State v. Carroll

• Decision Date: 21 October 2004
• Docket Number: No. 25,25
• Citation: 383 Md. 438,859 A.2d 1138
• Parties: STATE of Maryland v. Kevin Powers CARROLL.
• Court: Maryland Court of Appeals

859 A.2d 1138

383 Md. 438

STATE of Maryland v. Kevin Powers CARROLL.

No. 25, Sept. Term, 2003.

Court of Appeals of Maryland.

October 21, 2004.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for Petitioner.

Brian J. Murphy, Baltimore, for Respondent.

Argued before BELL, C.J., ELDRIDGE,¹ RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BELL, Chief Judge.

In Carroll v. State, 149 Md.App. 598, 817 A.2d 927 (2003), the Court of Special Appeals held that the failure of police officers in that case to knock-and-announce their presence prior to executing a search and seizure warrant was unreasonable. We granted the State's petition for a writ of certiorari, State v. Carroll, 374 Md. 582, 824 A.2d 58 (2003), to decide the correctness of that ruling.

The respondent, Kevin Powers Carroll, was arrested and charged with possessing a regulated firearm after having been convicted of a "felony crime of violence," as proscribed by Md.Code (1957, 1996 Repl. Vol.), Article 27, § 445(d)(1), presently codified at Md.Code (2003), § 5-133(c)(1) of the Public Safety Article, and possession of marijuana and drug paraphernalia. The evidence that formed the basis for the charges was obtained as a result of a search of the respondent's Columbia, Maryland home, pursuant to a search and seizure warrant issued by a judge of the District Court of Maryland, sitting in Howard County. In support of the search and seizure warrant, the applicant, Officer Verderaime, submitted an affidavit containing the following information:

"Within the past seventy-two (72) hours your affiant ... was contacted by a known and reliable source. This source wished to provide your affiant with information regarding a person possessing marijuana and as well as illegally possessing several handguns.

"The source stated to your affiant that within the aforementioned time period the source was inside the residence of 5738 Margrave Mews, Columbia, Howard County, Maryland. The source continued that Kevin Carroll lives at said residence. The source observed inside of Carroll's residence and in Carroll's possession five handguns. The source described the handguns as one Ruger, one .45 cal, one 9mm and two 380 semi-automatics. In addition, the source observed Carroll in possession of a quantity of marijuana. The source described Carroll as a white male, 5-10" tall, 180 pounds, brown hair, and approximately 23 years old. Moreover, the source directed your affiant to Carroll's house and pointed Carroll out to your affiant.

"Your affiant ... says that this source is reliable based on information and active cooperation by this source in other investigation [sic]....

"The source has a basis of knowledge regarding handguns. The source explained to your affiant the difference between a revolver and a semi-automatic handgun.

* * * *

"Your affiant ... caused the records of the Howard County Police Department Central Records to be checked for Kevin Carroll. These records indicate that Kevin Carroll is a white male 5-10 tall, 170 pounds, brown hair and with a date of birth of 11-26-1978; and residing at 5738 Margrave Mews, Columbia, Howard County, Maryland.

"Your affiant ... caused the official records of the Maryland Justice Information System Data Base to be checked on any criminal convictions on Kevin Powers Carroll with a date of birth of 11-26-1978. The official records indicated that in the year on [sic] 1999 Kevin Carroll was convicted of third degree felony burglary and given a sentence of five years of which five years was [sic] suspended."

The affiant did not request permission from the warrant issuing judge for the police to enter the premises to be searched without knocking and announcing their presence; he did not ask, in other words, that a clause be included in the warrant authorizing a "no-knock" entry.²

After the warrant was issued, the affiant sought the assistance of the Tactical Section of the Howard County Police Department in executing it. The Tactical Section often assisted with the execution of warrants when there were concerns for officer safety. Sergeant Merritt Bender, the head of the Tactical Section, consistent with the practice of the Section, conducted an investigation of the respondent's criminal history, to determine whether Carroll had previously been arrested or convicted of a violent crime or a crime using a weapon. As a result, he learned that the respondent had been convicted of third-degree burglary in 1999 and that he had prior arrests for possession of marijuana and robbery. Also as usual, Sergeant Bender investigated the location to be searched, including determining who occupied and frequented that location. With respect to this investigation, he learned from the affiant that the respondent was reputed to associate with an individual, Gregory Daniel Price, with whom Bender was familiar. Price, who had prior arrests for first degree assault, a number of robberies and CDS offenses, was believed to be carrying a handgun.

Notwithstanding that there had been no request for a "no-knock" warrant, and thus, the warrant did not authorize entry without knocking and announcing, Sergeant Bender concluded that knocking and announcing before entry potentially would expose the officers to the danger of significant harm. This conclusion was based on the respondent's criminal background, his known association with an individual with a history of violent crime, Sergeant Bender's experience in executing between five and six hundred search warrants and consultations with his Captain, the affiant's Captain and the Howard County State's Attorney.

The respondent moved, prior to trial, to suppress the evidence seized during the search. The Circuit Court for Howard County denied that motion. Pointing to the affidavit in support of the warrant, the court concluded that the "information at Sergeant Bender's disposal was of sufficient substance and reliability to rise to the level of reasonable suspicion based on particularized facts." It explained:

"Here, Sergeant Bender knew that Defendant, previously convicted of third degree burglary, was in possession of firearms and drugs, had a previous arrest for robbery (a crime of violence), and associated with individuals with extensive criminal records, including crimes of violence. The Court is convinced that Sergeant Bender had a reasonable suspicion of danger sufficient to allow the Howard County Police officers to enter the house without a knock."

The Court of Special Appeals reversed. It held that the "no-knock" entry was invalid where the police "purposely did not seek a `no-knock' warrant," Carroll, 149 Md.App. at 602, 817 A.2d at 929, and, at the time of the entry, the information known to the police was the same as that which they had when they applied for the warrant. Id. at 611-13, 817 A.2d at 935-36.

In this Court, the State argues that the Court of Special Appeals "erred in finding that the no-knock entry was unreasonable, and in creating a rule that a [`]no-knock['] entry is reasonable only if authorized by the warrant itself, unless the exigency arises between the time the search warrant is issued and served." It maintains, moreover, that there is no basis for a rule requiring that magistrate approval of a "no-knock" entry must be obtained at the time the warrant is issued, unless the facts establishing the exigency warranting a "no-knock" entry arise after the officer applies for, and obtains, the search and seizure warrant. The State argues, in any event, that the facts known to the officers at the time of their entry justified a "no-knock" entry.

The respondent does not agree. He disputes the State's contention that the Court of Special Appeals announced a new rule, that "no-knock" entries are inappropriate when police officers do not seek a "no-knock" warrant and the circumstances pertinent to the execution of the warrant do not change between the issuance of the warrant and its execution. As the respondent sees it, the intermediate appellate court simply announced a preference for "no-knock" warrants and, thus, for a neutral magistrate to conduct a pre-entry review of all facts bearing on the mode of entry, and disapproved of the way the officers, in this case, circumvented this preferred procedure. The respondent submits that the intermediate appellate court, fully cognizant of the facts known to the officers, made an independent determination that the "no-knock" entry, in this case, was not based upon sufficient particularized facts, as required by Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) and Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).

I.

When we consider the propriety of the denial of a motion to suppress under Maryland Rule 4-252, we review only the record of the suppression hearing. Rowe v. State, 363 Md. 424, 431, 769 A.2d 879, 883 (2001). See also Gamble v. State, 318 Md. 120, 125, 567 A.2d 95, 98 (1989); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749, 755 (1987). In conducting that review, we give great deference to the hearing judge's credibility determinations and first-level fact-finding. Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999); Dashiell v. State, 374 Md. 85, 93, 821 A.2d 372, 377 (2003). When, there is conflicting evidence, we are to consider it in the light most favorable to the State, Rowe, 363 Md. at 432,769 A.2d at 883, we accept the facts as found by the hearing judge unless those findings are clearly erroneous. Dashiell, 374 Md. at 93,821 A.2d at 377; McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430, 435 (1992); Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990). Legal conclusions, however, are reviewed "de novo." Rowe, 363 Md. at 432,769 A.2d at 883; Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519, 525; Ferris, 355 Md. at 368,735 A.2d at 497. Stated differently, we must make our own independent...