Whittington v. State

Kevin Whittington v. State, No. 2591, Sept. Term, 2018, Opinion by Leahy, J. Fourth Amendment > Search > GPS Tracking We hold that a court order issued under CP § 1.203.1, meets the requisites of a warrant under Fourth Amendment Law. The statute requires that an order be signed by a neutral and detached magistrate, based on probable cause, and supported by oath or affirmation. It must also identify, with reasonable particularity, the technology to be employed and the person about whom location information is being sought. Such order is limited, unless certain exceptions apply, to 30 days, after which notice of the order must be delivered to the subject of the order.

Fourth Amendment > Search > GPS Tracking In this age of rapidly advancing surveillance technology, that CP § 1-203.1 incisively requires that an application for an order, such as the GPS Order in this case, be limited to 30 days and describe with reasonable particularity the type of electronic device to be employed by law enforcement. Fourth Amendment > Orders We reject any categorical proposition that an “order” issued by a neutral magistrate cannot serve as the functional equivalent of a “warrant” issued by a neutral magistrate. We recognize that formal labels are necessary to organize the ontology of the law, but, in this case, as in most, the label is not dispositive. Fourth Amendment > Search > Warrants > GPS Tracking In United States v. Jones, the Supreme Court held that a GPS device affixed by law enforcement on a suspect’s vehicle to monitor his movements constituted a search under the Fourth Amendment. 565 U.S. 400 , 404 (2012).

Although the Supreme Court in Jones did not specifically address whether police must obtain a warrant before installing a GPS tracking device on a suspect’s vehicle, we accept that the “Fourth Amendment’s prohibition against unreasonable searches is generally satisfied when law enforcement officers obtain a warrant authorizing the search in question.” State v. Copes, 454 Md. 581, 618 (2017) (citing Riley v. California 573 U.S. 373 , 382 (2014)). Fourth Amendment > Searches > Warrants > Burden In warrantless-search and-seizure cases, the State bears the burden of overcoming the presumption that a warrant was required. Eusebio v. State, 245 Md. App. 1, 22 (2020) (citation omitted). In the instant case, the State had the burden of establishing that the order issued pursuant to CP § 1-203.1 met the requirements of a warrant.

Fourth Amendment > Searches > Warrants > Particularity > Surveillance Technology In our effort to stay apace with scientific advances, we have recognized that in order for a neutral magistrate to “particularly describe[e] the place to be searched, and the persons or things to be seized,” the application for a warrant or order must identify, among other things, what type of tracking device law enforcement intends to use. See State v. Andrews, 227 Md. App. 350, 376 (2016). Statutes > Statutory Interpretation > Plain Language To determine Legislative intent, we turn first to the plain meaning of the statute. Berry v. State, 244 Md. App. 234, 244 (2019). “Even if the plain meaning is clear and unambiguous, we often look to legislative intent and purpose to determine if they ratify our analysis and interpretation of a statute.” Hammonds v. State, 436 Md. 22, 44 (2013).

Statutes > Statutory Interpretation > Plain Language The plain language of CP § 1.203.1 shows that the statute embodies all of the warrant requirements inhering in the Fourth Amendment. Subsection b provides, in pertinent part, that a court may issue an order that allows law enforcement to obtain location information “after determining[,] from an application described in paragraph (2) of this subsection[,]” that “there is probable cause to believe that . . . a misdemeanor or felony has been, is being, or will be committed . . . by the individual about whom location information is being sought[.]” CP § 1-203.1(b)(1)-(1)(i). Paragraph (2) requires a written application that is “signed and sworn to by the applicant” and is “accompanied by an affidavit that[] . . . sets forth the basis for probable cause . . . and [] contains facts within the personal knowledge of the affiant.” CP § 1-203.1(b)(2). Statutes > Statutory Interpretation > Plain Language In light of the particularity requirement, the statute requires that any order issued pursuant to it must “describe with reasonable particularity[] . . . the type of electronic device associated with the location information being sought”; “the user of the electronic device, if known, or the identifying number of the electronic device about which location information is sought”; and “the grounds for obtaining the location information[.]” CP § 1-203.1(b)(3).

Statutes > Constitutionality We observe that CP § 1-203.1, tailored to address modern tracking technology, imposes time limitations and requires concise identification of the technology that law enforcement plans to employ in collecting location data—requisites that further aid in protecting citizens from indiscriminate government surveillance. Fourth Amendment > Searches > Warrants > Sufficiency of the Warrant CP § 1-203.1 imposes conditions and requisites on officers who seek to employ GPS tracking devices that meet the warrant requirements of the Fourth Amendment. The application in this case demonstrated that the order issued established a substantial basis upon which the issuing judge could find probable cause that a “misdemeanor or felony . . . [wa]s being . . . committed” and “the location information being sought . . . [wa]s evidence of, or w[ould] lead to evidence of, the misdemeanor or felony being investigated[.]” CP § 1-203.1(b). Fourth Amendment > Exclusionary Rule > Good Faith Exception We agree with the court’s determination that the detectives in this case relied on the search warrant in good faith.

We assume, without deciding, that the suppression court correctly determined that the district court judge did not have a substantial basis to find probable cause to issue the warrant. See Marshall v. State, 415 Md. 399, 402 (2010) (assuming that the search warrant was issued improperly and analyzing only the application of the good faith exception). Fourth Amendment > Exclusionary Rule > Good Faith Exception The United States Supreme Court and the Maryland Court of Appeals “have adopted a good faith exception to the warrant requirement, under which ‘evidence seized under a warrant subsequently determined to be invalid may be admissible if the executing officers acted in objective good faith with reasonable reliance on the warrant.’” Carroll v. State, 240 Md. App. 629, 654 (2019) (citation omitted). Fourth Amendment > Exclusionary Rule > Good Faith Exception The exclusionary rule it is “not applied when law enforcement officials engage in ‘objectively reasonable law enforcement activity,’ even if that activity is later found to be a violation of the Fourth Amendment.” State v. Copes, 454 Md. 581, 606 (2017) (quoting Leon, 468 U.S. at 919).

Fourth Amendment > Exclusionary Rule > Good Faith Exception The detectives here could have reasonably believed that Appellant’s criminal history, consistent association with a person of interest in a large-scale drug investigation, and suspicious driving behavior “related to a present and continuing violation of the law[.]” Patterson v. State, 401 Md. 76, 107 (2007). Circuit Court for Baltimore County Case No. 03-K-17-000239 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2591 September Term, 2018 ______________________________________ KEVIN WHITTINGTON v. STATE OF MARYLAND ______________________________________ Leahy, Shaw Geter, Vitale, Cathleen M. (Specially Assigned), JJ. ______________________________________ Opinion by Leahy, J. ______________________________________ Filed: July 1, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-07-02 09:30-04:00 Suzanne C. Johnson, Clerk “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring) Law enforcement’s use of a Global Positioning System (“GPS”) tracking device led to the arrest and conviction of Kevin Whittington, and ultimately, to the Fourth Amendment issues before us now. As a matter of first impression, we examine whether the court order that authorized police to install the GPS tracking device on Mr. Whittington’s car, issued pursuant to a state criminal statute, satisfied the Fourth Amendment requirements of a warrant based on probable cause.

Mr. Whittington unwittingly garnered the attention of detectives in the Harford County Sheriff’s Office in 2016 by associating with a suspected narcotics distributor named David Hall. The detectives wiretapped Mr. Hall’s phone and discovered that Mr. Whittington was the most frequent caller. Then they observed the two men engaged in activity that was consistent with the distribution of controlled dangerous substances (CDS). The detectives applied for and obtained an “Electronic Device Location Information Order” (hereinafter “GPS Order”) under Maryland Code (2018 Repl.

Vol., 2019 Supp.), Criminal Procedure Article (“CP”), § 1-203.1.1 The GPS Order authorized the detectives to install a GPS mobile tracking device on Mr. Whittington’s car for a 30-day period. 1 The Maryland General Assembly first enacted the law, now codified as Section 1- 203.1 of the Criminal Procedure Article, in 2014. 2014 Md. Laws Ch. 191 (S.B. 698). The statute was amended without substantive change in 2018 and 2019; however, during the 2020 legislative session, the General Assembly amended the statute to specify that it applies to law enforcement’s use of cell site simulator technology. 2020 Md. Laws Ch. 222 (H.B. 499). The detectives observed Mr. Whittington over a period of weeks with the help of the GPS tracking device. His pattern of movements further bolstered their assessment that he was engaged in CDS activity in and around Harford County, and that he maintained a residence at 4 Cloverwood Ct., Apt. 202, in Essex, Baltimore County.

They then applied for and received a warrant to search Mr. Whittington’s person, car, and apartment. The police found four baggies of cocaine totaling about eight grams in Mr. Whittington’s car; and they found two bags of cocaine weighing approximately 145.9 grams, ten Alprazolam pills, and $1,222 in the apartment at 4 Cloverwood Ct. Officers apprehended Mr. Whittington at another location and found $1,406 and two cellular telephones on his person. Mr. Whittington was arrested and later indicted on January 18, 2017, in the Circuit Court for Baltimore County, on two counts of Possession of CDS with the Intent to Distribute and two counts of Possession of CDS. Mr. Whittington filed a motion to suppress all the evidence derived from the searches conducted pursuant to the search warrant, which, he claimed, was issued upon evidence obtained from an “unconstitutional” order authorizing the detectives’ use of the GPS tracking device.

The GPS Order, he argued, lacked probable cause and was unconstitutional under the holding in United States v. Jones, 565 U.S. 400 (2012), which, he claimed, requires law enforcement to obtain a valid warrant in order to attach a GPS tracking device to a suspect’s vehicle. He further argued that the evidence presented to the warrant court failed to establish a nexus between his alleged drug dealings and 4 Cloverwood Ct., Apt. 202, as required under Agurs v. State, 415 Md. 62 (2010). The circuit 2 court denied the motion.2 Mr. Whittington timely appealed and presents two questions for our review, which we have reordered: I. “Did the circuit court err in denying Mr. Whittington’s motion to suppress all evidence obtained from the warrantless use of a GPS device on his vehicle?” II. “Did the circuit court err in denying Mr. Whittington’s motion to suppress all evidence seized from 4 Cloverwood Ct., Apt. 202 and Mr. Whittington’s Dodge Stratus by finding that the good faith exception to the 4th Amendment exclusionary rule applied?” First, we hold that the GPS Order issued under CP § 1-203.1 met the requisites of a warrant under Fourth Amendment law. The GPS Order was signed by a neutral and detached magistrate; upon an application signed under oath by someone with personal knowledge of the facts; which set forth the basis for probable cause to believe that a crime had been, or was going to be committed; and identified with particularity the person about whom location information was being sought and the vehicle on which the GPS device would be installed.

We also conclude, in this age of rapidly advancing surveillance technology, that CP § 1-203.1 incisively adds the requirements that an application for an order, such as the GPS Order in this case, be limited to 30 days and describe with reasonable particularity the type of electronic device to be employed by law enforcement. Second, we affirm the circuit court’s ruling that the detectives relied in good faith on the search warrant and, therefore, we do not need to reach the question of whether the 2 Mr. Whittington entered a conditional guilty plea pursuant to Maryland Rule 2- 242(d) to Count 1 of the Criminal Indictment charging Possession of CDS with the Intent to Distribute and retained his ability to appeal the denial of the motion to suppress. The State entered nolle prosequi on the remaining counts. 3 warrant application failed to establish a nexus between Mr. Whittington’s alleged drug dealings and 4 Cloverwood Ct., Apt. 202. Discerning no error in the court’s determination that suppression was not an appropriate remedy in this case, we affirm the circuit court’s denial of Mr. Whittington’s motion to suppress.

BACKGROUND The following factual account is drawn from the evidence that was before the suppression court on September 18, 2018. Section A, recounting the initial investigation, draws upon facts presented in the application for the GPS Order that was issued by the District Court sitting in Harford County on October 8, 2016. Section B summarizes the averments set forth in the warrant affidavit in support of the warrant issued by the District Court sitting in Harford County on October 24, 2016. A. Initial Investigation and Court Order Harford County Police Department detectives Brandon Underhill and Sam Vivino were assigned to the Harford County Narcotics Task Force in 2007 and 2012 respectively.

In 2016, as part of a large-scale drug investigation, they began investigating a cocaine supplier in the region by the name of David Hall. Mr. Whittington was identified because of his association with Mr. Hall, although Det. Underhill was already familiar with Mr. Whittington because the Harford County Sheriff’s Office had arrested him in 2015 for possession of over three ounces of cocaine. On October 8, 2016, Det.

Underhill submitted an application in the District Court, signed under oath, for an order to attach an electronic monitoring device—in this case, a GPS tracking device—onto Mr. Whittington’s vehicle for 30 days. In support of the 4 application, Det. Underhill described the probable drug-related activities and interactions that the police had recently observed involving Mr. Whittington and Mr. Hall. Beginning on July 5, 2016, Detectives Underhill and Vivino surveilled Mr. Whittington and Mr. Hall as they departed the Rossville Shopping Center in Baltimore County in Mr. Whittington’s Dodge Stratus.

Det. Underhill averred that “based [on the] detectives’ familiarization with the area[,] Hall and Whittington often took very unusual courses of travel to reach destinations. It appeared that they were attempting to see if they were being followed by making loops and u-turns, which is a technique often employed by drug dealers.” “Because of these evasive driving maneuvers, surveillance was terminated.” On October 4, 2016, the detectives began a wiretap on Mr. Hall’s cell phone. The wiretap revealed that Mr. Whittington’s phone number was the “highest volume communicator” with Mr. Hall.

In the application for the GPS Order, Det. Underhill stated he believed Mr. Whittington and Mr. Hall were using coded language consistent with CDS activity and discussing locations that the detectives believed were being used to process powdered cocaine into crack cocaine. For example, on October 4, Mr. Hall called Mr. Whittington’s cell phone as they both were leaving a house located at 101 Orsburn Drive. Both men expressed concern about a marked patrol car that was in the area.

Det. Underhill noted that “[s]urveillance throughout this investigation has confirmed that Hall regularly travels to [101 Orsburn Drive] for short durations of time, consistent with CDS activity.” A few days later, the detectives observed Mr. Hall and Mr. Whittington together again in Mr. Whittington’s Stratus after they overheard Mr. Hall making arrangements to sell CDS at the Wendy’s in Joppatowne. Detectives conducted surveillance of the parking 5 lot and observed a Hyundai that was registered to the suspected purchaser’s daughter. Shortly after detectives identified the Hyundai, Mr. Hall and Mr. Whittington arrived in the Stratus.

The Hyundai followed the Stratus from the Wendy’s to the area of 952 Rumsey Place, even though “[n]o communication took place between them, which indicates that [the driver of the Hyundai] already recognized that vehicle as being associated to Hall and drug deals.” Mr. Hall and Mr. Whittington went inside 952 Rumsey Place, and the Hyundai waited out front. Ten minutes later, the Hyundai drove away, and the prospective purchaser telephoned Mr. Hall to tell him that he could not wait any longer. In view of the foregoing activity, the detectives believed that GPS monitoring of Mr. Whittington’s car would further their investigation. Det.

Underhill averred that considering the circumspect behavior he observed, including Mr. Whittington’s evasive driving maneuvers, “[y]our affiant has cause for concern if required to announce or give warning in any fashion. The purpose of utilizing an electronic tracking device is to covertly conduct surveillance so as not to jeopardize the integrity of the investigation.” B. Application for Search and Seizure Warrant In the warrant affidavit,3 the detectives averred that they began to focus their investigation on Mr. Hall and Mr. Whittington after a confidential source (“CS 1”) 3 The application for the Search and Seizure Warrant included a probable cause statement involving travel and interactions by and between Mr. Hall and Mr. Whittington. The application requested authority to search not only Mr. Whittington’s apartment, car, and person, but also: 1) Mr. Hall’s Dodge Durango; 2) Mr. Hall’s apartment located at 6032 Amberwood Road in Baltimore; 3) 2514 Hanson Road in Edgewood, a residence where Mr. Hall “ma[de] frequent short trips”; and 4) 101 Orsburn Drive in Joppa—a location police “believ[ed] . . . [wa]s being used . . . to further the drug organization of Hall and Whittington.” 6 identified a potential drug dealer as a man with the street name “Heavy.” CS 1 provided information about what vehicles “Heavy” used and the locations where he often sold and stored drugs. Data obtained from the wiretap and “other investigative techniques” helped police positively identify “Heavy” as David Hall.

A criminal history check revealed that Mr. Hall had 37 charges on his record (20 of which involved CDS) spanning the years 1988 to 2006. Throughout summer and fall of 2016, the Narcotics Task Force Members continued to surveil Mr. Hall and witnessed activity that was, in their view, consistent with ongoing drug transactions. On July 5, 2016, law enforcement observed Mr. Hall leaving his residence at 6032 Amberwood Road. He drove to a Marshalls store and went inside where he remained for approximately 20 minutes; then he came out and got into a gray Dodge Stratus.

Police checked MVA records and found the car listed to Kevin Whittington. A criminal history check then revealed that Mr. Whittington was charged and convicted of “CDS: Possession with Intent to Distribute- Narcotic” in 2005. Mr. Whittington was also arrested and charged in 2015 with possession of over 3 ounces of cocaine and $1,214 in currency. As mentioned in the application for the GPS Order, detectives continued to surveil Mr. Hall and Mr. Whittington throughout the afternoon of July 5 and observed them taking unusual routes to reach destinations and making lots of loops and u-turns so that they could not be followed.

The two men drove to a neighborhood in Middle River and remained there for 15 minutes. Then they drove to the White Marsh area off I-695, but the detectives had to terminate surveillance “due to Whittington’s driving habits.” The detectives swore 7 in their warrant affidavit that they believed that the totality of these circumstances indicated that Mr. Hall and Mr. Whittington were engaged in CDS activity. GPS surveillance disclosed Mr. Whittington’s Stratus arriving at 101 Orsburn Dr. in Joppa around 3:45 p.m. on October 11. It remained stationary at this address for nine minutes, then left.

Police had received information previously from a confidential informant that Mr. Hall maintained a stash-house in that general area. Police were able to corroborate Mr. Hall’s association with this address through visual surveillance. At 4:01 p.m., the Stratus parked at a small shopping center located at 11450 Pulaski Highway, where it remained stationary for 15 minutes, then departed. At 4:25 p.m., the vehicle returned to the Orsburn Dr. address.

The vehicle remained there until 6:12 p.m. and then returned to 4 Cloverwood Ct. where it remained for the rest of the night. On October 12, at 4:45 p.m., the Stratus traveled from 4 Cloverwood Ct. back to the Orsburn Dr. address and remained there until 6:39 p.m. The next day, Mr. Whittington’s vehicle left the Cloverwood Ct. address and traveled to various locations throughout Harford County, staying at each location for only several minutes before departing. The vehicle returned to Orsburn Dr., remained there for about 20 minutes, and then returned to 4 Cloverwood Ct. for the rest of the day.

The pattern repeated on October 14. At 5:58 p.m., the Stratus traveled to 101 Orsburn Dr. and remained there for two hours. Then, throughout the rest of the evening, the vehicle traveled to various locations and parking lots in the region. One location was in the 5300 block of King Arthur Circle, where the vehicle remained for 14 minutes, before returning to 4 Cloverwood Ct at the end of the day. 8 On October 17, Task Force units conducted visual surveillance on Mr. Whittington while he drove the Dodge Stratus.

He was first observed at a Wendy’s on Route 924 near Singer Road in Abingdon. From there, officers followed him directly to another Wendy’s in the Joppatowne Shopping Center. He remained inside for less than three minutes, then exited with an unidentified male. Neither man carried any items from the restaurant.

At 4:05 p.m., Mr. Whittington drove to the Orsburn Dr. address, where police confirmed Mr. Hall was as well. Mr. Whittington remained there for about an hour and twenty minutes. Police also observed that Mr. Whittington took unusual routes of travel on his way home to 4 Cloverwood Ct. for the evening. The investigation revealed that Apartment 202 located at 4 Cloverwood Ct. was leased by Bernard and Denotta Teagle, who lived at 3106 Laurel View Dr., Abingdon, Maryland.

Mr. Whittington’s car was also registered to the Laurel View Dr. address. Police pieced this information together with their observations recited above and deduced that Mr. Whittington’s actual place of residence was 4 Cloverwood Ct., Apt. 202. Hot on the trail, on October 24, Detectives Underhill and Vivino presented a 16- page “Application and Affidavit for Search and Seizure Warrant” in the District Court sitting in Harford County. They averred that they had “probable cause to believe that laws relating to the illegal Manufacturing, Distribution, Possession and Possession with Intent to Distribute Controlled Dangerous Substances” were being violated “in and upon certain vehicles and premises[.]” The application covered several addresses, including 4 Cloverwood Ct. and 101 Orsburn Drive.

Regarding 4 Cloverwood Ct. and the Stratus, the detectives avowed: 9 For the reasons explained . . . your affiants believe that based on Whittington’s behavior, travel patterns and habits, he is using 4 Cloverwood Court Apt 202, as a location to store cocaine. He is also using his 2002 Dodge Stratus . . . to facilitate his own drug distribution operations. The warrant was issued by a judge on the same day. The search of the Stratus revealed four baggies of cocaine totaling about eight grams.

The search of 4 Cloverwood Ct., Apt. 202, revealed paperwork addressed to “The Whittington Family”; two bags of cocaine weighing approximately 145.9 grams, one of which had many smaller baggies within it; $1,222; and ten Alprazolam pills. The police stopped Mr. Whittington at 7755 Bradshaw Road in Baltimore County, and found $1,406 and two cellular telephones on his person. He was arrested and taken into custody. C. Motion to Suppress At the hearing on Mr. Whittington’s motion to suppress in the Circuit Court for Baltimore County on September 18, 2018, Mr. Whittington’s counsel asked the court to suppress all evidence against Mr. Whittington obtained under the search warrant.

He presented three arguments in support of the motion. First, counsel argued that “there was no substantial basis” for finding probable cause to search 4 Cloverwood Ct., Apt. 202, because the apartment was located miles away from Mr. Whittington’s alleged drug activities and the police failed to establish a nexus between his alleged drug dealings and 4 Cloverwood Ct. He asserted that under Agurs v. State, 415 Md. 62 (2010), and Holmes v. State, 368 Md. 506 (2002), in the absence of direct evidence, Maryland requires that some nexus be established between the nature of the items sought and the place where they are to be seized. Comparing the facts in his case to Agurs, Mr. 10 Whittington’s counsel contended that police observed Agurs engaging in a drug transaction and that there was a greater nexus showing because the police had conclusive evidence that Agurs owned and lived in the home that was searched. By contrast, counsel argued, the police had no conclusive evidence that Mr. Whittington engaged in a drug transaction or that he owned the 4 Cloverwood Ct. apartment or that he even lived there.

The second argument advanced by Mr. Whittington’s counsel concerned the GPS monitor. He argued that a warrant was required to place the device on his client’s car and that a court order would not suffice under the Supreme Court’s holding in United States v. Jones, 565 U.S. 400 (2012). He further asserted that Maryland’s statute permitting law enforcement’s use of such a device pursuant to a court order is unconstitutional. Counsel urged that even if a warrant was not required, the application for the GPS Order did not establish probable cause that Mr. Whittington was using the Dodge Stratus to commit drug crimes.

Third, counsel argued that police cannot act in good faith reliance on a court order— only on a warrant—so the good faith exception should not apply to the evidence obtained by the police from the GPS tracking device permitted under the order. In regard to the warrant that was issued, counsel asserted that Mr. Whittington’s case was analogous to Agurs, and that the holding—that the police could not have relied in good faith on the warrant because it lacked any indicia of probable cause—applied with equal force to the detectives who obtained the warrant to search Mr. Whittington’s apartment, car and person. See 415 Md. at 83. 11 Mr. Whittington’s counsel noted that “all of the observations [in the warrant application] that allege to establish any kind of nexus is just GPS monitoring of the vehicle going from place to place.” He concluded by asserting that, “if the GPS was illegally placed, not only does the search of the vehicle fall, it also taints the search of the home, before you even get to the nexus issue[.]” The State maintained that the GPS device was lawfully placed on the car and that the subsequent warrant was reviewed by a detached and neutral judge and lawfully issued. Quoting extensively from CP § 1-203.1, the State pointed out that the statute requires, among other things, “an affidavit that sets forth the basis for probable cause and contains facts within the personal knowledge of the affiant” and provides that the “order issued under this section must name or describe with reasonable particularity the type of electronic device associated with the location information sought.” The statute also requires, the State advised, that the court believe “[t]hat a misdemeanor or felony has been committed or is about to be committed by the owner [] or user of the electronic device, or about whom the information—location information being sought.” Responding to Mr. Whittington’s reliance on Agurs, the State highlighted that a majority of the Court of Appeals did not join in part B of the Court’s decision (holding that the good faith exception to the exclusionary rule did not apply).

Consequently, the State urged that that holding is not binding on any court. The State argued that the detectives could have relied on the warrant in good faith, especially when viewed in light of the totality of the entire investigation described in the affidavit—not just the parts dealing with Mr. Whittington. The State also noted that it was reasonable for the detectives to believe 12 that Mr. Whittington lived at the 4 Cloverwood Ct. address because they determined through surveillance that the Dodge Stratus registered to Mr. Whittington returned to that address at the end of every night. During the State’s argument, the circuit court judge interjected several questions and observations, beginning with the statement, “[t]here’s no description of any drug activity, other than suspicions, but there’s no sells.” The judge did not find the facts relating to 4 Cloverwood Ct. “terribly relevant, other than that [Mr. Whittington] -- he goes to the house and he sleeps there.” The judge delivered an oral ruling, announcing first that the warrant-issuing judge did not have a substantial basis to find probable cause to issue the search warrant.

The judge explained that the warrant affidavit stated that short stays in many places were consistent with CDS activity, but the affidavit also described extended stays at the Orsburn Dr. address that were inconsistent with this theory. The judge also referred to his own comments during the State’s argument, including that there were no drug sells documented and no allegations regarding the house except that Mr. Whittington went there to sleep. Turning, however, to the good faith exception to the exclusionary rule, the judge found that the detectives relied on the warrant in good faith. The judge expounded, “there’s nothing so obvious in [the warrant] that an officer would not deem it to be reasonable based on the issuance of it by a neutral magistrate, or in this particular case District Court judge.” The judge also ruled that the court order issued pursuant to CP § 1-203.1 was proper because it was expressly authorized by the statute and “does set forth the probable cause and gives sufficient basis for the issuance of that order.” Leaving the question of the impact 13 of the Supreme Court’s decision in Jones for appellate courts to review, the court reiterated that “the officers had authority to request it and the judge had authority to issue it.

And I do find that there was probable cause for the judge to have issued [the order].” Accordingly, the judge denied the motion to suppress evidence obtained under the warrant. DISCUSSION I. Standard of Review Matters of statutory interpretation are questions of law that this Court reviews de novo. Johnson v. State, 467 Md. 362, 371 (2020). Our only deference is to the policy decisions of the General Assembly.

Phillips v. State, 451 Md. 180, 196 (2017). “We assume that the legislature’s intent is expressed in the statutory language and thus our statutory interpretation focuses primarily on the language of the statute to determine the purpose and intent of the General Assembly.” Id. As we examine the plain language, we also view it “within the context of the statutory scheme to which it belongs, considering the purpose, aim or policy of the Legislature in enacting the statute.” Johnson, 467 Md. at 372 (citation and internal quotations omitted). When called upon to review the denial of a motion to suppress, we base our decision solely on the record of the suppression hearing. Kelly v. State, 436 Md. 406, 420 (2013). “In reviewing a trial court’s decision to grant or deny a motion to suppress evidence based on a constitutional violation, we generally accept any fact findings made by the trial court unless they are clearly erroneous.

The ultimate question as to whether there was a constitutional violation is a legal question on which we accord no special deference to the 14 trial court.” State v. Copes, 454 Md. 581, 603 (2017). Similarly, whether the exclusionary rule, or one of its exceptions, should apply in a given case is also a question of law that we consider without deference to the suppression court. Id. II. “Warrantless” Surveillance by Law Enforcement?

A. Contentions on Appeal Mr. Whittington argues that it was error to deny his motion to suppress all evidence obtained from the “warrantless” use by police of a GPS device to track his movements during the fall of 2016. He contends that CP § 1-203.1 is unconstitutional on its face because it allows law enforcement to conduct searches pursuant to a court order rather than a warrant as required by the Fourth Amendment. The Supreme Court in United States v. Jones, 565 U.S. 400 (2012) addressed this precise issue and, he maintains, clarified that a warrant is required to place a GPS tracking device on a suspect’s vehicle. The State asserts that the suppression court properly determined that the court order for the GPS tracking device was lawfully issued and the evidence therefrom lawfully obtained.

The State’s principal contention is that the court order authorized by CP § 1- 203.1 is the functional equivalent of a warrant. Besides, the State contends, Mr. Whittington does not identify any meaningful differences between an “order” and a “warrant” other than the names assigned to them. Quoting from State v. Copes, the State urges that the “constitutional requirements are addressed to substance, not form.” See 454 Md. at 625 . Mr. Whittington replies that the Copes case is distinguishable because it 15 concerned the suppression of evidence obtained by police from the use of a cell site simulator, rather than a GPS tracking device.

B. Analogue or Archetype? Maryland appellate courts have not opined on the constitutionality of CP § 1-203.1. See Copes, 454 Md. at 592 . The statute was mentioned in Copes, but only to mark its passage in 2014, just after the police in that case obtained a court order under the Maryland Pen Register Statute, codified at Courts & Judicial Proceedings Article (“CJP”), § 10–4B– 01 et seq.4 Id.

In State v. Andrews, we similarly declined to decide the question as it was not squarely presented for our review. 227 Md. App. 350, 407-08 (2016). We did, however, note that the statute contains safeguards and limitations that were absent from Maryland’s pen register statute. Id. Now the question—whether an order issued under the requisites of CP § 1-203.1 satisfies the requirements of the Fourth Amendment and the Supreme Court’s holding in Jones—is before us.

At the threshold, we narrow the scope of our analysis; first, by discarding Mr. Whittington’s contention that CP § 1-203.1 is unconstitutional on its face. “A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Mr. Whittington failed to 4 The Court observed in Copes that “[u]nlike an application for a search warrant, the application to use a pen register or trap and trace device need not demonstrate probable cause that a crime has been committed or that the evidence relating to that crime will be acquired through use of the device.” Copes, 454 Md. at 591-92 . 16 mount a facial challenge to CP § 1-203.1 because he did not demonstrate that there is “no set of circumstances” under which the statute would be valid.5 Moreover, under the “canon of constitutional avoidance,” our review is guided by the “principle that statutes carry a strong presumption of constitutionality” and that “‘one attacking [the] validity [of a law passed in the exercise of police power] has the burden of affirmatively and clearly establishing its invalidity[.]’’’ Koshko v. Haining, 398 Md. 404, 426 (2007) (citations omitted). Next, we reject any categorical proposition that an “order” issued by a neutral magistrate cannot serve as the functional equivalent of a “warrant” issued by a neutral magistrate.6 We recognize that formal labels are necessary to organize the ontology of the law, but, in this case, as in most, the label is not dispositive. Judge McDonald writing for the majority in Copes noted that, when an application for a pen register order meets certain criteria, namely, that “in addition to being sworn, the application for the order demonstrates 5 Mr. Whittington posits only that law enforcement’s use of GPS tracking, under the statute, is unconstitutional and does not address, for example, the other types of location tracking that are covered by the statute.

Without mounting a challenge to law enforcement’s use of all technology authorized under the requirements of the statute and all of the circumstances in which such tracking technology may be employed, Mr. Whittington cannot attack CP § 1-203.1 on its face. See Pizza di Joey, LLC v. Mayor & City Council of Balt., 241 Md. App. 139, 198 (2019), cert. granted, 466 Md. 192 (2019). 6 Mr. Whittington presumes that there are the substantive differences between a warrant and the order that was obtained in this case but has not specified any such distinctions before the suppression court or this Court on appeal. Mr. Whittington also presents no argument on appeal in support of his bald allegation before the suppression court that the order was not issued upon probable cause. 17 probable cause, and the order satisfies the particularity requirement of the Fourth Amendment[,]” then “it does not matter whether the order is labeled a ‘warrant.’ The constitutional requirements are addressed to substance, not form.” Copes, 454 Md. at 625 . Supreme Court precedent also suggests that a court order that meets all of the Fourth Amendment requirements can function as a valid search warrant.

See Dalia v. U.S., 441 U.S. 238, 256 (1979) (“[T]he April 5 court order authorizing the interception of electronic communications occurring within petitioner’s office was a warrant issued in full compliance with these traditional Fourth Amendment requirements.”). Also, we can dispense with a lengthy exposition on the Fourth Amendment implications of law enforcement installing GPS tracking technology on a suspect’s vehicle. Jones, 565 U.S. at 404 ; Kelly v. State, 436 Md. 406, 411 (2013). In United States v. Jones, the Supreme Court held that a GPS device affixed by law enforcement on a suspect’s vehicle to monitor his movements constituted a search under the Fourth Amendment,7 and 7 Justice Scalia’s majority opinion employed the traditional, pre-Katz (Katz v. United States, 389 U.S. 347 (1967)) “trespass” rationale, although the majority noted that cases not involving physical trespass, such as the transmission of electronic signals, would remain subject to the Katz reasonable-expectation-of-privacy test.

Jones 565 U.S. at 411 . Justices Sotomayor and Alito, in their concurring opinions, expressed overarching concerns about the impact of contemporary surveillance technologies on Fourth Amendment jurisprudence. See id. at 413 (Sotomayor, J., concurring); 418 (Alito, J., concurring in the judgment). Justice Sotomayor urged the Court to update its understanding of peoples’ expectations of privacy in the information age: Awareness that the Government may be watching chills associational and expressive freedoms.

And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person 18 affirmed the D.C. Circuit Court’s decision that the warrantless use of the GPS device was unconstitutional. 565 U.S. at 404 . Indeed, the State concedes that the placement of the GPS device on Mr. Whittington’s car by police triggered Fourth Amendment protections. Although the Supreme Court in Jones did not specifically address whether police must obtain a warrant before installing a GPS tracking device on a suspect’s vehicle,8 we accept whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas–Perez, 640 F.3d 272, 285 (C.A.7 2011) (Flaum, J., concurring).

Jones, 565 U.S. at 415-16 (Sotomayor, J., concurring) (footnote omitted). Numerous articles examining the limitations of both the property-based trespass rationale as well as the Katz reasonable-expectation-of-privacy test offer recommendations for warrant requirements in this modern age of surveillance. See, e.g., Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. 527 (2017); David Gray & Danielle Citron, The Right to Quantitative Privacy, 98 Minn. L. Rev. 62 , 111 (2013).

In his book, THE FOURTH AMENDMENT in an AGE OF SURVEILLANCE, Cambridge University Press (2017), 104-129, Professor David Gray discusses various “post-Jones proposals for rethinking the Fourth Amendment.” Professor Gray forewarns that: Today, law enforcement officers and other government agents have access to a wide variety of new and emerging technologies that allow them to conduct searches and seizures without physically intruding upon our persons, houses, papers, or effects. These technologies mark the advent of our age of surveillance. Id. at 23. 8 See Carpenter v. United States, ___ U.S. ____, 138 S. Ct. 2206 , 2215 n.2 (2018) (“[N]either Jones nor Knotts purported to resolve the question of what authorization may be required to conduct such electronic surveillance techniques.”); United States v. Sparks, 711 F.3d 58, 62 (1st Cir. 2013) (noting that one question that remained open after Jones was whether placement of a GPS device “requires a warrant (instead of mere probable cause or reasonable suspicion)”); Pennsylvania v. Burgos, 64 A.3d 641, 650 (Pa. Super. 19 that the “Fourth Amendment’s prohibition against unreasonable searches is generally satisfied when law enforcement officers obtain a warrant authorizing the search in question.” Copes, 454 Md. at 618 (citing Riley v. California 573 U.S. 373 , 382 (2014)).

We proceed, therefore, to determine whether an order issued to law enforcement under CP § 1-203.1 for the purpose of installing GPS tracking technology on a suspect’s vehicle meets the warrant requirements of the Fourth Amendment. The State contends that it does, and we agree. At the finish, we resolve that the statute, among other things, demands that an application for an order be made under oath by an affiant who, based on personal knowledge of the facts, sets forth the probable cause for believing that a crime is being committed or is about to be committed, and then identifies “the individual about whom location information is being sought.” CP § 1-203.1 (b). We also observe that the statute, Ct. 2013) (“[T]he Jones Court did not address whether the government must obtain a warrant to install and use a GPS tracking device, and if not, what level of suspicion is required, reasonable suspicion or probable cause.”); see also Jason D. Medinger, Post- Jones: How District Courts are Answering the Myriad Questions Raised by the Supreme Court’s Decision in United States v. Jones, 42 U. Balt.

L. Rev. 395 , 397 (2013). Some federal appellate courts have, nevertheless, held that a warrant supported by probable cause is required for placement of a GPS tracking device on a suspect’s vehicle. United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016) (“Placement of a GPS tracking device on a vehicle is a ‘search’ within the meaning of the Fourth Amendment, requiring probable cause and a warrant.”). The Sixth Circuit has further confirmed that probable cause is a prerequisite to the issuance of a valid location tracking warrant under FRCRP 41.

United States v. Coleman, 923 F.3d 450, 454 (6th Cir. 2019) (“According to Federal Rule of Criminal Procedure 41(c)–(d), a magistrate judge must issue a tracking-device warrant if a supporting affidavit establishes probable cause to believe that the device will uncover evidence, fruits, or instrumentalities of a crime.”). 20 tailored to address modern tracking technology,9 imposes time limitations and requires concise identification of the technology that law enforcement plans to employ in collecting location data—requisites that further aid in protecting citizens from indiscriminate government surveillance. We begin our analysis by outlining some basic principles of Fourth Amendment law and the requirements of a valid warrant. C. Warrant Requirements The Fourth Amendment to the United States Constitution provides, in relevant part, that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.10 Subject to certain exceptions, searches and seizures conducted 9 Surveillance technology may be effectively embedded in everything from phones to clothes and credit cards or appended to cars and drones.

See, Rachel Levinson- Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. at 542; David Gray, THE FOURTH AMENDMENT in an AGE OF SURVEILLANCE, Cambridge University Press (2017), 27 (“Another tracking technology that is rapidly expanding governmental surveillance capacities is Radio Frequency Identification (RFID). . . . RFID tags come in a variety of shapes and sizes ranging from key fobs to tiny chips to cylinders the size of rice grains.”). 10 The parties do not present their arguments under Article 26 of the Maryland Constitution, Declaration of Rights, which states: That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted. Md. Const. Decl. of Rights, art. 26.

Despite the textual differences, Maryland courts have generally construed Article 26 as extending protections that are co-extensive with those protections afforded under the Fourth Amendment of the United States Constitution. See, 21 without a warrant are presumed unreasonable. Grant v. State, 449 Md. 1, 17 (2016) (citing Katz v. United States, 389 U.S. 347 , 356–57 (1967)). In warrantless-search and-seizure cases, the State bears the burden of overcoming the presumption that a warrant was required.

Eusebio v. State, 245 Md. App. 1, 22 (2020) (citation omitted). In the instant case, the State had the burden of establishing that the order issued pursuant to CP § 1-203.1 met the requirements of a warrant. A valid search warrant requires a law enforcement officer to present a “neutral and detached magistrate” with sworn testimony that demonstrates probable cause. Copes, 454 Md. at 618 (citing Illinois v. Gates, 462 U.S. 213, 238-40 (1983)).

It is long established that the “touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991). And reasonableness, in turn, is measured objectively by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39 (1996). e.g., King v. State, 434 Md. 472, 483 (2013) (noting that “[a]lthough we have asserted that Article 26 may have a meaning independent of the Fourth Amendment, we have not held, to date, that it provides greater protection against state searches than its federal kin”); Parker v. State, 402 Md. 372, 386, 396 , 400–01 (2007); Byndloss v. State, 391 Md. 462 , 465 n.1 (2006); Fitzgerald v. State, 384 Md. 484, 506 (2004); Upshur v. State, 208 Md. App. 383, 397 (2012); see also Dan Friedman, THE MARYLAND STATE CONSTITUTION: A REFERENCE GUIDE 62–63 (Oxford ed. 2011) (and cases cited therein). It is important to point out that the requirement of a warrant is derived from the Fourth Amendment’s command that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” See Agnello v. United States, 269 U.S. 20, 32 (1925) (“The search of a private dwelling without a warrant is, in itself, unreasonable and abhorrent to our laws.”); see also California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J. concurring) (“Although the Fourth Amendment does not explicitly impose the requirement of a warrant, it is of course textually possible to consider that implicit within the requirement of reasonableness.”). 22 Correspondingly, probable cause is ‘“a fluid concept,’ ‘incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances[.]’” Stevenson v. State, 455 Md. 709, 723 (2017) (quoting Gates, 462 U.S. at 232 ; Maryland v. Pringle, 540 U.S. 366, 371 (2003)).

Probable cause is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Patterson v. State, 401 Md. 76, 91 (2007) (citation omitted). It involves “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Pacheco v. State, 465 Md. 311, 324 (2019) (citation omitted). More challenging in the context of modern technology, is the Fourth Amendment’s particularity requirement.11 The Supreme Court has explained that under a properly 11 The GPS technology employed in the underlying order did not require much description because GPS technology is “pervasive and generally reliable.” Johnson v. State, 457 Md. 513, 530 (2018); Gross v. State, 229 Md. App. 24, 35-36 (2016)