Maurice Ford was convicted by a jury in the Circuit Court for Baltimore County of possession of heroin with intent to distribute and possession of that substance. The jury acquitted Ford of illegal possession of a registered firearm. After sentencing, Ford filed this appeal in which he makes two major arguments:
(1) That the motions judge erred when he ruled that he (Ford) did not have standing to contest a warrantless search of a Chevrolet Cavalier automobile that he drove regularly;
(2) That the motions judge erred when he denied a motion to suppress evidence seized from appellant’s home by police officers who entered the home without first knocking or announcing.
I
Ford does not contest the sufficiency of the evidence produced by the State to convict him. Nor does he contend that the trial judge committed any error. According to appellant, the motions judge alone erred. As a consequence, only a brief outline of the background facts is necessary.
Ford lived at 2212 Firethorn Road in Baltimore County with his fiancé, Althea Fisher, at all times here relevant. Ms. Fisher’s four children also live at that address. The Baltimore County police received an anonymous tip in February 2007 advising that drug related activities were taking place at 2212 Firethorn Road. As a result of that tip, the police began surveillance of the house and its occupants. Police officers also began retrieving and inspecting garbage from the house “at the place of normal [trash] collection.” As a result of three of these trash inspections, the police retrieved a total of thirty-four empty gel capsules containing heroin powder residue; also recovered from the trash were marijuana stems.
Two detectives, who were members of the Baltimore County Police Department, applied for a search and seizure warrant for Ford’s house. The application for the warrant detailed what had been seized during the trash inspections and set forth Ford’s past criminal arrest history, which dated back to 1989. According to the application, Ford’s criminal history included two convictions for drug-related crimes and numerous charges that had been
nolle prossed
by the prosecuting
authorities.
A “no knock” search warrant was issued on May 23, 2007, by a District Court judge. In addition to allowing the police officers to enter the home without knocking, the warrant permitted the police officers to search the property located at 2212 Firethorn Road as well as Ms. Fisher and Ford. The warrant did not permit the search of any automobile owned or operated by Ford or Ms. Fisher.
On June 6, 2007, at approximately 8:56 p.m., the “no knock” warrant was executed by members of the Baltimore County Police Department. Once inside the house, the officers located Ford in the living room and secured him. Detective Glenn Wagner then asked Ford if there were any drugs in the house. Ford responded in the negative. Disbelieving that answer, the officers began to search the house. Detective Frank Masson recovered baggies and empty gel capsules with white powder residue from the pocket of a leather jacket hanging inside a basement closet. Detective Wagner also searched a closet on the main floor of the residence and found, in the pocket of a coat, 43 gel caps filled with white powder that was later determined to be heroin.
Officer Jeff Newell went outside the house to search a Chevrolet Cavalier that the police had seen Ford driving before the search commenced. When, in relation to the recovery of the drugs from the house, the search of the car commenced is not shown in the trial record or the record in the suppression court.
Officer Newell searched the passenger compartment of the Chevrolet Cavalier and found no incriminating evidence. He next opened the trunk, where he found a beige coat. In the pocket of that coat, Officer Newell found a small digital scale and a loaded 25 caliber handgun.
II
Ford filed pre-trial motions to suppress several items of evidence. Only two of those motions are here relevant. One motion was to suppress the evidence recovered as a result of the search of the Chevrolet Cavalier. Another motion sought to suppress the evidence seized from Ford’s home on the grounds that the police entered that home without first knocking or otherwise announcing their presence.
A. The Search of the Chevrolet Cavalier
At the outset of the suppression hearing, the prosecutor announced that he did not concede that appellant had standing to challenge the search by Baltimore County police officers of the Chevrolet Cavalier. The State and Ford then stipulated: 1) that the vehicle searched was titled in the name of Althea Fisher, and 2) that Ford was seen, shortly before the execution of the search warrant, parking the Chevrolet Cavalier.
Ford testified at the suppression hearing that he and Ms. Fisher had “been together” for seven years and that she was the mother of his two-year old child. In 2001, while Ford was in prison, Ms. Fisher purchased the 2001 Chevrolet Cavalier that was later searched by the police. Ford started driving the Cavalier after he got out of prison in 2002. In his words, he
While living together from 2002 until the time of his arrest on June 6, 2007, Ford and Ms. Fisher pooled monies from their paychecks in order to pay expenses. The bills that were paid out of that pool of money included car payments on the Chevrolet Cavalier.
In 2006, Ms. Fisher purchased a Dodge van. Thereafter, Ford continued to regularly drive the Cavalier while Ms. Fisher usually drove the van. On cross-examination, the prosecutor asked Ford if he considered the Chevrolet Cavalier to be his car. Ford answered: “I can’t consider it my car because it’s not mine.”
Ms. Fisher left the house driving the Dodge Caravan on the date the search warrant was executed. She was arrested by the police not long after she left. Prior to leaving, the van had been parked in front of the house. In order to save the parking spot for his fiancé, Ford got in the Cavalier and drove it from the rear of the residence to the front and parked it where Ms. Fisher’s van had been parked. The search of Ford’s house took place within one hour thereafter.
The motions judge ruled that Ford did not have standing to challenge the search of the Chevrolet Cavalier because the car belonged to Ms. Fisher. According to the motions judge, although Ford had an “expectation of privacy” while driving the automobile with Ms. Fisher’s permission, he did not have such an expectation when he was not driving because Ms. Fisher could say to any third party that he or she also had permission to drive the car.
B. The “No Knock” Entry
At the hearing to suppress the evidence seized from Ford’s home, no witnesses testified. The prosecutor and defense attorneys agreed, in response to the motions judge’s questions, that the police entered Ford’s home without knocking or otherwise giving Ford any notice that they were about to enter.
The court admitted into evidence, as State’s exhibit No. 1, the search and seizure warrant that allowed the police to search the premises. Also admitted was the application for the warrant, which was signed by Detective Wagner and his colleague, Detective H.L. Ellingson. In the application for the search warrant, the detectives stated that the police had received an anonymous tip in February 2007, advising that “heroin is being used and sold” at 2212 Firethorn Road. The application also said that heroin and marijuana residue had been found through inspections of the trash at Ford’s home. It also spelled out, in detail, Ford’s criminal record.
According to the application for the warrant, appellant had been arrested fourteen times between June 4, 1989, and April 22, 2004. In Baltimore City he had been convicted of felony theft (10/11/91); unlawful manufacturing of controlled dangerous substances (10/8/97); felony theft (9/14/98); and unlawful possession of a controlled dangerous substance. In Baltimore County, he had been convicted of unauthorized use of an automobile in September 19, 1991. Furthermore, he had been arrested for numerous other charges, such as third-degree burglary, second-degree assault, carrying a deadly weapon with the intent to injure, and possession of controlled dangerous substances with intent to distribute. All of the last mentioned charges were
nolle prossed
or otherwise dismissed prior to trial. In the application for the search warrant, the affiants also said “that guns and violence are commonly associated with narcotics and narcotic dealers .... ” and that “[d]ue to the background check
At the suppression hearing, defense counsel acknowledged that one of the reasons that often justify the issuance of a “no knock” warrant is concern about the safety of the police officers who are called upon to execute the search warrant. Movant’s counsel contended, however, that the writers of the application for the warrant assumed, without any basis, that “somebody who was involved with drugs, possesses a gun.” Counsel also argued that Ford’s past criminal history, as set forth in the application for the warrant, did not show that Ford was “in any way violent or presented any sort of danger to the police officers.” 1 The prosecutor countered by arguing that the number of his prior convictions demonstrated that Ford was a “career criminal.”
In denying the motion to suppress the evidence seized in the house, the motions judge said, in relevant part:
It seems to me that the warrant provided probable cause to believe that this defendant was in fact selling heroin. And was selling it from that location that was sought to be searched. Now, the police knew that that’s what they were dealing with. They then pulled the record of Mr. Ford. And Mr. Ford’s record ... goes back to ... 1989 with continual contacts with the police for various criminal activity. Some of which is distribution of drugs ... There are allegations of robbery with a dangerous and deadly weapon. Or wearing a handgun. Carrying a handgun. More than one of those ... I think the norm is for heroin dealers to arm themselves, particularly where they keep their stash of drugs.
In this case I think specifically the police were justified in doing what they did. And in executing the warrant in the way they executed it. And I don’t think Mr. Ford’s privacy was invaded one iota more or less by the way they executed the warrant in this case.
Ill
Ford’s Standing to Protest the Search of the Car 2
The issue of whether a non-owner of an automobile, who is not physically present when the automobile is seized,
has standing to challenge the search of the vehicle has been discussed in only one prior Maryland appellate decision. That decision is
Coomes v. State,
The reason that so little evidence on the standing issue was presented in
Coomes
was because the State waited until after the evidence concerning probable cause to search had been presented and after the defendant had argued the probable cause issue, before bringing up its contention that the defendant had no standing to challenge the search.
Id.
at 383-84,
Brenda Coomes was arrested in connection with a breaking and entering.
Id.
at 380,
The police filed an application for a search warrant asking for permission to search the Ford Bronco as well as the premises [208 McGlocthlin Road] where Brenda Coomes and her companion had been located. Despite what was said in the application for the warrant, the search warrant itself authorized the police to search the premises, but not the Ford Bronco.
Id.
at 380-81,
While Coomes was in custody, the police executed the search warrant. They searched not only the premises at 208
McGlocthlin Road but also searched the Ford Bronco that was parked in front of the house.
Id.
at 381,
At the suppression hearing, a detective testified that Ms. Coomes told him that the vehicle she was driving that day was a 1986 Ford Bronco that belonged to her husband. A detective also testified that he did not know in whose name the Bronco was titled. Furthermore, he could not recall whether Ms. Coomes’ keys, which he confiscated, included keys to the Bronco.
Id.
at 395,
In reviewing the standing issue, this Court ruled that, at most, the testimony established that Ms. Coomes was driving the vehicle that the police searched on the day that she was arrested.
Id.
at 396,
It may very well be that [Ms. Coomes], had she presented evidence on the point, could have established her standing to challenge the search of the Bronco; however, on this record, we are unable to say that the court was truly erroneous in ruling that she did not have standing.
Id.
at 396,
The history of standing under the Fourth Amendment was summarized in Graham v. State,47 Md.App. 287 ,421 A.2d 1385 (1980), in an opinion authored by Judge Wilner, who now sits on thisCourt, when he was on the Court of Special Appeals. After exploring its history, Judge Wilner succinctly opined:
[T]he “standing” question is a preliminary one that should be resolved, for if appellant has no lawful right to contest the respective searches, the question of their validity becomes moot. Putting the cart before the horse may sometimes be easier to do, but it does make the ultimate journey considerably more difficult. When may a person be heard to complain that his Fourth Amendment right has been violated?
Judge Wilner then answers his question by stating:
The considerations here are not so simple as they may appear at first glance. Even under Rakas [u Illinois,] (439 U.S. 128 ,99 S.Ct. 421 ,58 L.Ed.2d 387 (1978)), the precepts of civil property law, though highly relevant, are not necessarily controlling. The legitimacy of one’s expectation of privacy is in large measure a function of its reasonableness, and that, in turn, is determined to some extent by the elements of time, place, and circumstance.
(Internal citations omitted) (emphasis added).
Ms. Coomes, unlike Ford, made an exceedingly feeble effort to prove standing. In Coomes, there was neither direct nor circumstantial evidence introduced that showed that Ms. Coomes had permission of the owner to drive the vehicle on the date it was searched or at any other time. Moreover, unlike the subject case, there was no proof that the non-owner drove the vehicle on a regular basis.
This Court, in
Colin and Heath v. State,
Gordon Colon was a passenger in a motor vehicle owned by Enterprise Rental Car Company (“Enterprise”).
Id.
at 398,
Deputy Houck asked Heath if he minded if he (Deputy Houck) searched the vehicle. According to Deputy Houck, Heath gave permission.
Id.
at 398-99,
In resolving the issue of whether Heath had standing to challenge the search of the vehicle, Judge Alpert, speaking for this Court, mentioned a number of prior cases dealing with standing in situations where the defendant was driving the vehicle before a traffic stop and a search of the vehicle follows immediately thereafter. In doing so, the Court noted, as a general principle, “that an individual who uses an automobile with the permission of the owner normally does have standing.” For that proposition, the Court cited the following cases:
United States v. Rubio-Rivera,917 F.2d 1271 , 1275 (10th Cir.1990) (explaining that “[w]here the defendant offers sufficient evidence indicating that he haspermission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle.”); United States v. Garcia, 897 F.2d 1413 , 1417-18 (7th Cir.1990) (noting that the defendant who claimed to have borrowed the automobile from the owner did have standing to challenge the search of that automobile); United States v. Blanco,844 F.2d 344 , 349 (6th Cir.), cert. denied,486 U.S. 1046 ,108 S.Ct. 2042 ,100 L.Ed.2d 626 (1988) (holding that defendant, listed as an authorized driver on the rental agreement, has standing to object to search of door panels of rented automobile); United States v. Miller,821 F.2d 546 , 548-49 (11th Cir.1987) (holding that defendant had standing to challenge search of automobile borrowed from a friend); United States v. Portillo,633 F.2d 1313 , 1317 (9th Cir.1980) (holding that the defendant had standing to challenge the search of an automobile because he “had both permission to use his friend’s automobile and the keys to the ignition and the trunk, with which he could exclude all others, save his friend, the owner.”), cert. denied,450 U.S. 1043 ,101 S.Ct. 1763 , 1764,68 L.Ed.2d 241 (1981); United States v. Posey,663 F.2d 37 , 41 (7th Cir.1981) (concluding that the defendant “had an expectation of privacy in an automobile owned by his wife and over which he was exercising exclusive control pursuant to her permission at the time of the search.”); cert. denied,455 U.S. 959 ,102 S.Ct. 1473 ,71 L.Ed.2d 679 (1982). Additionally, it is established that the renter of an automobile has an expectation of privacy in it and therefore can assert standing. United States v. Tragash,691 F.Supp. 1066 , 1070 (S.D.Ohio 1988).
Id.
at 402-03,
Judge Alpert distinguished the cases just cited on the grounds that Heath “was the driver of a rented automobile which he borrowed from the lessee,” but was not “listed as an authorized driver on the rental agreement,” nor did Heath “produce evidence of any independent agreement with Enterprise allowing him to drive the automobile lawfully.”
Id.
at 403,
In the case sub judice, the State contends that the rule that an individual who uses an automobile with the permission of the owner ordinarily does have standing, applies only when the defendant is driving at the time the seizure (the stop) of the automobile is made and the search is conducted immedi ately thereafter. The basis for this argument is that in cases where the driver is present when the automobile is seized, the driver is in control of the automobile at the time the alleged constitutional violation occurs, whereas in cases like the one sub judice, the driver lacks control because he or she is no longer present. The State has cited no case in which the court has found this distinction determinative and our research has uncovered none.
We have found five non-Maryland cases that illustrate the point that a defendant can have standing to challenge the warrantless search of an automobile notwithstanding the fact that the defendant was
In the
J.R.M.
case, a sixteen year old boy (“J.R.M.”) was suspected of having murdered a thirteen-year old girl.
The question ... becomes one of whether he [J.R.M.] must show more to establish standing as to the search of the Corvair than he would have been required to do in the case of a search of the bathroom in the house where he lived. In our view, the standard for establishing standing should be and is the same in both cases. In Katz the Supreme Court considered the issue of standing in regard to intrusion into the privacy of a public telephone booth. The test applied was the same as it would have been if a residence had been involved. We perceive no reason for a different approach or test where the search is of an automobile. It is true that the Supreme Court in Chambers v. Maroney, supra,[399 U.S. 42 ,90 S.Ct. 1975 ,26 L.Ed.2d 419 (1970) ] and Carroll v. United States,267 U.S. 132 ,45 S.Ct. 280 ,69 L.Ed. 543 , relaxed under certain circumstances the requirements as to a right of search and seizure of motor vehicles because of their mobility, but those holdings do not imply that any difference in the requirements for standing should exist in the search of a home, office, phone booth, or automobile.
If we should deny standing to appellant herein under the factual situation that existed, we logically also would be required to deny standing to the wife of the owner of an automobile who had no title thereto but who used the car regularly, as did the appellant here. We do not believe that such denial of standing would accord with the recent United States Supreme Court decisions on that question. Accordingly, we hold that appellant did have standing to seek to suppress the evidence obtained by search and seizure of the Corvair.
The facts in the
J.R.M.
case, insofar as standing is concerned, are quite analogous
We are concerned here with an automobile search. Nothing is better established in Fourth Amendment jurisprudence than the distinction between one’s expectation of privacy in an automobile and one’s expectation when in other locations. We have repeatedly recognized that this expectation in “an automobile ... [is] significantly different from the traditional expectation of privacy and freedom in one’s residence.” United States v. Martinez-Fuerte,428 U.S. 543 , 561,96 S.Ct. 3074 , 3084,49 L.Ed.2d 1116 (1976). In United States v. Chadwick, supra, 433 U.S., [1] at 12, 97 S.Ct., [2476] at 2484[,53 L.Ed.2d 538 (1977)], the distinction was stated more broadly.
Id.
at 153-54,
Therefore, to the extent that the Missouri Supreme Court based its J.R.M. decision on the belief that no difference (insofar as standing is concerned) exists between a challenge to standing when the search of a car is at issue than when the search is of a residence, the reasoning of the J.R.M. opinion is not persuasive.
In
United States v. Burke,
The Government’s contention that the appellant is without standing to protest the search of the van rests upon the fact that record ownership and licensing of the van was in the name of the appellant’s brother. However, the appellant testified that the van was really his, and that ownership and registration were in his brother’s name only for the purpose of acquiring credit. The appellant also made an offer of proof to produce five witnesses who would verify the appellant’s claim that the van was really his. The District Court declined this offer but also explicitly stated that it did not find the appellant’s standing to be in issue. The court concluded that regardless of who owned the van, defendant used it extensively. The Supreme Court has stated:
It is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Jones v. United States,362 U.S. 257 , 266,80 S.Ct. 725 ,4 L.Ed.2d 697 (1960).
As a result of his repeated use of the van, the appellant had a reasonable expectation of privacy and freedom from search in the use of the van. See Katz v. United States, 389 U.S. 347 ,88 S.Ct. 507 ,19 L.Ed.2d 576 (1967). The situation here is analogous to that of the tenant’s right to freedom from search. See Stoner v. California,376 U.S. 483 ,84 S.Ct. 889 ,11 L.Ed.2d 856 (1964). The District Court properly concluded that there were no standing obstacles involved in the instant case.
Id. at 1170-71 (emphasis added).
The above-quoted language in Burke, which we have emphasized, provides support for Ford’s position that he had standing in this case.
In
Pollard, and Brown v. Indiana,
the defendants were charged with murder and kidnaping.
Appellant Pollard’s situation is somewhat different [from that of his co-defendant]. The searched automobile was apparently owned by Pollard’s wife. The question then is whether or not Pollard has established that he had a legitimate expectation of privacy in an automobile owned by his wife. As the State points out, Pollard did not establish that his use of the vehicle was within his wife’s permission. However, the Rakas [v Illinois] court pointed out that in defining the scope of Fourth Amendment interest’s “arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control.” Rakas, supra, at439 U.S. 128 , 99 S.Ct. [at] 430, 58 L.Ed.2d [at] 401. Thus the legitimacy of a defendant’s privacy expectations in the searched premises will not always turn upon whether his name appears on the deed, lease or certificate of registration. Surely, a husband’s expectation of privacy while in an automobile titled to his spouse is as legitimate as that of the wife. This is not to say that other factors, not present in this case, such as divorce or separation, would not affect the legitimacy of a husband or wife’s privacy interest in property owned by his or her spouse. We hold only that under the facts of this case, appellant Pollard had a legitimate expectation of privacy in his wife’s automobile such that any unreasonable search and seizure of the vehicle would amount to aninfringement of his Fourth Amendment rights.
Id. at 503 (emphasis added).
Ford’s evidence in regard to standing was at least as strong as that of James Pollard. Although Ford was not married to the owner, he (unlike Pollard) proved that he helped pay for the vehicle and regularly used it with the owner’s permission.
The defendant in
Soto
was charged with burglary of an automobile repair shop.
State v. Soto,
The case of
U.S. v. Whitehead,
In this case, Defendant was not the owner of the vehicle that was searched. However, during the hearing, Mrs. Whitehead testified that Defendant provided money for fuel and maintenance of the vehicle, kept personal items in the vehicle, and used the vehicle as his primary mode of transportation. Mrs. Whitehead also stated that the vehicle was Defendant’s vehicle and the only reason Defendant did not drive the vehicle was because he did not possess a driver’s license. Defendant had authority to have others drive him places in the vehicle.
Defendant has provided evidence that shows that he had continuous access to the vehicle, unlimited use of the vehicle, and the ability to exclude others from the vehicle. See U.S. v. Rusher, 966 F.2d [868] at 875 [4th Cir., 1992]; United States v. Fernandez,430 F.Supp. 794 , 798 (N.D.Cal. 1976) (reasonable expectation of privacy when defendant made substantial contributions to the rent, was free to come and go, maintained residence and visited frequently); [United States v. Sanchez,943 F.2d 110 (1st Cir.1991) ] 114 (driver had no reasonable expectation of privacy in vehicle absent a history of regular use or a more intimate relation ship with the vehicle’s owner).Moreover, here Defendant provided regular maintenance on the vehicle and was married to the owner. Given the totality of the circumstances, Defendant has established a reasonable expectation of privacy in the vehicle. Accordingly, the Court finds that Defendant has standing to challenge the validity of the search.
Id.
The facts in this case are analogous to — but not exactly the same as — those in Whitehead. Although not married to the owner, Ford had a long-time romantic relationship with the owner and, prior to his arrest, had used the car regularly for almost five years.
Ford presented strong circumstantial evidence that he possessed a key to the vehicle because, it will be recalled, he moved the vehicle from the rear of the house to the street in front of the house shortly after his flaneé left the premises and prior to her return. Also, the inference that Ford had a key is supported by the fact that he used the vehicle “all the time.”
Ford’s money was used to purchase the vehicle and he lived in the house where the vehicle was kept. Given the totality of the circumstances, the most important of which was that Ford proved that he drove the vehicle regularly with the permission of the owner, appellant met his burden of proving that he had a reasonable expectation of privacy in the vehicle.
In the alternative, the State argues that even assuming, arguendo, that Ford had standing to challenge the search, the search was nonetheless legal because the police had probable cause to search.
The State had the burden of proving that the warrantless search of the vehicle was legal. But, because the motions judge did not require it to do so, the State presented no evidence at the suppression hearing. Thus, we have no idea as to whether the State is correct when it argues that the police had probable cause to search the vehicle. Moreover, even if we looked outside the suppression hearing record, and looked at evidence produced at trial, which we normally are not allowed to do (see footnote 2, supra), we still would not be able to determine whether probable cause existed.
Because the motions court erred when it concluded that Ford lacked standing, we shall order a limited remand pursuant to Md. Rule 8-604(d).
3
Upon remand, the court should hold a new suppression hearing and determine whether the police had probable cause to search the vehicle owned by Ford’s fiancé, but used regularly by Ford.
See Parker v. State,
Ill
The warrant that authorized the search of Ford’s residence was issued after the enactment of Maryland Code (2001, 2006 Repl.Vol.), Criminal Procedure Article (“C.P.”) section 1-203(a). C.P., section l-203(a)(2)(ii) and (iii) read, in pertinent part:
(ii) An application for a search warrant may contain a request that the search warrant authorize the executing law enforcement officer to enter the building, apartment, premises, place, or thing to be searched without giving notice of the officer’s authority or purpose, on the grounds that there is reasonable suspicion to believe that, without the authorization:
1. the property subject to seizure may be destroyed, disposed of, or secreted; or
2. The life or safety of the executing officer or another person may be endangered.
(iii) If warranted by application as described in paragraph (2) of this subsection, authorize the executing law enforcement officer to enter the building, apartment, premises, place, or thing to be searched without giving notice of the officer’s authority or purpose.
(Emphasis added.)
The portion of the statute just quoted became effective on October 1, 2005, and was enacted in direct response to the Court of Appeals’ decisions in
Davis and Adams v. State,
Ford argues that the portion of the search warrant allowing the police to enter his home without knocking or otherwise announcing their presence was invalid and therefore the items seized from his home should have been excluded from evidence. In support of that argument, he argues, as he did in the circuit court, that the application for the warrant contained
“nothing more than generic statements about drug traffickers and presented no evidence that Mr. Ford posed a threat to officer safety.” He also contends that although the requirement “that particularized circumstances establishing a reasonable suspicion of exigency be shown does not mandate that officers show, to an absolute certainty, that their safety is jeopardized,” the officers who apply for the warrant must nevertheless be able to at least “point to some articable reason why in a particular case, the preference for knocking and announcing their presence would not be appropriate in this case”
(citing State v. Carroll,
In
Hudson,
as here, the police obtained a warrant authorizing a search of the defendant’s home.
The social costs of applying the exclusionary rule to knock- and-announce violations are considerable----and the extant deterrence against them are substantial-incomparably greater than the factors deterring warrantless entries when Mapp [v. Ohio,367 U.S. 643 ,81 S.Ct. 1684 ,6 L.Ed.2d 1081 (1961) ] was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.
Id.
at 599,
In
State v. Savage, supra,
Judge Moylan, speaking for this Court, provided a scholarly analysis of the exclusionary rule in general and the
Hudson
case in particular.
The exclusion of evidence----is not a sanction randomly available for any police misconduct. Before evidence may be excluded, it must be shown that the evidence was, in fact, the product of the Fourth Amendment violation in issue, not simply that it was recovered after the violation. Hudson v. Michigan explained that the evidence recovered from the warranted search in that case would have been recovered even if the police had delayed their entry for another 20 or 30 seconds, rather than entering the house prematurely. The evidence was produced as a result of the search warrant, not as a result of the “knock and announce” violation. The evidence would have been recovered even if the police had not jumped the gun and entered a few moments earlier than they should have entered. That it might have been recovered 15 seconds later rather than 15 seconds earlier was utterly immaterial.
[Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining evidence____ In this case, the constitutional violation of an illegal manner of entry was not a but-forcause of obtaining the evidence. Whether that preliminary mis step had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.
547 U.S. at 592 ,126 S.Ct. at 2164 ,165 L.Ed.2d at 64-65 (emphasis omitted).
In his concurring opinion, Justice Kennedy very articulately set out the necessity for a causal link between the Fourth Amendment violation and the evidence sought to be suppressed.
Under our precedents the causal link between a violation of the knock-and-announce requirement and a later search is too attenuated to allow suppression. Cf. United States v. Ramirez,523 U.S. 65 , 72 n. 3,118 S.Ct. 992 ,140 L.Ed.2d 191 (1998) (application of the exclusionary rule depends on the existence of a “sufficient causal relationship” between the unlawful conduct and the discovery of evidence). When, for example, a violation results from want of a 20-second pause but an ensuing, lawful search lasting five hours discloses evidence of criminality, the failure to wait at the door cannot properly be described as having caused the discovery of evidence.
In this case the relevant evidence was discovered not because of a failure to knock-and-announce, but because of a subsequent search pursuant to a lawful warrant.547 U.S. at 603 ,126 S.Ct. at 2171 ,165 L.Ed.2d at 72 (emphasis omitted).
When the evidence in issue may follow the violation but is not the product of the violation, there is no conceivable justification for paying the high social cost of excluding it.
Id.
at 203-05,
In the subject case, as in
Hudson,
the evidence obtained from the defendant’s house was not the “product of a violation” of the “knock-and-announce” rule because: 1) the police had a search warrant that set forth probable cause for
its issuance
6
and 2) even if the police had knocked and announced their presence, waited for an appropriate period of time for a response, and then entered Ford’s house, the heroin would still have been found. Therefore, under the principles enunciated in
Hudson,
even if we were to assume,
arguendo,
that Ford’s rights were violated by the failure of the police officers who executed the warrant to knock-and-announce prior to entry, that violation would not warrant the suppression of the evidence under the Fourth Amendment to the United States Constitution. At oral argument, Ford’s counsel conceded that this is true. Ford contends, however,
citing Parker v. State,
Before discussing Ford’s contention in detail, it is important to make a distinction. It is clear that under Maryland common law, police, even if armed with a search warrant, are (with certain exceptions) not allowed to enter a person’s
home without first announcing their presence and demanding admission.
See, e.g., Henson v. State,
The
Parker
case, upon which Ford places exclusive reliance, had a very complicated procedural background.
At issue in
Parker
was the validity of a “no knock” warrant that was issued in 2002, which was more than two years prior to the enactment of the statute [C.P. § l-203(a)(2)(ii) and (iii) ] that authorizes the issuance of such a warrant. In
Parker,
a District Court judge signed a warrant authorizing the police to enter the defendant’s home without knocking or otherwise announcing their presence.
Id.
at 378,
On appeal to this Court,
Parker
argued,
inter alia,
based on language contained in
Davis and Adams v. State,
[A] judicial officer in Maryland, under current Maryland law may not issue a ‘no-knock’ warrant. Rather, the propriety of a ‘no-knock’ entry will be reviewed and determined on the basis of the facts known to the officers at the time of entry, rather than at the time of the application for the warrant.
Id.
at 427-28,
The State argued in the Court of Appeals that the evidence should not be suppressed based on the
Hudson v. Michigan
decision. In regard to the arguments concerning Maryland law, the State contended that Parker’s rights should be construed
in pair materia
with the Fourth Amendment as construed in
Hudson. Id.
at 390,
The Court of Appeals ruled in
Parker
that the State could not rely on the
Hudson v. Michigan
case because it “failed to challenge the adverse decision of the Court of Special Appeals, or raise the issue of a Maryland exclusionary rule by filing a cross-petition for a
writ of certiorari.” Id.
at 401,
The
Parker
Court ultimately ruled that the case should be remanded for a new suppression hearing and a determination, in accordance with the principles enunciated by the Court in the
Davis and Adams
case, as to whether the drugs seized were admissible. If the evidence was determined to be admissible, then Parker’s controlled dangerous substance (“CDS”) conviction was to be affirmed. If the evidence was deemed inadmissible, a new trial as to the CDS charge was to be ordered.
Id.
at 406,
In
Parker,
Judge Eldridge, speaking for the Court, suggested that the Court might want to change the common
law as previously enunciated in
Meisinger v. State,
It may be accurate to say that the
Henson
decision was “logically grounded” upon the existence of a Maryland exclusionary rule but, logic aside, the
Henson
opinion never once mentioned a Maryland common law exclusionary rule. The holding in
Henson,
which was decided after
Mapp v. Ohio,
We hold that in the case before us the actions of the police in breaking into the premises without warning were reasonable, permissible and legal and the evidence seized was admissible against the appellant.
The Supreme Court has held that binding federal constitutional safeguards are not affronted by such a holding. In Ker v. California,374 U.S. 23 ,83 S.Ct. 1623 ,10 L.Ed.2d 726 , it was observed that the entry by police officers was without compliance with the California statute requiring notice in that they had entered unannounced, without permission and by force, in order to prevent destruction of narcotics, but was valid under California law as ‘within a judicial exception which had been engrafted on the statute by a series of decisions * * * and that the non-compliance was therefore lawful.’ The Supreme Court concluded ...:
We therefore hold that in the particular circumstances of this case the officers’ method of entry, sanctioned by the law of California, was not unreasonable under the standards of the Fourth Amendment as applied to the States through the Fourteenth Amendment.
In one sense it is true that the
Davis and Adams
case were decided based on
Two important factors distinguish Parker from this case. First, the State, at all times here pertinent, did rely on Hudson v. Michigan. Second, in this case, when the “No Knock” warrant was issued, a Maryland statute authorized the issuance of such a warrant.
The common law in Maryland is that this State does not recognize (in criminal cases) an exclusionary rule when physical evidence is illegally seized by the police.
See Chu v. Anne Arundel County,
Among the former this court is to be found, it having definitely determined that the rule which allows evidence of this character to be admitted is in force for the guidance of the courts and the admission of testimony therein in this state. This conclusion was reached by our predecessors in the case of Lawrence v. State,103 Md. 17 ,63 A. 96 , and must be taken now as conclusive on the question, so far as this state is concerned. It was said in that case: “In the recent and valuable work on Evidence of Professor Wig-more it is affirmed, upon an exhaustive and discriminating review of the authorities, that it is universally conceded that chattels and documents in the possession of an accused party are within the protection of the constitutional provisions in question, if sought to be produced in evidence through process against him as a witness: but if obtained from him otherwise than by the use of such process they are not within the privilege which these provisions confer. 4 Wigmore on Evidence, sec. 2264.” The court then adopts the rule as laid down in 1 Greenleaf on Evidence, sec. 254, that “though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to their issue. The court will not take notice of how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.” This statement of the rule has been adopted in the opinion of many of the courts, and may with certainty be denominated the rule more largely adhered to throughout the Union.
Id.
at 197-98,
The fact that Maryland has no exclusionary rule was fully discussed in
Howell v. State,
Maryland, of course, has no exclusionary rule. Following the lead of Judge Cardozoin People v. Defore, 242 N.Y. 13 ,150 N.E. 585 (1926), Maryland is one of the approximately thirty jurisdictions that affirmatively rejected the exclusionary rule. Lawrence v. State,103 Md. 17 ,63 A. 96 (1906); Meisinger v. State,155 Md. 195 ,141 A. 536 (1928); Lambert v. State,196 Md. 57 ,75 A.2d 327 (1950); In Re Special Investigation No. 228, supra, 54 Md.App. [149] at 160,458 A.2d 820 [1983]. The Maryland Legislature enacted a limited exclusionary rule, known as the Bouse Act, by Chapter 194 of the Acts of 1929. It specifically exempted all felonies and even certain of the more serious misdemeanors. In 1973, moreover, Maryland repealed even the limited statutory exclusion called for by the Bouse Act.
Id.
at 468, n. 2,
Article 26 of the Maryland Declaration of Rights reads:
That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.
Ordinarily, Article 26 of the Declaration of Rights is to be read
in pari materia
with the Fourth Amendment.
8
Very recently, in
Jones v. State,
Petitioner ... contends that the detectives’ search was unlawful under Article 26 of the Maryland Declaration of Rights. Though the language of Article 26 is not identical to the language of the Fourth Amendment to the United States Constitution, we have construed Article 26 as being in pari materia with the Fourth Amendment and have accepted as persuasive the Supreme Court’s construction of the Fourth Amendment. See Scott [v. State], [366 Md. 121 ] at 139 n. 2[,782 A.2d 862 ] n. 2 [2001]; Godson v. State,341 Md. 1 ,668 A.2d 22 (1995), cert. denied,517 U.S. 1203 ,116 S.Ct. 1704 ,134 L.Ed.2d 803 (1996); Gahan v. State,290 Md. 310 ,430 A.2d 49 (1981). Our conclusion that petitioner’s Fourth Amendment rights were not violated during the detectives’ investigation and subsequent search and seizure of the rental car, applies equally to petitioner’s Article 26 claim.
In
Fitzgerald v. State,
Maryland has no independent exclusionary rule for physical evidence. Maryland has always been among the overwhelming majority of American states that have, on balance, opted against an exclusionary rule for search and seizure violations. The only extant exclusionary rule that the appellant can call upon is that imposed upon Maryland in 1961 by Mapp v. Ohio,367 U.S. 643 ,81 S.Ct. 1684 ,6 L.Ed.2d 1081 (1961). Mapp’s exclusionary rule, of course, is available only for violations of the federal Fourth Amendment.
See also Miller v. State,
Maryland cases have consistently held that Article 26 of the Declaration of Rights cannot be enforced by exclusion of evidence.
See Padilla v. State,
For the above reasons, we reject Ford’s argument that the evidence recovered from his home should have been kept out of evidence based on an exclusionary rule founded upon Maryland common law and/or constitutional law.
JUDGMENT VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR FURTHER PROCEEDINGS AS SET FORTH IN THIS OPINION; COSTS TO BE PAID FIFTY-PERCENT (50%) BY BALTIMORE COUNTY AND FIFTY-PERCENT (50%) BY APPELLANT.
Notes
. Ford’s counsel acknowledged at the suppression hearing that his client had been charged in 2004 with possession of a deadly weapon and in 1989 with possession of a handgun.
. When [an appellate court] reviews the circuit court’s denial of a motion to suppress, ordinarily our review is limited to the evidence presented at the suppression hearing.
See Owens v. State,
Jones
v.
State,
. Rule 8-604(d) provides:
If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court.
. In his brief, Ford points out that the admission into evidence of the small digital scale and the loaded handgun found in the trunk of the Chevrolet Cavalier strongly supported the State’s case and as a consequence the admission of that evidence was not harmless. The State does not contend otherwise.
. The State does not argue that the "good faith exception” to the exclusionary rule, as enunciated in
United States v. Leon,
. Ford does not contend that the police lacked probable cause for the issuance of the search warrant. He contends only that the application did not contain facts that justified the authorization for the police to execute the warrant without first knocking or otherwise announcing their presence.
. In Maryland, a probation revocation proceeding is classified as a civil proceeding.
State v. Flansburg,
. The
Parker
Court pointed out however, that simply because a Maryland Constitutional provision or a common law principle is
in pari materia
with a federal constitutional provision does not mean that it will always be interpreted or applied in the same manner.
. In Parker, the Court said:
This court has not, since Meisinger, and the enactment and later repeal of the Bouse Act, decided generally whether Maryland constitutional and/or common law recognizes an exclusionary rule for evidence resulting from an illegal search and seizure.