Patterson v. State

Respondent should have of his appreciated respon- extent sibility honesty, to act with complete comport but failed to himself properly. Accordingly, proper sanction disbar- ment. ORDERED;

IT IS SO RESPONDENT SHALL PAY ALL TAXED BY COSTS AS THE OF CLERK THIS COURT, TRANSCRIPTS, INCLUDING OF ALL COSTS 16-715(0, TO MARYLAND PURSUANT RULE FOR WHICH SUMMARY JUDGMENT IS ENTERED IN FA- VOR OF THE ATTORNEY GRIEVANCE COMMISSION L. AGAINST WILLIAM SISKIND.

930A.2d 348 George Garfield PATTERSON Maryland. STATE of Sept.Term, No. 83 2006. Appeals Maryland.

Court of

Aug. McCormack, (Nancy S. Public Defender W. Asst. Stacy MD, Defender, brief), baltimore, Peti- Forster, on Public tioner/Cross-Respondent. Williams, Gansler, Atty. (Douglas F. Atty. Asst. Gen.

James Baltimore, MD, for brief), Respon- Maryland, Gen. dent/Cross-Petitioner. C.J., RAKER, CATHELL,* BELL, BEFORE

ARGUED BATTAGLIA, ALAN M. HARRELL, GREENE (Retired, Assigned), JJ. Specially WILNER * J., retired, Cathell, hearing participated now conference Court; being recalled an member of this after this case while active Constitution, IV, 3A, participated pursuant also Article Section he opinion. adoption of decision and this

GREENE, Judge. We are asked to consider judge whether the warrant-issuing had a concluding substantial basis for was there particular to believe that a handgun weapons and other and ammunition would be found of petitioner, residence (“Patterson”). George Garfield Patterson We hold where officers obtain evidence objectively good reasonable faith reliance on a which contains some of probable indicia cause, Leon the evidence under the admissible faith exception, even where the warrant affidavit did not support judge’s issuing probable-cause determination.

I. Background A. Facts The are following facts derived from the affidavit filed support of the application for the search and seizure warrant: 14, 2003, (“Officer Haak”)

On October Officer Haak Charles made stop a routine traffic of a by vehicle driven Patterson for failing to stop stop sign and for operating a vehicle with an inoperative light. brake Patterson Officer provided Haak with a District of Columbia driver’s license. license identified as A. Patterson Joe Miller. During the course stop, officer the odor of marijuana detected burnt from emanating that, the vehicle. Patterson admitted one prior hour stop, he had smoked marijuana. When attempted Officer Haak pat-down to conduct a search of Patterson, “a struggle culminating ensued run- [Patterson] ning Haak away.” Officer observed run Patterson behind Ridge 13508 Greencastle Terrace. The officer pursued Pat- terson temporarily lost of him sight during the course the pursuit. Eventually, regained sight Officer Haak of Pat- terson apprehended him swimming on the east side of a pool, Terrace, located behind 13508 Ridge Greencastle near wooded area. It appears chase ended when Patter- son ground. According was taken to the to Officer Haak’s black, ground, from the affidavit, as was lifted Patterson the ground recovered from holster was Mike’s Sidekick Uncle Af subsequently him.1 arrested. underneath Patterson him, the driver was police discovered ter fingerprinting he Miller, the driver’s license A. as indicated not Joe Patter George real name was Garfield but that his produced, day. later that He was released same son. Officer Haak and pm, at 5:00 day,

The next October officers, returned Montgomery County Police three other interviewed Christo- chase. Officer Haak scene of the foot stop Lauer, [of had “watched the traffic a witness who pher that, reported Lauer events.” ensuing and the Patterson] his area as chase, right hip was “holding Patterson during the under his shirt. Lauer told something” concealing if he was chase, lost that, he also foot point during Haak at some through police The officers then searched of sight Patterson. Lauer the officers and In the wooded area where the area. Patterson, silver located a small of Lauer sight had lost .22 rounds. containing six caliber magazine “corre- Haak, magazine of the According Officer the size holster size” of the Mike’s Sidekick with the Uncle sponded Carter, suppression hearing, Sergeant a ser- Robert detective 1. At the Police, by Montgomery County Department of was called geant the with presented testify of the events a different version the State and surrounding recovery part, of the Uncle Mike’s sidekick holster. the testified as follows: he investigation? was the basis of that firearm [STATE]: And what County patrol Montgomery a [CARTER]: There was officer from Haak, police who had arrested Mr. Patterson in named Officer arrest, charged of he had of And at the time month October. charged possession marijuana another him with of and him under arrest, given. After the one of name that the Defendant had produced him came to him and a holster officers who assisted said, your along path you during foot "I this traveled found this, pursuit.” so he went back to the Officer Haak didn't know they police with officers and found an automatic scene some other handgun magazine lying gun area. No was ever recov- same ered. inconsistency hearing judge disregarded the as to the suppression accepted discovery the fact that it was recovered of the holster and Patterson, as stated in the affidavit. from underneath police that the found. The continued their search of but wooded area did locate handgun. They returned October 23 October more than two after the weeks chase, area, foot searched the but never located a hand- gun. Following gun, the search for Officer Haak obtained Patterson’s arrest record and contacted his officer. parole parole Patterson’s officer furnished with Officer Haak Patter- address, permanent Place, Laurel, son’s 15023 Courtland Ma- ryland 20707. Special

The Montgomery County Assignment began Team conducting surveillance of Patterson and his two brothers.2 Patterson was seen motel entering by room rented one of his brothers on several occasions. Based on the results its surveillance, Assignment the Special Team concluded that Patterson was using motel room as his resi temporary thirty-four dence. On November days after stopping violations, for traffic Patterson minor applied Officer Haak a search and seizure warrant3 to search motel room support application 2. The affidavit filed for the search and by Montgomery seizure warrant states that surveillance was conducted County police fact, Notwithstanding guilty officers. the not state- facts, trial, ment of read into evidence at states that surveillance was George’s County Depart- conducted members of the Prince Police ment. 3. Because the content affidavit is central to the ultimate issue staleness, provide parts below we relevant affidavit and adden- support dum filed for search and seizure warrant: your stopped bearing On affiant a 1995 Oldsmobile Achieva 10/14/03 (DC) temporary plate District of Columbia license 88304DG in front Ridge failing stop stop of the 13508 Greencastle Terrace for to at a sign having inoperative light. provided and your an brake The driver identifying affiant a DC License Driver's him as Joe A. Miller awith speaking DOB of While to the driver the affiant smelled 9/30/76. recognized through training experience what was to be burnt marijuana emanating passenger compartment from the of the vehicle. stepped The driver out of the vehicle and admitted that had he marijuana approximately prior being smoked in the car one hour

pulled attempted pat over. As the affiant driver the down struggle culminating away running your ensued in Miller's from witness, Lauer, Christopher affiant. A stop watched traffic the ensuing events. Your affiant observed driver run behind Ridge 13508 Greencastle The chasing Terrace. affiant continued swimming pool. As of the apprehended him on East side driver and affiant, Roslyn ground by your Cpl. Clark off lifted the driver was un- HOLSTER from UNCLE MIKE’S SIDEKICK recovered a black derneath the driver. Miller, was Joe A. driver not A the ID number revealed that check of with a date of birth actually GEORGE PATTERSON GARFIELD but Patterson.) (Miller Fur- be to as will hereafter referred of 09/16/76 currently parole on investigation Patterson revealed that ther Maryland about George’s County, was convicted on or after he Prince AFTER THE being TO MURDER for an ACCESSORY 04/02/1999 FACT. foot with three responded scene of the chase back Your affiant Upon approximately 1700 hours. on MCP Officers other 10/15/03 again your arriving affiant of the chase on at the scene 10/15/03 witness, Christopher he ... Lauer stated that spoke to Lauer. concealing holding right hip if he was area as see his could Patterson [sic], ... MCP Officers something of shirts underneath his minutes, your approximately thirty for the wooded area searchfed] say "Hey, you guys do want some bullets?” affiant heard someone present the officers were entered the woods when Lauer had Witness (6) containing magazine six .22 caliber located a small silver approximately fif- magazine with rounds was located The rounds. be noted that from the tree line. It should teen feet into the woods directly place magazine of coincides with location your during pursuit. sight the foot affiant Patterson out magazine corresponded with the size of the holster size handgun Patterson after his bear a located under would be used to did not locate the firearm on A search the woods arrest. further 10/23/03, 10/15/03, be that MCP It should noted and 10/30/03. after Patterson was to search the woods until officers did arrive custody form released 10/14/03. George’s Agent the Prince Coun- affiant Sherrod with Your contacted Division, Agent ty Hyattsville Sherrod office. Parole and Probation report provided supervision have your with three forms that affiant Laurel, address listed as 15023 Courtland Place Patterson's home Maryland 20707. v * * v 30, 2003, queried your of the FBI’s October affiant the records On Montgomery County National Crime Information Center and male, Black, Patterson, George date with a Police for a Garfield learned Patterson has been arrested birth He 09/16/1976. following: (cid:127) Battery Two Counts 12/03/1993 (cid:127) Resisting Arrest (cid:127) Disorderly Conduct 12/03/1993 12/03/1993 (cid:127) $300 Theft over 02/13/1995 (cid:127) Credit Card Fraud-Three Counts 02/13/1995 (cid:127) Conspiracy 02/13/1995 (cid:127) Weapon Concealed 02/24/1995 (cid:127) Pager Possession 02/24/1995 (cid:127) Battery Assault& 08/27/1996 (cid:127) Weapon PossessionConcealed 10/22/1996 (cid:127) Degree Assault2nd PossessionCDS 04/26/1997 (cid:127) Marijuana 12/23/1997 (cid:127) Violation (cid:127) Murder Order Ex-Parte/Protective 02/26/1998 04/15/1998 04/02/1999 08/04/2000

(cid:127) Degree CCBWVOP 2nd Assault (cid:127) VOPMurder (cid:127) Accessory Degree After Fact the Marijuana First 11/14/2000 10/14/2003 (cid:127) CDSPossession (cid:127) DisorderlyConduct (cid:127) ResistingArrest 10/14/2003 10/14/2003 10/14/2003 (cid:127) Degree Assault2nd Montgomery County Special Assignment Police Team has been conducting covert surveillance on Garfield Patterson and his two company. brothers whom are often in his know Officers Garfield’s Tyrone be brothers to Patterson and Rohan Patterson and are famil- sight. Montgomery County iar with them on Officers have observed Patterson, brother, Tyrone Garfield’s drive him around in a Blue Chevy gold Tyrone Tahoe with trim. has driven Garfield from his Laurel, mother’s house located at 15023 Courtland Place MD 20708 4th, to the Montgomery above listed address. Since November County Officers have observed Garfield Patterson enter Room #217 approximately during at the Red Roof Inn. On four occasions time, night officers have observed Garfield enter Room 217 have lights go activity off and all cease in the room. The surveillance approximately continued for activity one hour after all in the room Special Assignment ceased. It is believed Team that Garfield using temporary is Room #217 as his residence. Officer also con- tacted the front desk of the hotel and discovered hotel room registered Tyrone under Patterson. Officers have observed Gar- eight days. field enter Room 217 on last thirteen ADDENDUM information, upon your Based the aforementioned affiant believes cause exists in 12525 Laurel Bowie Road Laurel #217, MD presently 20708 Room there is concealed firearm and/or ammunition, paperwork posses- and documentation related sion, acquisition, disposition, and maintenance of firearms in Garfield Patterson’s name or known alias Joe A. Miller with DOB of 09/30/1976, boxes, magazines, as well as ammunition ammunition holsters, boxes, kits, pouches, cleaning ammunition firearm bullet vests, proof parts, firearm and grips, accessories for firearms such as addition, scopes, slings. and I believe that are [sic] there con- paperwork cealed and identity documentation related to the of the possessors occupancy premises, of such items of the docu- and/or relating procurement ments usage identity to the of Joe A. 09/30/1976, any Miller with DOB other related evidence to this Therefore, respectfully request criminal case. I a search warrant be premises, curtilage, issued for the premises locked boxes within curtilage, and vehicles associated with 12525 Laurel Bowie Road Maryland Laurel Room #217. brothers.4 one of Patterson’s by rented warrant, he swore for the application Haak’s In Officer “a firearm to probable cause believe there was and/or to the ammunition, related and documentation paperwork maintenance of fire and disposition possession, acquisition, room, in the motel be found name” would in [Patterson’s] arms to related and documentation gun well as accessories as false identification. When obtaining using and Patterson’s executed,5 search team for motel room was warrant drug cocaine, paraphernalia. and marijuana, found crack History B. Procedural with 20, 2003, charged Patterson was On November cocaine, to with intent distribute possession possession of parapher of marijuana, possession cocaine, of possession trial, suppress filed a motion to Prior to Patterson nalia. warrant, of the search during the execution items seized it was not based was invalid because that the warrant arguing 16, 2004, hearing a suppression April cause.6 On on for, a Patter- applied received warrant to search The also 4. Laurel, address, Place, Maryland permanent 15023 Courdand son’s affidavit, to search that residence The warrant 20707. support essentially of 12525 that used to search were identical to Maryland Room Road Laurel #217. Laurel Bowie executed, Montgomery by of the in this case was members search 5. Department, George’s County a Prince residence located in Police by judge, sitting County. a District Court The warrant was issued Maryland single Montgomery County. The of is a unified District Court jurisdiction. a judges uniform As court and its exercise statewide result, County by Montgomery judge although the was issued residence, Montgom- George’s judge sitting County for a Prince § ery County authority See & J. Proc. 1- had to issue the warrant. Cts. 603. hearing pursuant Additionally, for a Franks Patterson asked Delaware, (1978), to 57 L.Ed.2d 667 testimony discrepancy and the of resolve the between the affidavit it Sergeant of holster the time Robert Carter as to the location hearing A Franks was found. proffer procedure, requiring from the defense out a a detailed set[s] hearing go to a behind the the defendant even entitled before Franks, when a defendant makes corners of the warrant. Under four showing intentionally or preliminary the affiant substantial recklessly supporting affidavit for included false statements in held was on the motion. The court denied Patterson’s motion reasoning that the suppress, issuing judge did not commit legal determining error cause existed to support issuance search warrant. 13, 2004, July

On proceeding way of a not guilty agreed facts, statement of Patterson possession was convicted of with intent to distribute cocaine and the of lesser included offense possession Additionally, of cocaine. Patterson was convicted marijuana. possession September 2, On Patterson 20 years imprisonment, sentenced to with all but years suspended, possession for -withintent to distribute. The cocaine) court merged count two (possession into count one cocaine) (possession with intent to distribute purposes sentencing. respect With to the possession marijuana of charge, the court sentenced Patterson one-year imprison- of ment, to run with concurrently year the 20 sentence.

Patterson filed a notice of appeal. appeal On to the Court alia, inter of Special Appeals, argued, he the Circuit of Court’s denial his motion to suppress should be reversed because the warrant to search the motel room was not sup- ported by probable cause and that “the evidence should have been suppressed because the search warrant was based on an patently affidavit that was so executing insufficient that the not reasonably officers could have believed be it to sufficient.” opinion, an unreported Special Court of Appeals af- the judgment firmed of the Circuit Court. The intermediate appellate court concluded that it was reasonable for the war- rant-issuing judge to conclude that Patterson “likely kept the gun in the motel room” and that “there was [a] substantial for issuing basis judge [the to determine warrant] warrant, search and that the affidavit without the false statement is cause, support finding insufficient a the defendant is hearing then entitled to a on the matter. The is on burden knowing falsity by defendant to preponderance establish or reckless a suppressed. Negligence evidence before the evidence will be resulting or innocent mistake false statements in the affidavit is not sufficient to establish the defendant’s burden. 452, McDonald v. 347 Md. 472 n. 701 A.2d 684-85 n. 11 (1997). request hearing The for Franks was denied. warrant.” to issue the search cause existed sufficient supported was that the warrant Court concluded Because the Amendment the Fourth cause, apply it did not by probable for of certio writ petition rule. Patterson filed a exclusionary October 2006.7 On September Court on rari with this writ of for cross-petition filed a conditional the State both granted this Court certiorari.8 On December State, 396 Patterson v. cross-petition. and conditional petition (2006). Md.

II. of Review Standard issuing judge whether must first determine We that the warrant concluding a substantial basis had State, 392 by probable cause. See Greenstreet supported 961(2006). in Green- this Court noted A.2d As Md. issuing a substan street, judge had to determine whether by proba concluding supported the warrant was tial basis for cause, ble review, de but applying novo standard do so

[w]e issuing judge task rather a deferential one. decision, all of given reach a common-sense practical affidavit, as to whether set forth in the circumstances or evidence that contraband probability there exists fair Questions presented: 7. petitioner the presence a "underneath” 1. Is of holster found the following by police apprehended petitioner had been after the probable cause to stop provide officers with

traffic sufficient the handgun possession in in of a believe that the defendant was fact thirty-four days handgun later in a night found could be and the by petitioner's brother? motel room rented not, during search of the If should the evidence recovered suppressed the search warrant have been where motel room patently to establish was so insufficient based an affidavit that on executing reasonably could not have probable officers cause that to be sufficient? believed it following cross- presented question in its conditional 8. The State petition: on the search warrant? police faith reliance Did the act in a crime will be found in a particular search. Illinois Gates, 213, 238-39, 2317, 2332, 462 U.S. 103 S.Ct. (1983). The duty reviewing L.Ed.2d of a court is to judge ensure that the issuing had a “substantial basis for ... concluding] probable cause existed.” Id. The Supreme explained Court Gates that the of purpose this encourage standard review is to submit Gates, process. warrant 462 U.S. at 237 n. S.Ct. at 2331 n. 76 L.Ed.2d at n. 10. Leon,

In United States v. (1984), explained L.Ed.2d Court due deference issuing an judge’s cause determination: provides

Because a search warrant scrutiny detached magistrate, a neutral which ais more reliable safe- guard against than improper judg- searches the hurried ment a law enforcement engaged officer the often competitive enterprise crime, out ferreting we have expressed strong preference for warrants declared in a marginal doubtful or case a search under a may be sustainable one where without it would fall. frequently may Reasonable minds differ question a particular whether affidavit proba- establishes cause, ble have we thus concluded that preference for warrants is most appropriately effectuated accord- ing great magistrate’s deference to determination. omitted.) (Quotations and citations

* * * * reviewing judge’s When the basis the issuing finding, cause we our ordinarily confine consider solely ation of probable provided to the information the warrant its accompanying documents. We do not consider evidence that supplement seeks to grounds controvert the truth of advanced the affida vit.

Greenstreet, 667-69, (citations 392 Md. at 898 A.2d at 970-71 omitted).

91 III.

Discussion and Staleness Probable Cause A by rights guaranteed the constitutional turn first to We whether, at the time and determine Amendment the Fourth judice, in the case sub of the search the issuance concluding for basis substantial there provides: The Fourth Amendment existed. cause persons, in their to be secure right people The of the searches houses, effects, against unreasonable papers, violated, shall and no warrants seizures, not be shall cause, or affir- by Oath issue, upon supported but describing to be searched place mation and particularly things to be seized. persons and the Court noted: Supreme As the Const. amend. IV. U.S. of the driving adoption [Fourth] force behind the

Amendment, advocacy, was wide- by Madison’s suggested as to the issuance among the former colonists hostility spread to search revenue officers empowering writs of assistance search goods, general suspected places smuggled houses, often to of private the search permitting warrants might persons be used convict papers uncover show[s], therefore, data available historical libel.... The was to protect Fourth Amendment that the purpose by action against arbitrary United States people their own Government. 259, 266, 110 494 Verdugo-Urquidez, U.S. States v.

United 222, denied, 494 1056, 1062, 108 233 U.S. reh’g L.Ed.2d S.Ct. (1990). 1839, 108 968 L.Ed.2d “a has defined this Court as been Probable crime will or evidence of a be probability that contraband fair 314 Md. Malcolm v. in a particular place.” found (1988) Gates, Illinois (quoting A.2d L.Ed.2d (1983)). of a conception is “a nontechnical Probable cause will sought that the items be ground for belief” reasonable State, the premises found searched. v. 243 Edwardsen Md. 136, (1966). 131, 547, 220 A.2d 550 Probable cause involves of “practical everyday considerations life on which reasonable men, prudent legal technicians act.” Brinegar v. States, 160, 175, 1302, 1310, United U.S. 69 338 S.Ct. 93 L.Ed. 1890, 1879, denied, 839, 31, U.S. reh’g 338 70 S.Ct. 94 L.Ed. (1949). 513 search, conducting

Before ordinarily obtain is, itself, must a search warrant that upon based probable “sufficient cause to justify its issuance to each as or person place Ward, 372, named therein.” State v. Md. 350 387, 534, (1998) 712 A.2d 541 (quoting People Easley, v. 34 858, 309, 813, (1983) 671 Cal.Rptr. Cal.3d 196 P.2d 820 aff'd 712, (1988)). 46 reh’g Cal.Rptr. 855, Cal.3d 250 759 P.2d 490 judge The issuing warrant must “make a com practical whether, given mon-sense decision all the circumstances set her], forth the affidavit before him including [or the ‘veraci ty’ and ‘basis of of knowledge’ persons supplying hearsay information, there is a fair probability contraband or of Gates, evidence a crime will be found in a particular place.” 238, 2332, 462 103 U.S. S.Ct. at 76 L.Ed.2d at 548. making an of probable cause, assessment one of the factors warrant-issuing must judge consider is whether cause, “event[s] constituting probable circumstance[s] oc ... curred time ... remote from [a] so the date of the affidavit as to render it improbable that the violation alleged time____” authorizing of law the search was extant at the 309, State, 314, Peterson v. 281 164, (1977), Md. A.2d (1978) cert. denied 435 U.S. 55 L.Ed.2d 542 (internal omitted); States, Sgro citations v. United (1932) 77 L.Ed. (noting “proof of closely must be facts so related to the time of of issue the warrant justify finding as to of probable time”). cause As we noted Greenstreet: “There is rule ‘bright-line’ no for determining the ‘stale- rather, probable cause; ness’ of upon it depends the circum- case, stances of each as related in the affidavit for the State, Connelly 719, 733, warrant.” 322 Md. omitted). (citations (1991) Factors used 958, 965-66 time, the particular passage include: staleness determine activity, involved, of the length activity criminal kind of Peterson v. to be seized. property and the nature (1977) 317-18, 164, 168-69 A.2d State, 281 Md. omitted). (citations explained Special Appeals The Court in Andresen v. rule stale general (1975), adopted we which 331 A.2d 78 24 Md.App. in Peterson: degree evap- determining the

The ultimate criterion however, cause, not case law but oration sought is still in evidence likelihood that the reason. of calendar but watch and simply not of place is a function of the the character a clock: punch do not variables that (chance night regenerating or encounter crime entrenched?), (nomadic of the criminal conspiracy?), easily transferable (perishable seized thing to be holder?), to be place to its enduring utility or of secure (mere convenience or criminal forum of searched a base?), of half-smoked etc. observation operational may a ashtray party at cocktail in an marijuana cigarette in; lady has been cleaning after the day be stale the well may in a cellar corpse of a the burial the observation later. The hare and the decades not be stale three well rate speed. the same disappear tortoise do Andresen, A.2d at 106. Where Md.App. activity a indicating “recites facts a case affidavit conduct, nature, or a course continuous protracted and so as not to significant, of time becomes less passage Peterson, 318, 379 A.2d at 281 Md. at vitiate warrant.” (citations omitted); Md.App. see also Lee v. 168-69 (1980) stale (finding probable cause apartment drug sale from defendant’s upon when based warrant); Connelly, for a before application eleven months (concluding probable that 734, at 966 322 Md. at A.2d cause where the could found to be stale be lottery illegal an alleged on evidence of finding was based months, “few” taken over a from observations operation beginning prior warrant); nine months Amerman, Md.App. 581 A.2d at 26 (finding probable cause not stale when based on alleged evidence of illegal drug sales from surveillance investigation con- ducted one month to warrant prior application). 674-75,

392 Md. at 898 A.2d at 974-75. Patterson contends that “the search this case was based a chain of upon speculations drastically that fell short of ‘fair establishing probability’ thirty-four days being stopped by after for a traffic police offense [Patterson] gun was in motel keeping a room rented his brother.” words, other argues Patterson probability’ “the ‘fair ... possessed was had not gun [he] discarded a posits wooded area.” Patterson police fact that empty discovered an holster underneath him was not sufficient cause, to establish probable and that even if probable cause existed on it “clearly October for purposes stale of the Fourth Amendment when applied officers for and [thirty-four] obtained a warrant days later.” argues The State that the had cause and the Court of Special decision Appeals’ should be affirmed. The State asserts that “Officer Haak ... made observations and reasonable information, inferences based on specific and came to a well-supported conclusion regarding missing firearm.” Adopting the of rationale the Court of Special Appeals, State that contends “the for the search and seizure provided warrant information sufficient to establish probable cause that a firearm and related items existed Patterson’s room at the Red [m]otel Roof Inn.” In support of their position that “a reasonable inference is that re- [Patterson] trieved gun] kept [the and it ... at his resi- ‘temporary ” dence,’ Steeves, cites United principally State States (8th Cir.1975), and Lockett v. 525 F.2d 33 879 S.W.2d 1994). 184 (Tex.App.-Houston Peterson,

In this Court in addressed staleness the context of a probable case, cause In determination. William De- Wayne Peterson’s apartment was pursuant searched to a therein, Peter- seized a result of the evidence and as intent to heroin with an of of possession was son convicted of possession and con- distribute, marijuana, possession the facts used Peterson contended paraphernalia. trolled and therefore cause were stale probable establish disagreed, The Court unreasonable. and seizure was search regener- ordinarily a illegal drugs that “traffic concluding that case] was clear indication [in and there ating activity, continual, regularly a of conduct course activity was Peterson, Md. at time.” protracted followed over whole, as a viewing the affidavit Accordingly, A.2d 170. narcotics activities that that surveillance of the Court held of the warrant did to the issuance began prior three months Id. render the cause stale. Steeves, 525 F.2d relies on judice, In the case sub State Steeves, his conviction appealed Albert Steeves Henry 33. of two rifles violation receipt possession for unlawful 1202(a)(1). 17, 1974, September § On U.S.C.A.App. agents pursuant FBI house was searched Steeves’s search, rifles were discovered and During warrant. two “in was connection with an seized. The search warrant issued bank, that had investigation robbery, a Minnesota 22, 1974, nearly three months before been committed on June Steeves, 525 F.2d at 35. The the warrant was issued.” to the relating warrant was issued to search items bank trousers, robbery: waist-length jacket, a black a black “black mask, silencer, money bag [M]agnum handgun ski a .357 Steeves, ..., 525 F.2d robbery____” and proceeds [from] argued lapse at 36. On Steeves that because of appeal, and the issuance robbery time between bank warrant, any to believe that “there no home if they the items in were still in the defendant’s question Steeves, F.2d at The court had ever been there.” 36-37. contention, respect that with to the rejected holding Steeves’s mask, it clothing, ski was reasonable handgun, would be house. believe that those items still Steeves’s Steeves, “people who explained 525 F.2d court or persons,” them home on their pistols generally keep own felony reeord[,] from although, “apart prior posses- [Steeves’s] pistol sion of unlawful in or particularly was not itself Id. incriminating.” Steeves, persuaded

We are from that aside standing home, proposition pistol owners store them at their supports argument the State’s that it reasonable infer is that Patterson retrieved and alleged weapon kept it with fact, him in distinguishable the motel room. In Steeves First, several warrant points. search in Steeves arose out of an in robbery armed and involved a charge handgun used robbery. Second, commission of that a witness to the in actually bank robbery Steeves saw the in perpetrator pos- handgun. session of a is in sharp This contrast to the facts case, this in which no handgun was ever seen Patterson’s possession, by the any officers witnesses. Lockett, Alcohol, agents Tobacco, from Bureau of Firearms, warrant, Raye to a pursuant searched Freddie residence, ammunition, Lockett’s a seizing handgun, baggie containing cocaine. Lockett subsequently was convict- ed of aggravated possession of cocaine. appeal, On Lockett alia, argued, inter federal upon “the based information that was too to support finding proba- ‘stale’ Lockett, ble cause.” Holding S.W.2d 187. that “the federal had a magistrate finding probable substantial basis for warrant,” issuing the federal search the court possession concluded that Lockett’s of firearms was “of protracted and nature ... passage continuous [such that] Lockett, of time less significant.” S.W.2d at [was] Lockett and distinguishable Steeves are from the present case, for additional reasons. The court concluded Lock- ett’s possession was continuous nature. The affidavit con- tained knowledge information based upon two infor- firearms, mants who knew Lockett owned several and had personally viewed various firearms in Lockett’s residence. No such information was included affidavit the instant case. importantly, More neither Steeves nor Lockett support inference Patterson handgun retrieved the from the State, The arrest, of as the State. suggested the scene drawn from inference factual basis or reasonable any without facts, that between accept Court to inference asks this and from detention the time time of Patterson’s release arrest, that the area near his after Officer Haak searched The a facts sim- handgun. returned and retrieved Patterson failed to offer such an inference. The State ply support do to the area of the chase. evidence that Patterson returned any probabili- corroborating support facts that reasonable Without it, and to retrieve dropped gun a returned ties that Patterson had no to believe that judge issuing the warrant reason of a possession handgun, thirty-four would be Patterson more nothing later. amounts to days To draw conclusion next to kind of particular than mere turn speculation. We case, suspected In Patterson was activity involved. this handgun. specific The State to make possessing a fails involved, activity kind of argument regarding particular for does note that “Patterson’s record included arrests but for weapon charges accessory concealed and conviction view, the fact.” In the State’s reveals “[t]his murder after ... utility [also that firearms had a for Patterson and that] be discard- type firearms are not the of evidence that would major support premise ed.” affidavit had a firearm and it was search warrant was Patterson if we or lost the chase. Even assume during either discarded when ran handgun that Patterson he arguendo possessed him, utility from the it would have had police, no inference predicate support there is factual a reasonable returned the area after his detention and that Patterson did Although, retrieved it. conduct some surveil- release, no lance of Patterson after his there was evidence vicinity stop of the earlier again he ever seen arrest. together analy- the next factors in the staleness analyze

We activity. length sis: of time and the The State passage activity, thirty- argues passage length that the of time search warrant days, four does not render the affidavit for the Patterson continued police investigation stale because “the until up the time of execution of the warrant.” In the State’s view, “the of time between period Patterson’s arrest and compared search was to other cases minimal where this Court and the Special Appeals Court of have found that the was, fact, stale.” In the State support, cites Green- street, Md.App. 392 Md. at Lee v. (1980), Amerman, Md.App. A.2d 62 and State v. (1990). 581 A.2d 19 Greenstreet, addressing this Court’s most decision recent cause, the effect of the of time on passage the issue before whether gathered the Court was evidence from a trash seizure probable constituted sufficient cause. On April 2004, Robert Earl Greenstreet’s was searched pursuant house to a A was quantity marijuana warrant. seized from house in resulting charges against possession Greenstreet for with intent to distribute and related offenses. The supporting indicated, cause, as affidavit the basis for that the probable police trash conducted a seizure at Greenstreet’s residence on April 2003. Greenstreet contended that the warrant was stale, face, on its indicated because affidavit that the trash seizure was more than year executed one before the warrant’s case, date, In only issuance. one remote in time to warrant, issuance of the was furnished to support probable cause for the That fell short of establishing search. evidence that Greenstreet was involved in of a drugs the sale illicit result, protracted and continuous nature. As we concluded providing probable “the evidence cause was stale under the circumstances of case it at a facially th[at] because existed time so remote from the date of it the affidavit as to render improbable alleged that the violation of the law authorizing the search warrant was extant time was at the Greenstreet, made.” 392 Md. at 898 A.2d at 976. Lee, warrant, officer police obtained a search to search apartment. Robert Edward search Lee’s The of Lee’s apart- ment in marijuana, resulted the seizure of pounds “33/é tablets, scale, methaquadone 742 capsules' amphetamine, Lee, $7,266 miscellaneous papers belonging United Lee, States other currency” drug paraphernalia. 47 Md. charged subsequently Lee was 214, 422 A.2d at 63. App. Dan- Controlled Maryland of violations convicted appli- that the argued Lee appeal, Act. On gerous Substances face, stale and failed warrant, on its for the cation contained affidavit supporting cause. establish consid- Appeals Special Court of that the several averments in the affidavit averment conclusory.” The “merely ered to be stated that conclusory, not to be the court considered informant, eleven an from received information had he had observed application, to the warrant prior months provide failed to The affidavit apartment. narcotics that Lee that tended to establish allegations additional factual was continuous activity that illegal in an was involved that the court concluded appellate intermediate nature. The not indicate did was stale because the affidavit Lee, 47 Md.App. nature. of a continual illegal activity 422 A.2d at 70. Amerman, of a search the execution

Finally, marijuana, large quantity of a in the seizure resulted Quentin Appellees, drug paraphernalia. and other currency, Amerman, in the present who were both Maddox and Jennifer seizure, arrested and were time of the search house at the suppression At the narcotics violations. indicted for various did not establish that the warrant judge the ruled hearing, did not exception the faith cause and also that probable disagreed, concluding Appeals of Special The Court apply. that Maddox was the notion supported the affidavit “a ongoing and not activity in that was involved criminal Amerman, Md.App. episode.” random criminal probable held that Accordingly, the court A.2d at 28. Amerman, “reliably Md.App. cause was fresh.” case, involved Amerman present A.2d at 29. Unlike the in cases activity. With the above ongoing criminal evidence case. mind, facts of this particular we turn to the probable staleness of with the State that agree We longer period of a in and Lee was the result cause Greenstreet in sub We judice. which is involved the case of time than that however, in reiterate, ultimate criterion determin- that “[t]he cause ... is not ing degree evaporation probable Andresen, Md.App. case law but reason.” Although police investigation present at 106. case time up continued to the execution of the search warrant, did not reveal cause that investigation probable of a The possession handgun. Patterson was surveillance produced incriminating Patterson no evidence that he was Thus, we decline to any illegal accept involved activities. suggested by the inference State that cause support existed to the warrant for the search of Patterson’s temporary residence. we conclude that the infer- Specifically, place ence that Patterson returned to the of his arrest handgun necessary support finding retrieve a discarded discussed, cause existed. As we find that inference is not the evidence. supported question warrant-issuing we decide is whether judge concluding had a substantial basis for that probable existed, application, given at the time of the warrant delay there was a between the time of Patterson’s arrest and the for the search warrant. We discuss highlight inferences contained within the affidavit and those During that we consider reasonable. the traffic of Pat- stop Haak, vehicle, Montgomery terson’s Officer a member of the County of Police for two neither Department years, observed any Patterson make motions if he concealing weapon as weapon nor observed a inside of the vehicle or on Patterson’s Officer Haak detected the odor of person. marijuana. burnt large He did not observe a such that an quantity drugs, inference could be drawn that Patterson was involved in drug trafficking likely weapon person. would have had on his Although marijuana Patterson admitted to earlier in smoking infer, day, there is no factual from which to predicate that all who reasonably, persons marijuana possess use fire- arms. Officer Haak asked Patterson to out of the step vehicle. report bulge Officer Haak did not that he observed a clothing, any Patterson’s made other observation from which reasonably an officer could infer that Patterson was concealing weapon person on his as he out of the stepped that, circumstances of on the conclude based vehicle. We judge did not Patterson, warrant-issuing stop initial believe, time of the issuance at the basis to have a substantial would be found warrant, probably Patterson had, in his he police that the assumed gun of the possession warrant-issuing 2003. Because on October possession, reasonably which he could from judge had no factual basis retrieve a to the scene to that Patterson returned conclude conclude judge for the illogical have been handgun, it would later, in a weeks gun, that same possessed that Patterson by rented his brother. motel room searched, Haak. Patterson ran from Officer being

Prior itself, he was suggest flight, by does Patterson’s chase, a witness observed During a firearm. concealing concealing if he area “as was holding right hip his Patterson a hand- Nonetheless, actually observed no one something.” During the handgun. that resembled a anything or gun, sight of chase, and the civilian witness lost both the officer police discovered apprehended, When he was Patterson. in the vicini- Subsequently, him. empty an holster underneath police recovered apprehended, where Patterson was ty of similarity Considering containing bullets. magazine holster, Haak sur- magazine and the Officer the size of the fit type that would have missing gun that the mised if he found. Even it were magazine and the the holster connected magazine that the holster and reasonable to believe prior had suspected to the Patterson gun police Patterson arrest, he had the in order to find cause that to his later, thirty-four days the warrant- concealed at his home gun to conclude that Patterson would have had issuing judge it. to the scene to retrieve returned Haak contacted the Division stop, After the initial Officer permanent Patterson’s and Probation and obtained Parole record indicated Patterson’s arrest Although home address. surveil- weapons past, he possessed had only temporari- that he resided lance of Patterson established his Patterson was not in a motel room rented brother. ly handgun carrying into the motel room with going seen like a The surveillance did not anything handgun. that looked returned to the scene of the traffic establish that Patterson a nor did the surveillance reveal that stop handgun, to retrieve anyone observed at the address under surveillance was assume, arguendo Even if we possession handgun. of a to believe that Patterson was probable had cause stop, a the time of the initial possession handgun considering passage any of time and the lack of corrobo- rating support facts to the conclusion Patterson was in any ongoing activity involved criminal that would connect him of a or that he retrieved what handgun might to the use handgun stop, probable have been a from the area of the days did not later to the issuance of a thirty-four support exist search warrant for his residence. Court, argument

The focus of the this particular handgun, warrant authorized a search for a the one on his at the time allegedly person, that Patterson had warrant, however, stop. may traffic The be read more broad- ly generally. applica- to authorize the search for firearms The for search warrant “to search for sought permission tion of the crime of a premises] evidence of “Possession [on Person other Firearm Viola- by Firearm Prohibited The provided tions.” “Addendum” to search warrant a firearm presently ‘there is concealed ammunition and/or ’ ” ... premises. issuing judge specifically on the found cause to issue a search warrant “for evidence of the crimes of Firearms Person and of Possession Prohibited with the being: please other Firearm Violations evidence see view, In if warrant-issuing attached addendum.” our judge did not have a substantial basis to believe Patterson gun judge retrieved a from the area of his apprehension, had even of a basis to that Patterson less substantial believe had other any gun temporary stored his residence.

All stop-Patterson’s the evidence obtained from the traffic holster, flight, magazine particular with bullets-is suspected Patterson was at the weapon possessing scene of the traffic There is no evidence from the traffic stop. chase to indicate that Patterson stop subsequent pos- at his any guns or that he had gun than one more sessed circumstantial direct or any the absence residence. residence, stored at his gun had a that Patterson evidence that Patterson suspicion on his have relied Haak must Officer and Patterson’s stop, the traffic the time of gun had record, that Patter- to infer criminal discovered subsequently criminal home. While a at his other firearms possessed son other evidence conjunction with may be considered record case, was no cause, there in this to determine to Patter- reasonably related inferentially directly or evidence v. Holmes in his home. See concealed having gun son’s (2002)(finding proba- 506, 519, A.2d 368 Md. in on the defendant’s part relied the affidavit where ble cause therefore, record, record). criminal Patterson’s criminal past Patterson suspicion unconfirmed in with an combination the primary traffic stop, firearm at the scene had a in Patterson’s would be found gun that a determining basis home. cause to probable found where courts reviewing

In cases Ward, firearm, in v. this Court State for a a residence search (1998) observed that 372, 379-80, 350 Md. below, there was cited reviewed or “in of the cases each violence, involving that a crime cause to believe committed, defendant that the had been weapon, the use of a resided at the that the defendant agent, criminal and was the case, Haak In Officer present to be searched.” place time of the gun at the possessed suspected Patterson he inferred suspicion, on that stop, and based traffic in have said at his home. We weapon had a stored Patterson “the mere observa- contraband that of a search for the context tion, documentation, participation of a defendant’s suspicion or itself, suffice, by activity necessarily will not in criminal evidence will be inculpatory probable establish that, more something There must be found the home.... inference, magis- neutral will allow a reasonable directly by found may contraband be that the trate to determine Holmes, 100-101. 796 A.2d at 368 Md. home.”

B. Good Faith Exception of our light holding that the warrant-issuing judge did not have a substantial basis for concluding that there was cause, we next consider whether the good faith exception exclusionary to the rule applies this case. The United States Supreme Court’s decision in United States v. Leon, (1984) 82 L.Ed.2d 677 and the companion case of Massachusetts Sheppard, (1984), 82 L.Ed.2d 737 set forth the appropriate determining test for whether faith excep tion should applied. be The Leon Court outlined four situa tions in which an officer’s reliance on a search warrant would not be reasonable the good faith exception would not apply:

(1) the magistrate was mislead by information in an affida- vit that the officer knew was false or would have known was except truth; false for the regard officer’s reckless for the (2) the magistrate wholly abandoned his detached neu- role; tral judicial

(3) the warrant was based on an affidavit that was so lacking in probable cause as to render official belief its unreasonable; existence entirely (4) the facially deficient, warrant was so failing partic- ularize place to be things seized, searched to be that the executing officers cannot presume reasonable it to be valid.

Leon, 468 U.S. at 104 S.Ct. at 82 L.Ed.2d at 699. noted, As Supreme Court “searches pursuant to a warrant rarely will require any deep inquiry reasonableness, into for a warrant issued a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in Leon, conducting the search.” 468 U.S. at 104 S.Ct. at 3420, 82 L.Ed.2d at 698.

As we in said McDonald v. 347 Md. n. (1997), n. question ultimate of “[t]he (Citations good omitted). faith legal vel non is a issue.” To end, a lower court’s determination as to the applicability rule is exclusionary to the exception good faith the Leon of U.S. v. dispute. not facts are when the de novo reviewed cir.2004). (4th making “In this 509, 520 DeQuasie, 373 F.3d of the circumstances determination, all of we consider omitted). (Citation Id. case.” hinge not does exception faith good application

The for determin- basis a substantial providing the affidavit upon Motz, writing Judge As cause. probable the existence ing noted: Fourth Circuit Appeals, Court the United States for application prevented also basis If lack of a substantial would exception exception, faith objective good the Leon ... fact, Leon states of substance. devoid be ... when an [prevented] faith is good finding objective cause in indicia of lacking “so affidavit is officer’s entirely reason in its existence official belief as to render 923, 104 82 L.Ed.2d Leon, able.” omitted). than demanding showing (citations This is a less prove required threshold basis” the “substantial place. in the first existence of Cir.2002). (4th With F.3d Bynum, mind, we turn to the standard appropriate judiee. to the case sub exception faith good Amendment exclusion- that the Fourth Patterson contends this case because apply “[t]he rule should ary not have ... could Haak] ‘facially [Officer deficient’... court that the district believing for grounds had reasonable more what application [any than] his properly given had judge that the argues The State stamp.” to a rubber amounted the four instances because apply should good exception faith exist in this case. do not apply where faith will the police entirely “it was reasonable contends that State logical police provided that “the the warrant” and rely was a ‘fair there the conclusion reasoning support items a firearm and related that Patterson had probability’ [mjotel room.” his excep- faith good limitation to the the first supra,

As noted in information authority by is “misled issuing where the tion is an affidavit the affiant knew was false or would have known was except false for his disregard reckless for the Leon, 923, 104 truth.” 468 U.S. at S.Ct. 82 L.Ed.2d at 699. The first limitation good Leon faith exception is inapplicable to the instant case. Patterson in allege does petition certiorari, his for that Officer Haak misled magis trate with he information knew was false or would have known was false but for the officer’s disregard reckless for the truth.

The second applicable limitation is “in cases where the issuing judge wholly abandoned his in role the manner con York, demned in Lo-Ji Sales v. New (1979).” Leon, 60 L.Ed.2d 923, 104 468 U.S. at Sales, L.Ed.2d at 699. Lo-Ji the Supreme Court held that search warrants that left the decision of what items were to be entirely seized up the discretion of the executing officers were invalid. 442 U.S. at 99 S.Ct. at 2319, 60 L.Ed.2d at 925. The search warrant issued judice case sub did not leave the decision of the search items to the discretion of the executing officers. The warrant specifically provided for the seizure of a “firearm and/or ammunition, paperwork and documentation related to the possession, acquisition, disposition, and maintenance of fire arms Garfield Patterson’s name.” Additionally, the officers were permitted to seize magazines, “ammunition ammunition boxes, holsters, pouches, boxes, ammunition firearm cleaning kits, vests, bullet proof firearm parts, and accessories firearms such as grips, scopes, and slings.” Accordingly, search warrant issued here does not fall within portion this the exclusions from the Leon rule. exception Leon,

The third created where “[the] based on an affidavit [was] ‘so lacking [that was] indicia of probable cause as to render official belief its ” entirely existence unreasonable’ has no application in the Leon, instant case. U.S. at 104 S.Ct. at (internal omitted). L.Ed.2d at 699 citations exception This requires under Leon the application of an objective test of a officer’s faith reliance on the search warrant. The

107 “officers, exercising professional that objective requires test that the averments reasonably have believed judgment, could continuing violation present affidavit related a of their affidavit, that their law, from date of not remote place identified likely found at sought [the would be evidence 735, A.2d 322 Md. at 589 958. Connelly, in the affidavit].” in nature as to be ‘bare bones’ The affidavit “cannot so in stamp’ a ‘rubber issuing judge that the acted as suggest Wilhelm, the warrant.” U.S. v. for approving application (4th Cir.1996). 116, 121 80 F.3d is affidavit

An is “bare an affidavit that bones” probable in indicia of “lacking be considered to be might entirely official belief in its existence cause as render exception faith would unreasonable” such the Leon Leon, 468 at 104 S.Ct. at 82 U.S. apply. one 699. A “bare affidavit is that contains L.Ed.2d at bones” statements, which the facts and cir “wholly conclusory lack deter independently from which a can magistrate cumstances Laury, F.2d cause.” United States v. 985 probable mine (citation omitted). (5th Cir.1993) 23 1311 n.

A in cause determination is probable mistake if “a officer would have known reasonably obvious well trained illegal authoriza despite magistrate’s that the search was Leon, at 104 at n. tion.” 922 n. S.Ct. 3420 82 A reasonably at 698 23. well-trained officer should L.Ed.2d n. unreasonable know that a warrant cannot authorize an search probable a warrant on less than cause search issued Leon, 960-61, 3445-46, 468 at 104 S.Ct. at illegal. See U.S. (Stevens dissenting). Additionally, at 82 L.Ed.2d J. must know that the affidavit he reasonably well-trained officer with a substan provide magistrate has to she submits probable determining tial the existence cause. basis Gates, at L.Ed.2d U.S. issuing Notwithstanding holding judge our cause, after probable did not have substantial basis find alleged in and the assessing the facts the warrant affidavit, conclude, nonetheless, that Officer we accompanying Haak objectively reasonable his reliance the District judge’s probable Court determination cause.9 affidavit by Officer lacking submitted Haak was not “so indicia of probable as to cause render official belief its existence Leon, entirely [unreasonable.” S.Ct. at Although 82 L.Ed.2d at 699. we have determined that there was no to support substantial basis finding, say we cannot that Officer Haak was unreasonable relying on the warrant. The warrant application provided, although substantially weak, some indicia of cause. In support application, his Officer noted Haak that the police empty gun officers removed an holster from the ground police underneath Patterson and also detailed the officers’ subsequent search of the area where Patterson was appre hended, magazine and their discovery containing bullets. Officer the magazine Haak surmised that fit recovered the type gun, that would have fit the empty holster. Notwith standing supposition, that there were other facts alleged. The eyewitness warrant also contained statements from an who way observed hip which Patterson held his as he ran away Haak, from Officer as well as a confirmation Patter address, son’s based upon police the observations of officers their stemming month-long from surveillance of Patterson. addition, police outlined history. Patterson’s criminal warrant under review is supported by an affidavit based part on the first-hand knowledge and the observations of Supreme 9. As the Court noted: reasonableness, necessary objective It only is to consider the warrant, eventually who officers executed a but also of the originally provided officers who obtained it or who information determination____ probable-cause material [A]n [can- officer not] obtain on basis of warrant a "bare bones” affidavit and rely colleagues ignorant then on who are of the circumstances under which the warrant was obtained conduct the search.

Leon, at 923 n. S.Ct. at 82 104 3420 n. L.Ed.2d at 698 State, 728-729, Connelly n. 24. 322 See also v. Md. 589 A.2d State, (1991); 599, 637, Md.App. 963 Braxton v. 123 720 A.2d 45-46 (1998). out, points speaks Professor LaFave "when the Court good police, talking good faith of it is about going their faith before magistrate good they to the and not about their faith have received after 1.3(f), § the warrant....” LaFave 1 and Search at 90. Seizure

109 information an unnamed infor from and not officers See U.S. Wil unreliable source. similarly mant other Cir.1996) (4th helm, (concluding that F.3d alia, because, inter it was based bones” affidavit was “bare an and lacked indica an informant information from unnamed reliability). To truthfulness tion of the informants’ Haak of law that Officer end, say as a matter we cannot determination issuing-judge’s second-guessed have should Moreover, existed.10 evidence create sufficient provided search warrant judges as to competent disagreement among thoughtful Leon, 926, 104 U.S. at cause.11 the existence of Greenstreet, 701; Md. 82 L.Ed.2d “[wjhere the defect the warrant A.2d (noting at 977 officer, or, where the to a well-trained readily apparent is not disagree to create based on ‘evidence sufficient as to the exis thoughtful judges among competent ment cause,’ exception will good then the faith tence of probable 707, 715, 10. We in Minor v. Md. noted (1994) that: between reviewing issued would seem to knew that the warrant ble cause and that he should nator requires. decided on their Malley Briggs], the presentation would know failed to establish elucidated officer L.Ed.2d 271 to Although second court among issuing judge. would have known [v. the role the decision First, guess Leon, cases (1986)] (footnote an them. is asked to the test is an specific the the 475 U.S. the Implicitly judge; question is whether a A test made police raise place issued facts, "that ^[335] for a warrant that a well-trained that the officer's suppress.... omitted). officer probable cause. these cases objective, the there by his affidavit not have the at looks to whether Leon police the judge, but is at least one common denomi- who seeks the warrant and judge Thus, legal present applied officer in the duty Further, failed to establish reasonably should not one, the officer has no faith that is is withhold ^[1092] for the warrant.” to and is the degree issue are to be as not police well-trained at Malley position what have been applied by of tension 1098[, proba- officer officer from Leon duty that has case, issuing judge judge In the and the Circuit Court 11. this both suppression hearing there was sufficient conducting believed that the addition, judges the three Court of evidence of cause. issuing for the Special Appeals, on of the substantial basis review warrant, evidence of cause. that there sufficient believed Therefore, apply.”) Officer Haak was objectively reasonable warrant, in relying and there is no reason that he should have known was to improper it have applied alleged. warrant on the basis of facts Accordingly, as search warrant instant does case not fall under this to exception. limitation the Leon faith

Patterson contends that exception, fourth deficient, facially where a warrant applies. disagree. We exception applies This when the warrant at issue fails to “particularize place to be searched or things to be Leon, seized.” 104 S.Ct. at 82 L.Ed.2d Despite exclusionary 699. Patterson’s urging, circum stance this apply does case. The affidavit and search warrant in the instant case were explicit place as to the to be searched and the items to be seized. The warrant instant case temporary identified Patterson’s residence at “12525 Laurel Bowie Road Laurel MD 20708 # 217” Room as to be place Additionally, searched. the warrant listed the items including ammunition, to be seized as “a firearm and/or paperwork and documentation related to the possession, acqui sition, disposition, and maintenance firearms Garfield name____” Patterson’s We conclude the warrant was not so facially police deficient that the officer could not reasonably conclude that it was valid.12 dissenting opinion position exception takes the that this contains element, grounds a substantive such that if the for a warrant are insubstantial, particularity requirement the warrant will fail the even though places lists the be it to searched and the items to be seized. The adding particularity effect of require- this substantive element merge "exceptions.” ment is to the third and fourth Leon Because the Court, by creating separate "exceptions,” Leon these must have intend- give meaning "exceptions,” ed to different to the third fourth we Furthermore, position. decline take Court Leon created "exceptions” particular these to illustrate four scenarios where a Leon, rely officer be would unreasonable on warrant. 468 U.S. at 922-23, 3420-21, 104 S.Ct. at L.Ed.2d 698-99. Rather than elements, dividing procedural exception the fourth into and substantive proper the facially focus is whether the was so deficient that executing reasonably the officers not have could relied the warrant. Thus, example Id. to borrow dissenting opinion, an from the a careful bomber, precise listing original of B-2 copy the of Newton's

Ill police to deter exclusionary designed rule is magis misconduct, judges the errors of punish to not at Leon, at 104 S.Ct. See trates. case, an cannot be ordinary officer at “In

L.Ed.2d probable-cause determi magistrate’s expected question is form the warrant judgment nation or his issues, there is liter the warrant technically sufficient. Once seeking comply can do nothing policeman more the ally error, magistrate’s Penalizing officer the law. with to the deter own, logically contribute than his cannot rather Leon, U.S. at Fourth Amendment violations.” rence of case, the at 697. In this 82 L.Ed.2d 104 S.Ct. misconduct, rule, police deterring exclusionary purpose because, of the evidence under by suppression achieved warrant, circumstances, “it issued the can judge after the knowledge, may [have had that [Officer Haak] be said [not] knowledge, that search charged with properly been] Fourth Amendment.” Id. under the unconstitutional case, affidavit, present in the Although we hold that issuing judge’s con- support basis to lacked substantial nonetheless, existed; we hold that clusion that cause enough warrant was substantial the affidavit not “so Haak’s affidavit was exception. faith Officer as to render official belief in indicia lacking Leon, entirely unreasonable”. in its existence Therefore, the evidence L.Ed.2d at 699. temporary of Patterson’s as a result of the search obtained properly residence was admitted. THE OF APPEALS OF COURT SPECIAL

JUDGMENT AND IN THE IN THIS COURT AFFIRMED. COSTS PAID BY PETI- APPEALS BE COURT OF SPECIAL TO TIONER. BELL,

BATTAGLIA, J., in which and files opinion dissents C.J., joins. facially fairy a warrant would be

Principia, dust and a unicorn in expect no officer could to find these deficient because reasonable place to be searched. items in 112

BATTAGLIA, Judge, dissenting. concluded,

I respectfully Having correctly my dissent. in view, issuing judge lacked a for substantial basis issue, finding probable support cause to the search warrant at majority erroneously applies hypertrophic version of the Leon, doctrine of United States v. exception faith 468 897, 3405, (1984), U.S. 104 uphold S.Ct. 82 L.Ed.2d 677 to judice. the case sub search in I patently unconstitutional would hold that the reasonably warrant affiant could not have relied on the warrant particularity and is requirement implicated whenever a search warrant enumerates items which as attenuated as here. Ohio, v.

Since the Mapp Supreme Court decision 367 U.S. 1684, (1961), 81 S.Ct. 6 L.Ed.2d 1081 Fourth Amend ment to the Constitution1 been applicable U.S. has held to the states by incorporation through the Fourteenth Amendment.2 resulting meant, The of federalization search and seizure law in particular, required states were to follow the States, v. Weeks United exclusionary rule of 232 34 U.S. (1914) S.Ct. 58 L.Ed. 652 (holding that evidence seized of generally violation the Fourth Amendment is inadmissible trial). resulting Supreme criminal subsequently Court limited the of the exclusionary rule in a series Calandra, United States v. cases, 414 U.S. houses, right people

1. "The persons, of the to be secure in papers, their effects, seizures, against and unreasonable searches and shall not be violated, issue, cause, upon probable and no sup- Warrants shall but affirmation, ported by particularly describing place Oath or to Const, searched, persons things be and the or to be seized." U.S. amend. IV. part, 2. In relevant the Fourteenth Amendment states: States, persons subject "All born or naturalized in the United to thereof, jurisdiction are citizens United States they any State wherein reside. No State shall make or enforce law abridge privileges which shall or immunities citizens of the States; life, any deprive person any liberty, United nor shall State law; property, process deny any person without due nor jurisdiction equal protection within its of the laws.” XIV, § U.S. Const. amend.

H3 (1974) grand (exclusionary inapplicable rule 561 38 L.Ed.2d Janis, 433, 96 v. U.S. United States jury proceedings); (1976) (exclusionary rule inappli 49 L.Ed.2d S.Ct. Powell, 428 v. Stone proceedings); civil cable (Fourth (1976) Amendment claims 3037, 49 L.Ed.2d S.Ct. United States corpus petition); habeas not be raised could (1980) L.Ed.2d Payner, (evidence crimi from third admissible party seized illegally it trial), is well settled culminating in Leon. Because nal Rights3 is construed Maryland 26 of the Declaration Article Amendment, v. Byndloss with the Fourth pan materia (2006); 462, 1, 1119, 1121 n. 1 State, n. 391 Md. 465 893 A.2d 1006, 484, 506, 1019 State, 864 A.2d 384 Md. v. Fitzgerald prece (2004), applied Supreme Court generally this Court has guaranteed protections the extent of the dent delineate Article 26. require relaxed the usual Although Leon 4 standard, reasonably “whether ‘a stringent to the less

ment was known that search trained officer would have well Minor v. judge,” from the despite the authorization illegal’ (1994), 707, 214, State, 717, quoting 641 218 A.2d 334 Md. 23, Leon, 23, n. 82 L.Ed.2d 922 n. S.Ct. at 3420 468 U.S. at 104 a judge’s have never held that authorization 698 n. we at duty own independent from his effectively relieves the affiant in the majority with the law. The instant conformity to act rely on an reasonably police may holds that a officer case Moreover, it warrant. is well unreasonable search objectively judged officer is under that the behavior settled warrants, affirmation, suspected to search "That without oath or all 3. person grievous oppressive; any property, are places, or to or seize apprehend suspected places, general or to and all warrants search suspected persons, naming describing place, or the or without illegal, ought granted.” person special, not to be Md. are Decl. Rights, Art. 26. probability ‘fair that contraband or evidence cause means a "Probable place.'" particular in a McDonald v. of a crime will be found Gates, 452, 467, (1997), quoting 701 682 Illinois v. 347 Md. A.2d 213, 238, 2317, 2332, (1983). 462 U.S. S.Ct. L.Ed.2d Leon, objective an standard. 468 U.S. at 104 S.Ct. at Therefore, 82 L.Ed.2d at 698. the majority holding today objectively countenances reasonable reliance on an ob jectively unreasonable search warrant. Because this holding logically impossible, I dissent.

I. The Exception Good Faith Exclusionary to the Rule out,

As the majority points explicated Leon four circum stances under which the rule exclusionary apply, would still that, provided circumstances, under those a reviewing court should infer that the warrant affiant did not act in faith. Ante at 365. Those “exception[s] Minor, the exception,”5 334 Md. at (Bell, A.2d at 221 (1) J., dissenting), include: cases where the warrant affidavit procured Leon, with or “knowing falsity,” reckless 693; 82 L.Ed.2d at Franks v. Delaware, 154, 165, 2674, 2681, 438 U.S. 57 L.Ed.2d (1978); (2) 667, 678 judge cases where the magistrate has abandoned pretense all of neutrality and functions effectively “as rubber stamp Texas, for the police,” Aguilar 108, 111, 1509, 1512, 84 S.Ct. 12 723, (1964), L.Ed.2d 727 magistrate where the acts as “an adjunct law enforcement officer,” Sales, York, Lo-Ji Inc. 319, 327, v. New 442 U.S. 99 2325, 2319, 920, (3) (1979); S.Ct. 60 L.Ed.2d 929 cases where a warrant was issued in reliance on an affidavit that fails to “ provide ‘a substantial basis for determining the existence of cause’,” Leon, probable 915, 468 3416, U.S. at 104 S.Ct. at 82 693, Gates, L.Ed.2d at quoting v. 213, 239, Illinois 462 U.S. 2317, 2332, 527, (4) 103 S.Ct. 76 (1983); L.Ed.2d 549 cases “ where a facially warrant is ‘so ... deficient that the execut ” ing officers reasonably cannot presume it to be valid.’ State, 652, 679, Greenstreet v. 961, Md. 898 A.2d Judge 5. As then M. dissenting opinion Robert Bell noted in his in Minor 707, (1994) (Bell, J., 334 Md. 720 n. 220 n. 1 dissenting), Supreme Court itself was unclear whether exception exception faith was "an or intended to be the rule.” at Leon, S.Ct. at (2006), 468 U.S. quoting at 699. L.Ed.2d (2) (1) The here. inapposite are

Clearly, exceptions Leon, at from quotes language majority (3) exception as 699, to cast 82 L.Ed.2d at at S.Ct. that was so an affidavit warrant was based on “the whether in its official belief as to render lacking probable ” A.2d at Ante entirely unreasonable.... existence a circumstance undisputed that such it is Although on war- in reliance search conducted invalidate a would Leon: rant, following passage from overlooks the majority a warrant based Third, courts will not defer to reviewing with a magistrate “provide an affidavit that does of probable the existence determining substantial basis to the presented must be information cause.” “Sufficient official determine to allow that magistrate of the bare cause; ratification action cannot be mere his the warrant of others.” Even conclusions if affidavit, a bones” by more than a “bare was supported that, notwithstand- may conclude properly court reviewing deserve, warrant was magistrates ing deference determina- magistrate’s probable-cause because the invalid totality improper analysis tion an reflected circumstances, of the warrant was or because form respect. some improper 3416-17, 915, 104 (empha 82 L.Ed.2d at 693-94

Id. at omitted). added) (citations sis noted, limiting suppres- so

The Leon Court further “[i]n probable-cause we standard remedy, leave untouched the sion for a warrant.” Id. at requirements various valid and the particular, 82 L.Ed.2d at 699. explicated was that cause standard left untouched one earlier in Gates: year to make a issuing magistrate simply task of the whether, given all the

practical, common-sense decision him, including forth the affidavit before circumstances set knowledge” “veracity” persons supply- and “basis of information, a probability there is fair ing hearsay in a of a crime will be found contraband evidence reviewing court is place. duty And the a particular 116

simply magistrate to ensure that had “substantial ... basis for concluding]” that probable cause existed. 238-39, 462 2332, U.S. at 103 S.Ct. 76 L.Ed.2d 548 (alteration States, in original), quoting Jones v. United 362 271, 257, 725, 736, (1960). 697, U.S. 80 4 L.Ed.2d Likewise, the requirements “various for valid warrant” were embodied in the totality-of-the-circumstances test.6 Gates case,

In the majority instant the search finds deficient the Gates test. As I will explain when measured Gates subsequently, contemplated test applied judice the case sub is not a de novo review the ultimate legal rather, conclusion of the warrant-issuing judge; our “great review extends decision. Id. judge’s deference” 236, 103 S.Ct. at 76 L.Ed.2d at 547. The Gates Court held that the proper standard of appellate review of search warrants magistrate was whether “the had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of (citation omitted). wrongdoing----” Id. Under that deferen standard, tial majority correctly holds that the judge lacked a “substantial basis” for the search issuing warrant. majority cites the opinion Judge Diana Gribbon Motz of the U.S. Appeals Court of for the Fourth Circuit in United v. Bynum, States (4th Cir.2002), F.3d for the “ proposition that provides ‘[substantial basis’ the measure for determination whether in the exists first instance.” In contention, of that support Judge Motz cites Harris, United States v. 91 S.Ct. (1971). Harris L.Ed.2d 723 applied the substantial basis test to determine whether an informant’s hearsay could be relied previous appellate Gates overruled a test for review of search war- Texas, AguilarSpinelli Aguilar rants known as the test. v. 378 U.S. (1964), States, 84 S.Ct. Spinelli 12 L.Ed.2d 723 v. United (1969), 21 L.Ed.2d 637 the Court had developed two-pronged required independent test that evidence of an reliability knowledge. informant's Stanley basis of See (1974). Md.App. test, two-pronged A.2d 847 Gates relaxed the requiring only instead magistrate the evidence submitted to a satisfy totality-of-the-circumstances a flexible standard. did in Harris Nowhere search warrant. in of a upon support cause; non of probable vel the existence the Court address magistrate’s the was whether of Harris the entire focus 579-80, at Id. at 91 S.Ct. reasonable. was determination Chief Justice opinion by the II of at 731. Part L.Ed.2d reviewed only three Justices Burger, a total Warren E. standard under a deferential determination magistrate’s 2080-82, 29 580-83, Harris, 91 S.Ct. at review, U.S. at C.J., Black- joined by Black and (Burger 732-33 L.Ed.2d at step took a first towards mun, JJ.); Harris Court at at 84 S.Ct. overruling Aguilar, eventual States, 393 Spinelli v. United 1509, 12 at and L.Ed.2d (1969), that culminated 21 L.Ed.2d 637 89 S.Ct. U.S. years later Gates. some twelve case is the majority in the instant on the The distinction lost cause, actually there whether difference between have determined issuing judge an could simply and whether decided, Leon was probable cause. When there was vigorous dissent which penned J. Brennan Justice William prong of the third Leon redundancy he pointed out Gates, necessity reaching questioned holding that the lower likely when it was the issue decided Leon simply on remand the same result courts would have reached Leon, 958-59, applying Gates. J., 3444-45, (Brennan, dissenting). Un- at 721-22 82 L.Ed.2d full Brennan could foresee the fortunately, not even Justice its progeny: that would result from Leon and enormity Gates], virtually it standard is [as Given such a relaxed court, with a reviewing when faced inconceivable that could first find that suppress, defendant’s motion to standard, but under new Gates warrant was invalid then, time, find officer’s reliance on police that a same rea- “objectively an invalid warrant was nevertheless such the two today. announced Because sonable” under test completely, unlikely so it that a war- overlap standards yet the police rant found invalid under Gates could be reasonable; objectively upon it could be seen as reliance otherwise, mind-boggling have to entertain the we would

concept objectively upon reasonable reliance an objective- ly unreasonable warrant. added). (emphasis

Id. Unfortunately, majority present case exactly entertains that “mind-boggling concept” and holds that the officer reasonably rely could on an objectively unreasonable search warrant. Cause,

II. Probable Substantial Basis of Standards Review The notion of “substantial basis” arises in the context of seizure, appellate of search and review the determination probable of Greenstreet, 652, cause se. per Md. 898 961, recently A.2d we explicated process that appellate courts undertake in reviewing contested search and seizure warrants. “We determine first whether the issuing judge had a substantial basis to conclude that the warrant supported by probable cause.” Id. at 898 A.2d at 970. In so doing, do not review; rather, we a de apply novo standard of we apply a deferential standard. Id. The task of issuing judge i.e., cause, is determine the existence probable “to practical, whether, make a given common-sense decision all ..., the circumstances there is a fair probability that contra- band or evidence of a crime particular will be found 667-68, Gates, place.” Id. at 898 A.2d at citing 462 U.S. 103 S.Ct. at 76 L.Ed.2d at 548. The task of the court, however, appellate is to if determine there only exists a for the issuing judge’s substantial basis decision that cause existed. This cannot be the same as the legal determi- nation whether probable cause existed the first place. California,

In Ker v. 83 S.Ct. 10 L.Ed.2d (1963), Supreme Court reviewed a warrantless search and held that the standard of review was de novo. The Court that “the explained reasonableness a search is in the first instance a substantive determination by to be made trial court from the facts of the circumstances case” but that such “are findings respected only insofar as consistent with guarantees” federal event, constitutional and in any “findings of state by courts are no against means insulated examination” 1630, 10 33-34, S.Ct. at Id. at Court. by Supreme this Court that “[w]hile The Court stated at 738. L.Ed.2d contradictory factual prius appraise not sit as nisi does to the will, necessary determination it where questions, of the examination independent make an rights, constitutional it determine the record so that can facts, findings, and funda- as to reasonableness decision itself whether mental—i.e., by this Court established constitutional—criteria 10 L.Ed.2d Id. at respected.” have been se Therefore, per the existence review. to de novo susceptible and fact mixed law question (9th See, McConney, 728 F.2d e.g., States United 11.7(c) § Cir.1984); LaFave, & Wayne Search Seizure R. 2004). (4th ed. judge’s contrast, basis review

By appellate substantial some courts has deemed a warrant been decision issue clearly erroneous standard. to review under the tantamount (7th 262, 269 See, 965 F.2d Spears, United States v. e.g., 11.7(c). Indeed, Cir.1992); LaFave, §at the Court of the basis taken view that substantial Appeals has Special See, clear error review. even more deferential than review is 1186, 502, 521, 1198 Md.App. 145 805 A.2d Coley, State v. e.g., 19, Amerman, 461, 472, (2002); 581 A.2d Md.App. v. 84 State (1990). benefit already review affords the 24 Substantial basis of evidence permitting the the the admission doubt to de novo to that would not withstand warrants pursuant seized Special Moylan Charles E. the Court Judge review. basis just how much deference substantial explained Appeals issuing judge: the grants review circumstances, not at all logical it is perfectly the

Under say, “I might suppression hearing judge that a unexpected circum- find from these myself would not say that stances; immaterial. I cannot but that is cause from judge who did warrant-issuing find so; is do and that them a substantial basis to lacked material.”

Amerman, 464, 20. See also Md.App. 84 at at (3d Cir.2005) Ritter, 256, 263-64 v. 416 F.3d States United 120

(“Were we reviewing magistrate’s novo, decision de we might However, reach a different result. the Supreme Court us, has charged reviewing when the sufficiency of an affidavit warrant, and resulting engage to scrutiny’ ‘after-the-fact ”) (alteration form de novo ‘take[s] review.’ Gates, original), quoting 462 U.S. at 103 S.Ct. at L.Ed.2d at 547.

The Supreme explained Court the policy considerations its undergirding grant decision to deference to the warrant- issuing magistrate. principal Its police, concern was that if confronted hypertechnical with a warrant process subjected to judicial scrutiny, detailed tempted would be skip war- Gates, process altogether. rant 462 U.S. at 103 S.Ct. at (“If 76 L.Ed.2d at 547 the affidavits by police submitted subjected officers are type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with hope of relying on consent or some other exception to might develop Warrant Clause that at the search.”). time

Even though the warrant application process ex parte, Leon, 22, 104 at 970 n. at S.Ct. 3451 n. 82 L.Ed.2d (Stevens, J., n. 22 Franks, concurring and dissenting); U.S. 57 L.Ed.2d at and a reviewing court essentially sees issuing same record as the judge, Court has nonetheless adopted deferential rather than a de novo standard for the express purpose of encourag ing apply warrants. See Ornelas v. United States, 690, 699, 1657, 1663, 134 L.Ed.2d (1996), Ornelas-Ledesma, rev’g United States (7th Cir.1994) (The F.3d 714 Supreme Court determined that subject warrantless searches are to de novo review rather than the Gates substantial applicable basis test to review of warrants, search stating explicitly that “the are more likely use the warrant process if the scrutiny to a applied magistrate’s probable-cause determination to issue a searches.”). is less than that for warrantless As the Leon Court stated:

121 scrutiny detached “provides the a search warrant Because safeguard which is a more reliable magistrate, aof neutral of a judgment than the hurried against improper searches competitive often ‘engaged law officer enforcement ” crime,’ a expressed we have ferreting of out enterprise that “in a and declared for warrants preference strong may a be a under warrant marginal or case search doubtful would fall.” Reasonable one it sustainable where without on the whether frequently may question differ minds cause, we have probable affidavit establishes particular for warrants is most preference thus concluded “great deference” to by according effectuated appropriately determination. magistrate’s 913-14, 3415-16, 692-93 at 82 L.Ed.2d at at U.S. Ventresca, omitted). (citations See United States (“A (1965) 102, 108, 741, 746, L.Ed.2d courts toward negative by reviewing attitude grudging from submit- discourage police will tend officers warrants acting.”). officer before ting judicial their evidence to a the deferential substan- erroneously The conflates majority to the issu- appellate applicable standard review tial basis determina- legal warrants with the ance of search seizure adopting per majority se. The errs tion states, it Bynum, 293 F.3d at where analysis “[i]f prevented application lack of a substantial basis also would be objective good exception, exception Leon faith at The Ante at devoid of substance.” however, itself, opposite stated the exact Supreme Court Leon, 468 Bynum today’s holding. See Gates, quoting U.S. at S.Ct. at L.Ed.2d where the Court 103 S.Ct. at 76 L.Ed.2d said, will not defer to a warrant based an “reviewing courts ‘provide magistrate with a substan- affidavit that does not determining the existence cause’.” tial basis majority today appreciate court and the fail Bynum already permits the fact that deferential review borderline they in favor of the To maintain as do proceed cases to State. reasonably rely an on a warrant that does not may affiant 122

satisfy even substantial review basis would amount as a prac holding tical matter to that the decision of a to judge issue a susceptible warrant is not appellate review. That cannot be Indeed, of the Leon Court said, correct statement the law. ... magistrate “[d]eference is not boundless.” 468 U.S. 3416, at 104 S.Ct. at 82 L.Ed.2d at 693. The Court pointed out that a good officer’s faith he belief that is acting accord with the Fourth Amendment is insufficient in Id. objective the absence of an for that basis belief. at 915 n. 104 S.Ct. at 3416 n. 82 L.Ed.2d at 693 n. objective determination of the affiant’s good faith can come only from an external In source. the usual case where there is no evidence of deliberate falsification the warrant applica tion, Franks, at-, at-, 438 U.S. 98 57 S.Ct. L.Ed.2d -, that external source only can be the four corners of Greenstreet, warrant itself its supporting affidavit. 392 Valdez v. 971; Md. at 160, 168, 898 A.2d 300 Md. (1984). case, 1166 instant has been found objectively unreasonable Court. this

What the majority proposes is to insulate the actions farther appellate affiant from review by holding that the officer acted faith our despite holding that the warrant clearly was unsupported by Moreover, cause. inevitable result of the holding today convey “to clear and message to unambiguous [judges] that their decisions to issue warrants are now from subsequent judicial insulated review.” Leon, 104 S.Ct. at 82 L.Ed.2d at 720 (Brennan, J., dissenting). Particularity Requirement

III. The The Fourth Amendment was part enacted large pro hibit the odious practice general British warrants permitted virtually unlimited of private searches dwellings Carter, See Minnesota v. places 83, 94, business. 525 U.S. 469, 475, (1998) (Scalia, J., L.Ed.2d Case, concurring), citing Semayne’s (K.B. 77 Eng. Rep. 194 1604) Coke, Sir Edward Institutes the Laws (1797) England 176-177 for the proposition Magna mere sur “general warrants based had outlawed Carta 1185, 1197, Evans, 1, 23, mise”; Arizona (“The (1995) J., (Stevens, dissenting) use of 131 L.Ed.2d for evidence of violations of warrants to search general understandably outraged the authors revenue laws Crown’s Sales, 325, Bill Rights.”); Lo-Ji (“This and what 2323, search warrant 60 L.Ed.2d at 927 are reminiscent of petitioner’s premises entry followed the century the 18th or writ of general warrant assistance pro Fourth Amendment was intended to which the against tect.”). “no requirement The result was the fundamental cause, issue, by supported upon shall but Warrants affirmation, describing place to or and particularly Oath searched, things or to be seized.” U.S. persons be and the added). warrants (emphasis That search amend. IV. Const. ... to be seized” is so things describe “particularly must implications. inured to its that courts have become elementary effectively particularity would obviate the majority today The exception inapplicable fourth Leon by holding the requirement judice. to sub the case particularly physical loca-

The warrant at issue described Road, 217, tion, things and a list of 12525 Laurel Bowie Room ammunition, “a firearm to be seized that included and/or to possession, acqui- related and documentation paperwork sition, and maintenance firearms Garfield disposition, ... well ammunition name or known alias as as Patterson’s holsters, boxes, pouches, ammunition ammunition magazines, vests, boxes, kits, firearm cleaning proof parts, bullet firearm ” The fact that the warrant for firearms.... accessories enumerated, precision, lengthy with seemingly impressive necessarily that the warrant of items does not mean roster holding today, so requirement. By particularity satisfied the and denies that the majority elevates form over substance meaning. The requirement any has substantive particularity only on the from record is basis clear conclusion this was reason whatsoever any hunches there wildly improbable fair that the Petition- probability” to believe that there “a possessed any 17, er of the enumerated articles on November judice the case sub

The warrant particularity violated the Ramirez, v. Groh requirement. (2004) 157 L.Ed.2d (holding that search

warrant failed when it particularity by failed to incorporate affidavit); a facially Giles reference valid Md.App. (1970) (conviction reversed because search blank positions provided warrant was for name and searched, to place be and warrant failed incorporate reference). supporting affidavit purported “particularly describe” items to be seized that could not have reasonably expected been be found in Room Inn, Red Moreover, Roof fact never were found. pursuant to Article Assembly General in 19397 enacted alia, inter mandating, a statute that “[t]he search warrant describe, ... name with shall particularity reasonable ... person, the building, apartment, premises, place, thing or to searched; grounds be the for the [and] search[.]” Md.Code (1957, l-203(a)(3)(ii) Repl.Vol. 2001 & 2006 Supp.), Section of the Criminal Procedure Article. grounds Because the for the search in the present insubstantial, case were so it clear is l-203(a)(3)(ii). that the search also violated Section One wonders whether the majority’s reasoning apply would if the carefully precisely had and a listed bomber, B-2 original of Newton’s Principia, copy fairy dust and a unicorn as the items be seized. Obviously point is to illustrate of a means deliberately absurd exam- must ple particularity that the requirement carry a substan- tive meaning any addition to formal procedural I aspect. submit that when a warrant fails substantial basis review because underpinnings its factual are patently as insubstantial case, in as it this then will also be true the warrant fails Laws, Chap. See passed 1939 Md. 749. Senate Bill 116 was 11, 1939, subsequently signed May law Mary- into and was codified at (1939), 27, land language quoted Code Article Section 306. The in the unchanged substantively day. text above has remained to this

125 Moreover, “[although requirement. particularity under fact, require- to overlook this tends opinion the Court’s ‘technicality,’ it an a mere is not particularity of ment 947, Leon, 104 468 U.S. command.” constitutional express J., (Brennan, dissenting). 714 3439, 82 L.Ed.2d S.Ct. at doctrine, see, e.g., plain view light of When viewed 2130, 374-75, Dickerson, 366, 113 S.Ct. v. 508 Minnesota 334, (1993); California, v. 2136-37, 124 Horton L.Ed.2d 2301, 2307-08, 110 128, 136-137, L.Ed.2d S.Ct. 496 U.S. 1050, 1032, 112, (1990); Long, v. 463 U.S. Michigan 122-23 1201, (1983), today’s 77 L.Ed.2d upholding By more ominous tone. decision assumes case, its majority gives imprimatur issue in this search at If the faith warrant process. abuse grave here, effect will be then inevitable applies exception today’s decision because particularity requirement, obviate Article of a warrant. general the issuance effectively permits “all Rights commands Maryland 26 of the Declaration to be illegal, ought granted.” ... general warrants are “grievous permitting such join majority I cannot practice. oppressive” Maryland Exception the Good Faith

IV. Cases Under majority anomaly cases illustrates the A review our Greenstreet, Md. at the instant case. decision on the basis a search warrant had been issued in a discarded incriminating evidence discovered search Greenwood, pursuant trash to California (1988) (trash left for L.Ed.2d curtilage may the of a home be searched collection outside warrant). was of the trash search a The listed date without execution, prior to the date of warrant year more than one rule hold that the warrant we four corners applied gathered that the evidence consequently, its was stale and face Greenstreet, must excluded. to the warrant be pursuant good The argued 898 A.2d at 966. State Md. at evi- because extrinsic exception apply, part faith should strongly dence8 date suggested noted on the warrant error, was a typographical but “we not conclude that a [did] reasonable, police well-trained officer executing the warrant would believe that the warrant authorized the search because the lack of cause apparent on the [was] face affidavit when the rise giving evidence to a in probable belief a year old and [was] indicate continuing [did] Id. at activity.” criminal 898 A.2d at 979. McDonald v.

In (1997), 347 Md. 701 A.2d 675 appellant possession was convicted of CDS with intent distribute, having lost a suppression hearing, at which he argued that the search warrant was defective because it was it anticipatory9 because was unsupported by probable Id. at cause. 701 A.2d at suspicion 677. Police been had aroused investigator when UPS during discovered a random check package containing CDS was addressed to the Id. at question. 456-57, premises 701 A.2d at The 677. an police subsequently filed for a search warrant UPS, for the by address arranged disclosed con for a Id. at delivery. 457-59, trolled 701 A.2d at 677-78. After the delivery, controlled executed the search warrant and appellant discovered the in possession of contraband. Id. at 460, at A.2d 679. argued State successfully that the faith exception Id.

applied. 701 A.2d at analysis, its the Court question avoided the whether the warrant itself was supported cause, looking instead to the four-pronged Leon test. Id. A.2d 683. In holding that the appellant had failed to demonstrate that any “exceptions exception” outlined in Leon applicable, were the Court noted regular day 8. The trash premises question collection was error, interpretation consistent with the State's typographical of a point apparently swayed Special Appeals. the Court of State v. Greenstreet, 418, 435-36, Md.App. (2005). time, constitutionality 9. At the anticipatory search warrants McDonald, open 463-64, question, 680; an 347 Md. at 701 A.2d at subsequently, Supreme upheld practice. Court See United Grubbs, (2006). States v. 164 L.Ed.2d 195

127 (1) issuing judge the argued never appellant the that: falsehood or reckless through deliberate had misled been affiant,10 471, id. at 701 by the the warrant disregard for truth (2) to the 684; support the record nothing there was A.2d at his judge impartiality,11 had abandoned issuing the notion that (3) probable in indicia of id.; lacking was “the affidavit not so it rely upon the it was unreasonable for officers cause that contained several ob ... [because] [t]he reasonably from officers could have jective facts which the prem to search” the that there was cause concluded (4) 472, 685; ises, the warrant itself was 701 A.2d at id. at “ deficient—i.e., the facially failing particularize not ‘so things to be seized—that to be searched place reasonably presume war [the officers executing [could not] ” 473, 685, at quoting be valid.’ Id. at rant] to (1991). 719, 729, 958, Md. A.2d 963 v. 322 589 Connelly Minor, In at 641 at this Court 334 Md. A.2d applicability its to the exception examined the third Leon through a search for suppression CDS evidence uncovered investigating had been goods. police stolen officer believe, based on the motorcycle theft of a had reason to informant, motorcycle was word of a confidential 710-11, Id. 641 A.2d at particular stored at a residence. at executed, 215. the warrant did find When was CDS, quantity did a box of motorcycle, but discover 711, 641 razor and a beam balance scale. Id. at triple blades after A.2d 215. The noted an convictions appellant appeal at facts; pursuant guilty were to a not statement of he entered motion suppression the denial of his on the basis challenged unsupported by probable search warrant was cause reliabili the affidavit was silent about the informant’s because convictions, upholding In ty knowledge.12 and his basis of Delaware, words, 438 McDonald that Franks U.S. In other held 10. (1978), inapposite. S.Ct. 57 L.Ed.2d 667 was 98 Sales, York, words, New Lo-Ji Inc. v. U.S. S.Ct. other 11. (1979), inapposite. L.Ed.2d 920 abrogated Aguilar- Although Supreme this time had Court Spinelli previously required in a test that determination this Court determined had investigating officer made Gates, faith effort comply requirements with the L.Ed.2d her presentation of corroborating information in ap the warrant Minor, 715-16, plication. Md. at 641 A.2d at 217-18. 719, 958, at Connelly, 322 Md. 589 A.2d at the petitioner had been lottery convicted of violations of gambling and laws on the during basis evidence seized the execution of what the State later conceded was a defective search warrant. The petitioner argued unsuccessfully at his suppression hearing that search warrant was unsupported by probable cause it because was issued nine after months the surveillance cited “ affidavit, in the and because the ‘numerous occasions’ de scribed the affidavit were specific not as to dates.” Id. at 723-24, 589 analysis issue, A.2d at 961. In its of the “ Connelly Court followed Leon in confining inquiry its ‘to the objectively question reasonably ascertainable whether a well trained officer would have known that the search was illegal ” despite 730, the magistrate’s authorization.’ Id. at 589 A.2d Leon, 23, 104 at quoting 468 U.S. at n. S.Ct. at 3420 n. 23, 82 L.Ed.2d at n. 23. Because the issue of staleness as in light construed of Peterson v. 281 Md. (1977), could have either supported ruling below in by the

Connelly Special Court that Appeals probable cause stale, or that the affidavit furnished of a evidence continu ing sufficient, criminal enterprise legally thus was Connel ly, 322 atMd. 589 A.2d at this Court held that the police “could reasonably have believed that the averments of their affidavit a present related violation of continuing law, not remote affidavit, from date of their and that the independently satisfy that the warrant veracity affidavit both and basis- tests, of-knowledge that reliability part an informant’s constituted veracity prong, completely the Court did not abandon consider- reliability, credibility, veracity ation of an informant’s or basis of knowledge, merely but had reduced their stature to factors to be Gates, weighed totality-of-the-circumstances analysis. See & n. 230-33 103 S.Ct. at n. 2328-29 & 76 L.Ed.2d at 543-45 &

n. 6. Connelly’s store and would be found at sought likely evidence A.2d at 967. Id. at at his residence.”

V. Conclusion more to Greenstreet The facts the instant case are similar McDonald, It is Connelly. similar to Minor and and less most, supported, affidavit the instant case clear a handgun Patterson possessed believe encounter just to the time of his October prior existed cause existed that with Officer Haak. The notion that 217 of the Roof at Room Red possessed handgun Patterson later, only thirty-four Inn when the evidence days some possess weapon that Patterson did not tended show face of squarely time of arrest October flies his Moreover, face reality. the warrant on its fact this comport particularity with should save appears infirmity. majority from itself con- search constitutional affiant, faith to the not question good applies cedes that the rely subsequently who only police other officers warrant, 9, 9, 108 n. A.2d at n. to hold ante at 930 367 because knowingly officer swear out permit police otherwise would warrant, to other pass invalid the tainted warrant officers an execute, rely good and then on the faith those officers Leon, 923 n. who were unaware of taint. See at 24, 24, n. L.Ed.2d 698 n. 24. 104 S.Ct. at 3420 82 at Gates, Simply “probable concept,” cause is fluid because 2329, 76 462 U.S. at 103 S.Ct. at L.Ed.2d does “ be with police ‘may properly charged mean that officers [not] knowledge was unconstitutional under the [a] search [ ] ” Amendment,’ Fourth under circumstances. appropriate Leon, 468 U.S. at S.Ct. 82 L.Ed.2d at Peltier, quoting United States (1975).

2313, 2320, L.Ed.2d To hold under good in in presented, police the circumstances acted faith into presenting question their would call an possible reviewing whether it is even for a court to find faith. in his good Judge pointed absence As then Bell out Minor, dissenting reasonably “a well-trained opinion officer would not submit an affidavit to a magistrate for a probable cause knows, determination that the officer or should know, cause,” does not establish 334 Md. at (Bell, J., A.2d at 223 dissenting), because that hypothetical officer is chargeable with knowledge of what the Fourth Amendment prohibits, subject to its subsequent interpretation Gates and Leon. Id. 724-26, 641 A.2d at 222-23. I would that, judice, the case sub hold Officer Haak knew or should have known that Patterson almost certainly possessed neither the weapon nor the accessories referenced in the warrant therefore, application and faith exception does not I apply. respectfully dissent.

Chief BELL Judge authorizes me to joins state that he this dissent.

Case Details

Case Name: Patterson v. State

Court Name: Court of Appeals of Maryland

Date Published: Aug 24, 2007

Citation: 930 A.2d 348

Docket Number: 83 September Term, 2006

Court Abbreviation: Md.