State v. Johnson
Decision Date | 30 November 2012 |
Docket Number | No. 0782,Sept. Term, 2012.,0782 |
Citation | 56 A.3d 830,208 Md.App. 573 |
Parties | STATE of Maryland v. Andre JOHNSON. |
Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Carrie J. Williams (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellant.
Marc A. DeSimone, Jr. (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellee.
Panel: DEBORAH S. EYLER, WRIGHT, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.
It is exceedingly difficult for a reviewing judge to be less than demanding. It somehow cuts against the judicial grain to accept that a conclusion one can prove ineluctably to be imperfect may nonetheless be adequate. Possessing such a talent, however, is a core value of the reviewing process.
We described in State v. Amerman, 84 Md.App. 461, 463, 581 A.2d 19 (1990), the tightly confined standard that constrains a suppression hearing judge when reviewing the earlier decision of another judge to issue a search and seizure warrant based on that first judge's finding of probable cause:
The controlling principle dictating this reversal of a suppression order is that when a judge, either at a pretrial suppression hearing or at trial, sits in review of another judge's earlier determination that probable cause existed to issue a search and seizure warrant (or an arrest warrant), the reviewing judge sits in an appellate-like capacity with all of the attendant appellate constraints.
(Emphasis supplied).
The appellee, Andre Johnson, was charged with two counts of possession of narcotic drugs with the intent to distribute. He moved pre-trial in the Circuit Court for Baltimore County to have suppressed physical evidence that had been seized in a warranted search of his residence. Following a suppression hearing on May 25, 2012, the court ruled that the search warrant was not supported by probable cause and that the evidence would, therefore, be suppressed. The State filed a notice of appeal from that ruling pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12–302(c). That subsection provides that the “appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court.” The record in this case was filed on August 13, 2012. Accordingly, our decision must be rendered no later than December 11, 2012.
The relationship between a suppression hearing judge and the determination of probable cause can be a tricky one. It shifts dramatically in moving from the warrantless setting to the very different setting wherein a judicially issued warrant is involved. The reviewing judge must shift gears accordingly. In the warrantless situation, the judge is the ultimate fact finder, determining the existence or absence of probable cause. Where a judicially issued warrant is being reviewed, by contrast, the suppression hearing judge enjoys no such freewheeling latitude. As we announced at the top of this opinion, the suppression judge, in that reviewing posture, “sits in an appellate-like capacity with all of the attendant appellate constraints.”
Under those “attendant appellate constraints,” the suppression hearing judge may well be called upon to uphold the warrant-issuing judge for having had a substantial basis for issuing a warrant even if the suppression hearing judge himself would not have found probable cause from the same set of circumstances. In State v. Amerman, 84 Md.App. at 464, 581 A.2d 19, we stressed the difference between those conclusions of the suppression hearing judge that are material and those other conclusions by the same judge that are, in a given review posture, utterly immaterial:
Under the circumstances, it is perfectly logical and not at all unexpected that a suppression hearing judge might say, There is a Voltairean echo, “I may disagree with what you decide but I will defend with my ruling your right to decide it.”
(Emphasis supplied).
In the context of a warrantless search, the suppression hearing judge focuses directly on the existence of probable cause. The focus comes naturally for it is the type of first-level call that a trial judge habitually makes on a daily basis. In the very different world of reviewing someone else's warrant, by contrast, the suppression hearing judge must focus on the less familiar issue of whether the warrant-issuing judge was or was not in legal error. That is a second-level call, and a totally different type of decision. The validity of the warrant, needing only a “substantial basis” (regularly described as something less than probable cause), does not necessarily depend on the solidly established existence of probable cause. The law's preference for police resort to judicially issued warrants is so hydraulically powerful that the courts, by way of the practical endorsement of that preference, will uphold a warrant even should the warrant-issuing judge have been technically wrong in the assessment of probable cause.
Where one comes out on a given proposition is a function of where one goes in. The answer is controlled by the precise question that is asked. In looking at a set of facts, is the judge being asked to determine probable cause or is the judge being asked to review another judge's ruling in that regard? In trying to make this critical distinction as perspicuous as possible, we gave in Amerman, 84 Md.App. at 464 n. 2, 581 A.2d 19, the unusual but theoretically possible example of how the difference in standards could operate:
The same discipline could, indeed, constrain a suppression hearing judge even when reviewing his own earlier issuance of a warrant, Trussell v. State, 67 Md.App. 23, 25–29, 506 A.2d 255 (1986), cert. denied,306 Md. 514, 510 A.2d 260 (1986).
(Emphasis supplied).
In the case before us, the flaw in the suppression hearing judge's analysis became clear in the opening sentence of his announcement of his decision:
I do give deference to the issuing judge. That being the case, the standard still is whether there is probable cause for the warrant to issue.
(Emphasis supplied). After a thorough-going analysis of the immaterial probable cause issue, his conclusion made his use of the erroneous standard of review unmistakable:
Thus, I do not find that there was probable cause for the issuance of the warrant for the reviewing judge to issue that warrant.
(Emphasis supplied). This is indisputably a case wherein the wrong standard was applied. It is precisely the flaw that was before this Court in State v. Jenkins, 178 Md.App. 156, 162, 941 A.2d 517 (2008):
[T]he suppression hearing court determined that the warrant was invalid because the warrant application had failed to establish probable cause. Our reversal of the suppression order is based, in part, on our conclusion that the suppression court evaluated the wrong predicate and applied, therefore, the wrong standard of judicial review. We find that the suppression court made a direct ruling on the sufficiency of the warrant application itself, as if it were being called upon to issue the warrant, instead of conducting a more deferential appraisal of another judge's earlier ruling on that subject, to wit, on [the warrant-issuingjudge]'s decision to issue the warrant. The direct focus was on the warrant itself rather than on the distinct question of whether [the warrant-issuing judge] had some substantial basis for issuing the warrant.
(Emphasis supplied).
The suppression hearing judge's resort to the probable cause standard rather than to the substantial basis standard was not, as the appellee blithely dismisses it, a mere insignificant slip of the tongue. It was the critical employment of a wrong standard, a mistake readily capable of producing a dispositively different result.
The ambit of our review, precisely the same as the suppression hearing judge's review, is bounded by the four corners of the warrant application. The question before us is not whether probable cause existed that evidence would be found in the residence to be searched but whether the judge who issued the search warrant had a “substantial basis” for so finding. Clearly there was such a substantial basis.
The warrant application consisted of five single-spaced typed pages. The application recounted, in far more elaborate detail, the following evidence. On December 4, 2010, as the culmination of an extended incident of road rage on the Baltimore beltway, the driver of a gold-colored Ford Taurus, displaying Maryland registration plates 5FMY72, pulled a black handgun from his waistband and fired two or three shots in the general direction of the victim, who was driving a van. As the victim called 911 and reported the incident, the Ford Taurus fled out of sight.
A check of the tag number established that the vehicle was registered to the appellee and that his address was 64 Handworth Way in Parkville. A Baltimore County police surveillance at that address spotted the suspect vehicle, driven by one Tavon Jamal Frisby as its sole occupant, arrive at the residence approximately seven hours after the shooting. Frisby was arrested. Frisby also listed his address as 64 Handworth Way. The Ford Taurus was searched and no handgun was found. The vehicle appeared to have been thoroughly cleaned. The victim was brought to the scene and he identified Frisby...
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