Stevenson v. State

168A.3d 967 Timothy STEVENSON Maryland STATE Term, Sept. No. Appeals Maryland.

Court of August Moats v. also See 2017 WL 3764567. (Paul

Argued Rasin, P. by Katherine Asst. Defender Public DeWolfe, B. Maryland, Baltimore, MD), Public Defender of on brief, for Appellant (Brian

Argued by Hesel, Todd Atty. W. Asst. E. Gen. Frosh, Atty. Maryland, Baltimore, brief, for MD), Gen. on Appellee C.J.,

Argued Barbera, Greene, Adkins, McDonald, before: (Senior Hotten, Getty, Alan M. Judge, Specially Wilner Assigned), JJ.

Barbera, C.J. we filed Moats v. today,

Earlier 455 Md. (2017). That one are A.3d 2017 WL 3764567 case this cases; “companion” they argued day were the same generally address same issues and Like legal sub-issues. case, lead issue Moats involved this in whether the search of a cell incident to an arrest was seized executed in search warrant. Our properly-issued reliance analysis support focused on the affidavit whether judge for the who issued provided warrant substantial basis that the cell con- probable the warrant find cause drug connecting petitioner tained evidence distribution allega- as an of a sexual assault ongoing investigation as well tion. held Moats that the affidavit met that standard. We whether, no cause to even holding, Given we had address complied had the warrant not with Fourth Amendment stan- dards, “good faith” police executed the warrant under Leon, the standards outlined United States v. 468 U.S. (1984). L.Ed.2d 677 bar, In the case we hold that the warrant affidavit supplied a substantial for the who issued the basis to find cause to issue it. also take this We if opportunity explain why, even the affidavit provide the warrant did a substantial basis the war- rant-issuing judge find cause search the cell Timothy Stevenson, Appellant,1 Appellant was to suppression entitled of the evidence obtained while execut- ing application “good the warrant of the Leon faith” to the exception exclusionary rule.

I History Procedural crime, police investigation, A. The initial and ap- warrant plication process July 2015, Corporal

On Johnson of the Anne Matthew County Department Arundel Police was called the Moose Lodge Upon arrival, lying Burnie. he a man Glen found ankles, face, ground, pants with bloodied around his no or shoes. That and wallet individual was later discovered injuries Mr. threatening, be David Pethel. Pethel’s were life 23, 2015, On requiring hospitalization July several months. Appellant separate was arrested connection with assault bypass, appeal 1. Because this matter came to this Court on the initial pending Special Appeals. Accordingly, parties still in the Court of Appellant Appellee. captioned are as and robbery. police and The on Appellant found three items at the time his arrest—Mr. Pethel’s shoes and Appel- wallet and phone. lant’s cell 24, 2015,

On July Brian sought Detective Houseman received a warrant to search Appellant’s cell for evi- pertaining dence to the of Mr. robbery assault and Pethel. The police authorized the to search communi- “[electronic cations information” stored the cell The phone. produced six photographs depicting just Mr. Pethel after the robbery. assault and a motion to Appellant suppress filed on the photos ground that the had police scope exceeded the warrant photos because the were not “electronic communi- cations.”

Before hearing there was a on that motion to suppress, Detective prepared application Houseman a second warrant affidavit, again Appellant’s phone. to search cell in support of the second warrant language contained to the first in all respects, identical warrant affidavit save requested cell scope the search Appellant’s acknowledgement that phone belonged him. that,

The facts July “[o]n both affidavits stated 2137hrs,” at approximately “responded Johnson Corporal area of 1911 Highway Burnie, Crain South Glen MD Lodge] report injured subject” Moose for a [the injured discovered Mr. Pethel lot lying on the parking Both Lodge. Moose also affidavits recounted when Appellant 23, 2015, arrested on July wearing he was Mr. Pethel’s sandals and Mr. carrying Pethel’s wallet. The affida- Appellant vits included that later during admitted an interview 22, 2015, that he on July assaulted Mr. Pethel and an assertion affiant, Houseman, Detective that Appellant “assault- ed” and “robbed of his property including Mr. Pethel black leather his containing .billfold identification and his Adidas sandals.” Detective Houseman concluded:

It through my knowledge experience suspects and robberies and will pictures, assaults sometimes take videos on their criminal activities messages

and send about their am this phones. wishing phone cellular I to search of assault attempt robbery and recover evidence Pethel stored may of David Matthew which Timothy Lamar Stevenson Jr. outlining affidavit a Detective Attached each was document a offi- experience as Houseman’s relevant 2002,2 cer since information requesting were

Both affidavits limited for the black touch screen Huawei “stored a within from 1600 hours phone [number deleted] of cellular services July 2016,” 1000hrs on 23 and the second on 22 July 2016 Stevenson, Lamar Jr. identi- added, Timothy affidavit “which an 2015.” Unlike during July, fied as interview following: "Experience” titled stated the 2. The attachment affiant, currently duly Det. Brian K. Houseman is a sworn Your County Department, Arundel Anne Arundel Anne Police officer of the assigned currently to the Eastern County Maryland. Your affiant is duly member of Unit. Your affiant a constituted District Detective was Transportation Authority Dept, May from Maryland Police duly May been a member of the Your affiant has constituted 2004. County May Department Police since 2004. Your affi- Anne Arundel August May assigned as Patrol Officer from 2004 to ant assigned been to the District Detective Unit Your has Eastern affiant August present, since 2012 until successfully completed twenty-six Your has attended affiant Academy Maryland by the Trans- week Enforcement conducted Law Officer, your Authority Department. portation Police While Police investigated has numerous Your affiant made has crimes. affiant burgla- shootings, suspects robberies and cases arrests several ries in convictions. Your affiant assisted other that resulted has making multiple violations officers arrests individuals warrants, as I search well as law. written served numerous have and seizure warrants for assisting others the execution various crimes. affiant, successfully has Your Det. Brian K. Houseman attended following police training completed specialized relevant schools/ during the of his courses course career: - Auth, Transportation Maryland Police Acad. - Investigations, Maryland of Criminal State Police Fundamentals - Interrogation Training Interview and - Investigative Training Eyewitness Evidence - Analysis Forensic Statement - Technology Investigations Introduction to Related warrant, the first merely sought which “electronic communica- tions,” the affidavit in the second warrant sought the following:

Any information, all including and but limited all pictures, movies, electronic communications the form of numeric, text, messages, and voice detailed records to all incoming/outgoing include calls and messages Facebook within phone. contained

The affidavit did not include any information the about exis- warrant, tence of the first that, much less information upon warrant, execution of the first the police discovered the six photos of following Mr. Pethel the assault robbery. and

The second application and affidavit presented were to a judge, who issued the warrant on January The judge who issued that warrant was not the who issued the first Upon executing warrant, warrant. the second the police downloaded the cell data and the obtained same six of Mr. on photos lying ground, Pethel in blood, covered ankles, with pants around his and appearing to have been beaten.

B. The second suppress hearing motion to counsel,

Appellant, through to sup- filed a second motion press photos the six depicting victim the assault. Appellant argument no made the motion or at the suppres- hearing sion that in any second warrant was manner Rather, tainted or its first warrant execution. parties, now, rely then for their arguments solely supporting second warrant its refer- affidavit. Further opinion ences this are therefore to the second warrant and its affidavit. party hearing

Neither called witnesses at the motion to suppress. Appellant contended that the information presented provide probable the affidavit did cause that sought the evidence on Appellant’s phone. would be found Relying upon Agurs (2010), Md. A.2d 868 Appellant argued particular specific the warrant lacked connecting phone.

facts the crime and the cell The State responded suppression court should take into account it knowledge” people is now “common take pictures they videos on their cell commit. phones crimes facts emphasized also set forth in State detailed affidavit, Appellant’s which included admission that he assault- ed Mr. Pethel. following day,

The the circuit court issued an denying order the motion. The court that the warrant concluded contained adequate satisfy facts and details to cause re- The court quirement. explained: Both first and contain facts supported [the warrants second] victim, Pethel, that by affidavit was assaulted [Mr.] Defendant, Timothy Stevenson “admitted to being at Prank’s Den the same time as David Pethel and assault- ” him at the location of ing Lodge the Moose ... The affidavit also that based on the indicates officers’ “knowl- edge experience suspects in robberies and assaults will sometimes pictures, messages take videos and send their criminal on phones.” about activities their cell This must give Court due deference to the and experi- judges ence of the officer in this who case. issued correctly warrants did so as well. At

Appellant conclusion, elected a bench trial. its the court assault, him guilty first-degree second-degree assault, found robbery, reckless endangerment, property and theft valued than an Appellant appeal and, less noted while that $1000. appeal pending Special Appeals, was the Court of he filed petition for writ of certiorari presenting questions: three

1. Can an officer claim generalized suspects affiant’s sometimes have on their phones evidence crimes cell provide alone the requisite alleged nexus between the crime phone and the searched issuance of a search warrant? denying

2. Did the trial court err in motion to [Appellant's suppress pursuant of a fruits search conducted issued for his cell where there no cause the warrant substantial basis find because lacked nexus criminal application alleged between activity beyond and the cell be searched the officer that, in experience, statement his “sus- generalized affiant’s pictures, and assaults will sometimes take pects robberies messages about their criminal activities videos send phones”? their cellular to the good exception exclusionary

3. Does the faith rule for a cell apply where search warrant is issued that, of the affiant officer’s statement basis experience, suspects robberies and assaults “sometimes” videos, or in their pictures, messages have about crimes phones, application allege any and the warrant fails phone, any the crimes and the potential nexus between communication with or the commission of a conspirators, with requires parties? crime communications third petition argument to oral in the Court granted prior We 579, 155 Special Appeals, Stevenson v. 451 Md. A.3d (2017), of the circuit judgment and affirm the court.

II

Discussion ’ A. The contentions parties that not a for

Appellant argues there was substantial basis the to conclude that it was the who issued warrant by probable cause. He contends the warrant supported alleged failed to a nexus between the crime provide affidavit search, Appellant’s to “place” police sought and the the that the Leon faith argues good excep- also phone. Appellant the exclusionary photos tion to the rule does not save obtained of that application execution of the warrant from during no reasonable officer would have According Appellant, rule. properly that the warrant was grounds believe reasonable issued, notion that upon relied given the affidavit commit have evidence of such people crimes “sometimes” who phones. on their cell crimes in responds

The State affidavit phone supplied requisite warrant to search the cell sub- suppression uphold stantial court to the warrant. basis in analogizes case to the circumstances State this Moats 374, (2016), that, Md.App. adding v. 148 A.3d assault, was for another Appellant robbery when arrested possession he found with the cell Mr. argues that, Pethel’s wallet and sandals. The State further invalid, good if the faith exception even warrant deemed exclusionary good-faith rule the officers’ applies points reliance the warrant. The out two differ- State judges ent this found the sufficient to case show cause; is, therefore, it “difficult to see” how the good could have faith upon relied warrant it. executing when

B. Substantial basis warrant issuance

The Fourth Amendment the United States Con stitution prohibits except “upon the issuance cause, affirmation, particu Oath or supported or larly describing place searched, the persons Const, things to be seized.” U.S. amend. IV. cause” “Probable is a term art jurisprudence Fourth Amendment and is defined as

“a ‘practical, conception’ nontechnical that deals with ‘the practical factual and considerations of everyday life men, technicians, prudent legal which reasonable and ” Maryland Pringle, act.’ [124 U.S. S.Ct. (2003) (quoting Gates, 157 L.Ed.2d Illinois v. 769] U.S. (1983)). Thus, 231 [103 527] 76 L.Ed.2d “ ‘the quanta proof ordinary judicial ... of appropriate proceedings inapplicable are to the decision issue a Finely proof warrant. tuned such as a beyond standards or of preponderance evidence, reasonable doubt a trials, useful in formal no place [probable-cause] have decision,” Gates, Id. at (quoting 371 S.Ct. 462 U.S. [124 795] 2317]). at 235 [103 S.Ct.

723 Moats, 698, 168 455 at is Md. 952. Probable cause “a fluid A.3d Gates, 232, concept,” 2317, “incapable 462 at 103 U.S. S.Ct. precise definition or into it quantification percentages because probabilities deals depends totality with circumstances,” 371, 124 Pringle, 540 U.S. at Conse S.Ct. 795. quently, warrant, a affidavit search viewed totality, only provide its need fair probability “a that contra or band evidence a crime found in a particular will be Gates, place.” 238, 2317; 462 at U.S. 103 S.Ct. see also Texas 742, Brown, 730, v. 1535, 460 U.S. 103 502 S.Ct. 75 L.Ed.2d (“[Probable (1983) (plurality opinion) cause] does demand any showing that a belief correct or likely such be more true than A ‘practical, false. nontechnical’ incrimi probability that nating all evidence is that is required.” (quoting involved States, Brinegar 160, 176, 1302, v. 338 United U.S. 69 93 S.Ct. (1949))). L.Ed. Court Supreme 1879 has observed may cause based “common-sense conclusions Gates, human behavior.” at 231, 103 about 462 U.S. S.Ct. 2317 Cortez, (quoting 418, v. 411, States 449 U.S. 101 United S.Ct. (1981)). 690, 66 621 L.Ed.2d

As we the search warrant present review case, “the only we bear mind Fourth Amendment’s strong preference pursuant for searches conducted a war rant,” Gates, U.S. 103 S.Ct. also the but recognition Court’s that “[r]easonable minds fre quently may question particular differ on the a whether cause,” Leon, establishes U.S. 3405. In consideration of principles, S.Ct. both Su preme Court preference has “concluded warrants is most appropriately by according ‘great effectuated defer to a magistrate’s (quoting Spinelli ence’ determination.” Id. States, 410, 419, 584, United 393 U.S. 89 S.Ct. L.Ed.2d 637 (1969)).Thus, “in a marginal or case search under doubtful it may one would fall.” be sustainable where without 102, 106, Ventresca, (quoting Id. United States v. 380 U.S. (1965)). magistrate as the long L.Ed.2d 684 “[S]o that a concluding]’ had ... ‘substantial basis Fourth Amend wrongdoing, would uncover evidence 724 Gates, 236, 103 2317 no 462 S.Ct. requires

ment more.” U.S. States, 257, 271, 80 S.Ct. (quoting Jones v. United U.S. (1960)). If that standard 4 L.Ed.2d 697 “substantial basis” met, court called thereafter review upon is then 2317; 238-39, 103 it. Id. at S.Ct. required uphold warrant is 76, 89-90, State, 401 Md. 930 A.2d see also Patterson v. (2007). issued the warrant

We conclude that the who finding probable for cause to search had a substantial basis information, “[a]ny including all Appellant’s phone movies, communica pictures, not limited to all electronic but text, numeric, messages, voice tions in the form of de all calls and incoming/outgoing tailed records include reach that messages phone.” Pacebook contained within We description into account the detailed by taking conclusion warrant; the sworn supported the historical facts that, through my Houseman is “[i]t declaration Detective knowledge experience suspects robberies and send mes pictures, assaults will sometimes take videos phones”; criminal on their cellular sages their activities about to information on the the limitation the affidavit “stored” July on 22 2015 to 1000hrs on 23 July “from 1600 hours occurred; 2015,” and the Court’s when the assault phones population of cell in the recognition prevalence often degree daily and the of detail one’s life — phone. Riley California, contained a cell See v. U.S. (2014). 2473, 2490, 189 -, 134 S.Ct. L.Ed.2d that the warrant affidavit did Appellant argues forth the cell contained evi set direct evidence that alleged he to have committed. We dence crime why affidavit need include explained Moats in the sought direct evidence that the evidence be found would place to be searched:

[Djirect the Fourth required by evidence has never been States, Amendment. Ornelas v. United 517 U.S. (“[0]ur (1996) have L.Ed.2d cases [116 911] may officer draw inferences based recognized experience his own in deciding whether cause exists.”); 522 [796 Holmes 368 Md. A.2d 90] (2002) (“Direct evidence that the home contraband exists warrant; rather, is not for a required cause may crime, from nature of type inferred sought, concealment, items opportunity and reason able may inferences where the defendant hide the about items.”); Ward, incriminating v. 350 State Md. 379 [712 (1998) A.2d that a (concluding suspect’s 534] home was crime) “probable objects” for place secreting related to the (quoting State, Mills v. Md. 278 280 A.2d [363 491] (1976)). must, course, There of a be reasonable basis such an Holmes, inference to drawn. See at be 368 Md. 90]; see Agurs [796 A.2d also Md. 87 [998 (2010). A.2d 868]

Moats, 700-01, 168 455 Md. at 952. A.3d

Appellant argues that the warrant not permit affidavit does a phone reasonable inference that his cell contained evidence of robbery argu- the assault of Mr. Pethel. He rests ment on primarily Detective Houseman’s statement in the that, through my is knowledge experience “[i]t that in suspects will take robberies assaults sometimes pictures, messages videos and send about their criminal activi- ties their cellular “some- phones.” Focusing the word times,” Appellant argues that the statement “so generalized that it provide any could a search on of suspicion basis offense, undermining the for cell protections substantial in phones recognized Riley.” part address first the latter of contention. Appellant’s

We agree Appellant Riley recognized with that the Court We privacy substantial concerns of cell attendant searches phones. It is for that Court precisely reason explained why the reasonableness clause of the Fourth authorizing Amendment not allow for an rule does automatic a search of every conduct instance warrantless Rather, a cell to a arrest. seized incident lawful absent an of an exigency permit at the time arrest would search, the a police must

immediate obtain conduct one. Riley note, too, phones declaration cell

We Court’s can than normally hold far data be found a more would Riley, See home. Court 134 S.Ct. at The said: 2490-91. say many no than exaggeration [I]t is more keep on 90% who a cell their of American adults own digital every aspect record their person nearly A not the mundane intimate. ... lives—from form only digital many previ- contains sensitive records home; it also ously array found in the contains broad .... private information never found form in home Id. “It an cell would overstatement characterize be personal digital form repository as effects in phones form in the home physical that heretofore would found Moats, or at A.3d 952. the office.” Md. intimate, Riley Court did less even much state, phones array” a “broad simply hold because information, cannot a search warrant issue. Riley that, for

Quite opposite. the Court mandated save an that an intrusion into the exigency on-the-spot demands arrest, police may at the time of an seize—and cell the But, police may 134 at 2493-94. the phone. secure—a S.Ct. authorized search duly not search the without a warrant in of complies respects that all with the dictates the Fourth Amendment of regardless array” “broad information Id. “That is consistent phone may the cell the hold. with long-standing jurispru Court’s Amendment Fourth Moats, 952 (citing 703, Andresen 455 Md. 168 A.3d dence.” Maryland, v. 2737, 463, 480-82, 427 96 49 U.S. S.Ct. L.Ed.2d (1976) that, in for (observing searching 627 an item identified warrant, in police executing may legiti the warrant mately through large of information in volume other warrant)). pursuit subject of of is the item to Appellant’s particular We return concern with Detective describing use of the “sometimes” in Houseman’s word of frequency photos phones with which are found on cell 727 people suspected committing certain crimes. The detective’s use of “sometimes” in in must be considered the context which Houseman, it that, was made. Detective in in swearing knowledge experience, people suspected of “robberies and pictures will take assaults sometimes ... on their cellular phones,” purpose understood his sworn statement forth for the In setting context, cause search. we suspect that the detective intended “sometimes” indicate that the frequency discovering phones such evidence on cell is more than “rarely” and less than “more often than not.” that,

Beyond judge pre it is the whether who sented with an for a search or the application or for appellate reviewing court a warrant a substantial basis issuance, support its the information set forth a warrant totality. is to be considered in its No item single supplying information the affidavit stands alone requisite or the warrant-issuing judge, cause analysis that reviewing “substantial basis” courts use must assessing See judge’s probable cause determination. 2317; Gates, 462 103 S.Ct. United States U.S. cf. Arvizu, 266, 273-74, 122 151 L.Ed.2d 740 U.S. S.Ct. (2002) (noting, suspi in the context an officer’s reasonable conduct, cion of of the circum “totality criminal determining stances” are when whether considered detaining “particularized objective officer has a basis” suspecting legal wrongdoing). “This allows officers process on their own to make experience specialized draw inferences from the cumulative informa and deductions about tion might to them that elude an available well untrained (internal Arvizu, 534 U.S. at person.” S.Ct. omitted); States, marks see Ornelas v. quotation also United (1996) 690, 699, 517 U.S. L.Ed.2d (reviewing give weight” must to courts “due factual inferences officers). judges local law enforcement drawn resident weight.” give Detective Houseman’s statement “due We experience to Detective Houseman swore that, He investigating and assaults. also included robberies “suspects in knowledge experience, on his robberies based send pictures, and assaults will sometimes take videos and messages their criminal activities their cellular about summary He the affidavit a detailed phones.” provided surrounding crime—including posture the facts beaten, victim, prone ground, on the robbery who was The also pants pulled with his down his ankles. affidavit robbery on the Appellant’s included admission the assault mind, well, as the warrant victim. We bear only information as sought eigh- such was stored within period encompassing Appellant teen-hour the time when as- this, coupled Mr. Pethel. All of when with saulted and robbed Riley recognition Court’s that “more than 90% Ameri- person digital can adults who own a cell on their keep nearly every aspect the mun- record their lives—from intimate,” to the provides dane the substantial basis warrant-issuing a fair judge reasonably probability infer that Appellant’s phone contained, among digital cell other evidence, photos connecting him to the assault and robbery. reasons,

For these we hold that the court suppression properly Appellant’s suppress photos denied motion to during found the execution of the warrant. event, photographs, good

C. The within the Leon fall exception exclusionary to the rule. faith Even were we decide that the warrant to search Appellant’s supported by was not a substantial issuance, for its require basis we would exclusion pursuant evidence seized the warrant because the in good upon conducting relied faith search. faith good exception Court established the Leon, United States v. exclusionary rule 468 U.S. (1984). See also 104 S.Ct. Massachusetts 82 L.Ed.2d Sheppard, 468 U.S. 82 L.Ed.2d (1984). Leon that, The Court held in even if it later determined that a warrant invalid for lack of cause, the reviewing suppress court will not evidence obtained

729 of if during execution that warrant the officers reasonably upon relied the warrant aby issued detached and neutral 922-24, Leon, magistrate. 468 U.S. 3405. The Leon that in support Court concluded the affidavit the in at issue evidence “provided warrant case sufficient to thoughtful create disagreement among competent judges to the existence of as cause.” Id. 104 S.Ct. it Consequently, for “objectively was reasonable” the to police have relied on the warrant. Id.

Application good faith doctrine outlined in in exempting results from exclusion Leon evidence that is pursuant seized to a warrant short of satisfying that falls Amendment; is, dictates of the Fourth a warrant in supplies fewer facts probable cause than would necessary satisfy be basis” test. Court “substantial This State, in recognized 76, 105, as much Patterson Md. v. (2007). A.2d of the good We stated there “application exception upon faith does not a hinge providing affidavit for determining substantial basis of probable existence cause.” Id. The support required “standard factual be by the affidavit in for evidence to presented order admitted good exception under the faith lower than the considerably for establishing finding standard a basis a substantial by judge issuing a search warrant.” cause Marshall (2010). 410, 2 A.3d 360 Md. however, recognized,

The Leon Court that there certain are circumstances under which will be unable reasonably rely on a warrant that later is determined improperly: have been issued

Suppression therefore remains an appropriate remedy if ^[1] magistrate issuing or in was warrant misled information in an that the knew false or affiant except would have known was false his reckless disre- truth. also gard exception recognize today we will apply cases where ^[2] issuing magistrate wholly judicial role ... no well reasonably [and] abandoned rely trained officer should on the warrant. Nor would an officer manifest objective good faith ^[3] relying on a lacking on an affidavit so of proba- warrant based indicia cause as to its entirely ble render official belief existence unreasonable. Finally, ^[4] depending the circumstances of case, may particular facially be so deficient— ie., failing particularize place to be searched or the things executing officers cannot be seized—that reasonably presume it to be valid. (citations

Leon, 923, 104 468 U.S. at S.Ct. 3405 internal Patterson, see also omitted); quotation 104, marks 401 Md. at 930 A.2d 348. does not

Appellant warrant-issuing judge contend by information in or was misled the affidavit abandoned judicial in considering application, role the warrant or that the does not particularity requirement. Appel- warrant meet contention, rather, “reasonably” that no lant’s is well-trained on the “reasonably” rely officer could because the warrant cause, warrant on its face therefore probable focusing lacked on the situation third articulated above. cases,

“In category this of evidence dur obtained ing police at if the should be excluded trial warrant clearly so of lacking probable was indicia cause as to render on unreasonable.” Mar police entirely reliance the warrant shall, 409, 415 at “A may 2 A.3d 360. consid Md. warrant lacking ered ‘so of cause’ if probable applicant indicia affidavit, merely files one only ‘bare bones’ which contains ‘wholly conclusory presents essentially statements’ no statements.” Id. conclusory outside of such (quoting evidence Patterson, Leon, see also 107-08, 348); 401 Md. at 930 A.2d States, 3405; Nathanson v. United 468 104 U.S. S.Ct. (1933) 41, 47, 54 (holding U.S. L.Ed. 159 that a may upon suspicion warrant not “rest mere affirmance of or of or supporting belief without disclosure facts circum stances”).

The “is exception inapplicable bare bones where there ‘some It inapplicable indicia cause.’ is also disagree might applicability. when reasonable minds about its however, It apply, will when the cause ‘is absence ” apparent on the of the 415 Md. 82- Agurs, face affidavit.’ (citations omitted); Marshall, 998 A.2d see also 409, 2 Md. at A.3d 360.

The test for warrant affidavit determining whether a objective test is “bare bones” is an one. asks whether “officers, could have reason exercising professional judgment, ably to a believed the averments their affidavit related from present law, violation of not remote continuing affidavit, of their sought date and that the evidence would be likely found at Patter place [the affidavit].” identified (citation son, omitted). atMd. 930 A.2d 348 discussion, Assuming, solely for of our that the purposes upon police executing which the the search relied of the Appellant’s satisfy did the dictates Amendment, Fourth proper exclusion not the photos is By application good doctrine, result. faith the evidence subject suppression found the cell if, only if argued Appellant, as the search rested warrant. “bare bones” The information in the affida- supplied vit, least, at very the rose above mere “conclusory statements” part light on the is of particularly affiant. That so in the Riley recognition majority Court’s the vast of “adults who phone keep person own a cell on their of digital a record nearly every aspect of their lives—from the mundane the intimate.” 134 S.Ct.

Finally, thoughtful competent disagree if and judges could it point, good this then follows that the in faith police relied In upon regard, the warrant. we the agree with State of by just judge—but the issuance the search warrant not one in judges independently two of one favor of another—weighs the applying good exception faith in this case. See Greenstreet (“[W]here 652, 679, (2006) the 392 Md. A.2d disagree- on ‘evidence to create warrant based sufficient among thoughtful judges ment the exis- competent as cause,’ exception will good of then the faith tence 3405)). Leon, apply.” (quoting 468 U.S. that, Appel- the warrant to search assuming hold even We for a basis supported lant’s cell substantial it issuance, good upon in faith when its relied phone. to search the cell executing the warrant Ill Thoughts Final and Conclusions guidance a here the postscript holding, repeat As to this we Moats opinion: of our offered at close thoughts this offer a few concluding opinion, Before we considering a they tasked with judges—whether be of application reviewing or the decision warrant to consider they might who issued the warrant—that want Unlike those phone. when the search at issue involves cell or of us who search warrants substantial basis review execution, judges faith of circuit courts good our presented are applications District Court to whom warrant determining of whether challenging have the more task examining In an probable cause exists the first instance. as in support phone, affidavit a warrant to search a cell judges always other must consider application, warrant in the totality the information contained affidavit. (or should) of a will result issuance every Not can phone. imagine search a cell situations warrant We the nature the crime will which suspect’s phone; examples might search the include offenses, crimes, public traffic the like. Even nuisance suspected crime cases where connection between established, lack likely and the cell is more to be or might of factual detail other circumstances countenance finding professed The affiant’s against cause. demonstrating experience might fall short prediction affiant’s can judge’s satisfaction that the sought in the will upon determining relied whether evidence cell affiant to phone the the search. be found wants end, In each for to application the a warrant search a cell on the of the phone by judge be addressed the merits

733 affidavit. The will the necessarily consider nature being investigated, the crime the facts provided of the connection that crime phone between cell searched, and, depending upon be the affiant’s demonstrat- experience, degree ed to which the defer- ence owed the affiant adds to the ultimate decision. warrant-issuing judge ultimately decision will rest whether, in its sets forth a totality, proba- fair bility that the information will found in the cell be searched.

Moats, 705-06, 168 atMd. A.3d 952. warrant-issuing judge have

We concluded had and, issuing substantial basis the search warrant event, that faith in good relying acted it. upon We affirm judgment therefore the Circuit Court Anne Arundel County. THE ANNE

JUDGMENT OF CIRCUIT COURT FOR AFFIRMED; BE PAID ARUNDEL COUNTY COSTS TO BY APPELLANT. JJ., Adkins, concur.

Greene Adkins, J., J., Greene, joins. which Concurring Opinion by I faith agree Majority’s holding good with the exception exclusionary to the Amendment rule applies Fourth case, in this on that upheld the search should be basis. I I am respectfully, separately Most write because troubled implications holdings Stevenson v. Majority’s both State, (2017), State, v. Md. and Moats A.3d 682, 168 (2017), 455 Md. regarding A.3d 2017 WL 3764567 Majority cause to fear that the phones.11 search a cell paved way has for law enforcement activity a nexus the criminal and the without between — Riley California, U.S. apply be searched. We should regarding I have discussed concern Moats v. an additional (2017), separate Md. 2017 WL 3764567 in a A.3d concurring opinion accompanying that case. (2014), a -, decision 134 S.Ct. L.Ed.2d phones, in their of individuals privacy interest protecting exclusively on the a prop up based almost facts. expertise—rather than officer’s PROBABLE CAUSE Riley, en- In that law a unanimous Court held searching a forcement must obtain a warrant before officers Id. at 2485. decision, In the Court phone. reaching that cell objects phones, compared cell when with out pointed that both a on an “differ in customarily person, found arrestee’s ” Id. at 2489. The qualitative and a .... quantitative sense impact has a on individual phone significant modern cell information, storage capacity, variety privacy because Id. at 2489-90. The of cell phones. the “pervasiveness” phone a cell explained that an individual without Justice Chief carry “a appears people rule is the to be exception—the nearly personal information with them” cache of sensitive Id. data and times. at The fact at all everywhere of the montage revealing can a information a “form conclusion that warrant- permitting life” supported user’s jeopardize privacy of cell would phones less searches Id. majority population. of the United interests of the States’ homes, cell ex- analogized phones Court 2490-91. plaining that to the expose govern- would typically cell search

[A] more of house: search ment far than most exhaustive many form sensitive only digital A contains phone not home; in the it also contains a found previously records in a home in information found array private never broad is. any form—unless the Id. original). (emphasis emphasized technological ad-

Chief Justice Roberts and protections principles not alter fundamental vances do technology fact Amendment. “The now Fourth carry information in his hand an such does allows individual worthy make information less protection for fought.” which the Id. at 2495. To Founders phone, required law enforcement is obtain warrant sup- ported by probable cause. assessment, requires

Probable cause an based the totali circumstances, ty of the “there a fair whether probability that contraband or of a evidence crime will be found in a particular place.” Gates, Illinois v. 238, 103 U.S. (1983). 2317, 76 L.Ed.2d 527 There must be a “nexus between criminal activity and the place Agurs be searched.” (2010). 62, 84, 415 Md. 998 A.2d 868 totality Given the of the circumstances, I cannot conclude that a substantial for a basis warrant in either of these existed cases. Stevenson,

In Appellant, Stevenson, Timothy assaulted and David Pethel on July day robbed The next he attempted to assault and another rob individual. Officers Stevenson, arrested belonging discovered items Pethel on his person. Stevenson also had a his phone posses- cell in arrested, sion when he was which he told officers his was own. Detective a sought Houseman to search Stevenson’s on phone affidavit, facts. In based these his Houseman ex- plained that through my knowledge “[i]t experience suspects and assaults will pic- robberies sometimes take tures, messages videos and send about their criminal activities added.)2 on phones.” (Emphasis their cellular Majority affidavit, reasons that Houseman’s Steven- Pethel, son’s admission that he assaulted and the Court’s recognition pervasiveness phones provid- of cell a ed “substantial for a to conclude basis” that Steven- son’s cell phone connecting contained evidence him to the Stevenson, 727-29, crime. 455 Md. 168 A.3d 967. But House- allege man facts permitting did inferences that Stevenson requested 2. Houseman’s warrant affidavit on Stevenson’s data during eighteen-hour period, July stored an on 22 "from 1600 hours July request appropriately 2015 to 1000 hrs 2015.” on This tailored to the circumstances the crime of arrest. The warrant incorporated the affidavit. others co-participant, had communicated with about had a his robbery, photographed or had victim. Petitioner, Moats, Moats, Timothy

In was arrested also a sexual drug-related charges. investigating Officers were from an that oc- arose incident drug charges assault. The provided mari- curred two before Moats’s arrest. Moats weeks juana teenagers way to other a car on the and Suboxone A.D.C., car, party. alleged One of the individuals evening party, at the sexually she had been assaulted but was, nor party where the who assaulted could remember Sergeant teenagers Zimmerman interviewed the other her. car, who corroborated this account distribution. Moats him when he was arrested. Zimmer- had his cell with man to search Moats’s cell sought warrant based facts, “training experience” that “individuals these in such communicate via cellular tele- participate who crimes calls, emails, etc.” phones, messages, via text Stevenson, Majority As in Moats reasons that the affidavit, forth in prevalence phones, facts set “particulars contained in cell and the phones, data arrest, provide to Moats’s leading events” substantial basis Moats, to 455 at conclude that cause existed. Md. sure, To of drug 168 A.3d 952. the “crime be distribution involves at least two id. 168 A.3d participants no in phone there are to communications but references specific leading up gave the events to Moats’s arrest. Moats in to his to a drugs person driving party. the friends while Nor any alleged facts sexual that surrounding are there the assault to anyone that used a document or communi- indicate cate The does not facts allege any about assault. in engaged drug that suggesting Moats broader distribu- tion activities. cases, Majority

In of fails to an these offer both explanation why provide these facts sufficient nexus that evidence would between the crimes and likelihood be provid- of the affiants phones. found on the arrestees’ Neither an to that either arrestee had ed articulable reason believe

737 in crime, used Ms of the or commission had evi- of the on his phone. dence crime The affiants on only relied general experience their that individuals who commit these phone through crimes communicate cell text messages, calls, and emails. The experience, any affiants’ absent factual support phones basis the inference the arrestees’ cell crimes, were connected to cannot as probable suffice cause. The with its on Majority opinion, emphasis officer experience, can readily interpreted be mean that as as long an has in experience investigation, officer sufficient his belief cell contains pertinent evidence is sufficient support a warrant. An officer’s experience cannot for an nexus” “evidentiary place substitute between the United States v. criminal activity searched and suspected. (6th 1994). Schultz, 1093, 1097 14 F.3d Cir.

Although it mentions that the nature crime should be considered, Majority simply ubiquitous uses the nature of phones magistrate’s finding Stevenson, 967; Moats, 727-29, 168 cause. atMd. A.3d 702-04, Md. at A A.3d 952. statement criminals tend to use in phones provides support, according crimes to the for a if Majority, warrant—even the crime at issue is uncon Stevenson, phone. nected to use a cell Md. at 967; Moats, 701-03, 168 A.3d Md. A.3d from Majority following relies quotation Riley. Court is no exaggeration say many the more than [I]t 90% of American a cell phone keep adults who own their person digital nearly every aspect of their record lives—from intimate. A phone the mundane to the ... only digital many contains form previ- sensitive records home; ously array found it also contains a broad form private information never found a home .... Stevenson, Riley, 726, 455 Md. at 967 (quoting 168 A.3d 2490-91). Court, however, The Supreme also ex plained—in “allowing that same discussion—that to scrutinize such is quite records on a routine basis different ” item or two .... personal to a allowing

from them search Court intended Riley, 134 S.Ct. at 2490. Clearly, Supreme if law privacy to individual threat highlight substantial a phones without war officers could search enforcement cause, provide primary not to by probable supported rant minor in all the most a but factual basis crimes. parallels between cell Riley,

In Court drew information houses, acknowledged that phones and as that may just as substantial in a cell be contained Riley, Although at 2491. in a house. 134 S.Ct. typically found say so, appears not it the Justices explicitly the Court did worthy protection as homes. at least as phones considered reason, Maryland prece- it to look to For that is instructive addressing suspects’ to search homes. dent warrants home, suspect’s “mere To cause search obtain observation, documentation, par- of a suspicion or defendant’s necessarily suffice activity in criminal will ticipation itself, inculpatory cause that evidence establish v. in the home.” Holmes 368 Md. will be found (2002). supply direct evidence. A.2d 90 Officers need from the may type cause inferred “probable Instead crime, sought, opportunity of the items the nature about the de concealment, and reasonable inferences where incriminating items.” Id. 796 A.2d may hide the fendant Coley, Agurs, Court relied Holmes State In 90. this (2002) to “establish relevant Md.App. 805 A.2d nexus exists principles” to determine when sufficient Agurs, 86-88, 998 A.2d suspect’s home. Md. at search a other than their Here, support, no provided 868. affiants that the arrestees for the statement training experience, crime, or that commission of a phones their used precisely of a crime. This contained evidence phones of Special Appeals that this Court and the Court lack nexus cause impermissible support probable as have condemned warrant.3 experience of our way I in extensive no discount the extremely capable. Our officers are law enforcement officers. State’s In Coley, the Court of Special explained that “Ma Appeals ryland ... rejected has explicitly notion” that there is th[e] to cause drug keep believe that dealers will contra band and records transactions in their 145 Md.App. homes. n.18, at 527 805 A.2d 1186. As explained Agurs, we while may officers draw reasonable inferences that may evidence be location, in a found “there must be facts from shown which this reasonable inference can at be drawn.” Md. added). (emphasis A.2d 868 Facts that suspected connect a drug dealer to his at home the time of drug transactions permit that inference. Id. We have a that adopted rule probable cause to search a home exists because drug dealers tend to keep drugs their home. should not a adopt We rule that translates that rationale to phones.

The Majority a exception offers slim to holding. its It suggests some cases “the nature of the crime will ” support a to warrant search the suspect’s cell phone .... Moats, 455 Md. at 952. A.3d But the only examples given offenses, are crimes, “traffic public nuisance and the like.” This exception Id. creates an amorphous, seemingly but narrow I standard which cannot find a limiting principle. jurisdictions require

Other more to connect a to a crime finding before to probable cause issue a search the In phone. White, Commonwealth 475 Mass. (2016), 59 N.E.3d 369 Judicial Court of Massa- chusetts “probable concluded cause or seize person’s cellular telephone may not solely be based on an opinion officer’s that the device is likely contain evidence ” investigation crime under .... Id. 371-72. Detectives had seized suspect’s phone they because had reason crime, the defendant had participated believe and their experience suggested might contain the device relevant evidence. Id. reason, magistrates ability provide For that I do not doubt their with suspected

additional facts that draw nexus between a activity. criminal explained Court Supreme Judicial The Massachusetts requirement. the nexus satisfy alone could not this connection court concluded precedent, Massachusetts Relying upon commit- suspect cause to the defendant even if or seize a cell exists, may not search a crime officers ted existence establishing “information they unless have found there.” Id. likely evidence particularized are common- phones inference that because rejected the court that if that infer- It reasoned used, they contain evidence. ly rare case cause “it be a probable would ence was sufficient a crime would charge someone with probable cause where to seizure and person’s telephone not cellular subse- open 2492). Riley, 134 quent search.” Id. (citing at 377 S.Ct. that the standard Massachu- “particularized evidence” not too I do may high. set be setts Judicial Court identify specific that officers must able suggest be not issue warrants they judges information seek. But should of an may contain exhaustive details phones cell in other cases have simply life criminals individual’s because commission of crimes. phones sometimes used cell an support crime to specific on facts relying Officers support point facts affidavit should be able on a may found sus- inference that evidence be reasonable pect’s phone. cell a link required court cases have also between

Federal See United justify probable crime to cause. phone and the 2016) (W.D. Ramirez, Ky. v. F.Supp.3d States drug at the time of arrest phone of a (suspect’s possession nexus establish a sufficient conspiracy does itself see also alleged activity); criminal and between 2015) (6th Bass, Cir. United States 785 F.3d (sufficient co-conspirators suspect existed when nexus activities during to communicate fraudulent phones used their to alert co- arrest suspect using before States, 1264, Mathis v. United 767 F.3d conspirators); 2014) affiants (11th (probable cause existed because Cir. al- suspect of communications between showed evidence phone). on leged suspect’s victim the The Supreme explained Court has “probable cause is a fluid concept—turning probabilities assessment ” particular factual Gates, contexts .... 232, 103 U.S. at added). 2317 (emphasis probabilities S.Ct. But foot require a ing Although facts. “common-sense conclusions hu about man behavior” are to determining relevant when exists, cause 231-32, 103 see id. they should be the sole criteria for assessment. Before a authorizes a warrant to search a cell phone, there should a factual be context that makes it probable that the has suspect’s phone crime, used in a been or that may evidence the crime phone. found

CONCLUSION Riley does not address what cause constitutes sufficient to cannot, obtain a warrant to search a I phone. however, conclude it appropriate for this to apply Court Riley permit warrants on an primarily based officer’s expertise necessary without the facts to reasonable inference suspect that the has his phone used the commission of a crime or that contains evidence of the crime.

Judge Greene has joins authorized me state that this he Concurring Opinion.

Case Details

Case Name: Stevenson v. State

Court Name: Court of Appeals of Maryland

Date Published: Aug 31, 2017

Citation: 168 A.3d 967

Docket Number: 92/16

Court Abbreviation: Md.