Illegal Search and Seizure and other Constitutional violations leading to Suppression of Evidence under Maryland Law

Maryland Criminal Attorney – Maryland Criminal Lawyer – Baltimore Criminal Attorney – Baltimore Criminal Lawyer In all criminal cases there are basically two types of defenses: legal defenses and factual defenses. Legal defenses are common in possession with the intent to distribute narcotics cases, rape, robbery, murder and burglary cases, as well as driving under the influence (DUI) and domestic violence cases. To determine whether a legal defense exists in a particular case an aggressive criminal attorney will typically ask several questions of the defendant such as: Were you read your Miranda Rights prior to giving the police a statement? Did the police show you a search warrant and leave you a copy of same? Did you consent to the search of your home, car or person? These questions will help an aggressive criminal attorney begin his investigation into whether the police violated the client’s rights either by conducting an illegal search or illegally obtaining a statement.

If the attorney believes that a Constitutional violation has occurred he will file a motion to suppress the evidence and follow up that motion with a memorandum of law to support it. The first questions an aggressive criminal attorney will ask are questions such as: I am currently representing a client who had a large amount of narcotics seized from his apartment pursuant to a warrant that I believe was both stale (that is the events making up the probable cause happened too long ago to support the warrant) and lacked a nexus to his apartment where the police recovered the cocaine.

Here is the brief that I am filing with the court.

The Defendant is charged in the above captioned matter with possession with the intent to distribute narcotics and related offenses. On (edited to protect client’s identity), a search and seizure warrant was executed at the Defendant’s residence. The Affidavit in support of the search and seizure warrant is attached as Exhibit 1. In pertinent part, the Affidavit states the following: During the months of (edited to protect client’s identity), investigators received information that a white male known as “(edited to protect client’s identity) was selling cocaine throughout the Southeast area of Baltimore City. The informant stated that he/she believed that (edited to protect client’s identity) lived somewhere near (edited to protect client’s identity) in an apartment where the entrance was on the side of the apartment. The informant stated that (edited to protect client’s identity)received three to four ounces of cocaine, packages it at the apartment and sold it at local liquor establishments. During the early part of (edited to protect client’s identity), a controlled buy was conducted with the informant. The informant was followed to a specific location where (edited to protect client’s identity) later identified as the Defendant, was situated. The meeting was surveilled and(edited to protect client’s identity) handed the informant objects consistent with the size and shape of packaging material. Surveillance members observed (edited to protect client’s identity) leave the location and enter a vehicle. (edited to protect client’s identity)was driven to the area of the (edited to protect client’s identity) where he entered a building known as (edited to protect client’s identity) utilizing a key. The detective observed a mailbox marked as C believed to be apartment C. The informant identified the Defendant’s MVA photo as (edited to protect client’s identity) The MVA address (edited to protect client’s identity)

A. There was no probable cause established in the affidavit for issuance of the search warrant to search the Defendant’s residence.

The Fourth Amendment requires that no search warrant shall issue without probable cause. Probable cause means a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). This Court must determine whether there is substantial evidence in the record to support the District Court of Maryland’s decision to issue the warrant. Massachusetts v. Upton, 466 U.S. 727, 728 (1984). While this Court should pay “great deference” to findings of probable cause, it does not mean that warrants should be upheld when based on objectively unreasonable grounds for believing the warrant is valid. Illinois v. Gates, supra, 462 U.S. at 236. Moreover, it is important to remember that to pass constitutional muster, there must be sufficient nexus between the criminal conduct, the items to be seized and the place to be searched. United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988).

In determining whether a search warrant is supported by probable cause, the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched. United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993); Zurcher v. Stanford Daily, 436 U.S. 547, 556 & n.6, 98 S.Ct. 1970, 1976-77 & n.6; 56 L.Ed.2d 525 (1978). In Lalor, the Fourth Circuit found that the affidavit was devoid of any basis from with the magistrate could infer that there was evidence of drug activity at Lalor’s residence. The Court noted that the affidavit did not describe circumstances which indicated that such evidence was likely to be stored at Lalor’s residence nor did it explain the geographic relationship between Lalor’s residence and the area where drug sales occurred. The Court emphasized “residential searches have been upheld only where some information links the criminal activity to the defendant’s residence.” Id. at 1583.

The same result should be reached in this case. The affidavit does not describe circumstances which indicate that narcotics were likely to be stored at the Defendant’s residence. There was no explanation of the geographic relationship between the Defendant’s residence and where drug sales occurred. Further, the Defendant was not seen carrying narcotics into his residence nor was further surveillance conducted. As the Court noted in United States v. Thomas, 300 U.S. App. D.C. 380 (D.C. Cir. 1993), “observations of illegal activity occurring away from the suspect’s residence, can support a finding of probable cause to issue a search warrant for the residence, if there is reasonable basis to infer from the nature of the illegal activity observed that relevant evidence will be found in the residence.” As the Court of Appeals noted in Holmes v. State, 368 Md. 506 (2002) “the mere observation, documentation, or suspicion of a defendant’s participation in criminal activity will not necessarily suffice, by itself, to establish probable cause that inculpatory evidence will be found in the home.” In this case, although there was observation of the Defendant’s participation of criminal activity outside the home, that does not justify the search and seizure of the Defendant’s residence.

B. If there was probable cause at the time of the controlled buy, it was stale by the time of the search of the residence.

In this case, if the police had searched the day of the alleged drug sale, there may have possibly been an argument that there was probable cause. However, the probable cause in this case was stale. There is no ‘bright-line’ rule for determining the ‘staleness’ of probable cause; rather, it depends upon the circumstances of each case, as related in the affidavit for the warrant.” Connelly v. State, 322 Md. 719, 733 (1991). Factors used to determine staleness include: passage of time, the particular kind of criminal activity involved, the length of the activity, and the nature of the property to be seized. Peterson v. State, 281 Md. 308, 317-318 (1977). The Court of Special Appeals explained the general rule of stale probable cause in Andreson v. State, 24 Md.App. 128 (1975):

The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.

Andresen at 172.

Where the affidavit in a case “recites facts indicating activity of a protracted

and continuous nature, or a course of conduct, the passage of time becomes less

significant, so as not to vitiate the warrant.” Peterson at 318; See also, Lee v.

State, 47 Md.App. 213, 219 (1980) (finding probable cause stale when based upon

a drug sale from defendant’s apartment eleven months before application for a

warrant); Connelly at 734 (concluding that probable cause could be found to be

stale where the probable cause finding was based on evidence of an alleged illegal

lottery operation from observations taken over a “few” months, beginning nine

months prior to application for the warrant); Amerman, 84 Md.App. At 475

(finding probable cause not stale when based on evidence of alleged illegal drug

sales from surveillance and investigation conducted one month prior to warrant


A review of this case law demonstrates that probable cause was stale. Because the
probable cause was stale, any and all evidence seized as a result of the execution of
the warrant must be suppressed.

C. The good faith exception cannot save the first search of the property.

In Leon v. United States, 468 U.S. 897, 104 S. Ct. 3405 (1984), the Supreme Court recognized a good faith exception to suppression of evidence obtained from a deficient warrant. The good faith exception, however, does not apply:

first, when the warrant is based on an affidavit containing “knowing or reckless falsity”; second, when the magistrate has simply acted as a “rubber stamp” for the police; third, when the affidavit does not “provide the magistrate with a substantial basis for determining the existence of probable cause”; and finally, when the warrant is so “facially deficient” that an officer could not reasonably rely on it.

United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir. 1996) (quoting United States v. Leon, Supra, 468 U.S. at 923, 104 S. Ct. at 3420. The good faith exception cannot save this unconstitutional search. The issuing judge certainly abandoned any detached or neutral role by authorizing a warrant based upon an application bereft of probable cause.

In addition, it is evident that probable cause was stale and the warrant was so facially deficient an officer could not reasonably rely on it. In Greenstreet v. State, 392 Md. 652 (2006), the Court of Appeals recently addressed the good faith argument as it applied to stale probable cause. The defendant in that case moved to suppress drugs seized from his residence. The defendant argued that the issuing judge lacked a substantial basis to issue the warrant because probable cause, based upon the date of a trash seizure, was stale. The affidavit indicated that the trash seizure occurred one year and one day prior to the application of the warrant. The Court of Appeals noted probable cause was clearly stale and rejected the good faith argument articulated by the State. The Court of Appeals determined that the affidavit outlined the trash seizure, eleven months earlier, and did not describe a continuing criminal enterprise ongoing at the time of the application. Id. at 682. In addition, the Court stated, “we do not conclude that a reasonable well-trained police officer executing a warrant would believe that the warrant authorized the search because the lack of probable cause was apparent on the face of the affidavit” when the evidence does not indicate continuing criminal activity.” Id. at 683.

The same result should be reached in this case. There was not a sufficient nexus between the criminal activity and the place to be searched. Further, probable cause was stale. As the Court of Appeals concluded in Greenstreet, a reasonable well-trained police officer would not have believed the warrant authorized the search because the lack of probable cause was apparent. Therefore, good faith cannot save this unconstitutional search.

For the foregoing reasons, the Defendant respectfully requests that this Honorable Court grant this Motion to Suppress.

Respectfully submitted,

Brian Thompson, Esquire
Silverman, Thompson, Slutkin & White
400 E Pratt St Suite 900
Baltimore, Maryland 21202
(410) 385-2225

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