State v. Savage

MOYLAN, J. The appellee, Jonathan Savage, was indicted by the Grand Jury for Baltimore City on ten separate counts involving Controlled Dangerous Substances. He filed a pretrial motion in the Circuit Court for Baltimore City, seeking to have the physical evidence suppressed on the ground that the police, albeit with an impeccable search and seizure warrant, entered the premises to be searched without knocking on the door, in ostensible violation of the Fourth Amendment of the United States Constitution. The motion to exclude the evidence on that ground was granted. A State Appeal The State has appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c), which provides in pertinent part: (c) Criminal case. — In a criminal case, the State may appeal as provided in this subsection.

(3)(i) In ... cases under §§ 5-602 through 5-609 and §§ 5-612 though 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. (iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay ¹⁵⁴ and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.

(iv) If the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. (Emphasis supplied). Accordingly, our decision in this case, should we opt to reverse, must be filed no later than September 14, 2006. Standard of Review In terms of the standard of appellate review of an exclusionary ruling, any boiler-plate recitation about 1) deferring to the fact-finding of the trial judge and 2) taking that version of the facts most favorable to the prevailing party is utterly pointless in this case.

We shall not be reviewing any fact-finding. We shall review only the hearing judge’s ultimate conclusory ruling that the absence of a knock amounted, ipso facto, to an unreasonable and, therefore, unconstitutional entry of the place to be searched. Our review in such a case consists of making, de novo, our own independent constitutional appraisal. State v. Carroll, 383 Md. 438, 445-46 , 859 A.2d 1138 (2004); Dashiell v. State, 374 Md. 85, 93-94 , 821 A.2d 372 (2003); Rowe v. State, 363 Md. 424, 432 , 769 A.2d 879 (2001); Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Wynn v. State, 117 Md.App. 133, 165 , 699 A.2d 512 (1997), reversed on other grounds, 351 Md. 307 , 718 A.2d 588 (1998); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990).

Philosophical Teasers That Appear to Be Moot This case had promise of leading us to a hidden treasure trove of intriguing nuances about the phenomenon (or phenomena) of knocking and announcing, had not that inquiry ¹⁵⁵ been unceremoniously short-circuited by Hudson v. Michigan, 547 U.S.-, 126 S.Ct. 2159 , 165 L.Ed.2d 56 (2006). A vintage conundrum has always been that of whether there is any sound when a great tree falls in a forest but no animal ear is within range of the percussive impact. The answer depends, of course, upon one’s conceptualization of sound. The same spirit of intellectual inquiry leads us to wonder whether it makes any difference if a policeman enters a home without knocking if there is no one within to hear a knock in any event.

That answer will depend upon the purpose of the knock. Is it to give notice to an occupant of an impending police entry or is it only a mechanical drill movement in a required manual of arms? Another intriguing question, also rudely aborted by Hudson v. Michigan, is that of how to knock (or should one knock) on an open door. And how does one knock if there is no door at all? 1 How does one knock on the flap of a tent?

Should one knock on a classical Japanese paper house if the result would be a fist through the wall? Should the police carry a knocking board with them as standard equipment? Will we ever be reduced to measuring a knock’s decibel level or to evaluating its acoustical carrying power? Was it for this that the embattled farmers stood at Concord Bridge?

We were well on the way to drowning in contentious urging such silliness and triviality when Hudson v. Michigan administered a merciful coup de grace. Intertwined with these questions, of course, is the tantalizing semantic teaser of whether “knock and announce” is a single indivisible phenomenon or a double-barreled requirement in the unforgiving conjunctive. If the announcement of police presence is loud and clear, is a subsequent (or ¹⁵⁶ an antecedent) knock a relentlessly additional Fourth Amendment prerequisite, or is it merely an exclamation point? If the giving of notice is the animating purpose, does not the announcement alone do the trick?

Is a police entry after a proclamation, with a bullhorn, “Put your hands in the air; we’re coming in,” unreasonable without an attendant knock? 2 In short, is not the pairing of the words “knock and announce” nothing more than a linguistic convention akin to “goods and chattels” or “give and bequeath”? A Quiet and Uneventful Entry Based on overwhelming probable cause that the housé at 4754 Melbourne Avenue in the Yale Heights area of Baltimore City was being used as a distribution center for contraband heroin, the police obtained a judicially issued search and seizure warrant for that address. At approximately 4:25 p.m. on June 22, 2004, a team of ten officers proceeded to that location to execute the warrant. When the police arrived, the only person present at the house was the appellee’s ultimate co-defendant, Walter Hooks.

Hooks was standing on the front steps and the front door was open. 3 The police announced to Hooks that they had a warrant to search the house. Hooks was detained, and the police entered the house through the open front door. Before ¹⁵⁷ entering, the police announced, “Police. Search Warrant.” They did not, however, knock on the door.

There was, it turned out, no one inside the house. In terms of giving advance notice to an empty house, appellee’s counsel, at the suppression hearing, was adamant that the prescribed drill be followed to the letter whether there is any audience for it or not. There was nothing that has been articulated from the witness stand that is in evidence for the Court to conclude that there was some basis to believe that there was no one inside. But it doesn’t matter.

He did not knock. (Emphasis supplied). The caselaw, however, focuses not on the drillbook mechanics of giving notice but on the resulting benefit of actually receiving notice. One of the cases cited by Wilson v. Arkansas, 514 U.S. 927, 935 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995), was the English decision in Pugh v. Griffith, 7 Ad & E 827, 112 Eng.

Rep. 681, 686 (King’s Bench 1838), which held: [T]he necessity of a demand ... is obviated, because there was nobody on whom a demand could be made. In Goodman v. State, 178 Md. 1, 8 , 11 A.2d 635 (1940), the Court of Appeals similarly observed: A demand is necessary prior to the breaking in of the doors only where some person is found in charge of the building to be searched. (Emphasis supplied). Frankel v. State, 178 Md. 553, 561 , 16 A.2d 93 , (1940), similarly stated: An officer ... may break open the doors if denied admittance, but a demand is necessary prior to breaking doors where the premises are in charge of some one.

(Emphasis supplied). Approximately ten to fifteen minutes after the house had been secured, Hooks’s mother arrived home at her two-story rowhouse, accompanied by Hooks’s sister. The mother told the police that she lived there with her daughter. She added ¹⁵⁸ that she was trying to get rid of Hooks because he “kept getting in trouble.” Hooks himself, moreover, as he took the stand at the suppression hearing, gave his address as 2313 West Mosher Street.

Hooks gave a written statement to the police, admitting that the drugs found in the house were in his possession. He further testified at the suppression hearing, acknowledging that the police, before entering the house, displayed their badges to him, announced that they had a search warrant for the house, and then handcuffed him before entering the house. His cross-examination explored the circumstances of the police entry. Q. So it would be fair to say, Mr. Hooks that when seven or eight Police cars rolled up and you saw Police Officers there, and they announced that they were doing a Search and Seizure Warrant on your house, that you knew they were doing a Search and Seizure Warrant on your house.

Is that a fair statement? A. Yes, ma’am. Q. And it would be fair to say as well that the door was partially open? A. Partially cracked.

Q. Partially cracked, partially opened. Would it also be fair to say that the Officers did not use a battering ram or any kind of device to open that door? Is that correct. A. That’s correct.

Q. Would it be fair to say that the Officers were fairly loud in announcing that they were the Police? A. That’s incorrect. Q. They weren’t loud in announcing that they were the Police? A. No, ma’am, just the one Officer exited the vehicle, as I said and pointed a gun at me, put the shield and made that acknowledgment and that was all.

Q. But you knew they were Police and you knew they were executing a Search Warrant at your house? Sir? ¹⁵⁹ A. Yes, ma’am. (Emphasis supplied). Knocking For the Sake of Knocking No matter how placid the surface may appear, there is always someone to roil the waters.

The appellee, who was not present at 4754 Melbourne Avenue at the time of the search, moved to suppress the drugs found in the house because the police, albeit fully announcing both their presence and their purpose to the only person present on the premises, failed to follow up that announcement with the formality of a ritualistic knock. However otherwise permissible the entry may have seemed, the appellee argues, the policeman forgot to say, “Mother, may I?” or did not wait for a “Simon says,” and all of the physical evidence, therefore, is out of the game. In the phrase “knock and announce,” so runs the appellee’s argument, the emphasis is on the AND. The insistent theme urged by the appellee, at the suppression hearing and at oral argument before us, was the dual requirement that the police must BOTH announce AND knock.

Appellee’s counsel acknowledged that there had been an adequate announcement of the police presence and purpose but demanded the exclamation point of a knock as well. Here the dispute is not about whether thee was an announcement, but whether there was in fact a knock as required by law. (Emphasis supplied). Counsel represented to the hearing judge that “Sabbath [v. United States ] points out that you need both.” The reference is to the pre-Wilson v. Arkansas case of Sabbath v. United States, 891 U.S. 585 , 88 S.Ct. 1755 , 20 L.Ed.2d 828 (1968).

We have been over the Sabbath case with a line-by-line examination, and it says no such thing. It nowhere refers to knocking as a requirement at all, let alone as an independent requirement. Indeed, our examination of the Sabbath opinion with a word-by-word microscope reveals that the word “both” does not appear anywhere in the opinion. The very doctrine being ¹⁶⁰ examined is not referred to as a “knock and announce” doctrine, moreover, but only as “the rule of announcement.” 391 U.S. at 591 , 88 S.Ct. 1755 .

The case was decided under 18 U.S.C., § 3109 , which provides in pertinent part: The officer may break open any outer or inner door ... of a house ... if, after notice of his authority and purpose, he is refused admittance. (Emphasis supplied). At the outset, the Sabbath opinion clearly stated the issue before the Court: The issue in this case is whether petitioner’s arrest was invalid because federal officers opened the closed but unlocked door of petitioner’s apartment and entered in order to arrest him without first announcing their identity and purpose. 391 U.S. at 586 , 88 S.Ct. 1755 (emphasis supplied). There is no way that anyone could conceivably extract from that opinion counsel’s unequivocal statement, “Sabbath points out that you need both.” But for the fact this argument prevailed, we would dismiss it as meritless on its face.

At the suppression hearing in this case, held three and one-half months before Hudson v. Michigan dramatically altered the landscape, the indispensability of the knock itself, notwithstanding an open door and notwithstanding a face-to-face announcement of self-evident police presence, was deemed to be of dispositive and fatal significance. Defense counsel concluded his argument: You must have both. If you accept that there was an announcement, and I don’t think that Mr. Kakis’s Client disputes that, that there was an announcement, that they were there to execute a Warrant. [Sabbath ] tells us, Davis tells us, [4] 3901 tells us [5] that there must be both. And here ¹⁶¹ there was not both.

The Police had, at best, an announcement and no knocking as required by the law, whether the door is partially open or not, whether the door is cracked or not. They must knock and announce. They didn’t do both. (Emphasis supplied).

The State responded: Your Honor, the purpose of knock and announce is to alert people. People were alerted. The Defendant was outside. He was made aware that the Police were there. ...

In this particular instance, the Officers assessed the situation and opened the door that was partially opened when they arrived. (Emphasis supplied). The absence of the knock, however, was deemed to be constitutionally lethal. THE COURT: What evidence have I heard that would justify not knocking? [PROSECUTOR]: I think you can infer from the circumstances, Your Honor, that the Officers believed they could enter at that point, because Mr. Hooks was outside.

THE COURT: What does that have to do with not knocking? [PROSECUTOR]: Well, Your Honor, the door was open. They entered through a partially open door. Whether it’s open this much or open this much. You’re still entering through- THE COURT: Don’t the cases say that you cannot go through a partially open door without knocking? [PROSECUTOR]: They may, but under the circumstances here, Your Honor, with someone outside who could ¹⁶² alert individuals inside.

The Officers made a split second decision. THE COURT: What exception to the knock and announce rule is that? [PROSECUTOR]: None that I’m aware of. THE COURT: The Motion to Suppress the evidence seized in the house in question is granted. (Emphasis supplied).

Knocking is But a Modality of Announcing; It Is Not An Independent Requirement That motion to exclude evidence was necessarily based on an alleged violation of the Fourth Amendment. The fountainhead of Fourth Amendment law with respect to the “knock and announce” requirement is Wilson v. Arkansas, 514 U.S. 927 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995). That case held, for the first time, that the “common-law knock-and-announce principle forms a part of the reasonableness inquiry under the Fourth Amendment.” 514 U.S. at 929 , 115 S.Ct. 1914 . 6 This case’s semantic problem is that, although the act of knocking has never had any independent significance in the caselaw, the word “knock” nonetheless enjoys disproportionate resonance as part of a facile and easily applied label. The common law doctrine that Wilson v. Arkansas constitutionalized is conveniently identified as the “knock and announce” doctrine.

The exception to the “knock and announce” requirement is pithily encapsulated by the phrase “no-knock,” either in the form of a “no-knock” warrant or a warrantless “no- ¹⁶³ knock” entry. 7 Both the words “knock” and “no-knock” fall trippingly from the tongue — and from judicial opinions as well. When the cases get beyond the label and down to actual substance, however, reference to actual knocking virtually disappears. A. Supreme Court Cases Dealing With the Fourth Amendment Although the Supreme Court, like everyone else, regularly relies on these convenient labels, the actuality of knocking itself is of no meaningful consequence. In Wilson v. Arkansas there was no announcement of police presence of any sort, and it is the announcement of police presence at a doorway that has the significance.

The announcement could take many forms and knocking might be one of them. Wilson v. Arkansas began its analysis: [T]he reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering. 514 U.S. at 931 , 115 S.Ct. 1914 (emphasis supplied). Justice Thomas’s opinion, 514 U.S. at 931-32 , 115 S.Ct. 1914 , distilled the common law doctrine first and foremost from Semayne’s Case, 5 Co Rep 91a, 77 Eng. Rep. 194, 195-96 (King’s Bench 1603), as it quoted with approval: “But before [the sheriff] breaks it, he ought to signify the cause of his coming, and to make request to open doors ..., for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of ¹⁶⁴ which, if he had notice, it is to be presumed that he would obey it____” (Emphasis supplied).

Wilson v. Arkansas, 514 U.S. at 932 , 115 S.Ct. 1914 , also relied upon Case of Richard Curtis, Fost 135, 137, 168 Eng. Rep. 67, 68 (Crown 1757), as that case held: “[N]o precise form of words is required in a case of this kind. It is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority ...” (Emphasis supplied). The Supreme Court cited Lee v. Gansell, Lofft 374, 98 Eng.

Rep. 700, 705 (King’s Bench 1774), as that ease held: “[A]s to the outer door, the law is now clearly taken” that it is privileged; but the door may be broken “when the due notification and demand has been made and refused.” (Emphasis supplied). Wilson v. Arkansas, 514 U.S. at 932 , 115 S.Ct. 1914 , also looked to the academic authorities as it quoted from 1 Sir Matthew Hale, Pleas of the Croum 582: [T]he “constant practice” at common law was that “the officer may break open the door, if he be sure the offender is there, if after acquainting them of the business, and demanding the prisoner, he refuses to open the door.” (Emphasis supplied). The Supreme Court referred to 2 William Hawkins, Pleas of the Crown, ch. 14, § 1, p. 138 (6th ed 1787): “[T]he law doth never allow” an officer to break open the door of a dwelling “but in cases of necessity,” that is, unless he “first signify to those in the house the cause of his coming, and request them to give him admittance.” (Emphasis supplied). Justice Thomas’s opinion included all of this precedent as part of “the common-law principle of announcement,” 514 U.S. ¹⁶⁵ at 934, 115 S.Ct. 1914 , and then constitutionalized it, contrasting “announced” and “unannounced” entries into a home.

Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure.... [W]e hold that in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment. Id. (emphasis supplied). In discussing the exigent circumstances that might excuse the requirement of an announcement, the analysis regularly referred to the common-law “principle of announcement.” This is not to say that every entry must be preceded by an announcement.

The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement .... [TJhe common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances. Id. (emphasis supplied). In all of the analysis of the newly constitutionalized common-law requirement there was no mention of the physical act of knocking, let alone any suggestion that knocking was an independent requirement.

Wilson v. Arkansas concluded: For now, we leave to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry. 514 U.S. at 936 , 115 S.Ct. 1914 (emphasis supplied). Between Wilson v. Arkansas in 1995 and Hudson v. Michigan in 2006, the Supreme Court dealt with the so-called “knock and announce” requirement on three other occasions. ¹⁶⁶ Richards v. Wisconsin, 520 U.S. 385 , 117 S.Ct. 1416 , 137 L.Ed.2d 615 (1997), explored the quality of exigency that may justify a “no knock” entry to execute a search warrant. It required a showing of case-by-case exigency rather than a categorical exigency based upon the type of crime involved.

Ironically (and proving our point), the case was analyzed as a “no knock” case notwithstanding the fact that there had been an actual and effective knock on a motel room door by an undercover police officer. What was missing was not the knock but rather an honest announcement of police presence. After the loud and audible knock had been responded to, the officer falsely claimed to be a maintenance man. “No knock” was obviously just the convenient linguistic label for what was, in fact, a “no announcement” entry. United States v. Ramirez, 523 U.S. 65 , 118 S.Ct. 992 , 140 L.Ed.2d 191 (1998), dealt only with the questions of whether an exigency-based “no knock” entry requires a higher level of justification in cases in which property damage is inflicted.

In referring to the pre-Wilson federal statute that required prior notice before making a forced entry, however, the Supreme Court pointed out that “ § 2109 [of 18 U.S.C.] codifies the exceptions to the common-law announcement requirement.” 523 U.S. at 73 , 118 S.Ct. 992 (emphasis supplied). United States v. Banks, 540 U.S. 31 , 124 S.Ct. 521 , 157 L.Ed.2d 343 (2003), was a case in which, before entering an apartment to execute a search warrant, the police loudly knocked on the door and announced their presence. The only question was whether a subsequent delay of between 15 and 20 seconds before battering down the door was enough to satisfy the knock and announce requirement. It was.

In referring to the knock and announce principle, the Banks Court stressed the verb “announce” and did not use the verb “knock.” [T]he standard generally requires the police to announce their intent to search before entering closed premises. 540 U.S. at 36 , 124 S.Ct. 521 (emphasis supplied). Hudson v. Michigan itself makes only passing reference to the requirements of the common-law principle, and that refer ¹⁶⁷ ence is only to the announcement of police presence and not to knocking. The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one. 126 S.Ct. at 2161 , 165 L.Ed.2d at 63 (emphasis supplied). Our point is that the caselaw does not support the appellee’s hapless effort to make a fetish out of a mere word that has never been the basis for an actual decision and is simply a part of a familiar and convenient label.

The use of a handy shorthand expression does not trigger sta,re decisis. B. A Federal Statute and the Common Law Doctrine Before the Supreme Court raised the “knock and announce” requirement to constitutional status in 1995, it had twice earlier dealt with the common law doctrine that it later constitutionalized. Although in Miller v. United States, 357 U.S. 301 , 78 S.Ct. 1190 , 2 L.Ed.2d 1332 (1958), the Court was dealing with a warrantless entry of an apartment to execute a warrantless arrest, it began its analysis by noting that “the validity of the entry to execute the arrest without warrant must be tested by criteria identical with those embodied in 18 U.S.C. § 3109 , which deals with entry to execute a search warrant.” 357 U.S. at 306 , 78 S.Ct. 1190 . Section 3109, in pertinent part, provides: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance.” (Emphasis supplied).

In describing the common law doctrine embodied in § 3109, the Court focused on the officer’s obligation “to state his authority and purpose.” Whatever the circumstances under which breaking a door to arrest for felony might be lawful, however, the breaking ¹⁶⁸ was unlawful where the officer failed first to state his authority and purpose for demanding admission. 357 U.S. at 308 , 78 S.Ct. 1190 (emphasis supplied). The requirement is one of giving notice by an express announcement. The word “knock” does not even enter into the discussion. The rule seems to require notice in the form of an express announcement by the officers of their purpose for demanding admission.

The burden of making an express announcement is certainly slight. A few more words by the officers would have satisfied the requirement in this case. 357 U.S. at 309-10 , 78 S.Ct. 1190 (emphasis supplied). If notice has already been effected, moreover, the officer need not engage in “a useless gesture.” It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture. 357 U.S. at 310 , 78 S.Ct. 1190 (emphasis supplied). What matters is the actuality of notice, not the officer’s performance of a prescribed drill.

Sabbath v. United States, 391 U.S. 585 , 88 S.Ct. 1755 , 20 L.Ed.2d 828 (1968), also dealt with § 3109 and with the common law doctrine that it embodied. The references throughout the opinion were to “the rule of announcement.” [Ajnother facet of the rule of announcement was, generally, to safeguard officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there. 391 U.S. at 589 , 88 S.Ct. 1755 (emphasis supplied). The evil at which § 3109 and the common-law doctrine were clearly aimed was that of an “unannounced intrusion.” An unannounced intrusion into a dwelling — what § 3109 basically proscribes — is no less an unannounced intrusion ¹⁶⁹ whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door. 390 U.S. at 590, 88 S.Ct. 1209 (emphasis supplied). And see Blakey, “The Rule of Announcement and Unlawful Entry,” 112 U. Pa.

L.Rev. 499 (1964). C. Maryland Case Law In the years since Wilson v. Arkansas was decided, the Court of Special Appeals has considered the new Fourth Amendment requirement on six occasions. Although all of those cases resorted to the convenient label of either “knock and announce” or “no knock,” not one of them was concerned with, or even discussed, the physical phenomenon of knocking per se: 1) Wynn v. State, 117 Md.App. 133 , 699 A.2d 512 (1997) , rev’d on other grounds, 351 Md. 307 , 718 A.2d 588 (1998) (The only issue was whether there was sufficient exigency to forgive the failure to make any announcement at all.); 2) Lee v. State, 139 Md.App. 79 , 774 A.2d 1183 (2001), aff'd, 374 Md. 275 , 821 A.2d 922 (2003) (no announcement of any sort); 3) State v. Riley, 147 Md.App. 113 , 807 A.2d 797 (2002) (no announcement of any sort; a no-knock warrant); 4) Davis v. State, 144 Md.App. 144 , 797 A.2d 84 (2002), rev’d, 383 Md. 394 , 859 A.2d 1112 (2004) (no announcement of any sort; a no-knock warrant); 5) Carroll v. State, 149 Md.App. 598 , 817 A.2d 927 (2003), rev’d, 383 Md. 438 , 859 A.2d 1138 (2004) (no announcement of any sort); 6) Archie v. State, 161 Md.App. 226 , 867 A.2d 1120 (2005) (a good knock and announcement followed almost immediately by a forcing of the door). In Carroll v. State, 149 Md.App. at 608 , 817 A.2d 927 , Judge Thieme surveyed the history of the common-law doctrine and encapsulated it as a requirement that the police announce their authority and demand admittance: Although it is tedious to tell again tales already plainly told, police, at common law, were entitled to break into a house to ¹⁷⁰ arrest after announcing their authority and purpose for demanding admission.

(Emphasis supplied). In Archie v. State, 161 Md.App. at 235-36 , 867 A.2d 1120 , Chief Judge Murphy similarly summarized the doctrine as one requiring the announcement of police presence and authority. In evaluating reasonableness, courts consider “whether law enforcement officers announcef ] their presence and authority prior to entering” a dwelling. “It is well settled in Maryland, and long has been so, that a police officer executing a search warrant ‘must give proper notice of his purpose and authority and be denied admittance before he can use force to break and enter’ the premises to be searched.” (Emphasis supplied). Judge Murphy laid out the threefold reason why unannounced entries are presumptively unreasonable: The reasons behind this rule are threefold: (1) “to prevent sudden, unannounced invasions of the privacy of citizens,” (2) “to prevent the needless destruction of property,” and (3) “to safeguard the officer who might otherwise be killed by a ‘fearful householder’ unaware of the officer’s identity or purpose.” 161 Md.App. at 236 , 867 A.2d 1120 (emphasis supplied).

And see Irma Raker, “The New ‘No-Knock’ Provision and Its Effect on the Authority of the Police to Break and Enter,” 20 Amer. U.L.Rev. 467, 469 (1970-71): The policy reasons underlying the announcement rule were to prevent sudden, unannounced invasions of the privacy of citizens, to prevent the needless destruction of property, and to safeguard the officer who might otherwise be killed by a “fearful householder” unaware of the officer’s identity or purpose. (Emphasis supplied). On two occasions prior to the filing of Wilson v. Arkansas, the Court of Special Appeals had had occasion to consider the ¹⁷¹ common-law “knock and announce” requirement.

In Waugh v. State, 3 Md.App. 379 , 239 A.2d 596 (1968), the police, in the course of executing a search warrant, “broke open the door and entered the premises without prior announcement.” Id. at 381 , 239 A.2d 596 . This Court held that the exigencies justified the unannounced entry. There was no mention of the word “knock.” In Kates v. State, 13 Md.App. 688 , 284 A.2d 651 (1971), the defendant contended that a search warrant had been “invalidly executed” because “before an officer may use force to break and enter, he must first give proper notice of his purpose and authority and be denied admittance.” Id. at 692-93 , 284 A.2d 651 (emphasis supplied). Chief Judge Robert Murphy rejected the contention, holding that the threat of destruction of evidence in a raid on a gambling parlor furnished all of the exigency required for an unannounced entry.

The analysis, moreover, was exclusively in terms of announcement. There was no mention of the act of knocking per se. It is undisputed that the officers entered the premises without prior demand by using a passkey obtained from the manager of the apartment complex. It is well settled that the law proscribes such unannounced searches.

This rule is not, however, without qualification or exception. As noted in Henson v. State, 236 Md. 518 , 204 A.2d 516 , an announcement and demand are not requisite where the facts made it evident that the officers’ purpose is known or where such announcement and demand would likely frustrate the search, increase the peril of the searching officers, or permit the destruction of evidence. Id. at 693, 284 A.2d 651 (emphasis supplied). On three occasions since Wilson v. Arkansas, the Court of Appeals has dealt with the new constitutional requirement.

In State v. Lee, 374 Md. 275 , 821 A.2d 922 (2003), the police entered the premises without making any announcement of any sort. Chief Judge Bell summarized the general requirement, both constitutionally and in terms of the common-law ¹⁷² doctrine, as one premised on the obligation of the police to give notice of their presence and their purpose. It is well settled in Maryland, and long has been so, that a police officer executing a search warrant “must give proper notice of his purpose and authority and be denied admittance before he can use force to break and enter” the premises to be searched. 374 Md. at 283, 821 A.2d 922 (emphasis supplied). Davis v. State, 383 Md. 394 , 859 A.2d 1112 (2004), dealt only with the issue of whether “no-knock” warrants were authorized under Maryland law.

The phenomenon of knocking did not enter into the opinion. In State v. Carroll, 383 Md. 438 , 859 A.2d 1138 (2004), there was no announcement of any sort, which was held to have been justified by exigent circumstances. Once again, there was no discussion of knocking. On one occasion prior to Wilson v. Arkansas, the Court of Appeals considered the “knock and announce” principle as a common law doctrine.

In Henson v. State, 236 Md. 518 , 204 A.2d 516 (1964), the Court of Appeals had before it a situation in which “the police officers who executed the search warrant broke open the door of the house being searched without first announcing who they were and making demand that entry be granted.” Id. at 520 , 204 A.2d 516 (emphasis supplied). The Court of Appeals held that the exigencies justified such an unannounced entry. The Henson Court’s discussion of the common-law doctrine was not inhibited or confused by any “knock and announce” label, and the ensuing discussion made it clear that the law’s concern was with police notice to the occupants of the place being searched and with the announcement of police presence and purpose as the core modality for giving notice. The claim that the evidence seized was inadmissible because the police officers executing the search warrant did not advise those within that they had such a warrant and demand admittance, but broke in forcibly without notice, is an extension of the old rule that a peace officer seeking to arrest an individual who is in a house, either by authority of ¹⁷³ an arrest warrant or under circumstances making a warrant unnecessary, must give proper notice of his purpose and authority and be denied admittance before he can use force to break and enter.

The reasons for these requirements have been said to be that the law abhors unnecessary breaking or destruction of any house, because the dweller in the house would not know the purpose of the person breaking in, unless he were notified, and would have a right to resist seeming aggression on his private property. This rule of long standing has been transferred to the statute books in some twenty-five states, and in the federal law. 236 Md. at 521-22 , 204 A.2d 516 (emphasis supplied). The Lack of a Knock Was Immaterial When notice to the only occupant of the house to be searched was patently accomplished by the police announcement of both presence and purpose, therefore, the Fourth Amendment was, we would not hesitate to hold, fully satisfied. A purely ceremonial knock would have served no more additional purpose than a ritualistic touching of one’s nose or a clicking of one’s heels or a twirling about three times in a counterclockwise direction.

We are not operating in Oz. If the appellee is attempting to make some further point that the knock could have given notice to persons other than Hooks who might have been present inside the house, the overarching reality is that there were no such other persons. The knock, had it occurred, would have been heard by no one. The absence of a knock, therefore, deprived no one of notice.

Demonstrably, the appellee has shown no scintilla of prejudice to anyone, let alone to himself. Excluding the evidence on the ground that there was a Fourth Amendment violation because of the absence of a knock was erroneous and, were the question properly before us, we would not hesitate to reverse it. Deliberate and Careful Dicta Our examination of the Fourth Amendment merits of the police entry in this case, unfortunately, must enjoy only the ¹⁷⁴ status of dicta, albeit, to be sure, that of carefully considered and deliberately articulated dicta. Even if only persuasive instead of binding, it should nonetheless be ranked in an upper percentile of persuasiveness.

Our appraisal of the Fourth Amendment merits is not a holding only because we are foreclosed from ruling on the Fourth Amendment merits for two separate and independent reasons. In the first place, the appellee lacked the standing to raise the Fourth Amendment merits. In the second place, even if we were to assume, purely arguendo, both standing and a Fourth Amendment violation, the harm resulting from such a violation has now been deemed by the Supreme Court to be too relatively modest and inconsequential to justify, on balance, the heavy sanction of excluding unquestionably trustworthy evidence of crime. We will look at each of these foreclosures in turn.

Standing to Object The issue of standing is squarely before us. At the outset of the suppression hearing, the State challenged the appellee’s standing to question the police entry into 4754 Melbourne Road. The hearing judge ruled that the appellee possessed the requisite standing to litigate. The State has appealed that ruling.

The presence or absence of standing, of course, has nothing to do with the ultimate Fourth Amendment merits. It is exclusively a threshold question of applicability, concerned only with the coverage by the Fourth Amendment of the defendant who seeks to raise a Fourth Amendment challenge. Far from reaching the Fourth Amendment merits, standing settles only the entitlement to litigate those merits. The adjudication of a standing challenge is but a gatekeeping function.

The undergirding principle is that courts are established to litigate “live cases and controversies” and not to settle questions of only academic interest. That latter exercise is left to the law schools. Accordingly, one may not ¹⁷⁵ litigate an alleged Fourth Amendment grievance unless one is personally aggrieved. One must show in the first instance the personal enjoyment of the Fourth Amendment protection that was allegedly violated.

A defendant may not seek to vindicate vicariously the Fourth Amendment rights of someone else. Simmons v. United States, 390 U.S. 377, 389 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968), was emphatic in this regard. [RJights assured by the Fourth Amendment are personal rights, and they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. (Emphasis supplied). The Burden of Proof is On the Defendant If the State timely challenges a defendant’s standing, 8 the law is clear that, on this threshold issue, the burden is on the defendant to establish standing.

In Rakas v. Illinois, 439 U.S. 128 , 130 n. 1, 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), the Supreme Court was emphatic: The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. (Emphasis supplied). See also Smith v. Maryland, 442 U.S. 735, 740 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979) (“[T]he application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.”); Rawlings v. Kentucky, 448 U.S. 98, 104 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980) (“Petitioner, of ¹⁷⁶ course, bears the burden of proving not only that the search of Cox’s purse was illegal, but also that he had a legitimate expectation of privacy in that purse.”). This Court is firmly in line with that allocation of the burden of proof.

In Alston v. State, 159 Md.App. 258, 262-63 , 858 A.2d 1100 (2004), Judge Deborah Eyler stated unequivocally: The burden is on the proponent of a motion to suppress evidence on Fourth Amendment grounds to prove what is sometimes called “standing” — that he had a reasonable expectation of privacy in the premises or the property.... [T]he motion court in this case found that the appellant did not show that he had standing to assert a Fourth Amendment violation. (Emphasis supplied). See also Simpson v. State, 121 Md.App. 263, 276 , 708 A.2d 1126 (1998) (“The burden is on the proponent of a motion to suppress evidence allegedly seized as a result of a constitutional violation to establish that he has standing to complain of a constitutional violation.”); Burks v. State, 96 Md.App. 173, 195 , 624 A.2d 1257 (1993) (“The burden of showing Fourth Amendment coverage is, of course, upon the appellant.”), cert. denied, 332 Md. 381 , 631 A.2d 451 (1993). The Court of Appeals has also spoken to the same effect in Laney v. State, 379 Md. 522, 545 , 842 A.2d 773 (2004): The one invoking Fourth Amendment protection bears the burden of demonstrating his or her legitimate expectation of privacy in the place searched or items seized.

(Emphasis supplied). And see Ricks v. State, 312 Md. 11, 26 , 537 A.2d 612 (1988) (“[T]he proponent of a motion to suppress has the burden of establishing that his Fourth Amendment rights were violated by the challenged search and seizure.”). In this regard, we find interesting two sentences in the appellee’s brief. Appellee points out that there was no evidence presented by the State during the hearing that shows Appellee didn’t have the authority to exclude others from the dwelling or that he didn’t take steps to maintain his privacy.

Moreover, the ¹⁷⁷ State failed to present evidence showing that Appellee strictly used the dwelling to store and package drugs. (Emphasis supplied). That argument turns the allocation of the burden of proof completely on its head. We, however, will apply it right side up.

The burden is on the defendant to show standing; it is not on the State to show non-standing. The Varieties of Fourth Amendment Standing For all intents and purposes, the law of Fourth Amendment standing began with Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960). Prior to Jones , the only variety of Fourth Amendment standing that had been recognized was the self-evident situation in which a defendant had a possessory or other proprietary interest in the place searched and/or the thing seized. The defendant was required to show some sort of property right.

See Burks v. State, 96 Md.App. at 194 , 624 A.2d 1257 . Jones , in 1960, significantly liberalized the law of standing by adding two additional varieties: 1) automatic standing, for cases in which the State charged the defendant with a crime with respect to which the very possession of the thing seized was the gravamen of the offense; and 2) derivative standing, for cases in which the defendant was “legitimately on the premises” searched as the guest, licensee, or invitee of the owner or rightful possessor. This latter was called “derivative standing” because it derived through the property owner to the guest. The guest merely enjoyed, to some extent, what the host enjoyed.

The right of the guest was never independent of that of the host. If the host, for instance, consented to a police entry, that would override any objection on the part of the guest. The guest’s right was truly derivative. Burks v. State, 96 Md.App. at 194 , 624 A.2d 1257 .

Automatic standing enjoyed a shelf life of only twenty years. The handwriting of its imminent demise was inscribed on the wall by Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968). By granting a defendant the benefit of use immunity for his testimony at a suppression hearing, ¹⁷⁸ Simmons removed the defendant from what had theretofore been called “the horns of the dilemma.” Automatic standing’s official obituary was pronounced by United States v. Salvucci, 448 U.S. 83, 95 , 100 S.Ct. 2547 , 65 L.Ed.2d 619 (1980). Only proprietary standing and “derivative” standing remained, and they were now cloaked in the language of Katz v. United States (see infra).

The Rejection of Target Standing In the meantime, however, creative defense attorneys persistently argued for yet another variety of standing, one which came to be called target standing. The theory was that the defendant’s status as the target of an investigation should confer standing in him to challenge any search or seizure that was a part of that investigation. The Supreme Court regularly rejected target standing as a launching pad for raising a Fourth Amendment challenge. There appears to be a possibility, however, that the notion of target standing was at least a factor in the trial court’s decision to exclude the evidence in this case.

The State moved for a ruling that the appellee lacked Fourth Amendment standing. Although the hearing court went on to a discussion of the reasonable expectation of privacy, the ruling began: THE COURT: Motion is denied. The Defendant was the object of the investigation. (Emphasis supplied).

That is the language of target standing. Rakas v. Illinois, 439 U.S. at 132 , 99 S.Ct. 421 , directly addressed the subject of target standing. Petitioners first urge us to relax or broaden the rule of standing enunciated in Jones v. United States ..., so that any criminal defendant at whom a search was “directed” would have standing to contest the legality of that search and object to the admission at trial of evidence obtained as a result of the search. The Supreme Court pointed out that such a theory would permit a defendant to vindicate vicariously the Fourth Amend ¹⁷⁹ ment rights of someone else, something that the Court had never countenanced.

Adoption of the so-called “target” theory advanced by petitioner would in effect permit a defendant to assert that a violation of the Fourth Amendment rights of a third party entitled him to have evidence suppressed at his trial. 439 U.S. at 132-33 , 99 S.Ct. 421 (emphasis supplied). The Supreme Court engaged in an extensive analysis, 439 U.S. at 132-38 , 99 S.Ct. 421 , of why it had always historically rejected, and would continue to reject, target standing. The rejection was emphatic. We decline to extend the rule of standing in Fourth Amendment cases in the manner suggested by petitioners.

As we stated in Alderman v. United States ... (1969): “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” 439 U.S. at 133 , 99 S.Ct. 421 (emphasis supplied). United States v. Padilla, 508 U.S. 77, 82 , 113 S.Ct. 1936 , 123 L.Ed.2d 635 (1993), reaffirmed that the only varieties of standing are those based on 1) a property interest or 2) a reasonable expectation of privacy. Expectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims.

Participants in a criminal conspiracy may have such expectations or interests, but the conspiracy itself neither adds to nor detracts from them.... The case is remanded so that the court may consider whether each respondent had either a property interest protected by the Fourth Amendment that was interfered with ... or a reasonable expectation of privacy that was invaded by the search thereof. (Emphasis supplied). The Katz-Rakas Reformulation Raleas v. Illinois in 1978 is almost certainly the most significant analysis the Supreme Court has ever delivered on Fourth Amendment standing.

At the very least, it was the ¹⁸⁰ most significant statement since Jones v. United States in 1960. In addition to 1) making clear that the burden of proof on standing is allocated to the defendant and 2) rejecting the very notion of target standing, the Court completely recast the language with which we talk about standing. The Katz-Rakas reformulation of what constitutes Fourth Amendment coverage was, in effect, a necessary refitting after an eighteen-year shake-down cruise. The “reasonable expectation of privacy” language had the salutary effect of being far more nuanced than the “legitimately on the premises” formulation of Jones that had preceded it.

That formulation could readily be, and almost always was, treated as an “all or nothing” phenomenon, an approach ill-suited to the infinite variety of real life. Rakas’s reliance on the totality of the circumstances, by contrast, permitted adjustments, upward and downward, within shifting shades of gray that the “black or white” dichotomy of Jones had not. Even after Rakas , standing remains, of course, a Fourth Amendment threshold issue. If a defendant can show that he personally enjoyed a Fourth Amendment protection, he thereby has the standing to litigate an alleged violation of that protection.

Conversely, if a defendant cannot show that he possessed a Fourth Amendment right, he has no standing to litigate the alleged violation of the right. These core verities have never changed. What has changed, since Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), is the language used to describe the existence of a Fourth Amendment right. If, under the totality of the circumstances, one is now deemed to have “a reasonable expectation of privacy,” that means that one thereby has a Fourth Amendment right and, for that precise reason, has the standing to litigate an alleged violation of that right.

Conversely, if one does not have “a reasonable expectation of privacy,” that simply means that one does not have a Fourth Amendment right and, for that reason, has no standing to litigate an alleged violation of a non-existent right. A reasonable expectation of privacy equals a Fourth Amend ¹⁸¹ ment right equals standing to vindicate that right. A equals B equals C. This identity between the expectation of privacy issue and the standing issue was perfectly expressed by Judge Battaglia in Whiting v. State, 389 Md. 334, 337 , 885 A.2d 785 (2005): [AJlthough Whiting did possess a subjective expectation of privacy ... his expectation of privacy was not objectively reasonable, and as a result, he did not have standing under the Fourth Amendment to challenge the searches. (Emphasis supplied).

As the measuring rod for the existence of a Fourth Amendment right, with the attendant standing to litigate that right, the “reasonable expectation of privacy” criterion theoretically embraces both 1) proprietary standing and 2) derivative standing, to use the pre-Rakas terms. Although both concepts are now subsumed in the generic Katz-Rakas formulation, an understanding of the distinction between them remains a helpful analytic tool. In terms of the objective component of the reasonable expectation of privacy test, one who enjoys an actual possessory or proprietary interest in the place searched or the thing seized invariably has no problem. An expectation of privacy by such a person is almost as a matter of course deemed to be objectively reasonable.

Conversely, when a defendant who has claimed standing pursuant to an ostensible property right is shown to have no such property right, that is invariably fatal to the defendant’s claim of standing. Laney v. State, 379 Md. 522 , 842 A.2d 773 (2004) (mortgagor of a home that had been foreclosed upon); Whiting v. State, 389 Md. 334 , 885 A.2d 785 (2005) (squatter in a vacant house). Claims of proprietary standing, good or bad, pose little problem. It is only when we come to the more diluted expectations of privacy, expectations by those we once characterized as having only derivative standing, that the objective measuring of reasonableness becomes more problematic.

An expectation of privacy may take various forms, and it is with respect to the ¹⁸² variety once known as derivative standing that the Rakas v. Illinois reformulation has had its major impact. The Appellee Had No Proprietary Standing First, to clear away some of the clutter, we can resolve the issue of the appellee’s lack of proprietary standing in a hurry. There was no shred of evidence to establish any proprietary interest of any sort on the part of the appellee in 4754 Melbourne Road. Indeed, the appellee stated to the police that he lived at 2918 Lake Brook Circle. 4754 Melbourne Road was the home of Walter Hooks’s mother, who lived there with her daughter.

She apparently tolerated the periodic presence of her son, Walter Hooks, although she “was trying to get rid of him because he kept getting in trouble.” Hooks himself gave his address as 2313 West Mosher Street. In ruling on the standing issue, the trial court began with the finding, “We have no evidence of ownership.” We fully agree. The Reasonable Expectation of Privacy And Derivative Standing Lacking proprietary standing, the appellee, at most, could claim what, pre-Rakas, might have amounted to derivative standing. Walter Hooks presumably spent some time at 4754 Melbourne Road with the grudging permission of his mother.

The appellee inferentially spent some daylight hours at that address with the permission of Walter Hooks. Whatever the appellee enjoyed was derived through Walter Hooks. The issue, post-Rakas, is whether the circumstances of his presence there conferred on him an objectively reasonable expectation of privacy in those premises. It is clear that to enjoy Fourth Amendment standing, a defendant must have both 1) an actual subjective expectation of privacy and 2) an expectation that is objectively reasonable.

It is now hornbook law that the Katz reasonable expectation of privacy test is two-pronged. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469 , 142 L.Ed.2d 373 (1998), set out the dual requirements. ¹⁸³ [I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable. (Emphasis supplied). In Laney v. State, 379 Md. 522, 545 , 842 A.2d 773 (2004), the Court of Appeals similarly laid out the two-pronged test: The burden consists of two inquiries: (1) whether the individual has a subjective expectation that his or her property or possessions will not be searched, and (2) whether the expectation is objectively reasonable under the circumstances.

(Emphasis supplied). In Ricks v. State, 312 Md. at 26-27 , 537 A.2d 612 , Chief Judge Robert Murphy described the two-pronged nature of the criterion. The determination whether a legitimate expectation of privacy exists embraces two discrete questions, viz: the first is whether the individual, by his conduct, has exhibited a subjective expectation of privacy (that he seeks to preserve something as private), and the second question is whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable (whether the individual’s expectation, viewed objectively, is justifiable under the circumstances). A legitimate “expectation of privacy by definition means more than a subjective expectation of not being discovered.” (Emphasis supplied).

A Subjective Expectation Alone Will Not Suffice The decision of the hearing court in this case appears to have been a ruling with respect to the appellee’s subjective expectation of privacy, but not a ruling as to whether that subjective expectation was one that society would objectively consider to be reasonable or legitimate. The ruling was: What little evidence we have is that he was using this place regularly. There’s no evidence that it was abandoned prop ¹⁸⁴ erty or anything else. He was operating out of this house.

I think common sense tells you that one would not be conducting the type of operation that is alleged without expecting — reasonably expecting to have some privacy. (Emphasis supplied). That reference was almost certainly to a subjective expectation on the part of the appellee that his criminal activity