State v. Jenkins

941 A.2d 517

178 Md. App. 156

STATE of Maryland v. Demetrius Sylvester JENKINS.

No. 1315 Sept. Term, 2007.

Court of Special Appeals of Maryland.

February 6, 2008.

Brian S. Kleinbord (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellant.

Juan P. Reyes (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for Appellee.

Panel: DAVIS, ADKINS, JJ., and CHARLES E. MOYLAN, JR., J. (retired, specially assigned).

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned).

As if stripping an onion, we are here called upon to peel away layer after layer of judicial review and to lay each under a microscope. In the context of authorizing a search and seizure warrant, it is the warrant-issuing judge who first takes a set of facts, generally set forth in the application for the warrant, and assesses the warrant request for Fourth Amendment reasonableness. Looking over the shoulder of the warrant-issuing judge, however, is a suppression hearing judge. But then looking over the shoulder of the suppression hearing judge may be a trial judge, on a motion for reconsideration, or, in any event, a panel of intermediate appellate judges. Looking over their shoulders, in turn, may be the Court of Appeals, and looking over its shoulder hovers menacingly the Supreme Court of the United States. The criteria to be invoked as one judge looks over the shoulder of another, moreover, may shift as we move up or down the totem pole of judicial review. Highly pertinent is the sage perspective of Ogden Nash:

Even fleas have little fleas, On their backs to bite `em. And those fleas have littler fleas, And so ad infinitum.

A State Appeal

A criminal information filed by the State's Attorney for Talbot County charged the appellee, Demetrius Sylvester Jenkins, with the possession of cocaine and related charges. The appellee moved to have the physical evidence suppressed on the ground that its seizure had been in violation of the Fourth Amendment. Following a hearing on that motion on July 9, 2007, the suppression hearing court, on July 17, 2007, issued an opinion and order, directing that the evidence be suppressed.

The State appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c), which provides in pertinent part:

(c) Criminal case. — In a criminal case, the State may appeal as provided in this subsection.

....

(3)(i) In ... cases under §§ 5-602 through 5-609 and §§ 5-612 though 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights.

....

(iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.

(iv) If the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken.

(Emphasis supplied).

Accordingly, our decision in this case, should we have opted to reverse, had to have been filed no later than January 22, 2008. We did opt to reverse, and, in compliance with that deadline, we filed a decision on January 10, 2008, holding that the suppression order must be vacated and the case remanded for a trial on the merits, with the physical evidence being unsuppressed. We further indicated that a fuller opinion, explaining the basis for our decision, would follow. It now does.

Our ultimate holding that the physical evidence in this case should not have been suppressed is based on two very distinct analyses. The first, which we will address in Part I, is that the search warrant itself should never have been ruled to have been unconstitutional under the Fourth Amendment. The second analysis, which we will address in Part II, deals with the purely contingent alternative that the execution by the police of even a flawed warrant should not lead to the exclusion of evidence because of the "good faith exception" to exclusion articulated by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). Our conclusion in this regard is that the suppression hearing court erred in ruling that the "good faith exception" would not be available to fend off exclusion.

Part I:

The Warrant Itself

A. The Issuance of the Warrant

On September 29, 2006, Corporal John F. Jones, III, of the Special Operations Unit of the Easton Police Department, presented an eight-page application for a search and seizure warrant to Judge Sidney S. Campen, Jr., of the Circuit Court for Talbot County. Judge Campen issued the warrant, which directed Corporal Jones to search the person of the appellee and to seize any controlled dangerous substances and drug paraphernalia found on his person.

On October 11, 2006, Corporal Jones and other members of the Special Operations Unit seized the appellee and executed the warrant. They recovered from his left front pants pocket a quantity of crack cocaine, broken down into rocks for sale purposes. The appellee moved to have that physical evidence suppressed, and the hearing on that motion took place on July 9, 2007. No witnesses were presented at the hearing. The hearing consisted simply of the arguments of counsel and the discussion was confined to the "four corners" of the warrant application. The appellee's position was that the application "lacked sufficient credible and corroborated evidence for there to be probable cause for its issuance."

B. The Standard of Judicial Review of a Search Warrant

Before going on to the question of the "good faith exception" to the Exclusionary Rule, the suppression hearing court determined that the warrant was invalid because the warrant application had failed to establish probable cause. Our reversal of the suppression order is based, in part, on our conclusion that the suppression court evaluated the wrong predicate and applied, therefore, the wrong standard of judicial review. We find that the suppression court made a direct ruling on the sufficiency of the warrant application itself, as if it were being called upon to issue the warrant, instead of conducting a more deferential appraisal of another judge's earlier ruling on that subject, to wit, on Judge Campen's decision to issue the warrant. The direct focus was on the warrant itself rather than on the distinct question of whether Judge Campen had some substantial basis for issuing the warrant. After making his argument about the warrant itself, appellee's counsel asked for a ruling in the following terms:

I would ask Your Honor to hold that there was not probable cause for this warrant to have been issued and suppress the evidence that was obtained by the State as a result thereof.

(Emphasis supplied).

In all of the argument at the hearing, there was no mention of the "substantial basis" test. At the conclusion of the hearing, the court deferred judgment on the "good faith exception" but made a square ruling on the invalidity of the warrant itself.

First of all that there is no doubt about the fact that the warrant is invalid. It does not undertake to establish the credibility of the confidential informant. It does not undertake to indicate that any more than hearsay from a person whose veracity is not known. That's what it comes down to. I have no hesitation about saying the warrant is not valid.

(Emphasis supplied).

As recently as Greenstreet v. State, 392 Md. 652, 667-68, 898 A.2d 961 (2006), Judge Harrell stressed for the Court of Appeals the critical difference between a de novo appraisal of a warrant itself and the more deferential appraisal of the warrant-issuing judge's decision to issue the warrant.

We determine first whether the issuing judge had a substantial basis to conclude that the warrant was supported by probable cause. State v. Amerman, 84 Md. App. 461, 463-64, 581 A.2d 19 (1990). We do so not by applying a de novo standard of review, but rather a deferential one. The task of the issuing judge is to reach a practical and common-sense decision, given all of the circumstances set forth in the affidavit, as to whether there exists a fair probability that contraband or evidence of a crime will be found in a particular search. The duty of a reviewing court is to ensure that the issuing judge had a "substantial basis for ... conclud[ing] that probable cause existed." The U.S. Supreme Court explained in Gates that the purpose of this standard of review is to encourage the police to submit to the warrant process. (Emphasis supplied). See also Patterson v. State, 401 Md. 76, 89-90, 930 A.2d 348 (2007), as it quoted with approval that discussion of the appropriate standard of judicial review.

The precise section of State v. Amerman, 84 Md.App. 461, 463-64, 581 A.2d 19 (1990), to which Judge Harrell made approving reference, made it clear that the more deferential substantial-basis standard governed judicial review generally, nisi pries suppression hearing courts and appellate courts alike.

The controlling principle dictating this reversal of a suppression order is that when a judge, either at a pretrial suppression hearing or at trial, sits in review of another judge's earlier determination that probable cause existed to issue a search and seizure warrant (or an arrest warrant), the reviewing judge sits in an appellate-like capacity with all of the attendant appellate...