State v. Riley

MOYLAN, Judge. On the surface, this appeal might appear to be about the required proof of exigency necessary to justify a no-knock entry in the execution of a search warrant. It is that, but only secondarily. We are concerned, to be sure, with whether a given set of facts could support a finding of exigency, but our primary focus is on who is making that, finding in the first instance.

What this appeal is really about is the appropriate standard of review for assessing that first finding. What will control the outcome of this appeal is the procedural posture in which the set of facts appears. In different postures, the same set of facts may yield diametrically different, albeit equally proper, results. It may make a critical difference whether the judge whose decision is being appealed was 1) properly making a decision on the merits of such exigency or 2) reviewing another judge’s prior decision in that regard.

It' may make a critical difference whether the set of ostensibly exigent circumstances 1) was being advanced to justify a warrantless police decision to make a no-knock entry or 2) was the basis for a judge’s decision to issue a no-knock warrant. Finding the right answer will depend on identifying the right question. ¹¹⁵ The Recent Recognition of “No-Knock” Law As a Constitutional Phenomenon Although the constitutional status of no-knock law necessarily depends on the fact that it was a recognized, albeit low-key, part of Anglo-American common law at the time of the framing and ratification of the Fourth Amendment (1789— 1791), its significance only dawned upon us with Justice Thomas’s opinion for a unanimous Supreme Court in Wilson v. Arkansas, 513 U.S. 1014 , 115 S.Ct. 571 , 130 L.Ed.2d 488 (1994). 1 Two years later, Richards v. Wisconsin, 520 U.S. 385 , 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997), further fleshed out the “knock and announce” requirement. Neither Wilson nor Richards involved no-knock warrants, however, and they have no pertinence to the question before us except, of course, to bring the alleged Fourth Amendment violation within the purview of the suppression hearing. Maryland has on three prior occasions examined the “knock and announce” requirement pursuant to Fourth Amendment analysis.

Two of those cases, however, did not involve no-knock warrants and have little bearing on the case under review. In Wynn v. State, 117 Md.App. 133 , 699 A.2d 512 ¹¹⁶ (1997) , rev’d on other grounds, 351 Md. 307 , 718 A.2d 588 (1998) , we held that there was a sufficient showing of exigency to justify a warrantless police decision to execute an entry without knocking and announcing. In Lee v. State, 139 Md. App. 79 , 774 A.2d 1183 (2001), we held that there had not been such a sufficient showing of exigency as to forgive a warrant-less no-knock entry. On both occasions, we were reviewing findings by a suppression hearing judge on the ultimate merits of the exigency advanced as justification for the warrantless no-knock entries.

On neither occasion were we reviewing a hearing judge’s reviewing of an antecedent judicial decision. On only onei occasion have we reviewed the actual issuance of a no-knock warrant.. That was in the recently filed opinion by Chief Judge Joseph Murphy in Davis v. State, 144 Md.App. 144 , 797 A.2d 84 (2002). In Davis , a judge had issued a no-knock warrant, and the trial court denied the motion to suppress, ruling that the earlier decision to issue the warrant had been proper.

We affirmed that ruling. We shall be adverting regularly to Davis v. State in the course of this opinion. The Present Case Pursuant to Courts and Judicial Proceedings Article, § 12-302(c)(3), the State has appealed the granting by the Circuit Court for Baltimore County of the motions to suppress evidence filed by the appellees, Carey Omar Riley and Jermarl Jones. The evidence in question was seized at an apartment in Baltimore County during the execution of a “no knock” warrant issued by District Court Judge Robert Cahill, Jr. A forced entry was involved.

Riley and Jones were arrested at the apartment during the execution of the warrant and both were separately indicted on charges of possession with intent to distribute and simple possession of both heroin and cocaine. Motions to suppress were filed and a joint motions hearing was held on January 31, 2002. The circuit court judge granted the appellees’ motions. This appeal by the State followed. ¹¹⁷ Because of an August 12, 2002 deadline, this Court has already filed its decision to reverse the suppression order of the circuit court and to remand the cases for trials on the merits.

We indicated at the time of filing our decision that this opinion explaining the decision would follow. The No-Knock Provision of the Search Warrant At the suppression hearing in the circuit court, the sole basis for the ruling that the search warrant was invalid was that it included the no-knock provision. There is no need to review the probable cause to believe that criminal activity was afoot. The hearing judge’s ruling was confined exclusively to the no-knock provision.

The warrant was issued by Judge Cahill for the search of Apartment 302 of 2801 Ashfield Drive. The primary source of the incriminating evidence in the warrant application was a confidential informant who had visited the apartment on three separate occasions in July and August of 2001 and had observed extensive evidence of large-scale commercial narcotics activity. That part of the application offered in support of the no-knock request established (by a two step process) that the occupant of the apartment was one Theodore Cardwell and that Cardwell had a lengthy police “rap sheet” for offenses, including both assault and battery and the possession of handguns. The hearing judge ruled, secondarily, that the criminal record was not enough to establish the requisite danger and, primarily, that an adequate nexus had not been shown linking Cardwell to the apartment.

The Standard of Review: Deference to the Warrant The principle controlling our decision is that neither the appellate court nor the suppression hearing court is authorized to make the decision on the merits of whether the “no-knock” entry was necessary. That decision was delegated exclusively to the judge who was called upon to include that provision in the warrant. The limited after-the-fact review permitted either the circuit court or the appellate court re ¹¹⁸ quires that the reviewing judges transcend any personal opinion as to what they, coincidentally, might have decided on the merits and concern themselves exclusively with whether the warrant-issuing judge had some rational basis for reaching the decision he did. The focus should not be on the exigency justifying the no-knock entry per se.

It should be only on the legitimacy of another judge’s prior decision in that regard. The Deferential Standard: Supreme Court Cases With respect to the deference that reviewing courts owe to warrant-issuing judges or magistrates, the constitutional taproot is Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983). Reviewing courts were there admonished not to second-guess the warrant-issuing judge and are reminded, moreover, that the deference is necessary as an incentive to police and prosecutors to resort, whenever possible, to the preferred warrant modality. [W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” “A grudging or negative attitude by reviewing courts toward warrants,” is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant____ 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. 462 U.S. at 236 , 103 S.Ct. 2317 (emphasis supplied).

The Supreme Court explained that all that is required to sustain the decision to issue the warrant is some “substantial basis” to support the judge’s conclusion. 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]” ¹¹⁹ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Id. (emphasis supplied).

One year after Illinois v. Gates was decided, the Supreme Court, in Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984), reversed a decision by the Supreme Judicial Court of Massachusetts that a search warrant had not been supported by an adequate showing of probable cause. The Supreme Court took the Massachusetts high court to task for having substituted its judgment for that of the warrant-issuing magistrate. It reiterated the standard of deferential review it had established the year before in Illinois v. Gates. 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. 466 U.S. at 728 , 104 S.Ct. 2085 (emphasis supplied).

The Deferential Standard: The Maryland Cases Under the capacious wings of Illinois v. Gates, the Maryland case law on deference to warrants sprang up profusely. In Ramia v. State, 57 Md.App. 654, 660 , 471 A.2d 1064 (1984), this Court observed: 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 determination of their own. (Emphasis supplied). The Court of Appeals, speaking through Chief Judge Robert Murphy, twice affirmed the standard of review 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.”); and Birchead v. State, 317 Md. 691, 701 , 566 A.2d 488 (1989) (“[W]e generally pay great deference to a magistrate’s determination.”). ¹²⁰ In West v. State, 137 Md.App. 314, 322 , 768 A.2d 150 (2001), Judge Thieme spoke for this Court.

Reviewing courts (at the suppression hearing level or at the appellate level) do not undertake de novo review of the magistrate’s probable cause determination but, rather, pay “great deference” to that determination. Reflecting a preference for the warrant process, the traditional standard for review of an issuing magistrate’s probable cause determination has been that, so long as the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. (Emphasis supplied). We explained in Herbert v. State, 136 Md.App. 458, 492 , 766 A.2d 190 (2001), how, as an aspect of this deference, the presumption of validity enjoyed by a warrant is a very practical incentive for the police to submit, when they can, their decision to the judicial process.

Once again, the Supreme Court has provided an incentive for searching with a warrant and a disincentive for searching warrantlessly. What are affected by this incentive/disincentive combination are the burdens of proof at a suppression hearing. 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. Let the fact be once established or otherwise accepted that the search in issue was pursuant to a judicially issued warrant and the State is then entitled to the presumption.

Because it is the State that enjoys the presumption, the burden is allocated to the defendant to rebut it, if he can. (Emphasis supplied). The Preference For No-Knock Warrants Is Like the Preference For Warrants Generally The fundamental policy undergirding the warrant requirement is just as strong with respect to the no-knock increment ¹²¹ as it is with respect to the underlying entry into the home itself. The constitutional concern is that the police should eschew making unilateral decisions both 1) as to whether the threshold should be crossed and 2) as to how the threshold should be crossed and should, instead, defer to the disinterested judgment on those questions of a neutral and detached judicial figure.

We see no principled policy distinction whatsoever between those two closely related types of decisions. The classic statement of the policy was by Justice Jackson in Johnson v. United States, 333 U.S. 10, 13 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948): The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. (Emphasis supplied).

Just as the decision WHETHER to cross the threshold should be submitted to a neutral and detached judicial figure, so too should the decision as to HOW to cross that threshold. In Davis v. State, 144 Md.App. at 156 , 797 A.2d 84 , Chief Judge Murphy explained: If at the time he or she is applying for a search warrant, a law enforcement officer believes that the circumstances under which the warrant will be executed justify dispensing ivith the knock and announce requirement, the officer should seek no-knoclc authorization from the warrant issuing judge. If the judge is satisfied that the request for a no-knock entry is reasonable, the judge should include in the warrant a mandate that, in substantially the following form, provides: Good cause being shown therefor, the executing law enforcement officers are authorized to enter the prem ¹²² ises to be searched without giving notice of their authority and purpose. (Emphasis supplied).

The Deferential Standard of Review Applies to No-Knock Warrants Although Illinois v. Gates was dealing with probable cause, its teaching as to deferential review would apply with equal strength to a judge’s decision to exempt the police from the knock-and-announce requirement. [T]he duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. 462 U.S. at 238-39 , 103 S.Ct. 2317 . In Davis v. State, 144 Md.App. at 152 , 797 A.2d 84 , this Court also expressly applied the deferential standard of review to the inclusion of a no-knock provision in a warrant. [WJhen the suppression hearing court reviews the issuing judge’s decision to include a no-knock entry provision in the search warrant, the suppression hearing court should uphold that provision as long as the warrant application provided the issuing judge with a substantial basis for concluding that there existed a reasonable suspicion that, under the circumstances in which the warrant was to be executed, the knock and announce requirement would be dangerous to the executing officers or would result in the destruction of the items described in the search warrant. (Emphasis supplied). A Lower Standard of Justification Indeed, the deference might be even greater in the case of a no-knock warrant because the application for it need not satisfy the higher probable cause requirement, but only the less demanding requirement of reasonable suspicion as set forth in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

The Supreme Court referred to that less demand ¹²³ ing standard in Richards v. Wisconsin, 520 U.S. 885 , 394, 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997): In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard — as opposed to a probable cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. (Emphasis supplied). 2 The Suppression Hearing Ruling Smacked of Being a De Novo Determination What matters in this case is not so much the decision that was made, but the kind of decision that was made. The same judge, with the same set of facts, could properly reach completely different results depending on the kind of decision he is making.

In appraising a search warrant issued by someone else, as in this case, the hearing judge must suffer the austere rigors of appellate-style review. It was of this necessary narrowing of the vision that we spoke in State v. Amerman, 84 Md.App. 461, 463 , 581 A.2d 19 (1990): [Wjhen a judge, either at a pretrial' suppression hearing or at trial, sits in review of another judge’s earlier determina ¹²⁴ tion that probable cause existed to issue a search and seizure warrant, the reviewing judge sits in an appellate-like capacity with all of the attendant appellate constraints. Although he may ordinarily be accustomed to assessing probable