State v. Amerman

• Decision Date: 01 September 1990
• Docket Number: 716,Nos. 715,s. 715
• Citation: 84 Md.App. 461,581 A.2d 19
• Parties: STATE of Maryland v. Jennifer Ann AMERMAN. STATE of Maryland v. Quentin David MADDOX. ,
• Court: Court of Special Appeals of Maryland

Page 461

84 Md.App. 461

581 A.2d 19

STATE of Maryland v. Jennifer Ann AMERMAN.

STATE of Maryland v. Quentin David MADDOX.

Nos. 715, 716, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Oct. 30, 1990.

Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen., on the brief), Baltimore, for appellant.

Michael D. Steinhardt (Forman & Steinhardt, P.A., on the brief), Glen Burnie, for Jennifer Ann Amerman.

Keith Krissoff (Krohn & Krissoff, P.A., on the brief), Annapolis, for Quentin David Maddox.

Argued before MOYLAN, ROSALYN B. BELL and KARWACKI, JJ.

MOYLAN, Judge.

The Theme

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. Although he may ordinarily be accustomed to assessing probable cause as a matter of fact, he is in this less characteristic role called upon to assess it as a matter of law. The issue is no longer the familiar one of whether probable cause exists; that has already been determined by someone else. The distinct issue, at the reviewing level, is whether that earlier decision now being reviewed was or was not legally in error.

Probable cause does not suddenly spring to life at some fixed point along the probability continuum. It may arise at any number of points within a band of not insignificant width. Within that range of legitimate possibilities, the determination is as much an art form as a mathematical exercise and relies necessarily upon the eye of the beholder. One judge may give a circumstance great weight; another may give it slight weight; each is entitled to weigh for himself and neither will be legally wrong in so doing. Within proper limits, one judge may choose to draw a reasonable inference; another may as readily decline the inference; each will be correct and each is entitled, therefore, to the endorsement of a reviewing colleague. A permitted inference, after all, is not a compelled inference. ¹

Under the circumstances, it is perfectly logical and not at all unexpected that a suppression hearing judge might say, "I myself would not find probable cause from these circumstances; but that is immaterial. I cannot say that the warrant-issuing judge who did find probable cause from them lacked a substantial basis to do so; and that is material." There is a Voltairean echo, "I may disagree with what you decide but I will defend with my ruling your right to decide it." ²

In referring to a closely analogous constraint on appellate review, we analyzed in Danz v. Schafer, 47 Md.App. at 59, 422 A.2d 1, the critical distinction between 1) de novo fact finding and 2) reviewing the fact finding of the trial judge. Because the evidence in that case had been undisputed, we were urged to subject it to our own de novo fact finding. We declined to do so, except hypothetically, and pointed out how very different the result can be when employing the more restrained standard of review:

"This Court has considered such an interesting, albeit unusual, possibility. We have put our heads together as fact finders and agreed that if we were looking de novo at the undisputed but ambiguous factual predicate here, we would give greater significance than did Judge DeWaters to the events that occurred after September 30, 1974. On the basis largely of that hindsight, we would infer that the original intent of Mrs. Winters had been to make a loan. Let it be unmistakably clear, however, that this does not remotely suggest that we think Judge DeWaters was wrong, let alone clearly wrong. It is no more the case that he is wrong and we are right than that we are wrong and he is right. The very nature of the fact-finding process is such that there is a range for divergent but equally legitimate conclusions, none of which [is] wrong. We cannot say, as a matter of law, that our finding of an intention to make a loan is compelled by clear and decisive evidence that permits no other conclusion. We simply aver that in a close case that could reasonably tilt either way, our personal and idiosyncratic tilt is in one direction. We would defend vigorously, however, the legitimate prerogative of others reasonably to tilt in a different direction." (Footnote omitted).

The Case

On January 16, 1990, Judge Eugene M. Lerner, in the Circuit Court for Anne Arundel County, issued a search warrant 1) for 290 Cape St. John Road, 2) for a specifically described 1981 Mercedes owned by Quentin Maddox and 3) for a specifically described 1987 Nissan truck also owned by Quentin Maddox. The warrant was executed on January 18. The police recovered 19 bags of marijuana weighing 12 pounds, slightly in excess of $8,000 from three separate locations, other smaller quantities of marijuana and hashish, a triple-beam balance scale, tally sheets, notebooks and receipts, a large number of pipes and other smoking devices for controlled dangerous substances, and two separate telephone answering machines with tapes. They arrested and indicted Quentin Maddox and Jennifer Amerman, both of whom were present in the house at the time of the search.

After they had been indicted, both Maddox and Amerman, the appellees in these two appeals now consolidated for consideration, moved pretrial to suppress the evidence. The suppression hearing judge in the Circuit Court for Anne Arundel County granted their motions. The State has taken an immediate appeal from these pretrial suppression orders under the provisions of Md.Cts. & Jud.Proc.Code Ann. § 12-302(c)(3) (1989).

The suppression hearing took place in two stages. Initially, the hearing judge read the warrant application that had been submitted to Judge Lerner. After entertaining argument by counsel, he ruled that the application did not establish probable cause for the issuance of the warrant.

In the second stage of the hearing, the State sought to ward off suppression on the ground that the officers, by obtaining the warrant, thereby qualified for the "good faith" exception. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), rehearing denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). On that issue, testimony was taken from Detective John Brown, who had been the affiant and applicant for the warrant. ³ The hearing judge also ruled against the State on the issue of good faith.

Because of our belief that there was no flaw in the warrant in the first instance, the State's alternative contention dealing with good faith is moot.

The Standard of Review

The hearing judge's ruling on the warrant covered a page and a half of transcript, and we will examine its reasoning item by item. It did not articulate the standard of review being employed and therein probably lies its fatal flaw. Although implicit rather than explicit, it is apparent that the suppression hearing judge undertook a de novo assessment of the probable cause. Instead of examining whether Judge Lerner had operated within the bounds of his legitimate discretion in issuing the warrant, the hearing judge was looking at the warrant application itself as if of first impression. It is important at the outset, therefore, to state the appropriate standard of review when either a trial court or an appellate court scrutinizes some other judge's decision to issue a warrant.

Whatever lingering doubt may have existed prior to 1983 about the standard of review to be applied to a magistrate's determination to issue a warrant, that doubt was resolved by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), rehearing denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). Consistently and repeatedly, the object of the review was stated to be the magistrate's decision. In appealing the magistrate's decision, reviewing courts at all levels were admonished to remember that:

"Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a 'practical, nontechnical conception.' Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). 'In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' "

462 U.S. at 231, 103 S.Ct. at 2328. The practical and nontechnical nature of probable cause was reconfirmed, at 462 U.S. at 231-232, 103 S.Ct. at 2328-2329:

"Our observation in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981), regarding 'particularized suspicion,' is also applicable to the probable-cause standard:

'The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.' "

The Supreme Court concluded its examination of the nature of probable cause, at 462 U.S. at 232, 103 S.Ct. at 2329:

"[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules."

The Illinois v. Gates command was then clear that reviewing courts shall not presume to assess probable cause de novo but shall instead extend "great deference" to the prior determination of the magistrate on...