Maryland Court of Special Appeals Reports
JOHNSON v. STATE, No. 2130 (Md.App. 12-26-2006) WILLIAM
THOMAS JOHNSON v. STATE OF MARYLAND. No. 2130, September
Term, 2006. Court of Special Appeals of Maryland. Filed:
December 26, 2006.
CONSTITUTIONAL LAW — SEARCH AND SEIZURE WARRANT
— LACK OF STANDING TO CHALLENGE — Where
search and seizure warrant for appellant’s person, home,
and automobile made mention of earlier search and seizure
warrant for person, home, and automobile of unnamed third
person, appellant had no standing to challenge validity of
warrant for unnamed third person. Thus, even if appellant
had been permitted to inspect warrant for unnamed third
person, inspection could not have lead to successful
challenge to warrant for appellant on basis that it was
tainted fruit of unlawful first warrant.
CONSTITUTIONAL LAW — SEARCH AND SEIZURE WARRANT
— DUE PROCESS REQUIREMENT THAT PROSECUTION DISCLOSE
EXCULPATORY EVIDENCE — Absent showing that search
and seizure warrant for residence, car, and person of
unnamed third person contained information that might be
exculpatory to defendant, in that it might suggest that
search and seizure warrant for residence, car, and person
of unnamed third person was invalid, trial court properly
denied defense request to examine warrant for unnamed third
person and instead reviewed that warrant in camera.
MURPHY, C.J., ALPERT, PAUL E. (Ret., specially assigned),
GETTY, JAMES S. (Ret., specially assigned), JJ.
Opinion by ALPERT, J. Concurring Opinion by MURPHY, C.J.
William Thomas Johnson, the appellant, was convicted in the
Circuit Court for Baltimore County, after pleading not
guilty on an agreed statement of facts, of possession of
cocaine with intent to distribute. The court sentenced
Johnson to 25 years imprisonment without possibility of
parole, and Johnson filed this appeal.
ISSUE
Johnson argues, in essence, that the trial court erred by
refusing to compel the State to permit the defense to
inspect, in connection with the preparation of a motion to
suppress evidence, a search and seizure warrant that was
issued for the residence, car, and person of an unnamed
individual who implicated Johnson in the case, where that
warrant was mentioned in a search and seizure warrant for
Johnson’s residence, car, and person.[fn1] We find no merit
in this argument and affirm the judgment of the trial
court.
FACTS
The trial proceedings have not been transcribed and made a
part of the record on appeal. The parties rely on the facts
set forth in the “Application and Affidavit for Search and
Seizure Warrant” for Johnson’s residence, car, and person,
as well as the transcript of a hearing in the trial court
at which defense counsel sought discovery of the warrant to
search the residence, car, and person of the unnamed
individual (“the first warrant”). We shall do the same.
In pertinent part, the application for the search and
seizure warrant as to Johnson, his home, and his car
reflected that the affiants, two detectives with the
Baltimore County Police Department, had been conducting an
investigation into drug distribution activities in Essex.
Pursuant to that investigation, one of the affiants and a
third officer had already obtained the first warrant as to
the residence, car, and person of the unnamed individual.
The detectives received information that on a particular
date at a particular time the unnamed individual was going
to meet his cocaine supplier. They, along with other
members of a police drug unit, followed the unnamed
individual and saw him drive to a meeting with a “black
male” near the intersection of Rossville Boulevard and
Pulaski Highway. That person was driving a dark-colored
Acura with Maryland license plates bearing the number
LMZ374.
Police continued to follow the unnamed individual after the
meeting concluded. When it appeared that the individual was
driving to his residence, officers in a marked Baltimore
County Police vehicle stopped the car and explained to the
unnamed individual that they had a search and seizure
warrant for his person, vehicle, and residence. They
searched the unnamed individual and found a quantity of
cocaine on his person.
The unnamed individual was arrested, advised of his rights,
and interviewed. He admitted that the person driving the
dark-colored Acura was indeed his cocaine supplier, that
the supplier went by the nickname “Joe,” and that he lived
half way down the street on the left hand side of Marquette
Road, a one-way street in White Marsh.
One of the affiants found the car in question parked in the
driveway of 6077 Marquette Road. A check of local utility
and motor vehicle records revealed that William Thomas
Johnson, who went by “Joey,” resided in the home.
The police collected a bag of trash that had been left in
the alley in back of the home. Inside the bag, they found
correspondence bearing Johnson’s name and the address of
the home, as well as the cut corner of a plastic bag
containing what proved, upon analysis, to be cocaine
residue.
An application for a search and seizure warrant for
Johnson’s residence, car, and person (“the second warrant”)
was prepared and approved, and the warrant was executed.
Johnson was then charged in the instant case.
Johnson’s counsel sought to inspect the first warrant,
which was for the search and seizure of the residence, car,
and person of the unnamed individual who had identified
Johnson as his supplier and told the police where Johnson
lived. Counsel reasoned that if the first warrant was
invalid, the information obtained from the unnamed
individual and used to procure the second warrant was
tainted. The evidence seized pursuant to the second warrant
would thus be inadmissible.
The State refused to turn over the first warrant, and a
hearing was held. Prior to the hearing, the court reviewed
the first warrant in camera and determined that “the
probabl[e] cause set forth in [the second] warrant is
clearly independent and in no[] way affected” by the first
warrant. The court denied the defense request to inspect the
first warrant.
DISCUSSION
Johnson now contends that the trial court erred by denying
the defense request to examine the first warrant. He argues
that disclosure of the first warrant was required under
Franks v. Delaware, 438 U.S. 154 (1978), and Brady v.
Maryland, 373 U.S. 83 (1963). That is, he contends that,
under Brady, the prosecution in this case should have been
required to permit the defense to inspect the first warrant
because such an inspection might have revealed grounds for
conducting a hearing, under Franks, that might have
resulted in the invalidation of the second warrant.
Johnson’s reliance on Franks is misplaced. In that case,
the Supreme Court held that,
where the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth,
if probable cause was lacking on the face of the affidavit
was included by the affiant in the [search] warrant
affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the
defendant’s request. In the event that at the hearing the
allegation of perjury or reckless disregard is established
by a preponderance of the evidence, and, with the
affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to
establish probable cause, the search warrant must be
voided and the fruits of the search excluded to the same
extent as if probable cause was lacking on the face of the
affidavit.
430 U.S. at 155-56.
Johnson suggests that if he had been permitted to review
the first warrant, he might have discovered a false
statement therein. He further suggests that he then might
have established that the false statement was made
knowingly and intentionally or with reckless disregard for
the truth, and that probable cause for the warrant would
not have existed without the false statement. Johnson
reasons that if the first warrant was invalid then any
evidence gathered as a result of that warrant, including
the unnamed individual’s statement implicating Johnson, was
tainted. He thus concludes that the statement could not
properly have been used to establish probable cause for
issuance of the second warrant.
We shall assume arguendo that the Franks holding bars not
only the admission at trial of evidence seized pursuant to
a search warrant containing a false statement that was made
knowingly and intentionally or with reckless disregard for
the truth, but also the use of such evidence to establish
probable cause for the issuance of another warrant. We
nevertheless reject Johnson’s argument. Even if the trial
court had permitted counsel for Johnson to review the first
warrant, Johnson would not have been able to challenge the
truthfulness of any statement it contained. “Ordinarily,
[an] appellant would have no standing to challenge the
validity of [a] . . . warrant issued for anyone other than
himself.” Thompson v. State, 62 Md. App. 190, 213 (1985).
There can be no earnest dispute that the unnamed individual
was the only person who had standing in regard to the first
warrant.
As this Court has explained:
It has now been made clear . . . that when a defendant
seeks to establish that a search in question is the Fourth
Amendment “fruit” of an earlier Fourth Amendment
“poisonous tree,” it is necessary that the defendant have
the required Fourth Amendment standing to object with
respect to both places and with respect to both
occasions. . . . To litigate fully under the “fruit of the
poisonous tree doctrine,” a given defendant must enjoy
standing, independently, both as to the fruit and also as
to the antecedent tree.
Id. at 214 n. 4 (citation omitted). Since Johnson did not
have standing to challenge the first warrant, he cannot
argue that the second warrant is the tainted fruit of that
warrant.
Johnson’s argument as to Brady, 373 U.S. 83, is without
merit as well. In Brady, 373 U.S. at 87, the Supreme Court
held that due process principles are violated when the
prosecution withholds, despite a demand from the defense,
evidence that is favorable to the accused and material to
guilt or to punishment, regardless of whether the
prosecution acts in good faith or bad faith. Ordinarily, a
Brady violation will result in the vacation of a judgment
and a retrial. See id. at 88-91. “[T]hree factors must
coalesce to effect the Brady sanction: ‘(a) suppression by
the prosecution after a request by the defense, (b) the
evidence’s favorable character for the defense, and (c) the
materiality of the evidence.'” Green v. State, 25 Md. App.
679, 699-700 (1975) (citation omitted). See generally Md.
Rule 4-263(a) (providing that in Maryland, “[w]ithout the
necessity of a request, the State’s Attorney shall furnish
to the defendant . . . [a]ny material or information tending
to negate or mitigate the guilt or punishment of the
defendant as to the offense charged”).
Preliminarily, it appears that the Brady argument is not
preserved for this Court’s review. In the hearing before
the trial court, Johnson’s counsel argued only that a
review of the first warrant might reveal that the second
warrant was tainted. He did not argue that the first
warrant might contain material that was exculpatory to
Johnson.[fn2] See Md. Rule 8-131(a) (“Ordinarily, the
appellate court will not decide any . . . issue unless it
plainly appears by the record to have been raised in or
decided by the trial court . . .”). Assuming arguendo that
the argument was preserved, however, it is without merit.
Brady was a felony murder case in which the prosecution
failed to disclose to the defense that an accomplice had
confessed to being the actual killer. Thus, potentially
exculpatory evidence was not before the court or the jury
during the trial or sentencing. Johnson does not direct us
to any case in which this Court, the Court of Appeals, or
any other court applied the Brady analysis to pretrial
proceedings involving information contained in, or omitted
from, a search warrant.
In United States v. Colkley, 899 F.2d 297 (1990), police
officers obtained arrest warrants for two defendants based
in part on an informant’s report that the defendants
admitted to him that they robbed a bank. One of the
defendants challenged the warrant for his arrest on the
ground that, inter alia, the police failed to reveal in the
application for the warrant that the same informant was
unable to select that defendant’s photo from an array. The
United States District Court for the District of Maryland
rejected the challenge, and the United States Court of
Appeals for the Fourth Circuit affirmed. It explained:
In effect, [the defendant] asks us to import the rule of
Brady v. Maryland, 373 U.S. 83 . . . (1963), into the
warrant application process. Brady and its progeny
establish that the prosecutor has a duty to disclose to
the defendant exculpatory evidence, defined as material
evidence that would create a reasonable doubt as to the
correctness of a guilty verdict at trial. . . .
We must be cautious, however, about importing the panoply
of Brady protections from trial practice into warrant
application proceedings. The Brady rule derives from due
process and is designed to ensure fair criminal trials. .
. . It is at trial that the accused is cloaked with the
presumption of innocence and may put the state to its
proof beyond a reasonable doubt. By contrast, the probable
cause determination in Franks, which derives from the
Fourth Amendment, involves no definitive adjudication of
innocence or guilt. Because the consequences of arrest or
search are less severe and irremediable than the
consequences of an adverse criminal verdict, a duty to
disclose potentially exculpatory information appropriate
in the setting of a trial may be less compelling in the
context of an application for a warrant.
Colkley, 899 F.2d at 302 (citations omitted). The Colkley
Court stated:
[A] requirement that all potentially exculpatory evidence
be included in an affidavit would severely disrupt the
warrant process.The rule would place an extraordinary
burden on law enforcement officers, who might have to
follow up and include in a warrant affidavit every hunch
and detail of an investigation in a futile attempt to
prove the negative proposition that no potentially
exculpatory evidence had been excluded. . . .
Id. at 303. Cf. Mays v. City of Dayton, 134 F.3d 809, 815
(6th Cir. 1998) (explaining, in the context of a civil
rights action filed by a plaintiff who had been the subject
of a criminal investigation, that “the due process
protections provided to defendants prior to trial under
Brady” do not apply to the warrant process “under the guise
of a Franks analysis”).
Assuming, without deciding, that Brady would apply to a
situation such as that in the instant case, we see no error
on the part of the trial court. To reiterate, the first
warrant was for the residence, automobile, and person of an
unnamed individual. Johnson acknowledges on appeal that the
State may have had a legitimate interest in protecting the
identity of that individual, and asserts that in asking to
examine the warrant he was not attempting to ascertain the
individual’s identity. See generally Md. Rule 4-263(c)(2)
(stating that the State is not required to disclose “[t]he
identity of a confidential informant, so long as the
failure to disclose the informant’s identity does not
infringe on a constitutional right of the defendant and the
State’s Attorney does not intend to call the informant as a
witness”). Yet defense counsel apparently never suggested
to the trial court that it redact those portions of the
warrant that could have revealed the identity of the
unnamed individual. Rather, counsel demanded only that he
be permitted to review the warrant in its entirety.
Under the circumstances, the trial court quite properly
elected to review the first warrant in camera rather than
to permit defense counsel to examine it. In cases where a
defendant seeks access to confidential or sensitive
records, “in camera review is the usual procedure. . . .”
Robinson v. State, 354 Md. 287, 323-24 (1997) (dissenting
opinion). Cf. Zaal v. State, 326 Md. 54, 81-87 (1992)
(where defendant in child sexual abuse case sought to
inspect victim’s education records in order to challenge
victim’s credibility, trial court erred by simply denying
request without at least conducting in camera review of
records and then considering whether to permit defense
counsel to review the records alone or in the court’s
presence); Sutton v. State, 25 Md. App. 309, 314-15 (1975)
(absent showing by defendant of particularized need to view
Grand Jury minutes that contained testimony of witnesses
against him at trial, trial court properly declined to
permit defense to examine minutes or to review them itself
in camera). As this Court has pointed out, Brady “do[es]
not provide a constitutional device permitting [a
defendant] to cast his net upon the evidentiary waters, nor
do[es it] extend our rules of discovery to such broad,
net-like fishing expeditions.” Green, 25 Md. App. at 701.
The trial court implicitly determined that the first
warrant contained no information that could have been
exculpatory to Johnson by negating probable cause for the
second warrant. Upon our own review of the first warrant,
we agree. The first warrant made no reference to Johnson,
and nothing in the first warrant could be construed as
negating or conflicting with anything set forth in the
second warrant.
The court expressly stated, moreover, that the application
and affidavit in support of the second warrant established
probable cause for issuance of the second warrant, even
without reference to the first warrant. Johnson does not
challenge this determination, and any such challenge would
be unavailing.[fn3] See Greenstreet v. State, 392 Md. 652,
670-71 (2006) (summarizing that, in reviewing an issuing
judge’s approval of an application for a search warrant, an
appellate court looks to whether, based on the four corners
of the warrant, the issuing judge had a substantial basis
to believe that probable cause existed).
In truth, the instant case involves nothing more than a
discovery dispute. Johnson points to nothing in the
discovery rule, Md. Rule 4-263, that would require the
State to permit defense counsel to inspect the first
warrant under the circumstances. Absent any showing by
Johnson that the first warrant might contain information
that would have any legitimate bearing on his case, we are
satisfied that the trial court’s in camera review of the
warrant was sufficient to resolve the discovery dispute.
Indeed, Maryland Rule 4-263(c)(2) suggests that the State
quite properly denied the request for inspection. That
subsection provides:
(c) Matters not subject to discovery by the defendant.
This Rule does not require the State to disclose:
(2) The identity of a confidential informant, so long as
the failure to disclose the informant’s identity does not
infringe on a constitutional right of the defendant and
the State’s Attorney does not intend to call the
informant as a witness.
Md. Rule 4-263(c)(2).
Here, the State did not call the unnamed individual as a
witness, and Johnson expressly denies that he sought to
ascertain the identity of the individual. Thus, Johnson
does not suggest that the failure to disclose the identity
of the unnamed individual in and of itself infringed upon
any constitutional right. We are hard pressed to believe
that the first warrant could be sufficiently redacted to
permit the defense to inspect it without ascertaining the
unnamed individual’s identity. It appears, rather, that in
seeking to inspect the warrant the defense was attempting
to engage in a fishing expedition that likely would have
netted confidential and undiscoverable information.
Absent any showing by Johnson that the first warrant might
contain information that would have any legitimate bearing
on his case, we are satisfied that the trial court’s in
camera review of the warrant was sufficient to resolve the
discovery dispute. Cf. Zaal v. State, 326 Md. 54, 81-87
(1992) (where defendant in child sexual abuse case sought
to inspect victim’s education records in order to challenge
victim’s credibility, trial court erred by simply denying
request without at least conducting in camera review of
records and then considering whether to permit defense
counsel to review the records alone or in the court’s
presence). See generally Robinson v. State, 354 Md. 287,
323-24 (1999) (dissenting opinion) (explaining that in
cases where a defendant seeks access to confidential or
sensitive records “in camera review is the usual procedure
. . .”)
[fn1] Although Johnson refers only to the “warrants” for
himself and the unnamed individual, we presume that he
implicitly references the applications and affidavits in
support of those warrants as well. Therefore, we shall
collectively refer to the application, affidavit, and
warrant for the unnamed individual as “the first warrant.”
We shall collectively refer to the application, affidavit,
and warrant for Johnson as “the second warrant.”
[fn2] In pertinent part, counsel stated:
In body, in that search and seizure warrant and an
intrical [sic] and primary basis for it, was reference to
another search and seizure warrant which was used to stop
an individual. That individual had been stopped pursuant
to that warrant. Now, he had allegedly given statements
concerning my client. They then went and got a warrant
against my client and I raise the issue of the fact that I
would have to see and review that warrant to determine
whether or not there was any taint fixed from that warrant
to the information that was therefore given and used in
the warrant before the Court in this case.
The trial court queried, “But what about the State’s to have
warrant . . . right their warrant secured and the probable
cause for the warra secured?” It then stated, “Here’s what
we’re going to do. . . . We’ll leave that up to the
Appellate Courts. . . . [T]he previous affidavit[] will be
sealed in the record for appellate review.
[fn3] The application for the second warrant made little
mention f the first warrant. It merely mentioned that, at
the time police first saw the unnamed individual meet with
Johnson, they “had a search and seizure warrant in [their]
possession [which] named the individual we had been
performing surveillance on, his vehicle, and his residence.”
The application further indicated that, when the officers
stopped the unnamed individual after watching him meet with
Johnson they told him about the warrant, searched his
person and vehicle, and seized “a quantity of cocaine.”
Independently of the first warrant, the application made
clear that, while police were keeping the unnamed
individual under surveillance, they saw him meet with a
person driving a dark-colored Acura with Maryland license
plates bearing the number LMZ374. The unnamed individual
gave the police the Johnson’s nickname and approximate
address, and the officers were able to locate the suspect
vehicle and ascertain Johnson’s full name and precise
address. Subsequently, the police analyzed a substance
found in Johnson’s abandoned trash and determined that it
was cocaine.
Concurring Opinion by MURPHY, C.J.
I concur in the judgment, but write separately to emphasize
two points. First, the case at bar does not present the
issue of whether the “first” search warrant was subject to
“inspection for possible use in cross-examination.” Leonard
v. State, 46 Md. App. 631, 639 (1980), aff’d, 290 Md. 295
(1981). Second, the case at bar does not present the issue
of whether the affiant’s strategic decision to withhold
information that would establish the lack of probable cause
has resulted in the issuance of a search warrant by a judge
who was “misled by [the incomplete] information. . . that
the affiant knew [would create a] false [impression that
probable cause existed.]” United States v. Leon, 468 U.S.
897, 923 (1984).