Whittington v. State, No. 2591, Sept. Term, 2018

CourtCourt of Special Appeals of Maryland
Writing for the CourtLeahy, J.
Citation246 Md.App. 451,230 A.3d 148
Docket NumberNo. 2591, Sept. Term, 2018
Decision Date01 July 2020
Parties Kevin WHITTINGTON v. STATE of Maryland

246 Md.App. 451
230 A.3d 148

Kevin WHITTINGTON
v.
STATE of Maryland

No. 2591, Sept. Term, 2018

Court of Special Appeals of Maryland.

July 1, 2020


Argued by: Kenneth W. Ravenell (Ravenell Law, on the brief), Baltimore, MD, for Appellant.

Argued by: Jeremy M. McCoy (Brian E. Frosh, Atty. Gen., on the brief), for Appellee.

Panel: Leahy, Shaw Geter, Cathleen M. Vitale (Specially Assigned), JJ.

Leahy, J.

"GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations."

United States v. Jones , 565 U.S. 400, 415, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring)
246 Md.App. 457

Law enforcement's use of a Global Positioning System ("GPS") tracking device led to the arrest and conviction of Kevin Whittington, and ultimately, to the Fourth Amendment issues before us now. As a matter of first impression, we examine whether the court order that authorized police to

246 Md.App. 458

install the GPS tracking device on Mr. Whittington's car, issued pursuant to a state criminal statute, satisfied the Fourth Amendment requirements of a warrant based on probable cause.

Mr. Whittington unwittingly garnered the attention of detectives in the Harford County Sheriff's Office in 2016 by associating with a suspected narcotics distributor named David Hall. The detectives wiretapped Mr. Hall's phone and discovered that Mr. Whittington was the most frequent caller. Then they observed the two men engaged in activity that was consistent with the distribution of controlled dangerous substances (CDS). The detectives applied for and obtained an "Electronic Device Location Information Order" (hereinafter "GPS Order") under Maryland Code (2018 Repl. Vol., 2019 Supp.), Criminal Procedure Article ("CP"), § 1-203.1.1 The GPS Order authorized the detectives to install a GPS mobile tracking device on Mr. Whittington's car for a 30-day period.

The detectives observed Mr. Whittington over a period of weeks with the help of the GPS tracking device. His pattern of movements further bolstered their assessment that he was engaged in CDS activity in and around Harford County, and that he maintained a residence at 4 Cloverwood Ct., Apt. 202, in Essex, Baltimore County. They then applied for and received a warrant

230 A.3d 153

to search Mr. Whittington's person, car, and apartment. The police found four baggies of cocaine totaling about eight grams in Mr. Whittington's car; and they found two bags of cocaine weighing approximately 145.9 grams, ten Alprazolam pills, and $1,222 in the apartment at 4 Cloverwood Ct. Officers apprehended Mr. Whittington at another location and found $1,406 and two cellular telephones on his person. Mr. Whittington was arrested and later indicted on January

246 Md.App. 459

18, 2017, in the Circuit Court for Baltimore County, on two counts of Possession of CDS with the Intent to Distribute and two counts of Possession of CDS.

Mr. Whittington filed a motion to suppress all the evidence derived from the searches conducted pursuant to the search warrant, which, he claimed, was issued upon evidence obtained from an "unconstitutional" order authorizing the detectives’ use of the GPS tracking device. The GPS Order, he argued, lacked probable cause and was unconstitutional under the holding in United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), which, he claimed, requires law enforcement to obtain a valid warrant in order to attach a GPS tracking device to a suspect's vehicle. He further argued that the evidence presented to the warrant court failed to establish a nexus between his alleged drug dealings and 4 Cloverwood Ct., Apt. 202, as required under Agurs v. State , 415 Md. 62, 998 A.2d 868 (2010). The circuit court denied the motion.2 Mr. Whittington timely appealed and presents two questions for our review, which we have reordered:

I. "Did the circuit court err in denying Mr. Whittington's motion to suppress all evidence obtained from the warrantless use of a GPS device on his vehicle?"

II. "Did the circuit court err in denying Mr. Whittington's motion to suppress all evidence seized from 4 Cloverwood Ct., Apt. 202 and Mr. Whittington's Dodge Stratus by finding that the good faith exception to the 4th Amendment exclusionary rule applied?"

First, we hold that the GPS Order issued under CP § 1-203.1 met the requisites of a warrant under Fourth Amendment law. The GPS Order was signed by a neutral and detached magistrate; upon an application signed under oath by someone with personal knowledge of the facts; which set forth

246 Md.App. 460

the basis for probable cause to believe that a crime had been, or was going to be committed; and identified with particularity the person about whom location information was being sought and the vehicle on which the GPS device would be installed. We also conclude, in this age of rapidly advancing surveillance technology, that CP § 1-203.1 incisively adds the requirements that an application for an order, such as the GPS Order in this case, be limited to 30 days and describe with reasonable particularity the type of electronic device to be employed by law enforcement.

Second, we affirm the circuit court's ruling that the detectives relied in good faith on the search warrant and, therefore, we do not need to reach the question of whether the warrant application failed to establish a nexus between Mr. Whittington's alleged drug dealings and 4 Cloverwood Ct., Apt. 202. Discerning no error in the court's determination that suppression

230 A.3d 154

was not an appropriate remedy in this case, we affirm the circuit court's denial of Mr. Whittington's motion to suppress.

BACKGROUND

The following factual account is drawn from the evidence that was before the suppression court on September 18, 2018. Section A, recounting the initial investigation, draws upon facts presented in the application for the GPS Order that was issued by the District Court sitting in Harford County on October 8, 2016. Section B summarizes the averments set forth in the warrant affidavit in support of the warrant issued by the District Court sitting in Harford County on October 24, 2016.

A. Initial Investigation and Court Order

Harford County Police Department detectives Brandon Underhill and Sam Vivino were assigned to the Harford County Narcotics Task Force in 2007 and 2012 respectively. In 2016, as part of a large-scale drug investigation, they began investigating a cocaine supplier in the region by the name of David Hall. Mr. Whittington was identified because of his association with Mr. Hall, although Det. Underhill was already familiar

246 Md.App. 461

with Mr. Whittington because the Harford County Sheriff's Office had arrested him in 2015 for possession of over three ounces of cocaine.

On October 8, 2016, Det. Underhill submitted an application in the District Court, signed under oath, for an order to attach an electronic monitoring device—in this case, a GPS tracking device—onto Mr. Whittington's vehicle for 30 days. In support of the application, Det. Underhill described the probable drug-related activities and interactions that the police had recently observed involving Mr. Whittington and Mr. Hall.

Beginning on July 5, 2016, Detectives Underhill and Vivino surveilled Mr. Whittington and Mr. Hall as they departed the Rossville Shopping Center in Baltimore County in Mr. Whittington's Dodge Stratus. Det. Underhill averred that "based [on the] detectives’ familiarization with the area[,] Hall and Whittington often took very unusual courses of travel to reach destinations. It appeared that they were attempting to see if they were being followed by making loops and u-turns, which is a technique often employed by drug dealers." "Because of these evasive driving maneuvers, surveillance was terminated."

On October 4, 2016, the detectives began a wiretap on Mr. Hall's cell phone. The wiretap revealed that Mr. Whittington's phone number was the "highest volume communicator" with Mr. Hall. In the application for the GPS Order, Det. Underhill stated he believed Mr. Whittington and Mr. Hall were using coded language consistent with CDS activity and discussing locations that the detectives believed were being used to process powdered cocaine into crack cocaine. For example, on October 4, Mr. Hall called Mr. Whittington's cell phone as they both were leaving a house located at 101 Orsburn Drive. Both men expressed concern about a marked patrol car that was in the area. Det. Underhill noted that "[s]urveillance throughout this investigation has confirmed that Hall regularly travels to [101 Orsburn Drive] for short durations of time, consistent with CDS activity."

246 Md.App. 462

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5 practice notes
  • Myers v. State, No. 297, Sept. Term, 2019
    • United States
    • Court of Special Appeals of Maryland
    • November 18, 2020
    ...235 A.3d 873 (2020). "A facial challenge to a legislative Act is ... the most difficult to mount successfully." Whittington v. State , 246 Md. App. 451, 471, 230 A.3d 148 (2020) (quoting United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). Generally, a vagu......
  • Whittington v. State, No. 35, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • June 2, 2021
    ...failed to "demonstrate that there is ‘no set of circumstances’ under which the statute would be valid." Kevin Whittington v. State , 246 Md. App. 451, 471, 230 A.3d 148, 161 (2020) (citing United States v. Salerno , 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) ) (footnote......
  • Whittington v. State, No. 35
    • United States
    • Court of Special Appeals of Maryland
    • June 2, 2021
    ...failed to "demonstrate that there is 'no set of circumstances' under which the statute would be valid." Kevin Whittington v. State, 246 Md. App. 451, 471, 230 A.3d 148, 161 (2020) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987)) (footnote omitted). The Cour......
  • Myers v. State, No. 297
    • United States
    • Court of Special Appeals of Maryland
    • November 18, 2020
    ...Md. 308, 361 (2020). "A facial challenge to a legislative Act is . . . the most difficult to mount successfully." Whittington v. State, 246 Md. App. 451, 471 (2020) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Generally, a vagueness challenge to a statute "is based on the a......
  • Request a trial to view additional results
5 cases
  • Myers v. State, No. 297, Sept. Term, 2019
    • United States
    • Court of Special Appeals of Maryland
    • November 18, 2020
    ...235 A.3d 873 (2020). "A facial challenge to a legislative Act is ... the most difficult to mount successfully." Whittington v. State , 246 Md. App. 451, 471, 230 A.3d 148 (2020) (quoting United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). Generally, a vagu......
  • Whittington v. State, No. 35, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • June 2, 2021
    ...failed to "demonstrate that there is ‘no set of circumstances’ under which the statute would be valid." Kevin Whittington v. State , 246 Md. App. 451, 471, 230 A.3d 148, 161 (2020) (citing United States v. Salerno , 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) ) (footnote......
  • Whittington v. State, No. 35
    • United States
    • Court of Special Appeals of Maryland
    • June 2, 2021
    ...failed to "demonstrate that there is 'no set of circumstances' under which the statute would be valid." Kevin Whittington v. State, 246 Md. App. 451, 471, 230 A.3d 148, 161 (2020) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987)) (footnote omitted). The Cour......
  • Myers v. State, No. 297
    • United States
    • Court of Special Appeals of Maryland
    • November 18, 2020
    ...Md. 308, 361 (2020). "A facial challenge to a legislative Act is . . . the most difficult to mount successfully." Whittington v. State, 246 Md. App. 451, 471 (2020) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Generally, a vagueness challenge to a statute "is based on the a......
  • Request a trial to view additional results

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