Tomanek v. State

261 Md. 694

314 A.3d 750

Karl Joseph TOMANEK

v.STATE of Maryland

No. 972, September Term, 2022

Appellate Court of Maryland.

May 1, 2024

Circuit Court for Howard County, Case No. C-13-CR-21-000043, Mary M. Kramer, Judge.

Argued by Peter F. Rose, Asst. Public Defender (Natasha M. Dartigue, Public Defender of Maryland, Baltimore, MD), on brief, for Appellant.

Argued by Menelik Coates, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

Argued before: Wells, C.J. Tang, Kendra Y. Ausby (Specially Assigned), JJ.

Opinion by Ausby, J.

On January 14, 2021, Howard County Police officers executed a search warrant at the residence of Karl Tomanek, appellant, after Tomanek was developed as a suspect in the theft of farm equipment. While the officers were driving up Tomanek’s driveway to execute the warrant, Tomanek fired a shotgun at the officers’ vehicle. Tomanek was eventually arrested, and a search of the residence revealed several shotguns, a rifle, and various ammunition. Tomanek was later charged, in the Circuit Court for Howard County, with multiple counts of attempted murder, assault, and reckless endangerment, along with related weapons offenses. Prior to trial, Tomanek filed a motion to suppress, arguing that the search warrant was facially invalid and that the police had used excessive force in executing the warrant. Following a hearing, the suppression court denied Tomanek’s motion. A jury ultimately convicted Tomanek of one count of attempted manslaughter, one count of second-degree assault, one count of use of a firearm in a crime of violence, and five counts of possession of a shotgun, rifle, or ammunition by a prohibited person. The circuit court sentenced Tomanek to a total term of twenty years of imprisonment, with all but ten years suspended.

In this appeal, Tomanek presents a single question for our review:

Did the suppression court err in denying the motion to suppress?

For reasons to follow, we hold that the suppression court did not err in denying Tomanek’s motion. Accordingly, we affirm the judgments of the circuit court.

BACKGROUND

On April 11, 2020, the Howard County Police Department received a report of a theft that had occurred at a vacant, twelve-acre farm located on Old Frederick Road (the "Frederick Road" property). Upon responding to the scene, officers spoke with the property owner, who reported that farm equipment and various other items had been taken. The owner stated that a family member had last visited the property on April 4, 2020, when the stolen items were still on the property. The owner stated that when he arrived at the property a week later, the items were gone.

[1, 2] On April 24, 2020, the police applied for a "geofence warrant" to be served on Google. "A geofence warrant authorizes the seizure of location data collected from smartphones of individuals within a particular area over a specified range of time." United States v. Rhine, 652 F. Supp. 3d 38, 66 (D.D.C. 2023). It "seeks cell phone location data stored by third-party companies like Google, which offers the Android operating system on which millions of smart phones run and offers other applications commonly used on phones running on other operating systems." Id. at 66-67. Because "[t]he scope of location data captured by a geofence is limited by geographic and temporal parameters," "geofence warrants identify the physical area and the time range in which there is probable cause to believe that criminal activity occurred." Id. at 67. "Unlike a warrant authorizing surveillance of a known suspect, geofencing is a technique law enforcement has increasingly utilized when the crime location is known but the identities of suspects is not." Id. at 66.

As the police explained in the warrant application, Google was known to collect and retain historical location information for certain mobile devices. The purpose of the warrant was to ascertain if any such device was in the area of the Frederick Road property between April 3 and April 11, 2020, when the theft was believed to have occurred. The court granted the warrant application, and a search warrant was served on Google.

On December 8, 2020, Google responded to the warrant, informing the police that nine different devices had shown activity within 100 meters of the Frederick Road property during the time period in question. Upon reviewing the information provided by Google, the police discovered that only one of those devices showed activity on and around the property on multiple dates for extended periods of time consistent with the timeframe of the theft. The police then contacted Google and discovered that the suspect device was associated with Tomanek, who lived on Shaffersville Road. Shortly thereafter, the police conducted a visual inspection of the property surrounding Tomanek’s home and observed a tractor that matched the description of one of the items stolen from the subject property.

On January 11, 2021, the police applied for, and were granted, a warrant to search Tomanek’s property for evidence related to the theft that had occurred at the Frederick Road property. On January 14, 2021, multiple police officers went to Tomanek’s residence to execute the warrant. Several of the officers were traveling in a police-issued tactical vehicle. As the officers’ vehicle was traveling up Tomanek’s driveway toward his residence, Tomanek brandished a shotgun and fired two shots, both of which struck the police vehicle’s windshield. Tomanek was soon taken into custody, and a search of his property revealed farm equipment that matched the description of the equipment stolen from the Frederick Road property.

That same day, the police obtained and executed a second search warrant at Tomanek’s property based on the events that occurred during the execution of the first warrant. In executing the second warrant, the police recovered various firearms and ammunition. Tomanek was thereafter charged with attempted murder, assault, reckless endangerment, and weapons offenses.

SUPPRESSION HEARING

Prior to trial, Tomanek filed a motion to suppress, raising two primary arguments. One argument was that the initial geofence warrant was an illegal "general warrant" because it lacked sufficient particularity and probable cause. Tomanek claimed that, because the geofence warrant directly led to the issuance of the two warrants at his property, any evidence obtained as a result of those searches should be suppressed. The other argument was that the police had used excessive force in executing the first warrant at Tomanek’s property. Tomanek claimed that, because the shooting was a direct result of that excessive force, the evidence derived therefrom, namely, the observations that shots were fired and the various firearms and ammunition found on his property, should be suppressed.

Geofence Warrant

At the hearing on Tomanek’s suppression motion, the court received into evidence the geofence warrant application and accompanying affidavit. The application was prepared by Howard County Police Detective Brian Bochinski, who had been a member of the police force since 2012 and was, at the time, working as a residential burglary detective.

Per that application, on April 11, 2020, Howard County Police officers responded to the Frederick Road property after receiving a report of a theft. Upon the officers’ arrival, the property owner reported that five farm tractors, an antique dump truck, and two large steel fuel containers were missing from the property. The owner described the property as a vacant, twelve-acre farm that included a residence, two large barns, and several outbuildings. The owner stated that a family member had last checked on the property on April 4, 2020, and observed that the stolen items were still there. The owner came to the property on April 11 and saw that the items were missing and that some of the buildings had been broken Into. The owner reported that "no trespassing" signs were posted on the property. On April 14, 2020, Detective Bochinski, while investigating the theft, contacted a witness, who reported that, at some point between April 3 and April 5, 2020, he observed an older model tractor being hauled on a trailer that was driving away from the Frederick Road property. The witness’s description of the tractor matched the description of one of the tractors stolen from the Frederick Road property.

Based on that information, the affiant requested permission to search Google’s business records for "anonymized DeviceID data" of cell phone users that reported a location within a 100-meter radius of the main residence of the Frederick Road property between April 3 and April 11, 2020.¹ The purpose of the request was to identify any devices that were in close proximity to the property during the time frame immediately preceding and following the thefts. The application noted that "anonymized DeviceID data does not contain personal identifying information about the end user," and that a second warrant "would be needed to access any personal identifying information related to an account." Regarding Google’s role in the request, the application provided the following pertinent facts:

Google is an Internet company which, among other things, provides electronic communication services to subscribers. Google allows subscribers to obtain email accounts at the domain name gmail.com. Subscribers obtain an account by registering with Google. During the registration process, Google asks subscribers to provide basic personal information. Therefore, the computers of Google are likely to contain stored electronic communications … and information concerning subscribers and their use of Google services[.] … In my training and experience, such information may constitute evidence of the crimes under investigation because the information can be used to identify the account’s user or users.

In my training and experience, email providers generally ask their

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