Davis v. State

859 A.2d 1112

383 Md. 394

Robert DAVIS v. STATE of Maryland.

Damont Adams v. State of Maryland.

Nos. 59, Sept. Term 2002, 36, Sept. Term, 2002.

Court of Appeals of Maryland.

October 21, 2004.

Stacy W. McCormack, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE¹, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BELL, C.J.

The Petitioners, Robert Davis and Damont Adams, were arrested, charged with, and convicted of, possession of marijuana with intent to distribute and a handgun violation. The arrests, charges and convictions followed the search of 4011 Boarman Avenue, in Baltimore City, by officers of the Baltimore City Police Department, pursuant to a search and seizure warrant. The warrant incorporated by reference the affidavit of the police officer affiants, O'Ree and Brickus. In that affidavit, they indicated that a "rushed or no knock forced entry" of the premises would be required. The issue that this case presents is whether, where there is no statute so providing, a judge is authorized to issue a "no-knock" warrant, on the basis of which the police may make a "no-knock" entry to execute a search and seizure warrant.² The Court of Special Appeals affirmed the judgments of conviction, holding both that a "no-knock" entry was justified by the exigent circumstances detailed in the search and seizure warrant, thus affirmatively validating the propriety of the issuance of a "no-knock" warrant, and that, in any event, the "good faith" exception to the exclusionary rule "saved" the admissibility of the evidence.³ We shall reverse.

After conducting an investigation, police officers O'Ree and Brickus applied for, and obtained, a search and seizure warrant for the Boarman Avenue premises, the petitioners,⁴ and a black Nissan Sentra, which they alleged was driven by the petitioners and associated with their operation. The application for the search warrant, which included the officers' affidavit, enumerated the applicants' considerable experience,⁵ and detailed their investigation,⁶ including the conclusions they reached as a result of that investigation. Then, the applicants submitted:

"The prior experience of your Affiant [sic] indicates that narcotic/drug dealers/users have, carry, and use Firearms to protect their operations. This protection is both from the Police and other drug dealers/users who may try to seize the drugs or moneys gained from the operation. These Firearms include handguns, rifles and shotguns. These weapons allow the drug dealer/user to operate openly and freely; also enabling them to retaliate against anyone they feel threatened by. The possession of these weapons is an extension of the narcotic operation and/or conspiracy being conducted. Due to the nature of the evidence you [sic] Affiant [sic] is seeking to seize in this investigation, specifically Article 27 Section 275-302 of the Annotated Code of Maryland. Your Affiant [sic] must gain entry quickly and safely into the dwelling. If entry is stalled or delayed the controlled dangerous substance can easily and quickly be destroyed. Therefore, Your Affiant [sic] will attempt to gain entry by the rush or No-Knock forced entry. This will enable the Entry Team to recover the evidence intact and provide members of the entry team with a margin of safety from weapons, which may be on the scene."

A judge issued the search and seizure warrant. Although the warrant did not do so explicitly, no express provision to that effect being included in the warrant, because it "incorporated by reference" the affidavit of Officers O'Ree and Brickus, which stated their intention "to gain entry by the rush or No-Knock forced entry," the warrant implicitly authorized a "no-knock entry." In executing the warrant, the police neither knocked, nor announced their presence or purpose; rather, they gained entry, as they stated that they intended to do, through the use of force. The petitioners were found in a second floor bedroom, in which various weapons and drug paraphernalia also were found. In a refrigerator in that same room, the officers recovered a large ziplock baggie containing 60 smaller baggies of suspected marijuana.

The petitioners moved, pre-trial, to suppress⁷ the evidence seized during the search. Their argument was directed to, and challenged, the sufficiency of the showing the affiants made to justify the issuance of the warrant, which the petitioners characterized as a "no-knock" warrant. More particularly, the petitioners argued, inter alia, that the facts alleged in the affidavit submitted in support of the search and seizure warrant were insufficient to justify a "no-knock entry."⁸ The Circuit Court denied the motion to suppress. It held that, in light of their wealth of experience in the area of narcotics drug enforcement, as detailed in their affidavit, the police officers' determination that a no-knock entry was required was not "irrational." It reasoned:

"Somewhat more vexing is the consideration whether the warrant itself provides say a sufficient basis for a no-knock forced entry. The cases, which have been discussed by the defense, and reviewed by the Court, largely involve situations in which law enforcement officers were confronted with situations which post entry were determined either to rise to the level of exigency permitting no-knock entry or failed to meet that standard, and thus require suppression

"No cases were found in which the issue presented was, in this context, in which there was pre-raid approval for a no-knock entry on a set of facts which essentially recite the officers' general and specific experience in law enforcement, from which they extrapolate the need, as they perceive it, for a no-knock entry. It is, of course, well-settled in search and seizure law that the issuing judge is permitted to rely upon the experience of law enforcement officers and the conclusions which reasonably flow from that experience in making the probable cause determination.

"I see no reason to depart from that pattern when the examination is not the presence or absence of probable cause, but is instead the existence of exigencies meriting a no-knock entry. It is, in any event, a close[] question for the Court.

"However, crediting the affiant's experience which involves hundreds of narcotics arrests, extensive training, and considerable experience in narcotics law enforcement, I cannot conclude that their conclusion with respect to the likeliness of firearms on the property is an irrational one."

Both of the petitioners timely appealed. In separate opinions, by different panels of the court, the Court of Special Appeals affirmed the judgments of the Circuit Court. With regard to petitioner Adams, the court, in an unreported opinion, declined to consider whether the affidavit submitted in support of the application for the search and seizure warrant sufficiently alleged facts to authorize a "no-knock" warrant. Instead, it held that "even if the application for the search warrant did not set forth legally sufficient exigent circumstances justifying a `no-knock' warrant, the evidence seized should not be suppressed under the good faith exception to the exclusionary rule." The court explained:

"Although the good faith exception to the exclusionary rule has not been considered by the appellate courts of this State in the context of a `no knock' warrant, facially valid but later determined to have been issued on an insufficient showing of exigent circumstances, other courts have applied it in that context. U.S. v. Carter, 999 F.2d 182, 184-87 (7th Cir.1993); U.S. v. Moore, 956 F.2d 843, 851 (8th Cir.1992); State v. Hughes, 589 N.W.2d 912, 915-16 (N.D. 1999). We find those decisions persuasive and accordingly affirm Adams's convictions and sentences."

Petitioner Davis's conviction was also affirmed, as previously indicated. In that case, which the intermediate appellate court reported, see Davis v. State, 144 Md.App. 144, 797 A.2d 84 (2002), however, the court determined that the affidavit contained sufficient facts to establish a reasonable suspicion of the then existence of exigent circumstances and, thus, to permit a judge to make a pre-entry finding that a "no-knock" entry onto the premises was justified. Id. at 152-58, 797 A.2d at 89-93. Pointing to the experience of the affiant officers, as set forth in their affidavit, the court credited their conclusion that those involved in the drug trade often are dangerous and carry weapons and that drugs are easily and quickly destroyed when entry onto the premises is delayed or stalled. The court further observed that the affidavit indicated that large amounts of drugs had been seized as a result of information supplied by one of their sources, the reliable confidential registered source, that several people resided in the dwelling, and that the petitioner's co-defendant Adams had several previous arrests for drug violations,"⁹ id. at 158, 797 A.2d at 93, all of which, it concluded, supported its holding. Alternatively, the intermediate appellate court held that, even if the no-knock entry were illegal in that case, the good faith exception to the exclusionary rule applied to render the evidence seized in the case admissible. Id. at 159, 797 A.2d at 93. The court reasoned:

"Other courts have applied the good faith exception to cases involving the issuing of a no-knock search warrant. See United States v. Tisdale, 195 F.3d 70 (2nd Cir.1999); United States v. Carter, 999 F.2d 182 (7th Cir.1993); United States v. Moland, 996 F.2d 259 (10th Cir.1993); United States v. Moore, 956 F.2d 843 (8th Cir.1992); United States v. Gonzalez, 164 F.Supp.2d 119,(D.Mass.2001); United States v. Rivera, 2000 WL 761976, 2000 U.S. Dist. Lexis 7997 (D. Maine 2000); United States v. Brown, 69

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