Thompson v. State

• Citation: 245 Md.App. 450,226 A.3d 871
• Decision Date: 07 April 2020
• Docket Number: No. 0198, September Term, 2019,0198, September Term, 2019
• Parties: Kyle THOMPSON v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

245 Md.App. 450

226 A.3d 871

Kyle THOMPSON

v.STATE of Maryland

No. 0198, September Term, 2019

Court of Special Appeals of Maryland.

April 7, 2020

Argued by: Stephen B. Mercer (Isabelle Raquin, RaquinMercer LLC on the brief), Rockville, MD, for Appellant

Argued by: Andrew J. Dimiceli (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.

Leahy, Wells, J. Frederick Sharer, (Senior Judge, Specially Assigned) JJ.

Wells, J. Appellant, Kyle Thompson, appeals from the Circuit Court for Montgomery County's denial of his motion for a Franks hearing and its denial of his challenge to the sufficiency of a search warrant. The court found Thompson had failed to make the required showing that the affiant-police officer made false statements that led a judge to find probable cause to issue a search warrant for Thompson's house. Thompson's appeal presents two questions for our review, which we reproduce verbatim:

1. Whether the court below erred when it denied Thompson's request for a hearing under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), regarding the veracity of the affiant's statements contained in the search warrant affidavit?

2. Whether the court below erred when it denied Thompson's challenge to the sufficiency of the March 17, 2017, search warrant for his residence?

For the reasons discuss below, we answer each question in the negative and affirm the judgment of the circuit court.

BACKGROUND

A. Police Receive Information from a Confidential Informant and Prepare a Search Warrant Affidavit

On the evening of March 16, 2017, the Special Victims Investigation Division of the Montgomery County Police, Maryland Police Department ("MCPD") received a case involving the alleged sexual assault of a minor. The FBI emailed Sergeant Monique Tompkins ("Sgt. Tompkins") details of a conversation that the FBI had with a confidential informant ("C.I.") on March 15.¹ Those details alleged, among other things, that a few days prior Thompson showed the C.I. videos of him sexually assaulting his four-year-old daughter ("Child 1")² .

That evening, MCPD detectives made four phone calls to the C.I.: First , a thirty-two (32) minute, recorded phone call from the desk of Michelle Sears of Montgomery County Child Protection Services ("CPS") (located in the same building as MCPD) joined by Detective Avelar ("Det. Avelar") who is supervised by Sgt. Tompkins; second , a five-minute unrecorded call from Sears' desk to the C.I.; third , a seven-minute unrecorded phone call from the desk of Det. Avelar to the C.I.; and finally , another five-minute unrecorded phone call from Det. Avelar's desk to the C.I. In discovery, a prosecutor admitted to the defense that while Sgt. Tompkins was not present for the first and main interview, she was present for at least one of the shorter, unrecorded phone calls placed from Det. Avelar's desk. Between the second and third phone call, Sears printed a 2015 CPS report that appeared to detail sexual assault allegations by Victim A (Child 1's older half-sister) against Thompson.

Following these phone calls, Det. Avelar drafted an application for a search warrant and e-mailed it to Sgt. Tompkins at 1:40AM on March 17, 2017. Part of the investigation summary provided:

On March 16, 2017, the writer interviewed the anonymous source.

* * *

The source further stated that Thompson had previously sexually abused [Child 1's] older sister [Victim A] a few years back; [Victim A] was approximately 9 years old when he sexually abused her. The writer conducted a check with Child Protective Services and other police agencies and was able to corroborate the information given by the source regarding [Victim A]. The writer found a sexual abuse report from Baltimore County Police from October 2015. The report stated [Victim A] was sexually abused by her mother's boyfriend "Kyle." [Victim A's] mother lied to the Police and Child Protective Services of not knowing his full name and where about (sic). [Victim A] disclosed the abuse happened when her and her mother went to "Kyle's house" located on Ballinger Terrace, Burtonsville, MD.

Thompson stated the abuse[ ] happened in a wooded area near his [house] in Montgomery County, Maryland.

The next day, March 17, 2017, while Det. Avelar went to Baltimore County to review forensic interviews of Victim A's allegations, Sgt. Tompkins was in the MCPD office revising the search warrant affidavit. Later that day, Sgt. Tompkins appeared before Judge Ronald Rubin with the revised search warrant application, now containing her signature rather than Det. Avelar's. The quoted part of the investigative summary, with revisions emphasized, now read as follows:

On March 16, 2017, the writer interviewed the anonymous source.

* * *

The source further stated that Thompson had previously sexually abused [Child 1's] older sister [Victim A] a few years prior. [Victim A] was approximately 9 years old when he sexually abused her. The writer conducted a check with Child Protective Services and other police agencies and could corroborate the information given by the source regarding [Victim A]. The writer found a sexual abuse report from Baltimore County Police from October 9, 2015. The report stated [Victim A] was sexually abused by her mother's boyfriend "Kyle." Anonymous source related that [Victim A's] mother lied to the Police and Child Protective Services, relating that she did not know the suspect's full name and whereabouts. Anonymous source stated that [Victim A] disclosed that the abuse happened when her and her mother went to "Kyle's house" located at 14215 Ballinger Terrace, Burtonsville, MD.

Thompson stated to the anonymous source the above abuse happened in a wooded area near his house in Montgomery County, Maryland.

(emphasis added). Notably, even this final affidavit signed by Sgt. Tompkins read under the "OATH" section, "Detective Melvin Avelar, personally appeared before me..." Judge Rubin signed the search warrant.

B. MCPD Obtains a Search Warrant, Seizes Evidence, and the State Charges Thompson

With the search warrant in hand, the police searched Thompson's home. The police recovered videos of sexual assaults as described by the C.I. On April 13, 2017 a grand jury for the Circuit Court of Montgomery County returned an indictment charging Thompson with 78 counts of sexual abuse of a minor and related sex offenses based primarily on the videos obtained in the search of Thompson's home.

Thompson's first attorney entered his line of appearance on April 17, 2017. On June 30, 2017, counsel filed a Motion to Suppress Evidence and a Motion to Suppress a Custodial Statement. Thompson withdrew those motions without prejudice on January 11, 2018 and agreed with the State that unless the case was resolved via a plea agreement the State would consent to a hearing on those motions. On May 24, 2018, another attorney entered a line of appearance on behalf of Thompson, and on June 6, 2018 the court granted Thompson's motion to strike his first attorney's appearance.

During this time, a parallel federal case commenced in the United States District Court for the District of Maryland. Thompson was represented by the same attorneys.

C. Thompson's Request for a Franks Hearing is Denied

On July 23, 2018, Thompson filed a request for a Franks hearing asserting that, based on information he had only recently learned in the federal case, Sgt. Tompkins intentionally misled the issuing judge in her affidavit. Thompson specifically grounded his claim on Sgt. Tompkins' sworn statement that "the writer interviewed" the C.I. But Sgt. Tompkins had not been present for the main phone interview Sears and Det. Avelar conducted with the C.I. The State filed its opposition on August 15, 2018. On September 24, 2018, the day before the circuit court held a hearing to consider the Franks motion, Thompson supplemented his reply brief with several draft affidavits from Det. Avelar and Sgt. Tompkins as further proof that Sgt. Tompkins intentionally misled Judge Rubin.

At the hearing, discussion between the court and counsel focused on Sgt. Tompkins' role in interviewing the C.I. and the accuracy of the phrasing "the writer interviewed," rather than the affidavit revisions. No witnesses were called.

The court's ruling was in two parts. First, the court ruled that Thompson's request for a Franks hearing was waived under Maryland Rule 4-252, which required filing of mandatory motions such as a Franks request, within thirty (30) days of April 17th, 2017, the date Thompson's first attorney appeared on Thompson's behalf. The court noted that because Thompson's first attorney timely filed motions to suppress evidence, including a custodial statement, and had authored an article on Franks hearings, his failure to request a Franks hearing could not have been an error.

Second, the court also ruled on the merits. It explained that based on its review of the evidence and case law, it found Thompson had not met his burden of showing that Sgt. Tompkins made false or reckless statements such that those statements established probable cause. The court addressed the heart of the argument in Thompson's motion, saying, "I don't think it's improper or misleading or reckless to tell a reviewing court that you interviewed someone when you participated in sitting there listening and [passing] notes as the detective, Sergeant Tompkins did on call number 2." The court did not address the draft revisions made by Sgt. Tompkins. It concluded by denying the motion.

On October 2, 2018, the circuit court also denied Thompson's challenge to the sufficiency of the search warrant. The following day, Thompson entered a conditional guilty plea before Judge McGann to ten counts of the indictment and preserved his right to appeal the orders denying his motions to suppress. On March 8, 2019, Judge McGann sentenced Thompson to three consecutive life terms plus 145 years, consecutive to his federal sentence of 5,040 months imposed after his...