Kevin Whittington v. State of Maryland, No. 35, September Term 2020. Opinion by
Hotten, J.
CRIMINAL PROCEDURE – FOURTH AMENDMENT – WARRANT
REQUIREMENT – Detectives applied for and received a court order, pursuant to Md.
Code Ann., Criminal Procedure (“Crim. Proc.”) § 1-203.1, that authorized the placement
of a tracking device on Petitioner’s vehicle for thirty days. Thereafter, members of law
enforcement executed a search of Petitioner’s vehicle and residence, pursuant to a search
warrant supported in part by location information provided through the tracking device.
Petitioner challenged whether the issuance of a “court order” pursuant to Crim. Proc. § 1-
203.1 violated the United States Constitution because it did not use the precise label of
“warrant.” The Court of Appeals held that Crim. Proc. § 1-203.1 substantially complied
with the warrant requirement of the Fourth Amendment to the United States Constitution,
and the label “court order” instead of “warrant” did not render the statute unconstitutional.
CRIMINAL PROCEDURE – FOURTH AMENDMENT – PROBABLE CAUSE – A
warrant withstands appellate scrutiny if the issuing judge had a “substantial basis” in
concluding that a search would uncover evidence of wrongdoing. Stevenson v. State,
455
Md. 709, 723-24,
168 A.3d 967, 975-76 (2017). A substantial basis may arise from
reasonable inferences of criminal activity and not necessarily from direct inculpatory
observations. The Court of Appeals held that the issuing judge had a substantial basis to
conclude that a search of Petitioner’s vehicle and residence would yield evidence of
wrongdoing through GPS tracking of Petitioner’s vehicle traveling to and from suspected
stash houses, reasonable inferences from detectives’ professional experience, and first-hand observations of Petitioner’s suspected involvement in narcotics transactions, evasive
driving, and confederation with a known narcotics distributor.
CRIMINAL PROCEDURE – FOURTH AMENDMENT – GOOD FAITH
EXCEPTION – The good faith exception to the exclusionary rule of the Fourth
Amendment to the United States Constitution permits the admission of evidence obtained
pursuant to a warrant later shown to lack probable cause, so long as the officers reasonably
relied on the warrant issued by a detached and neutral magistrate. United States v. Leon,
468 U.S. 897, 922-24,
104 S. Ct. 3405, 3420-21 (1984). An officer may reasonably rely
on a warrant that provides some indicia of probable cause or generates disagreement among
thoughtful, competent judges as to a finding of probable cause. Stevenson,
455 Md. at 729,
168 A.3d at 978-79. The Court of Appeals held, arguendo, that if the underlying warrant
lacked a substantial basis to support a finding of probable cause, the detectives reasonably
relied on the warrant because it contained observations of Petitioner engaged in suspected
narcotics activity.
Circuit Court for Baltimore County
Case No. 03-K-17-000239
Argued: March 8, 2021 IN THE COURT OF APPEALS
OF MARYLAND
No. 35
September Term, 2020
__________________________________
KEVIN WHITTINGTON
v.
STATE OF MARYLAND
__________________________________
Barbera, C.J.,
McDonald,
Hotten,
Getty,
Booth,
Biran,
Raker, Irma S. (Senior Judge,
Specially Assigned),
JJ.
__________________________________
Opinion by Hotten, J.
__________________________________
Filed: June 2, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-06-02
13:28-04:00
Suzanne C. Johnson, Clerk
Petitioner, Kevin Whittington, (“Whittington”) challenged the constitutionality of
evidence obtained against him, following an investigation by the Harford County Narcotics
Task Force1 (“Task Force”) into suspected drug distribution activity occurring between
Harford and Baltimore counties. Task Force detectives had applied for and received an
“Application for Court Order” pursuant to Md. Code, Criminal Procedure (“Crim. Proc.”)
§ 1-203.1, to install a Global Positioning Satellite (“GPS”) tracking device on
Whittington’s vehicle. With the aid of the GPS tracking device, Task Force detectives
observed Whittington engage in activities consistent with narcotics distribution in Harford
and Baltimore counties. The Task Force detectives applied for and received a search
warrant for certain locations, including Whittington’s vehicle and suspected residence at 4
Cloverwood Ct. (“Cloverwood Court”) in Essex, Baltimore County, where the detectives
had probable cause to believe that Whittington either stored or manufactured narcotics.
1
The Harford County Narcotics Task Force is a highly trained, selfgoverning, multi-jurisdictional entity with a mission to investigate offenses
in the areas of mid to upper level drug trafficking, while supporting and
facilitating cooperation and coordination among federal, state, and local law
enforcement. The Harford County [Narcotics] Task Force is comprised of
the Harford County Sheriff’s Office, Maryland State Police, Aberdeen Police
Department, Bel Air Police Department, Havre de Grace Police Department,
Drug Enforcement Administration, and the Harford County State[’]s
Attorney’s Office[.]
Office of Media and Public Relations, News Release, Harford County Sheriff’s Office (Jan.
23, 2018), https://harfordsheriff.org/news/releases/harford-county-narcotics-task-forcemakes-significant-heroin-arrest-and-cash-seizure-from-a-baltimore-city-dealer-linked-toseveral-overdoses-in-harford-and-surrounding-counties/, archived at
https://perma.cc/VM4Z-Y5WS.
Members of law enforcement executed the search warrant and found the presence
of cocaine in Whittington’s vehicle and at Cloverwood Court. Whittington was arrested
and indicted in the Circuit Court for Baltimore County on two counts of Possession of a
Controlled Dangerous Substance (“CDS”) with Intent to Distribute, and two counts of
Possession of CDS. In the circuit court, Whittington moved to suppress the evidence,
arguing that the GPS tracking of his vehicle violated the Fourth Amendment to the United
States Constitution2 because it was issued pursuant to a “court order,” and that the affidavit
in support of a search warrant failed to provide probable cause to search his vehicle and
the residence at Cloverwood Court, because the detectives did not provide direct evidence
of CDS activity occurring within either his vehicle or that address. The circuit court
rejected Whittington’s argument that the court order violated the Fourth Amendment,
agreed that the search warrant lacked probable cause, but determined that the good faith
exception to the exclusionary rule3 of the Fourth Amendment applied because the arresting
2
The Fourth Amendment to the United States Constitution provides, in relevant
part, that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.” U.S. Const. amend. IV.
3
The United States Supreme Court created the “exclusionary rule” to prevent the
admission of evidence obtained in violation of the Fourth Amendment. Franks v.
Delaware, 438 U.S. 154, 165,
98 S. Ct. 2674, 2681 (1978) (discussing the exclusionary
rule and its creation in Weeks v. United States,
232 U.S. 383,
34 S. Ct. 341 (1914)). The
exclusionary rule is “designed to safeguard Fourth Amendment rights generally through its
deterrent effect [on future unlawful police conduct], rather than a personal constitutional
right of the party aggrieved.” United States v. Calandra,
414 U.S. 338, 348,
94 S. Ct. 613,
620 (1974) (footnote omitted). The good faith exception to the exclusionary rule permits
the admission of evidence later determined to be obtained in violation of the Fourth
Amendment because the United States Supreme Court recognized that law enforcement
(continued . . .)
2
officers reasonably relied upon the search warrant. The circuit court denied Whittington’s
motion to suppress.
After the suppression hearing on September 18, 2018, Whittington entered a
conditional guilty plea pursuant to Maryland Rule 4-242(d).4 Following the acceptance of
the conditional plea, the circuit court found Whittington guilty and imposed a sentence of
ten years’ imprisonment, suspending all but time already served and five years of
supervised probation. Whittington appealed his conviction to the Court of Special Appeals,
which held that the GPS court order issued pursuant to Crim. Proc. § 1-203.1 satisfied the
warrant requirement of the Fourth Amendment and agreed with the circuit court that the
detectives objectively relied on the search warrant in good faith. The Court of Special
Appeals affirmed the denial of the motion to suppress and the conviction by the circuit
court.
(. . . continued)
cannot be deterred from engaging in future unlawful police conduct if law enforcement
obtained and executed a warrant in objective good faith. United States v. Leon, 468 U.S.
897, 920,
104 S. Ct. 3405, 3419 (1984). This Court has “declined to decide whether
Maryland law generally recognizes an [equivalent] exclusionary rule[.]” Parker v. State,
402 Md. 372, 396,
936 A.2d 862, 876 (2007) (emphasis added); see infra note 17.
4
Maryland Rule 4-242(d)(2) provides in pertinent part:
With the consent of the court and the State, a defendant may enter a
conditional plea of guilty. The plea shall be in writing and, as part of it, the
defendant may reserve the right to appeal one or more issues specified in the
plea that (A) were raised by and determined adversely to the defendant, and,
(B) if determined in the defendant’s favor would have been dispositive of the
case. The right to appeal under this subsection is limited to those pretrial
issues litigated in the circuit court and set forth in writing in the plea.
3
Whittington timely appealed to this Court. We granted certiorari on November 10,
2020 to address the following questions:5
1. Did [the Court of Special Appeals], in a case of first impression, err in
holding that the placement and use of a GPS tracking device was legal
because a GPS Order issued under [Crim. Proc.] § 1-203.1 satisfied the
Fourth Amendment warrant requirement?
2. As a matter of first impression, did the issuing judge have a substantial
basis for finding probable cause from exclusively circumstantial evidence
of Whittington’s drug distribution activities that provided a sufficient
nexus to support a warrant to search his home, car, and person?6
3. Did [the Court of Special Appeals] err in finding that the good faith
exception to the Fourth Amendment exclusionary rule applied in this
case?
We answer the first and third questions in the negative, the second in the affirmative
and shall affirm the judgment of the Court of Special Appeals.
FACTS AND PROCEDURAL BACKGROUND
The Underlying Incident
The following factual background comes from an affidavit sworn to by Detective
Brandon Underhill of the Harford County Narcotics Task Force in an “Application for
Court Order” from the District Court of Maryland sitting in Harford County. On October
8, 2016, a District Court judge granted the “Application for Court Order” and authorized a
GPS tracker to monitor the whereabouts of a 2002 Dodge Stratus, registered to
Whittington.
5
We have reordered the questions presented for analytical consistency and clarity.
6
The State posed this question on conditional cross-petition.
4
The Task Force began investigating Whittington based on his association with a
suspected narcotics distributor with the street name of “Heavy.” In spring 2016, through
the assistance of a confidential informant, detectives identified “Heavy” as David Hall.
Task Force detectives, authorized by a separate court order, initiated interception of Hall’s
cellular phone communications and discovered that Whittington was the most frequent
contact. Task Force detectives believed Hall and Whittington used coded communications
to refer to locations for “processing powder cocaine into crack cocaine for distribution.”
On July 5, 2016, Task Force detectives observed Hall with Whittington in a 2002
Dodge Stratus registered to Whittington.7 Task Force detectives, when following Hall and
Whittington, noticed evasive, circuitous driving, which the detectives described as “a
technique often employed by drug dealers.” On October 4, 2016, Task Force detectives
observed Hall and a person later identified as Whittington meet at the residence of 101
Orsburn Drive in Joppa, Harford County. At the time, Task Force detectives intercepted a
communication between Hall and Whittington in which “both [were] very concerned that
a marked patrol car had been in the area while they were leaving.” Task Force detectives
observed Hall and Whittington traveling in the Dodge Stratus again on October 7, 2016.
Task Force detectives intercepted a coded phone call from which “based on the context of
the conversation, it was clear that” a drug transaction was being arranged. Based on his
professional experience, Detective Underhill characterized the observed activity as
7
Maryland Vehicle Administration records included a picture of Whittington along
with a listed address of 3106 Laurel View Drive, in Abingdon, Harford County. Based on
their observations, Task Force detectives concluded that Whittington’s real address was 4
Cloverwood Court in Essex, Baltimore County. See infra note 10.
5
consistent with narcotics possession and distribution. Detective Underhill also noted in the
application for the court order that Whittington had been found in possession of over three
ounces of cocaine when arrested in 2015 by the Harford County Sheriff’s Office.
The application for the court order asserted that there was “probable cause that the
vehicle, 2002 Dodge Stratus . . . currently registered to [Whittington] with a known address
of [Cloverwood Court in Essex, Baltimore County] is being used to commit violations of
the laws relating to the illegal Manufacturing, Distribution, Possession with intent to
Distribute and Possession of controlled dangerous substances[.]” (Emphasis omitted).
On October 8, 2016, the District Court of Maryland sitting in Harford County
granted the court order authorizing the installation of a GPS mobile tracking device on
Whittington’s vehicle for a period of thirty days.8 With aid of the GPS tracker, Task Force
Detectives Underhill and Sam Vivino observed Whittington engage in additional patterns
of movement consonant with CDS activity. The detectives detailed their observations in
an application for a search warrant to the District Court of Maryland sitting in Harford
County on October 24, 2016.
The sixteen-page application for the search warrant specified four locations and two
vehicles which Detectives Underhill and Vivino had probable cause to believe contained
evidence relating to “the illegal Manufacturing, Distribution, Possession and Possession
8
The parties do not dispute that the court order was issued pursuant to Crim. Proc.
§ 1-203.1. We note, while not required by statute, but with an eye towards preventing
future constitutional challenges pursuant to a similar court order, that nowhere on the face
of the application for court order did the detectives state that the placement of a GPS
tracking device on Whittington’s vehicle was authorized by Crim. Proc. § 1-203.1.
6
with Intent to Distribute [CDS.]” Two of the four locations included an apartment at 6032
Amberwood Road in Baltimore City, which detectives believed belonged to David Hall,
and an apartment at Cloverwood Court in Essex, Baltimore County, which detectives
believed belonged to Whittington. The two other addresses, 2514 Hanson Road in
Edgewood, Harford County and 101 Orsburn Drive in Joppa, Harford County, were
residences believed to belong to two other associates of Hall and Whittington involved in
CDS activity. The detectives suspected these other addresses, along with Amberwood
Road and Cloverwood Court, could function as “stash houses” for storing and
manufacturing CDS. The two vehicles included the 2002 Dodge Stratus “currently
registered to [Whittington] with a known address of [Cloverwood Court]” and a 2001
Dodge Durango “currently registered to David Hall with a known address of [Amberwood
Road.]”
The affidavit’s basis for searching these locations began with a summary of the
investigation preceding the installation of the GPS device on Whittington’s vehicle. The
detectives supplemented the summary with additional details of suspected CDS activity
that occurred before the “Application for Court Order” was granted. On August 10, 2016,
Detectives Underhill and Vass9 witnessed Hall meet with another man, later identified as
John Joseph Bruno, Jr., in the parking lot of a community pool on Willoughby Beach Road
in Harford County. Hall and Bruno only met for two minutes before Hall pulled away.
Bruno eventually left, and was followed by Detective Underhill, who observed Bruno
9
Detective Vass’s first name does not appear in the record.
7
talking on his cellular phone while driving and veering across the solid, double yellow line.
Another detective from the Harford County Sheriff’s Office Crime Suppression Unit
stopped Bruno on MD Route 152, along the western border of Harford County. A
Maryland State Police trooper arrived and conducted a search of the vehicle with a drug
sniffing dog, which uncovered a previously opened bag of marijuana and an unopened bag
of what appeared to be recently packaged cocaine.
Two months later, the detectives observed Hall and Bruno meet again at 101
Orsburn Drive. The detectives noted “that both Hall and Whittington travel to this location
frequently,” which they believed was “being used . . . to further the drug organization of
Hall and Whittington.” The affidavit additionally documented Hall’s criminal history,
which included seventeen different charges relating to CDS activity.
The detectives’ particularized description of Whittington’s behavior was more
exhaustive. On July 5, 2016 and October 7, 2016, detectives recounted the same
observations made in the “Application for Court Order[,]” including that Hall and
Whittington engaged in circuitous, “paranoid” driving, and made short, frequent stops at
locations throughout the region. On October 11, 2016, detectives began GPS surveillance
of Whittington’s vehicle. Whittington’s vehicle traveled to 101 Orsburn Drive in Harford
County and was stationary for nine minutes before traveling to a small shopping center at
11450 Pulaski Highway in Baltimore County where it remained for fifteen minutes.
Whittington’s vehicle returned to 101 Orsburn Drive where it was stationary for
approximately 90 minutes before returning to Cloverwood Court at the end of the day. The
detectives stated “[t]his is consistent with drug activity.”
8
On October 12, 2016, detectives tracked Whittington’s vehicle engaged in similar
activity. It traveled from Cloverwood Court to 101 Orsburn Drive where it remained for
two hours before departing. The next day, the vehicle left Cloverwood Court and traveled
to various locations in Harford County before returning to 101 Orsburn Drive for a short
stint. The vehicle traveled to 1105 Old Mountain Road in Joppa, Harford County,
remaining at the location for three minutes before returning to 101 Orsburn Drive. After
twenty minutes, Whittington’s vehicle departed again and eventually returned to
Cloverwood Court.
On October 14, 2016, Whittington’s vehicle traveled again to 101 Orsburn Drive,
where it remained for two hours. Throughout the day, the vehicle traveled to and made
brief stops at various locations and parking lots in the region. The affidavit specifically
noted a fourteen-minute stop at the 5300 block of King Arthur Circle in Baltimore County.
The vehicle returned to Cloverwood Court at the end of the day.
The Task Force conducted in-person surveillance of Whittington on October 17,
2016. Task Force units observed Whittington enter a Wendy’s fast-food restaurant in
Abingdon, Harford County for less than three minutes. Whittington left the location with
another unidentified male and neither man carried any items from the restaurant. The two
men traveled together to the same small shopping center at 11450 Pulaski Highway that
Whittington had visited for nine minutes on October 11 and remained there for ten minutes.
Whittington dropped the unidentified male at the 5300 block of King Arthur Circle.
9
Whittington returned to 101 Orsburn Drive, where Hall was also present in his Dodge
Durango vehicle. Whittington then took an unusual route to return to Cloverwood Court.10
The District Court of Maryland sitting in Harford County granted the search warrant
on October 24, 2016, the same day of application.11 Members of law enforcement stopped
Whittington while he was driving in Baltimore County and found $1,406 and two cellular
phones on Whittington’s person. A search of the Dodge Stratus revealed eight grams of
cocaine. A search of Cloverwood Court revealed ten Alprazolam pills,12 $1,222 in cash,
and 145.9 grams of cocaine with a street value of $14,590.
The State charged Whittington by indictment in the Circuit Court for Baltimore
County with Possession with Intent to Distribute Cocaine, Possession of Cocaine, and
10
The detectives concluded that Cloverwood Court was Whittington’s home:
A check through databases including Maryland Department of Assessments
and Taxation showed that the real property of 4 Cloverwood Court [] is
owned by Bernard and Denotta Teagle, with an address of 3106 Laurel View
Drive in Abingdon. Detectives immediately recognized 3106 Laurel View
Drive as Whittington’s Motor Vehicle Administration address. He has also
been seen at that location on multiple occasions. Based on the totality of the
circumstances, your affiants believe that [] Whittington’s actual residence is
at 4 Cloverwood Court[].
11
A District Court judge has territorial jurisdiction to issue a search warrant for
execution in any Maryland county. Birchead v. State, 317 Md. 691, 699,
566 A.2d 488,
492 (1989).
12
Alprazolam, often sold under the brand name, Xanax, is most commonly used to
treat anxiety disorders. Mayo Clinic, Alprazolam (Oral Route) (Apr. 1, 2021),
https://www.mayoclinic.org/drugs-supplements/alprazolam-oral-route/description/drg-
20061040, archived at https://perma.cc/Q9QT-GSA2. A person may not possess
Alprazolam, a controlled dangerous substance, “unless obtained directly or by prescription
or order from an authorized provider acting in the course of professional practice[.]” Md.
Code Ann., Criminal Law § 5-601(a)(1).
10
Possession of Alprazolam. Whittington tendered a conditional guilty plea to the charge of
Possession with Intent to Distribute Cocaine. The circuit court found Whittington guilty
and imposed a sentence of ten years’ imprisonment, suspended all but time already served
and five years of supervised probation. The State entered the remaining counts nolle
prosequi.
Legal Proceedings
A. Suppression Hearing
On September 18, 2018, in the Circuit Court for Baltimore County, Whittington
filed a motion to suppress all evidence recovered from the search of Cloverwood Court and
the 2002 Dodge Stratus. Whittington presented three arguments in favor of suppression.
First, the search warrant lacked probable cause because Task Force detectives could not
provide a “substantial basis” for searching Cloverwood Court located miles away from the
alleged drug activities. The Task Force detectives offered no direct evidence that
Whittington resided at the Cloverwood Court address, let alone engaged in drug activity
there. Second, GPS tracking of Whittington’s vehicle violated the Fourth Amendment,
because it was conducted pursuant to a court order, and not a warrant, as the Fourth
Amendment prescribes. The search authorized by a court order issued pursuant to Crim.
Proc. § 1.203.1 therefore violated the Fourth Amendment. Third, the good faith exception
to the exclusionary rule of the Fourth Amendment did not apply in this case because the
exception has been limited to warrants, not court orders. Even if it applied to court orders,
Whittington argued that it cannot apply in this case because the underlying search lacked
probable cause.
11
The circuit court denied the motion to suppress the evidence obtained pursuant to
the warrant. The circuit court agreed with Whittington’s substantial basis argument in that
the warrant did not provide facts giving rise to an inference of CDS activity at Cloverwood
Court.13 According to the circuit court, the detectives did not document alleged drug sales
at Cloverwood Court. Rather, the affidavit demonstrated potential drug activity at 101
Orsburn Drive. The circuit court stated that the suspicion of drug activity at Cloverwood
Court “seems inconsistent” with the suspected CDS activity documented in the affidavit.
The circuit court further explained:
There’s no description of any drug activity, other than suspicions, but there’s
no sells. There’s no covert activity. Yes, it possibly could be, but it also
could possibly be something else. . . . [T]he only drug activity I saw in here
was the very first thing where there was Mr. Hall meeting with an individual,
[] by the officers’ statement, they couldn’t see what they were doing. They
didn’t see any transactions going on in -- in the car. And the person drove
off. They stop them on a traffic violation and they got one bag of cocaine.
There’s -- there’s no mention of anything that . . . Mr. Hall was the distributor
of that cocaine, but even though there’s no evidence that he did. But there’s
. . . no allegations that Mr. Whittington was ever around any drugs. They --
they didn’t see any sales. They didn’t see any hand to hands. They didn’t
see any, uh, no[t] a lot of foot traffic coming out of the house. I -- I -- I’m
troubled [] by this. I mean, there’s a lot of facts given, but a lot of the facts I
don’t find to be terribly relevant, other than that he -- he goes to the house
and he sleeps there. What -- what activity is there about the house?
(Emphasis added).
The circuit court nonetheless found that the detectives relied on the warrant in good
faith. “[T]here’s nothing so obvious in [the warrant] that an officer would not deem it to
be reasonable based on the issuance of it by a neutral magistrate, or in this particular case
13
The circuit court neither discussed, nor reached, the question of whether there
was a deficient substantial basis to search Whittington’s vehicle.
12
District Court judge.” The circuit court concluded that the court order was lawfully issued
pursuant to Crim. Proc. § 1-203.1, which expressly authorizes court orders by statute. The
circuit court left the question of the statute’s underlying constitutionality for appellate
review.
B. Opinion of the Court of Special Appeals
The Court of Special Appeals held that the court order issued pursuant to Crim.
Proc. § 1-203.1, authorizing the placement of a GPS tracking device on Whittington’s
vehicle, satisfied the warrant requirement of the Fourth Amendment and that the circuit
court correctly denied the motion to suppress. The Court rejected Whittington’s facial
constitutional challenge of Crim. Proc. § 1-203.1, because Whittington failed to
“demonstrate that there is ‘no set of circumstances’ under which the statute would be
valid.” Kevin Whittington v. State, 246 Md. App. 451, 471,
230 A.3d 148, 161 (2020)
(citing United States v. Salerno,
481 U.S. 739, 745,
107 S. Ct. 2095, 2100 (1987)) (footnote
omitted).
The Court also dismissed Whittington’s contention that a “court order” can never
satisfy the warrant requirement of the Fourth Amendment. “[I]n this case, as in most, the
label is not dispositive.” Id. at 472, 230 A.3d at 160. According to the Court, the
constitutionality of a court order hinges on its substance, not form.
Id.,
230 A.3d at 161
(citing State v. Copes,
454 Md. 581, 625,
165 A.3d 418, 444 (2017)). The United States
Supreme Court, in United States v. Jones,
565 U.S. 400,
132 S. Ct. 945 (2012), held that
placement of a GPS tracker constituted a search, but according to the Court, Jones never
13
specified that a warrant was required to utilize a GPS tracker, let alone a document formally
labeled as a warrant. Whittington, 246 Md. App. at 473-74,
230 A.3d at 162.
The Court next determined that Crim. Proc. § 1-203.1 complied with the Fourth
Amendment. According to the Court, a plain text analysis demonstrates “that the statute
embodies all of the warrant requirements inhering in the Fourth Amendment.” Id. at 481,
230 A.3d at 166. The statute enumerates the basis for probable cause, including facts
within the personal knowledge of the affiant. The written application for a court order
must be signed and sworn to by the applicant and accompanied by an affidavit. It also
requires applicants to “describe with reasonable particularity” the type of device used, the
user of the device, the identifying number of the device, and grounds for obtaining the
information.
Id. at 482,
230 A.3d at 166. Finally, the statute provides time limitations and
notice requirements.
The Court of Special Appeals also surveyed sister jurisdictions that have enacted
similar statutes regulating the use of GPS technology by law enforcement. While these
states have not confronted the precise question of whether the term “court order”
categorically precludes compliance with the Fourth Amendment, in the Court’s estimation,
none of the appellate court decisions from these states have struck down a statute because
of its particular nomenclature. Id. at 485,
230 A.3d at 169. The Court concluded that the
court order issued pursuant to Crim. Proc. § 1-203.1 satisfied the requirements of the Fourth
Amendment.
The Court of Special Appeals also upheld the circuit court’s decision to deny the
motion to suppress. The Court determined that the good faith exception to the warrant
14
requirement applied and assumed without deciding that the District Court did not have a
substantial basis to find probable cause. The Court explained that evidence obtained in
violation of the Fourth Amendment, including an insufficient showing of probable cause,
is ordinarily inadmissible. Id. at 491, 230 A.3d at 172. The good faith exception allows
such evidence to be admitted “if the executing officers acted in objective good faith with
reasonable reliance on the warrant.”
Id.,
230 A.3d at 172 (citation omitted).
The Court of Special Appeals noted that this Court has applied the good faith
exception even in cases where “there was no substantial basis for probable cause.” Id. at
493,
230 A.3d at 173 (citing Patterson v. State,
401 Md. 76, 82,
930 A.2d 348, 351-52
(2007)). The Court examined Agurs v. State,
415 Md. 62,
998 A.2d 868 (2010), because
of the parties’ “extensive[] brief[ing,]” on the case, but ultimately distinguished Agurs from
the instant case on the facts. Whittington, 246 Md. at 498,
230 A.3d at 177. Unlike Agurs,
in which a “single assertion” of suspected criminal activity raised an issue of whether law
enforcement could have objectively and in good faith relied on the warrant, the detectives
in this case detailed extensive observations of Whittington’s behavior that appeared
consistent with CDS activity.
Id. at 495,
230 A.3d at 175 (quoting Agurs,
415 Md. at 89,
998 A.2d at 884). The Court of Special Appeals also pointed to the detectives’ professional
experience in investigating and interdicting narcotics distribution as further substantiation
of probable cause, and by extension, reasonable reliance on the warrant. Id. at 497,
998
A.2d at 176. Most importantly, the level of detail in the sixteen-page search warrant
affidavit for Whittington was qualitatively distinct from the warrant in Agurs, which was
15
rife with “wholly conclusory statements[.]” Id. at 500, 230 A.3d at 177 (quoting Agurs,
415 Md. at 79,
998 A.2d at 878).
The Court of Special Appeals concluded that the detectives’ reliance on the warrant
was reasonable, “[t]hus the circuit court [] was correct in applying the good faith exception
and denying [] Whittington’s motion to suppress.” Id. at 500, 230 A.3d at 178.
DISCUSSION
Standard of Review
When reviewing the constitutionality of a statute, “[t]he basic rule is that there is a
presumption” that the statute is valid. Galloway v. State, 365 Md. 599, 610,
781 A.2d 851,
857 (2001) (citations omitted). “We are reluctant to find a statute unconstitutional if, ‘by
any construction, it can be sustained.’”
Id. at 611,
781 A.2d at 858 (quoting Beauchamp v.
Somerset Cty. Sanitary Commission,
256 Md. 541, 547,
261 A.2d 461, 463 (1970)). If,
however, a statute violates a “mandatory provision” of the United States Constitution, “we
are required to declare such an act unconstitutional and void. [. . .]”
Id.,
781 A.2d at 858
(citation omitted). Whittington, as the party attacking Crim. Proc. § 1-203.1, has the
burden of establishing its unconstitutionality. Id.,
781 A.2d at 858.
“In reviewing the rulings of the suppression courts, we rely solely upon the record
developed at the suppression hearings.” Kelley v. State, 436 Md. 406, 420,
82 A.3d 205,
213 (2013). “We view the evidence and inferences that may be drawn therefrom in the
light most favorable to the party who prevails on the motion, here, the State.”
Id.,
82 A.3d
at 213. “We defer to the motions court’s factual findings and uphold them unless they are
16
shown to be clearly erroneous.” Lee v. State, 418 Md. 136, 148,
12 A.3d 1238, 1246
(2011).
“The ultimate question as to whether there was a constitutional violation [of the
Fourth Amendment] is a legal question on which we accord no special deference to the
trial court.” Copes, 454 Md. at 603,
165 A.3d at 431. The application of whether the good
faith exception to the exclusionary rule of the Fourth Amendment applies also is a legal
issue that we review without deference.
Id.,
165 A.3d at 431.
Contentions of the Parties
Whittington contends that the Fourth Amendment strictly requires that only a formal
document labeled as a “warrant” satisfies the warrant requirement. The language of the
Fourth Amendment specifically uses the term “Warrants[,]” which according to
Whittington, necessarily precludes the use of functional equivalents, such as court orders.
For Whittington, if the Fourth Amendment permitted functional equivalents, “there would
be nothing to prevent law enforcement from using a court order meeting the requirements
of [Crim. Proc.] § 1-203.1 or some other statute, instead of a warrant, to search an
individual’s home.” Whittington argues that equating Crim. Proc. § 1-203.1 substantively
with a warrant demonstrates the redundancy of the statute—law enforcement could and
should have applied for a warrant instead.14
14
During oral argument Whittington’s counsel also assumed that this analysis would
render unconstitutional all other court orders supported by probable cause and authorized
by statute, such as the Maryland Wiretap Act, codified at Md. Code Ann., Courts and
Judicial Proceedings (“Cts. & Jud. Proc.”) §§ 10-401-414. Oral Argument at 4:52, Kevin
Whittington v. State of Maryland, 471 Md. 264,
241 A.3d 860 (2020) (No. 35),
(continued . . .)
17
Whittington also argues that the Court of Special Appeals’ interpretation of Crim.
Proc. § 1-203.1 goes against the majority of states that require a “warrant” and not a “court
order” to authorize the placement of a GPS tracking device on a vehicle. According to
Whittington, the fact that no other states have addressed the difference in nomenclature
between order and warrant demonstrates “no authoritative support for the position taken
by the [Court of Special Appeals] in this case.”
Whittington next contends that the Court of Special Appeals erred in applying the
good faith exception because “the warrant lacked any indicia of probable cause due to there
being a clear lack of nexus between the nature of the items sought and the place where they
were to be seized.” In short, Whittington argues that the detectives could not have
reasonably relied on the warrant when the warrant lacked a substantial basis for probable
cause.
The United States Supreme Court, in Leon, suggested four instances where the good
faith exception does not apply.15 Of the four instances, Whittington argues that the
(. . . continued)
https://www.courts.state.md.us/sites/default/files/import/coappeals/media/2020/coa20210
308caseno35.mp4 [hereinafter “Oral Argument”], archived at https://perma.cc/9LQ7-
NRFJ.
15
The Leon Court suggested the following four instances:
(1) the magistrate was misled by information in an affidavit that the officer
knew was false or would have known was false except for the officer’s
reckless regard for the truth;
(2) the magistrate wholly abandoned his detached and neutral judicial role;
(3) the warrant was based on an affidavit that was so lacking in probable
cause as to render official belief in its existence entirely unreasonable; and
(continued . . .)
18
following applies to this case: “a warrant based on an affidavit ‘so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.’” 468 U.S.
at 923,
104 S. Ct. at 3421 (citation omitted).
Whittington asserts that the plurality opinion in Agurs, which concluded that “no
reasonably well-trained police officer could have relied in good faith on the warrant
authorizing the search of Agurs’ home[,]” controls the outcome of the case because
Whittington argues that there is even less of a basis in the instant case than in Agurs. 415
Md. at 87-88,
998 A.2d at 883. At least in Agurs, according to Whittington, the police saw
Agurs enter and leave his home on several occasions; whereas the detectives, in this case,
never saw Whittington enter and leave his registered home address, rather only a location
suspected as being Whittington’s home. Whittington contends that the detectives could, at
most, only conclude that Whittington slept at Cloverwood Court. Even if Agurs is not
controlling, Whittington argues that because the affidavit lacked facts indicative of
criminal activity, the detectives should have known there was deficient probable cause to
search Cloverwood Court.
The State counters that there is no merit or legal support for Whittington’s claim
that a document must be labeled a “warrant” to satisfy the Fourth Amendment. This Court
previously explained in Copes that when the constitutional criteria authorizing the issuance
(. . . continued)
(4) the warrant was so facially deficient, by failing to particularize the place
to be searched or the things to be seized, that the executing officers cannot
[reasonably] presume it to be valid.
Patterson, 401 Md. at 104,
930 A.2d at 365 (quoting Leon,
468 U.S. at 923,
104 S. Ct. at
3421).
19
of a warrant “are met, it does not matter whether the order is labeled a warrant. The
constitutional requirements are addressed to substance, not form.” 454 Md. at 625,
165
A.3d at 444. The United States Supreme Court has interpreted the warrant requirement of
the Fourth Amendment to contain only three requirements: probable cause in sworn
testimony, describing items or persons to be searched or seized with particularity, and
presented to a detached, neutral magistrate. Dalia v. United States,
441 U.S. 238, 255,
99
S. Ct. 1682, 1692 (1979). According to the State, the United States Supreme Court has
never read a warrant label requirement into the Fourth Amendment, and in Dalia, had no
problem affirming a court order’s substantive compliance with the warrant requirement of
the Fourth Amendment. See
id. at 256,
99 S. Ct. at 1692 (“[t]he April 5 court order
authorizing the interception of oral communications occurring within petitioner’s office
was a warrant issued in full compliance with these traditional Fourth Amendment
requirements.”).
According to the State, a court order issued pursuant to Crim. Proc. § 1-203.1
contains the same substantive requirements of a warrant. Whittington does not identify
any meaningful distinction between a court order and a warrant.16 A court order issued
pursuant to Crim. Proc. § 1-203.1 complies with the requirements of the Fourth
Amendment.
16
We note that Whittington’s counsel admitted during oral argument before this
Court that other than nomenclature, there is no substantive difference between a court order
and a warrant. Judge Irma S. Raker asked, “you are agreeing [] that both [a court order and
warrant] require the same information?” Oral Argument at 6:58. To which Whittington’s
counsel replied, “[T]he order requires the same information that a warrant would require—
I do agree with that.” Oral Argument at 7:08.
20
The State also argues that the District Court had a substantial basis for finding
probable cause from exclusively circumstantial evidence of Whittington’s CDS activities.
Even if the District Court lacked a substantial basis for issuing a warrant, the State contends
that the Court of Special Appeals properly affirmed the circuit court’s finding that the
officers acted in good faith reliance on the validity of the search warrant for Whittington’s
home, car, and person.
Analysis of Crim. Proc. § 1-203.1
A. The court order issued pursuant to Crim. Proc. § 1-203.1 satisfies the warrant
requirement of the Fourth Amendment.
The Fourth Amendment and Article 26 of the Maryland Constitution, Declaration
of Rights17 protect against unlawful search and seizures. The United States Supreme Court
held in Jones that placing a GPS tracking device on a person’s vehicle constitutes a search.
Since the detectives placed a GPS tracking device on Whittington’s vehicle, the first issue
17
Article 26 of the Maryland Declaration of Rights provides:
That all warrants, without oath or affirmation, to search suspected places, or
to seize any person or property, are grievous and oppressive; and all general
warrants to search suspected places, or to apprehend suspected persons,
without naming or describing the place, or the person in special, are illegal,
and ought not to be granted.
While the parties did not present their arguments under Article 26, this Court has
held the protections of Article 26 to be co-extensive with those afforded by the Fourth
Amendment. King v. State, 434 Md. 472, 483,
76 A.3d 1035, 1041 (2013). This Court has
not recognized a general exclusionary rule for illegally seized evidence under Article 26.
Id. at 484,
76 A.3d at 1042. Whittington must demonstrate that the detectives’ conduct
violated the federal Constitution to suppress the evidence obtained therefrom. Brown v.
State,
397 Md. 89, 98
916 A.2d 245, 251 (2007).
21
before us is whether that search of Whittington’s vehicle was unlawful. A lawful search
requires either a valid warrant or application of one of the established warrant exceptions.
No warrant exception applies in this case, and Whittington argues that the court order
issued pursuant to Crim. Proc. § 1-203.1 cannot constitute a valid warrant because of its
label as a court order.
We are not persuaded by Whittington’s argument that a label determines compliance
with the Fourth Amendment. At the outset, we acknowledge a literary, but no less
appliable, insight of William Shakespeare, alluded to by the State during the suppression
hearing, and referenced by Judge Charles E. Moylan, Jr. of the Court of Special Appeals
on more than one occasion:18
What’s in a name? That which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call’d,
Retain that dear perfection which he owes
Without that title.19
The Fourth Amendment case law from the United States Supreme Court and our
Court, along with the plain text and legislative history of Crim. Proc. § 1-203.1,
demonstrates that it is the substance, not the nomenclature, that determines whether a court
order issued pursuant to Crim. Proc. § 1-203.1 may constitute a valid warrant.
18
Morten v. State, 242 Md. App. 537, 566,
215 A.3d 846, 863 (2019); McKinney v.
State,
239 Md. App. 297, 311,
196 A.3d 520, 528 (2018).
19
William Shakespeare, Romeo and Juliet, Act 2, Scene 2.
22
Case law demonstrates no formal “warrant” label requirement.
The United States Supreme Court has determined that a valid warrant contains three
criteria. First, a warrant must be issued by a neutral, disinterested magistrate. Lo-ji Sales,
Inc. v. New York, 442 U.S. 319, 326,
99 S. Ct. 2319, 2324 (1979). Second, the affiant
seeking the warrant must demonstrate to the magistrate probable cause to believe that “the
evidence sought will aid in a particular apprehension or conviction” for a particular offense.
Warden v. Hayden,
387 U.S. 294, 307,
87 S. Ct. 1642, 1650 (1967). Finally, “warrants
must particularly describe the ‘things to be seized,’” as well as the place to be searched.
Dalia,
441 U.S. at 255,
99 S. Ct. at 1692 (citations omitted).
To date, the United States Supreme Court has not determined whether the label of
“warrant” impacts the validity of a warrant. In Carpenter v. United States, 585 U.S. ___,
138 S. Ct. 2206 (2018), the Court focused its attention on whether a court order issued
pursuant to
18 U.S.C. § 2703(d) substantively required a quantum of suspicion equivalent
to the probable cause needed for a warrant.
Id. at ___,
138 S. Ct. at 2221. The Court held
that a court order issued pursuant to
18 U.S.C. § 2703(d) failed to comply with the Fourth
Amendment because it only required “reasonable grounds for believing records were
relevant and material to an ongoing investigation . . . fall[ing] well short of the probable
cause required for a warrant.”
Id.,
138 S. Ct. at 2211 (emphasis added). In its analysis of
the warrant requirement, the United States Supreme Court notably omitted any mention of
whether the term “court order” factored into its bottom-line conclusion.
Id.,
138 S. Ct. at
2211.
23
Similarly, this Court has never interpreted the warrant requirement of the Fourth
Amendment to require a particular label. The majority opinion in Copes examined whether
a court order issued pursuant to Maryland’s Pen Register Statute, Md. Code Ann., Cts. &
Jud. Proc. §§ 10-4B-01-05, may substantively comply with the three criteria of a valid
warrant: neutral, disinterested magistrate, probable cause, and particularity.
454 Md. at
618-19,
165 A.3d at 440. The majority noted that the court order was issued by a circuit
court judge which satisfied the “neutral magistrate” requirement.
Id. at 625,
165 A.3d at
444. The majority also found that probable cause could have existed based on the
detective’s summary of evidence collected in the course of a criminal investigation.
Id. at
595,
165 A.3d at 426. Finally, in satisfaction of the particularity requirement, the court
order also indicated a specific cell phone number to be tracked.
Id. at 625,
165 A.3d at
444. In summary, the majority stated that “[w]hen these criteria are met, it does not matter
whether the order is labeled a ‘warrant.’ The constitutional requirements are addressed
to substance, not form.”
Id.,
165 A.3d at 444 (emphasis added).20
20
The Court of Special Appeals noted in its opinion that Maryland, along with
Florida, Pennsylvania, and South Carolina are the only states that currently require law
enforcement officers to obtain an “order” rather than a “warrant” prior to installation of a
GPS device. Whittington, 246 Md. App. at 483 n.15,
230 A.3d at 168 n.15. Appellate
decisions from these three other states support our conclusion that “[t]he content of a
court’s order—not the label affixed to it—determines whether a warrant satisfies the Fourth
Amendment.” State v. Sylvestre,
254 So. 3d 986, 989 (Fla. Dist. Ct. App. 2018); see also
Com. v. Burgos,
64 A.3d 641, 655 (Pa. Super. Ct. 2013) (“Therefore, in keeping the purpose
and functionality of the Wiretap Act in mind, it is evident that these wiretap orders serve
as the functional equivalent of traditional search warrants.”) (emphasis added); State v.
Adams,
409 S.C. 641, 650,
763 S.E.2d 341, 346 (2014) (using the term “warrant”
interchangeably with “order” when describing the warrant requirement of the South
Carolina GPS tracking statute).
24
While the dissent in Copes ultimately concluded that the court order issued did not
satisfy the Fourth Amendment, the dissent still acknowledged that “the use of a cell site
simulator requires a valid search warrant, or an order satisfying the constitutional
requirements of a warrant[.]” Id. at 630, 165 A.3d at 447 (Hotten, J., dissenting) (citation
omitted) (emphasis added). The case law from the United States Supreme Court and this
Court demonstrates no support for Whittington’s formalistic contention that the use of
another term besides “warrant” categorically prevents compliance with the Fourth
Amendment. Crim. Proc. § 1-203.1 is not unconstitutional merely because it does not use
the term “warrant.”
Crim. Proc. § 1-203.1 complies with the warrant requirement of the Fourth Amendment.
We now turn to whether a court order issued pursuant to Crim. Proc. § 1-203.1
substantively satisfies the three criteria of a valid warrant: a detached neutral magistrate,
probable cause, and particularity. We agree with the Court of Special Appeals that “[t]he
plain language of [Crim. Proc.] § 1-203.1 shows that the statute embodies all of the warrant
requirements inhering in the Fourth Amendment.” Whittington, 246 Md. App. at 481,
230
A.3d at 166. The statute complies with the requirement of a neutral, detached magistrate
because it requires a court, either “the District Court or a circuit court having jurisdiction
over the crime being investigated,” to issue the court order. Crim. Proc. § 1-203.1(a)(3) &
(b)(1).
The statute satisfies the requirement of probable cause because the plain text
requires, before issuing the court order, a finding of probable cause to believe that:
25
(i) a misdemeanor or felony has been, is being, or will be committed by the
owner or user of the electronic device or by the individual about whom
location information is being sought; and
(ii) the information sought by the cell site simulator or the location
information being sought:
1. is evidence of, or will lead to evidence of, the misdemeanor or
felony being investigated; or
2. will lead to the apprehension of an individual for whom an arrest
warrant has been previously issued.
Crim. Proc. § 1-203.1(b)(1). The plain text also requires an affiant, when articulating the
basis for probable cause, to meet the following conditions:
(2) An application for an order under this section shall be:
(i) in writing;
(ii) signed and sworn to by the applicant; and
(iii) accompanied by an affidavit that:
1. sets forth the basis for the probable cause . . . and
2. contains facts within the personal knowledge of the affiant.
Crim. Proc. § 1-203.1(b)(2).
The statute also satisfies the criterion of particularity by specifying what a court
order must identify as the object of the search:
(3) An order to obtain location information issued under this section shall:
(i) name or describe with reasonable particularity:
1. the type of electronic device associated with the location
information being sought;
2. the user of the electronic device, if known, or the identifying
number of the electronic device about which location
information is sought;
3. the owner, if known and if the owner is a person or an entity
other than the user, of the electronic device;
4. the grounds for obtaining the location information; and
5. the name of the applicant on whose application the order was
issued[.]
Crim. Proc. § 1-203.1(b)(3). In sum, the plain text of Crim. Proc. § 1-203.1 fulfills the
three criteria of a valid warrant.
26
The legislative history of Crim. Proc. § 1-203.1 further demonstrates compliance with
the warrant requirement.
We find additional evidence of the statute’s substantive compliance with the Fourth
Amendment from the statute’s legislative history. Hammonds v. State, 436 Md. 22, 44,
80
A.3d 698, 711 (2013) (“Even if the plain meaning is clear and unambiguous, we often look
to the legislative intent and purpose to determine if they ratify our analysis and
interpretation of a statute.”).
The sponsors of Senate Bill 698 made clear, from the bill’s introduction to its final
passage, that the use of GPS tracking by law enforcement would satisfy the constitutional
requirements articulated by the United States Supreme Court. In opening remarks to the
Senate Committee on Judicial Proceedings, one of the bill sponsors, Senator Christopher
Shank, explained that Senate Bill 698 adhered to the United States Supreme Court decision
in Jones. Hearing on S.B. 698 Before the S. Comm. on Jud. Proc., 2014 Leg., 434th Sess.
at 1:32:15 (Statement of Senator Christopher B. Shank, S. Comm. on Jud. Proc.). The bill
sponsors continued to cite Jones throughout the bill’s legislative history and enactment.
Fiscal and Policy Note, S.B. 698, 2014 Leg., 434th Sess. (Md. 2014); Floor Report, S.B.
698, 2014 Leg., 434th Sess. at 12-13 (Md. 2014) (adopting the unanimous holding from
Jones in which “law enforcement must obtain a search warrant before using global
positioning system (GPS) technology to track criminal suspects”).
The bill sponsors in both the original version of the bill and during initial committee
hearings used the term “warrant” to describe what law enforcement must obtain before
27
placing a GPS tracking device on a suspect’s vehicle.21 As the Court of Special Appeals
noted in its opinion, the bill sponsors struck the label “warrant” after the first reading of
the bill and instead substituted the term “court order.”
The Floor Report produced by the Senate Judicial Proceedings Committee
explained that the replacement of “warrant” for an “order” was a “technical” amendment.22
Floor Report, S.B. 698 at 7. The Floor Report did not offer further elaboration other than
reaffirming the bill’s compliance with the constitutional requirements of GPS tracking set
forth in Jones. Id. at 12-13. Even after revisions and amendments, including the technical
21
We assume the bill sponsors originally used the term “warrant” because the
United States Supreme Court used the same term in Jones. The Bill File for SB 698 does
not otherwise document why the bill sponsors originally selected “warrant” instead of
“court order.”
22
The “technical” change in the Floor Report likely referred to an attempt by the
bill sponsors to harmonize nomenclature with preexisting law enforcement practice and
statutory naming conventions. Before the enactment of Crim. Proc. § 1-203.1, some
counties already required a showing of probable cause when law enforcement applied for
a court order either to place a GPS tracking device or to gather cell-phone information.
See, e.g., Dario J. Broccolino, Letter to Chairman Brian E. Frosh of the Senate Judiciary
Committee, S.B. 698, 2014. Leg., 434th Sess. (Md. 2014) (“Our office[, the State’s
Attorney for Howard County,] and the Howard County Police Department currently utilize
a probable cause standard in obtaining court orders for both GPS tracking and real-timecell phone tracking.”). Similarly, the Maryland Wiretap Act, codified within Title 10 of
the Courts and Judicial Proceedings Article, already required law enforcement to seek a
“court order” to obtain authority to intercept wireless communications. Md. Code Ann.,
Cts. & Jud. Proc. § 10-406(a) (“The Attorney General, State Prosecutor, or any State’s
Attorney may apply to a judge of competent jurisdiction, and the judge, in accordance with
the provisions of § 10-408 of this subtitle, may grant an order authorizing the interception
of wire, oral, or electronic communications[.]”). Because Senate Bill 698 proposed
authorizing law enforcement’s monitoring of both GPS tracking data and real-time cellular
location data in the same statutory provision, the term “court order” likely provided greater
consistency with preexisting law enforcement practice and naming conventions in the
Maryland Code.
28
change in nomenclature from “warrant” to “court order,” the stated purpose of the bill still
was to prohibit law enforcement from placing a GPS device without first obtaining a court
order that substantively complied with the warrant requirement of the Fourth Amendment.
Fiscal and Policy Note Revised, S.B. 698, 2014 Leg., 434th Sess. (Md. 2014) (“This bill
authorizes a court to issue an order authorizing or directing a law enforcement officer to
obtain ‘location information’ from an ‘electronic device.’ . . . A court may issue an order
by application on a determination that there is probable cause[.] . . . An application for an
order must be in writing, signed and sworn to by the applicant, and accompanied by an
affidavit that sets forth the basis for the probable cause and contains facts within the
personal knowledge of the affiant.”) (emphasis added).
Conversely, there is absolutely nothing in the legislative record that questions the
constitutionality of Crim. Proc. § 1-203.1 based on the term “court order.”23 The legislative
history demonstrates the intent of the General Assembly to bring the use of GPS tracking
by law enforcement into substantive compliance with the Fourth Amendment. Whittington
cannot satisfy his burden of establishing the unconstitutionality of Crim. Proc. § 1-203.1.24
23
The Bill File for S.B. 698 contains multiple letters of support and opposition to
the proposed law. None of the letters, either from privacy advocates, such as the American
Civil Liberties Union and the Electronic Frontier Foundation, or from law enforcement and
State’s attorneys, raised the issue of whether the label “court order” had any practical or
legal bearing on the proposed law.
24
Whittington’s counsel conceded during oral argument before this Court that, apart
from the label, the court order issued pursuant to Crim. Proc. § 1-203.1 otherwise satisfied
the criteria of a valid warrant. Judge Raker asked, “[o]ther than nomenclature, what is
missing here to satisfy the definitional requirements of a warrant?” Oral Argument at 5:25.
Whittington’s counsel replied, “I don’t think I have argued in any of my papers that [court
orders] don’t have . . . the guts of a warrant.” Oral Argument at 5:35.
29
We accordingly hold that the use of the term “court order” in Crim. Proc. § 1-203.1 satisfies
the warrant requirement of the Fourth Amendment, and assume without deciding, that the
court order satisfies Article 26 of the Maryland Declaration of Rights.
B. There was a substantial basis to support the District Court’s finding of
probable cause.
The Fourth Amendment and Article 26 of the Maryland Declaration of Rights
require that no warrant, or in this case, court order, shall issue without probable cause. See
Birchead, 317 Md. at 700,
566 A.2d at 493. We do not conduct a de novo inquiry into
whether the court order in this case was supported by probable cause, rather we must
determine whether the “issuing judge had a substantial basis for concluding that the [court
order] was supported by probable cause.” Patterson,
401 Md. at 89,
930 A.2d at 356
(emphasis added) (citing Greenstreet v. State,
392 Md. 652,
898 A.2d 961 (2006)). This
Court uses a deferential standard of review when evaluating an issuing court’s
determination of probable cause. Stevenson v. State,
455 Md. 709, 723,
168 A.3d 967, 975
(2017); Malcolm v. State,
314 Md. 221, 229,
550 A.2d 670, 674 (1988) (“As the key
protection from unreasonable government searches, warrants continue to be favored [by]
law.”). “[S]o long as the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a
search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.”
Stevenson,
455 Md. at 723-24,
168 A.3d at 975-76 (citation omitted); see also Illinois v.
Gates,
462 U.S. 213, 236,
103 S. Ct. 2317, 2331 (1983) (“[W]e have repeatedly said that
after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form
of de novo review.”).
30
The substantial basis test does not require “direct evidence that the evidence sought
would be found in the place to be searched.” Stevenson, 455 Md. at 724,
168 A.3d at 976.
The substantial basis of an issuing court may be predicated on an affiant’s professional
experience and inferences drawn therefrom in deciding whether probable cause exists.
Moats v. State,
455 Md. 682, 700-01,
168 A.3d 952, 962 (2017) (quoting Ornelas v. United
States,
517 U.S. 690, 700,
116 S. Ct. 1657, 1663 (1996)). The substantial basis test also
recognizes the inherent flexibility of the probable cause standard. “[P]robable cause may
be inferred from the type of crime, the nature of the items sought, the opportunity for
concealment, and reasonable inferences about where the defendant may hide the
incriminating items.” Holmes v. State,
368 Md. 506, 522,
796 A.2d 90, 100 (2002).
This Court has explained that suspected possession or distribution of narcotics
frequently gives rise to a reasonable inference that evidence of such activity likely will be
found in the defendant’s home:
The reasoning, supported by both experience and logic, is that, if a person is
dealing drugs, he or she is likely to have a stash of the product, along with
records and other evidence incidental to the business, that those items have
to be kept somewhere, that if not found on the person of the defendant, they
are likely to be found in a place that is readily accessible to the defendant but
not accessible to others and that the defendant’s home is such a place.
Id. at 521-22,
796 A.2d at 100 (emphasis added). Such reasonable inferences may satisfy
the substantial basis test.
Id. at 522,
796 A.2d at 100 (quoting United States v. Thomas,
989 F.2d 1252, 1255 (1993)) (“[O]bservations of illegal activity occurring away from the
suspect’s residence, can support a finding of probable cause to issue a search warrant for
31
the residence, if there is a reasonable basis to infer from the nature of the illegal activity
observed, that relevant evidence will be found in the residence.”) (emphasis added).
Even with the latitude afforded by deductive reasoning and circumstantial evidence,
not all police inferences of narcotics activity within a home will overcome substantial basis
review. “[M]ere observation, documentation, or suspicion of a defendant’s participation
in criminal activity will not necessarily suffice, by itself, to establish probable cause that
inculpatory evidence will be found in the home.” Id. at 523, 796 A.2d at 100. The neutral
magistrate must be able to reasonably infer a logical connection, or “nexus” that ties police
observations, contained within the four corners of the court order application,25 to the
defendant’s home.
Id. at 521,
796 A.2d at 99.
This Court upheld such a logical connection in Holmes. The police observed
Holmes engage in a narcotics transaction less than a block from his home. Id. at 523,
796
A.2d at 96. The warrant application further documented Holmes’ history of CDS
violations, confederation with a “known drug violator,” and the fact that police stopped
Holmes at some distance away from his home and found “a large sum of money and a large
quantity of marijuana[]” on his person.
Id. at 518,
796 A.2d at 98. While there was no
direct evidence linking the defendant’s narcotics activity to his house, the circumstantial
evidence provided a sufficient logical connection tying observable conduct to the
defendant’s home.
25
We “ordinarily confine our consideration of probable cause solely to the
information provided in the warrant and its accompanying application documents. We do
not consider evidence that seeks to supplement or controvert the truth of the grounds
advanced in the affidavit.” Patterson, 401 Md. at 90,
930 A.2d at 357 (citation omitted).
32
Similarly, in Mills v. State, 278 Md. 262,
363 A.2d 491 (1976), the police arrested
the defendant on a public street the day after the commission of a kidnapping, rape, and
robbery.
Id. at 276,
363 A.2d at 498-99. The victims informed police that the defendant
had carried out these acts with a large hunting knife.
Id.,
363 A.2d at 499. The police did
not find a knife in the possession of the defendant but believed the knife would be in his
home.
Id. at 276,
363 A.2d at 499. The police obtained a warrant and found a large hunting
knife in his home.
Id. at 265,
363 A.2d at 493. On appeal, this Court concluded that there
was a substantial basis to the finding of probable cause because it was reasonable to infer
that the defendant would either leave or attempt to hide the large hunting knife within the
defendant’s house.
Id. at 280,
363 A.2d at 501. “Although in a particular case it may not
be easy to determine when an affidavit demonstrates . . . probable cause, the resolution of
doubtful or marginal cases in this area should be largely determined by the preference to
be accorded to warrants.”
Id.,
363 A.2d at 501 (emphasis added).
In the case at bar, the affidavit sworn by Detectives Underhill and Vivino provided
a substantial basis for a finding of probable cause based on reasonable inferences, similar
to those presented in Holmes and Mills, that logically connected observed activity to
Whittington’s residence. The detectives observed Whittington participate in suspected
CDS transactions on July 5, October 7, and October 17, 2016 throughout Baltimore and
Harford counties. While the detectives did not directly observe CDS activity at
Cloverwood Court, the detectives reasonably inferred, similar to Holmes and Mills, that
Whittington would store evidence related to the suspected criminal activity being
conducted throughout the region at his residence. The GPS tracking device strengthened
33
the detectives’ inference of CDS evidence being found in Whittington’s home because it
captured the movements of Whittington’s vehicle traveling from Cloverwood Court to
suspected narcotics transactions and back on October 12, 13, and 14.
Whittington’s close association with Hall, a known narcotics dealer, parallels the
defendant’s “confederation with . . . [a] known drug violator” in Holmes. 368 Md. at 523,
796 A.2d at 101. The detectives learned about Hall and his suspected CDS operations from
a confidential informant. The detectives then observed Hall engage in multiple suspected
drug transactions throughout Harford County and in a manner similar to Whittington. The
detectives also documented Hall’s criminal history of CDS related charges. The detectives,
through interception of cellular communications, also uncovered a close relationship
between Whittington and Hall and coded language that the detectives believed described
CDS activity.
The close relationship between Whittington and Hall extended beyond frequent
cellular contact. The detectives observed Whittington and Hall engage in suspected CDS
activity while operating in Whittington’s 2002 Dodge Stratus. Whittington took unusual
routes to and from Cloverwood Court and exhibited evasive driving patterns consistent
with individuals engaged in CDS activity. The detectives also documented Whittington’s
past criminal history in which he was found in possession of over three ounces of cocaine.
While there was no direct evidence of CDS activity at the house, the detectives could make
the reasonable inference that Cloverwood Court was a “stash house” or at least contained
some evidence of Whittington’s CDS activity.
34
The professional experience and specialized CDS training of the detectives are also
relevant to the substantial basis analysis. Detective Underhill has been a member of the
Harford County Sheriff’s Office since 2001 and assigned to the Task Force since 2007. He
received specialized training in identifying and investigating CDS violations. He has made
and assisted in numerous arrests relating to CDS activity. He has also authored or
participated in the execution of “hundreds of Search and Seizure warrants[.]” He has
witnessed over one thousand CDS transactions conducted by undercover officers and
confidential informants, and hundreds of other CDS transactions during the course of
criminal investigations. He has been accepted as an expert in the Circuit Court for Harford
County and the United States District Court for the District of Maryland with regards to
methods and practices of drug traffickers and drug conspiracies. Detective Vivino,
currently assigned to the Task Force, has been a member of the Bel Air Police Department
since 2012. He received specialized training in narcotics and narcotics investigation and
“has written and participated in several search and seizure warrants for suspected CDS
[activity.]”
The substantial basis becomes further evident when considering the entirety of the
observations recited in the affidavit. Greenstreet, 392 Md. at 669,
898 A.2d at 971 (“This
principle is known as the ‘four corners rule.’”). While the detectives dedicated the balance
of the sixteen-page affidavit to Whittington’s vehicle and home, their interrelated, and at
times overlapping, observations of Whittington’s associates strengthen the substantial basis
of the issuing court. For example, Hall also frequently drove to 2514 Hanson Road and
101 Orsburn Drive, in the same, brief manner as Whittington, which the detectives
35
suspected were operating as “stash houses” or sources of supply. Task Force detectives
physically surveilled the 2514 Hanson Road address and observed what appeared to be an
individual waiting to purchase cocaine from that location. Task Force detectives also
observed that Hall and Whittington both travel “frequently” to the 101 Orsburn Drive
address “in the midst of conducting other behavior that is consistent with CDS activity.”
Looking to the entirety of the affidavit strengthens the reasonable inferences of criminal
wrongdoing in Whittington’s vehicle and home.
Admittedly, the detectives did not observe direct evidence of CDS activity, but the
absence of direct evidence does not preclude a finding of probable cause by the issuing
court on a deferential, substantial basis review. Any lingering doubts about the
reasonableness of the inference of CDS activity believed to be found in Whittington’s home
are resolved in favor of “the preference to be accorded to warrants.” Mills, 278 Md. at 280,
363 A.2d at 501. We conclude that the combination of GPS tracking, personal observation
of Whittington and associates engaged in CDS activity, and experience of the detectives in
investigating CDS crimes provided a substantial basis for the issuing court to find that
evidence of CDS activity was likely to be found in Whittington’s home.
C. The good faith exception applies arguendo.
In light of our holding that the issuing judge had a substantial basis for concluding
there was probable cause, we do not need to resolve whether the good faith exception to
the exclusionary rule applies to this case. “We are nonetheless constrained to address it,
as an alternative holding, in an effort to stem the tide of what we perceive to be a recent
and promiscuous overuse of Leon’s rare exemptions from the good faith exception in a way
36
that Leon never intended.”26 State v. Jenkins, 178 Md. App. 156, 194,
941 A.2d 517, 539
(2008). Assuming arguendo that the warrant application contained an inadequate showing
of probable cause, the good faith exception to the exclusionary rule of the Fourth
Amendment still applied.
The good faith exception prevents the exclusion of evidence obtained pursuant to a
warrant later shown to lack probable cause when law enforcement, in objective exercise of
their professional judgment, reasonably relied on a warrant issued by a detached and
neutral magistrate. Leon, 468 U.S. at 920-21,
104 S. Ct. at 3419 (noting that the deterrent
effect of the exclusionary rule cannot be served when an officer in good faith relies on the
magistrate’s error). On this basis, “suppression of evidence obtained pursuant to a warrant
should be ordered on a case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.”
Id. at 918,
104 S. Ct. at 3418
(emphasis added) (footnote omitted).
The Leon Court articulated four scenarios where an officer’s reliance might be so
unreasonable as to warrant suppression of evidence.27 Whittington draws our attention to
scenario number three—that the warrant application was so lacking in probable cause that
26
The United States Supreme Court in Leon acknowledged “that in some
circumstances the officer will have no reasonable grounds for believing that the warrant
was properly issued” but in most cases “a warrant issued by a magistrate normally suffices
to establish that a law enforcement officer has acted in good faith in conducting the search.”
Leon, 468 U.S. at 922,
104 S. Ct. at 3420 (internal citations, quotations, and footnote
omitted).
27
See supra note 15.
37
the detectives could not have reasonably relied upon it. We have previously described an
affidavit so lacking in probable cause to be “bare bones” consisting of “wholly conclusory
statements, which lack the facts and circumstances from which a magistrate can
independently determine probable cause.” Patterson, 401 Md. at 107,
930 A.2d at 367.28
In Patterson, this Court held that “[a]lthough we have determined that there was no
substantial basis to support a probable cause finding, we cannot say that Officer Haak was
unreasonable in relying on the warrant.” Id. at 108,
930 A.2d at 367-68. Officer Haak
pursued Patterson after an attempt to flee a traffic stop.
Id. at 82,
930 A.2d at 352. After
Officer Haak subdued Patterson, the officer found an empty gun holster lying on the
ground.
Id. at 83,
930 A.2d at 352. Officers also found a nearby silver magazine containing
live rounds commensurate with the size of the empty holster.
Id.,
930 A.2d at 352-53. A
witness also noticed Patterson clutching his right hip “as if he was concealing something”
while initially fleeing the traffic stop.
Id. at 83,
930 A.2d at 352. Officer Haak applied for
and received a warrant to search a motel room, which Officer Haak believed Patterson was
using as a temporary residence and would contain an illegal firearm, among other
contraband.
Id. at 87,
930 A.2d at 355. The search team found drugs and drug
28
A review of case law that gave rise to Leon’s third exception to the good faith
exception demonstrates how “bare bones” a warrant deficient in probable cause can be. In
Aguilar v. Texas, 378 U.S. 108,
84 S. Ct. 1509 (1964), the warrant application merely
provided, “[a]ffiants have received reliable information from a credible person and do
believe that [narcotics] are being kept at the above described premises[.]”
Id. at 109,
84 S.
Ct. at 1512. Similarly in Nathanson v. United States,
290 U.S. 41,
54 S. Ct. 11 (1933) the
warrant application merely provided, “[affiant] has stated under his oath that he has cause
to suspect and does believe that certain [illegal] merchandise . . . is now deposited and
contained within the premises of J.J. Nathanson[.]”
Id. at 44,
54 S. Ct. at 12.
38
paraphernalia. Id.,
930 A.2d at 355. The circuit court denied Patterson’s motion to
suppress, and the Court of Special Appeals affirmed by concluding that there was a
substantial basis to support a finding of probable cause.
Id. at 89-90,
930 A.2d at 356.
This Court in Patterson disagreed with the finding of probable cause that a gun
would be found at Patterson’s residence. Id. at 104,
930 A.2d at 365. This Court noted
that while there was evidence of a gun at the time of the traffic stop, the affidavit did not
cite any particular facts that could infer possession of a gun in the motel room.
Id. at 103,
930 A.2d at 365. “[T]he mere observation, documentation, or suspicion of a defendant’s
participation in criminal activity will not necessarily suffice, by itself, to establish probable
cause that inculpatory evidence will be found in the home. . . . There must be something
more that, directly or by reasonable inference, will allow a neutral magistrate to determine
that the contraband may be found in the home.”
Id. at 103,
930 A.2d at 365 (quoting
Holmes,
368 Md. at 523,
796 A.2d at 100-01) (emphasis added).
While the Court held that the warrant in Patterson lacked a substantial basis, this
Court identified other indicia of Officer Haak’s reasonable reliance on the warrant. Id. at
107-08, 930 A.2d at 367. Officer Haak found a discarded holster and other officers found
a magazine containing bullets near Patterson’s attempted flight path.
Id. at 108,
930 A.2d
at 368. An eyewitness observed Patterson holding his hip while attempting to flee.
Id.,
930 A.2d at 368. The warrant listed Patterson’s prior criminal history.
Id.,
930 A.2d at
368. The warrant was supported “by an affidavit based in part on the first-hand knowledge
and the observations of police officers[.]”
Id. at 108-09,
930 A.2d at 368. These indicia
could have led a reasonable officer to conclude that there was probable cause to believe
39
Patterson may have an illegal weapon stored at his residence. Id. at 109,
930 A.2d at 368.
Finally, this Court noted that “the application for the search warrant provided sufficient
evidence to create disagreement among thoughtful and competent judges as to the existence
of probable cause.”
Id. at 109,
930 A.2d at 368 (footnote omitted).
Similar to Officer Haak’s reasonable reliance on the warrant in Patterson, the
detectives in this case reasonably relied on the search warrant issued by the District Court,
because it contained sufficient particularized facts for an officer to objectively and in good
faith rely on the finding of probable cause by a detached, neutral magistrate. Like in
Patterson, the detectives in this case provided a detailed affidavit based on first-hand
knowledge and observation of Whittington’s movements. The affidavit listed
Whittington’s past criminal history that included a drug possession charge. Finally, and
similar to Patterson, the search warrant generated disagreement among thoughtful and
competent judges as to the existence of probable cause. The District Court believed there
was adequate probable cause, the circuit court disagreed, and we disagreed with the circuit
court. “To that end, we cannot say as a matter of law that [the officer] should have second
guessed the issuing-judge’s determination that probable cause existed.” Id. at 109,
930
A.2d at 368 (footnote omitted).
Whittington cites Agurs to argue that there was such a lack of probable cause that
the detectives must have unreasonably relied on the warrant. Whittington’s reliance on
Agurs is unavailing. As a matter of law, Whittington conflates the two separate legal
standards for evaluating probable cause and the good faith exception. “The application of
the good faith exception does not hinge upon the affidavit providing a substantial basis for
40
determining the existence of probable cause.” Patterson, 401 Md. at 105,
930 A.2d at 365.
“[S]ubstantial basis” is already a deferential standard in reviewing probable cause—a fluid
and forgiving concept in its own right29—and the good faith exception “is a less demanding
showing than the ‘substantial basis’ threshold required to prove the existence of probable
cause in the first place.”
Id.,
930 A.2d at 366 (quoting United States v. Bynum,
293 F.3d
192, 195 (4th Cir. 2002)). A majority of judges in Agurs acknowledged this point of law:
“We do not suggest that the good faith exception can never apply when a reviewing court
determines that an affidavit failed to satisfy the nexus requirement. There will undoubtedly
be circumstances where ‘reasonable minds may differ’ as to whether the nexus requirement
was satisfied.” Agurs,
415 Md. at 87 n.12,
998 A.2d at 882 n.12.30
Contrary to Whittington’s assertion, the facts of Agurs support the detectives’
reasonable reliance on the warrant in this case. In Agurs, the police relied upon their
previous experience with drug investigations and a single instance of a suspected drug
transaction in and around a clothing store to establish probable cause of drug activity
29
The Court of Special Appeals recently observed in Freeman v. State, 249 Md.
App. 269,
245 A.3d 164 (2021), that “probable cause means something less than ‘more
likely than not.’”
Id. at 301,
245 A.3d at 182; see also State v. Johnson,
458 Md. 519, 535,
183 A.3d 119, 129 (2018) (noting “probable cause is not a high bar”).
30
Judge Clayton Greene, Jr., who wrote the majority opinion in Patterson, also
authored the plurality opinion in Agurs. Judges Joseph F. Murphy and Sally D. Adkins
concurred in Part A of the plurality opinion in Agurs, forming “[t]he authoritative majority
opinion of the Court” in which the above quoted footnote twelve is found. State v. Johnson,
208 Md. App, 573, 600, 56 A.3d 830, 846 (2012). Judge Mary Ellen Barbera (now Chief
Judge Barbera), joined by Judge Adkins, dissented and would have applied the good faith
exception to the exclusionary rule. Agurs,
415 Md. at 113,
998 A.2d at 898 (Barbera, J.,
dissenting). Therefore, both the plurality opinion and the dissent recognized the distinction
between substantial basis and the good faith exception.
41
occurring within Agurs’s home. Id. at 88-89,
998 A.2d at 883-84. Conversely, the
detectives in the instant case provided far more indicia of criminal activity to support a
reasonable inference that Cloverwood Court contained evidence of CDS activity. Unlike
Agurs, the police documented Whittington returning to Cloverwood Court at least four
times over the course of the investigation. The detectives, through the lens of GPS tracking,
personal observation, and twenty years of cumulative experience, perceived Whittington
to be engaging in CDS activity at various locations throughout Harford County and nearby
counties, only to return to Cloverwood Court each day. The affidavit provided specific
facts that supported the detectives’ reasonable, good faith reliance on the search warrant.
CONCLUSION
For the reasons previously explained, we affirm the judgment of the Court of Special
Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.
42
