

The one thing we can be certain about is their relative weight when compared with each other. A substantial basis is less weighty and ⁵⁸⁷ less logically probative than probable cause. A tightly reasoned examination, for instance, might reveal a subtle logical flaw in the posited probable cause, but the substantial basis test would not subject the warrant application to so rigorous an analysis. The preference for the warrant and the resulting presumptive validity of the warrant will be able to cover over flaws that might be more compromising if one were examining probable cause in a warrantless setting.

Fine points in the arguable nexus between the street criminality of the suspect and the police entitlement to search his home for evidence might well constitute such a case wherein the relative intensities of the examinations might produce very different conclusions. What we know for certain is that some warrant applications will past muster under the lesser test that would not pass muster under the more demanding test. If all of the law’s language about the preference that should be extended to a warrant actually means anything, it clearly implies that if at a suppression hearing, for example, the State needed a grade of “C” to sustain a warrantless search, it would almost certainly squeak by with a grade of “D” if it had gone to the trouble of getting a search warrant. That, after all, is the reward for getting a warrant.

Although it is difficult to quantify the difference, there is a difference. The Supreme Court made it very clear in Aguilar v. Texas, 378 U.S. 108, 111 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), that the same quantum of suspicion that might not suffice in the warrantless 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). Conversely, in Johnson v. United States, 333 U.S. 10, 13-14 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948), the Supreme Court stressed the difference by pointing out that a warrantless search ⁵⁸⁸ requires more by way of probable cause than does an application for a search warrant: 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 value or a mathematical immutability, those words would be pointless.

This Court, early on in its institutional life, sat en banc in Hignut v. State, 17 Md.App. 399, 413 , 303 A.2d 173 (1973), and applied that discernible distinction in the quality of the acceptable evidence in the respective contexts: We are admonished, in the interests of enhancing the Fourth Amendment protection, 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 toward upholding the warrant rather than toward striking it down. (Emphasis supplied). More recently, this Court reaffirmed the lesser standard for assessing a substantial basis in State v. Jenkins, 178 Md.App. at 174 , 941 A.2d 517 : The case law 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. (Emphasis supplied).

Judge Deborah Eyler spoke to the same point in State v. Faulkner, 190 Md.App. 37, 47 , 985 A.2d 627 (2010): The substantial basis standard involves something less than finding the existence of probable cause and is less demanding than even the familiar “clearly erroneous” stan ⁵⁸⁹ dard by which appellate courts review judicial factfinding in a trial setting. (Emphasis supplied). And see Ferguson v. State, 157 Md.App. 580, 593 , 853 A.2d 784 (2004); State v. Coley, 145 Md.App. at 521 , 805 A.2d 1186 . A Prima Facie Case Is Not Required In order to satisfy the substantial basis test, the warrant application need not establish a legally sufficient or prima facie case.

Illinois v. Gates, 462 U.S. at 235 , 103 S.Ct. 2317 , was emphatic in that regard: [l]t is clear that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. (Emphasis supplied). Justice Rehnquist’s opinion went on to explain why the substantial basis test entails no such rigorous a legal examination of the warrant application: We also have recognized that 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.” Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of “probable cause." Id.

(emphasis supplied). Simply to reread that passage makes the Supreme Court’s message unmistakably clear that although rubberstamping a warrant might sometimes be a problem, holding a warrant to too high a standard can be a comparable problem and sometimes, at the hands of overdemanding reviewers,, an even greater problem. In line with that clear directive, this Court held in State v. Amerman, 84 Md.App. at 473 , 581 A.2d 19 : Thus, while the “clearly erroneous” test demands some legally sufficient evidence for each and every element to be ⁵⁹⁰ 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. See also McDonald v. State, 347 Md. 452, 467 , 701 A.2d 675 (1997); State v. Coley, 145 Md.App. at 521 , 805 A.2d 1186 .

The Constitutional Values Protected By the Substantial Basis Standard Animating the seemingly latitudinarian standard of review for a judicially issued warrant is not some “pro-State” or “anti-defendant” bias. It reflects a deliberate policy decision by the Supreme Court that the most effective way to protect the Fourth Amendment guarantees of all citizens is to encourage the police to eschew reliance on warrantless searches and seizures and to defer to the impartial judgment of neutral and detached magistrates. The regularly reiterated preference for warrants is the Supreme Court’s practical way of rewarding law enforcement when it follows the recommended procedures and of withholding that preference when it does not. Illinois v. Gates, 462 U.S. at 236 n. 10, 103 S.Ct. 2317 , could not have been more direct in setting forth both the Court’s policy and its strategy in support of that policy: 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.” 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.

(Emphasis supplied). The Supreme Court told reviewing judges both what to do and how to do it: ⁵⁹¹ 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 hypertechnical, rather than a commonsense manner.” 462 U.S. at 236 , 103 S.Ct. 2317 (emphasis supplied). The Supreme Court explained that if warrants are subjected to too tight a scrutiny, the police may deem it inappropriate to rely on them. If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search.

Id. (emphasis supplied). By way of supporting the preference for the warrant, United States v. Ventresca, 380 U.S. 102, 109 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), had earlier admonished reviewing courts to “call the close plays” in favor of the magistrate’s decision to issue the warrant: 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 eases in this area should be largely determined by the preference to be accorded to warrants. (Emphasis supplied).

In Herbert v. State, 136 Md.App. 458, 486-87 , 766 A.2d 190 (2001), this Court described the Court’s strategy of employing incentives and disincentives in order to further police resort to the warrant process: 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 investiga ⁵⁹² tive 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. (Emphasis supplied).

Maryland has religiously recognized the preference that must be extended to warrants. Birchead v. State, 317 Md. at 701 , 566 A.2d 488 (“[W]e generally pay great deference to a magistrate’s determination of probable cause.”); Malcolm v. State, 314 Md. 221, 229 , 550 A.2d 670 (1988) (“As the key protection from unreasonable government searches, warrants continue to be favored by law.”); Potts v. State, 300 Md. at 572 , 479 A.2d 1335 (“... giving the magistrate’s determination the great deference mandated by those cases ...”); Valdez v. State, 300 Md. 160, 169-70 , 476 A.2d 1162 (1984); Ferguson v. State, 157 Md.App. at 593 , 853 A.2d 784 ; Thompson v. State, 62 Md.App. 190, 206-07 , 488 A.2d 995 (1985). 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: 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). See also West v. State, 137 Md.App. 314, 322 , 768 A.2d 150 , cert. denied, 364 Md. 536 , 774 A.2d 409 (2001) (“Reviewing courts ... pay great deference to that ⁵⁹³ determination. Reflecting a preference for the warrant process .... ”). In manifesting the preference for a warrant, an important factor is the dialogue that should be taking place between the court reviewing the warrant application and the American policeman.

As we observed in Herbert v. State, 136 Md.App. at 489-90 , 766 A.2d 190 : 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 om’8 pocket (Emphasis supplied). The Suppression Ruling and The Question of Nexus In major measure, the suppression hearing judge ruled that the warrant application failed to establish probable cause because of its failure to show a nexus between Frisby’s suspected criminal activities and his home. The analysis began: Having reviewed the warrant, having reviewed the applicable cases, I do not find that there was a nexus between ⁵⁹⁴ Tavon Frisby’s alleged criminal activity on December Fth and Ms home.

(Emphasis supplied). We initially note that, contrary to that analysis, Frisby’s end of the nexus was not confined to Frisby’s alleged criminal activity on December 4, 2010. The warrant was to search the home where Frisby lived and the two family automobiles to which he had access. The search was, to be sure, in part for the black handgun that Frisby fired on the morning of December 4.

The search, however, was also for any handgun that Frisby might have been able to obtain from “Tony,” as he expressed his intention of doing, at some time following his release from jail on December 13. Frisby was too young to possess a handgun legally and either weapon would have been a legitimate target of the search. With respect to the weapons, the application for the warrant had recited: Detective Frederick and Sgt. Atteberry also know from the above phone conversation that this defendant, who is prohibited from possessing a handgun is attempting to, or has acquired a handgun.

Possibly the handgun used in the commission of this offense, and that handguns are a possession that individuals prize and do not readily dispose of. Detective Frederick and Sgt. Atteberry also know through this same training, knowledge and experience that these individuals will often times store or conceal these items at their place of residence, on their person and or vehicles they own or are currently using. (Emphasis supplied).

The application for the warrant was also concerned with Frisby’s possible gang-related activities, with a gang known as the “Bloods.” That was an ongoing activity, right up to the time of the search. Implicating Frisby in this regard was not simply the recorded telephone conversation from the jail, his confrontational display of the red bandana on his wrist, but also the facts that Frisby had been stopped by the County Police Gang Unit in 2005 in the company of two individuals known to be “Blood” gang members and that Frisby had been ⁵⁹⁵ arrested in 2008 with a known “Blood” gang member. 1 With respect to possible evidence of gang membership and activity, the warrant application recited: Based upon their training, knowledge and experience Detective Frederick and Sgt. Atteberry know that individuals involved in the above criminal activity will keep notes, phone numbers of co-conspirators and believes that the subject identified in the phone conversation as “Tony” will be identified from these records. Detective Frederick and Sgt.

Atteberry also know through their training, knowledge and experience that individuals involved in gang activity will also keep records and items related to that activity, including initiation documents, contacts for other gang members and/or information of potential targets/victims, and items such as colors (bandanas) and insignias representing their gang affiliation. (Emphasis supplied). The suppression hearing court’s analysis, however, focused exclusively on the gun used by Frisby on the morning of December 4: Pointing out that immediately on, or at least very quickly after the December Fth incident, the shooting occurred, Frisby’s home was placed under surveillance until Frisby arrived. That was for some seven hours between the shooting and the actual arrest of Mr. Frisby, between 9:30 and 4:30.

It was noted that he had not entered the dwelling prior to his arrest from the time of the shooting until his arrest and that there was no opportunity for him to secrete the weapon on or about that location. It was also pointed ⁵⁹⁶ out in the warrant that his vehicle as well as his person were thoroughly searched for the weapon without success. (Emphasis supplied). That is more than we know.

Except for the rare circumstance wherein the court might be probing for evidence of actual police perjury or deliberate falsehood under Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978), a court reviewing a warrant—trial court or appellate court—is confined within the four corners of the warrant and warrant application, with no supplementation permitted. The initial shooting in this case occurred at approximately 9:30 in the morning of December 4. The warrant application does not tell us at what time the police surveillance team arrived at 64 Handworth Way. The application merely recites, “Vehicles responded to the area of that residence and maintained surveillance until the vehicle arrived there.” The suppression hearing court inferred that this was “immediately” or “at least very quickly” after the shooting.

That was an inference adverse to the validity of the warrant, moreover, whereas “the Fourth amendment requires that we read possibly ambiguous language with an eye toward upholding the warrant rather than toward striking it down.” Hignut v. State, 17 Md.App. at 413 , 303 A.2d 173 . That is the wrong tilt to give arguably ambiguous allegations. The entire automotive confrontation between Frisby and his victim occurred on the northeastern quadrant of the Baltimore Beltway between Essex and Towson. 64 Handworth Way is in Parkville, just a few blocks outside the Beltway between the Belair Road and Harford Road exits. After Frisby finished shooting, he could readily have driven home and dropped off his handgun before the police arrived there.

It does not conclusively follow that “there was no opportunity for him to secrete the weapon on or about that location.” The warrant application, moreover, made it clear that there were other objects being sought by the warrant. The suppression hearing court’s analysis went on: ⁵⁹⁷ The detectives relied on a monitored conversation while the Defendant was incarcerated wherein Mr. Frisby states that he is going to get a gun when he gets out of jail. This in and of itself is insufficient to find probable cause in that at this juncture these are merely hollow words without any corroboration or action to substantiate the fact of what his intent was. (Emphasis supplied).

The monitored conversation, however, was very significant in terms of suggesting possible gang involvement and certainly with respect to the obtaining from Tony of a handgun which Frisby could not lawfully possess. A possibly inculpatory conversation, moreover, does not need corroboration. There was an unambiguous intent expressed to get a gun even if we do not know what Frisby then intended to do with the gun. Possessing the gun would in and of itself be a criminal act.

The suppression court’s analysis continued: At this point the detectives do conduct surveillance again on his residence on January 25, 2011 and Mr. Frisby is observed entering and leaving the home. That snippet of surveillance does show, however, that Frisby was in the dark blue Toyota on January 25, 2011, one of the two cars for which the search warrant was obtained. It showed, moreover, that he entered his residence that day with his own key, a residence wherein, it was alleged, he was likely to keep such items as a handgun, ammunition, evidence of gang membership, etc. The surveillance had him entering his home with his backpack and leaving without. He presumably dropped of some of his property at home.

Before ruling that there was no probable cause to show a nexus between Frisby and his home, the analysis concluded: He is followed and ultimately eludes the police, as mentioned, with certain evasive driving tactics. The Court does not—I don’t find that those evasive tactics, if that’s what the detectives were relying on to find corroboration of the phone call, were sufficient for probable cause. There are many explanations for these evasive tactics. I don’t know ⁵⁹⁸ Whether he knew that they were police following him.

Maybe he thought they were other people, maybe he thought they were other gang members following him. Could be anybody. He might have thought it was the police following him, but that in and of itself is not illegal activity. That doesn’t show anything relative to the gun or any nexus to the home.

(Emphasis supplied). The use of evasive driving maneuvers may not be criminal per se, but it is heavy duty evidence of a sense of guilt. It raises the suspicion that Frisby may have had something in the car he did not want the police to see. That would strengthen the case for the search of the car.

The evasive maneuvers also raised the suspicion that Frisby was going somewhere that he did not want the police to know about. That might help to establish his gang connections. The analysis points out other and possibly innocent inferences that might explain the unquestionably bizarre behavior. The required “tilt” of the warrant reviewing court, however, is to seek out those inferences favorable to the warrant, not those adverse to it.

The analysis at this suppression hearing was basically not warrant-friendly. That attitude is critical. The Preference For a Warrant-Friendly Attitude There is, of course, the law, but there are also extralegal vibrations. The thrust of this opinion has been to communicate the Supreme Court’s prime directive over the course of fifty years, as well as the Maryland case law’s implementing of that prime directive, that a reviewing court is enjoined to approach the examination of a judicially issued warrant with a warrant-friendly attitude.

That is what the overarching concepts of “the preference for a warrant” and “the presumptive validity of a warrant” are all about. Reduce fifty years of rhetoric to a nutshell and what it says is that the reviewing judge should approach the warrant with a smile. The Case Law on Proof of Nexus There is some case law in Maryland that arguably could support both a pro-nexus and an anti-nexus conclusion when ⁵⁹⁹ applied to the facts in this warrant application. The immediate problem this creates for the defense, of course, is that there would be, therefore, a substantial basis to support the warrant-issuing judge’s decision, whichever way he should rule.

If the judge should conclude that the nexus is established and that the warrant should issue, there is case law that gives him a substantial basis for so ruling. If, on the other hand, the judge should conclude that a nexus is not established and that the warrant should not issue, there is also case law, assuming hypothetically that the State could appeal in such a case, giving him a substantial basis for not issuing the warrant. Because of the way in which our review of warrants is structured, the warrant-issuing judge is in a win-win situation. He has a substantial basis for whatever he wants to do.

Conversely, the party seeking to challenge the decision of the warrant-issuing judge will be in a lose-lose situation. The deck is unquestionably stacked in favor of the warrant-issuing judge, as the Supreme Court has