Eusebio v. State

245 Md.App. 1

225 A.3d 507

Alvin EUSEBIO

v.STATE of Maryland

No. 3278, Sept. Term, 2018

Court of Special Appeals of Maryland.

March 2, 2020

Argued by: C. Evan Rollins (Wilson, Rollins & Brown, PA, on the brief), Elkton, MD, for Appellant.

Argued by: Menelik Coates (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.

Kehoe, Nazarian, Arthur, JJ.

Kehoe, J.

After the Circuit Court for Cecil County, the Honorable William W. Davis, presiding, denied his motion to suppress 50.2 grams of suspected heroin, appellant Alvin Eusebio entered a conditional guilty plea to one count of possession of heroin with intent to distribute. He was sentenced to five years' incarceration, with all but six months suspended, and three years of supervised probation. In his brief, Eusebio presents three questions, which we have consolidated:

Did the suppression court err in denying Eusebio's motion to suppress the drug evidence found in a police search of his person?¹

We conclude the circuit court did not err in denying the motion. Explaining why requires us to examine a rare bird in the ornithology of Maryland's constitutional criminal law: the search of a motor vehicle pursuant to a warrant.² It also gives us an opportunity to consider the proper scope of a warrant that authorizes the search of a person who happens to be present upon execution of the warrant and who may be a participant in the underlying criminal enterprise.³

The search warrant at the heart of this case authorized police to search a suspected drug dealer, his car, "and other person/s found in or upon said premises who may be participating in [the drug-distribution scheme], and who may be concealing evidence, paraphernalia, and/or Controlled Dangerous Substances." When they executed the warrant, the police searched Alvin Eusebio, a passenger in the dealer's car when it was stopped by the police. At a subsequent suppression hearing, the prosecutor took the position that the warrant gave the police an absolute right to search Eusebio simply because he "may" have been a participant in the crime. "Probable cause has nothing to do with" the validity of Eusebio's search, she said.

The prosecutor's view that the police could conduct the search of a person without probable cause is problematic. As we will explain, a determination of probable cause, whether made by a judge in issuing a warrant or later made by a police officer on the scene, is an essential prerequisite to an unconsented-to exploratory search. The notion that, because police had a warrant, probable cause "has nothing to do with" police authority to search a person is not, has never been, and—barring a tectonic change in the Supreme Court's Fourth Amendment jurisprudence—will never be the law.

Background

The investigation and the warrants

In August 2018, Detective Charles Travis of the Cecil County Drug Task Force witnessed a suspected drug deal in the parking lot of an Elkton gas station. Over the next six weeks, Travis kept tabs on the suspected dealer, Reginald McClure, tracking his whereabouts by in-person surveillance and by an electronic GPS tracker installed on McClure's car pursuant to a court order. During that time, Travis and other members of the Cecil County Drug Task Force witnessed many more suspicious parking-lot transactions. They also tracked McClure's black Infiniti as it made several trips to New York City, staying each time less than an hour before driving back home to Elkton.

On September 17, 2018, Travis applied for two search-and-seizure warrants. In his affidavit in support of that application, Travis recounted in detail what he and other members of the task force had witnessed over the course of their six-week investigation. The affidavit also included more general information about Travis's experience and training, and it outlined some commonalities between what police had theretofore observed in their investigation of McClure and what Travis had seen in prior drug-trafficking investigations. For example, Travis explained that traffickers often "front" controlled dangerous substances to their customers and maintain books and records to keep track of the debts owed to them; that these records and the controlled substances are often found inside the homes and cars of the traffickers; and that people with a history of drug distribution (like McClure) travel to "[s]ource [c]ities" like New York and Philadelphia, staying there "less time than it takes to travel there" (like McClure) "to purchase controlled dangerous substances." On the basis of all of this information, Travis averred that there was:

probable cause to believe the laws relating to the illegal Manufacturing, Distribution, Possession with intent to Distribute and Possession of controlled dangerous substances as defined in Sections 5-601 through 5-619 of the Maryland Criminal Law Article are being violated in and upon certain premises, vehicles and persons as described below:

1) Reginald Auther [sic] McClure...

2) Black 2009 Infiniti, bearing Maryland registration 3DJ2997, VIN: JNKAY01F97M462462

3) 3504 Spanish Bay Ct, Elkton, Maryland, Cecil County 21921 [detailed description of the residence omitted].

The judge who reviewed Travis's application issued two separate warrants. The caption on the first warrant identified McClure's townhouse apartment at 3504 Spanish Bay Court, Elkton, MD 21921. The caption on the second warrant identified McClure's car by its owner (McClure), its make, year and color ("Black 2009 Infiniti"), as well as its Maryland license-plate number and its vehicle identification number. In all other respects, except for the time of the authorizing judge's signature, the warrants were identical. Both listed the same suspected criminal violations and incorporated by reference the warrant application and Travis's affidavit, which set forth "[t]he grounds for search and the basis for probable cause." The command portions of both warrants were also identical, authorizing police to do, among other things, the following (emphasis added):

Enter, and search the residence, chattels, and, out buildings on the curtilage as completely described above;

Search the person of Reginald Auther [sic] McClure ..., and other person/s found in or upon said premises who may be participating in violations of the statutes before cited, and who may be concealing evidence, paraphernalia, and/or Controlled Dangerous Substances;

Open and search any safes, boxes, bags luggage, compartments, or things in the nature thereof, found in or upon said residence, chattels and, which may contain controlled dangerous substances and paraphernalia.

Seize all controlled substances, paraphernalia, papers, receipts, or other evidence relating to the crime of possession, distribution of controlled dangerous substances, found in or upon said vehicle, and chattels and or found in close proximity....

The seizures and searches at issue

The task force executed the warrants on September 18, 2018, the day after they were issued. That evening, Travis and other officers waited outside McClure's apartment, tracking his car by GPS as it made another quick trip to New York City and back to Elkton. When McClure's car pulled onto Spanish Bay Court and parked on the street in front of McClure's home, police vehicles pinned the Infiniti against the curb and the officers initiated what Travis later called a "traffic stop." As Travis approached the car, he would later testify, he saw Eusebio, theretofore unknown to Travis and the other officers, sitting in the front passenger seat, fidgeting with his hands "inside his waistband" and "in his groin area." The officers ordered both McClure and Eusebio out of the car. When the men did not exit the car on the their own, the officers forcibly removed them. As they removed Eusebio, two bags of marijuana fell from his pants to the ground. Police then searched the car and the persons of both McClure and Eusebio. Those searches revealed, among other things, 61.1 grams of suspected cocaine hidden in McClure's clothing and 50.2 grams of suspected heroin secreted in the groin area of Eusebio's pants. Both men were then arrested.

The motion to suppress

Eusebio was charged with six counts of related drug offenses. He moved to suppress the heroin evidence found during the search of his person, and a hearing on the motion was held in the Circuit Court for Cecil County. At the suppression hearing, Eusebio's counsel made it clear that he was not challenging whether the officers had probable cause sufficient to secure a warrant to search McClure's home, car or person. His challenge, he said, was to the scope of "the actual search warrants themselves." He made two arguments:

First, counsel argued, "there's actually nothing [in the warrants] that says you are authorized to search the vehicle." Counsel told the court that although he believed Travis had "intended to get two separate warrants, one for the vehicle, one for the residence," the language of the warrants, which counsel said authorized the police "to search the premises, chattels, property, curtilage thereon," did not actually authorize a search of McClure's car because it was not "on the premises" described in the warrants. Without this authorization and without a separate traffic violation, counsel argued, "[t]here was no grounds to do an initial stop."

Second, counsel asserted that, even if the warrants authorized the search of McClure's car, police lacked the factual "nexus" needed to lawfully search Eusebio under the warrant. According to counsel, because there was no probable cause to search the additional people present, the provision in the warrant commanding the search of "other persons found in or upon said premises who may be participating in violations of the statutes" made the warrant an impermissible general warrant. Under the facts of the case, counsel argued, there was not enough of a link between Eusebio and the criminal activity being investigated to permit a...