Whittington v. State

230 A.3d 148, 246 Md. App. 451

• Court: Court of Special Appeals of Maryland
• Decided: July 1, 2020
• Docket: 2591/18
• Status: Published

Opinion

Kevin Whittington v. State, No. 2591, Sept. Term, 2018, Opinion by Leahy, J.

Fourth Amendment > Search > GPS Tracking

We hold that a court order issued under CP § 1.203.1, meets the requisites of a warrant under Fourth Amendment Law. The statute requires that an order be signed by a neutral and detached magistrate, based on probable cause, and supported by oath or affirmation. It must also identify, with reasonable particularity, the technology to be employed and the person about whom location information is being sought. Such order is limited, unless certain exceptions apply, to 30 days, after which notice of the order must be delivered to the subject of the order.

In this age of rapidly advancing surveillance technology, that CP § 1-203.1 incisively requires that an application for an order, such as the GPS Order in this case, be limited to 30 days and describe with reasonable particularity the type of electronic device to be employed by law enforcement.

Fourth Amendment > Orders

We reject any categorical proposition that an “order” issued by a neutral magistrate cannot serve as the functional equivalent of a “warrant” issued by a neutral magistrate. We recognize that formal labels are necessary to organize the ontology of the law, but, in this case, as in most, the label is not dispositive.

Fourth Amendment > Search > Warrants > GPS Tracking

In United States v. Jones, the Supreme Court held that a GPS device affixed by law enforcement on a suspect’s vehicle to monitor his movements constituted a search under the Fourth Amendment. 565 U.S. 400, 404 (2012). Although the Supreme Court in Jones did not specifically address whether police must obtain a warrant before installing a GPS tracking device on a suspect’s vehicle, we accept that the “Fourth Amendment’s prohibition against unreasonable searches is generally satisfied when law enforcement officers obtain a warrant authorizing the search in question.” State v. Copes, 454 Md. 581, 618 (2017) (citing Riley v. California 573 U.S. 373, 382 (2014)). Fourth Amendment > Searches > Warrants > Burden

In warrantless-search and-seizure cases, the State bears the burden of overcoming the presumption that a warrant was required. Eusebio v. State, 245 Md. App. 1, 22 (2020) (citation omitted). In the instant case, the State had the burden of establishing that the order issued pursuant to CP § 1-203.1 met the requirements of a warrant.

Fourth Amendment > Searches > Warrants > Particularity > Surveillance Technology

In our effort to stay apace with scientific advances, we have recognized that in order for a neutral magistrate to “particularly describe[e] the place to be searched, and the persons or things to be seized,” the application for a warrant or order must identify, among other things, what type of tracking device law enforcement intends to use. See State v. Andrews, 227 Md. App. 350, 376 (2016).

Statutes > Statutory Interpretation > Plain Language

To determine Legislative intent, we turn first to the plain meaning of the statute. Berry v. State, 244 Md. App. 234, 244 (2019). “Even if the plain meaning is clear and unambiguous, we often look to legislative intent and purpose to determine if they ratify our analysis and interpretation of a statute.” Hammonds v. State, 436 Md. 22, 44 (2013).

The plain language of CP § 1.203.1 shows that the statute embodies all of the warrant requirements inhering in the Fourth Amendment. Subsection b provides, in pertinent part, that a court may issue an order that allows law enforcement to obtain location information “after determining[,] from an application described in paragraph (2) of this subsection[,]” that “there is probable cause to believe that . . . a misdemeanor or felony has been, is being, or will be committed . . . by the individual about whom location information is being sought[.]” CP § 1-203.1(b)(1)-(1)(i). Paragraph (2) requires a written application that is “signed and sworn to by the applicant” and is “accompanied by an affidavit that[] . . . sets forth the basis for probable cause . . . and [] contains facts within the personal knowledge of the affiant.” CP § 1-203.1(b)(2).

In light of the particularity requirement, the statute requires that any order issued pursuant to it must “describe with reasonable particularity[] . . . the type of electronic device associated with the location information being sought”; “the user of the electronic device, if known, or the identifying number of the electronic device about which location information is sought”; and “the grounds for obtaining the location information[.]” CP § 1-203.1(b)(3).

Statutes > Constitutionality

We observe that CP § 1-203.1, tailored to address modern tracking technology, imposes time limitations and requires concise identification of the technology that law enforcement plans to employ in collecting location data—requisites that further aid in protecting citizens from indiscriminate government surveillance.

Fourth Amendment > Searches > Warrants > Sufficiency of the Warrant

CP § 1-203.1 imposes conditions and requisites on officers who seek to employ GPS tracking devices that meet the warrant requirements of the Fourth Amendment. The application in this case demonstrated that the order issued established a substantial basis upon which the issuing judge could find probable cause that a “misdemeanor or felony . . . [wa]s being . . . committed” and “the location information being sought . . . [wa]s evidence of, or w[ould] lead to evidence of, the misdemeanor or felony being investigated[.]” CP § 1-203.1(b).

Fourth Amendment > Exclusionary Rule > Good Faith Exception

We agree with the court’s determination that the detectives in this case relied on the search warrant in good faith. We assume, without deciding, that the suppression court correctly determined that the district court judge did not have a substantial basis to find probable cause to issue the warrant. See Marshall v. State, 415 Md. 399, 402 (2010) (assuming that the search warrant was issued improperly and analyzing only the application of the good faith exception). Fourth Amendment > Exclusionary Rule > Good Faith Exception

The United States Supreme Court and the Maryland Court of Appeals “have adopted a good faith exception to the warrant requirement, under which ‘evidence seized under a warrant subsequently determined to be invalid may be admissible if the executing officers acted in objective good faith with reasonable reliance on the warrant.’” Carroll v. State, 240 Md. App. 629, 654 (2019) (citation omitted). Fourth Amendment > Exclusionary Rule > Good Faith Exception

The exclusionary rule it is “not applied when law enforcement officials engage in ‘objectively reasonable law enforcement activity,’ even if that activity is later found to be a violation of the Fourth Amendment.” State v. Copes, 454 Md. 581, 606 (2017) (quoting Leon, 468 U.S. at 919). Fourth Amendment > Exclusionary Rule > Good Faith Exception

The detectives here could have reasonably believed that Appellant’s criminal history, consistent association with a person of interest in a large-scale drug investigation, and suspicious driving behavior “related to a present and continuing violation of the law[.]” Patterson v. State, 401 Md. 76, 107 (2007). Circuit Court for Baltimore County Case No. 03-K-17-000239

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2591

September Term, 2018 ______________________________________

KEVIN WHITTINGTON

v.

STATE OF MARYLAND ______________________________________

Leahy, Shaw Geter, Vitale, Cathleen M. (Specially Assigned),

JJ. ______________________________________

Opinion by Leahy, J. ______________________________________

Filed: July 1, 2020

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2020-07-02 09:30-04:00

Suzanne C. Johnson, Clerk “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring)

Law enforcement’s use of a Global Positioning System (“GPS”) tracking device led

to the arrest and conviction of Kevin Whittington, and ultimately, to the Fourth

Amendment issues before us now. As a matter of first impression, we examine whether

the court order that authorized police to install the GPS tracking device on Mr.

Whittington’s car, issued pursuant to a state criminal statute, satisfied the Fourth

Amendment requirements of a warrant based on probable cause.

Mr. Whittington unwittingly garnered the attention of detectives in the Harford

County Sheriff’s Office in 2016 by associating with a suspected narcotics distributor

named David Hall. The detectives wiretapped Mr. Hall’s phone and discovered that Mr.

Whittington was the most frequent caller. Then they observed the two men engaged in

activity that was consistent with the distribution of controlled dangerous substances (CDS).

The detectives applied for and obtained an “Electronic Device Location Information

Order” (hereinafter “GPS Order”) under Maryland Code (2018 Repl. Vol., 2019 Supp.),

Criminal Procedure Article (“CP”), § 1-203.1.1 The GPS Order authorized the detectives

to install a GPS mobile tracking device on Mr. Whittington’s car for a 30-day period.

1 The Maryland General Assembly first enacted the law, now codified as Section 1- 203.1 of the Criminal Procedure Article, in 2014. 2014 Md. Laws Ch. 191 (S.B. 698). The statute was amended without substantive change in 2018 and 2019; however, during the 2020 legislative session, the General Assembly amended the statute to specify that it applies to law enforcement’s use of cell site simulator technology. 2020 Md. Laws Ch. 222 (H.B. 499). The detectives observed Mr. Whittington over a period of weeks with the help of

the GPS tracking device. His pattern of movements further bolstered their assessment that

he was engaged in CDS activity in and around Harford County, and that he maintained a

residence at 4 Cloverwood Ct., Apt. 202, in Essex, Baltimore County. They then applied

for and received a warrant to search Mr. Whittington’s person, car, and apartment. The

police found four baggies of cocaine totaling about eight grams in Mr. Whittington’s car;

and they found two bags of cocaine weighing approximately 145.9 grams, ten Alprazolam

pills, and $1,222 in the apartment at 4 Cloverwood Ct. Officers apprehended Mr.

Whittington at another location and found $1,406 and two cellular telephones on his

person. Mr. Whittington was arrested and later indicted on January 18, 2017, in the Circuit

Court for Baltimore County, on two counts of Possession of CDS with the Intent to

Distribute and two counts of Possession of CDS.

Mr. Whittington filed a motion to suppress all the evidence derived from the

searches conducted pursuant to the search warrant, which, he claimed, was issued upon

evidence obtained from an “unconstitutional” order authorizing the detectives’ use of the

GPS tracking device. The GPS Order, he argued, lacked probable cause and was

unconstitutional under the holding in United States v. Jones, 565 U.S. 400 (2012), which,

he claimed, requires law enforcement to obtain a valid warrant in order to attach a GPS

tracking device to a suspect’s vehicle. He further argued that the evidence presented to the

warrant court failed to establish a nexus between his alleged drug dealings and 4

Cloverwood Ct., Apt. 202, as required under Agurs v. State, 415 Md. 62 (2010). The circuit

2 court denied the motion.2 Mr. Whittington timely appealed and presents two questions for

our review, which we have reordered:

I. “Did the circuit court err in denying Mr. Whittington’s motion to suppress all evidence obtained from the warrantless use of a GPS device on his vehicle?”

II. “Did the circuit court err in denying Mr. Whittington’s motion to suppress all evidence seized from 4 Cloverwood Ct., Apt. 202 and Mr. Whittington’s Dodge Stratus by finding that the good faith exception to the 4th Amendment exclusionary rule applied?”

First, we hold that the GPS Order issued under CP § 1-203.1 met the requisites of a

warrant under Fourth Amendment law. The GPS Order was signed by a neutral and

detached magistrate; upon an application signed under oath by someone with personal

knowledge of the facts; which set forth the basis for probable cause to believe that a crime

had been, or was going to be committed; and identified with particularity the person about

whom location information was being sought and the vehicle on which the GPS device

would be installed. We also conclude, in this age of rapidly advancing surveillance

technology, that CP § 1-203.1 incisively adds the requirements that an application for an

order, such as the GPS Order in this case, be limited to 30 days and describe with

reasonable particularity the type of electronic device to be employed by law enforcement.

Second, we affirm the circuit court’s ruling that the detectives relied in good faith

on the search warrant and, therefore, we do not need to reach the question of whether the

2 Mr. Whittington entered a conditional guilty plea pursuant to Maryland Rule 2- 242(d) to Count 1 of the Criminal Indictment charging Possession of CDS with the Intent to Distribute and retained his ability to appeal the denial of the motion to suppress. The State entered nolle prosequi on the remaining counts. 3 warrant application failed to establish a nexus between Mr. Whittington’s alleged drug

dealings and 4 Cloverwood Ct., Apt. 202. Discerning no error in the court’s determination

that suppression was not an appropriate remedy in this case, we affirm the circuit court’s

denial of Mr. Whittington’s motion to suppress.

BACKGROUND

The following factual account is drawn from the evidence that was before the

suppression court on September 18, 2018. Section A, recounting the initial investigation,

draws upon facts presented in the application for the GPS Order that was issued by the

District Court sitting in Harford County on October 8, 2016. Section B summarizes the

averments set forth in the warrant affidavit in support of the warrant issued by the District

Court sitting in Harford County on October 24, 2016.

A. Initial Investigation and Court Order

Harford County Police Department detectives Brandon Underhill and Sam Vivino

were assigned to the Harford County Narcotics Task Force in 2007 and 2012 respectively.

In 2016, as part of a large-scale drug investigation, they began investigating a cocaine

supplier in the region by the name of David Hall. Mr. Whittington was identified because

of his association with Mr. Hall, although Det. Underhill was already familiar with Mr.

Whittington because the Harford County Sheriff’s Office had arrested him in 2015 for

possession of over three ounces of cocaine.

On October 8, 2016, Det. Underhill submitted an application in the District Court,

signed under oath, for an order to attach an electronic monitoring device—in this case, a

GPS tracking device—onto Mr. Whittington’s vehicle for 30 days. In support of the

4 application, Det. Underhill described the probable drug-related activities and interactions

that the police had recently observed involving Mr. Whittington and Mr. Hall.

Beginning on July 5, 2016, Detectives Underhill and Vivino surveilled Mr.

Whittington and Mr. Hall as they departed the Rossville Shopping Center in Baltimore

County in Mr. Whittington’s Dodge Stratus. Det. Underhill averred that “based [on the]

detectives’ familiarization with the area[,] Hall and Whittington often took very unusual

courses of travel to reach destinations. It appeared that they were attempting to see if they

were being followed by making loops and u-turns, which is a technique often employed by

drug dealers.” “Because of these evasive driving maneuvers, surveillance was terminated.”

On October 4, 2016, the detectives began a wiretap on Mr. Hall’s cell phone. The

wiretap revealed that Mr. Whittington’s phone number was the “highest volume

communicator” with Mr. Hall. In the application for the GPS Order, Det. Underhill stated

he believed Mr. Whittington and Mr. Hall were using coded language consistent with CDS

activity and discussing locations that the detectives believed were being used to process

powdered cocaine into crack cocaine. For example, on October 4, Mr. Hall called Mr.

Whittington’s cell phone as they both were leaving a house located at 101 Orsburn Drive.

Both men expressed concern about a marked patrol car that was in the area. Det. Underhill

noted that “[s]urveillance throughout this investigation has confirmed that Hall regularly

travels to [101 Orsburn Drive] for short durations of time, consistent with CDS activity.”

A few days later, the detectives observed Mr. Hall and Mr. Whittington together

again in Mr. Whittington’s Stratus after they overheard Mr. Hall making arrangements to

sell CDS at the Wendy’s in Joppatowne. Detectives conducted surveillance of the parking

5 lot and observed a Hyundai that was registered to the suspected purchaser’s daughter.

Shortly after detectives identified the Hyundai, Mr. Hall and Mr. Whittington arrived in

the Stratus. The Hyundai followed the Stratus from the Wendy’s to the area of 952 Rumsey

Place, even though “[n]o communication took place between them, which indicates that

[the driver of the Hyundai] already recognized that vehicle as being associated to Hall and

drug deals.” Mr. Hall and Mr. Whittington went inside 952 Rumsey Place, and the Hyundai

waited out front. Ten minutes later, the Hyundai drove away, and the prospective purchaser

telephoned Mr. Hall to tell him that he could not wait any longer.

In view of the foregoing activity, the detectives believed that GPS monitoring of

Mr. Whittington’s car would further their investigation. Det. Underhill averred that

considering the circumspect behavior he observed, including Mr. Whittington’s evasive

driving maneuvers, “[y]our affiant has cause for concern if required to announce or give

warning in any fashion. The purpose of utilizing an electronic tracking device is to covertly

conduct surveillance so as not to jeopardize the integrity of the investigation.”

B. Application for Search and Seizure Warrant

In the warrant affidavit,3 the detectives averred that they began to focus their

investigation on Mr. Hall and Mr. Whittington after a confidential source (“CS 1”)

3 The application for the Search and Seizure Warrant included a probable cause statement involving travel and interactions by and between Mr. Hall and Mr. Whittington. The application requested authority to search not only Mr. Whittington’s apartment, car, and person, but also: 1) Mr. Hall’s Dodge Durango; 2) Mr. Hall’s apartment located at 6032 Amberwood Road in Baltimore; 3) 2514 Hanson Road in Edgewood, a residence where Mr. Hall “ma[de] frequent short trips”; and 4) 101 Orsburn Drive in Joppa—a location police “believ[ed] . . . [wa]s being used . . . to further the drug organization of Hall and Whittington.” 6 identified a potential drug dealer as a man with the street name “Heavy.” CS 1 provided

information about what vehicles “Heavy” used and the locations where he often sold and

stored drugs. Data obtained from the wiretap and “other investigative techniques” helped

police positively identify “Heavy” as David Hall. A criminal history check revealed that

Mr. Hall had 37 charges on his record (20 of which involved CDS) spanning the years 1988

to 2006.

Throughout summer and fall of 2016, the Narcotics Task Force Members continued

to surveil Mr. Hall and witnessed activity that was, in their view, consistent with ongoing

drug transactions. On July 5, 2016, law enforcement observed Mr. Hall leaving his

residence at 6032 Amberwood Road. He drove to a Marshalls store and went inside where

he remained for approximately 20 minutes; then he came out and got into a gray Dodge

Stratus. Police checked MVA records and found the car listed to Kevin Whittington. A

criminal history check then revealed that Mr. Whittington was charged and convicted of

“CDS: Possession with Intent to Distribute- Narcotic” in 2005. Mr. Whittington was also

arrested and charged in 2015 with possession of over 3 ounces of cocaine and $1,214 in

currency.

As mentioned in the application for the GPS Order, detectives continued to surveil

Mr. Hall and Mr. Whittington throughout the afternoon of July 5 and observed them taking

unusual routes to reach destinations and making lots of loops and u-turns so that they could

not be followed. The two men drove to a neighborhood in Middle River and remained

there for 15 minutes. Then they drove to the White Marsh area off I-695, but the detectives

had to terminate surveillance “due to Whittington’s driving habits.” The detectives swore

7 in their warrant affidavit that they believed that the totality of these circumstances indicated

that Mr. Hall and Mr. Whittington were engaged in CDS activity.

GPS surveillance disclosed Mr. Whittington’s Stratus arriving at 101 Orsburn Dr.

in Joppa around 3:45 p.m. on October 11. It remained stationary at this address for nine

minutes, then left. Police had received information previously from a confidential

informant that Mr. Hall maintained a stash-house in that general area. Police were able to

corroborate Mr. Hall’s association with this address through visual surveillance. At 4:01

p.m., the Stratus parked at a small shopping center located at 11450 Pulaski Highway,

where it remained stationary for 15 minutes, then departed. At 4:25 p.m., the vehicle

returned to the Orsburn Dr. address. The vehicle remained there until 6:12 p.m. and then

returned to 4 Cloverwood Ct. where it remained for the rest of the night.

On October 12, at 4:45 p.m., the Stratus traveled from 4 Cloverwood Ct. back to the

Orsburn Dr. address and remained there until 6:39 p.m. The next day, Mr. Whittington’s

vehicle left the Cloverwood Ct. address and traveled to various locations throughout

Harford County, staying at each location for only several minutes before departing. The

vehicle returned to Orsburn Dr., remained there for about 20 minutes, and then returned to

4 Cloverwood Ct. for the rest of the day.

The pattern repeated on October 14. At 5:58 p.m., the Stratus traveled to 101

Orsburn Dr. and remained there for two hours. Then, throughout the rest of the evening,

the vehicle traveled to various locations and parking lots in the region. One location was

in the 5300 block of King Arthur Circle, where the vehicle remained for 14 minutes, before

returning to 4 Cloverwood Ct at the end of the day.

8 On October 17, Task Force units conducted visual surveillance on Mr. Whittington

while he drove the Dodge Stratus. He was first observed at a Wendy’s on Route 924 near

Singer Road in Abingdon. From there, officers followed him directly to another Wendy’s

in the Joppatowne Shopping Center. He remained inside for less than three minutes, then

exited with an unidentified male. Neither man carried any items from the restaurant. At

4:05 p.m., Mr. Whittington drove to the Orsburn Dr. address, where police confirmed Mr.

Hall was as well. Mr. Whittington remained there for about an hour and twenty minutes.

Police also observed that Mr. Whittington took unusual routes of travel on his way home

to 4 Cloverwood Ct. for the evening.

The investigation revealed that Apartment 202 located at 4 Cloverwood Ct. was

leased by Bernard and Denotta Teagle, who lived at 3106 Laurel View Dr., Abingdon,

Maryland. Mr. Whittington’s car was also registered to the Laurel View Dr. address.

Police pieced this information together with their observations recited above and deduced

that Mr. Whittington’s actual place of residence was 4 Cloverwood Ct., Apt. 202.

Hot on the trail, on October 24, Detectives Underhill and Vivino presented a 16-

page “Application and Affidavit for Search and Seizure Warrant” in the District Court

sitting in Harford County. They averred that they had “probable cause to believe that laws

relating to the illegal Manufacturing, Distribution, Possession and Possession with Intent

to Distribute Controlled Dangerous Substances” were being violated “in and upon certain

vehicles and premises[.]” The application covered several addresses, including 4

Cloverwood Ct. and 101 Orsburn Drive. Regarding 4 Cloverwood Ct. and the Stratus, the

detectives avowed:

9 For the reasons explained . . . your affiants believe that based on Whittington’s behavior, travel patterns and habits, he is using 4 Cloverwood Court Apt 202, as a location to store cocaine. He is also using his 2002 Dodge Stratus . . . to facilitate his own drug distribution operations.

The warrant was issued by a judge on the same day. The search of the Stratus revealed

four baggies of cocaine totaling about eight grams. The search of 4 Cloverwood Ct., Apt.

202, revealed paperwork addressed to “The Whittington Family”; two bags of cocaine

weighing approximately 145.9 grams, one of which had many smaller baggies within it;

$1,222; and ten Alprazolam pills. The police stopped Mr. Whittington at 7755 Bradshaw

Road in Baltimore County, and found $1,406 and two cellular telephones on his person.

He was arrested and taken into custody.

C. Motion to Suppress

At the hearing on Mr. Whittington’s motion to suppress in the Circuit Court for

Baltimore County on September 18, 2018, Mr. Whittington’s counsel asked the court to

suppress all evidence against Mr. Whittington obtained under the search warrant. He

presented three arguments in support of the motion.

First, counsel argued that “there was no substantial basis” for finding probable cause

to search 4 Cloverwood Ct., Apt. 202, because the apartment was located miles away from

Mr. Whittington’s alleged drug activities and the police failed to establish a nexus between

his alleged drug dealings and 4 Cloverwood Ct. He asserted that under Agurs v. State, 415

Md. 62 (2010), and Holmes v. State, 368 Md. 506 (2002), in the absence of direct evidence,

Maryland requires that some nexus be established between the nature of the items sought

and the place where they are to be seized. Comparing the facts in his case to Agurs, Mr.

10 Whittington’s counsel contended that police observed Agurs engaging in a drug transaction

and that there was a greater nexus showing because the police had conclusive evidence that

Agurs owned and lived in the home that was searched. By contrast, counsel argued, the

police had no conclusive evidence that Mr. Whittington engaged in a drug transaction or

that he owned the 4 Cloverwood Ct. apartment or that he even lived there.

The second argument advanced by Mr. Whittington’s counsel concerned the GPS

monitor. He argued that a warrant was required to place the device on his client’s car and

that a court order would not suffice under the Supreme Court’s holding in United States v.

Jones, 565 U.S. 400 (2012). He further asserted that Maryland’s statute permitting law

enforcement’s use of such a device pursuant to a court order is unconstitutional. Counsel

urged that even if a warrant was not required, the application for the GPS Order did not

establish probable cause that Mr. Whittington was using the Dodge Stratus to commit drug

crimes.

Third, counsel argued that police cannot act in good faith reliance on a court order—

only on a warrant—so the good faith exception should not apply to the evidence obtained

by the police from the GPS tracking device permitted under the order. In regard to the

warrant that was issued, counsel asserted that Mr. Whittington’s case was analogous to

Agurs, and that the holding—that the police could not have relied in good faith on the

warrant because it lacked any indicia of probable cause—applied with equal force to the

detectives who obtained the warrant to search Mr. Whittington’s apartment, car and person.

See 415 Md. at 83.

11 Mr. Whittington’s counsel noted that “all of the observations [in the warrant

application] that allege to establish any kind of nexus is just GPS monitoring of the vehicle

going from place to place.” He concluded by asserting that, “if the GPS was illegally

placed, not only does the search of the vehicle fall, it also taints the search of the home,

before you even get to the nexus issue[.]”

The State maintained that the GPS device was lawfully placed on the car and that

the subsequent warrant was reviewed by a detached and neutral judge and lawfully issued.

Quoting extensively from CP § 1-203.1, the State pointed out that the statute requires,

among other things, “an affidavit that sets forth the basis for probable cause and contains

facts within the personal knowledge of the affiant” and provides that the “order issued

under this section must name or describe with reasonable particularity the type of electronic

device associated with the location information sought.” The statute also requires, the State

advised, that the court believe “[t]hat a misdemeanor or felony has been committed or is

about to be committed by the owner [] or user of the electronic device, or about whom the

information—location information being sought.”

Responding to Mr. Whittington’s reliance on Agurs, the State highlighted that a

majority of the Court of Appeals did not join in part B of the Court’s decision (holding that

the good faith exception to the exclusionary rule did not apply). Consequently, the State

urged that that holding is not binding on any court. The State argued that the detectives

could have relied on the warrant in good faith, especially when viewed in light of the

totality of the entire investigation described in the affidavit—not just the parts dealing with

Mr. Whittington. The State also noted that it was reasonable for the detectives to believe

12 that Mr. Whittington lived at the 4 Cloverwood Ct. address because they determined

through surveillance that the Dodge Stratus registered to Mr. Whittington returned to that

address at the end of every night.

During the State’s argument, the circuit court judge interjected several questions

and observations, beginning with the statement, “[t]here’s no description of any drug

activity, other than suspicions, but there’s no sells.” The judge did not find the facts

relating to 4 Cloverwood Ct. “terribly relevant, other than that [Mr. Whittington] -- he goes

to the house and he sleeps there.”

The judge delivered an oral ruling, announcing first that the warrant-issuing judge

did not have a substantial basis to find probable cause to issue the search warrant. The

judge explained that the warrant affidavit stated that short stays in many places were

consistent with CDS activity, but the affidavit also described extended stays at the Orsburn

Dr. address that were inconsistent with this theory. The judge also referred to his own

comments during the State’s argument, including that there were no drug sells documented

and no allegations regarding the house except that Mr. Whittington went there to sleep.

Turning, however, to the good faith exception to the exclusionary rule, the judge

found that the detectives relied on the warrant in good faith. The judge expounded, “there’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 District Court judge.”

The judge also ruled that the court order issued pursuant to CP § 1-203.1 was proper

because it was expressly authorized by the statute and “does set forth the probable cause

and gives sufficient basis for the issuance of that order.” Leaving the question of the impact

13 of the Supreme Court’s decision in Jones for appellate courts to review, the court reiterated

that “the officers had authority to request it and the judge had authority to issue it. And I

do find that there was probable cause for the judge to have issued [the order].”

Accordingly, the judge denied the motion to suppress evidence obtained under the warrant.

DISCUSSION

I.

Standard of Review

Matters of statutory interpretation are questions of law that this Court reviews de

novo. Johnson v. State, 467 Md. 362, 371 (2020). Our only deference is to the policy

decisions of the General Assembly. Phillips v. State, 451 Md. 180, 196 (2017). “We

assume that the legislature’s intent is expressed in the statutory language and thus our

statutory interpretation focuses primarily on the language of the statute to determine the

purpose and intent of the General Assembly.” Id. As we examine the plain language, we

also view it “within the context of the statutory scheme to which it belongs, considering

the purpose, aim or policy of the Legislature in enacting the statute.” Johnson, 467 Md. at

372 (citation and internal quotations omitted).

When called upon to review the denial of a motion to suppress, we base our decision

solely on the record of the suppression hearing. Kelly v. State, 436 Md. 406, 420 (2013).

“In reviewing a trial court’s decision to grant or deny a motion to suppress evidence based

on a constitutional violation, we generally accept any fact findings made by the trial court

unless they are clearly erroneous. The ultimate question as to whether there was a

constitutional violation is a legal question on which we accord no special deference to the

14 trial court.” State v. Copes, 454 Md. 581, 603 (2017). Similarly, whether the exclusionary

rule, or one of its exceptions, should apply in a given case is also a question of law that we

consider without deference to the suppression court. Id.

II.

“Warrantless” Surveillance by Law Enforcement?

A. Contentions on Appeal

Mr. Whittington argues that it was error to deny his motion to suppress all evidence

obtained from the “warrantless” use by police of a GPS device to track his movements

during the fall of 2016. He contends that CP § 1-203.1 is unconstitutional on its face

because it allows law enforcement to conduct searches pursuant to a court order rather than

a warrant as required by the Fourth Amendment. The Supreme Court in United States v.

Jones, 565 U.S. 400 (2012) addressed this precise issue and, he maintains, clarified that a

warrant is required to place a GPS tracking device on a suspect’s vehicle.

The State asserts that the suppression court properly determined that the court order

for the GPS tracking device was lawfully issued and the evidence therefrom lawfully

obtained. The State’s principal contention is that the court order authorized by CP § 1-

203.1 is the functional equivalent of a warrant. Besides, the State contends, Mr.

Whittington does not identify any meaningful differences between an “order” and a

“warrant” other than the names assigned to them. Quoting from State v. Copes, the State

urges that the “constitutional requirements are addressed to substance, not form.” See 454

Md. at 625. Mr. Whittington replies that the Copes case is distinguishable because it

15 concerned the suppression of evidence obtained by police from the use of a cell site

simulator, rather than a GPS tracking device.

B. Analogue or Archetype?

Maryland appellate courts have not opined on the constitutionality of CP § 1-203.1.

See Copes, 454 Md. at 592. The statute was mentioned in Copes, but only to mark its

passage in 2014, just after the police in that case obtained a court order under the Maryland

Pen Register Statute, codified at Courts & Judicial Proceedings Article (“CJP”), § 10–4B–

01 et seq.4 Id. In State v. Andrews, we similarly declined to decide the question as it was

not squarely presented for our review. 227 Md. App. 350, 407-08 (2016). We did,

however, note that the statute contains safeguards and limitations that were absent from

Maryland’s pen register statute. Id. Now the question—whether an order issued under the

requisites of CP § 1-203.1 satisfies the requirements of the Fourth Amendment and the

Supreme Court’s holding in Jones—is before us.

At the threshold, we narrow the scope of our analysis; first, by discarding Mr.

Whittington’s contention that CP § 1-203.1 is unconstitutional on its face. “A facial

challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since

the challenger must establish that no set of circumstances exists under which the Act would

be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Mr. Whittington failed to

4 The Court observed in Copes that “[u]nlike an application for a search warrant, the application to use a pen register or trap and trace device need not demonstrate probable cause that a crime has been committed or that the evidence relating to that crime will be acquired through use of the device.” Copes, 454 Md. at 591-92.

16 mount a facial challenge to CP § 1-203.1 because he did not demonstrate that there is “no

set of circumstances” under which the statute would be valid.5 Moreover, under the “canon

of constitutional avoidance,” our review is guided by the “principle that statutes carry a

strong presumption of constitutionality” and that “‘one attacking [the] validity [of a law

passed in the exercise of police power] has the burden of affirmatively and clearly

establishing its invalidity[.]’’’ Koshko v. Haining, 398 Md. 404, 426 (2007) (citations

omitted).

Next, we reject any categorical proposition that an “order” issued by a neutral

magistrate cannot serve as the functional equivalent of a “warrant” issued by a neutral

magistrate.6 We recognize that formal labels are necessary to organize the ontology of the

law, but, in this case, as in most, the label is not dispositive. Judge McDonald writing for

the majority in Copes noted that, when an application for a pen register order meets certain

criteria, namely, that “in addition to being sworn, the application for the order demonstrates

5 Mr. Whittington posits only that law enforcement’s use of GPS tracking, under the statute, is unconstitutional and does not address, for example, the other types of location tracking that are covered by the statute. Without mounting a challenge to law enforcement’s use of all technology authorized under the requirements of the statute and all of the circumstances in which such tracking technology may be employed, Mr. Whittington cannot attack CP § 1-203.1 on its face. See Pizza di Joey, LLC v. Mayor & City Council of Balt., 241 Md. App. 139, 198 (2019), cert. granted, 466 Md. 192 (2019).

6 Mr. Whittington presumes that there are the substantive differences between a warrant and the order that was obtained in this case but has not specified any such distinctions before the suppression court or this Court on appeal. Mr. Whittington also presents no argument on appeal in support of his bald allegation before the suppression court that the order was not issued upon probable cause.

17 probable cause, and the order satisfies the particularity requirement of the Fourth

Amendment[,]” then “it does not matter whether the order is labeled a ‘warrant.’ The

constitutional requirements are addressed to substance, not form.” Copes, 454 Md. at 625.

Supreme Court precedent also suggests that a court order that meets all of the Fourth

Amendment requirements can function as a valid search warrant. See Dalia v. U.S., 441

U.S. 238, 256 (1979) (“[T]he April 5 court order authorizing the interception of electronic

communications occurring within petitioner’s office was a warrant issued in full

compliance with these traditional Fourth Amendment requirements.”).

Also, we can dispense with a lengthy exposition on the Fourth Amendment

implications of law enforcement installing GPS tracking technology on a suspect’s vehicle.

Jones, 565 U.S. at 404; Kelly v. State, 436 Md. 406, 411 (2013). In United States v. Jones,

the Supreme Court held that a GPS device affixed by law enforcement on a suspect’s

vehicle to monitor his movements constituted a search under the Fourth Amendment,7 and

7 Justice Scalia’s majority opinion employed the traditional, pre-Katz (Katz v. United States, 389 U.S. 347 (1967)) “trespass” rationale, although the majority noted that cases not involving physical trespass, such as the transmission of electronic signals, would remain subject to the Katz reasonable-expectation-of-privacy test. Jones 565 U.S. at 411. Justices Sotomayor and Alito, in their concurring opinions, expressed overarching concerns about the impact of contemporary surveillance technologies on Fourth Amendment jurisprudence. See id. at 413 (Sotomayor, J., concurring); 418 (Alito, J., concurring in the judgment). Justice Sotomayor urged the Court to update its understanding of peoples’ expectations of privacy in the information age:

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person 18 affirmed the D.C. Circuit Court’s decision that the warrantless use of the GPS device was

unconstitutional. 565 U.S. at 404. Indeed, the State concedes that the placement of the

GPS device on Mr. Whittington’s car by police triggered Fourth Amendment protections.

Although the Supreme Court in Jones did not specifically address whether police must

obtain a warrant before installing a GPS tracking device on a suspect’s vehicle,8 we accept

whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas–Perez, 640 F.3d 272, 285 (C.A.7 2011) (Flaum, J., concurring).

Jones, 565 U.S. at 415-16 (Sotomayor, J., concurring) (footnote omitted). Numerous articles examining the limitations of both the property-based trespass rationale as well as the Katz reasonable-expectation-of-privacy test offer recommendations for warrant requirements in this modern age of surveillance. See, e.g., Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. 527 (2017); David Gray & Danielle Citron, The Right to Quantitative Privacy, 98 Minn. L. Rev. 62, 111 (2013). In his book, THE FOURTH AMENDMENT in an AGE OF SURVEILLANCE, Cambridge University Press (2017), 104-129, Professor David Gray discusses various “post-Jones proposals for rethinking the Fourth Amendment.” Professor Gray forewarns that:

Today, law enforcement officers and other government agents have access to a wide variety of new and emerging technologies that allow them to conduct searches and seizures without physically intruding upon our persons, houses, papers, or effects. These technologies mark the advent of our age of surveillance.

Id. at 23.

8 See Carpenter v. United States, ___ U.S. ____, 138 S. Ct. 2206, 2215 n.2 (2018) (“[N]either Jones nor Knotts purported to resolve the question of what authorization may be required to conduct such electronic surveillance techniques.”); United States v. Sparks, 711 F.3d 58, 62 (1st Cir. 2013) (noting that one question that remained open after Jones was whether placement of a GPS device “requires a warrant (instead of mere probable cause or reasonable suspicion)”); Pennsylvania v. Burgos, 64 A.3d 641, 650 (Pa. Super. 19 that the “Fourth Amendment’s prohibition against unreasonable searches is generally

satisfied when law enforcement officers obtain a warrant authorizing the search in

question.” Copes, 454 Md. at 618 (citing Riley v. California 573 U.S. 373, 382 (2014)).

We proceed, therefore, to determine whether an order issued to law enforcement

under CP § 1-203.1 for the purpose of installing GPS tracking technology on a suspect’s

vehicle meets the warrant requirements of the Fourth Amendment. The State contends that

it does, and we agree.

At the finish, we resolve that the statute, among other things, demands that an

application for an order be made under oath by an affiant who, based on personal

knowledge of the facts, sets forth the probable cause for believing that a crime is being

committed or is about to be committed, and then identifies “the individual about whom

location information is being sought.” CP § 1-203.1 (b). We also observe that the statute,

Ct. 2013) (“[T]he Jones Court did not address whether the government must obtain a warrant to install and use a GPS tracking device, and if not, what level of suspicion is required, reasonable suspicion or probable cause.”); see also Jason D. Medinger, Post- Jones: How District Courts are Answering the Myriad Questions Raised by the Supreme Court’s Decision in United States v. Jones, 42 U. Balt. L. Rev. 395, 397 (2013). Some federal appellate courts have, nevertheless, held that a warrant supported by probable cause is required for placement of a GPS tracking device on a suspect’s vehicle. United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016) (“Placement of a GPS tracking device on a vehicle is a ‘search’ within the meaning of the Fourth Amendment, requiring probable cause and a warrant.”). The Sixth Circuit has further confirmed that probable cause is a prerequisite to the issuance of a valid location tracking warrant under FRCRP 41. United States v. Coleman, 923 F.3d 450, 454 (6th Cir. 2019) (“According to Federal Rule of Criminal Procedure 41(c)–(d), a magistrate judge must issue a tracking-device warrant if a supporting affidavit establishes probable cause to believe that the device will uncover evidence, fruits, or instrumentalities of a crime.”).

20 tailored to address modern tracking technology,9 imposes time limitations and requires

concise identification of the technology that law enforcement plans to employ in collecting

location data—requisites that further aid in protecting citizens from indiscriminate

government surveillance. We begin our analysis by outlining some basic principles of

Fourth Amendment law and the requirements of a valid warrant.

C. Warrant Requirements

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.10 Subject to certain exceptions, searches and seizures conducted

9 Surveillance technology may be effectively embedded in everything from phones to clothes and credit cards or appended to cars and drones. See, Rachel Levinson- Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. at 542; David Gray, THE FOURTH AMENDMENT in an AGE OF SURVEILLANCE, Cambridge University Press (2017), 27 (“Another tracking technology that is rapidly expanding governmental surveillance capacities is Radio Frequency Identification (RFID). . . . RFID tags come in a variety of shapes and sizes ranging from key fobs to tiny chips to cylinders the size of rice grains.”).

10 The parties do not present their arguments under Article 26 of the Maryland Constitution, Declaration of Rights, which states:

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.

Md. Const. Decl. of Rights, art. 26. Despite the textual differences, Maryland courts have generally construed Article 26 as extending protections that are co-extensive with those protections afforded under the Fourth Amendment of the United States Constitution. See, 21 without a warrant are presumed unreasonable. Grant v. State, 449 Md. 1, 17 (2016) (citing

Katz v. United States, 389 U.S. 347, 356–57 (1967)). In warrantless-search and-seizure

cases, the State bears the burden of overcoming the presumption that a warrant was

required. Eusebio v. State, 245 Md. App. 1, 22 (2020) (citation omitted). In the instant

case, the State had the burden of establishing that the order issued pursuant to CP § 1-203.1

met the requirements of a warrant.

A valid search warrant requires a law enforcement officer to present a “neutral and

detached magistrate” with sworn testimony that demonstrates probable cause. Copes, 454

Md. at 618 (citing Illinois v. Gates, 462 U.S. 213, 238-40 (1983)). It is long established

that the “touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500

U.S. 248, 250 (1991). And reasonableness, in turn, is measured objectively by examining

the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39 (1996).

e.g., King v. State, 434 Md. 472, 483 (2013) (noting that “[a]lthough we have asserted that Article 26 may have a meaning independent of the Fourth Amendment, we have not held, to date, that it provides greater protection against state searches than its federal kin”); Parker v. State, 402 Md. 372, 386, 396, 400–01 (2007); Byndloss v. State, 391 Md. 462, 465 n.1 (2006); Fitzgerald v. State, 384 Md. 484, 506 (2004); Upshur v. State, 208 Md. App. 383, 397 (2012); see also Dan Friedman, THE MARYLAND STATE CONSTITUTION: A REFERENCE GUIDE 62–63 (Oxford ed. 2011) (and cases cited therein). It is important to point out that the requirement of a warrant is derived from the Fourth Amendment’s command that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” See Agnello v. United States, 269 U.S. 20, 32 (1925) (“The search of a private dwelling without a warrant is, in itself, unreasonable and abhorrent to our laws.”); see also California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J. concurring) (“Although the Fourth Amendment does not explicitly impose the requirement of a warrant, it is of course textually possible to consider that implicit within the requirement of reasonableness.”). 22 Correspondingly, probable cause is ‘“a fluid concept,’ ‘incapable of precise

definition or quantification into percentages because it deals with probabilities and depends

on the totality of the circumstances[.]’” Stevenson v. State, 455 Md. 709, 723 (2017)

(quoting Gates, 462 U.S. at 232; Maryland v. Pringle, 540 U.S. 366, 371 (2003)). Probable

cause is “a fair probability that contraband or evidence of a crime will be found in a

particular place.” Patterson v. State, 401 Md. 76, 91 (2007) (citation omitted). It involves

“factual and practical considerations of everyday life on which reasonable and prudent

men, not legal technicians, act.” Pacheco v. State, 465 Md. 311, 324 (2019) (citation

More challenging in the context of modern technology, is the Fourth Amendment’s

particularity requirement.11 The Supreme Court has explained that under a properly

11 The GPS technology employed in the underlying order did not require much description because GPS technology is “pervasive and generally reliable.” Johnson v. State, 457 Md. 513, 530 (2018); Gross v. State, 229 Md. App. 24, 35-36 (2016) (holding that witnesses testifying as to facts within their knowledge for the admission of records of GPS data from units installed on company’s box trucks did not require specialized training, knowledge, or experience). However, GPS devices are not the apotheosis of surveillance technology, and more sophisticated surveillance, such as Cell Site Location Information (“CSLI”) technology, may require more description and reporting. In State v. Andrews, the police sought court authority to use a cell site simulator under the Maryland Pen Register Act but failed to disclose in their application for a pen register order that they intended to use a cell site simulator. 227 Md. App. 350, 356-57 (2016). The pen register statutes were intended to address devices “that record[] and decode[] dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted” or “capture[] the incoming electronic impulses . . . that identify the originating number or other [information] reasonably likely to identify the source of a wire or electronic communication.” Id. at 402 (citing CJP § 10-4B-0.1). Consequently, “most judges [who] sign[ed] these orders [thought] they [were] allowing traditional pen trap operations aided by telephone companies, not licensing the use of a cell site simulator because many officers [did] not disclose the true nature of their activities in 23 particular warrant, “[a]s to what is to be taken, nothing is left to the discretion of the officer

executing the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927). Later, in an

opinion striking down a New York statute under the particularity requirement of the Fourth

Amendment, Justice Thomas Clark observed, “[t]he law, though jealous of individual

privacy, has not kept pace with these advances in scientific knowledge.” Berger v. State

of N.Y., 388 U.S. 41, 49 (1967).12

The Court in Berger considered the constitutionality of a statute that authorized state

judges to issue orders permitting law enforcement to intercept conversations by

wiretapping and other eavesdropping methods. Id. at 43, 54. The Court found that the

statute did not meet the particularity requirement because

their applications.” David Gray, THE FOURTH AMENDMENT in an AGE OF SURVEILLANCE, p. 36, n.52. 12 Justice Clark described the scientific advancements at that time:

Sophisticated electronic devices have now been developed (commonly known as “bugs”) which are capable of eavesdropping on anyone in most any given situation. They are to be distinguished from “wiretaps” which are confined to the interception of telegraphic and telephonic communications. Miniature in size (⅜ ⅜ ⅛ )—no larger than a postage stamp—these gadgets pick up whispers within a room and broadcast them half a block away to a receiver. It is said that certain types of electronic rays beamed at walls or glass windows are capable of catching voice vibrations as they are bounced off the surfaces. Since 1940 eavesdropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control. A microphone concealed in a book, a lamp, or other unsuspected place in a room, or made into a fountain pen, tie clasp, lapel button, or cuff link increases the range of these powerful wireless transmitters to a half mile.

Berger, 388 U.S. at 46-47. 24 [i]t merely says that a warrant may issue on reasonable ground to believe that evidence of crime may be obtained by the eavesdrop. It lays down no requirement for particularity in the warrant as to what specific crime has been or is being committed, nor “the place to be searched,” or “the persons or things to be seized” as specifically required by the Fourth Amendment. The need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping. By its very nature eavesdropping involves an intrusion on privacy that is broad in scope.

Berger, 388 U.S. at 55–56. Furthermore, the Court denounced the statute’s failure to

carefully circumscribe law enforcement activities to prevent unauthorized invasions of

privacy, concluding that the statute “actually permits general searches by electronic

devices, the truly offensive character of which was first condemned in Entick v.

Carrington, 19 How.St.Tr. 1029, and which were then known as ‘general warrants.’ The

use of the latter was a motivating factor behind the Declaration of Independence.” Id. at

58. Justice Clark also reproved the authorization of eavesdropping for a two-month period,

with the possibility of additional two-month extensions, as “insufficient without a showing

of present probable cause for the continuance of the eavesdrop.” Id. at 59.

In our effort to stay apace with scientific advances, we have recognized that in order

to particularly describe the place to be searched, and the persons or things to be seized, the

application for a warrant or order must identify, among other things, what type of tracking

device law enforcement intends to use. See Andrews, 227 Md. App. at 376 (“The analytical

framework [of the reasonableness of a search or seizure] requires analysis of the

functionality of the surveillance device and the range of information potentially revealed

by its use.”). Accordingly, we held in State v. Andrews that

25 unless a valid exception to the warrant requirement applies, the government may not use a cell phone simulator without a warrant or, alternatively, a specialized order that requires a particularized showing of probable cause, based on sufficient information about the technology involved to allow a court to contour reasonable limitations on the scope and manner of the search, and that provides adequate protections in case any third-party cell phone information might be unintentionally intercepted.

227 Md. App. at 413 (emphasis added) (footnote omitted). 13

D. CP § 1-203.1

The purpose of statutory interpretation “is to ascertain and effectuate the real and

actual intent of the Legislature. A court’s primary goal in interpreting statutory language

is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied

by the statutory provision under scrutiny.” State v. Bey, 452 Md. 255, 265 (2017). “Under

what the United States Supreme Court termed ‘the canon of constitutional avoidance,’ we

will construe a statute to avoid conflict with the Constitution whenever it is reasonably

possible to do so, even to the extent of applying a judicial gloss to interpretation that skirts

a constitutional confrontation.” Harrison-Solomon v. State, 442 Md. 254, 287 (2015). We

13 As we mentioned earlier in f.n. 1, CP § 1-203.1 was amended during the 2020 legislative session of the Maryland General Assembly. 2020 Md. Laws Ch. 222 (H.B. 499). The purpose of the amendments was to explicitly “appl[y] current law provisions relating to an application for an order to obtain location information by law enforcement and the duration of such an order to the use of cell site simulator technology by law enforcement.” Fiscal Note, H.B. 499, 2020 Leg., 441st Sess. (Md. 2020). Accordingly, the term “Cell Site Simulator” was added to the statute. Furthermore, to specifically protect citizens from the indiscriminate use of CSLI technology, the General Assembly added the requirements that: “any third-party or nontarget data be permanently destroyed on the expiration of the order,” CP § 1-203.1(b)(4)(iv); “no content data be obtained,” CP § 1- 203.1(b)(4)(v); and the order shall “restrict the investigative use of any third-party or nontarget data without further court order.” CP § 1-203.1(b)(4)(vi).

26 will not presume that the General Assembly intended to enact unconstitutional legislation.

Id.

To determine legislative intent, we turn first to the plain meaning of the statute.

Berry v. State, 244 Md. App. 234, 244 (2019). “Even if the plain meaning is clear and

unambiguous, we often look to legislative intent and purpose to determine if they ratify our

analysis and interpretation of a statute.” Hammonds v. State, 436 Md. 22, 44 (2013).

Plain Language

We begin our analysis by examining the plain language of CP § 1-203.1. The statute

was enacted in 2014, amended without substantive change in 2018 and 2019, and then

amended again this year to include additional protections for orders authorizing the use of

CSLI technology. Because the court order in the underlying case was issued on October

8, 2016, the statute as enacted in 2014 is the relevant version.

The plain language of CP § 1-203.1 shows that the statute embodies all of the

warrant requirements inhering in the Fourth Amendment. Subsection b provides, 14 in

14 The language that we examine remains in the current statute because, as we have explained, supra, f.n. 13, CP § 1-203.1 was substantively amended in 2020 principally to add language concerning the use of CSLI, which is not the subject of this appeal. In 2016, subsection (b) of CP § 1-203.1 provided as follows:

(b)(1) A court may issue an order authorizing or directing a law enforcement officer to obtain location information from an electronic device after determining from an application described in paragraph (2) of this subsection that there is probable cause to believe that: (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

27 (ii) 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. (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 probable cause as described in paragraph (1) of this subsection; and 2. contains facts within the personal knowledge of the affiant. (3) An order 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; (ii) authorize the executing law enforcement officer to obtain the location information without giving notice to the owner or user of the electronic device or to the individual about whom the location information is being sought for the duration of the order; (iii) specify the period of time for which location information is authorized to be obtained; and []

28 pertinent part, that a court may issue an order that allows law enforcement to obtain location

information “after determining[,] from an application described in paragraph (2) of this

subsection[,]” that “there is probable cause to believe that . . . a misdemeanor or felony has

been, is being, or will be committed . . . by the individual about whom location information

is being sought[.]” CP § 1-203.1(b)(1)-(1)(i). Paragraph (2) requires a written application

that is “signed and sworn to by the applicant” and is “accompanied by an affidavit that[]

. . . sets forth the basis for probable cause . . . and [] contains facts within the personal

knowledge of the affiant.” CP § 1-203.1(b)(2).

Importantly, in light of the particularity requirement, the statute further requires that

any order issued pursuant to it must “describe with reasonable particularity[] . . . the type

of electronic device associated with the location information being sought”; “the user of

the electronic device, if known, or the identifying number of the electronic device about

which location information is sought”; and “the grounds for obtaining the location

information[.]” CP § 1-203.1(b)(3).

The statute also delineates specific time limitations and notice requirements. Under

CP § 1-203.1(c), unless there is probable cause for an extension, an order may not exceed

30 days and expires automatically if not acted upon within 10 days of issuance of the order.

Within 10 days after expiration of the order, “[n]otice of the order shall be delivered to the

user and, if known and if the owner is a person or an entity other than the user, the

subscriber of the electronic device[.]” CP § 1-203.1(d).

Md. Code Ann., Crim. Proc. § 1-203.1(b) (2014) (amended 2020). 29 Though the language of the statute is clear and unambiguous, we will still look to

the legislative intent and purpose to examine if they ratify our analysis and interpretation

of a statute. Hammonds, 436 Md. at 44.

Legislative History

A review of the legislative history of this statute confirms our analysis of the plain

language. The first Fiscal and Policy Note, attached to the bill, cites directly to United

States v. Jones, and details the Supreme Court’s holding in that case, showing that the

legislature was aware of the opinion. Fiscal and Policy Note, S.B. 698, 2014 Leg., 434th

Sess. (Md. 2014). It reveals that the stated purpose of the bill, as it was first introduced,

was to “prohibit[] an agent of the State or a political subdivision of the State from obtaining

‘location information’ without a search warrant.” Id. Notably, the first draft of the

proposed legislation included the word “warrant” and it was only replaced by “court order”

in subsequent drafts. S.B. 698, 2014 Leg., 434th Sess. (Md. 2014).

Other States

Maryland is not the only state to enact legislation to regulate law enforcement’s use

of GPS tracking technology. At least 18 other states, 15 as well as the Federal

15 Of the states that have statutes governing surveillance via GPS tracking device, the ones that require that law enforcement officers obtain a “warrant” prior to installation are: Alabama, ALA. CODE § 15-5-50 (2019), Arizona, ARIZ. REV. STAT. ANN. § 13-4293 (2019), California, CAL. PENAL CODE § 1524 (West 2019), Connecticut, CONN. GEN. STAT. ANN. § 54-33a (West 2019), Iowa, IOWA CODE ANN. § 808.1 (West 2019), Kansas, KAN. STAT. ANN. § 22-2502 (West 2019), New Hampshire, N.H. REV. STAT. ANN. § 644- A:2 (2019), Oregon, OR. REV. STAT. ANN. § 133.619 (West 2019), South Dakota, S.D. CODIFIED LAWS § 23A-35-4.3 (2019), and Virginia, VA. CODE ANN. § 19.2-56.2 (West 2019). 30 Government,16 have statutes prescribing the process that law enforcement must follow

before commencing electronic surveillance of a suspect. Of the states that require law

enforcement officers to apply for a “warrant”, as opposed to a court order, five of them

have statutory provisions that define what a warrant is.17 Among our sister states that chose

Florida, Maryland, Pennsylvania, and South Carolina require that law enforcement officers obtain an “order” prior to installation. FLA. STAT. ANN. § 934.42 (West 2019); MD. CRIM. PROC. § 1-203.1; 18 PA. STAT. AND CONS. STAT. ANN. § 5761 (West 2019); S.C. CODE ANN. § 17-30-140 (2019). Colorado, Hawaii, and the Federal Government require that law enforcement officials obtain a “warrant or court order” or a “warrant or other order[.]” COLO. REV. STAT. ANN. § 16-3-303.5 (West 2019); HAW. REV. STAT. ANN. § 803-44.7 (West 2019); 18 U.S.C.A. § 3117 (West 2019).

16 The federal government empowers law enforcement to install and use tracking devices primarily through two avenues. The first is 18 U.S.C. § 3117, which provides:

(a) In general.--If a court is empowered to issue a warrant or other order for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside that jurisdiction if the device is installed in that jurisdiction. (b) Definition.--As used in this section, the term “tracking device” means an electronic or mechanical device which permits the tracking of the movement of a person or object.

The second is Federal Rule of Criminal Procedure 41, which sets forth the warrant requirements and contains provisions specific to the issuance of tracking device warrants. It provides, generally, that “[a]fter receiving an affidavit or other information, a magistrate judge . . . must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.” FRCRP 41(d). 17 ALA. CODE § 15-5-1 (2019) (“A ‘search warrant’ is an order”); ARIZ. REV. STAT. ANN. § 13-4291 (2019) (“A ‘[t]racking device search warrant’ means an order”); CAL. PENAL CODE § 1523 (West 2019) (“A search warrant is an order”); IOWA CODE ANN. § 808.1 (West 2019) (“‘Search warrant’ means an order”); S.D. CODIFIED LAWS § 23A-35- 1 (2019) (“A search warrant is a written order”). 31 to use the term “order,” none of them have directly considered whether a location tracking

statute that contains this linguistic difference offends the Fourth Amendment for that

reason alone.

In Florida v. Sylvestre, the District Court of Appeal of Florida held that even though

its mobile tracking device statute does not expressly contain a probable cause requirement,

if an order issued pursuant to it nonetheless is supported by probable cause, that order does

not violate the Fourth Amendment. 254 So.3d 986, 989 (Fla. Dist. Ct. App. 2018) (“The

content of a court’s order—not the label affixed to it—determines whether a warrant

satisfies the Fourth Amendment.”). Notably, that statute requires that any mobile tracking

device order be issued in compliance with “[t]he standards established by the United States

Supreme Court for the installation and monitoring of mobile tracking devices[.]” FLA.

STAT. ANN. § 934.42 (West 2019). The Supreme Court of South Carolina has also

confirmed that South Carolina’s statute, which requires an “order” supported by probable

cause for GPS tracking, does not offend the requirements of the Fourth Amendment or the

Supreme Court’s holding in Jones. South Carolina v. Adams, 763 S.E.2d 341, 347 (2014).

Neither party in that case challenged the fact that the document was styled as an “order”

rather than a “warrant.” Id.

Prior to the U.S. Supreme Court’s decision in Jones, the Supreme Court of

Wisconsin confronted the issue of “whether [a] court order authorizing the installation and

monitoring of a GPS tracking device on [a suspect’s] vehicle constitute[s] a valid

warrant[.]” State v. Sveum, 787 N.W.2d 317, 321 (Wis. 2010). In that case, Wisconsin did

not have a statute providing for this type of surveillance, but the investigating detective

32 applied for circuit court authorization to place a GPS tracking device on the car of a

suspected stalker. Id. at 322. The detective also filed an affidavit to support her request

that explained the basis for probable cause. Id. at 322-24. The subsequently issued court

order provided for placement of a GPS tracking device on the suspect’s car for 60 days.

Id. at 324. On appeal from the denial of the suspect’s motion to suppress, the court held

that “the order authorizing the installation and monitoring of a GPS tracking device on [the

suspect]’s vehicle was a valid search warrant under the Fourth Amendment.” Id. at 330.

The court reasoned that the order did not offend the Constitution because it was signed by

a neutral and detached magistrate, supported by probable cause, and particularly described

the “object into which the GPS was to be placed[.]” Id. at 330-31.

Similarly, there is support in the case law from other states applying the same

reasoning to court orders authorizing other types of Fourth Amendment searches. Whitlow

v. Kentucky, 575 S.W.3d 663, 669 (Ky. 2019) (“While a search warrant is a type

of court order, obviously not all court orders constitute search warrants. Here,

the court order relied upon to test [defendant]’s blood was not labeled ‘search warrant,’ but

in substance that is exactly what it was.”); State v. Garcia-Salgado, 240 P.3d 153, 157

(Wash. 2010) (holding that a court order for a DNA swab “may function as a warrant as

long as it meets constitutional requirements”).

E. The Order in this Case When assessing the validity of a search warrant—or, in this case, the order issued

under CP § 1-203.1—our standard of review is highly deferential. State v. Jenkins, 178

Md. App. 156, 163 (2008). “We determine first whether the issuing judge had a substantial

33 basis to conclude that the warrant was supported by probable cause.” Id. (quoting

Greenstreet v. State, 392 Md. 652, 667-68 (2006)). To determine whether the issuing judge

had a substantial basis for concluding the warrant was supported by probable cause,

[w]e do so not by applying a de novo standard of review, but rather a deferential one. The task of the issuing judge is to reach a practical and common-sense decision, given all of the circumstances set forth in the affidavit, as to whether there exists a fair probability that contraband or evidence of a crime will be found in a particular search. The duty of a reviewing court is to ensure that the issuing judge had a substantial basis for . . . conclud[ing] that probable cause existed.

Greenstreet, 392 Md. at 667-68 (internal citations and quotations omitted). As this Court

noted in State v. Jenkins, our deference is to the warrant-issuing judge and not the

suppression court. 178 Md. App. at 170.

On appeal, as before the suppression court, Mr. Whittington claims that the GPS

Order was unconstitutional because it was issued pursuant to CP § 1-203.1, and therefore,

he asserts, it was not a warrant supported by probable cause. Mr. Whittington does not

otherwise specify how the GPS Order failed to meet the requirements of the Fourth

Amendment.

We have determined CP § 1-203.1 imposes conditions and requisites on officers

who seek to employ GPS tracking devices that meet the warrant requirements of the Fourth

Amendment. We conclude, in turn, that the application in this case met the requirements

of the statute because it established a substantial basis upon which the issuing judge could

find probable cause that a “misdemeanor or felony . . . [wa]s being . . . committed” and

“the location information being sought . . . [wa]s evidence of, or w[ould] lead to evidence

34 of, the misdemeanor or felony being investigated[.]” CP § 1-203.1(b). Det. Underhill’s

sworn application for the court order to install the GPS device on Mr. Whittington’s car

gave a detailed accounting of the task force’s surveillance up to that point in time, and was

based on Det. Underhill’s personal knowledge. With particularity, Det. Underhill

identified Mr. Whittington as the owner of a Dodge Stratus, and averred that he believed

the vehicle was being used by Mr. Whittington in furtherance of numerous crimes

involving CDS. The application included the year, license plate number and vehicle

identification number. The information contained in the application that supported a

finding of probable cause included: (1) Det. Underhill’s training and experience; (2) Mr.

Whittington’s frequent association with a known drug dealer, Mr. Hall, including that a

wiretap revealed Mr. Whittington exchanged the highest volume of calls with Mr. Hall; (3)

the use of coded language between Mr. Hall and Mr. Whittington; (4) detectives’

observations of Mr. Whittington engaged in a suspected CDS transaction; and (5)

references to locations that law enforcement believed were being used to process “powder

cocaine into crack cocaine[.]” The application also specifically identified the technology

that Det. Underhill intended to use: “an electronic tracking device . . . which w[ould]

transmit and receive radio signals for the purpose of tracking the movements of the

35 vehicle.” The application specified how the GPS device would be installed,18 and stated

that the application, and any order,19 would be sealed for a period of 30 days.

Conclusion

We hold that a court order issued under CP § 1-203.1 is constitutionally-sufficient

authorization for GPS location information tracking by law enforcement. We reach this

conclusion based on the plain language of the statute, as well as the clear intent of the

Maryland General Assembly to craft a statute specifically tailored to surveillance

technology, that imposes protections and requirements equivalent to that of a warrant. The

statute requires that an order be signed by a neutral and detached magistrate, based on

probable cause, and supported by oath or affirmation. It must also identify with reasonable

particularity the technology to be employed and the person about whom location

information is being sought. Orders are limited, unless certain exceptions apply, to 30

days, after which notice of the order must be delivered to the subject of the order. We also

observe that CP § 1-203.1 imposes requirements beyond those required to pass

constitutional muster. Clearly the General Assembly has taken the lead in identifying

technology that threatens the collective right of the people to be secure against

18 “Enter private property and the aforementioned vehicle without knocking or giving warning for the limited purposes of installing, maintaining, repairing, replacing or removing the electronic tracking device. Seize, if need necessitates, and move the aforementioned vehicle to a secure location for the installation/maintenance of the electronic tracking device.” 19 The application was signed by the District Court Judge as “Sworn to before me and subscribed to in my presence, this 8th day of October, 2016.” The Judge also issued a separate order on the same date, including the exact specifications and limitations contained in the application. 36 unreasonable searches and has manifested its intention that law enforcement obtain an

order pursuant to CP § 1-203.1 before using an electronic device to collect location

information. We conclude by holding that the court-authorized GPS Order allowing the

Harford County Police Department to collect location information by affixing a GPS

tracking device to Mr. Whittington’s vehicle satisfied the warrant requirements of the

Fourth Amendment.

III.

Sufficiency of the Search Warrant

A. Parties’ Contentions

Before this Court, Mr. Whittington argues that while the suppression court properly

determined that there was no substantial basis to find probable cause to issue the underlying

warrant, the court erred in applying the good faith exception to the exclusionary rule

“because the lack of probable cause is so apparent on the face of the affidavit, the officers

could not have relied on the warrant in good faith.” He contends that the warrant was

“based on an affidavit that was so lacking in probable cause as to render official belief in

its existence entirely unreasonable.” He claims the factual allegations in the affidavit are

“inconclusive and speculative[,]” and fail to establish a nexus between any suspicious

activity and the 4 Cloverwood Ct. apartment. Mr. Whittington points to the fact that the

police never observed him with any drugs or exhibiting any behavior “that could not easily

be interpreted as innocent.” Furthermore, he argues that the police are required to be aware

of the nexus requirement between the items sought and the place to be searched. He

37 contends that the police never actually observed Mr. Whittington enter or exit the 4

Cloverwood Ct. address yet claimed that they believed he was storing drugs there.

To the contrary, the State asserts, first, that the suppression court erred in

determining that the warrant-issuing judge lacked a substantial basis to find probable cause.

The State contends the warrant was supported by the sworn attestations of a detective with

first-hand knowledge of the investigation, relating Mr. Whittington’s repeated association

with Mr. Hall, a known drug dealer with an extensive criminal record. The State highlights

Mr. Whittington’s own criminal record and asserts that the activities observed through GPS

surveillance of Mr. Whittington’s car, such as the short stops at various locations and

unusual routes of travel, are consistent with CDS activity. The State points out that the

officers relied on their training and experience with illegal drug transactions as set forth in

the affidavit they submitted to the warrant-issuing judge. The State concedes in its brief

that “there was no direct evidence that conclusively established that [Mr. Whittington] was

engaging in drug transactions[,]” but still argues that a nexus may be established upon

circumstantial evidence alone, and that Mr. Whittington’s activities outside of his home

permitted a reasonable inference that evidence of CDS transactions may be stored in his

car and his home.

Next, the State contends that even if the warrant judge lacked a substantial basis to

issue the warrant, the suppression court properly applied the good faith exception to the

exclusionary rule. The State argues that in order for the officer’s reliance on the warrant

to be deemed unreasonable, the warrant would need to contain entirely conclusory

statements and be devoid of facts and circumstances upon which a judge could determine

38 probable cause. The State points out that the officers provided several pages of facts and

observations regarding Mr. Whittington’s activities.

We find no error or abuse of discretion in the court’s application of the good faith

exception to the exclusionary rule. As we explain next, we agree with the court’s

determination that the detectives in this case relied on the search warrant in good faith.

Consequently, we assume, without deciding, that the suppression court correctly

determined that the district court judge did not have a substantial basis to find probable

cause to issue the warrant.20 See Marshall v. State, 415 Md. 399, 402 (2010) (assuming

that the search warrant was issued improperly and analyzing only the application of the

good faith exception).

20 Although we are not reviewing whether the warrant-issuing judge had a substantial basis to find probable cause in this case, we note that, were we to do so, we would be confined to the four corners of the warrant and its associated application. Sweeney v. State, 242 Md. App. 160, 185 (2019). As Mr. Whittington’s counsel pointed out before the suppression court, the application for the GPS Order and the warrant application contained some different points of information. For instance, the wiretap was mentioned in the order application, but not the warrant application. When considering the sufficiency of the warrant, we do not, and the suppression court could not, consider any averments contained solely in the GPS Order application. The court properly examined the application for the GPS Order separately, however, to address counsel’s assertion that the order itself was unconstitutional and did not establish probable cause that Mr. Whittington was using the Dodge Stratus to commit drug crimes. Consequently, Mr. Whittington’s counsel argued, the averments contained in the warrant application were based on evidence derived from an unconstitutional order and “all of the observations [in the warrant application] that allege to establish any kind of nexus is just GPS monitoring of the vehicle going from place to place.” 39 B. Good Faith Exception

The United States Supreme Court and the Maryland Court of Appeals “have adopted

a good faith exception to the warrant requirement, under which ‘evidence seized under a

warrant subsequently determined to be invalid may be admissible if the executing officers

acted in objective good faith with reasonable reliance on the warrant.’” Carroll v. State,

240 Md. App. 629, 654 (2019) (citation omitted). We review the suppression court’s

determination as to the applicability of the good faith exception without deference when

the facts are not in dispute. “In making this determination, we consider all of the

circumstances of the case.” State v. Jenkins, 178 Md. App. 156, 198 (2008) (citation

To vindicate the Fourth Amendment’s guarantee against unreasonable searches and

seizures, as well as to deter violations by law enforcement, the Supreme Court has

developed the “exclusionary rule.” Copes, 454 Md. at 605 (citing Weeks v. United States,

232 U.S. 383 (1914)). This rule provides that, when evidence is obtained in violation of

the Fourth Amendment, such evidence will ordinarily be inadmissible in a state criminal

prosecution. Thornton v. State, 465 Md. 122, 140 (2019). “The exclusionary rule is not

itself an individual right; therefore, suppression of evidence ‘is not an automatic

consequence of a Fourth Amendment violation.’” Copes, 454 Md. at 605 (quoting Herring

v. United States, 555 U.S. 135, 137 (2009)). “[T]he exclusionary rule is designed to deter

police misconduct[.]” United States v. Leon, 468 U.S. 897, 916 (1984). The rule does not

serve its stated purpose if exclusion, in a given case, would not act to deter unlawful law

enforcement behavior. See id. at 918. Therefore, it is “not applied when law enforcement

40 officials engage in ‘objectively reasonable law enforcement activity,’ even if that activity

is later found to be a violation of the Fourth Amendment.” Copes, 454 Md. at 606 (quoting

Leon, 468 U.S. at 919).

The Court of Appeals has instructed that there are four scenarios in which a court

should not apply the good-faith exception to the exclusionary rule to an invalid warrant:

(1) where the issuing authority is “misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth;” (2) “where the issuing magistrate wholly abandoned his judicial role . . .;” (3) where “no reasonably well-trained officer should rely on the warrant . . . [such as] an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;’” and, (4) where a warrant is “so facially deficient . . . that the executing officers cannot reasonably presume it to be valid.”

Greenstreet v. State, 392 Md. 652, 679 (2006) (citations omitted). “Where the defect in

the warrant is not readily apparent to a well-trained officer, or, where the warrant is based

on ‘evidence sufficient to create disagreement among thoughtful and competent judges as

to the existence of probable cause,’ then the good faith exception will apply.” Id. at 679

(quoting Leon, 468 U.S. at 926). The Court of Appeals has also opined that “[t]his is a less

demanding showing than the ‘substantial basis’ threshold required to prove the existence

of probable cause in the first place.” Patterson, 401 Md. at 105 (citation omitted). The

good faith exception requires that “officers, exercising professional judgment, could have

reasonably believed that the averments of their affidavit related to a present and continuing

violation of the law, not remote from the date of their affidavit, and that the evidence sought

would likely be found at [the place identified in the affidavit].” Id. at 107 (citation omitted).

The affidavit must contain more than “wholly conclusory statements, which lack the facts

41 and circumstances from which a magistrate can independently determine probable cause.”

Agurs, 415 Md. at 79 (citation omitted).

The Court of Appeals has often applied the good faith exception even in cases

wherein the Court concluded that there was no substantial basis for probable cause. See

Patterson v. State, 401 Md. 76, 82 (2007). For example, in Patterson, the Court of Appeals

concluded that the officer had an objectively reasonable belief that there was probable

cause to search Garfield Patterson’s temporary residence, a motel room, for weapons

because a recovered gun holster and matching magazine near the area of his arrest supplied

some indicia of probable cause. Id. at 107-08. The Court noted that the officer’s affidavit

detailed Patterson’s criminal history as well as the observations of police officers, as

opposed to unnamed informants or other unreliable sources. Id. at 108-09. Based on the

facts set forth in the affidavit, the Court determined that it could not “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.

In Holmes v. State, the Court of Appeals addressed the nexus requirement

specifically, and determined that there was a sufficient nexus between the home and the

observed drug activity in that case to justify issuance of a search warrant. 368 Md. 506,

523 (2002). The Court observed that the drug transaction that was the basis for the probable

cause “occurred less than a block from petitioner’s home. Petitioner[] had a history of

[CDS] violations, was in and out of his house immediately prior to meeting his customer,

was in confederation with [] another known drug violator . . . and was found with a quantity

of marijuana and money on him[.]” Id. The Court reasoned that the proximity of the

42 suspicious transaction in both time and distance to Holmes’s house, plus the observation

of marijuana on his person were sufficient to establish probable cause to issue a warrant to

search the house. Id. Although the case did not turn on application of the good faith

exception, the Court added that, “[a]t the very least, [it] would fall within the realm of a

marginal case in which . . . deference must be given to the warrant.” Id.

Cases in which the Court has refused to apply the good faith exception demonstrate

that the safe harbor is foreclosed typically when there is no or little evidence to support a

finding of probable cause. Marshall v. State, 415 Md. 399, 410 (2010). For example,

in Greenstreet v. State, the judge issued a search warrant for a residence based exclusively

upon evidence obtained during a trash seizure that, according to the officer’s affidavit,

occurred over a year earlier. 392 Md. at 661. The Court of Appeals held the warrant

invalid and refused to apply the good faith exception, noting that “the lack of probable

cause [wa]s apparent on the face of the affidavit.” Id. at 682-83.

Agurs v. State

The Court of Appeals’ opinion in Agurs v. State, 415 Md. 62 (2010), has been a

point of contention throughout this case. As we next explain, the Court of Appeals

produced a plurality opinion with no majority consensus on the grounds for application of

the good faith exception. See 415 Md. at 99.

In Agurs, multiple confidential informants notified detectives that Gary Agurs was

selling crack cocaine in Baltimore City with the help of his cousin, who was also identified

by confidential informants. Id. at 70. The warrant affidavit alleged that Agurs and his

cousin were distributing crack cocaine and that evidence of this could be found at a

43 residence located at 3 Six Point Ct. Id. at 72-73. On one occasion, the police observed

Agurs leave 3 Six Point Ct. and then drive to and enter a clothing store with another

unknown male who, after one minute, exited the clothing store with a bulge in his pocket

that officers had not observed previously. Id. at 71. Agurs next met his cousin at an auto

detail shop, got into his cousin’s car for two minutes, then got back into his own car and

both men left the area. Id.

Police surveilled Agurs for roughly nine days before applying for a search warrant,

noting in their affidavit that they had seen Agurs enter and exit the 3 Six Point Ct. address

on several occasions. Id. at 71-72. Police determined through research that Agurs owned

the 3 Six Point Ct. residence with his wife. Id. at 72. Agurs’s criminal record showed that

he was convicted of CDS manufacturing and production sixteen years prior and for CDS

possession twice, twenty years prior. Id.

After police obtained a search warrant, they searched the home at 3 Six Point Ct.

and recovered cocaine, marijuana, $30,000 in cash, a digital scale, and a handgun, among

other things. Id. at 74. The trial court granted Agurs’s motion to suppress all of the

evidence seized from his home, “concluding that there had been no substantial basis for

the issuing judge to find probable cause to search[.]” Id. We reversed the suppression

court’s ruling, agreeing that there was no substantial basis, but holding that the good faith

exception applied. Id. at 75. The Court of Appeals, in turn, agreed that there was no

substantial basis for probable cause but disagreed that the good faith exception applied

because “no reasonably well-trained police officer could have relied in good faith on the

warrant authorizing the search of Agurs’[s] home.” Id. at 87-88.

44 In regard to the good faith exception, the plurality opinion reasoned that

the only factual assertion that could have possibly suggested such a nexus was that Agurs once left his home and met with another individual who subsequently had a previously unnoticed bulge in his pocket. Th[at] single assertion, which could have a number of innocent explanations, [did] not constitute indicia of probable cause that drugs might be found in Agurs’[s] home.

Id. at 89-90.

Judge Murphy, with Judge Adkins joining, concurred in part but dissented from the

majority’s reasoning as to the good faith exception. Id. at 99-100 (Murphy, J., concurring).

Judge Murphy reasoned that the Court could not decide on its own whether the good faith

exception should apply and that an evidentiary hearing was necessary. Id. He noted that,

while courts typically rely solely on the four corners of the affidavit in making such

decisions, there are already two well recognized exceptions to that principle. Id. at 100.

[A]n evidentiary hearing is required to determine whether probable cause for the issuance of a search warrant was “tainted,” i.e. acquired by illegal electronic surveillance or by what was observed during an unconstitutional warrantless search[] . . . [or] to determine whether certain information in an affidavit must be redacted on the ground that the information at issue is false.

Id. (internal citations omitted). Judge Murphy, therefore, argued that the State should have

been afforded the opportunity to prove that the officers relied on the search warrant in good

faith. Id. at 101.

Judge Barbera, with Judge Adkins joining, dissented. Id. at 102 (Barbera, J.,

dissenting). She reasoned that “[f]aithful application” of Supreme Court precedent

regarding the good faith exception “compel[led] the conclusion that the police acted in

good faith when they searched [Agurs’s] home pursuant to the search warrant.” Id. at 103.

45 After setting forth the relevant legal principles, Judge Barbera explained that “the Supreme

Court has not set a particularly high bar for demonstrating a probable cause belief that

evidence of a crime might be found in a particular place.” Id. at 105. Next, she outlined

the fluid, non-technical nature of probable cause determinations. Id. at 105-06. She

accepted, arguendo, the proposition that the warrant-issuing judge did not have a

substantial basis for probable cause to issue the search warrant. Id. at 107. From there,

she explained that the supporting affidavit was not of the “bare bones” sort contemplated

by the Supreme Court in setting out instances in which the good faith exception should not

apply. Id. at 108-09.

While Judge Barbera conceded that the affidavit failed to establish a direct nexus

between Agurs’s suspected drug distribution and “his home as a repository of evidence of

his drug activity[,]” she determined that no such showing was necessary to conclude that

the police officers had relied in good faith on the warrant. Id. at 110. Citing the Supreme

Court’s holding in United States v. Arvizu, 543 U.S. 266 (2002), she explained that courts

are entitled to give deference to the knowledge and expertise of law enforcement officers

“in developing knowledge about the practices and proclivities of drug dealers.” Id. at 109-

10. She expounded that the Court of Appeals had, in a number of cases, upheld searches

where a nexus was not established by direct observation but rather by “the type of crime,

the nature of the missing items, the extent of the suspect’s opportunity for concealment,

and normal inferences as to where a criminal would be likely to hide stolen property.” Id.

at 110-11.

46 Ultimately, Judge Barbera reasoned that “[i]f thoughtful and competent judges

could disagree” as to “whether the warrant affidavit was so lacking in indicia of probable

cause of a nexus between [Agurs]’s drug activity and his home as a repository of evidence

of that activity as to render official belief in its existence entirely unreasonable[,]” “it

follows that the police relied in good faith upon the warrant.” Id. at 112-13. In her view,

“the facts alleged in the warrant affidavit we[re] sufficient to allow reasonable officers,

exercising their professional judgment, to believe that there was a fair probability that

[Agurs]’s house contained evidence of his suspected drug activity.” Id. at 113.

Judge Adkins filed a separate dissent to note that while she agreed with Judge

Barbera that the police “could have acted in good faith,” she thought Judge Murphy’s

suggestion to remand the case for an evidentiary hearing was the more appropriate

disposition, as proof that the officers could have relied on the warrant in good faith is not

the same as proof that they did. Id. at 113 (Adkins, J., dissenting).

The result in Agurs was that the Court of Appeals declined to apply the good faith

exception where the police only witnessed one incident consistent with CDS activity and

Agurs’s criminal history was more than ten years old. 415 Md. at 71-73. Part A of the

plurality opinion stated that police must be aware of the nexus requirement, given the

Court’s earlier proclamation that “[a] well-trained police officer is required to be aware of

well-established current law and to have a reasonable knowledge of what the law

prohibits.” Id. at 84 (citation omitted). But, the Court noted that, if an affidavit fails to

supply a sufficient nexus, that alone will not always foreclose the possibility that the police

acted in good faith. Id. at 87 n.12. Ultimately, only three members of the Court agreed to

47 a single rationale in part B regarding the good faith exception. Consequently, one can

argue that the Court’s decision in part B is not binding precedent.21

Although both parties have extensively briefed the Agurs opinion, we determine this

case to be factually distinguishable. The detectives with the Harford County Task Force

first observed Mr. Whittington in the company of Mr. Hall, a suspect in a major drug

investigation, in early July 2016. A criminal history check revealed that Mr. Whittington

was charged and convicted of CDS: Possession with Intent to Distribute- Narcotic in 2005.

He was also arrested and charged in 2015 by sheriff’s office deputies with possession of

over 3 ounces of cocaine and $1,214 in currency. Police surveilled Mr. Whittington and

Mr. Hall in July and throughout most of October 2016. In the warrant affidavit, Det.

Underhill provides the details of the officers’ observations as well as the information

21 “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of [a majority of the Court], the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Derr v. State, 434 Md. 88, 114 (2013) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)). This Court has previously expressed skepticism about the reasoning provided in Agurs regarding the good faith exception.

The overarching disutility of the citation, however, is that in Agurs v. State there was no authoritative opinion of the Court. Seven judges produced five opinions (one of which was a non-opinion). Judge Greene wrote a plurality opinion, joined by Chief Judge Bell and Judge Harrell. Judge Battaglia joined in the decision not to apply the Good Faith Exception, but she expressly declined to join in the opinion. Judge Barbera filed a dissenting opinion. Judge Adkins filed a dissenting opinion. Judge Murphy filed a concurring and dissenting opinion, expressly declining to join in the result. The appellant nonetheless quotes the plurality opinion as if it were the unblemished repository of authoritative law. It is not.

Joppy v. State, 232 Md. App. 510, 523 (2017). 48 obtained from the GPS tracking technology showing movements and activity that he

attested were consistent with CDS activity. The affidavit details that Mr. Whittington

returned to the 4 Cloverwood Ct. address each night. Det. Underhill describes the larger

drug task force investigation and the role that Mr. Hall and Mr. Whittington played in the

drug activity under investigation. He substantiates his familiarity with this type of CDS

activity by setting forth his professional history, as well as the professional history of the

other detective who provided sworn testimony. Based on these facts, we cannot say that

the affidavit was “so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable[.]” Greenstreet, 392 Md. at 679.

The detectives here could have reasonably believed that Mr. Whittington’s criminal

history, consistent association with a person of interest in a large-scale drug investigation,

and suspicious driving behavior “related to a present and continuing violation of [the]

law[.]” Patterson, 401 Md. at 107. The affidavit was executed very promptly after the

officers spent time monitoring Mr. Whittington’s movements, and his return to the house

every night after engaging in the suspicious activity could support a reasonable belief that

drugs would be found therein. See id. Though we do not reach the question of whether

the warrant-issuing judge in this case had a substantial basis to find probable cause, we

cannot say as a matter of law that the detectives “should have second-guessed the issuing-

judge’s determination that probable cause existed.” Id. at 109. As set forth above, the

warrant application clearly presented “facts and circumstances” and contained more than

“wholly conclusory statements[.]” Agurs, 415 Md. at 79.

49 The Court of Appeals said in Agurs that police are required to be aware of the nexus

requirement, 415 Md. at 84, but we do not interpret that to mean that the police must apply

it with judicial precision. If that were the requirement, there would be less need for a

neutral and detached magistrate to sign off on a search warrant. Besides, on this record, it

is clear that two judges came to two different conclusions about whether the warrant

application met the nexus requirement. This is not one of the exceptional cases in which

an officer should be “required to disbelieve a judge who has just advised him, by word and

by action, that the warrant he possesses authorizes him to conduct the search he has

requested.” Joppy, 232 Md. App. 535 (quoting Massachusetts v. Sheppard, 468 U.S. 981,

989-90 (1984)). Thus, the circuit court judge was correct in applying the good faith

exception and denying Mr. Whittington’s motion to suppress.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.