Stevenson v. State

455 Md. 709

168 A.3d 967

Timothy STEVENSON

v.STATE of Maryland

No. 92, Sept. Term, 2016.

Court of Appeals of Maryland.

August 31, 2017

Argued by Katherine P. Rasin, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Appellant

Argued by Todd W. Hesel, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee

Argued before: Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty, Alan M. Wilner (Senior Judge, Specially Assigned), JJ.

Barbera, C.J.

Earlier today, we filed Moats v. State , 455 Md. 682, 168 A.3d 952, 2017 WL 3764567 (2017). That case and this one are "companion" cases; they were argued on the same day and generally address the same legal issues and sub-issues. Like this case, the lead issue in Moats involved whether the search of a cell phone seized by the police incident to an arrest was executed in reliance on a properly-issued search warrant. Our analysis focused on whether the affidavit in support of the warrant provided a substantial basis for the judge who issued the warrant to find probable cause that the cell phone contained evidence connecting the petitioner to drug distribution as well as an ongoing investigation of a sexual assault allegation. We held in Moats that the affidavit met that standard. Given that holding, we had no cause to address whether, even had the warrant not complied with Fourth Amendment standards, the police executed the warrant in "good faith" under the standards outlined in United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

In the case at bar, we hold that the warrant affidavit supplied a substantial basis for the judge who issued the warrant to find probable cause to issue it. We also take this opportunity to explain why, even if the affidavit in support of the warrant did not provide a substantial basis for the warrant-issuing judge to find probable cause to search the cell phone of Timothy Stevenson, Appellant,¹ Appellant was not entitled to suppression of the evidence obtained while executing the warrant by application of the Leon "good faith" exception to the exclusionary rule.

IProcedural History

A. The crime, initial police investigation, and warrant application process

On July 22, 2015, Corporal Matthew Johnson of the Anne Arundel County Police Department was called to the Moose Lodge in Glen Burnie. Upon arrival, he found a man lying on the ground, with a bloodied face, his pants around his ankles, and no wallet or shoes. That individual was later discovered to be David Pethel. Mr. Pethel's injuries were life threatening, requiring hospitalization for several months. On July 23, 2015, Appellant was arrested in connection with a separate assault and robbery. The police found three items on Appellant at the time of his arrest—Mr. Pethel's wallet and shoes and Appellant's cell phone.

On July 24, 2015, Detective Brian Houseman sought and received a warrant to search Appellant's cell phone for evidence pertaining to the assault and robbery of Mr. Pethel. The warrant authorized the police to search "[e]lectronic communications information" stored on the cell phone. The search produced six photographs depicting Mr. Pethel just after the assault and robbery. Appellant filed a motion to suppress the photos on the ground that the police had exceeded the scope of the warrant because the photos were not "electronic communications."

Before there was a hearing on that motion to suppress, Detective Houseman prepared a second warrant application and affidavit, again to search Appellant's cell phone. The affidavit in support of the second warrant contained language identical to the first warrant affidavit in all respects, save for the requested scope of the search of the cell phone and Appellant's acknowledgement that the cell phone belonged to him.

The facts in both affidavits stated that, "[o]n July 22, 2015 at approximately 2137hrs," Corporal Johnson "responded to the area of 1911 Crain Highway South in Glen Burnie, MD [the Moose Lodge] for a report of injured subject" and discovered Mr. Pethel lying injured on the parking lot of the Moose Lodge. Both affidavits also recounted that when the police arrested Appellant on July 23, 2015, he was wearing Mr. Pethel's sandals and carrying Mr. Pethel's wallet. The affidavits included that Appellant later admitted during an interview that he assaulted Mr. Pethel on July 22, 2015, and an assertion by the affiant, Detective Houseman, that Appellant "assaulted" and "robbed Mr. Pethel of property including his black leather billfold containing his identification and his Adidas sandals." Detective Houseman concluded:

It is through my knowledge and experience that suspects in robberies and assaults will sometimes take pictures, videos and send messages about their criminal activities on their cellular phones. I am wishing to search this phone to attempt to recover any evidence of the robbery and assault of David Matthew Pethel which may be stored on the phone of Timothy Lamar Stevenson Jr.

Attached to each affidavit was a document outlining Detective Houseman's relevant experience and training as a police officer since 2002.²

Both affidavits were limited to requesting information "stored within a black touch screen Huawei phone for the services of cellular phone [number deleted] from 1600 hours on 22 July 2015 to 1000hrs on 23 July 2015," and the second affidavit added, "which Timothy Lamar Stevenson, Jr. identified as his phone during an interview on 23 July, 2015." Unlike the first warrant, which merely sought "electronic communications," the affidavit in support of the second warrant sought the following:

Any and all information, including but not limited to all pictures, movies, electronic communications in the form of text, numeric, and voice messages, detailed phone records to include all incoming/outgoing calls and Facebook messages contained within phone.

The affidavit did not include any information about the existence of the first warrant, much less information that, upon execution of the first warrant, the police discovered the six photos of Mr. Pethel following the assault and robbery.

The second warrant application and affidavit were presented to a judge, who issued the warrant on January 6, 2016. The judge who issued that warrant was not the judge who issued the first warrant. Upon executing the second warrant, the police downloaded the cell phone data and obtained the same six photos of Mr. Pethel lying on the ground, covered in blood, with his pants around his ankles, and appearing to have been beaten.

B. The second motion to suppress and hearing

Appellant, through counsel, filed a second motion to suppress the six photos depicting the victim of the assault. Appellant made no argument in the motion or at the suppression hearing that the second warrant was in any manner tainted by the first warrant or its execution. Rather, the parties, then and now, rely for their arguments solely on the second warrant and its supporting affidavit. Further references in this opinion are therefore to the second warrant and its affidavit.

Neither party called any witnesses at the hearing on the motion to suppress. Appellant contended that the information presented in the affidavit did not provide probable cause that the evidence sought would be found on Appellant's cell phone. Relying upon Agurs v. State , 415 Md. 62, 998 A.2d 868 (2010), Appellant argued in particular that the warrant lacked specific facts connecting the crime and the cell phone. The State responded that the suppression court should take into account that it is now "common knowledge" that people take pictures and videos on their cell phones of the crimes they commit. The State also emphasized the detailed facts set forth in the affidavit, which included Appellant's admission that he assaulted Mr. Pethel.

The following day, the circuit court issued an order denying the motion. The court concluded that the warrant contained adequate facts and details to satisfy the probable cause requirement. The court explained:

Both [the first and second] warrants contain facts supported by affidavit that the victim, [Mr.] Pethel, was assaulted and that the Defendant, Timothy Stevenson "admitted to being at Frank's Den the same time as David Pethel and assaulting him at the location of the Moose Lodge ... " The affidavit also indicates that based on the officers' "knowledge and experience that suspects in robberies and assaults will sometimes take pictures, videos and send messages about their criminal activities on their cell phones." This Court must give due deference to the training and experience of the officer in this case. The judges who issued the warrants correctly did so as well.

Appellant elected a bench trial. At its conclusion, the court found him guilty of first-degree assault, second-degree assault, robbery, reckless endangerment, and theft of property valued at less than $1000. Appellant noted an appeal and, while that appeal was pending in the Court of Special Appeals, he filed a petition for writ of certiorari presenting three questions:

1. Can an officer affiant's generalized claim that suspects sometimes have evidence of crimes on their cell phones alone provide the requisite nexus between the crime alleged and the phone to be searched to support the issuance of a search warrant?

2. Did the trial court err in denying [Appellant]'s motion to suppress the fruits of a search conducted pursuant to a warrant issued for his cell phone where there was no substantial basis to find probable cause because the warrant application lacked any nexus between the alleged criminal activity and the cell phone to be searched beyond the officer affiant's generalized statement that, in his experience, "suspects in robberies and assaults will sometimes take pictures, videos and send messages about their criminal activities on their cellular phones"?

3. Does the good faith exception to the exclusionary

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