Whittington v. State

Kevin Whittington v. State of Maryland, No. 35, September Term 2020. Opinion by Hotten, J. CRIMINAL PROCEDURE – FOURTH AMENDMENT – WARRANT REQUIREMENT – Detectives applied for and received a court order, pursuant to Md. Code Ann., Criminal Procedure (“Crim. Proc.”) § 1-203.1, that authorized the placement of a tracking device on Petitioner’s vehicle for thirty days. Thereafter, members of law enforcement executed a search of Petitioner’s vehicle and residence, pursuant to a search warrant supported in part by location information provided through the tracking device.

Petitioner challenged whether the issuance of a “court order” pursuant to Crim. Proc. § 1- 203.1 violated the United States Constitution because it did not use the precise label of “warrant.” The Court of Appeals held that Crim. Proc. § 1-203.1 substantially complied with the warrant requirement of the Fourth Amendment to the United States Constitution, and the label “court order” instead of “warrant” did not render the statute unconstitutional. CRIMINAL PROCEDURE – FOURTH AMENDMENT – PROBABLE CAUSE – A warrant withstands appellate scrutiny if the issuing judge had a “substantial basis” in concluding that a search would uncover evidence of wrongdoing.

Stevenson v. State, 455 Md. 709, 723-24 , 168 A.3d 967, 975-76 (2017). A substantial basis may arise from reasonable inferences of criminal activity and not necessarily from direct inculpatory observations. The Court of Appeals held that the issuing judge had a substantial basis to conclude that a search of Petitioner’s vehicle and residence would yield evidence of wrongdoing through GPS tracking of Petitioner’s vehicle traveling to and from suspected stash houses, reasonable inferences from detectives’ professional experience, and first- hand observations of Petitioner’s suspected involvement in narcotics transactions, evasive driving, and confederation with a known narcotics distributor. CRIMINAL PROCEDURE – FOURTH AMENDMENT – GOOD FAITH EXCEPTION – The good faith exception to the exclusionary rule of the Fourth Amendment to the United States Constitution permits the admission of evidence obtained pursuant to a warrant later shown to lack probable cause, so long as the officers reasonably relied on the warrant issued by a detached and neutral magistrate.

United States v. Leon, 468 U.S. 897, 922-24 , 104 S. Ct. 3405, 3420-21 (1984). An officer may reasonably rely on a warrant that provides some indicia of probable cause or generates disagreement among thoughtful, competent judges as to a finding of probable cause. Stevenson, 455 Md. at 729 , 168 A.3d at 978-79 . The Court of Appeals held, arguendo, that if the underlying warrant lacked a substantial basis to support a finding of probable cause, the detectives reasonably relied on the warrant because it contained observations of Petitioner engaged in suspected narcotics activity.

Circuit Court for Baltimore County Case No. 03-K-17-000239 Argued: March 8, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 35 September Term, 2020 __________________________________ KEVIN WHITTINGTON v. STATE OF MARYLAND __________________________________ Barbera, C.J., McDonald, Hotten, Getty, Booth, Biran, Raker, Irma S. (Senior Judge, Specially Assigned), JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: June 2, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-06-02 13:28-04:00 Suzanne C. Johnson, Clerk Petitioner, Kevin Whittington, (“Whittington”) challenged the constitutionality of evidence obtained against him, following an investigation by the Harford County Narcotics Task Force1 (“Task Force”) into suspected drug distribution activity occurring between Harford and Baltimore counties. Task Force detectives had applied for and received an “Application for Court Order” pursuant to Md. Code, Criminal Procedure (“Crim. Proc.”) § 1-203.1, to install a Global Positioning Satellite (“GPS”) tracking device on Whittington’s vehicle.

With the aid of the GPS tracking device, Task Force detectives observed Whittington engage in activities consistent with narcotics distribution in Harford and Baltimore counties. The Task Force detectives applied for and received a search warrant for certain locations, including Whittington’s vehicle and suspected residence at 4 Cloverwood Ct. (“Cloverwood Court”) in Essex, Baltimore County, where the detectives had probable cause to believe that Whittington either stored or manufactured narcotics. 1 The Harford County Narcotics Task Force is a highly trained, self- governing, multi-jurisdictional entity with a mission to investigate offenses in the areas of mid to upper level drug trafficking, while supporting and facilitating cooperation and coordination among federal, state, and local law enforcement. The Harford County [Narcotics] Task Force is comprised of the Harford County Sheriff’s Office, Maryland State Police, Aberdeen Police Department, Bel Air Police Department, Havre de Grace Police Department, Drug Enforcement Administration, and the Harford County State[’]s Attorney’s Office[.] Office of Media and Public Relations, News Release, Harford County Sheriff’s Office (Jan. 23, 2018), https://harfordsheriff.org/news/releases/harford-county-narcotics-task-force- makes-significant-heroin-arrest-and-cash-seizure-from-a-baltimore-city-dealer-linked-to- several-overdoses-in-harford-and-surrounding-counties/, archived at https://perma.cc/VM4Z-Y5WS. Members of law enforcement executed the search warrant and found the presence of cocaine in Whittington’s vehicle and at Cloverwood Court.

Whittington was arrested and indicted in the Circuit Court for Baltimore County on two counts of Possession of a Controlled Dangerous Substance (“CDS”) with Intent to Distribute, and two counts of Possession of CDS. In the circuit court, Whittington moved to suppress the evidence, arguing that the GPS tracking of his vehicle violated the Fourth Amendment to the United States Constitution2 because it was issued pursuant to a “court order,” and that the affidavit in support of a search warrant failed to provide probable cause to search his vehicle and the residence at Cloverwood Court, because the detectives did not provide direct evidence of CDS activity occurring within either his vehicle or that address. The circuit court rejected Whittington’s argument that the court order violated the Fourth Amendment, agreed that the search warrant lacked probable cause, but determined that the good faith exception to the exclusionary rule3 of the Fourth Amendment applied because the arresting 2 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. 3 The United States Supreme Court created the “exclusionary rule” to prevent the admission of evidence obtained in violation of the Fourth Amendment.

Franks v. Delaware, 438 U.S. 154, 165 , 98 S. Ct. 2674, 2681 (1978) (discussing the exclusionary rule and its creation in Weeks v. United States, 232 U.S. 383 , 34 S. Ct. 341 (1914)). The exclusionary rule is “designed to safeguard Fourth Amendment rights generally through its deterrent effect [on future unlawful police conduct], rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348 , 94 S. Ct. 613, 620 (1974) (footnote omitted). The good faith exception to the exclusionary rule permits the admission of evidence later determined to be obtained in violation of the Fourth Amendment because the United States Supreme Court recognized that law enforcement (continued . . .) 2 officers reasonably relied upon the search warrant. The circuit court denied Whittington’s motion to suppress.

After the suppression hearing on September 18, 2018, Whittington entered a conditional guilty plea pursuant to Maryland Rule 4-242(d).4 Following the acceptance of the conditional plea, the circuit court found Whittington guilty and imposed a sentence of ten years’ imprisonment, suspending all but time already served and five years of supervised probation. Whittington appealed his conviction to the Court of Special Appeals, which held that the GPS court order issued pursuant to Crim. Proc. § 1-203.1 satisfied the warrant requirement of the Fourth Amendment and agreed with the circuit court that the detectives objectively relied on the search warrant in good faith. The Court of Special Appeals affirmed the denial of the motion to suppress and the conviction by the circuit court.

(. . . continued) cannot be deterred from engaging in future unlawful police conduct if law enforcement obtained and executed a warrant in objective good faith. United States v. Leon, 468 U.S. 897, 920 , 104 S. Ct. 3405, 3419 (1984). This Court has “declined to decide whether Maryland law generally recognizes an [equivalent] exclusionary rule[.]” Parker v. State, 402 Md. 372, 396 , 936 A.2d 862, 876 (2007) (emphasis added); see infra note 17. 4 Maryland Rule 4-242(d)(2) provides in pertinent part: With the consent of the court and the State, a defendant may enter a conditional plea of guilty. The plea shall be in writing and, as part of it, the defendant may reserve the right to appeal one or more issues specified in the plea that (A) were raised by and determined adversely to the defendant, and, (B) if determined in the defendant’s favor would have been dispositive of the case.

The right to appeal under this subsection is limited to those pretrial issues litigated in the circuit court and set forth in writing in the plea. 3 Whittington timely appealed to this Court. We granted certiorari on November 10, 2020 to address the following questions:5 1. Did [the Court of Special Appeals], in a case of first impression, err in holding that the placement and use of a GPS tracking device was legal because a GPS Order issued under [Crim. Proc.] § 1-203.1 satisfied the Fourth Amendment warrant requirement? 2.

As a matter of first impression, did the issuing judge have a substantial basis for finding probable cause from exclusively circumstantial evidence of Whittington’s drug distribution activities that provided a sufficient nexus to support a warrant to search his home, car, and person?6 3. Did [the Court of Special Appeals] err in finding that the good faith exception to the Fourth Amendment exclusionary rule applied in this case? We answer the first and third questions in the negative, the second in the affirmative and shall affirm the judgment of the Court of Special Appeals. FACTS AND PROCEDURAL BACKGROUND The Underlying Incident The following factual background comes from an affidavit sworn to by Detective Brandon Underhill of the Harford County Narcotics Task Force in an “Application for Court Order” from the District Court of Maryland sitting in Harford County.

On October 8, 2016, a District Court judge granted the “Application for Court Order” and authorized a GPS tracker to monitor the whereabouts of a 2002 Dodge Stratus, registered to Whittington. 5 We have reordered the questions presented for analytical consistency and clarity. 6 The State posed this question on conditional cross-petition. 4 The Task Force began investigating Whittington based on his association with a suspected narcotics distributor with the street name of “Heavy.” In spring 2016, through the assistance of a confidential informant, detectives identified “Heavy” as David Hall. Task Force detectives, authorized by a separate court order, initiated interception of Hall’s cellular phone communications and discovered that Whittington was the most frequent contact. Task Force detectives believed Hall and Whittington used coded communications to refer to locations for “processing powder cocaine into crack cocaine for distribution.” On July 5, 2016, Task Force detectives observed Hall with Whittington in a 2002 Dodge Stratus registered to Whittington.7 Task Force detectives, when following Hall and Whittington, noticed evasive, circuitous driving, which the detectives described as “a technique often employed by drug dealers.” On October 4, 2016, Task Force detectives observed Hall and a person later identified as Whittington meet at the residence of 101 Orsburn Drive in Joppa, Harford County. At the time, Task Force detectives intercepted a communication between Hall and Whittington in which “both [were] very concerned that a marked patrol car had been in the area while they were leaving.” Task Force detectives observed Hall and Whittington traveling in the Dodge Stratus again on October 7, 2016.

Task Force detectives intercepted a coded phone call from which “based on the context of the conversation, it was clear that” a drug transaction was being arranged. Based on his professional experience, Detective Underhill characterized the observed activity as 7 Maryland Vehicle Administration records included a picture of Whittington along with a listed address of 3106 Laurel View Drive, in Abingdon, Harford County. Based on their observations, Task Force detectives concluded that Whittington’s real address was 4 Cloverwood Court in Essex, Baltimore County. See infra note 10. 5 consistent with narcotics possession and distribution.

Detective Underhill also noted in the application for the court order that Whittington had been found in possession of over three ounces of cocaine when arrested in 2015 by the Harford County Sheriff’s Office. The application for the court order asserted that there was “probable cause that the vehicle, 2002 Dodge Stratus . . . currently registered to [Whittington] with a known address of [Cloverwood Court in Essex, Baltimore County] is being used to commit violations of the laws relating to the illegal Manufacturing, Distribution, Possession with intent to Distribute and Possession of controlled dangerous substances[.]” (Emphasis omitted). On October 8, 2016, the District Court of Maryland sitting in Harford County granted the court order authorizing the installation of a GPS mobile tracking device on Whittington’s vehicle for a period of thirty days.8 With aid of the GPS tracker, Task Force Detectives Underhill and Sam Vivino observed Whittington engage in additional patterns of movement consonant with CDS activity. The detectives detailed their observations in an application for a search warrant to the District Court of Maryland sitting in Harford County on October 24, 2016.

The sixteen-page application for the search warrant specified four locations and two vehicles which Detectives Underhill and Vivino had probable cause to believe contained evidence relating to “the illegal Manufacturing, Distribution, Possession and Possession 8 The parties do not dispute that the court order was issued pursuant to Crim. Proc. § 1-203.1. We note, while not required by statute, but with an eye towards preventing future constitutional challenges pursuant to a similar court order, that nowhere on the face of the application for court order did the detectives state that the placement of a GPS tracking device on Whittington’s vehicle was authorized by Crim. Proc. § 1-203.1. 6 with Intent to Distribute [CDS.]” Two of the four locations included an apartment at 6032 Amberwood Road in Baltimore City, which detectives believed belonged to David Hall, and an apartment at Cloverwood Court in Essex, Baltimore County, which detectives believed belonged to Whittington.

The two other addresses, 2514 Hanson Road in Edgewood, Harford County and 101 Orsburn Drive in Joppa, Harford County, were residences believed to belong to two other associates of Hall and Whittington involved in CDS activity. The detectives suspected these other addresses, along with Amberwood Road and Cloverwood Court, could function as “stash houses” for storing and manufacturing CDS. The two vehicles included the 2002 Dodge Stratus “currently registered to [Whittington] with a known address of [Cloverwood Court]” and a 2001 Dodge Durango “currently registered to David Hall with a known address of [Amberwood Road.]” The affidavit’s basis for searching these locations began with a summary of the investigation preceding the installation of the GPS device on Whittington’s vehicle. The detectives supplemented the summary with additional details of suspected CDS activity that occurred before the “Application for Court Order” was granted.

On August 10, 2016, Detectives Underhill and Vass9 witnessed Hall meet with another man, later identified as John Joseph Bruno, Jr., in the parking lot of a community pool on Willoughby Beach Road in Harford County. Hall and Bruno only met for two minutes before Hall pulled away. Bruno eventually left, and was followed by Detective Underhill, who observed Bruno 9 Detective Vass’s first name does not appear in the record. 7 talking on his cellular phone while driving and veering across the solid, double yellow line. Another detective from the Harford County Sheriff’s Office Crime Suppression Unit stopped Bruno on MD Route 152, along the western border of Harford County.

A Maryland State Police trooper arrived and conducted a search of the vehicle with a drug sniffing dog, which uncovered a previously opened bag of marijuana and an unopened bag of what appeared to be recently packaged cocaine. Two months later, the detectives observed Hall and Bruno meet again at 101 Orsburn Drive. The detectives noted “that both Hall and Whittington travel to this location frequently,” which they believed was “being used . . . to further the drug organization of Hall and Whittington.” The affidavit additionally documented Hall’s criminal history, which included seventeen different charges relating to CDS activity. The detectives’ particularized description of Whittington’s behavior was more exhaustive.

On July 5, 2016 and October 7, 2016, detectives recounted the same observations made in the “Application for Court Order[,]” including that Hall and Whittington engaged in circuitous, “paranoid” driving, and made short, frequent stops at locations throughout the region. On October 11, 2016, detectives began GPS surveillance of Whittington’s vehicle. Whittington’s vehicle traveled to 101 Orsburn Drive in Harford County and was stationary for nine minutes before traveling to a small shopping center at 11450 Pulaski Highway in Baltimore County where it remained for fifteen minutes. Whittington’s vehicle returned to 101 Orsburn Drive where it was stationary for approximately 90 minutes before returning to Cloverwood Court at the end of the day.

The detectives stated “[t]his is consistent with drug activity.” 8 On October 12, 2016, detectives tracked Whittington’s vehicle engaged in similar activity. It traveled from Cloverwood Court to 101 Orsburn Drive where it remained for two hours before departing. The next day, the vehicle left Cloverwood Court and traveled to various locations in Harford County before returning to 101 Orsburn Drive for a short stint. The vehicle traveled to 1105 Old Mountain Road in Joppa, Harford County, remaining at the location for three minutes before returning to 101 Orsburn Drive.

After twenty minutes, Whittington’s vehicle departed again and eventually returned to Cloverwood Court. On October 14, 2016, Whittington’s vehicle traveled again to 101 Orsburn Drive, where it remained for two hours. Throughout the day, the vehicle traveled to and made brief stops at various locations and parking lots in the region. The affidavit specifically noted a fourteen-minute stop at the 5300 block of King Arthur Circle in Baltimore County.

The vehicle returned to Cloverwood Court at the end of the day. The Task Force conducted in-person surveillance of Whittington on October 17, 2016. Task Force units observed Whittington enter a Wendy’s fast-food restaurant in Abingdon, Harford County for less than three minutes. Whittington left the location with another unidentified male and neither man carried any items from the restaurant.

The two men traveled together to the same small shopping center at 11450 Pulaski Highway that Whittington had visited for nine minutes on October 11 and remained there for ten minutes. Whittington dropped the unidentified male at the 5300 block of King Arthur Circle. 9 Whittington returned to 101 Orsburn Drive, where Hall was also present in his Dodge Durango vehicle. Whittington then took an unusual route to return to Cloverwood Court.10 The District Court of Maryland sitting in Harford County granted the search warrant on October 24, 2016, the same day of application.11 Members of law enforcement stopped Whittington while he was driving in Baltimore County and found $1,406 and two cellular phones on Whittington’s person. A search of the Dodge Stratus revealed eight grams of cocaine.

A search of Cloverwood Court revealed ten Alprazolam pills,12 $1,222 in cash, and 145.9 grams of cocaine with a street value of $14,590. The State charged Whittington by indictment in the Circuit Court for Baltimore County with Possession with Intent to Distribute Cocaine, Possession of Cocaine, and 10 The detectives concluded that Cloverwood Court was Whittington’s home: A check through databases including Maryland Department of Assessments and Taxation showed that the real property of 4 Cloverwood Court [] is owned by Bernard and Denotta Teagle, with an address of 3106 Laurel View Drive in Abingdon. Detectives immediately recognized 3106 Laurel View Drive as Whittington’s Motor Vehicle Administration address. He has also been seen at that location on multiple occasions.

Based on the totality of the circumstances, your affiants believe that [] Whittington’s actual residence is at 4 Cloverwood Court[]. 11 A District Court judge has territorial jurisdiction to issue a search warrant for execution in any Maryland county. Birchead v. State, 317 Md. 691, 699 , 566 A.2d 488, 492 (1989). 12 Alprazolam, often sold under the brand name, Xanax, is most commonly used to treat anxiety disorders. Mayo Clinic, Alprazolam (Oral Route) (Apr. 1, 2021), https://www.mayoclinic.org/drugs-supplements/alprazolam-oral-route/description/drg- 20061040, archived at https://perma.cc/Q9QT-GSA2. A person may not possess Alprazolam, a controlled dangerous substance, “unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice[.]” Md. Code Ann., Criminal Law § 5-601 (a)(1). 10 Possession of Alprazolam.

Whittington tendered a conditional guilty plea to the charge of Possession with Intent to Distribute Cocaine. The circuit court found Whittington guilty and imposed a sentence of ten years’ imprisonment, suspended all but time already served and five years of supervised probation. The State entered the remaining counts nolle prosequi. Legal Proceedings A. Suppression Hearing On September 18, 2018, in the Circuit Court for Baltimore County, Whittington filed a motion to suppress all evidence recovered from the search of Cloverwood Court and the 2002 Dodge Stratus.

Whittington presented three arguments in favor of suppression. First, the search warrant lacked probable cause because Task Force detectives could not provide a “substantial basis” for searching Cloverwood Court located miles away from the alleged drug activities. The Task Force detectives offered no direct evidence that Whittington resided at the Cloverwood Court address, let alone engaged in drug activity there. Second, GPS tracking of Whittington’s vehicle violated the Fourth Amendment, because it was conducted pursuant to a court order, and not a warrant, as the Fourth Amendment prescribes.

The search authorized by a court order issued pursuant to Crim. Proc. § 1.203.1 therefore violated the Fourth Amendment. Third, the good faith exception to the exclusionary rule of the Fourth Amendment did not apply in this case because the exception has been limited to warrants, not court orders. Even if it applied to court orders, Whittington argued that it cannot apply in this case because the underlying search lacked probable cause. 11 The circuit court denied the motion to suppress the evidence obtained pursuant to the warrant.

The circuit court agreed with Whittington’s substantial basis argument in that the warrant did not provide facts giving rise to an inference of CDS activity at Cloverwood Court.13 According to the circuit court, the detectives did not document alleged drug sales at Cloverwood Court. Rather, the affidavit demonstrated potential drug activity at 101 Orsburn Drive. The circuit court stated that the suspicion of drug activity at Cloverwood Court “seems inconsistent” with the suspected CDS activity documented in the affidavit. The circuit court further explained: There’s no description of any drug activity, other than suspicions, but there’s no sells.

There’s no covert activity. Yes, it possibly could be, but it also could possibly be something else. . . . [T]he only drug activity I saw in here was the very first thing where there was Mr. Hall meeting with an individual, [] by the officers’ statement, they couldn’t see what they were doing. They didn’t see any transactions going on in -- in the car. And the person drove off.

They stop them on a traffic violation and they got one bag of cocaine. There’s -- there’s no mention of anything that . . . Mr. Hall was the distributor of that cocaine, but even though there’s no evidence that he did. But there’s . . . no allegations that Mr. Whittington was ever around any drugs.

They -- they didn’t see any sales. They didn’t see any hand to hands. They didn’t see any, uh, no[t] a lot of foot traffic coming out of the house. I -- I -- I’m troubled [] by this.

I mean, there’s a lot of facts given, but a lot of the facts I don’t find to be terribly relevant, other than that he -- he goes to the house and he sleeps there. What -- what activity is there about the house? (Emphasis added). The circuit court nonetheless found that the detectives relied on the warrant in good faith. “[T]here’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 13 The circuit court neither discussed, nor reached, the question of whether there was a deficient substantial basis to search Whittington’s vehicle. 12 District Court judge.” The circuit court concluded that the court order was lawfully issued pursuant to Crim.

Proc. § 1-203.1, which expressly authorizes court orders by statute. The circuit court left the question of the statute’s underlying constitutionality for appellate review. B. Opinion of the Court of Special Appeals The Court of Special Appeals held that the court order issued pursuant to Crim. Proc. § 1-203.1, authorizing the placement of a GPS tracking device on Whittington’s vehicle, satisfied the warrant requirement of the Fourth Amendment and that the circuit court correctly denied the motion to suppress.

The Court rejected Whittington’s facial constitutional challenge of Crim. Proc. § 1-203.1, because Whittington failed to “demonstrate that there is ‘no set of circumstances’ under which the statute would be valid.” Kevin Whittington v. State, 246 Md. App. 451, 471 , 230 A.3d 148, 161 (2020) (citing United States v. Salerno, 481 U.S. 739, 745 , 107 S. Ct. 2095, 2100 (1987)) (footnote omitted). The Court also dismissed Whittington’s contention that a “court order” can never satisfy the warrant requirement of the Fourth Amendment. “[I]n this case, as in most, the label is not dispositive.” Id. at 472, 230 A.3d at 160 . According to the Court, the constitutionality of a court order hinges on its substance, not form.

Id., 230 A.3d at 161 (citing State v. Copes, 454 Md. 581, 625 , 165 A.3d 418, 444 (2017)). The United States Supreme Court, in United States v. Jones, 565 U.S. 400 , 132 S. Ct. 945 (2012), held that placement of a GPS tracker constituted a search, but according to the Court, Jones never 13 specified that a warrant was required to utilize a GPS tracker, let alone a document formally labeled as a warrant. Whittington, 246 Md. App. at 473-74 , 230 A.3d at 162 . The Court next determined that Crim.

Proc. § 1-203.1 complied with the Fourth Amendment. According to the Court, a plain text analysis demonstrates “that the statute embodies all of the warrant requirements inhering in the Fourth Amendment.” Id. at 481, 230 A.3d at 166 . The statute enumerates the basis for probable cause, including facts within the personal knowledge of the affiant. The written application for a court order must be signed and sworn to by the applicant and accompanied by an affidavit.

It also requires applicants to “describe with reasonable particularity” the type of device used, the user of the device, the identifying number of the device, and grounds for obtaining the information. Id. at 482 , 230 A.3d at 166 . Finally, the statute provides time limitations and notice requirements. The Court of Special Appeals also surveyed sister jurisdictions that have enacted similar statutes regulating the use of GPS technology by law enforcement.

While these states have not confronted the precise question of whether the term “court order” categorically precludes compliance with the Fourth Amendment, in the Court’s estimation, none of the appellate court decisions from these states have struck down a statute because of its particular nomenclature. Id. at 485 , 230 A.3d at 169 . The Court concluded that the court order issued pursuant to Crim. Proc. § 1-203.1 satisfied the requirements of the Fourth Amendment.

The Court of Special Appeals also upheld the circuit court’s decision to deny the motion to suppress. The Court determined that the good faith exception to the warrant 14 requirement applied and assumed without deciding that the District Court did not have a substantial basis to find probable cause. The Court explained that evidence obtained in violation of the Fourth Amendment, including an insufficient showing of probable cause, is ordinarily inadmissible. Id. at 491, 230 A.3d at 172 .

The good faith exception allows such evidence to be admitted “if the executing officers acted in objective good faith with reasonable reliance on the warrant.” Id., 230 A.3d at 172 (citation omitted). The Court of Special Appeals noted that this Court has applied the good faith exception even in cases where “there was no substantial basis for probable cause.” Id. at 493 , 230 A.3d at 173 (citing Patterson v. State, 401 Md. 76, 82 , 930 A.2d 348, 351-52 (2007)). The Court examined Agurs v. State, 415 Md. 62 , 998 A.2d 868 (2010), because of the parties’ “extensive[] brief[ing,]” on the case, but ultimately distinguished Agurs from the instant case on the facts. Whittington, 246 Md. at 498, 230 A.3d at 177 .

Unlike Agurs, in which a “single assertion” of suspected criminal activity raised an issue of whether law enforcement could have objectively and in good faith relied on the warrant, the detectives in this case detailed extensive observations of Whittington’s behavior that appeared consistent with CDS activity. Id. at 495 , 230 A.3d at 175 (quoting Agurs, 415 Md. at 89 , 998 A.2d at 884 ). The Court of Special Appeals also pointed to the detectives’ professional experience in investigating and interdicting narcotics distribution as further substantiation of probable cause, and by extension, reasonable reliance on the warrant. Id. at 497, 998 A.2d at 176 .

Most importantly, the level of detail in the sixteen-page search warrant affidavit for Whittington was qualitatively distinct from the warrant in Agurs, which was 15 rife with “wholly conclusory statements[.]” Id. at 500, 230 A.3d at 177 (quoting Agurs, 415 Md. at 79 , 998 A.2d at 878 ). The Court of Special Appeals concluded that the detectives’ reliance on the warrant was reasonable, “[t]hus the circuit court [] was correct in applying the good faith exception and denying [] Whittington’s motion to suppress.” Id. at 500, 230 A.3d at 178 . DISCUSSION Standard of Review When reviewing the constitutionality of a statute, “[t]he basic rule is that there is a presumption” that the statute is valid. Galloway v. State, 365 Md. 599, 610 , 781 A.2d 851, 857 (2001) (citations omitted). “We are reluctant to find a statute unconstitutional if, ‘by any construction, it can be sustained.’” Id. at 611 , 781 A.2d at 858 (quoting Beauchamp v. Somerset Cty.

Sanitary Commission, 256 Md. 541, 547 , 261 A.2d 461, 463 (1970)). If, however, a statute violates a “mandatory provision” of the United States Constitution, “we are required to declare such an act unconstitutional and void. [. . .]” Id., 781 A.2d at 858 (citation omitted). Whittington, as the party attacking Crim. Proc. § 1-203.1, has the burden of establishing its unconstitutionality.

Id., 781 A.2d at 858 . “In reviewing the rulings of the suppression courts, we rely solely upon the record developed at the suppression hearings.” Kelley v. State, 436 Md. 406, 420 , 82 A.3d 205, 213 (2013). “We view the evidence and inferences that may be drawn therefrom in the light most favorable to the party who prevails on the motion, here, the State.” Id., 82 A.3d at 213 . “We defer to the motions court’s factual findings and uphold them unless they are 16 shown to be clearly erroneous.” Lee v. State, 418 Md. 136, 148 , 12 A.3d 1238, 1246 (2011). “The ultimate question as to whether there was a constitutional violation [of the Fourth Amendment] is a legal question on which we accord no special deference to the trial court.” Copes, 454 Md. at 603 , 165 A.3d at 431 . The application of whether the good faith exception to the exclusionary rule of the Fourth Amendment applies also is a legal issue that we review without deference. Id., 165 A.3d at 431 . Contentions of the Parties Whittington contends that the Fourth Amendment strictly requires that only a formal document labeled as a “warrant” satisfies the warrant requirement.

The language of the Fourth Amendment specifically uses the term “Warrants[,]” which according to Whittington, necessarily precludes the use of functional equivalents, such as court orders. For Whittington, if the Fourth Amendment permitted functional equivalents, “there would be nothing to prevent law enforcement from using a court order meeting the requirements of [Crim. Proc.] § 1-203.1 or some other statute, instead of a warrant, to search an individual’s home.” Whittington argues that equating Crim. Proc. § 1-203.1 substantively with a warrant demonstrates the redundancy of the statute—law enforcement could and should have applied for a warrant instead.14 14 During oral argument Whittington’s counsel also assumed that this analysis would render unconstitutional all other court orders supported by probable cause and authorized by statute, such as the Maryland Wiretap Act, codified at Md. Code Ann., Courts and Judicial Proceedings (“Cts. & Jud.

Proc.”) §§ 10-401-414. Oral Argument at 4:52, Kevin Whittington v. State of Maryland, 471 Md. 264 , 241 A.3d 860 (2020) (No. 35), (continued . . .) 17 Whittington also argues that the Court of Special Appeals’ interpretation of Crim. Proc. § 1-203.1 goes against the majority of states that require a “warrant” and not a “court order” to authorize the placement of a GPS tracking device on a vehicle. According to Whittington, the fact that no other states have addressed the difference in nomenclature between order and warrant demonstrates “no authoritative support for the position taken by the [Court of Special Appeals] in this case.” Whittington next contends that the Court of Special Appeals erred in applying the good faith exception because “the warrant lacked any indicia of probable cause due to there being a clear lack of nexus between the nature of the items sought and the place where they were to be seized.” In short, Whittington argues that the detectives could not have reasonably relied on the warrant when the warrant lacked a substantial basis for probable cause.

The United States Supreme Court, in Leon, suggested four instances where the good faith exception does not apply.15 Of the four instances, Whittington argues that the (. . . continued) https://www.courts.state.md.us/sites/default/files/import/coappeals/media/2020/coa20210 308caseno35.mp4 [hereinafter “Oral Argument”], archived at https://perma.cc/9LQ7- NRFJ. 15 The Leon Court suggested the following four instances: (1) the magistrate was misled by information in an affidavit that the officer knew was false or would have known was false except for the officer’s reckless regard for the truth; (2) the magistrate wholly abandoned his detached and neutral judicial role; (3) the warrant was based on an affidavit that was so lacking in probable cause as to render official belief in its existence entirely unreasonable; and (continued . . .) 18 following applies to this case: “a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” 468 U.S. at 923 , 104 S. Ct. at 3421 (citation omitted). Whittington asserts that the plurality opinion in Agurs, which concluded that “no reasonably well-trained police officer could have relied in good faith on the warrant authorizing the search of Agurs’ home[,]” controls the outcome of the case because Whittington argues that there is even less of a basis in the instant case than in Agurs. 415 Md. at 87-88 , 998 A.2d at 883 . At least in Agurs, according to Whittington, the police saw Agurs enter and leave his home on several occasions; whereas the detectives, in this case, never saw Whittington enter and leave his registered home address, rather only a location suspected as being Whittington’s home. Whittington contends that the detectives could, at most, only conclude that Whittington slept at Cloverwood Court.

Even if Agurs is not controlling, Whittington argues that because the affidavit lacked facts indicative of criminal activity, the detectives should have known there was deficient probable cause to search Cloverwood Court. The State counters that there is no merit or legal support for Whittington’s claim that a document must be labeled a “warrant” to satisfy the Fourth Amendment. This Court previously explained in Copes that when the constitutional criteria authorizing the issuance (. . . continued) (4) the warrant was so facially deficient, by failing to particularize the place to be searched or the things to be seized, that the executing officers cannot [reasonably] presume it to be valid. Patterson, 401 Md. at 104 , 930 A.2d at 365 (quoting Leon, 468 U.S. at 923 , 104 S. Ct. at 3421 ). 19 of a warrant “are met, it does not matter whether the order is labeled a warrant.

The constitutional requirements are addressed to substance, not form.” 454 Md. at 625 , 165 A.3d at 444 . The United States Supreme Court has interpreted the warrant requirement of the Fourth Amendment to contain only three requirements: probable cause in sworn testimony, describing items or persons to be searched or seized with particularity, and presented to a detached, neutral magistrate. Dalia v. United States, 441 U.S. 238, 255 , 99 S. Ct. 1682, 1692 (1979). According to the State, the United States Supreme Court has never read a warrant label requirement into the Fourth Amendment, and in Dalia, had no problem affirming a court order’s substantive compliance with the warrant requirement of the Fourth Amendment.

See id. at 256 , 99 S. Ct. at 1692 (“[t]he April 5 court order authorizing the interception of oral communications occurring within petitioner’s office was a warrant issued in full compliance with these traditional Fourth Amendment requirements.”). According to the State, a court order issued pursuant to Crim. Proc. § 1-203.1 contains the same substantive requirements of a warrant. Whittington does not identify any meaningful distinction between a court order and a warrant.16 A court order issued pursuant to Crim.

Proc. § 1-203.1 complies with the requirements of the Fourth Amendment. 16 We note that Whittington’s counsel admitted during oral argument before this Court that other than nomenclature, there is no substantive difference between a court order and a warrant. Judge Irma S. Raker asked, “you are agreeing [] that both [a court order and warrant] require the same information?” Oral Argument at 6:58. To which Whittington’s counsel replied, “[T]he order requires the same information that a warrant would require— I do agree with that.” Oral Argument at 7:08. 20 The State also argues that the District Court had a substantial basis for finding probable cause from exclusively circumstantial evidence of Whittington’s CDS activities. Even if the District Court lacked a substantial basis for issuing a warrant, the State contends that the Court of Special Appeals properly affirmed the circuit court’s finding that the officers acted in good faith reliance on the validity