Eusebio v. State, No. 3278

CourtMaryland Court of Special Appeals
Writing for the CourtOpinion by Kehoe, J.
Decision Date02 March 2020
Docket NumberNo. 3278


No. 3278


September Term, 2018
March 2, 2020


A warrant's authorization to search must be limited to the specific areas and things for which there is probable cause to search, and the description of the limited places to be searched must be definite enough to prevent unauthorized and unnecessary invasions. These related requirements—limitedness and definiteness—ensure that a warranted search is carefully tailored to its justifications and cannot lawfully devolve into the wide-ranging exploratory searches the Framers intended to prohibit.

The particularity requirement will not be offended just because the command portion of a warrant reaches further than intended by the officer who drafted it or the judge who signed it. The requirement is not a bar on warrants for the search of two or more places, as long as probable cause exists for each one independently.


When police execute a search warrant, the Fourth Amendment confines them strictly within the bounds set by the warrant. But in determining where those boundaries lie, we read the language of warrants in context and with the understanding that, although they are legal documents, warrants are drafted by police officers, not legal linguists. Warrants are meant to preclude officers from conducting fishing expeditions into the private affairs of others, but they are not intended to impose a constitutional strait jacket on police.


Based on a balancing of the relevant interests, a warrantless seizure of a car to facilitate the warranted search of the same is reasonable under the Fourth Amendment. The state's need to seize a car to perform a warranted search of it is obvious, as police cannot search a car in motion. On the other hand, because police have already gotten a warrant to search the car, its owner's privacy interests have been sufficiently protected by the Fourth Amendment. And the effect of the seizure on the driver's liberty interests is de minimis, as he or she is precluded from using the car only for the duration of the search.

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Warrant provisions that authorize the search of all persons present at some site certain do not offend the Fourth Amendment, so long as the issuing judge determines there is probable cause to believe anyone present at the anticipated scene will be a participant. Physical presence—and not names, eye color or height—becomes the descriptive fact satisfying the Fourth Amendment's particularity clause.

Warrant provisions that command the search of all persons present who may be participating in the criminal conduct investigated, or who may be concealing evidence thereof, also do not offend the Fourth Amendment. But this is because they are inoperative. The judge who issues a command to search all present participants leaves it to the executing officers to select the persons to be searched, on the basis of the information the officers have while executing the warrant. These searches cannot be justified on the basis of the warrant, because there was no prior judicial determination of probable cause. Police who search someone on the basis of an all-present-participants provision may as well have no warrant at all; they must identify some other grounds to uphold the legality of the search.

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Circuit Court for Cecil County
Case No.


Kehoe, Nazarian, Arthur, JJ.

Opinion by Kehoe, J.

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After the Circuit Court for Cecil County, the Honorable William W. Davis, presiding, denied his motion to suppress 50.2 grams of suspected heroin, appellant Alvin Eusebio entered a conditional guilty plea to one count of possession of heroin with intent to distribute. He was sentenced to five years' incarceration, with all but six months suspended, and three years of supervised probation. In his brief, Eusebio presents three questions, which we have consolidated:

Did the suppression court err in denying Eusebio's motion to suppress the drug evidence found in a police search of his person?1

We conclude the circuit court did not err in denying the motion. Explaining why requires us to examine a rare bird in the ornithology of Maryland's constitutional criminal law: the search of a motor vehicle pursuant to a warrant.2 It also gives us an opportunity to

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consider the proper scope of a warrant that authorizes the search of a person who happens to be present upon execution of the warrant and who may be a participant in the underlying criminal enterprise.3

The search warrant at the heart of this case authorized police to search a suspected drug dealer, his car, "and other person/s found in or upon said premises who may be participating in [the drug-distribution scheme], and who may be concealing evidence, paraphernalia, and/or Controlled Dangerous Substances." When they executed the warrant, the police searched Alvin Eusebio, a passenger in the dealer's car when it was stopped by the police. At a subsequent suppression hearing, the prosecutor took the position that the warrant gave the police an absolute right to search Eusebio simply because he "may" have been a participant in the crime. "Probable cause has nothing to do with" the validity of Eusebio's search, she said.

The prosecutor's view that the police could conduct the search of a person without probable cause is problematic. As we will explain, a determination of probable cause, whether made by a judge in issuing a warrant or later made by a police officer on the scene, is an essential prerequisite to an unconsented-to exploratory search. The notion that, because police had a warrant, probable cause "has nothing to do with" police authority to search a person is not, has never been, and—barring a tectonic change in the Supreme Court's Fourth Amendment jurisprudence—will never be the law.

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The investigation and the warrants

In August 2018, Detective Charles Travis of the Cecil County Drug Task Force witnessed a suspected drug deal in the parking lot of an Elkton gas station. Over the next six weeks, Travis kept tabs on the suspected dealer, Reginald McClure, tracking his whereabouts by in-person surveillance and by an electronic GPS tracker installed on McClure's car pursuant to a court order. During that time, Travis and other members of the Cecil County Drug Task Force witnessed many more suspicious parking-lot transactions. They also tracked McClure's black Infiniti as it made several trips to New York City, staying each time less than an hour before driving back home to Elkton.

On September 17, 2018, Travis applied for two search-and-seizure warrants. In his affidavit in support of that application, Travis recounted in detail what he and other members of the task force had witnessed over the course of their six-week investigation. The affidavit also included more general information about Travis's experience and training, and it outlined some commonalities between what police had theretofore observed in their investigation of McClure and what Travis had seen in prior drug-trafficking investigations. For example, Travis explained that traffickers often "front" controlled dangerous substances to their customers and maintain books and records to keep track of the debts owed to them; that these records and the controlled substances are often found inside the homes and cars of the traffickers; and that people with a history of drug distribution (like McClure) travel to "[s]ource [c]ities" like New York and Philadelphia, staying there "less time than it takes to travel there" (like McClure) "to purchase controlled

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dangerous substances." On the basis of all of this information, Travis averred that there was:

probable cause to believe the laws relating to the illegal Manufacturing, Distribution, Possession with intent to Distribute and Possession of controlled dangerous substances as defined in Sections 5-601 through 5-619 of the Maryland Criminal Law Article are being violated in and upon certain premises, vehicles and persons as described below:

1) Reginald Auther [sic] McClure. . .

2) Black 2009 Infiniti, bearing Maryland registration 3DJ2997, VIN: JNKAY01F97M462462

3) 3504 Spanish Bay Ct, Elkton, Maryland, Cecil County 21921 [detailed description of the residence omitted].

The judge who reviewed Travis's application issued two separate warrants. The caption on the first warrant identified McClure's townhouse apartment at 3504 Spanish Bay Court, Elkton, MD 21921. The caption on the second warrant identified McClure's car by its owner (McClure), its make, year and color ("Black 2009 Infiniti"), as well as its Maryland license-plate number and its vehicle identification number. In all other respects, except for the time of the authorizing judge's signature, the warrants were identical. Both listed the same suspected criminal violations and incorporated by reference the warrant application and Travis's affidavit, which set forth "[t]he grounds for search and the basis for probable cause." The command portions of both warrants were also identical, authorizing police to do, among other things, the following (emphasis added):

Enter, and search the residence, chattels, and, out buildings on the curtilage as completely described above;

Search the person of Reginald Auther [sic] McClure . . ., and other person/s found in or upon said premises who may be participating in

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violations of the statutes before cited, and who may be concealing evidence, paraphernalia, and/or Controlled Dangerous Substances;

Open and search any safes, boxes, bags luggage, compartments, or things in the nature thereof, found in or upon said residence, chattels and, which may contain controlled dangerous substances and paraphernalia.

Seize all controlled

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