McDonald v. State

• Decision Date: 01 September 1995
• Docket Number: No. 99,99
• Citation: 347 Md. 452,701 A.2d 675
• Parties: David Frank McDONALD v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 452

347 Md. 452

701 A.2d 675

David Frank McDONALD v. STATE of Maryland.

No. 99, Sept. Term, 1995.

Court of Appeals of Maryland.

Oct. 20, 1997.

Nancy M. Cohen, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

Gary E. Bair, Asst. Atty. General (J. Joseph Curran, Jr., Atty. General, on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ^* and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RAKER, Judge.

In this appeal, we must decide whether the trial court erred in denying Appellant's motion to suppress evidence seized pursuant to a search and seizure warrant. Appellant maintains that the warrant was a defective anticipatory warrant, and was not supported by probable cause. Even if Appellant is correct that the warrant was flawed, or that it lacked probable cause, suppression of the evidence would not be an appropriate remedy in light of the principles set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We further conclude that the verdict was supported with sufficient evidence to convince a trier of fact of the Appellant's guilt beyond a reasonable doubt. Accordingly, we shall affirm.

I.

Appellant David McDonald was convicted of possession of a controlled dangerous substance with intent to distribute in violation of Maryland Code (1957, 1996 Repl.Vol., 1997 Supp.) Article 27, § 286(a)(1), ¹ and of possession of a controlled dangerous substance in violation of § 287(a). His conviction arose out of the following facts. During a random parcel check in San Diego, California, on March 8, 1994, James Davis, a United Parcel Service (UPS) prevention loss representative opened a package and found a large quantity of marijuana. The address on the package was 4403 Jupiter Street, Rockville, Maryland, and the addressee was James Master. The affidavit in support of the search warrant indicated that the return address on the package label was Phil Waters, 1222 Reed Street, San Diego, California 92109. UPS officials contacted Detective Ron Featherly of the San Diego Police Department, who arranged to have the package sent to the Maryland State Police. Upon receipt of the package, Trooper Christopher Tideberg of the Maryland State Police inspected the contents and found eight separate bundles of marijuana. The packaging and contents weighed approximately eighteen pounds.

After he inspected the contents of the package, Trooper Tideberg confirmed from the United States Postal Inspection Service in San Diego that the return address on the package was an actual address in San Diego, California. He then initiated a subscriber check with Bell Atlantic and the Potomac Electric Power Company, and identified the service subscribers for 4403 Jupiter Street as Joe Lopez and Philip D. Porter. A further check of the names Joe Lopez, Phillip D. Porter, and James Master through the Maryland Motor Vehicle Administration (MVA) and Maryland Criminal Justice Information System (CJIS) databases failed to reveal any information about these individuals.

The next day, Trooper Tideberg applied to a judge of the District Court of Maryland, sitting in Harford County, for a warrant to search 4403 Jupiter Street, Rockville, Montgomery County, Maryland. See Birchead v. State, 317 Md. 691, 699, 566 A.2d 488, 491-92 (1989) (holding that a District Court judge has "territorial jurisdiction" to issue a search warrant for execution in any county of the State). As the basis for probable cause to search the premises, Trooper Tideberg represented in the affidavit: 1) his experience in drug enforcement; 2) the facts relating to the discovery of the package and its transportation from the State of California to Maryland and 3) the substance of his investigation of 4403 Jupiter Street. ² He further stated in the affidavit:

The San Diego Police Department was advised by Corporal Welkner that the Maryland State Police Support Services Division Drug Interdiction Unit would attempt to conduct a controlled delivery of the package [to 4403 Jupiter Street].

The District Court judge issued the search and seizure warrant on March 11, 1994. The warrant authorized the police to search 4403 Jupiter Street and to seize items listed in Exhibit A attached to the warrant. ³ Neither the warrant nor the application for the warrant conditioned the execution of the warrant on a controlled delivery, nor does the record reflect that the police were directed to condition the execution of the warrant on a controlled delivery of the package.

Nonetheless, the police prepared to deliver the package to the residence at 4403 Jupiter Street before they executed the warrant. Troopers Tideberg and Hurley installed an electronic monitoring device into the package, designed to emit a signal when the package was opened. ⁴ The police conducted a fifteen- to twenty-minute surveillance of the residence before they attempted to deliver the package.

At 5:00 p.m. on March 11, 1994, Maryland State Police Trooper Roger W. Snyder, dressed as a UPS delivery person, attempted to deliver the package to 4403 Jupiter Street. No one answered the door. At 6:00 p.m., Trooper Snyder tried again. Appellant opened the door and accepted the package. He signed for the package, using the name Mickey Michaels, ⁵ and carried it inside the house.

Approximately one-half hour after the delivery, the police entered the house. In the hallway of the second floor, they discovered McDonald and Lopez in the process of opening the package. The police searched the residence. The warrant return stated that, among other things, the police seized documents, $780 in cash from a pair of trousers in a bedroom, rolling papers, a marijuana pipe, and the package containing the marijuana.

McDonald was indicted by the Grand Jury for Montgomery County for possession of a controlled dangerous substance with intent to distribute a controlled dangerous substance and possession of a controlled dangerous substance in violation of §§ 286(a)(1) and 287(a) respectively. He filed a motion to suppress the evidence seized under the warrant. The Circuit Court for Montgomery County held a hearing on September 16, 1994.

At the hearing, McDonald argued that a single package bearing the address of his residence was not alone sufficient to provide probable cause to issue the search warrant. He argued:

[The warrant] is overly broad. There is nothing else, there is no surveillance--or surveillance that indicates any drug trafficking. There is no prior history of any of the people.

They can't even determine who the people are who are living there.

He also argued that the warrant was defective as an anticipatory warrant ⁶ because its execution was not conditioned upon the completion of a controlled delivery. Because of this flaw in the warrant, McDonald argued, there was no probable cause to believe that contraband would be at the house at the time the police executed the warrant.

The State argued that the search warrant was not an anticipatory warrant, and that the police had probable cause to search 4403 Jupiter Street without a controlled delivery of the package. The State argued that police experience, the interception of the package, the large quantity of drugs contained in the package, and the fact that the package was sent to a fictitious addressee all provided a basis for probable cause. In the alternative, based on United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the State argued that the police relied on the warrant in "objective good faith," and under those circumstances, suppression of the evidence is inappropriate.

The circuit court denied the motion to suppress. The court found that the warrant was not an anticipatory warrant because probable cause "exist[ed] regardless of the delivery of the package." The court stated:

[I]t ... is apparent to the Court that the reliability and the expectation that the contingent event, that is the delivery of the package, was very high with the reviewing Judge.

[W]hat was required here was the delivery by an appropriate delivery person to the address in question to which the package had been addressed. This is contrasted to anticipatory events such as a controlled buy of a controlled dangerous substance, which may or may not take place, and there are many reasons why they may or may not be successful.

That is much different than simply what I consider the ministerial duty of delivering the package and thereafter executing the warrant.

The reviewing court also found that the warrant was not overbroad, reasoning that the application requested permission to seize only those items related to the drug trade. The court continued:

Here, by candid admission by the State, the State is in reliance only upon the training and experience of the police officer and not upon any objective indicia received by that officer or that trooper ... in advance of the application for the warrant.

* * * * * *

[This application] is a request for that kind of item [or] material which is commonly found in the drug milieu and particularly the milieu surrounding the use of marijuana, the Court finds that the Schedule A in connection with the application and affidavit is not overly broad.

That the items that are indicated there are legitimate items that relate to, or could relate to the exercise of drug trade which would be consistent with the delivery of and receipt of, by someone at the address, [of] a large quantity of marijuana.

Appellant was convicted by a jury on both counts in the indictment. He appealed his conviction to the Court of Special Appeals, and we granted a writ of certiorari on our own motion prior to consideration by that court.

II.

Appellant contends before this Court that the search warrant in this case was an anticipatory warrant and was per se unconstitutional under the Fourth and Fourteenth Amendments to the United States Constitution. He also...