State v. Ward

ell, at 109. Attorney Griev. 328 Md. at 614 A.2d Bakas, (1991).” Comm’nv. Md. 589 A.2d case, has not demonstrated respondent this imposed no should be requisite discipline standard that Focus jurisdiction discipline appropriate. this or that less must, public, as we we believe that ing protection on the respondent if the were ordered accomplished can and will be from the of law. indefinitely suspended practice ORDERED; ALL IT SHALL PAY IS SO RESPONDENT COURT, TAXED BY THE OF THIS AS CLERK COSTS TRANSCRIPTS, THE OF PUR- INCLUDING COSTS ALL 16-715(c). TO MARYLAND RULE FOR WHICH SUANT SUM, THE ENTERED IN FAVOR OF JUDGMENT IS T. COMMISSION AGAINST ATTORNEY GRIEVANCE RICHARDSON. CARLTON

712 A.2d 534 Maryland, STATE Gary R. WARD. Term, Sept. 1997. No. Maryland. Appeals

Court July 1998. (J. Barbera, Curran,

Mary Atty. Joseph Ellen Asst. Gen. brief), Baltimore, Jr., Gen., Atty. on for Petitioner. Baltimore, for Murphy, Respondent.

Brian J. BELL, C.J., ELDRIDGE, RODOWSKY, Argued before CHASANOW, WILNER, JJ., and ROBERT L. RAKER and KARWACKI, (retired), Judge Specially Assigned.

RODOWSKY, Judge. The issue in this search warrant is whether there was case that instrumentalities evidence probable cause believe found in the residence street murder could be and/or as the As person motor vehicle of the identified murderer. below, we hold that there cause. explained Shortly p.m. Wednesday, September before 11:30 on (Stewart) Stewart was shot a number of times Alfred public City.

and killed on a street in Baltimore Over the next days two who tele- persons identify would themselves R. phoned police stating respondent, Gary Ward (Ward), brought police had murdered Stewart. Ward was headquarters questioning, and his automobile was towed time, charged there. Ward was not at the but the away not allow his car would Ward drive because its license tags days eyewitness had Three after the murder an expired. in photographic array identified a as Stewart’s killer. Ward subject then warrant to search The obtained Ward’s home and automobile. Seized in the search of the automobile point cartridges. were three .357 “MAG” hollow These were by introduced into evidence the State at Ward’s trial on of in charges degree using handgun murder the first and of a in the commission of a of crime violence.

That trial was 1993. conducted November Ward was imprisonment. appeal, convicted and sentenced to life On of in an Special Appeals, unreported opinion Court dated purpose November remanded for the limited of hold- ing suppression hearing.1 a On remand the Circuit Court for City Baltimore a hearing conducted and denied the motion to 1995. suppress September again appealed, Ward and the Special Court of reversed in Appeals unreported opinion an suppression hearing 1. The trial court had concluded that no was required involving in the criminal cause the murder of Stewart because the evidence seized that was to be offered in the Stewart murder trial subject suppression hearing had been the in a criminal cause against involving shooting September Ward on 1992. The motion suppress in that other cause had been denied. search That concluded “that the 1997. court January filed information of the affidavit lacked invalid because warrant was to be searched.” sought item and nexus between the reconsideration, contending moved for The State 7, 1997, opinion conflicted with the opinion January unreported in an motion was denied 1994. That November “that 20, 1997, in which the court held filed March opinion which the upon documents nothing the warrant there was reliance that objectively reasonable could have based officer of the involved.” evidence crime automobile contained That petition for certiorari. petition granted We the State’s issue. only the nexus raises involved was made for the search warrant here

Application The after the Stewart murder. days four on October unit of the Baltimore of the homicide affiant was a detective included work years’ experience City Police. His thirteen sought units. The warrant and vice drug enforcement (2) dwelling” located at 1634 story row-type to search two “[a] City in Baltimore 1983 Oldsmobile Avenue Darley number, number, color. Cutlass, tag serial described affidavit, excluding is the text of the margin Set forth and the places to be searched portions describing those affiant.2 background affidavit, part, reads:

2. in substantial September hereby following. On 30 state the "Your affiant does hrs, responded Ridley Eastern District Bruce 1992 at 2325 P/O shooting. Upon Ave for a his arrival he to the 1400 Blk Cliftview [S]tewart, lying in the identified as Alfred observed the victim later cars, (2) suffering multiple GSW'S To parked from street between two pronounced responded to the scene and body. BFD Medic # 3 your At 2351 Hrs affiant arrived on the victim dead at 2337 Hrs. anonymous charge investigation. Several scene and took the Homicide office on 1-2 October telephone calls were received in homicide, all the calls indicated that a to the recent 1992 in reference yrs Darley Blk of Ave was Gary of the 1600 Ward B/M/20-21 Gary Ward an responsible of the victim. Ricardo has for the death City Department I Police under B of record with the Baltimore arrest handgun Violations. On 2 October 1992 at # to include 374-587 Gary brought was into the Homicide office approx 2030 hrs Ward Cutlass, the head- black in color was towed into and his 1983 Olds quarters building. Ward was interviewed but was released due Mr. Ventresca, United States

L.Ed.2d 684 directs how the by affidavit is to be read courts reviewing magistrate’s decision to a issue search warrant.

“If teachings of the Court’s cases are to be followed and served, the constitutional policy affidavits for search war- ... rants must be tested and interpreted by magistrates in and courts a commonsense and realistic They fashion. are normally by nonlawyers drafted in the midst and haste investigation. criminal Technical requirements of elab- orate specificity once exacted under common law pleadings proper place have no this area. A grudging negative or attitude courts reviewing toward warrants will tend to discourage police officers from submitting their evidence to judicial officer acting.” before Id. at S.Ct. 13 L.Ed.2d at 689.

I. The Inferences mind, foregoing guidance With we turn to a review of affidavit the instant matter. Stewart was shot late on evening September block of Cliftview Avenue the Eastern District of City the Baltimore Department. Police Inasmuch as the cause of death was multiple' gunshot body wounds and his lying found be- cars, parked tween two inference that Stewart was any eyewitnesses. kept to the lack of Ward’s vehicle was at the Police building expired Tags. due to On 3 October 1992 a witness was developed picked photograph Gary who out the Ward from photographic line-up photograph card. The witness chose the of B of positively I # suspect 374-587 and person identified the as the responsible September for the death of the victim on 30 1992. suspect Gary gave "The Darley Ward the address of 1634 Ave as his home address. The vehicle a Maryland Tag 1983 Olds Cutlass ZWH075 is Darley listed to Mr Ward at the 1634 Ave address. Your prays affiant that a search and seizure warrant be issued for the above listed location and vehicle. Your affiant believes cause relating exists to believe that there is evidence to the crime of being Darley Murder stored at 1634 Ave and the OLDS Cutlass Therefore, Maryland Tag your # prays ZWH-075. affiant that a premise search and seizure warrant be issued for the said vehicle.” a The authorized public on the street. warrant gunned down alia, Ammunition, Pa- for, Personal “Handguns, inter search It is self- of a firearm.” pers showing ownership/possession not at the crime weapon the was found murder evident scene. the telephoned the of the witnesses who fact that first

The These significant. police identify not themselves would was no sight and There knew Ward name. witnesses person a any from that the murderer was information caller an Ward, twenty to had age twenty-one, other than Ward. “[vjiola- handgun or included two more arrest record to magistrate permitted All of this information the tions.” them- unwilling identify were to infer that these witnesses The described they feared Ward. affidavit selves because inference, to Ward, person as a not terms but reasonable and utility ammunition are handgun whom a and items Consequently, magistrate the could infer reasonable value. for that, probability application between the murder and the warrant, weapon disposed Ward had not the murder the likely disposed would be even less to have Ward incriminating less bullets. weapon’s magistrate could infer that was weapon further brought on when he was in for less person questioning Ward’s murder. of self- forty-eight than hours after the As a matter protection police certainly pat- most would have done Ward, weapons they police down for when accosted for looking weapon they applied were still the murder when Apparently he was the warrant. Ward accosted when automobile, in or about his inasmuch as towed that police headquarters transported automobile while Ward was Thus, headquarters by other means. was not weapon plain it. view Ward’s automobile when towed below, had magistrate the authorities reviewed

Under probable cause to believe that the murder and associ- weapon ated evidence of crime of could be murdering Stewart automobile, in his but out of found Ward’s home and/or view. Because more court decisions deal with residences than automobiles, with we shall the review residence cases first.

II. The Residence That there probable was cause to find a in nexus the State, instant matter is supported by 262, Mills v. 278 Md. 363 (1976). A.2d 491

Mills was convicted of kidnapping two women and of raping robbing and one of them. He was on day arrested the the following crimes when he was rape identified the victim public while he was on a street. The crimes had been effected by threatening the victims a hunting with knife which was not on person Mills’s when he was arrested. The victims were give able to a description detailed which police knife warrant, arrest, seized under a issued after Mills’s for the contended, alia, search of his residence. Mills inter appeal on to the Court of Special Appeals that there was no probable State, cause for the search. Mills v. Md.App. 127,

A.2d 129-30 opinion by Special Court of Appeals warrant, does not from quote application for the but the court upheld the search on following rationale: is,

“The remaining question therefore, whether the affida vit presented as demonstrated cause within its corners, four required. as We think that in Mary the law in State, land is clear this regard. Grimm v. 6 Md.App. 1001[, A.2d 230 cert. denied 397 U.S. (1970) S.Ct. L.Ed.2d Reidy 412] (1969) Md.App. 259 A.2d 66 this Court found no defects in warrants issued to search residences where weapons used in the commission recent crimes reasonably could be Judge Murphy, found. Chief in Reidy, where the affidavit related that an individual had been shot awith .22 caliber weapon and that there was a witness to the crime who identified the defendant as perpetrator, observed: “ reasonable, think *We that it was given the information warrant,

set out the application for the believe that the gun used the crime could be found in appellant’s [Citing house.’ Grimm.] knife and concerning the same conclusion reach the “We no error therefore find instant case and in the sheath their admission.” 130-31. 345 A.2d at

Id. at affirmed. The certiorari Mills and granted This Court described detail the affidavit which opinion summarized Mills, knife, to be offense, the arrest of nexus dealing with the express facts only searched. The Mills, when Mills’s residence was the knife and between “ to the one arrested, weapon similar carrying ‘not Mills, 278 Md. at by’ the two victims.” described from favorably following passage quoted at 499. A.2d We (9th Cir.1970), Lucarz, 430 F.2d v. United States mails: for from the prosecution theft “ discussion, others, usually albeit without court and ‘[T]his items nexus between the although searches upheld have not on to searched rested place and the be to be seized case, observation, normal search-and-seizure as direct items, crime, missing of the nature of the type but on the concealment, for opportunity of suspect’s the extent likely criminal would be to as to where a normal inferences ” property.’ stolen hide Mills, 277, that 363 A.2d at 499. We concluded 278 Md. at objects such secreting for probable place “Mills’ home was a 280, at 501. a sheath.” Id. at 363 A.2d hunting as a knife and State, (1988), 221, we In 314 Md. 550 A.2d 670 Malcolm warrant based “upholding described Mills as parenthetically crime, suspect’s knowledge police allegation on address, weapon and absence description of the detailed of 233, Id. at 550 A.2d at at time arrest.” weapon suspect on added). is no substantial difference (emphasis There when hunting person no knife on Mills’s being between there handgun on Ward when being arrested and there no he was questioning day one brought police headquarters he was before the was issued. warrant supports position taken body authority

A considerable or cited each of the cases reviewed by this Court Mills. below, there was cause to believe that a crime of violence, committed, involving the use of a been weapon, had agent, the defendant was the criminal and that Thus, defendant resided at the to be we shall searched. nexus, focus on the various courts’ rationales as to to the articulated, it might object extent be between the to be seized and the defendant’s residence.

The Mills opinion cited a number of earlier cases that warrants, nexus, any express sustained without evidence of where affidavit contained the factors that we set forth opinions above. These seem to have considered the facts relating satisfy to the elements listed above sufficient Butler, See Commonwealth v. requirement. nexus 448 Pa. Riddle v. (1972); 291 A.2d 89 257 Ind. Alvarado, People (1971); N.E.2d 788 255 Cal.App.2d (1967). Cal.Rptr. 891

Mills Lucarz State v. approval were cited with Couture, cert. 194 Conn. 482 A.2d 300 (1985). U.S. 83 L.Ed.2d 971 There the police sought the used in a weapon triple murder. The court Search & LaFave, 3.7, Seizure part § relied on W.R. “ object weapon “Where the the search is a used in the crime ... inference the items are at offender’s especially compelling, residence at least those perpetrator cases where the is unaware that the victim has ” Couture, identify police.’ been able to him to the 482 A.2d at In (ellipsis original).3 309 in the case now before us Stewart obviously identify would be unable to Ward.

Mills was also Commonwealth v. with approval cited Cinelli, denied, cert. 197, 1207, 389 Mass. 449 N.E.2d 464 U.S. 860, 186, 104 S.Ct. 78 L.Ed.2d 165 court found ammunition, “compelling” the inference “that the which could robbery not be traced to the and which could be used a robbery, future was at Cinelli’s residence.” 449 N.E.2d at LaFave, position, language, 3. The same in identical is taken W.R. 3.7(d), (3d ed.1996). § Search & at 384 Seizure ammunition, warrant included In instant matter the 1216. car. found Ward’s ammunition was Lucarz, 1051, F.2d a case of reasoning applied Mills theft, for a of to the search for the fruits involving the search as upon Lucarz similarly have relied courts knife. Other than other a residence for evidence for the search of support Pheaster, 544 F.2d States v. crime. See United fruits of the (9th Cir.1976) (search evidencing articles kid 353, for 372-73 extortion), cert. napping Kalai, (1977); Haw. State v. 51 L.Ed.2d (1975) (reasonable shotgun infer that used 12-13 to

P.2d residence). also See be found at defendant’s murder would (La.1981) (“The Poree, items 547-48 State v. So.2d money bag—are a clothing, money, and sought—a handgun, person’s at a resi might expect which one find objects (Okla.Crim. dence.”); 556 P.2d Bollinger v. (“[A]t least, existed that probability a App.1976) in an assault included a revolver used property sought [that of at the residence the defen with intent to was indeed kill] dant.”). (3d Cir.1993), Jones, a 994 F.2d United States ruling a trial court’s

robbery prosecution, the court reversed The Third Circuit evidence for lack nexus. suppressing robbery type in the are a said that the firearms used kept suspect’s in a residence.” “likely evidence be Id. facts, Nevertheless, court of two additional 1056. because in every it not “have to decide whether case concluded that did cash involving a committed a crime suspect the fact that magistrate enough a with gun automatically provides a and/or suspect’s home.” Id.4 approve information to search (8th Steeves, Cir.1975), con- 525 F.2d 33 United States a convicted possession rifles prosecution cerned told the information was that an informant 4. The additional robbery suspect's telephone taken in the was at the residence. a cellular residence, Also, parked motorcycles were in front of the because new "were not too careful about the court inferred that the defendants Jones, hiding away from their homes.” 994 F.2d at 1057. the loot 382 agents

felon. That evidence had been observed while FBI warrant in executing investigation were a search issued of in robbery handgun a bank which a had been used. The robbery had occurred on June but the warrant was not until September Although recognized obtained 17. the court that there was “little reason to that any believe of the bank’s home,” ... still be in the money would the same could not be Id. at court “apart said the revolver. 38. The said that prior felony possession defendant’s] from record of the [the pistol particularly incriminating. was not unlawful itself or Moreover, pistols generally who own them at people keep or on persons.” upon home their Id. Steeves was relied Gathercole, (Iowa 1996), a robbery State N.W.2d prosecution, proposition for the that “it is reasonable to be- guns kept subject’s person lieve that will be on the or in his residence.” Id. at 574. Henderson, (5th Cir.1973),

Bastida v. F.2d reversed corpus by the issuance of a writ of habeas a federal district court a Louisiana sought by prisoner who had been convicted in which robbery pistol street an automatic had been an weapon April used. seen informant on possession prisoner, but the warrant had not applied April been for until 17. Id. at Supreme 861-62. The conviction, stating Court Louisiana sustained Bastida’s sim- ply affidavit, that “there was a from reasonable inference probable cause issue the warrant to search defendant’s house for automatic weapons robbery.” used State v. Bastida, (La.1973). 271 So.2d The federal district court concluded that there was probable April cause as of but the information become had stale. Bastida v. Henderson, that, 487 F.2d at 863. The Fifth Circuit held after weapons, very the informant had seen the likely place “[a] them ... persons find would either be on the of the assailants or about premises they where lived.”- Id. (Del.1986),

Blount v. A.2d concerned a prosecution handgun murder which the used to kill victim was seized from the defendant’s residence under a

383 search appellate court sustained the warrant. The search reasoning: the applying following “ in are sought that the items ‘Concrete firsthand evidence required is in a search always to be searched not the normally one would question The is whether warrant.... so, that If then place.... items that expect find those of a search will to allow the valid issuance inference suffice it [the for think clear that place.... warrant We for logical place would to search defendant’s] residence be ” in the crime.’ weapon clothing the and used A.2,d (Del. State, 189, Hooks v. 416 203 (quoting Id. at 1033 1980) “a The court also said that (ellipses original)). proximity could concluded that the magistrate reasonable have have to the crime scene could of the defendant’s residence weapon imprudent of the more disposition rendered immediate court of the retaining opinion it.” Id. The Delaware than site, in a the distance between murder does reflect the and defendant’s residence. park, State, (1994), 707, A.2d 214 we took In Minor v. 334 Md. 641 on facts geography appeared notice of certain judicial 718, Id. at maps community street involved. standard City maps reflect 641 A.2d at 219. Standard Baltimore street 1634, Avenue, Darley resided at No. where Ward Avenue, to, from, on block Cliftview parallel away and one occurred in the 1400 block. Under which murder Blount, warrant-issuing rationale of the court in Delaware in the us have that the judge case before could concluded had weapon disposed not been of. evidence, in murder including gun search used for 378, State, robbery, 267 was sustained McClain Ga. — (1996), denied, U.S.-, cert. 117 S.Ct.

477 S.E.2d 814 (1997), on that it primarily the basis L.Ed.2d to his was to infer that the defendant returned reasonable shooting. after 477 S.E.2d at 825. residence N.E.2d 719 Cefalo, Commonwealth v. 381 Mass. (1980), California, rev’d 496 U.S. grounds, on other Horton (1990), 110 S.Ct. L.Ed.2d weapon searched the murder and bloody clothing at the defendant’s hotel room. The connection was that the victim head, had been shot permitting thus a search for clothing. bloodstained at 727. N.E.2d Davis v. (Miss.1995), So.2d 1228 cert. 134 L.Ed.2d 785 appeal from a death

sentence for murder committed the course of a robbery. On the nexus issue the court said: “Cash type is the of loot that criminals seek to places hide secure like their homes. Similarly, sought, the other items clothing guns, are also the types of evidence to be in likely kept a suspect’s resi (citations omitted). dence.” Id. at 1239 alsoWe note the of the in upholding search United States v.

Sleet, (7th Cir.1995). 54 F.3d 303 As probable cause for believing that bank, the defendant had subject robbed the the court relied on information that the defendant had been charged bank, arrested and with robbing another in and both instances the robber Further, had vaulted the counter. the defendant was an mid-20s, African-American in male his approximately five feet six inches tall weighing pounds, description a applied also to in the robber the crime investigation. under The nexus evidence was that the robber, bank, upon leaving in ran the direction of an apartment complex, one-half mile away, where the defendant occupied apartments. one of the are, course,

There of cases which do not agree with the approach of the decisions reviewed above. Illustrative is Charest, (1st Cir.1979). United States v. 602 F.2d 1015 The appeal was from a conviction for possession of a by firearm one previously of a felony. convicted The gun had been in obtained a search of the defendant’s residence the course investigation. murder The First Circuit reversed the conviction for the reasons set forth below.

“Common sense tells us that it unlikely that a murderer would hide his own home a gun used to shoot someone. Raimondi, If states, defendant shot as the affidavit one of the first things he would do get would be to of gun. rid The handgun easily could have disposed been of permanent- after the crime. It is not reasonable ly within a short time from to Fall River to drove Somerset infer defendant fired a which had more casually placed weapon and then in his a man on the shelf bedroom than one bullet into science, it only an accurate is also Ballistics is closet. any been unable to find case which well-known. We have on person’s issued for a home the sole a search warrant was by in the person had been used handgun basis that commission bullets type crime where the used gun.” traced to the could be omitted). (footnotes

Id. at 1017 distinguished by Supreme case was 1985 the above on basis that Charest “was Hampshire Court of New known suspected acquaintance presence shooting witnesses, expected three he therefore have would gun.” Faragi, him with a State v. try connect (1985) J.). Souter, (opinion by N.H. 498 A.2d approach and that of the conflict between Charest other squarely cases reviewed above addressed Appeals Court of Fourth Circuit United States (4th Anderson, Cir.1988), 851 F.2d 727 cert. United States 1031, 109 S.Ct. L.Ed.2d Virginia found an for a .45 police unregistered had silencer handgun caliber in the search under a warrant of the defen dant’s during investigation. residence course murder Circuit, Judge Murnaghan The Fourth speaking through for panel Judge that included Frank A. Kaufman of the District Maryland, to decide the case on basis of declined United Leon, 3405, States v. 82 L.Ed.2d 677 court holdings including found the cases Basti Steeves, da v. v. supra, Henderson and United States both “to be and the persuasive” more than Charest somewhat similar (11th Lockett, in United 843 holding States F.2d Cir. 1982). Anderson, F.2d at 729. The Fourth Circuit con cluded: magistrate

“It was for the reasonable to believe that gun be found in his defendant’s silencer would Therefore, residence. even though the contains no affidavit trailer, that the weapons were located in facts defendant’s reject we his argument the warrant was defective.” added). (emphasis Id.

III. The Car probable The same cause that supported issuance of the search warrant for Darley Avenue supported search warrant nine-year-old Ward’s Oldsmobile. The handgun and the ammunition for which were searching highly portable were and could be under the defen dant’s control either at his home or concealed his automo bile. LaFave “It permissible states: to have a single warrant authorize search of a described place and a described person or of a place automobile, described and a described without regard whether the person or vehicle is to be found at the LaFave, described.” W.R. Search & Seizure (3d 4.5(c), ed.1996). § at 535

People Easley, Cal.3d 196 Cal.Rptr. 671 P.2d (1983), reh’g, on Cal.3d 250 Cal.Rptr. aff'd P.2d 490 is on point. capital double-murder punishment case the victims had been bound with wire baling and then stabbed with an icepick. A warrant was issued to search for evidence the crime at four places, the defendant’s crime, residence before the crime, his residence after the car which he owned thereafter, before the crime and retained and the additional car bought that he after the crime. The rejected court argument defendant’s “the authoriza tion to search four different places demonstrates that affiant did not know where the sought-after property actually was located.” 196 Cal.Rptr. Rather, 671 P.2d at 820. “[tjhere court said logical is no inconsistency the conclusion that an affidavit establishes cause to believe that evidence of a crime will be in any one of a suspect’s or homes vehicles.” Id.

Particularly noteworthy is the content of the affidavit in Easley. court, As summarized by the pertinent the informa- tion in the affidavit was as follows:

387 or person more than one designating “A search warrant probable cause must sufficient to be contain place searched place or named person as to justify to its issuance each that defen- question affidavit established therein. The killings; before the baling day wire one dant had obtained murders; his on of the that day that he was in Modesto the was paper found on of which piece been a fingerprint had victims; he purchased that had lying next to one of and money large sums of apartment, paying a car and an rented cash, after the basis days four the homicides. On within information, concluded that magistrate properly of this to that was cause believe evidence probable there or crime could be found either of defendant’s residences either his cars.” (citations omitted). Id. also places single

Searches of four under a warrant were 240 P.2d sustained 95 Okla.Crim. Williams case (App.1952). bootlegging That was a in which authorized at an inn on one intoxicating liquor search was major inn on the other of that highway, side another side defendant, same the residence of the and the auto- highway, 1135. mobile the defendant. P.2d at The court applied satisfied the same cause all locations as being person, part- inasmuch “were one they operated nership or Id. at corporation.” 1137. case, capital involving another sentence for a search

knife and clothing rape, bloodstained that would evidence review, courts, corpus issu federal on habeas sustained the ance of a warrant to search both defendant’s residence (S.D.Tex. Estelle, F.Supp. his automobile. Vessels (5th 1973), Cir.1974), opinion, without cert. F.2d aff'd 42 L.Ed.2d U.S. pointed in the factors the district court affidavit were vicinity “that the assailant’s car was victim’s seen house, knife, ... assailant house with left the implements that the assailant’s house was such where ordinarily as knives Id. at In a kept.” would be 1309. supplemental on reconsideration the district court opinion would not its modify search and analysis, seizure commenting that “the knife and the clothes which subject were the search likely are to remain as continuing articles.” Id. at 1311.

Warrants were simultaneously issued to search two automo States, (9th biles Porter v. Cir.1964), United 335 F.2d 602 denied, (1965). cert. 379 U.S. 85 S.Ct. 13 L.Ed.2d 574 vehicles, From Oldsmobile, one of the an the FBI had seized a sawed-off shotgun, the possession of which formed the basis prosecution for the in the cited case. The search warrants had been investigation issued robbery bank after victim teller had identified Porter as the robber. The sought warrants specifically described of clothing items handgun. Id. at 604. The Oldsmobile be searched was registered in another state under an assumed name. At the same time that FBI applied for the warrant to search the Oldsmobile, the investigators applied for a warrant to search a Rambler also registered state, another but in the name Porter’s purported wife. Porter argued “that the application for this second warrant is an indication that the search of each of the automobiles exploratory search, would be an compara ble to a ... ‘general warrant’----” Id. at 605. In response argument to this the court said:

“A warrant to search for three named and arti- described cles, a gun, a cap and coat is in no general sense a warrant. As to the significance of the fact that two war- issued, rants were one for the Oldsmobile and the other for Rambler, surely the fact that a suspect has two automo- biles, residences, or two does not mean that neither one of searched, them can be because the suspect may have con- cealed the wanted evidence the other one.” Id.

There are other cases where warrants have been issued for both the residence and the defendant, automobile of the where the affidavit has indicated that the may vehicle have been used in leaving crime, the scene of the but this latter factor is not said to See, be the validity. threshold of e.g., United v. States Cir.1981) (5th (robbery); State Morris, 647 F.2d (1991) (arson); 471 N.W.2d 162 Wis.2d Higginbotham, (N.D.) (murder), cert. Iverson, 187 N.W.2d State 30 L.Ed.2d affidavit by the we are informed before us the case hours after the forty-eight car within his operating Ward home. Inas- hiding out at Obviously, Ward was murder. continu- an item of considered could be handgun much as his judge reason- him, warrant-issuing to and value ing utility gun moving be might inferred that Ward ably could have vehicle, his so between his residence ammunition of the crime to believe that evidence cause probable there was in Ward’s vehicle. could be found to Warrants Preference

IV. and, obviously, it cut case is not a clear instant matter affidavit con- had the helpful much more would have been of this search has validity The issue tained more detail. cases, at three separate in two since 1992 been examined have conclud- court, judges that seven with the result levels of have conclud- judges six cause and probable ed that there was matter is the instant Seemingly was not. ed that there referred marginal or cases” of the “doubtful classic illustration Ventresca, the in United States Supreme Court to by the determined largely “should be resolution of which 109, 85 380 U.S. at to warrants.” to be accorded preference also Mills 13 L.Ed.2d at 689. See at S.Ct. at 501. at 363 A.2d

Md. warrant the search foregoing reasons For all case was valid. instant APPEALS THE OF SPECIAL COURT

JUDGMENT OF THAT FOR TO COURT REMANDED REVERSED. CASE THE AFFIRMING A THE ENTRY OF JUDGMENT FOR BALTI- THE COURT OF CIRCUIT JUDGMENT THE AND IN COURT COSTS IN THIS MORE CITY. COURT OF SPECIAL APPEALS BE PAID BY TO THE RESPONDENT, R. GARY WARD.

BELL, C.J., WILNER, JJ., and ELDRIDGE and dissent. BELL, Judge, Chief dissenting.

The majority today holds that the issuance of search war- rants to search a person’s home is valid when “there [is] probable violence, cause to believe that a crime of involving committed, the use of a weapon, had been that the defendant agent, was the criminal and that the defendant resided Ward, be searched.” State v. 350 Md. 712 A.2d Applying case, this standard to the instant it concludes that the judge who issued the properly warrant of, found cause search the residence and the car (“Ward” to, belonging Gary R. or Ward the “respondent”) though even accompanying affidavit the warrant applica- tion contained no facts from which issuing judge could reasonably instrumentality have inferred that the of the crime could be found in place. either holding, believe,

This I significantly undermines the funda- mental purpose the constitutional protections afforded Amendment, the Fourth abrogates that, as it the requirement to prior warrant, issuance of a search the affiant establish a reasonable nexus between sought the items by the warrant premises and the or places Moreover, to be searched. it essentially creates a “standardless” test for probable cause. The natural and certain consequence of this decision is that probable cause automatically will exist sufficient for the issu- ance search warrant for both the residence and vehicle of in a suspect investigation, criminal whenever the instrumen- tality of key the crime or relating evidence to it is not found suspect on that when he or she is questioned or arrested.1 I dissent. California,

1. In Chimel v. 395 U.S. 89 S.Ct. 23 L.Ed.2d rehearing 24 L.Ed.2d 124 Supreme United States Court held that a search incident to an arrest may be conducted of those areas within the immediate control of the (i) ease, that there was sub- instant the State asserts the warrant to find that judge stantial basis for the who issued of a murder cause to believe that evidence there was residence or car. It respondent’s would be found that: argues in this case contained undis- search warrant affidavit

“[T]he murdered puted probable Respondent cause that Ward had shots into the days by firing multiple a man five earlier also forth that Ward had body. victim’s The affidavit set laws, violating handgun arrested for previously been police. car to Based on that his address and were known information, relied on normal and reasonable judge this weapon that the and other inferences conclude murder in either home probably evidence the crime were Ward’s car, places.” both or his and issued a warrant search part which was a The affidavit to which the State referred and recita- application2 complete of the search warrant contains tion of the as follows: facts [hours], Ridley Bruce September

“On P/O Blk to the 1400 Cliftview responded the Eastern District shooting. Upon for a his arrival he observed the victim Ave Stewart, lying later identified as Alfred the street be- (2) cars, parked suffering multiple tween two from GSW’s person may significantly holding That be extended and ex- arrested. Now, panded by majority's opinion in a search incident this case. instrumentality to arrest that fails to recover the or evidence of the provides probable simply suspect’s crime cause for the search of not suspect’s residence but also the car. Application composed of four 2. The For Search and Seizure Warrant is pages, page three of which contain the affidavit. The first affidavit, here, description reproduced provides a brief of which is not years remaining pages the affiant's of service as a officer. The application. Darley are the actual warrant It states that 1634 Avenue is house,” (2) stoiy alleged a "two brick row that the crimes committed respondent degree felony handgun included first murder and a violation, properties "Handguns, and that the to be seized include Ammunition, papers showing ownership/possession Personal of a fire- arm,” "Any relating Murder.” and all evidence to the crime of BFD # to the scene and body. responded Medic [t]o At 2351 at 2337 [hours]. the victim dead pronounced charge the scene and took of affiant arrived on your [hours] calls were anonymous telephone Several investigation. on 1-2 in the Homicide office October received the calls indicated homicide[.][A]ll reference to the recent Blk Darley of the 1600 of Gary yrs Ward that B/M/20-21 Gary victim. Ricardo for the death of the responsible was City the Baltimore Police an arrest record with Ward has handgun # to include of 374-587 Department [B I] under approximately] 1992 at On October [v]iolations[.] into the Homicide office Gary brought Ward was [hours.] Cutlass, color[,] was towed into Olds black and his 1983 but building. Mr. Ward was interviewed headquarters any eyewitnesses. to the lack of Ward’s was released due [t]ags. kept building expired at the Police due vehicle out developed picked 1992 a witness was who On 3 October B I # identified positively of 374-587 and photograph for the death of the person responsible as the suspect September 1992. victim on 30 Darley of 1634 Gary gave

“The Ward address suspect vehiclef,] a 1982 Old Cutlass as his home address. The Ave ZWH075[,] Mr. at 1634 is listed to Ward Maryland [t]ag [# ] Your affiant that a search Darley prays Ave. address. listed location and vehicle. be issued for the above warrant probable Your affiant believes that cause exists believe being relating is evidence to the crime Murder there Darley at 1634 Ave and the 1983 OLDS Cutlass stored Therefore, your prays # affiant Maryland Tag ZWH-075. and seizure warrant be issued for the said that a search and vehicle.” premises affidavit, nothing clear to me that in this nor absolutely

It is allega- be from the may the reasonable inferences drawn basis, it, much tions in a substantial less provides cause, relating to the murder could believing evidence respondent’s residence or car. be found string It does so with a majority holds otherwise. that, fact, assumptions, are no more than bald “inferences” go making independent factual determinations and majority opines: Specifically, beyond well affidavit. 30, 1992, evening September was shot on the of “Stewart District of Avenue the Eastern the 1400 block Cliftview Inasmuch as the cause City Department. Baltimore Police body and his was multiple gunshot of death was wounds cars, the inference is that lying parked found between two The war- gunned public was down on the street. Stewart alia, for, Ammu- ‘Handguns, rant a search inter authorized nition, showing ownership/possession Papers Personal was not weapon It is that the murder firearm.’ self-evident found at the crime scene. telephoned fact that the first of the witnesses who

“The significant. identify not themselves is police would was by sight knew Ward and name. There These witnesses was a any from the murderer no information caller Ward, had age twenty-twenty-one, than person other Ward. or more handgun “[vio an that included two arrest record permitted magistrate All of information lations.” this unwilling identify them infer that these witnesses were they feared The affidavits described selves because Ward. inference, Ward, a person in terms but reasonable as utility handgun to whom a and ammunition are items magistrate could infer a reason Consequently, value. that, application between the murder and probability able warrant, of the murder disposed for had not Ward likely less to have weapon and that Ward would be even ts.[3] incriminating less bulle disposed weapon’s ofthe that, respondent majority believes because the had two or more 3. The him, handgun feared it is reasonable to violations and witnesses in, for, and, handguns respondent use surmise that the found value disposed weapon consequently, would not have of the murder or "the weapon's incriminating simply There is no basis for this less bullets.” case, "inference,” notwithstanding happened may which what in this is, course, that whether defy even commonsense. It well settled justified pre-search and cannot be cause exists is determined Maroney, 399 on the basis of the result of the search. See Chambers v. 1975, 1981, rehearing U.S. 90 S.Ct. 26 L.Ed.2d (1970); U.S. 27 L.Ed.2d 94 Zurcher v. Stanford weapon further could infer that magistrate “The in for brought question- when he was person not on Ward’s As a hours after the murder. ing forty-eight less than certainly would most self-protection matter of they accosted weapons when pat-down have done for Ward, looking were still the murder police and the they Apparently for the warrant. weapon applied when automobile, in or his when he was about was accosted Ward headquar- to towed that automobile police inasmuch as the by other transported headquarters was to ters while Ward Thus, not in view in weapon plain the was Ward’s means. towed it.” automobile when the Ward, 376, 377, at 536. at A.2d 350 Md. “inferences,” majority is satisfied that the

By use of these that a sufficient nexus to determine judge was enabled and car weapon and Ward’s residence between the murder cause for probable and that there was had been established warrant; had magistrate search “the issuance of the evidence of weapon the murder and associated cause to believe found in Ward’s murdering Stewart could be the crime of of view.” Id. at automobile, 377, in his but out home and/or 378, I disagree. at 536. A.2d

(ii) of government intrusion is the basis Fear of unreasonable against arbitrary governmental restriction the constitutional Court observed United States Supreme searches. As 259, 1056, 110 S.Ct. 108 L.Ed.2d Verdugo-Urquidez, 494 U.S. denied, 1839, 1092, rehearing 222, 110 S.Ct. U.S. L.Ed.2d 968 Fourth adoption behind the driving

“The force Amendment, advocacy, wide- suggested by as Madison’s issuance hostility among the former colonists spread 1977-78, 525, 547, 558, 1970, Daily, 56 L.Ed.2d 436 U.S. 231, (1978); rehearing 99 S.Ct. 347, 58 L.Ed.2d State, (1966); Waugh 221 A.2d Henderson v. 243 Md. 338 A.2d 272-73 275 Md. empowering of writs of assistance revenue officers to search suspected places smuggled goods, general and search houses, permitting private warrants the search of often papers might uncover be used to convict persons show, therefore, libel.... The available historical data purpose of the Fourth Amendment was to protect the people against arbitrary of the United States action their own Government.”

Id. at 110 S.Ct. at Reflecting L.Ed.2d 233. Amendment, purpose, this initial the text of Fourth which either has forgotten by majority, been overlooked or provides: right

“The people to be secure their persons, houses, papers, against and effects unreasonable searches seizures, violated, shall not be and no Warrants shall issue, cause, upon probable but supported by Oath or affir- mation, particularly searched, describing to be person things and the or to be seized.” Const, U.S. amend IV. See United States v. United States Court, 297, 313, District 2125, 2134, 407 U.S. 92 S.Ct. 32 752, L.Ed.2d 764 (1972)(“physical entry of the is home chief evil against which the wording the Fourth Amendment directed”). Ohio, 643, is Mapp 655, See also v. 367 U.S. 81 1684, (1961)(Fourth 1691, S.Ct. 6 L.Ed.2d 1081 Amendment states), denied, applicable to rehearing 871, 368 U.S. 82 S.Ct. (1961). 23, Thus, 7 L.Ed.2d 72 no search warrant can be issued without a fair proper and probable determination of cause. form, purest its probable cause is simply probabil- “a fair

ity or contraband evidence of a crime will be found particular State, place.” 221, Malcolm v. 222, 314 Md. 550 670, A.2d Gates, 673 (1988)(quoting 213, Illinois v. 462 U.S. 238, 2317, 2332, (1983)). 103 527, S.Ct. 76 L.Ed.2d 548 It is “a nontechnical conception ground reasonable for belief’ that sought the items will be found in premises searched. State, 131, Edwardsen v. 136, 243 547, Md. 220 A.2d 551 (1966); States, see also Brinegar 160, 176, United 338 U.S. denied, 1879, 1891, rehearing 93 L.Ed.

69 S.Ct. (1949). cause 31, Probable 839, 94 L.Ed. 70 S.Ct. U.S. justify for such belief would evidence “less requires arouse a that which would than conviction but more evidence 675, 681, 589 Id.; 322 Md. Collins suspicion.” mere (1991). Court 479, Correspondingly, Supreme A.2d 2317, Gates, 213, 103 S.Ct. 462 U.S. in Illinois v. explained 33, 104 S.Ct. rehearing L.Ed.2d (1983): L.Ed.2d bearing on teaching of our decisions the central

“Perhaps it is a non- ‘practical, is that standard probable-cause States, 338 U.S. Brinegar v. United conception.’ technical [,1891] 1302,[1311,] 93 L.Ed. 1879 cause, very name ... as the probable dealing ‘In with technical; are not These probabilities. we deal with implies, everyday practical considerations they are the factual men, techni- legal prudent life on which reasonable ” cians act.’ Thus, at 544. S,Ct 76 L.Ed.2d Id. at speculation, suspicion, equate cause does not probable rather, it a test of reasonable hunch, is gut-feeling; or a information set facts and upon specific probabilities based remarked, is there “[i]f As one scholar in the warrant. forth heaven, it is Fourth Amendment star bright one rather the basis of facts be shown on cause must LaFave, 2 Search and Seizure conclusions.” W.R. than mere ed.). (1996 Also, “the important, and more 3.2.(d), § at 57 owner of search is not that the in a reasonable critical element that there is a reason- of crime but suspected property ‘things’ to be searched specific to believe that able cause is entry to which property located on the and seized are 556, 547, 98 Daily, v. The sought.” Zurcher Stanford 525, (1978); also 1970, 1976-77, 535-36 see 56 L.Ed.2d S.Ct. 16, 361, Kline, 12, 335 A.2d Pa.Super. v. 234 Commonwealth LaFave, 3.1(b), § at 10. (Pa.Super.1975); 364 certain has a clear and A search warrants judge issuing duty:

397 issuing magistrate simply “The task of the is to make a whether, practical, given common-sense decision all the him, circumstances set forth the affidavit including before ‘veracity’ of knowledge’ persons supplying and ‘basis information, hearsay there is a fair probability that contra- band or evidence of a crime will be in a particular found place.”

Gates, 238, 2332, 462 U.S. at S.Ct. 76 L.Ed.2d at 548. thus, judge, grounds must have reasonable to believe words, the items are at the premises be searched. other a judge issuing a search warrant must amake determination likelihood, probability there is reasonable or upon based facts, facts the reasonable inferences drawn from those and/or that the items to premises be seized are on the to be searched. Moreover, issuing judge must make the probable cause own, determination on his or using her his or independent her judgment; he or cannot “mere[ly] ratif[y] she conclu bare 239, 2333, sions of others.” Id. at 103 S.Ct. at 76 L.Ed.2d at 549. A possibility, mere not to mention one that is far-fetched and based on nothing more than assumption speculation, or Lee, will not 320, 326, suffice. See State v. 330 Md. 624 A.2d 492, (1993); State, 160, 168, 1162, Valdez 300 Md. 476 A.2d (1984)( a magistrate’s determination of probable cause is warrant.) confined the four corners of the See also Grimm State, 491, (1969)(“It 333, 7 Md.App. 256 A.2d ... well settled that presence or of probable absence cause to support the search warrant must be determined from allegations warrant.”) of the application for the (citing State, 488, 496, Tucker v. Md. 224 A.2d cert. U.S. 18 L.Ed.2d 463 (1967); State, 342, 344, Henderson v. 243 Md. 221 A.2d (1966); Burrell v. 207 Md. 113 A.2d 884- (1955)). Judge Chief Murphy, Robert C. Judge later Chief Court, of this writing court, for the Grimm observed further that “the court’s determination of the probable existence of cause must solely itself, be confined to the affidavit affidavit, evidence outside the no produced matter whom or how, is not relevant to inquiry cause.” Id.

398 287, 335, 289 State, 329, 62 A.2d Md. v. 191

(citing Smith 656, 925, 93 L.Ed. 1087 (1948) denied, 69 , 336 U.S. S.Ct. cert. ). (1949) duty “the issuing judge, duty

Unlike had a magistrate that the to ensure simply court is reviewing cause concluding] ... basis for ‘substantial ” 2332, 238-39, at 76 Gates, at 462 U.S. existed.’ 691, State, 700- 317 Md. 548; Birchead v. see also L.Ed.2d reviewing task of a 488, 01, “[T]he 492-93 566 A.2d magistrate’s review of the a de novo is not to conduct court cause, wheth only but to determine of probable determination supporting in the record evidence is substantial er there v. Massachusetts to issue the warrant.” decision magistrate’s 721, L.Ed.2d 727, 728, 104 80 S.Ct. Upton, State, 567, 572, 479 A.2d (1984); 300 Md. Potts v. 724 see also Birchead, 701, A.2d at 493. (1984); 317 Md. at 566 1335, 1338 magistrate accords standard review4 A substantial basis things courts. For to different basis” means different "Substantial 4. stan equated the "substantial basis” has example, the Seventh Circuit Spears, United States v. “clearly standard. See erroneous” dard and 502, 989, 262, Cir.), (7th S.Ct. U.S. 113 cert. 506 270 965 F.2d 303, Sleet, (7th (1992); F.3d 306 States v. 54 438 United 121 L.Ed.2d Circuit, Yet, sufficiency 1995). of a search "[t]he in the Fourth Cir. determine de novo to supporting affidavit is reviewed and its warrant ” judge’s magistrate decision.’ for the basis exists whether 'substantial 1992). (4th Cir. But see Oloyede, F.2d 461, 472, 138 v. United States Amerman, A.2d where Md.App. State v. " basis' Appeals that the ‘substantial Special observed the Court of 'clearly erroneous’ demanding the familiar than even standard is less finding judicial in a facts appellate courts review which standard interpreted “substantial court has setting.” At one state trial least State, See Badoino discretion standard. basis” as an abuse of (Alaska App.1990). P.2d than de novo "is more deferential basis standard The substantial cases), (the probable cause in nonwarrant review of standard for review (the clearly review’ standard than erroneous is ‘less deferential [but] it legal application of a law to review the in other areas of of review used LaFave, (footnote facts).” §at 3.1 particular set of standard to omitted). 682 A.2d generally 343 Md. see Jones But right, (1996)("When question a constitutional is whether as, here, right unreasonable to be free from a defendant’s such as violated, seizures, reviewing makes it court been has searches limits, not That deference is without a measure of deference. of ensur- reviewing responsibility court has the however. The as a “rubber merely serve ing magistrate that the did upon warrant based police” for the and issue the search stamp affidavits, wholly containing only or affidavits “bare bone” Gates, 239, at 462 U.S. at 103 S.Ct. conclusory statements. Texas, 108, 2333, 378 U.S. Aguilar 76 L.Ed.2d at 549. See v. (1964). 111, 1509, 1512, Supreme 84 12 L.Ed.2d 723 S.Ct. Leon, teaching this in United States v. 468 Court reaffirmed 677, 897, 915, 3405, 3416, rehearing U.S. 104 S.Ct. 82 L.Ed.2d (1984): 52, denied, 1250, 942 468 105 82 L.Ed.2d U.S. S.Ct. on an will not defer to a warrant based “[Reviewing courts magistrate with a sub ‘provide affidavit that does not probable determining stantial basis for the existence Gates, 239, 2332, at 103 at cause.’ Illinois v. 462 U.S. S.Ct. present at information must be 549] 76 L.Ed.2d ‘Sufficient L to that official to determine magistrate ed to the allow cause; his action cannot be a mere ratification probable Texas, Aguilar Ibid. v. the bare conclusions of others.’ See 114-115, at 84 S.Ct. at 1513-1514 supra [12 378 U.S. States, 480, 723]; 357 U.S. L.Ed.2d at Giordenello United 1503, (1958); 485-86, 1245, 1249-50, 2 L.Ed.2d 1509 78 S.Ct. States, 11, 13, 290 54 Nathanson v. United U.S. S.Ct. if application 159 Even the warrant L.Ed. affidavit, reviewing than a ‘bare bones’ supported by more that, notwithstanding court conclude may properly def deserve, erence that the warrant was invalid magistrates probable-cause because the determination re magistrate’s totality of the circum improper analysis flected an stances, Gates, 238-239, 462 U.S. at supra, Illinois 548], [, at 2332-2333 76 L.Ed.2d at or because the S.Ct. improper respect.” form of the warrant was some (footnote 3416-17, 915, at 693-94 Id. at 104 S.Ct. at 82 L.Ed.2d omitted). Gates, 239, 2332, at at See also 462 U.S. S.Ct. 548-49(“In order to ensure that such an 76 L.Ed.2d. at independent appraisal, by reviewing the law and own constitutional case.”)- applying peculiar particular it facts of the occur, duty does not courts must magistrate’s abdication sufficiency of the affida- conscientiously continue to review issued.”). warrants are vit on which cause determination issuing judge’s probable An erroneous require of the nexus improper analysis an may reflect either a link forth in the affidavit establish the facts set ment—that sought, and the activity, criminal the evidence between the Gates, searched, at 103 S.Ct. at see U.S. place to be 548,—or that such appreciate at a failure 76 L.Ed.2d court States v. Again, exists. United requirement (4th Lalor, Cir.), cert. 996 F.2d Supreme 126 L.Ed.2d 436 like S.Ct. 1976-77, Zurcher, 436 U.S. at Court 535-36, whether determining recognized “[i]n L.Ed.2d at cause, the crucial supported a search warrant suspected is of target not whether the of the search element is crime, to that the items whether it is reasonable believe but That place found in the to be searched.” to be seized will be of home out that the search a defendant’s pointed court also information links the criminal only where some “upheld can be Id. at 1583. One oft- activity to the defendant’s residence.” explicat of search and seizure law has further quoted scholar point: ed this cause determination which complicated probable

“The more may be to include four must be made search cases said time; crime; objects; place. and time ingredients: factor, critical has been suffi- whether the time of events determined, so, and if whether the information is ciently Assuming too no thus neither too ‘stale’ not ‘fresh’.... time, necessary to it is still that problem respect exists with (1) a sufficient nexus between criminal there be established (2) (3) seized, place be and the to activity, things the be searched. things if connection between thing,

“For one even the beyond may possible it still be place question, is clear This is because even if there is probable lacking. cause is certain certainty—that cause—or even absolute probable to be found in a certain presently described items are for the search has not been place, described a lawful basis probable it is also shown to be that those established unless instrumentalities, fruits, or evidence items constitute crime. in which it is clear that type

“A second of situation is that criminal activi- certain identifiable items are connected with it is question but the difficult is whether ty, at searched—the place those items are to be found be being person reasonably the residence of the place typically believed to have committed offense. connecting information the items with

“When there direct criminal activity as where it is known that the place, or actually place adjacent occurred at that or thereto where that the elsewhere but the fruits it is known crime occurred objects- recently place, thereof were observed at the arise, can may problems nexus be clear. Difficult however, concerning information the loca- when such direct objects tion is not available and it must be deter- con- may mined what reasonable inferences be entertained location of cerning likely those items.” Lafave, 3.7(d), Kamisar, § at 375-77. Accord Y. W.R. LaFave, Israel, Procedure, J.H. Modern Criminal ch. ed.1989). (7th 191-92

(hi) from Cognizant problems presents this case standpoint establishing the nexus between the residence sought, and car to be searched and the property majority by creating avoids them a lower nexus standard. Under that standard, seen, as a we have cause the search of suspect’s may crime residences and vehicles be found whenev instrumentality er the of the crime or other evidence of the in suspect’s possession suspect crime is not the when the or interrogated majority heavily arrested. The relies on one State, case, Maryland Mills v. 278 Md. 363 A.2d 491 (1975). (1976), In aff'g, Md.App. 345 A.2d 127 case, one, in as this this Court held that the fact that a weapon similar to by the one described the victims was not recovered cause to provided probable was arrested suspect when the Malcolm v. suspect’s residence. See search in we included 550 A.2d which Md. signal “c/,” accompanied string in a citation after the Mills warrant based on describing “upholding it as parenthetical a crime, ad- knowledge suspect’s of the police allegation of dress, weapon of the and absence description detailed Mills, at time of arrest.” Even in howev- suspect on weapon and, indeed, er, the nexus standard recognized proper we nexus, a in that case that there was there is even an indication clear, between the instru- how substantial is so although residence. mentality of the crime and the defendant’s Mills, by Montgomery was convicted a the defendant robbery kidnaping of two County jury rape, armed arrested, instrumentality neither the women. Mills was When him. the During of the crimes was found on nor evidence description obtained a detailed of inteiTogation, police the residence, including description his address and the Mills’s the knife used police room which the believed specific Based, crime, sheath, in part, could be found. on and its warrant, information, as a police obtained search which, knife sheath were retrieved result of trial, At specified house that was the warrant. room of the the items retrieved unsuccessfully suppress Mills moved to on the that the search warrant grounds from his home “ basis for the conclusion that arguing: only improper, ‘[t]he fact that he was not premises knife was on the [was] ” Mills, at it he was arrested.’ 278 Md. carrying when argued rights Mills also that his Miranda5 363 A.2d at 498. violated, thus, question- illegal were the fruits custodial knife, suppressed. location of the should be ing, namely the hearing that “explained suppression th[e] at the house specific part Mill’s address and the inquiry [into ‘investigation because their which he was made lived] physi- was certain pertinent of the arrest revealed there time Arizona, 1602, 16 L.Ed.2d 694 5. Miranda v. ” Id. at home.’ in present [Mill’s] be might cal evidence does of the Court Although opinion the 493. 363 A.2d at decision, Mills had for its basis any independent not discuss affirmatively the acknowledged had the Court argued may actual- police the Consequently, standard.6 nexus proper knife believing for that the basis independent have had an ly in Mill’s resi- crimes was the commission during used investigator’s explana- police that the is clear is dence. What nexus. proper the there was this Court tion satisfied disregarding as the be understood the cannot Certainly, Court Thus, although, arbitrary one. in favor of an standard proper done Mills so, not have seemed to have may it glance, first view, incorrectly, my albeit may actually applied, have standard; suggest- be read as may the decision nexus proper weapon absence of the crime that, in to the mere addition ing arrested, believing a basis for police had Mills was when in Mills’s residence. of the crime was instrumentality that the relies are also majority upon cases which The other First, impor- and most from the case at bar. distinguishable tant, cases, more facts their police presented those to establish the nexus between warrants application search police crime than the did here. residence and the suspect’s State, (Del.Su- Blount 511 A.2d 1030 example, For case, of the war- support affidavit per.1986) a murder alia, inter stated, police a witness told that he had rant 1983, man, defendant, seen, who fit the on March a Apartments Spanish at both the Oak description, murderer’s scene, park. The affidavit also nearby at the murder area, they searched the recovered stated that when the leading from pathway to the victim on the property belonging regard, opined: 6. In that this Court " purpose making for the basic ‘Asthe search warrant is issued search, requires necessary support its issuance cause being is proper showing only that a crime has been or a committed, person upon that the evidence of the crime but also ” thing be searched’ or within the or Mills, 276-77, (quoting 363 A.2d at 498 Scott 278 Md. at 488-89, cert. Md.App. 243 A.2d 613-14 omitted). (1969)) (citations Md. 732 custody, in park Spanish Apartments. the to the Oak When that in Spanish the defendant told detectives he lived the Oak park had been in the around the time the murder Apartments, had, murder, day had occurred and used the Spanish from the to Oak where the pathway park Apartments, was, short, victim’s effects were found. There in far more the affidavit Blount from which to infer that in in information weapon murder would be found in the home defendant’s presented weapon respon-

than was to the murder in the put dent’s home the case at bar.

Second, by majority the bulk of the cases cited are not cases, they robbery, rape, kidnaping, murder rather involve of or conspiracy money, possession illegal drugs, to launder Henderson, See Bastida v. possession illegal weapons. of (5th Cir.1973); Ramos, States v. United F.2d 860 923 F.2d Steeves, (9th (8th United States v. Cir.1991); 525 F.2d 33 Jones, (3rd v. Cir.1975); United States 994 F.2d 1051 Cir. Mills, 1993). See 278 Md. 363 A.2d 491 This is important because a murder committed with a weapon, handgun, inherently a different from crimes especially a com person committed the aforementioned cases. When for robbery, example, may legitimately mits a one infer that that, all, or keep proceeds; only he she will after is the a point analysis applies the endeavor. The same or similar to In a respect with the other crimes. situation such as here, that a or presented keep, murderer will his home automobile, crime, very instrumentality of his that gun can to is not testing, be linked the crime means ballistics a strong or reasonable inference. See United States v. Char est, (1st Cir.1979)(“It 602 F.2d is not reasonable to casually weapon infer that defendant ... which had placed fired more than one into a man on bullet the shelf his Flanagan, United States v. closet.”)(citing bedroom 423 F.2d (5th Cir.1970)). 745, sought

The nexus between the evidence and the in United v. States quite stronger searched was a bit Anderson, (4th Cir.1988), cert. 851 F.2d 727 (1989) 1031, 109 S.Ct. 102 L.Ed.2d 973 than in the instant posses- of unlawful There, was convicted the defendant case. caliber on a .45 silencer for use unregistered an sion of to search the for a warrant police applied handgun. The three home, stating affidavit offering an defendant’s defendant, in touch with the had been witnesses sale, and that the gun had a told them he defendant had issued the magistrate kill someone. had been used gun con- for the Fourth Circuit Appeals The Court warrant. alia, that, contained cluded, though the affidavit inter “even located the defendant’s weapons were no facts that warrant was defec- [home], reject argument his we Williams, States see United But Id. at 729. tive.” (4th Cir.1992) and United States F.2d 480-481-482 ( Cir.1993), Fourth Lalor, where the 1583 4th 996 F.2d upheld searches have been that “residential observed Circuit activity to the links the criminal some information only where allegations at the Looking of residence.” defendant’s had affirmative affidavit, magistrate it is clear to con- reasonably magistrate permitted information that (one cannot sell gun the defendant still had clude that it have), that conclusion made and something one does that, if still to infer Anderson magistrate for the reasonable is no such in his home. There likely it would be gun, had the such inferences. support any case to the instant evidence significant there is a Indeed, majority acknowledges, as the and the application warrant of cases which the number a nexus than the establish more of accompanying affidavit and, reviewing court determined yet, instant case Lee, v. shown. See State 330 Md. cause had not been probable (1993)(no cause to search 624 A.2d (1) in informant although confidential residence defendant’s LSD, and he could possessed that defendant formed (2) defendant, con had been from defendant purchase LSD with dangerous substance of controlled possession victed (3) distribute, anonymous two police received to intent in distribution was involved reports the defendant Dickerson, 1245, 1249-50 LSD); 975 F.2d United States (7th Cir.1992)(where a connected only registration the license car, home, robbery, used to the defendant’s there is no residence); Lockett, probable cause to search United States v. (11th Cir.1982)(affidavit 674 F.2d no set forth facts from to dynamite which infer that was located at that particu place); lar United 41-42 Truong, F.Supp. States (D.Mass.1996)(common analysis sense established that search documents, of defendant’s residence would recover only travel murder). not evidence of (4th Lalor, Cir.),

In United States v. 996 F.2d 1578 cert. 126 L.Ed.2d.436 possession defendant was arrested on cocaine and firearm charges execution of a following the search warrant at his residence. The attempted affidavit establish a nexus be (1) drug activity tween the and the residence as follows: two defendant, informants said that known as “Jamaican John,” selling cocaine on Northern Loch Parkway and (2) Boulevard; Raven the defendant sold cocaine using personal pager messages buyer receive and then meet the (3) on Parkway; East Northern one informant believed that Waverly Way Jamaican John lived on drove a blue Dodge (4) Daytona Maryland tag reading with State “Thumpur;” and a second informant confirmed that John girl lived with his friend the Loch Raven on Apartment Waverly Way. police’s independent investigation in- substantiated the

formants’ statements. The affidavit recited that: on two occasions, separate police the affiant Dodge officer saw a blue Daytona tag with the “Thumpur” parked the 1600 block of Waverly Way; another officer told the affiant that she a stopped Doge Daytona had blue with the “Thumpur” tag and the driver identified himself as “John Lalor of 1572 Waverly Way;” although Waverly Ways woman, was rented to a Jones,” boyfriend, “Jerry whose was apartment listed as an resident, Lalor’s; Jones’s date of birth was the same as arrested, Lalor’s arrest that record revealed he had been least two times for handgun possession, just and cocaine once days several before the execution of the search warrant. information, Based on this police obtained search war- “cocaine, parapherna- narcotic Way for Waverly rant for 1572 papers.” objects personal lia, related currency, U.S. connecting drug no nexus there was argued Lalor agreed, The Fourth Circuit Way. Waverly activity to stating: from any basis is devoid the affidavit court finds

“The drug that evidence could infer magistrate which the affidavit Waverly Way. The at 1572 be found activity would such evidence that indicate circumstances not describe does Nor does residence.... at Lalor’s likely to be stored was relationship between geographic explain affidavit Way. Waverly and 1562 occurred drug sales area where an able to draw might have been magistrate Although sales to Lalor’s drug proximity from the inference concerning this residence, contains no evidence the record making basis for given was no magistrate distance. probable cause.” concerning aspect this judgment 1582-83(citations omitted); also id. at see Lalor, 996 F.2d at (9th Ramos, 1346, 1352 923 F.2d v. 1583(citing United States surveillance did cause where Cir.1991))(finding probable no sought officer likely it that items making not lead to facts Stout, v. United States in apartment); were located (N.D.Cal.1986)(arrest with cocaine does 1074, 1078-79 F.Supp. residence). one As to search cause provide probable stated, cause to believe “Probable court Pennsylvania state does not on the street committed a crime that a man has his home.” cause to search necessarily give rise Kline, 335 A.2d Pa.Super. Commonwealth warrant where affida search (Pa.Super.10975)(invalidating illegal failed to establish to LSD but linked defendant vit house). in the likely defendant’s narcotics were (N.D.1993), information Ennen, 496 N.W.2d State a known the defendant was magistrate given to the was user; period, a three-month usage during water marijuana his of mari- growing cycle summer, coincided with which records consumption high; his electrical unusually juana, normal; in the and the shades than higher slightly were In defendant’s house were drawn. the opinion special agent, this information illegal indicated that drug activity, specifically, considering high usage, water a marijuana growing operation, was being conducted the house. The Supreme Court of North Dakota held this information did not establish a substantial basis to believe that evidence connected with criminal activity would be found in the defen dant’s house. It explained that the defendant’s reputation was conclusion,” a “bare which was “devoid of evidentiary sup port;” the usage during increased water the summer months was consistent with most homeowners’s usage increased when growing vegetables; and there was no significant inference to be drawn from being 50; the defendant’s shades drawn. Id. at Lewis, (N. see also State v. 527 N.W.2d Dak. 1995)(“The growing equipment indoor could be considered contraband only to the extent it was' being grow used to marijuana. The nexus between the home and [defendant’s] probability marijuana being found there not sup was plied by evidence”); Mische, direct or circumstantial State v. (N. Dak.l989)(“substantial 448 N.W.2d 415 evidence of crimi activity nal by a defendant at a place other than his home is sufficient cause to [not] issue a warrant to search the defendant”). home of the Probst,

In State v. 247 Kan. (Kan.1990), 795 P.2d 393 Supreme Court of Kansas held lacking probable cause to search the defendant’s home an affidavit stating that the defendant had been convicted for possessing methamphet- that, amine in her earlier, residence fifteen month time, at that she the girlfriend was employee alleged dealer, an drug during buy, controlled the drug dealer removed methamphetamine from his vehicle that parked in front of residence, the defendant’s and that the confidential informant told the that the defendant was involved in the sale and distribution of methamphetamine. Anderson, State v. 37 Wash.App. 678 P.2d 1310

(Wash.App.1984), the court held that an affidavit “did make an adequate showing that went beyond suspicion mere personal belief that evidence of the burglary would be

409 161, 678 Wash.App. 37 in the residence.” found searched to the connecting the residence at 1312. The facts P.2d (1) to be searched place were the residents of the burglary store, ciga- who smoked burglarized were customers of (2) police in the and burglary; of the stolen type rettes stolen items near the residence. observed are validity of search warrants cases upholding Some link instructive, that must exist to they as illustrate the nexus v. searched. State activity criminal to the to be See Amerman, 461, 483-89, 19, 581 29-33 Md.App. 84 A.2d existed defendant’s residence (1990)(probable cause to search marijuana frequently purchased vehicle informant and where residence, calling and the from the defendant’s defendant involvement, and that criminal record revealed his defendant’s offenses); drug car United sought to be searched (4th Williams, 480, Cir.1992)(totality v. 974 F.2d 481-82 States drug paraphernalia fair probability of facts established three motel room where would be found the defendant’s room, the found police before search of the motel weeks residence); v. United States drug paraphernalia defendant’s — (10th Cir.1997), denied, 1358, 128 1362 cert. Hargus, F.3d (nexus U.S.-, 1526, 140 677 118 L.Ed.2d S.Ct. investigator’s home as affidavit search defendant’s existed at home when indicated that the defendant was reached Crouse, Jones v. 447 activity arranged). criminal was See also (10th Cir.1971)(affidavit 1395, during recited that F.2d 1397 store, taken, money in two robbery wrappers was shot, large victims were and the defendant was seen with had possession professed in his and that he money stack head), denied, “M-F-’s” cert. 405 U.S. shot two 1018, 1298, (1972); v. 92 S.Ct. L.Ed.2d 480 United States (8th Cir.1976)(affidavit Dresser, recited F.2d robbery and attempted victim armed murder identified assailant, as defendant that a .22 caliber bullet her victim, from gunpowder removed observed on hands also observed a .22 hand residue defendant’s (11th 738, Wainwright, 767 F.2d gun); Thomas Cir.1985)(affidavit from law contained recitations enforcement officers and a paid informant that they purchased had hand guns denied, from neighbor), defendant and a cert. 475 U.S. (1986); S.Ct. 89 L.Ed.2d 349 United States Hawkins, (4th Cir.)(surveillance 788 F.2d connected drug residence), activity defendant’s cert. (1986); 93 L.Ed.2d 112 United States v.

Corral, (10th Cir.1992)(defendant’s 970 F.2d return to residence after negotiating purchase price but before actual exchange provided reasonable probability that cocaine was residence). stored

Hence, based on the I forgoing, agree with of opinion the Court of Special Appeals:

“There was insufficient information to connect the evidence sought, ammunition, firearms and searched, to the place car. appellant’s There was no information that appellant kept handguns car, or ammunition in his nor any was there information that car was involved in any way with the shooting death of the victim. In analogous cases involving searches, residential a of Maryland review case law reveals that generally something more than was shown here is required justify a Edwards, search. See State v. 266 Md. 515 [295A.2d (1972)(probable 465] cause shown where infor mant had conversation with in apartment accused concern ing purchase of drugs, informant also observed drug paraphernalia the apartment, and accused stated that “he just got in”); had some good State, stuff Henson v. 236 Md. (1964)(where 518 [204 A.2d 516] observed several known addicts entering leaving and accused residence and accused, addict, a known receiving observed money in re turn object for small justified a finding probable cause); of Thompson v. 62 Md.App. 488 A.2d cert. denied, 303 Md. 494 A.2d 939 (1985)(probable cause for motel room existed where officer had observed narcotics room). and paraphernalia narcotics in motel See also Unit (4th ed States v. Wylie, 705 F.2d 1388 Cir.1983)(probable cause established where officers tipped were that defendant was apartment inside which was rented a woman personal knowledge of officers regarding past defendant’s by his procured locations storing heroin of practice 423 F.2d Flanagan, States v. Compare United girlfriends). of (5th possession Cir.1970)(knowledge of defendant’s more, reasonable a not, make without does goods stolen residence). search of defendant’s warrant was that the search appellant with the agree

“We of nexus lacked information the affidavit because invalid to be searched.” sought and the the items between (Tenn. 97, 99 Longstreet, S.W.2d also State See 1981)(“The any facts indicat in this case is devoid affidavit ... automobile. and the weapon ing a nexus between cause to believe that to establish Nothing appears [car].”), grounds, on other State in the overruled gun (Tenn.1990); States v. United 796 S.W.2d Leveye, (4th Cir.)(affidavit that vic recited Madyun, 986 F.2d threatened her had defendant reported tim’s sister leaving the scene life, jeep was seen green that a dark murder, green jeep, that the defendant owned dark that the officer near the by police vehicle had been seen defendant’s murder, that the had defendant prior scene to the murder violence), convictions for crimes evidencing a criminal record L.Ed.2d rt. ce (iv) largely or cases should be marginal “doubtful Admittedly, warrants,” to be accorded to preference determined 109, 741, Ventresca, 102, 380 U.S. 85 S.Ct. v. United States 746, 684, encourages as it law enforce- 689 13 L.Ed.2d entering pri- warrants before officials to obtain search ment warrants, however, should preference vate home. This for all stamp a mere rubber serving result courts as and, thus, creating a “standardless” searches governmental of search warrants. Protec- test for the issuance and review is, been, always searches and has against tion unreasonable See United States v. the core of the Fourth Amendment. 1056, 259, 108 110 S.Ct. L.Ed.2d Verdugo-Urquidez, 494 U.S. 585, York, 573, (1990); 445 100 S.Ct. 222 v. New U.S. Payton v. Martinez 1371, 1379, (1980); United States L.Ed.2d Fuerte, 543, 561, 3074, 3084, 428 U.S. S.Ct. L.Ed.2d 1116 Court, (1976); United States v. United States Dist. 407 U.S. 313, 2125, 2135, Silver 297, (1972); 92 S.Ct. 32 L.Ed.2d 752 States, man v. United 679, 682, 365 U.S. 81 S.Ct. States, (1961); McDonald United L.Ed.2d 734 335 U.S. 455-56, 191, 193, (1948); Boyd v. United L.Ed. States, 630 6 S.Ct. 29 L.Ed. 746 WILNER, JJ., join expressed

ELDRIDGE and the views dissenting opinion. this

712 A.2d 554 Darian Tera HOLMES Maryland. STATE of Term, Sept. No. 1997. Maryland. Appeals

Court of July 1998.

Case Details

Case Name: State v. Ward

Court Name: Court of Appeals of Maryland

Date Published: Jul 1, 1998

Citation: 712 A.2d 534

Docket Number: 35, September Term, 1997

Court Abbreviation: Md.