State v. Greenstreet

• Decision Date: 13 May 2005
• Docket Number: No. 2105,2105
• Citation: 875 A.2d 177,162 Md. App. 418
• Parties: STATE of Maryland v. Robert E. GREENSTREET.
• Court: Court of Special Appeals of Maryland

875 A.2d 177

162 Md. App. 418

STATE of Maryland v. Robert E. GREENSTREET.

No. 2105, September Term, 2004.

Court of Special Appeals of Maryland.

May 13, 2005.

Devy Patterson Russell (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellant.

Laura M. Robinson (Lessans, Praley & McCormick, on brief), Glen Burnie, for appellee.

Panel SHARER, MEREDITH, LAWRENCE F. RODOWSKY (retired, specially assigned), JJ.

RODOWSKY, J.

"The existence of grounds showing probable cause [for the issuance of a search warrant] must ordinarily be shown within the four corners of the affidavit." Valdez v. State, 300 Md. 160, 168, 476 A.2d 1162, 1166 (1984). The question presented here is whether the "four corners" rule is so restrictive that it requires the reviewing court to accept a clerical error in the affidavit as fact, particularly when the error is apparent on the face of the affidavit. As explained below, we shall hold that the four corners rule is not so restrictive.

On April 15, 2004, Officer Gregory P. Huck, an eleven year veteran of the Anne Arundel County Police Department, with six years experience in the investigation of controlled dangerous substances violations, applied to a judge of the District Court of Maryland, sitting in Anne Arundel County, for the search warrant that is the subject of this appeal. His affidavit, taken that day by the judge, reads in part as follows:

"4.) In Support of the attached application for a Search and Seizure Warrant, the affiant(s) depose(s) and say(s) that the probable cause for the Search and Seizure is as follows:

"Within the past month, your Affiant, Officer Greg Huck # 1067, received information from several citizens complaints regarding possible CDS activity occurring at the residence of 8472 Meadow Lane, Pasadena, Anne Arundel County, Maryland. The complaints advised that there is a large amount of vehicle and foot traffic visiting the residence and that the vehicles sometimes stay for short periods and the[n] leave the area. I am aware that this type of activity is often indicative of CDS sales activity. The complaints also advised that the house often hosts disorderly parties, which disturb the neighborhood.

"On 4-14-03 Cpl. Thomas Newman # 728 and I conducted a trash seizure of 8472 Meadow Lane, Anne Arundel County, Maryland 21122. I was aware that trash collection days for the residence are Wednesday and Saturday. We successfully seized 6 bags of trash from the residence. The bags were located on the ground and in a trash can placed at the edge of the roadway in front of the residence. The trash was placed in such a manner that would indicate that it was left for the trash removal company. All the other residences in the area had their trash placed out in a similar manner that would indicate that it was abandoned property. We placed the trash in the back of a department vehicle and transported the refuse back to Eastern District Station. Upon opening the trash bags I recovered the following items from inside the trash bags.

"1. Seven (gallon size) Ziploc freezer bags containing greenish-brown plant residue.

"2. Five (sandwich size) plastic bags containing greenish-brown plant substance.

"3. Large Rival heat seal bag containing greenish-brown plant residue.

"4. Loose greenish-brown plant substance (approx. 1.55g)

"5. Cellophane wrapper containing white powder residue."

The residue in items 1 and 4 field tested positive for marijuana and the residue in item 5 field tested positive for cocaine. Also recovered were a bill and financial institution statements addressed to the appellant, Robert E. Greenstreet (Greenstreet), at that location.¹

Officer Huck's affidavit then stated that he had conducted surveillance at the subject premises and had observed two automobiles "consistently" parked there. One was registered to a Sharlie Greenstreet. That vehicle had been stopped "within the past 6 months" while being driven by a person identified as Robert Greenstreet.

The search warrant was executed on April 15, 2004, at 21:50 hours, and the police seized, inter alia, 181.2 grams of marijuana. Greenstreet was arrested and prosecuted in the Circuit Court for Anne Arundel County.

Greenstreet moved to suppress the items seized under the warrant, contending that there was no probable cause because the information on which the warrant was based was stale.² Appellee's argument rests entirely on the date, "4-14-03," stated in the typewritten affidavit to be the date on which the affiant and a police colleague obtained abandoned trash outside of 8472 Meadow Lane. That date is one year and one day prior to the application for the subject warrant. In preparation for responding to that argument, the State issued a subpoena for Officer Huck, but it was not served. He was unable to comply with the prosecutor's telephone request, on the day of the hearing, that he appear because he was babysitting his child at home and could not make other arrangements on short notice. At the suppression hearing the court and the parties undertook to proceed as far as they could go. This resulted in an argument on the law.

The State took the position that the affidavit contained a typographical error in that the year in which the "trash trip" was conducted was '04 and not '03. The prosecutor told the court, "[M]y proffer straight from the Officer's mouth is that he would testify it was a typo." From that anticipated evidence, the State argued that the officer acted in good faith, so that the court should apply the good faith exception to the exclusionary rule and deny Greenstreet's motion. The prosecutor submitted that "the typo would not invalidate the warrant as it relates to the good faith exception," because the purpose of the exclusionary rule is "to punish misconduct of police officers and not typos." In reply, Greenstreet asserted that, under the four corners rule, the affiant could not testify at all, even to the extent of explaining that the date was mistakenly typed as "03."³

The suppression court's initial reaction to the arguments presented by counsel is reflected in the passage set forth below.

"THE COURT: But surely there must be cases on typos in search warrants.

"[DEFENSE COUNSEL]: I don't know. I don't think it's a typo because I am in possession —.

"THE COURT: No. No. But I am saying if that is the State's position there must be cases that say you can go beyond the four corners."

When the defense argued that there was nothing indicating that the affidavit contained a "typo," the court replied:

"Well that is what I am saying. But there has to, I am sure there are cases somewhere that talks about situations like this. And I don't know whether it's the State's burden to call a witness immediately and say oh, my goodness, Judge, I am so sorry. It's April of '04 as opposed to '03."

Later, the court said to the prosecutor, "Wait a minute. So I just want to be sure. So you could not find any scenario where the officer goes to a state's attorney and says it's a typo. Put me under oath I will swear that it's a typo. As far as the search warrant is concerned." Near the conclusion of the hearing, the court again declared, "Well I am shocked that the two of you haven't found any —," at which point defense counsel interrupted to state that he did not have any cases indicating that the affiant could testify.

The court instructed counsel to file memoranda, following the consideration of which the court would determine how the case would proceed. The original record contains a memorandum by the State, which added little, if anything, beyond the oral argument. Any memorandum filed by Greenstreet is not in the file.⁴

For the reasons stated in a written opinion, the circuit court suppressed the evidence seized under the warrant. Reasoning that the issuing court was "confined to the averments contained in the search warrant application," the court concluded that a suppression hearing "should not involve the taking of any evidence other than the submission of the warrant itself, including its application." The court held that its "consideration of the showing of probable cause should be confined solely to the affidavit itself, and the truth of the alleged grounds stated in the affidavit cannot be controverted by receiving the testimony of the accused and other witnesses." The "only exception to the `four corners rule,'" the court stated, was under Franks v. Delaware, supra, and that is applied only to an accused who, the circuit court said, "makes a threshold showing that a governmental affiant has perjured himself on a material matter."

The circuit court cited numerous decisions, but none of them involved a contention by the prosecuting authority that a search warrant affidavit contained a clerical error. Applying the confines that it had articulated, the suppression court accepted the 4-14-03 date as fact, found that the trash trip information was stale, and concluded there was no probable cause.

Invoking Maryland Code (1974, 2002 Repl.Vol.), § 12-302(c)(3) of the Courts and Judicial Proceedings Article, the State appealed. It raises the single question, "Did the trial court err in granting Greenstreet's motion to suppress physical evidence?" The State argues to us that the warrant-issuing magistrate could have concluded from the information presented within the four corners of the affidavit that the date of the trash trip was 4-14-04. Alternatively, the State argues that the good faith exception to the exclusionary rule should be applied. In this Court, Greenstreet maintains that the suppression court correctly applied the four corners rule, and that the good faith exception does not apply. In addition, he raises preservation issues which we shall address first.

I. Preservation

Greenstreet argues that "[t]he State intentionally and expressly conceded on several occasions that the warrant was stale and not supported by probable cause." The argument overstates the scope of the...