State v. Jones

MOYLAN, Judge. I. Introduction In the one-third of a century that has transpired since the Supreme Court held in Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), that the Exclusionary Rule of Evidence, as a sanction for a violation of the Fourth Amendment, was binding on the states, there have been untold thousands of instances in which appellate courts, state and federal, have been called upon by defendants to reverse determinations by. suppression hearing judges and trial judges that probable cause, to support either a search warrant or appropriate warrantless activity, did exist. Where interlocutory appeals by the prosecution have been statutorily autho ⁵⁵¹ rized, there have been hundreds, if not thousands, of instances where appellate courts have been called upon by prosecutors to reverse determinations by suppression hearing judges that probable cause did not exist. Despite the vital and ongoing importance of the probable cause question and the frequency with which it has arisen and will continue to arise, the Supreme Court has remained through all of those years cryptically silent, in the warrantless context at least, as to what the proper standard of review should be and as to how appellate courts should handle their reviewing obligation.

Incomprehensibly, the case law from the lower federal courts and from the state appellate courts alike has been almost equally bereft of any in-depth guidance as to what the appropriate standard of appellate review is—let alone as to why it is. Those unanswered questions, ironically, go to the very heart of the appellate process. 1 In the appellate business, we think about a lot of things, but we seldom think about thinking. We tend to neglect the most basic tools of our craft. Pursuant to the provisions of Md.Code Ann., Cts. & Jud.

Proc. § 12-302(c)(3), the State is asking us to reverse the pretrial decision by Judge Raymond J. Thieme, Jr. in the Circuit Court for Anne Arundel County that certain physical evidence be suppressed. As to whether we should do so 1) because Judge Thieme was clearly erroneous in failing to find probable cause; 2) because he clearly abused his discretion in suppressing the evidence; 3) because he was wrong, as a matter of law, in failing to find probable cause; or 4) because we, without necessarily finding any error on his part, should simply “trump” his decision by way of our own de novo decision to the contrary, the State is understandably vague. In the service of its immediate purpose, any of the above will suffice. If the State gets the right answer, the question hardly matters. ⁵⁵² For us, however, the problem is not in finding the right answer; it is in asking the right question.

What precisely was Judge Thieme’s finding? What was the essential nature of that finding? What standard of appellate review should be applied to such a finding?

II

The Present Case The appellee, Samuel Jones, Jr., was indicted by the Anne Arundel County grand jury for both the possession and the distribution of crack cocaine. On the night of December 16, 1993, Officer Sean W. Ottey recovered a quantity of crack cocáine from Jones’s left front pants pocket. As the State acknowledges, as a precondition of taking this appeal pursuant to § 12-302(e)(3)(iii), the case against Jones rises or falls with the admissibility of that crack cocaine. Jones moved, pretrial, to have the cocaine suppressed on the ground that it was the product of an unconstitutional search and seizure under the Fourth Amendment.

A suppression hearing was held on July 7, 1994. On August 1, Judge Thieme ruled that the evidence be suppressed. Although three witnesses testified at the suppression hearing, we can narrow our focus onto the testimony of the State’s key witness, Officer Ottey. Officer Thomas Rice also testified for the State, but his testimony did no more than corroborate that of Officer Ottey and will figure no further in our analysis.

The appellee, Samuel Jones, Jr., also testified but Judge Thieme did not find his testimony to be credible and rejected it. For analytic purposes, therefore, it is as if Jones had never taken the stand. The only testimony that matters is that of Officer Ottey. Judge Thieme found Officer Ottey to be credible and accepted his eyewitness account of the critical events, although not necessarily his “expert” opinion.

Officer Ottey described the neighborhood in the vicinity of Carver Street and Dorsey Avenue in Annapolis where he was on routine patrol on the evening of December 16. He characterized the area as one known to be “an open-air drug market.” Judge Thieme found Officer Ottey to be credible and accepted as a fact that the area was, indeed, a well-known ⁵⁵³ open-air drug market. Officer Ottey testified that he had received numerous complaints from citizens in the community about drug transactions taking place and that he and other Annapolis police officers had made numerous drug arrests in the area. He testified further that in the course of making those drug arrests and patting down the drug suspects, he had found weapons and crack cocaine.

He testified that the crack cocaine was usually packaged in small, self-sealing, clear plastic envelopes. This characterization of the neighborhood we accept as a given, because Judge Thieme did, as we proceed with our analysis.

III

The Consent Search Officer Ottey testified that he observed Jones standing with another individual on the corner of Carver Street and Dorsey Avenue. Officer Ottey approached Jones, told him that he was in a known drug area, and asked him why he was there. The question was apparently rhetorical for the officer did not await an answer. Officer Ottey then asked Jones “if he had any drugs or ... guns on him and if I could check him.” Jones indicated that he did not have drugs or guns on his person and gave Officer Ottey permission to “check him.” Although Jones, to be sure, gave a diametrically contrary account of that prelude to the search, Judge Thieme accepted Officer Ottey’s version of the events.

His finding that the ensuing search was consensual had solid support in the evidence, to wit, in the testimony of Officer Ottey. 2 We also accept that finding by Judge Thieme as a given for purposes of further analysis. The ensuing consensual “check” of Jones for “drugs and/or guns” coincidentally resembled a frisk for weapons. Officer Ottey testified that he “began a pat-down, checking him, starting up at the upper part of his body working my way to the lower part of his body.” We stress the merely coinciden ⁵⁵⁴ tal nature of that resemblance, however, for this was not a “frisk” within the contemplation of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968). This intrusion was not based on articulable suspicion to believe that Jones was armed.

It was based on consent and was, therefore, limited only by the limits imposed on that consent. 3 Consequently, there was no doctrinal requirement that it necessarily be limited in scope to a pat-down of the exterior of the clothing surface. A consensual “check” for weapons might well be interpreted as being thus limited, but a consensual “check” for drugs could just as reasonably have been interpreted by the officer to confer permission to go into the pockets. Florida v. Jimeno, 500 U.S. 248 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991). For whatever reason, however, Officer Ottey did not push the consensual “check” of Jones beyond the limits typically associated with a formal “frisk” for weapons.

Although not dealing with a formal “frisk” as that term of art is used, we nonetheless end up with an indistinguishable pat-down of the exterior of the clothing surface. In the course of that pat-down and while the consent was still operational, Officer Ottey felt something in Jones’s left front pants pocket. He described his tactile sensation: A: When I squeezed it, prior to him revoking consent, I could feel the numerous rock-like substances in there, and I knew right then and there that I had crack cocaine ... in his pocket. Q: Based on your training and experience, was it readily apparent what it was, the nature of the substance?

A: Yes, sir. ⁵⁵⁵ What we have as a given, based on Judge Thieme’s acceptance of the credibility of Officer Ottey as to his first-hand observations, is the fact that Officer Ottey, from outside Jones’s pants, felt a bulge in the pocket, squeezed it, and felt “numerous rock-like substances.” Whether we also have as a given Officer Ottey’s conclusion that what he felt was crack cocaine is far more problematic and will be discussed in detail as our analysis progresses. What Judge Thieme said with respect to Officer Ottey’s conclusion was: I have to make my determination as to whether I am going to accept the expert’s opinion based upon the facts upon which his opinion was based. And there are insufficient facts for me to accept that opinion. At that point in the pat-down process, Officer Ottey, upon feeling the rock-like substances, asked Jones what the rock-like substances were.

Rather than answer the question, Jones said, “I don’t want to be checked anymore.” At that point, the consent was indisputably at an end. The overarching principle with respect to consensual searches is that the scope of the consent, both in terms of the intensiveness of the search and in terms of the duration of the search, is in the total control of the consenting party. Based upon his conclusion that what he had felt through the pants pocket was crack cocaine, Officer Ottey, notwithstanding the withdrawal of the consent, then reached into Jones’s pocket and seized the crack cocaine. Because a rationale based on consent was viable only through the moment of the initial squeeze but had become a dead letter by the time that Officer Ottey reached into the pocket and actually seized the crack cocaine, that seizure must rest, if it is to be deemed reasonable, on some other Fourth Amendment rationale.

In the brief moment between Officer Ottey’s 1) feeling what was in the pocket from the outside and 2) going into the pocket, the doctrinal landscape had shifted dramatically.

IV

The Plain-Feel Doctrine The ultimate seizure of the crack cocaine from Jones’s pocket, the Fourth Amendment propriety of which is the only ⁵⁵⁶ issue before us, was warrantless. As such, it was presumptively unconstitutional. Coolidge v. New Hampshire, 403 U.S. 443, 454-455 , 91 S.Ct. 2022, 2031-32 , 29 L.Ed.2d 564, 576 (1971). For the seizure to be deemed reasonable, it would have to fit within one of the recognized exceptions to the warrant requirement.

There is a single candidate for that honor. It is the recently recognized Plain Feel Doctrine of Minnesota v. Dickerson, 508 U.S. -, 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993). The Plain Feel Doctrine is an analogue of or variation on the Plain View Doctrine, itself first recognized in the plurality opinion of Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 464-73 , 91 S.Ct. 2022, 2037-42 , 29 L.Ed.2d 564, 581-87 (1971). The Plain Feel Doctrine shares all of the requirements and all of the characteristics of the Plain View Doctrine, save only for the substitution of fingers for eyes.

Indeed, because of their common doctrinal base, the two phenomena will in all likelihood come to be seen, probably within a decade, as nothing more than instances or variations of an omnibus Plain Sense Doctrine or Plain Perception Doctrine, which will embrace plain view and plain feel and, by a logically compelling growth process, plain hearing, plain smell, and plain taste. Awaiting that possible new dispensation, it is enough to note that to understand plain feel in the doctrinal sense, be it a variation or be it an analogue, one must first understand plain view. A. The Basic Plain View Doctrine One of the fundamental characteristics of the Plain View Doctrine is that it is exclusively a seizure rationale. No searching at all, no matter how minimal, may be done under the aegis of the Plain View Doctrine.

Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987). The Plain View Doctrine is nonetheless a recognized exception to the warrant requirement, for the obvious reason that the Fourth Amendment prohibits unreasonable seizures as surely as it prohibits unreasonable searches. If, therefore, the police ⁵⁵⁷ presume to seize property warrantlessly, some justification is required for that seizure to be deemed reasonable. That, in appropriate circumstances, is the office of the Plain View Doctrine.

A second fundamental characteristic is that the Plain View Doctrine, unlike most of the other exceptions to the warrant requirement (all but Consent), is not predicated on any sort of exigency. It is permitted in the interest of police convenience. Coolidge v. New Hampshire, 403 U.S. at 468 , 91 S.Ct. at 2039 . It is deemed unreasonably inconvenient to require the police, once they have already made a valid intrusion and have spotted probable evidence in plain view, to leave, obtain a warrant, and then return to resume a process already in progress, the chickens in the meantime perhaps having flown the coop.

Coolidge v. New Hampshire, 403 U.S. at 467-68 , 91 S.Ct. at 2038-39 . Arizona v. Hicks, 480 U.S. 321, 327 , 107 S.Ct. 1149, 1153-54 , 94 L.Ed.2d 347, 355 (1987), reaffirmed that an animating purpose of the Plain View Doctrine “is the desirability of sparing police ... the inconvenience and the risk ... of going to obtain a warrant”: [T]he practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk—to themselves or to preservation of the evidence—of going to obtain a warrant. The reason so light and transient a justification as police convenience is deemed reasonable is because of the absolutely minimal risk posed by the Plain View Doctrine to either of the two traditional Fourth Amendment values or concerns. Coolidge v. New Hampshire, 403 U.S. at 467 , 91 S.Ct. at 2038-39 .

In terms of the initial intrusion or breach into the zone of privacy, the Plain View Doctrine, by definition, poses no threat whatsoever. It does not authorize the crossing of a threshold or other initiation of an intrusion. It does not even come into play until the intrusion is already a valid fait accompli. Id. ⁵⁵⁸ In terms of the other traditional Fourth Amendment concern, preventing even a validly initiated search from degenerating into an exploratory fishing expedition or general rummaging about, the Plain View Doctrine, again by definition, poses no threat whatsoever, for it authorizes not even the most minimal of further searching.

It authorizes only the warrantless seizure by the police of probable evidence already revealed to them, with no further examination or searching being involved. Coolidge v. New Hampshire, 403 U.S. at 466 , 91 S.Ct. at 2038 . The Plain View Doctrine, it must also be noted, does not cover every situation in which the police legitimately see probable evidence in open view. There are a large number of permutations of what the police may reasonably do following a legitimate open view, depending, for instance, upon such considerations as whether the police, in terms of a constitutionally protected area, are 1) outside looking outside, 2) outside looking inside, or 3) already inside looking inside.

See Texas v. Brown, 460 U.S. 730 , 738 n. 4, 103 S.Ct. 1535 , 1541 n. 4, 75 L.Ed.2d 502 , 511 n. 4 (1983); Scales v. State, 13 Md.App. 474 , 478 n. 1, 284 A.2d 45 (1971). The Plain View Doctrine with a capital “P” and a capital “V” and worthy of the designation “Doctrine” is far more limited. It may be invoked to justify the warrantless seizure of evidence if, but only if, three conditions are satisfied. 2. Prior Valid Intrusion One never crosses the threshold of a constitutionally protected area or otherwise initiates a Fourth Amendment intrusion under the authority of the Plain View Doctrine.

Such intrusions must be based on other and prior justifications. A Plain View Doctrine seizure may then, other conditions being satisfied, be an incident or consequence of the justified intrusion. It is never the rationale for the intrusion. In the words of Coolidge, 403 U.S. at 466 , 91 S.Ct. at 2038 , “The doctrine serves to supplement the prior justification.” Texas v. Brown, 460 U.S. 730, 738-39 , 103 S.Ct. 1535, 1541-42 , 75 L.Ed.2d 502, 511 (1983), expanded on that conceptualization: ⁵⁵⁹ “Plain view” is perhaps better understood, therefore, not as an independent “exception” to the Warrant Clause, but simply as an extension of whatever the prior justification for an officer’s “access to an object” may be.

The principle is grounded on the recognition that when a police officer has observed an object in “plain view,” the owner’s remaining interests in the object are merely those of possession and ownership.... Coolidge, 403 U.S. at 465-66 , 91 S.Ct. at 2037-38 , went to great length to catalogue what such prior valid intrusions might be: An example of the applicability of the “plain view” doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in “hot pursuit” of a fleeing suspect.

And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. Finally, the “plain view” doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object, (citations and footnote omitted). The catalogue of justifications for prior valid intrusions would also include a Terry-type “frisk,” Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983); the execution of a search warrant for some other purpose, Horton v. California, 496 U.S. 128 , 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990); an exigent search for guns and gunmen, Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987); or, pertinently for present purposes, a voluntarily consensual search or pat-down. ⁵⁶⁰ Although Coolidge was dealing with the crossing of a threshold (the running board of an automobile) into a constitutionally protected area, it also spoke in more general terms, 403 U.S. at 466 , 91 S.Ct. at 2038 , of this entry-level requirement as “a prior justification for an intrusion ”: What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across apiece of evidence incriminating the accused. (Emphasis supplied.) Coolidge explained, 403 U.S. at 467 , 91 S.Ct. at 2039 , why the requirement of a prior valid intrusion eliminated, by definition, any risk to the Fourth Amendment interest in preventing an intrusion into a citizen’s privacy: The “plain view” doctrine is not in conflict -with the first objective because plain view does not occur until a search is in progress.

In each case, this initial intrusion is justified by a warrant or by an exception such as “hot pursuit” or search incident to a lawful arrest, or by an extraneous valid reason for the officer’s presence. 2. The Spotting of an Object in Plain View It is the second and third requirements of the Plain View Doctrine in combination that eliminate any risk to the other Fourth Amendment concern, the preventing of an initially valid but limited intrusion from degenerating into a general search or exploratory rummaging about. One does not search, explore, or rummage under the authority of the Plain View Doctrine. One is limited to the seizure of items which in the course of an otherwise valid intrusion already are or come into plain view.

Coolidge explained, 403 U.S. at 467 , 91 S.Ct. at 2039 : [Gjiven the initial intrusion, the seizure of an object in plain view is consistent with the second objective, since it does not convert the search into a general or exploratory one. (Emphasis supplied.) ⁵⁶¹ Although Coolidge was dealing only with the sense of sight, it broadened its description of the rationale, 403 U.S. at 468 , 91 S.Ct. at 2039 , to include the “testimony of the senses” generally: Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. (Emphasis supplied.) Paving the way for a possible expansion of the Plain View Doctrine to include knowledge gained through the other senses, Texas v. Brown, 460 U.S. 730, 739 , 103 S.Ct. 1535, 1542 , 75 L.Ed.2d 502, 512 (1983), spoke not of sight specifically but of perception generally: [O]ur decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately. This rule merely reflects an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property.

(Emphasis supplied.) In terms of that second requirement, the Coolidge opinion itself spoke not simply of the object of ultimate seizure being in plain view but further required that the viewing or spotting of the object be inadvertent. It was apparently seeking to guard against the danger that an otherwise valid intrusion might be used opportunistically as an excuse for a planned reconnaissance confirming through plain view what the police already suspected and perhaps actually expected. The Plain View Doctrine as announced in Coolidge , including the so-called inadvertence requirement, was, however, only a plurality opinion of the Supreme Court and was not constitutionally binding. After nineteen years of doubt as to whether the inadvertence requirement was, indeed, part of the Plain View Doctrine or not, Horton v. California, 496 U.S. 128 , 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990), answered that question squarely in the negative.

A solid majority of the Supreme Court in ⁵⁶² Horton made it clear that inadvertence was not and never had been a requirement of the Plain View Doctrine. Indeed, as part of its reason for rejecting the inadvertence requirement, Horton v. California, 496 U.S. at 141-42 , 110 S.Ct. at 2310 , pointed out that the Fourth Amendment’s dominant concern, the privacy interest, had already been breached (the evidence had been discovered) and that the ensuing seizure only engaged the gears of the Fourth Amendment’s lesser concern with the custody of property: As we have already suggested, by hypothesis the seizure of an object in plain view does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view and there is no need for an inadvertence limitation on seizures to condemn it. The prohibition against general searches and general warrants serves primarily as a protection against unjustified intrusions on privacy.

But reliance on privacy concerns that support that prohibition is misplaced when the inquiry concerns the scope of an exception that merely authorizes an officer with a lawful right of access to an item to seize it without a warrant. (Emphasis supplied.) 3. “Immediately Apparent” = Probable Cause To justify the warrantless seizure of a suspect’s property, it is not enough that there has been a prior valid intrusion and that the object of seizure then be perceived in plain view. It is also required that the police, prior to seizure, have probable cause to believe that the object is evidence of crime. The Coolidge opinion itself never used the phrase “probable cause.” It simply, in passing, used the phrase “immediately apparent.” It did so in a context, however, that equates with probable cause.

The police, as a precondition to seizure, are not permitted merely to suspect that an object might be evidence and then to conduct a further examination of it to confirm that suspicion. The plurality opinion stated, 403 U.S. at 466 , 91 S.Ct. at 2038 : ⁵⁶³ Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. (Emphasis supplied.) Although only in the course of briefly quoting Coolidge, Horton v. California, 496 U.S. at 136 , 110 S.Ct. at 2307-08 , did revert on one occasion to the “immediately apparent” phraseology. Nine years after Coolidge , however, Payton v. New York, 445 U.S. 573, 587 , 100 S.Ct. 1371, 1380 , 63 L.Ed.2d 639, 651 (1980), spoke of that third requirement expressly in terms of “probable cause”: The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.

(Emphasis supplied.) Three years after the Payton v. New York decision, the Supreme Court decided Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983). It expressed strong reservations about its earlier use of the phrase “immediately apparent,” particularly because some courts, such as the Court of Criminal Appeals of Texas in that case, had been misled into concluding that the phrase meant that the officer “must be possessed of near certainty as to the seizable nature of the items.” 460 U.S. at 741 , 103 S.Ct. at 1543. The Texas v. Brown opinion initially concluded that the phrase was “an unhappy choice of words”: Decisions by this Court since Coolidge indicate that the use of the phrase “immediately apparent” was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the “plain view” doctrine. Id.

The Brown , Court then referred to its earlier decision of Colorado v. Bannister, 449 U.S. 1 , 101 S.Ct. 42 , 66 L.Ed.2d 1 ⁵⁶⁴ (1980), and concluded that that opinion had correctly used the traditional concept of probable cause to describe the pertinent requirement. It observed, 460 U.S. at 741 , 103 S.Ct. at 1543: The Court [in Colorado v. Bannister ] held that these facts supplied the officer with “probable cause,” and therefore, that he could seize the incriminating items from the car without a warrant. Plainly, the Court did not view the “immediately apparent” language of Coolidge as establishing any requirement that a police officer “know” that certain items are contraband or evidence of a crime. (Citation omitted.) Texas v. Brown went on to quote with approval the probable cause language from Payton v. New York and, 460 U.S. at 742 , 103 S.Ct. at 1543, placed its official imprimatur upon it: We think this statement of the rule from Payton ... requiring probable cause for seizure in the ordinary case, is consistent with the Fourth Amendment and we reaffirm it here, (footnote omitted).

Texas v. Brown, however, suffered the same impediment as did that part of the Coolidge opinion that had announced the Plain View Doctrine. Both were merely plurality opinions and were not, therefore, constitutionally binding precedent. The first full-length treatment of the Plain View Doctrine by the Supreme Court that commanded a solid majority of the Court was Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987). It addressed, inter alia, the quality of the belief an officer must possess before seizing evidence under the banner of the Plain View Doctrine.

The phrase “immediately apparent” was mercurial and had no settled legal meaning. It might mean probable cause. It might mean something more than probable cause, as the Court of Criminal Appeals of Texas had concluded at an earlier stage of Texas v. Brown. It might mean something less than probable cause, as Justice O’Connor would conclude in her dissent in Arizona v. Hicks.

In settling upon a more concrete term with a known meaning rather than the earlier, more mercurial, and, indeed, only passing refer ⁵⁶⁵ ence from Coolidge , the Hicks majority was unequivocal, 480 U.S. at 326 , 107 S.Ct. at 1153 , that the level of certitude had to be probable cause: We have not ruled on the question whether probable cause is required in order to invoke the “plain view” doctrine. Dicta in Payton v. New York suggested that the standard of probable cause must be met, but our later opinions in Texas v. Brown explicitly regarded the issue as unresolved. We now hold that probable cause is required. (Citations omitted and emphasis supplied.) It reiterated, 480 U.S. at 327 , 107 S.Ct. at 1154 , that in the absence of certain operational exigencies, nothing less than probable cause will ever suffice: No special operational necessities are relied on here, however—but rather the mere fact that the items in question came lawfully within the officer’s plain view.

That alone cannot supplant the requirement of probable cause. (Emphasis supplied.) Hicks expressly held that any further search or examination involving a further intrusion into privacy, once the justification for the initial intrusion has dissipated, must be based on nothing less than probable cause, just as surely as an actual seizure of property must be based on probable cause. Justice Scalia observed, 480 U.S. at 326 , 107 S.Ct. at 1153 : It is clear, therefore, that the search here was valid if the “plain view” doctrine would have sustained a seizure of the equipment. There is no doubt it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen.

(Emphasis supplied.) In Minnesota v. Dickerson, 508 U.S. -, -, 113 S.Ct. 2130, 2137 , 124 L.Ed.2d 334, 345 (1993), the Supreme Court, relying on Arizona v. Hicks, expressly treated “probable cause” and the state of being “immediately apparent” as synonymous terms within a single sentence. ⁵⁶⁶ The phrase “immediately apparent” has, perhaps, contributed to our understanding of the probable cause criterion in one respect. It has helped to focus attention on the issue of when the probable cause must have accrued. It does not remotely mean that when an officer legitimately sees an object in plain view, the “light bulb” in the officer’s head must go on instantaneously. The thinking process may be more deliberative than that, as the officer carefully forms a hypothesis, rolls the possibilities and probabilities back and forth in the chambers of the mind, ruminates, philosophizes, and ultimately concludes that, indeed, he has probable cause.

What it means, rather, is that the data-gathering process, as opposed to the conclusion-drawing process, must be completed before the justification for the valid intrusion—such as the search for guns and gunmen in Hicks , the frisk for weapons in Minnesota v. Dickerson, or the voluntary consent in the case before us—runs out. Any further and incremental intrusion beyond that point, such as the lifting of stereo equipment from a table top in Hicks after the search for guns had been completed or the slithering of an object through the fingers of the policeman in Minnesota v. Dickerson after the frisk for weapons had been completed, is invalid and cannot, therefore, serve as the prior valid intrusion necessary for a Plain View Doctrine seizure. Once the purpose of the prior intrusion has been served, the validity of that intrusion is at an end. Any additional clues, gathered thereafter, will be per se the products of what has by then degenerated into an invalid intrusion.

When the search for guns and gunmen had concluded in Hicks , the Hicks majority did not condemn the officers for continuing to look at the stereo equipment which was already in plain view; what it condemned was picking it up and looking under it, because that represented an additional invasion of privacy. The Court observed, 480 U.S. at 325 , 107 S.Ct. at 1152 : Merely inspecting those parts of the turntable that came into wew during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent’s privacy interest. ⁵⁶⁷ Contra, State v. Wilson, 279 Md. 189, 193-94 , 367 A.2d 1223 (1977). It was the separate search or incremental intrusion that was not permitted. As the Supreme Court pointed out, 480 U.S. at 324-25 , 107 S.Ct. at 1152 : Officer Nelson’s moving of the equipment, however, did constitute a “search” separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment.

The data to be gathered, even though it may serve an independent purpose as probable cause for a Plain View Doctrine seizure, must come to light incidentally in the course of a prior intrusion justified for some other purpose. When the justification ceases—because that other purpose has already been served or, as in our case, because the consent is revoked—the data-gathering process, to the extent to which it entails a Fourth Amendment intrusion, must immediately cease as well. The constitutional stopwatch, however, is held on the data-gathering process, not on the police officer’s thinking process. Even after the justification for the intrusion is at an end, the officer may continue to ponder, just so long as he does not commit a Fourth Amendment intrusion while pondering.

The time constraint on the officer’s thinking process is that he must have concluded that probable cause exists before presuming to seize evidence under the Plain View Doctrine. See State v. Wilson, 279 Md. 189, 195 , 367 A.2d 1223 (1977) (“This element [immediately apparent], in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they seize it.”). The officer may not seize, or further search, in order to confirm suspicion. The officer may not seize, or further search, otherwise to develop probable cause.

The officer may only seize after he already has probable cause. That is all that the phrase “immediately apparent” connotes. The officer must have answered, in the mind at least, the question, “Is this a dagger that I see before me, handle toward my hand?” before he ⁵⁶⁸ embarks upon the course of action, “Come, let me clutch thee.” This, then, is the model on which Minnesota v. Dickerson, 508 U.S. -, 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993), relied to build its analogue. B. The Plain Feel Analogue In the Minnesota v. Dickerson case, two Minneapolis police officers, at about 8:15 of a November evening, were patrolling a high-crime area on the city’s north side.

They observed Timothy Dickerson, theretofore unknown to them, leaving a notorious “crack house,” to which they had previously responded to complaints of drug sales and at which they had previously executed several search warrants for drugs. Dickerson walked nonchalantly toward where their marked squad car was parked, did a double-take worthy of Buster Keaton as he appreciated its official character, made brief eye contact with one of the officers, abruptly executed an about face, and began walking in the opposite direction. Curiosity aroused, the officers watched as Dickerson turned into an alley and then they followed. We may take as a given, because the Minneapolis trial court, the Minnesota Court of Appeals, the Minnesota Supreme Court, and the United States Supreme Court did so, that the officers had articulable suspicion under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), for the “stop” that followed halfway down the alley.

We may also take as a given, because the Minneapolis trial court, the Minnesota Court of Appeals, the Minnesota Supreme Court, and the United States Supreme Court did so, that there was also, under Terry , articulable suspicion for a “frisk” attendant on the stop. The frisking officer meticulously abided by the scope limitations on a frisk for weapons, as spelled out by Terry and by Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968). That limitation, of course, is that the frisk must be confined to a pat-down of the exterior of the ⁵⁶⁹ clothing surface, careful and thorough, to be sure, but not intruding beneath the clothing surface, such as into a pocket. The frisking officer executed a scrupulously limited frisk.

While placing his hand against the outside of Dickerson’s nylon jacket, the officer felt something through the nylon. He testified: [A]s I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane. 508 U.S. at -, 113 S.Ct. at 2133 , 124 L.Ed.2d at 341 . The officer then reached into Dickerson’s pocket and seized therefrom “a small plastic bag containing one fifth of one gram of crack cocaine.” Id.

Dickerson moved pretrial to suppress the cocaine. The hearing judge ruled that both the Terry-stop and the Terry-frisk were reasonable. The question for decision became the propriety of the ultimate seizure. The Supreme Court, 508 U.S. at -, 113 S.Ct. at 2134 , 124 L.Ed.2d at 342 , summarized the hearing judge’s decision: [Ajnalogizing to the “plain view” doctrine, under which officers may make a warrantless seizure of contraband found in plain view during a lawful search for other items, the trial court ruled that the officers’ seizure of the cocaine did not violate the Fourth Amendment The hearing judge’s analysis, quoted verbatim by the Supreme Court, 508 U.S. at -, 113 S.Ct. at 2134 , 124 L.Ed.2d at 342 , is a model for what would ultimately be recognized by the Supreme Court: To this Court there is no distinction as to which sensory perception the officer uses to conclude that the material is contraband.

An experienced officer may rely upon his sense of smell in DWI stops or in recognizing the smell of burning marijuana in an automobile. The sound of a shotgun being racked would clearly support certain reactions by an officer. The sense of touch, grounded in experience and training, is as reliable as perceptions drawn from other ⁵⁷⁰ senses. “Plain feel,” therefore, is no different than plain view and will equally support the seizure here. His suppression motion having failed, Dickerson was tried and found guilty.

The Minnesota Court of Appeals reversed, holding the antecedent stop and the antecedent frisk to have been reasonable but then “ ‘deelin[ing] to adopt the plain feel exception’ to the warrant requirement.” 508 U.S. at -, 113 S.Ct. at 2134 , 124 L.Ed.2d 342 , quoting from 469 N.W.2d 462, 466 (1991). The Minnesota Supreme Court affirmed the Court of Appeals, 481 N.W.2d 840 (1992). It categorically rejected, as a matter of law, the theoretical possibility of a Plain Feel Doctrine. The United States Supreme Court, 508 U.S. at -, 113 S.Ct. at 2134 , 124 L.Ed.2d at 342 , summarized the holding of the Minnesota high court: The court expressly refused “to extend the plain view doctrine to the sense of touch” on the grounds that “the sense of touch is inherently less immediate and less reliable than the sense of sight” and that “the sense of touch is far more intrusive into the personal privacy that is at the core of the [FJourth [Ajmendment.” The court thus appeared to adopt a categorical rule barring the seizure of any contraband detected by an officer through the sense of touch during a patdown search for weapons.

(Citation omitted.) The Minnesota Supreme Court’s second rationale for the rejection, that “the sense of touch is far more intrusive into ... personal privacy,” is a total non-sequitur. The intrusiveness of feeling or touching is no reason for rejecting the doctrine, because no feeling or touching will ever be done under its authority. The feeling or touching that triggers the doctrine, moreover, is already both reasonable and a fait accompli under some other rationale, such as a Terry-frisk or a consensual touching. Indeed, Minnesota v. Dickerson, 508 U.S. at -, 113 S.Ct. at 2137-38 , 124 L.Ed.2d at 346-47 , pointed out the flawed logic of the Minnesota Supreme Court in that regard: ⁵⁷¹ The court’s second concern—that touch is more intrusive into privacy than is sight—is inapposite in light of the fact that the intrusion the court fears has already been authorized by the lawful search for weapons.

The seizure of an item whose identity is already known occasions no further invasion of privacy. In any event, the Supreme Court of the United States granted certiorari to determine the propriety of the Plain Feel Doctrine generally and, if it be held proper, of its applicability to the facts of the Dickerson case. It pointed out that five out of five of the United States Courts of Appeals to have examined the question had all recognized the validity of the Plain Feel or Plain Touch Doctrine. 4 Appellate courts from three states had also recognized the Plain Feel Doctrine, 5 while appellate courts from five other states had, like Minnesota, rejected the doctrine. 6 In the Minnesota v. Dickerson opinion, it may fairly be said that the prosecutors lost the battle but won the war. The Supreme Court, citing Michigan v. Long, 463 U.S. 1032, 1049-50 , 103 S.Ct. 3469, 3480-81 , 77 L.Ed.2d 1201 (1983), initially pointed out that a frisk, even an extended frisk into an automobile, could serve as the prior valid intrusion on which to predicate a Plain View Doctrine seizure, and, by parallel logic, ⁵⁷² on which to predicate a Plain Feel Doctrine seizure. 508 U.S. at ---, 113 S.Ct. at 2136-37 , 124 L.Ed.2d at 344-45 .

The Supreme Court then, 508 U.S. at ---, 113 S.Ct. at 2137 , 124 L.Ed.2d at 345-46 , placed its imprimatur on the validity of the analogy between a Plain View Doctrine seizure and a Plain Feel Doctrine seizure: We think that this doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no “search” within the meaning of the Fourth Amendment—or at least no search independent of the initial intrusion that gave the officers their vantage point ... The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.

(Citations omitted.) The Supreme Court, 508 U.S. at -, 113 S.Ct. at 2137 , 124 L.Ed.2d at 346 , discounted Minnesota’s reasoning that a Plain Feel Doctrine must be rejected because of the inherent inferiority of the sense of touch to the sense of sight: Terry itself demonstrates that the sense of touch is capable of revealing the nature of an object with sufficient reliability to support a seizure. The very premise of Terry , after all, is that officers will be able to detect the presence of weapons through the sense of touch and Terry upheld precisely such a seizure. Even it is were true that the sense of touch is generally less reliable than the sense of sight, that only suggests that officers will less often be able to justify seizures of unseen contraband. Regardless of whether the officer detects the contraband by sight or by touch, however, the Fourth Amendment’s requirement that ⁵⁷³ the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures, (footnote omitted).

The Supreme Court also found support for that position in Ybarra v. Illinois, 444 U.S. 85 , 93 n. 5, 100 S.Ct. 338 , 343 n. 5, 62 L.Ed.2d 238 (1979), where the Court had, at least obliquely, recognized the potential for a pat-down search to yield, through the cloth of a shirt, probable cause to believe that contraband was present inside “a cigarette pack with objects in it”: The Court’s analysis does not suggest, and indeed seems inconsistent with, the existence of a categorical bar against seizures of contraband detected manually during a Terry patdown search. 508 U.S. at -, 113 S.Ct. at 2137 -38 n. 4, 124 L.Ed.2d at 346 n. 4. The Supreme Court’s analysis makes eminently good sense. Graduating or gauging the senses in terms of their relative reliability might be within the competence of psychologists or biologists but is not within the competence of jurists. It is not appropriate for the law, therefore, to establish a reliability hierarchy among the visual, auditory, tactile, olfactory, and salivary senses.

Anecdotally, one might simplistically conclude that for the average person the sense of sight is generally more reliable than the sense of touch. Such a generalization, however, would not be reckoning with the fingers of the skilled neurosurgeon or of a Michelangelo or of any reader of Braille. As far as constitutional law is concerned, all that matters is that enough of the multitudinous data from the outside world swim upstream to the brain of the officer to yield that critical mass we call probable cause. If the officer does not acquire enough data to constitute probable cause, he may not act in any way that requires probable cause for its justification.

If, on the other hand, enough data is accumulated to produce probable cause, the law is unconcerned with which sensory avenue the data travelled, along its way to the officer’s brain. ⁵⁷⁴ Probable cause, indeed, may be the sum total of data from several different senses. “My probable cause was based on the combination of what I touched in plain feel, smelled in plain smell, and heard in plain earshot.” It is clear, for instance, that plain smell alone (canine, to be sure) can yield probable cause to authorize a search warrant for a suitcase, United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.E.d.2d 110 (1983), or to authorize a warrantless Carroll Doctrine search of a truck, Gadson v. State, 102 Md.App. 554 , 650 A.2d 1354 , filed December 28, 1994. Probable cause may be the sum total of data from one or more of the senses plus other non-sensory data, such as the knowledge in this case that the locale was an open-air drug market. The Plain View Doctrine rationale is not limited to sight but can accommodate any of the senses. C. The Plain Feel Doctrine as Applied in Dickerson With Supreme Court approval of the abstract proposition that there can be Plain Feel Doctrine warrantless seizures, the prosecution won the war.

Applying that doctrine, however, to the facts of the Minnesota v. Dickerson case, the prosecution lost the battle. The first criterion—that of a prior valid intrusion—was satisfied. To run one’s fingers or palms down someone’s rib cage is, to be sure, a Fourth Amendment intrusion, just as surely as is the crossing of the threshold into someone’s home. If, however, it is justified, as a Terry-frisk for weapons, for instance, it is a valid intrusion.

The frisk was valid in Dickerson . The second criterion—feeling something, to wit, a small lump in the front pocket—was also satisfied. The frisk for weapons was still validly in progress when the officer felt the small lump. It was only when the officer realized that the small lump was not a weapon that any further intrusion with respect to that pocket became unreasonable.

It was the third criterion—probable cause to believe that the small lump validly felt was contraband or other evidence of ⁵⁷⁵ crime—that was the frisking officer’s undoing. It was only after the officer had already concluded that there was no weapon in that pocket, to wit, after the justifiable intrusion onto that part of Dickerson’s torso had come to an end, that additional slithering and sliding of the small lump between the officer’s fingers led to the probable cause that the lump was crack cocaine. A critical part of the data-gathering came after time had expired. Data gathered after the final whistle blows does not count.

The United States Supreme Court summarized, 508 U.S. at -, 113 S.Ct. at 2138 , 124 L.Ed.2d at 347 , the conclusion of the Minnesota Supreme Court in that regard: Rather, the court concluded, the officer determined that the lump was contraband only after “squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket”—a pocket which the officer already knew contained no weapon. Time having run on the frisk, the last necessary increment to the establishment of probable cause was the improperly gathered product of an invalid intrusion: Although the officer was lawfully in a position to feel the lump in respondent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent’s pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.

(Emphasis supplied.) 508 U.S. at -, 113 S.Ct. at 2139 , 124 L.Ed.2d at 348 . V. The Plain Feel Doctrine In This Case As with Minnesota v. Dickerson, the first two criteria for a Plain Feel Doctrine seizure pose no problem in the case before us. Officer Ottey’s hand against the outside of Jones’s left ⁵⁷⁶ front pants pocket was a valid intrusion, the product of what was found to be voluntary consent. Indeed, Jones’s consent to Officer Ottey’s “checking” of him not just for guns but also for drugs could reasonably have been interpreted by the officer to include consent to go into the pockets.

That possibly broader scope to the consensual search, however, is immaterial. Whether he could have done so or not, Officer Ottey never, during the period of valid consent, actually went into Jones’s pocket. During the course of the valid intrusion, Officer Ottey then felt something in plain touch—“numerous rock-like substances”—as he squeezed the bulge in the pocket before Jones called time on him by revoking consent. The first two criteria were satisfied.

It is the third criterion for a valid Plain Feel Doctrine seizure that is the critical issue before us—probable cause to believe that the “numerous rock-like substances” were crack cocaine. There was not, as in Minnesota v. Dickerson or Arizona v. Hicks, any problem here as to a further or incremental search after time was called. The issue is simply whether Officer Ottey had probable cause before he, post the revocation of consent, thrust his hand into Jones’s pocket and seized the crack cocaine. Our concerns are: “What did Officer Ottey know?” and “When did he know it?” Judge Thieme was not persuaded that the officer possessed that necessary probable cause.

The State is asking us to reverse that finding.

VI

Levels of Abstraction in Fact Finding The standard of appellate review we must apply to Judge Thieme’s finding of no probable cause will depend, in significant measure, on the essential nature of such fact finding. Appellate review of fact finding takes two forms. Generally, it is highly deferential to the nisi prius determination and will not reverse findings of fact unless they are “clearly erroneous.” The primary, but not the only, reason for such deference is because of the superior vantage point of the nisi prius fact finder (judge or jury) to observe the witnesses, to ⁵⁷⁷ receive the immense benefit of non-verbal as well as verbal communication, to assess credibility, and to weigh evidence. As we observed in a related context in Wenger v. Wenger, 42 Md.App. 596, 604 , 402 A.2d 94 (1979): This is based upon the sound principle that the [fact finder] saw and heard the witnesses and was able to make the subtle judgments based upon appearance, upon tone of voice, upon even non-verbal communication, etc. that are never available upon the pages of a transcript as perused after the fact ... by ... an appellate court upon later review, (footnote omitted).

The reason for appellate deference is broader, however, than the ability of the fact finder to observe the witnesses. An appellate court is required to be deferential to a trial court even on a set of undisputed facts, such as a written stipulation of facts. In Danz v. Schafer, 47 Md.App. 51 , 422 A.2d 1 (1980), the trial judge, on an agreed statement of facts, drew one of two permitted inferences. This Court, expressly stating that if it had been making a de novo determination it would have drawn the opposite inference, nonetheless applied the “clearly erroneous” standard and affirmed.

We explained, 47 Md.App. at 62-63 , 422 A.2d 1 , why we used the highly deferential standard: The taproot of analysis is that the deference paid by the appellate reviewing court to the fact finding and evidence-based verdict rendering of a trial judge unless he is clearly erroneous, is not predicated upon the fact that he alone saw the witnesses and observed their demeanor. That is a peripheral characteristic, not a cause. The deference is not even predicated upon the additional factor that the trial court “is not only the judge of a witness’ credibility, but is also the judge of the weight to attach to the evidence.” Knowles v. Binford, 268 Md. 2 , 298 A.2d 862 [1973]. The deference rather rests fundamentally upon the core difference between the trial function and the appellate function.

One is to decide cases; the other is to screen out trial error, (footnote omitted). ⁵⁷⁸ The Supreme Court concurs that the deference paid by an appellate court to a nisi prius decision is based on more than the ability of the nisi prius court to observe witnesses and to resolve disputed credibilities: Anderson v. Bessemer City, 470 U.S. 564, 573-74 , 105 S.Ct. 1504, 1511-12 , 84 L.Ed.2d 518, 528 (1985), observed: If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts, (citations omitted) (Emphasis supplied.) See also Commissioner v. Duberstein, 363 U.S. 278, 291 , 80 S.Ct. 1190, 1199-1200 , 4 L.Ed.2d 1218, 1228 (1960). There is also, however, a very different and non-deferential standard of appellate review of fact finding.

It charges the appellate judges with the obligation to make, de novo, their own independent decisions as to the ultimate fact for determination, sometimes called the conclusory fact and sometimes called a mixed question of law and fact. A very significant factor in determining which standard of appellate review should be employed is the level of abstraction of the fact finding under review. Maryland’s first effort at analyzing different levels of abstraction in fact finding came in Walker v. State, 12 Md.App. 684 , 280 A.2d 260 (1971). We sought, 12 Md.App. at 695 , 280 A.2d 260 , to distinguish findings of “specific, first-level facts” from findings of “ultimate, second-level facts”: [Although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, ⁵⁷⁹ etc.) we must make our own independent judgment, resolve for ourselves the ultimate, second-level fact—the existence or non-existence of voluntariness.

In Wenger v. Wenger, 42 Md.App. 596, 607 , 402 A.2d 94 (1979), we again distinguished between findings of “first-level facts” and findings of “more abstract, second-level, conclusory or dispositional facts”: In this regard, he confuses first-level facts with more abstract, second-level, conclusory or dispositional facts. A chancellor may defer to the master on such first-level facts as that a husband makes $50,000 a year; the yearly orthodontia bill is $1,500; the rent is $300 a month; the bank account of thus and so is thus and so. On the other hand, such second-level, conclusory “facts” as the wife’s ultimate need or the husband’s ultimate ability to pay are dispositional in nature and are the ultimate province of the chancellor. In retrospect, a more precise linguistic distinction, one that would have been less vulnerable to misapplication, might have been a distinction not between “first-level” and “second-level” fact finding but one between fact finding at “a lower level of abstraction” and fact finding at “a higher level of abstraction.” In Domingues v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991), Judge McAuliffe for the Court of Appeals pointed out that there are, of course, not just two levels but numerous levels of abstraction in fact finding.

He pointed out, 323 Md. at 494 , 593 A.2d 1133 : A finding that A shot B is rather easily identified as a finding of fact. A finding that A intentionally shot B is also a finding of fact, even though the ultimate fact may have been found by the use of inferences drawn from other known facts. A finding that a witness did not testify truthfully is a finding of fact that a master may make, even though it is to some extent an opinion or conclusion, often drawn from a variety of observations and inferences. Moreover, perception of the character of any given statement may vary depending upon the form in which it appears.

Compare, “I find as a fact the witness testified falsely,” with ⁵⁸⁰ “In my opinion, the witness testified falsely,” or “I conclude that the witness testified falsely.” In Domingues , Judge McAuliffe sought to illustrate the plurality of the levels of abstraction in fact finding by analogizing them to the testimonial levels of abstraction involved in the “fact” versus “opinion” controversy raised by the Public-Records exception to the Hearsay Rule under Federal Rule of Evidence 803(8)(c). Domingues quoted from Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 609 , 495 A.2d 348 (1985), which had discussed the frequently blurred line between “fact” and “opinion”: The line between “fact” and “opinion” is often difficult to draw. An investigating body may hear diametrically opposed testimony on the question of whether one person or another struck the first blow, and proceed to decide the issue as a finding of “fact.” That determination necessarily has a judgmental quality, and differs, for example, from a finding of fact that a certain number of persons suffered burns from ignition of clothing fabric during a given period. Conclusions found in reports need not be judgmental.

A conclusion that there has been a significant increase in fabric-related burn injuries is essentially factual if the datum shows a 60% increase. Thus, attaching labels of “fact” or “opinion” or “conclusion” will not necessarily resolve the issue, and careful attention must be given to the true nature of the statement and the totality of circumstances bearing on the ultimate issue of reliability. Domingues also quoted with approval Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168 , 109 S.Ct. 439, 449 , 102 L.Ed.2d 445 (1988), as it, in turn, quoted with approval W. King & D. Pillinger, Opinion Evidence in Illinois 4 (1942): “All statements in language are statements of opinion, i.e., statements of mental processes or perceptions. So-called ‘statements of fact’ are only more specific statements of opinion.

What the judge means to say, when he asks the witness to state the facts, is: ‘The nature of this case ⁵⁸¹ requires that you be more specific, if you can, in your description of what you saw.’ ” An opinion is a more abstract conclusion of fact than a straight description of something directly observed. Almost everything, however, is at one level or another a matter of opinion. See E. Cleary, McCormick on Evidence 27 (3rd ed. 1984) (“There is no conceivable statement however specific, detailed and ‘factual,’ that is not in some measure the product of inference and reflection as well as observation and memory”); R. Lempert & S. Saltzburg, A Modern Approach to Evidence 449 (2d ed. 1982) (“A factual finding, unless it is a simple report of something observed, is an opinion as to what more basic facts apply”). Lempert and Salzburg raise the question whether the report of a building inspector that a house is in violation of the building code is a fact or an opinion when the report says, “Because of its cracked foundation, leaking roof and rusting furnace, the house ... is in violation of the building code.” Id.

The almost imperceptible progression from “fact” to “opinion,” like the analogous progression from less abstract fact finding to more abstract fact finding, has been well described by E. Cleary, McCormick on Evidence 27 (3rd ed. 1984): The difference between the statement, “He was driving on the left-hand side of the road” which would be classed as “fact” under the rule, and “He was driving carelessly” which would be called “opinion” is merely a difference between a more concrete and specific form of descriptive statement and a less specific and concrete form. The difference between so-called “fact,” then, and “opinion,” is not a difference between opposites or contrasting absolutes, but a mere difference in degree with no recognizable line to mark the boundary. If trial judges are given the task of distinguishing on the spur of the moment between “fact” and “opinion,” no two judges, acting independently, can be expected to reach the same results on the same questions, (footnote omitted). ⁵⁸² Mark McCormick, Opinion Evidence in Iowa, 19 Drake L.Rev. 245, 247 (1970), commented on the same imperceptible slide along an unbroken continuum: [W]hat comes through the senses makes an impression on the mind. This is perception.

However, voicing that perception necessarily assumes a process of reasoning. What are recited as facts are some aspects of reality grasped by imperfect senses and filtered through imperfect intellects ____ What is fact and what is inference is necessarily a matter of degree and there are no sharp lines of distinction. (footnote omitted). In that article, Judge McCormick concluded, at 246: The rule against opinions is best understood as a rule of preference which favors the concrete over the abstract.

Like the hearsay and original documents rules, it is a “best evidence” rule. It assumes that testimony which is limited to recital of facts from the actual observation of the witness is generally more reliable than his testimonial inferences, conclusions and opinions, (footnotes omitted). Any tension, however, between Domingues v. Johnson, on the one hand, and Wenger v. Wenger and Walker v. State, on the other hand, is more apparent than real. Indeed, Domingues ’s quarrel was not so much with Wenger’s distinction between first-level fact finding and second-level fact finding as it was with the particular application of Wenger in our Johnson v. Domingues, 82 Md.App. 128 , 570 A.2d 369 (1990), as we may have placed some first-level fact finding erroneously into the category of second-level fact finding.

To be sure, there are, as Domingues suggests and as the analogy to the “fact” versus “opinion” controversy confirms, far more than two levels of fact finding. So seemingly concrete a finding of fact as that the weather was wintry may be a conclusory fact drawn from such more specific findings as that the air was cold, there was snow on the ground, and there were no leaves on the trees. Even a finding that the air was cold may be a conclusion drawn from the observer’s goose pimples, red skin, and shivering. The finding of fact that “A ⁵⁸³ and B agreed” is, in a sense, a conclusion drawn from the more concrete fact findings that “A said x” and “B said y.” The finding of fact that “A was unconscious” is, in a sense, a conclusion drawn from the more concrete fact findings that “A was prostrate,” “A was silent,” and “A did not open his eyes.” Before getting to such conclusory findings of fact as that the confession was involuntary or the movie is obscene, the fact finder may have to ascend through a dozen levels of escalating abstraction.

The higher the level of abstraction, the more the fact finding approaches the status of being conclusory. There are, however, only two levels of appellate review of fact finding. What Walker v. State and Wenger v. Wenger were, therefore, connoting by “first-level factfinding” is that level—or all those levels—of fact finding that do not resolve legal issues in the case and that are, therefore, indisputably eligible for the “clearly erroneous” standard of review. Conversely, “second-level factfinding” connotes that conclusory or dispositional fact finding that has ultimate legal significance— the mixed question of law and fact—obscenity, voluntariness of a confession, voluntariness of consent, exigency, probable cause.

First-level fact finding, thus defined, will always be subject to the deferential “clearly erroneous” standard of appellate review. Second-level fact finding, thus defined, may, depending on other considerations, also be subject to the “clearly erroneous” review standard or it may be subject to de novo appellate determination. A finding of probable cause is a second-level determination of a conclusory, dispositional, mixed question of law and fact. Merely locating the finding under review at that rung on the abstraction ladder, however, does not provide us the answer we seek.

What then are the other considerations that will decide between the “clearly erroneous” and the de novo standards of review?

VII

Probable Cause in a Warrant Setting The fact that a probable cause determination by a warrant-issuing judge must be reviewed by an appellate court, by a ⁵⁸⁴ trial judge, and by a suppression hearing judge alike by a highly deferential standard of review 7 is not one of those considerations. The review of a search warrant is doctrinally sui generis and has no persuasive impact on the question of appellate review of probable cause rulings in a warrantless context. The law is well settled that, when the issue being reviewed is the existence of probable cause for the issuance of a warrant, the reviewing court may not make a de novo determination but must extend great deference in that regard to the warrant-issuing magistrate. In State v. Amerman, 84 Md.App. 461, 467-68 , 581 A.2d 19 (1990), we discussed the express resolution of that issue by Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983). “Whatever lingering doubt may have existed prior to 1983 about the standard of review to be applied to a magistrate’s decision to issue a warrant, that doubt was resolved by Illinois v. Gates....

Consistently and repeatedly, the object of the review was ⁵⁸⁵ stated to be the magistrate’s decision.” (emphasis in original). The Supreme Court, 462 U.S. at 236, 103 S.Ct. at 2331, was emphatic: [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.” The Supreme Court, 462 U.S. at 238-39, 103 S.Ct. at 2332-33, spelled out respectively 1) “the task of the issuing magistrate” and 2) “the duty of a reviewing court”: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed.

The acid test, according to Illinois v. Gates, is not whether the reviewing court would find probable cause but whether the magistrate had a substantial basis for doing so: 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.) 462 U.S. at 236, 103 S.Ct. at 2331. One year later, in Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984), the Supreme Court upbraided the Supreme Judicial Court of Massachusetts for having been too demanding in its scrutiny of the magistrate’s decision. It reiterated what Illinois v. Gates had said about the appropriate standard of review, making it very clear that ⁵⁸⁶ finding a substantial basis for what the magistrate did is something less than finding the existence of probable cause: We also emphasized that the task of a reviewing court is not to conduct a de novo determination of probable-cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.

(Emphasis supplied.) 466 U.S. at 728 , 104 S.Ct. at 2085 . The Upton Court, restressed, 466 U.S. at 732-33 , 104 S.Ct. at 2088 , the significant conceptual difference between the two standards: 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 a de novo probable-cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates .

The Court of Appeals in Potts v. State, 300 Md. 567 , 479 A.2d 1335 (1984), explicitly adopted the Supreme Court’s holding as to the appropriate standard of review. “After-the-fact judicial scrutiny of the affidavit should not take the form of de novo review.” 300 Md. at 572 , 479 A.2d 1335 . Chief Judge Murphy reasoned for the Court, 300 Md. at 575 , 479 A.2d 1335 : Under the totality of the circumstances analysis explicated by Gates and Upton , and giving the magistrate’s determination the great deference mandated by those cases, we hold that there was a substantial basis upon which the magistrate could have found that a search of Potts’ residence would uncover illegal narcotics; hence, the