Whittington v. State

474 Md. 1

252 A.3d 529

Kevin WHITTINGTON

v.STATE of Maryland

No. 35, Sept. Term, 2020

Court of Appeals of Maryland.

June 2, 2021

Argued by Kenneth W. Ravenell (Ravenell Law, Baltimore, MD), on brief, for Petitioner/Cross-Respondent.

Argued by Jeremy M. McCoy, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Annapolis, MD), on brief, for Respondent/Cross-Petitioner.

Argued before: Barbera, C.J., McDonald, Hotten, Getty, Booth, Biran, and Irma S. Raker (Senior Judge, Specially Assigned), JJ.

Hotten, J.

Petitioner, Kevin Whittington, ("Whittington") challenged the constitutionality of evidence obtained against him, following an investigation by the Harford County Narcotics Task Force¹ ("Task Force") into suspected drug distribution activity occurring between Harford and Baltimore counties. Task Force detectives had applied for and received an "Application for Court Order" pursuant to Md. Code, Criminal Procedure ("Crim. Proc.") § 1-203.1, to install a Global Positioning Satellite ("GPS") tracking device on Whittington's vehicle. With the aid of the GPS tracking device, Task Force detectives observed Whittington engage in activities consistent with narcotics distribution in Harford and Baltimore counties. The Task Force detectives applied for and received a search warrant for certain locations, including Whittington's vehicle and suspected residence at 4 Cloverwood Ct. ("Cloverwood Court") in Essex, Baltimore County, where the detectives had probable cause to believe that Whittington either stored or manufactured narcotics.

Members of law enforcement executed the search warrant and found the presence of cocaine in Whittington's vehicle and at Cloverwood Court. Whittington was arrested and indicted in the Circuit Court for Baltimore County on two counts of Possession of a Controlled Dangerous Substance ("CDS") with Intent to Distribute, and two counts of Possession of CDS. In the circuit court, Whittington moved to suppress the evidence, arguing that the GPS tracking of his vehicle violated the Fourth Amendment to the United States Constitution² because it was issued pursuant to a "court order," and that the affidavit in support of a search warrant failed to provide probable cause to search his vehicle and the residence at Cloverwood Court, because the detectives did not provide direct evidence of CDS activity occurring within either his vehicle or that address. The circuit court rejected Whittington's argument that the court order violated the Fourth Amendment, agreed that the search warrant lacked probable cause, but determined that the good faith exception to the exclusionary rule³ of the Fourth Amendment applied because the arresting officers reasonably relied upon the search warrant. The circuit court denied Whittington's motion to suppress.

After the suppression hearing on September 18, 2018, Whittington entered a conditional guilty plea pursuant to Maryland Rule 4-242(d).⁴ Following the acceptance of the conditional plea, the circuit court found Whittington guilty and imposed a sentence of ten years’ imprisonment, suspending all but time already served and five years of supervised probation. Whittington appealed his conviction to the Court of Special Appeals, which held that the GPS court order issued pursuant to Crim. Proc. § 1-203.1 satisfied the warrant requirement of the Fourth Amendment and agreed with the circuit court that the detectives objectively relied on the search warrant in good faith. The Court of Special Appeals affirmed the denial of the motion to suppress and the conviction by the circuit court.

Whittington timely appealed to this Court. We granted certiorari on November 10, 2020 to address the following questions:⁵

1. Did [the Court of Special Appeals], in a case of first impression, err in holding that the placement and use of a GPS tracking device was legal because a GPS Order issued under [Crim. Proc.] § 1-203.1 satisfied the Fourth Amendment warrant requirement?

2. As a matter of first impression, did the issuing judge have a substantial basis for finding probable cause from exclusively circumstantial evidence of Whittington's drug distribution activities that provided a sufficient nexus to support a warrant to search his home, car, and person?⁶

3. Did [the Court of Special Appeals] err in finding that the good faith exception to the Fourth Amendment exclusionary rule applied in this case?

We answer the first and third questions in the negative, the second in the affirmative and shall affirm the judgment of the Court of Special Appeals.

FACTS AND PROCEDURAL BACKGROUND

The Underlying Incident

The following factual background comes from an affidavit sworn to by Detective Brandon Underhill of the Harford County Narcotics Task Force in an "Application for Court Order" from the District Court of Maryland sitting in Harford County. On October 8, 2016, a District Court judge granted the "Application for Court Order" and authorized a GPS tracker to monitor the whereabouts of a 2002 Dodge Stratus, registered to Whittington.

The Task Force began investigating Whittington based on his association with a suspected narcotics distributor with the street name of "Heavy." In spring 2016, through the assistance of a confidential informant, detectives identified "Heavy" as David Hall. Task Force detectives, authorized by a separate court order, initiated interception of Hall's cellular phone communications and discovered that Whittington was the most frequent contact. Task Force detectives believed Hall and Whittington used coded communications to refer to locations for "processing powder cocaine into crack cocaine for distribution."

On July 5, 2016, Task Force detectives observed Hall with Whittington in a 2002 Dodge Stratus registered to Whittington.⁷ Task Force detectives, when following Hall and Whittington, noticed evasive, circuitous driving, which the detectives described as "a technique often employed by drug dealers." On October 4, 2016, Task Force detectives observed Hall and a person later identified as Whittington meet at the residence of 101 Orsburn Drive in Joppa, Harford County. At the time, Task Force detectives intercepted a communication between Hall and Whittington in which "both [were] very concerned that a marked patrol car had been in the area while they were leaving." Task Force detectives observed Hall and Whittington traveling in the Dodge Stratus again on October 7, 2016. Task Force detectives intercepted a coded phone call from which "based on the context of the conversation, it was clear that" a drug transaction was being arranged. Based on his professional experience, Detective Underhill characterized the observed activity as consistent with narcotics possession and distribution. Detective Underhill also noted in the application for the court order that Whittington had been found in possession of over three ounces of cocaine when arrested in 2015 by the Harford County Sheriff's Office.

The application for the court order asserted that there was "probable cause that the vehicle, 2002 Dodge Stratus ... currently registered to [Whittington] with a known address of [Cloverwood Court in Essex, Baltimore County] is being used to commit violations of the laws relating to the illegal Manufacturing, Distribution, Possession with intent to Distribute and Possession of controlled dangerous substances[.]" (Emphasis omitted).

On October 8, 2016, the District Court of Maryland sitting in Harford County granted the court order authorizing the installation of a GPS mobile tracking device on Whittington's vehicle for a period of thirty days.⁸ With aid of the GPS tracker, Task Force Detectives Underhill and Sam Vivino observed Whittington engage in additional patterns of movement consonant with CDS activity. The detectives detailed their observations in an application for a search warrant to the District Court of Maryland sitting in Harford County on October 24, 2016.

The sixteen-page application for the search warrant specified four locations and two vehicles which Detectives Underhill and Vivino had probable cause to believe contained evidence relating to "the illegal Manufacturing, Distribution, Possession and Possession with Intent to Distribute [CDS.]" Two of the four locations included an apartment at 6032 Amberwood Road in Baltimore City, which detectives believed belonged to David Hall, and an apartment at Cloverwood Court in Essex, Baltimore County, which detectives believed belonged to Whittington. The two other addresses, 2514 Hanson Road in Edgewood, Harford County and 101 Orsburn Drive in Joppa, Harford County, were residences believed to belong to two other associates of Hall and Whittington involved in CDS activity. The detectives suspected these other addresses, along with Amberwood Road and Cloverwood Court, could function as "stash houses" for storing and manufacturing CDS. The two vehicles included the 2002 Dodge Stratus "currently registered to [Whittington] with a known address of [Cloverwood Court]" and a 2001 Dodge Durango "currently registered to David Hall with a known address of [Amberwood Road.]"

The affidavit's basis for searching these locations began with a summary of the investigation preceding the installation of the GPS device on Whittington's vehicle. The detectives supplemented the summary with additional details of suspected CDS activity that occurred before the "Application for Court Order" was granted. On August 10, 2016, Detectives Underhill and Vass⁹ witnessed Hall meet with another man, later identified as John Joseph Bruno, Jr., in the parking lot of a community pool on Willoughby Beach Road in Harford County. Hall and Bruno only met for two minutes before Hall pulled away. Bruno eventually left, and was followed by Detective Underhill, who observed Bruno talking on his cellular phone while driving and veering across the solid, double yellow line. Another detective from the Harford County Sheriff's Office Crime Suppression Unit stopped Bruno on MD...