Lindsey v. State

226 Md.App. 253

127 A.3d 627

Shaun D. LINDSEY

v.STATE of Maryland.

No. 0146, Sept. Term, 2015.

Court of Special Appeals of Maryland.

Dec. 16, 2015.

Nancy S. Forster (Forster & Johnson, on the brief) Baltimore, MD, for Appellant.

Daniel J. Jawor (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee.

Panel: KRAUSER, C.J., HOTTEN, BERGER, JJ.

HOTTEN, J.

The instant appeal arises from a decision of the Circuit Court for Baltimore County, denying appellant, Shaun Lindsey's motion to suppress information contained in an affidavit, which provided, inter alia, the basis for issuing a search warrant for his apartment. Appellant was charged by indictment with three counts of narcotics law violations, (Md.Code (2002, 2013 Repl.Vol.) § 5–612 of the Criminal Law Article ("Crim. Law"), Crim. Law, § 5–602(2), and Crim. Law, § 5–601 ), as a result of the large amounts of heroin and drug paraphernalia discovered in his apartment. Thereafter, appellant filed a motion for an evidentiary hearing to suppress information contained in the affidavit. Following a two-day motions hearing, the motion was denied. Appellant subsequently entered a conditional guilty plea pursuant to Md. Rule 4–242(d)(2) and received a ten-year sentence without parole. This appeal followed.

Appellant presents one question for our review, which has been divided into subparts as follows:

1. Did the [circuit] court err in denying [appellant's] Motion to Suppress?

A. By trespassing onto the curtilage of [appellant's] apartment to have a[K–9] dog investigate the contents of his apartment[,] did police violate [appellant's] Fourth Amendment rights[?]

B. Did [appellant] have a reasonable expectation of privacy in the curtilage around his apartment door?

C. Did the affidavit in support of the search warrant contain misleading factual information as well as uncorroborated information provided by a confidential source not shown to be reliable?

D. After redacting all of the unlawfully obtained information from the warrant application, did probable cause to search [appellant's] apartment exist?

For the reasons that follow, we shall affirm the decision of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On August 26, 2013, the circuit court issued a search and seizure warrant for appellant's apartment located in Cockeysville, Maryland, in response to an affidavit authored by Baltimore City Police Officer, Jai Etwaroo ("Officer Etwaroo"). The affidavit was largely predicated on information received from confidential informants,¹ who alleged that heroin was located in appellant's apartment, as well as information provided by an acquaintance of appellant, Anthony Thomas Hall ("Mr. Hall"), regarding appellant's alleged drug-related activities. The affidavit also included information discovered through an on-going police investigation, in which appellant was an alleged target.

Members of the Baltimore County Police Department's Narcotics Unit, in conjunction with the Baltimore City Police Department's Northeast District Operation Unit/Flex, executed the search warrant for appellant's apartment. The search was initiated by a positive alert received from a K–9 dog in the area in front of appellant's apartment door. Upon entry, detectives encountered appellant in the hallway of his apartment and subsequently discovered large amounts of heroin and drug paraphernalia within the apartment.

On September 16, 2013, appellant was indicted for possession of a large quantity of heroin, possession with intent to distribute, and possession of heroin, in violation of Crim. Law, §§ 5–612, 5–602(2), and 5–601. On December 23, 2013, appellant filed a motion requesting an evidentiary hearing to determine whether the search warrant was supported by probable cause. A two-day motions hearing was held before the circuit court on November 3 and 5, 2014. Officer Etwaroo testified on behalf of the State. Appellant, Mr. Hall, and Stephen Andersen ("Mr. Andersen"), a licensed private investigator and former Maryland State Police officer hired by appellant's counsel, were witnesses for the defense.

Officer Etwaroo testified regarding a conversation that he had with Mr. Hall shortly after his arrest on June 4, 2013, in which Mr. Hall disclosed the alleged drug-related activities of appellant,² the information provided by the confidential informants, the events that occurred prior to obtaining a search warrant, and the manner in which the warrant was executed. During Mr. Hall's testimony, he recanted the statements allegedly made during his conversation with Officer Etwaroo. Mr. Hall denied ever speaking to Officer Etwaroo after his arrest on June 4th and stated that several references in the affidavit were not true. Mr. Hall also pointed to several inaccuracies contained in the affidavit regarding his arrest for an unrelated charge. However, the circuit court concluded that Mr. Hall's contentions were not credible.³

Mr. Andersen testified regarding the security features of appellant's apartment building. Mr. Andersen also recounted that during an interview with Mr. Hall, he denied ever speaking with Officer Etwaroo. The contents of the interview were subsequently memorialized in a ten-page affidavit written by Mr. Andersen and signed by Mr. Hall.

On November 5th, after considering the evidence and testimony of the witnesses, the judge denied appellant's motion to suppress. Thereafter, appellant entered a conditional guilty plea⁴ to the count of possession with intent to distribute heroin (Crim.Law, § 5–602(2) ). On March 2, 2015, appellant was sentenced to a ten-year term of incarceration without parole and granted an appeal bond. Appellant noted a timely appeal to this Court.

Additional facts shall be provided, infra, to the extent they prove relevant in addressing the issues presented.

STANDARD OF REVIEW

In Carter v. State, 178 Md.App. 400, 408–09, 941 A.2d 1222 (2008), this Court articulated the standard followed by a judge issuing a warrant and the standard of review exercised by an appellate court reviewing the same. We opined:

Our review of the judge's decision to issue the search warrant[ ] is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application for the warrant. The substantial basis standard involves something less than finding the existence of probable cause, and is less demanding than even the familiar ‘clearly erroneous' standard by which appellate courts review judicial fact finding in a trial setting. Furthermore, [t]he judge's determination that probable cause exists is entitled to great deference. The issuing judge's probable cause determination is a practical, common-sense decision based on analyzing the affidavit in light of the totality of the circumstances. [Thus,] [an] after-the-fact scrutiny by an appellate court regarding the sufficiency of an affidavit should not take the form of de novo review. A [warrant-issuing judge's] determination of probable cause should be paid great deference by reviewing courts. Doubtful or marginal cases should be resolved in favor of the judge's decision to issue the warrant.

(internal citations and citation omitted).

Moreover, when reviewing the denial of a motion to suppress evidence, "we confine ourselves to what occurred at the suppression hearing. We view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion, here, the State." Gonzalez v. State, 429 Md. 632, 647, 57 A.3d 484 (2012) (citation omitted). Furthermore, "[w]e extend great deference to the findings of the motions court as to first-level findings of fact and as to the credibility of witnesses, unless those findings are clearly erroneous." Brown v. State, 397 Md. 89, 98, 916 A.2d 245 (2007) (citation omitted). "The [court's] legal conclusions, however, are not afforded deference, and are reviewed de novo. " Swift v. State, 393 Md. 139, 155, 899 A.2d 867 (2006) (citations omitted).

DISCUSSION

I. Substantial Basis for Probable Cause

Appellant contends that the affidavit in support of the search warrant contained misleading factual information, as well as uncorroborated information provided by a confidential source that was not shown to be reliable. Appellant relies on State v. Lee, 330 Md. 320, 624 A.2d 492 (1993) and asserts that "[t]he Lee case is particularly instructive with regard to [appellant's] case" because the affidavit in both cases failed to establish the confidential source's basis of knowledge, veracity, or reliability. However, appellant's reliance on Lee is misplaced.

"Whether information provided by an unidentified informant supports a finding of probable cause depends on a practical, non-technical ‘totality of the circumstances' approach that considers the informant's veracity, reliability, and basis of knowledge." Lee, 330 Md. at 326, 624 A.2d 492 (citations omitted); accord West v. State, 137 Md.App. 314, 329, 768 A.2d 150 (2001). See generally, Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Appellant failed to demonstrate that under the totality of the circumstances, the informants' basis of knowledge, veracity, or reliability was lacking.

The affidavit in Lee, 330 Md. at 323, 624 A.2d 492, stated, in part:

Frederick Roy Lee reportedly lived in a mobile home on Route 3, Pine Hollow Road, in Rawlings; 2) a confidential informant, or C.I. # 18–2970, had that day informed the police that Lee possessed the illegal drug LSD; 3) the informant stated that Lee ‘is supposedly receiving’ more of the drug on the same day; 4) ‘[t]his C.I. is aware of Freddy Lee being in possession of LSD th [r]ough another individual [the informant's brother] who has indicated that he can purchase LSD for the C.I.’; 5) the confidential informant would arrange to have this ‘unwitting’ individual purchase LSD from Lee at about 11:30 p.m. that evening; 6) Lee had been convicted of possession of marijuana with

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