Agurs v. State Of Md.

• Decision Date: 20 August 2010
• Docket Number: No. 11,2009.,11
• Citation: 998 A.2d 868,415 Md. 62
• Parties: Gary Samuel AGURSv.STATE of Maryland.
• Court: Maryland Court of Appeals

415 Md. 62

998 A.2d 868

Gary Samuel AGURSv.STATE of Maryland.

No. 11, Sept. Term, 2009.

Court of Appeals of Maryland.

May 19, 2010.

Reconsideration Denied Aug. 20, 2010.

Kenneth W. Ravenell (Milin Chun, The Murphy Firm, Baltimore), on brief, for petitioner.

Douglas D. Guidorizzi, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, BARBERA and ADKINS, JJ.

GREENE, J.

Our task in the present case is to review the Court of Special Appeals' determination that the Circuit Court for Baltimore County erred in suppressing the evidence obtained as a result of a search of the petitioner, Gary Agurs' home.¹ The trial court and the Court of Special Appeals both determined that there was no substantial basis upon which the issuing judge could have found probable cause to issue the warrant authorizing this search. Accordingly, the trial court excluded the evidence, but the Court of Special Appeals, relying on United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and our decisions applying Leon, concluded that exclusion was inappropriate because the police officers relied on the warrant in good faith.

We shall hold that the “good faith” exception to the exclusionary rule, as established by the Supreme Court in Leon and applied by this Court in Patterson v. State, 401 Md. 76, 930 A.2d 348 (2007), and other cases, does not prohibit exclusion of the evidence in this case. The affidavit submitted to the issuing judge provided no indicia of probable cause to believe that contraband would be found in the petitioner's home. The affidavit also provided limited facts suggesting that the petitioner was involved with criminal activity that might justify the search. Accordingly, no reasonably well-trained police officer could have believed that there was probable cause to search the petitioner's home. We shall therefore hold that the trial court was correct to suppress the evidence recovered during the search.

PROCEDURAL HISTORY

This case originated in the Circuit Court for Baltimore County. On April 11, 2007, the petitioner, Gary Samuel Agurs, was arrested and charged with a variety of offenses relating to possession and distribution of Controlled Dangerous Substances (“CDS”) and possession of firearms. He was subsequently indicted.² Before trial, he filed a motion asking the trial court to exclude all evidence recovered from a search of his home and vehicles, arguing that there had been no probable cause to support the warrant authorizing the search and that the good faith exception to the exclusionary rule did not apply. On April 17, 2008, the trial judge conducted a hearing and granted Agurs' motion, concluding that there had been no probable cause upon which to base the warrant because there was no “nexus between any illegal activity, the home, or his vehicles.”

The State noted a timely appeal to the Court of Special Appeals. That court issued an unpublished opinion in which it reversed the trial court's ruling. Although the intermediate appellate court concluded that “the issuing judge had a substantial basis to find probable cause that Agurs was somehow involved with [his alleged associate Andrew] Tillman in the distribution of cocaine,” it also concluded that no warrant should have been issued to search Agurs' house or vehicles because “the issuing judge did not have a substantial basis to conclude there was a fair probability police would find evidence of drug law violations” in those places. Nonetheless, the intermediate appellate court held that exclusion was inappropriate because it concluded that “none of the four established limitations to the [good faith exception to the exclusionary rule] apply to the warrant.”

Agurs petitioned this Court for certiorari, presenting the following question:

Whether the Court of Special Appeals misconstrued Patterson v. State, 401 Md. 76 (2007), and erred in finding good faith where the search warrant was based on

an affidavit that was so lacking in probable cause as to render official belief in its existence entirely unreasonable? [ ³]

We granted certiorari on that question Agurs v. State, 407 Md. 275, 964 A.2d 675 (2009), and shall answer it in the affirmative.

FACTS

On April 6, 2007, two detectives from the Baltimore City Narcotics Unit applied for and obtained “a search and seizure warrant pertaining to violations of the Controlled Dangerous Substance laws, Criminal CR 5-101 through CR 5-1101 ⁴ of the Criminal Law Article of Maryland.” The affidavit submitted in support of the application for the warrant lists two residences, five vehicles, and four individuals to be searched. The affidavit identifies one of the residences, 3 Six Point Ct., Windsor Mill, MD 21244, as Agurs' residence, based on the detectives' review of Maryland Motor Vehicle Administration (“MVA”) records. The affidavit asserts that the other residence, 904 Mount Holly St., Baltimore, MD 21229, was frequented by Agurs' alleged associate, Andrew Lee Tillman. Four of the vehicles listed in the affidavit are identified as belonging to Agurs, with the other belonging to Tillman. ⁵ The four individuals to be searched were Agurs; Maria Bertina Agurs, Agurs' wife; Tillman; and Talesha Shappell Conquest, who is identified as living in and owning the second residence and owning a vehicle Tillman was seen driving.

After setting forth the places and people to be searched, the affidavit describes the detectives applying for the warrant. One detective is described as having been a member of the Baltimore City Police Department since March 1998 and as having had training in illegal narcotics enforcement, automobile theft, wiretaps, and current drug trends. It also describes him as having worked in a variety of departments and as having testified as an expert witness in the area of illegal narcotics. Finally, the affidavit asserts that the detective is familiar with CDS and drug paraphernalia, has participated in hundreds of arrests involving narcotics, and has executed approximately 400 search and seizure warrants for illegal narcotics. The affidavit describes the other detective as having been a member of the Baltimore City Police Department since 2002 and as having been involved with over 500 drug arrests and over 30 search and seizure warrants. It also describes his specialized training related to CDS; familiarity with the language, terminology, street slang, prices, and packaging related to CDS; and involvement with surveillance of thousands of narcotics transactions. Finally, the affidavit asserts that the detective has interviewed narcotics distributors and users, has testified as an expert witness concerning CDS, and has been part of the Baltimore City Organized Crime Division Narcotics Investigation Section and Violent Crime Impact Team.

The affidavit then sets forth information about drug traffickers that the detectives “know[ ]” because of their “training, experience and participation in other investigations involving illegal CDS.” The detectives asserted their belief that drug traffickers often use assumed names, keep large amounts of cash on hand, maintain records relating to their trafficking, keep contraband and other related items in secure locations (such as their residences), use domestic banks and other financial devices to store their profits, maintain records of their associates, take and keep photographs of themselves and their possessions, use vehicles to move drugs and currency, and rent the vehicles they use for such activities.

Next, the affidavit asserts a variety of alleged facts that were “ either known to [the detectives] through personal observation or [had] been obtained through reliable confidential sources, law enforcement reports and/or directly from other law enforcement officers.” As these asserted facts are central to this case, we shall summarize them extensively:

• The police had been investigating drug trafficking in the Edmondson Village and Cherry Hill areas of Baltimore City, and “multiple confidential informants” advised the detectives that “Agurs and associates were upper level distributors supplying crack cocaine in and around these locations.”

• A confidential informant, referred to as “CI-2440,” had previously led the police to several drug arrests and seizures. Another confidential informant, referred to as “CI-3232,” had led the police to recover “approximately 2 ounces of suspected crack cocaine.”

• CI-2440 informed the police that “a male known as ‘G’ was supplying suspected crack cocaine in and around the area of Edmondson Village.” He informed the police that he did not personally know “G,” but that “G” was a Baltimore City employee who “was assisted by his ‘cousin’ ... ‘Dru.’ ” Based on a photo of Agurs, CI-2440 positively identified Agurs as “G.” Agurs was an employee in the Baltimore City Department of Public Works in the Sanitation Division.

• In March 2007, under police observation and direction, CI-3232 made two controlled purchases of suspected crack cocaine from Tillman, who was driving a burgundy 1999 Mercury Grand Marquis with tinted windows and Maryland tag number A128989. CI-3232 advised the police that Tillman was known as “Dru.”

• On or about March 27, 2007, the police followed Tillman as he drove around Cherry Hill in the same Grand Marquis for approximately two hours. They saw Tillman park in several areas, where people approached his car and entered the passenger side for about one minute each. The

people each left “ actively and cautiously looking around prior to quickly leaving the area.” Police followed Tillman into Edmondson Village, where Tillman parked and entered the rear door of 904 Mount Holly St.

• On or about March 30, 2007, the police saw Agurs leave 3 Six Point Ct. and enter a burgundy 2007 Ford F-150 with Maryland tag number 17T388, which he drove for approximately ten minutes while talking on a cell phone. Agurs

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