A COURT ORDER TO CONDUCT A SEARCH IS VALID IF THE ORDER COMPLIES WITH FOURTH AMENDMENT REQUIREMENTS AND A SUFFICIENT BASIS FOR PROBABLE CAUSE EXISTS WHEN WITNESSING SUSPICIOUS ACTIVITY IF DETECTIVES RELY ON THEIR EXPERIENCE AND OBSERVATIONS.  

The Court of Appeals of Maryland held that as a matter of first impression, even if a statutory compliant court order is not labeled as a “warrant,” the order can justify a search if Fourth Amendment compliant. Whittington v. State, 474 Md. 1, 24, 252 A.3d 529, 542-43 (2021)(citing Md. Code Ann., Crim. Proc. § 1- 203.1 (West 2021)).  The court also held that a substantial basis for probable cause exists if an issuing court can reasonably infer evidence of criminal activity will likely be found at the location law enforcement is attempting to search. Whittington, 474 Md. at 32, 252 A.3d at 547 (citing Stevenson v. State, 455 Md. 709, 723-24, 168 A.3d 967, 975 (2017)).  Finally, the court held that the good faith exception applies to a warrant that is later found lacking probable cause if the warrant specifies facts permitting law enforcement to reasonably rely on the order. Whittington, 474 Md. at 40, 252 A.3d at 551-52.

In 2016, two detectives of the Harford County Narcotics Task Force (“Task Force”) began investigating Kevin Whittington’s (“Whittington”) relationship with a suspected narcotics trafficker.  Task Force detectives witnessed Whittington and his associate together in a car owned by Whittington, engaging in activities detectives believed consistent with the possession and selling of narcotics.  The detectives submitted an application for a court order stating with particularity that probable cause existed to support the belief Whittington used the car to commit various drug crimes.  The District Court of Maryland for Harford County granted the order allowing placement of a GPS tracker on Whittington’s vehicle.

Through GPS tracking and physical observation, Task Force detectives witnessed behavior typically associated with drug crimes.  The detectives applied for a search warrant and supplied an affidavit asserting the existence of probable cause to search both Whittington’s car and Baltimore County residence.  Though detectives observed no criminal activity at the Baltimore County residence, the detectives believed narcotics were stored and manufactured at the residence.  The court approved a search warrant and when law enforcement stopped Whittington they discovered cash, cocaine, and two phones.  Law enforcement also searched the Baltimore County residence, finding cash, cocaine, and pills.

Whittington was indicted with various drug crimes.  Whittington entered a conditional guilty plea and the court sentenced him to ten years suspended imprisonment and five years supervised probation.  Whittington moved to suppress evidence obtained by law enforcement from Whittington’s Baltimore County residence.  The court denied the motion, leaving a challenge to the statute for review by the Court of Special Appeals.  The Court of Special Appeals of Maryland affirmed the circuit court’s ruling, denying the motion to dismiss and upheld the constitutionality of the court order.  In November 2020, the Court of Appeals of Maryland granted certiorari.

The court first addressed whether a court order satisfies Fourth Amendment warrant requirements even if the court order is not labeled as a “warrant.” Whittington, 474 Md. at 23-24, 252 A.3d at 542.  In addition to the Fourth Amendment, Article 26 of the Maryland Constitution, Declaration of Rights safeguards individuals from unlawful search and seizure. Id. at 23-24, 252 A.3d at 542 (citing Md. Const., Declaration of Rts., art. 26).  The placing of a GPS tracker onto an individual’s vehicle qualifies as a search and subject to the requirements of a warrant. Whittington, 474 Md. at 24, 252 A.3d at 542 (citingUnited States v. Jones, 565 U.S. 400, (2012)).  Consistent with earlier Maryland jurisprudence, an order is required to comply with the Fourth Amendment, but is not required to be labeled as a warrant. Whittington, 474 Md. at 26, 252 A.3d at 543-44 (citing State v. Copes, 454 Md. 581, 625, 165 A.3d 418, 444 (2017)).

To further examine whether the order satisfied the requirements of the Fourth Amendment necessary to constitute a lawful search, the court looked to precedent and the statute’s plain language. Whittington, 474 Md. at 27-28, 252 A.3d at 544-54.  A valid warrant consists of three requirements. Id. at 27, 252 A.3d at 544.  First, a neutral magistrate must issue the warrant. Id. at 25, 252 A.3d at 543 (citing Lo-ji Sales, Inc. v. New York, 442 U.S. 319, 326 (1974)).  Second, law enforcement seeking a warrant must demonstrate probable cause that the evidence sought aids in the conviction of a specific offense. Whittington, 474 Md. at 25, 252 A.3d at 543 (citing Warden v. Hayden, 387 U.S. 294, 307 (1967)).  Lastly, a warrant must specifically describe what will be searched and the place that will be searched. Whittington, 474 Md. at 25, 252 A.3d at 543 (citing Dalia v. United States, 411 U.S. 238, 255 (1979)).  The court found requiring a description of probable cause before a circuit or district court satisfies the first two requirements. Whittington, 474 Md. at 27, 252 A.3d at 544.  Additionally, the court found requiring the order to identify the device, the grounds for obtaining the location information, and the name of the applicant satisfies the specificity requirement. Id. at 28, 252 A.3d at 544-45.

The court further found the statute’s legislative history and remarks by the bill’s sponsor supported Fourth Amendment compliance. Whittington, 474 Md at 28, 252 A.3d at 545.  Only a technical requirement necessitated describing the document as a “court order” instead of “warrant.” Id. at 28-29, 252 A.3d at 545.  The court did not locate anything in the statute’s legislative history requiring a label of “warrant” instead of a “court order.” Id. at 30-31, 252 A.3d at 545-46.

The court next addressed Whittington’s challenge to whether probable cause existed. Whittington, 474 Md. at 31, 252 A.3d at 547.  A court must decide whether there was a substantial basis for finding the order was supported by probable cause. Id. (citing Patterson v. State, 401 Md. 76, 82, 930 A.2d 348, 351-52 (2007)).  Probable cause may be reasonably inferred by the type of crime and connection to places where the suspect may possibly be hiding evidence. Whittington, 474 Md. at 32, 252 A.3d at 547 (citing Holmes v. State, 368 Md. 506, 522, 796 A.2d 90, 100 (2002)).  The court found an inference of ongoing criminal activity at a suspect’s home is reasonable when law enforcement believes the individual possesses narcotics and is storing it in the home. Whittington, 474 Md. at 32, 252 A.3d at 547.  Here, the court found a sufficient basis for probable cause connecting Whittington’s suspected Baltimore County residence to the illegal activity based on the detectives’ experience and reasonable inference that Whittington had been storing narcotics at the residence. Id. at 36-37, 252 A.3d at 549-50.

Although the court found a substantial basis for probable cause, the court addressed arguendo whether the good faith exception applied. Whittington, 474 Md. at 37, 252 A.3d at 550.  Specifically, the court addressed the situation where an order has so little probable cause, an officer could not justifiably rely on the order. Whittington, 474 Md. at 38-39, 252 A.3d at 551.  The court found the detectives’ reliance on their own specialized experience and observations of the Baltimore County residence supported a good faith reliance on the order. Id. at 41, 252 A.3d at 553.

The court’s decision clarifies that although a “warrant” and “court order” are differentiated by name, both allow law enforcement to perform searches if they comply with the Fourth Amendment.  The decision eliminates confusion and allows law enforcement to conduct a search without requiring an additional warrant.  Furthermore, law enforcement now has an easier threshold to reach when attempting to search a residence that is not directly observed to be involved since drug traffickers regularly store narcotics at their residence.  Lastly, a detective’s experience and expertise are important factors when challenging whether the detective’s reliance was reasonable.  Contesting a detective’s reliance will be more difficult when the detective has more experience.

Brandon Ewing is a second-year day student at the University of Baltimore School of Law and a First-Year Staff Editor for Law Forum. Brandon graduated from Salisbury University in 2019, majoring in psychology and conflict analysis and dispute resolution. He has internship experience with a non-profit pro bono organization in Maryland. After graduation, he plans to focus on family law.