Whittington v. State

KEVIN WHITTINGTON v. STATE OF MARYLAND

No. 35

COURT OF APPEALS OF MARYLAND

Argued: March 8, 2021

September Term, 2020

June 2, 2021

CRIMINAL PROCEDURE - FOURTH AMENDMENT - WARRANT REQUIREMENT - Detectives applied for and received a court order, pursuant to Md. Code Ann., Criminal Procedure ("Crim. Proc.") § 1-203.1, that authorized the placement of a tracking device on Petitioner's vehicle for thirty days. Thereafter, members of law enforcement executed a search of Petitioner's vehicle and residence, pursuant to a search warrant supported in part by location information provided through the tracking device. Petitioner challenged whether the issuance of a "court order" pursuant to Crim. Proc. § 1-203.1 violated the United States Constitution because it did not use the precise label of "warrant." The Court of Appeals held that Crim. Proc. § 1-203.1 substantially complied with the warrant requirement of the Fourth Amendment to the United States Constitution, and the label "court order" instead of "warrant" did not render the statute unconstitutional.

CRIMINAL PROCEDURE - FOURTH AMENDMENT - PROBABLE CAUSE - A warrant withstands appellate scrutiny if the issuing judge had a "substantial basis" in concluding that a search would uncover evidence of wrongdoing. Stevenson v. State, 455 Md. 709, 723-24, 168 A.3d 967, 975-76 (2017). A substantial basis may arise from reasonable inferences of criminal activity and not necessarily from direct inculpatory observations. The Court of Appeals held that the issuing judge had a substantial basis to conclude that a search of Petitioner's vehicle and residence would yield evidence of wrongdoing through GPS tracking of Petitioner's vehicle traveling to and from suspected stash houses, reasonable inferences from detectives' professional experience, and first-hand observations of Petitioner's suspected involvement in narcotics transactions, evasive driving, and confederation with a known narcotics distributor.

CRIMINAL PROCEDURE - FOURTH AMENDMENT - GOOD FAITH EXCEPTION - The good faith exception to the exclusionary rule of the Fourth Amendment to the United States Constitution permits the admission of evidence obtained pursuant to a warrant later shown to lack probable cause, so long as the officers reasonably relied on the warrant issued by a detached and neutral magistrate. United States v. Leon, 468 U.S. 897, 922-24, 104 S. Ct. 3405, 3420-21 (1984). An officer may reasonably rely on a warrant that provides some indicia of probable cause or generates disagreement among thoughtful, competent judges as to a finding of probable cause. Stevenson, 455 Md. at 729, 168 A.3d at 978-79. The Court of Appeals held, arguendo, that if the underlying warrant lacked a substantial basis to support a finding of probable cause, the detectives reasonably relied on the warrant because it contained observations of Petitioner engaged in suspected narcotics activity.

Circuit Court for Baltimore County

Case No. 03-K-17-000239

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

Opinion by 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 arrestingofficers 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 asconsistent 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...