By David Daggett
On May 2, 2019, the Court of Special Appeals of Maryland decided the case of Derrick Carroll v. State, No. 510, September Term, 2017. The opinion was written by Senior Judge James A. Kenney, III and is a really good refresher on United States v. Leon, 468 U.S. 897 (1984) and “good faith reliance” on search warrants.
The opinion is 32 pages long, with the first 11 pages detailing the facts of the case. I will take artistic license and condense those facts:
Sometime during the late night – early morning hours of February 22 – 23, 2015, in scenic Port Deposit, Cecil County, Maryland, Earl and Mary Loomis were murdered during a home invasion. They were bound and gagged with duct tape and died from asphyxia. There were also bleach stains on and around their bodies, resulting in chemical burns.
The Loomises were the grandparents of Derrick Carroll’s ex-wife, Kimber, though she considered them more like actual parents. Let’s just say that Derrick Carroll had a less than stellar relationship with the Loomises, as they disapproved of him, his life-style and his relationship with their granddaughter. When Kimber married Carroll and moved out of the Loomis’s residence, her relationship with her grandparents further deteriorated due to her drug addiction. The Loomises were clearly unhappy that Carroll was a known drug user and seller.
According to testimony at trial, Carroll and the Loomises had had a number of run-ins over the previous couple of years. The plot gets a little confusing as Mr. Carroll appears to have been quite the ladies’ man, with a number of fiancés and girlfriends coming in and out of the picture.
While there was much conflicting trial testimony as to what exactly occurred on February 22 – 23, one thing was clear: On the night of February 22nd, Carroll and a number of his cronies had gotten together for a “tattoo party” at Ellen Lough’s trailer in Port Deposit. There were at least seven people present, including Carroll and his friends Ellen Lough, London Anderson, Azu Azuewah, Ashley Browe, Kayla Way-Nunley and some dude named “Hummer.” A trailer park tattoo party! How’d I miss out on this shindig? I’ve got to expand my circle of friends.
During the party, Carroll got tattooed on his hands by Hummer. While the opinion was silent as to the nature of the tattoos, I’m picturing on one hand and on the other, but that’s just me. Feel free to use your own imagination.
According to trial testimony, at some point in the early hours of February 23rd, Carroll entered the trailer with a “couple of cases of guns and ammunition.” He appeared to have arrived in a dark blue or green Chevy S-10 pick-up, which was parked outside. The vehicle was similar to the truck owned by the victim, Mr. Loomis. Asked by Mr. Anderson where he had gotten the guns, Carroll stated that he had “robbed …his daughter’s grandparents and had duct-taped their faces until they couldn’t breathe.” People then purportedly left the party to dump the S-10 pick-up in White Marsh. As they left the trailer, Carroll was in a taxi, and the others were either riding in Ms. Lough’s car or in the S-10. Why Carroll took a taxi remains a mystery, if he even did.
While everyone at the party testified at trial except “Hummer,” their testimony – as you can imagine – had the consistency of raw sewage. It doesn’t appear that any two of the six revelers testified to the same thing. Considering the amount of drugs and alcohol that was apparently consumed, it’s a wonder they even knew what county they were in. Kudos to the Cecil County prosecutors for sorting this mess out for the jury.
Rebecca Garland, who lived in a trailer adjacent to Ms. Lough, testified that on the morning of February 23, she saw a truck similar to Mr. Loomis’s S-10 and identified Carroll as the person removing garbage bags from the truck and taking them into Lough’s trailer.
Mr. Carroll testified that he and Kayla Way-Nunley arrived at the party together and that he had had his hands tattooed at about 9:00 p.m. Because his hands were sore, he used heroin and drank a large amount of alcohol to numb the pain. As my friend Lindy Angel would say, “Buck up, fella.” He then fell asleep and remained in the trailer until the morning of the 24th, taking a taxi home. No explanation was given of what he did on the 23rd.
Neighbors and family members of the Loomises testified that they had last spoken with Mr. and Mrs. Loomis on February 22, but they were unable to contact them on the 23rd and that the truck was missing from their driveway. It was not until February 25th that Mr. and Mrs. Loomis were found by relatives in an upstairs room, their hands and faces wrapped in tape. The cause of death was asphyxia. The house had been ransacked and both the gun safe and jewelry boxes had been emptied. Mr. Loomis was a collector of guns. His last will and testament was found in his home office. While their granddaughter, Kimber, was no longer a beneficiary under the will, it was apparently Kimber and Carroll’s belief that “if anything would ever happen to [the Loomises] that she would be very well off. “
Derrick Carroll’s mother testified on behalf of the defense and tried to lay the rap on Kimber. Good luck with that one.
Detectives located Mr. Loomis’s S-10 in a parking lot in Perryville on February 26. Upon tracing the victim’s bank records, detectives obtained video of Ms. Lough using their bank card after they had been killed. A ski mask and documents belonging to Mr. Loomis were found inside Lough and Azu Azuewah’s car. When called to testify, Ms. Lough invoked her Fifth Amendment privilege.
Having identified Carroll as a suspect in the murder and robbery, law enforcement subsequently learned that he had gone (fled?) to Trenton, New Jersey and was in the area of Bryn Mawr Avenue. Because there was an outstanding arrest warrant for Mr. Carroll for a prior robbery in Elkton, Maryland on February 9, the detectives sought the assistance of members of the U.S. Marshal’s Office Fugitive Task Force. Cue close-up of Tommy Lee Jones. Carroll was observed exiting a residence on Bryn Mawr, carrying a white trash bag and walking down the sidewalk and out of the sight of the marshals. When he reappeared without the trash bag, Carroll was taken into custody. The marshals then took into their possession the white trash bag, as well as three black trash bags that the white trash bag was atop.
On that same day (Feb. 26), an officer with the Mercer County Homicide Task Force, after discussions with Cecil County officers, prepared affidavits in support of search warrants to search the residence of 27 Bryn Mawr Avenue and the black garbage bag on which the white bag was lying. The opinion then outlined what it deemed the pertinent language in the warrant. A New Jersey Superior Court judge issued search warrants for the residence and for the black garbage bag. There was no mention of any warrants regarding the white garbage bag or the other two black garbage bags.
Inside the residence was recovered a cell phone, a stained sweatshirt, a box of ammunition, a holster, and three ski masks, one of which it was later determined to contain the DNA of Azu Azuewah and another the DNA of Ellen Lough.
From inside the garbage bag, police recovered a black handbag, a key to the Loomises’ house, a key for Mrs. Loomis’s Honda and a Ruger weapon magazine end cap and a Ruger key, which is a safety feature that locks and unlocks the firearm. Mrs. Loomis was the sole contributor of the DNA that was found on one of the keys.
Motion to Suppress
Before trial in Cecil County, the defense filed a motion to suppress the evidence obtained from the searches of the residence and the garbage bag. They claimed that the warrants were so defective and lacking in probable cause that no reasonably well-trained officer should have relied on them. The trial court denied the motion, finding that there was sufficient probable cause within the four corners of the warrant and application for the New Jersey judge to have issued them. The trial judge also determined that even if sufficient probable cause was lacking, the officers executing them had relied on them in good faith. The court also opined that “someone could make the argument that the [garbage bag] was abandoned.” At trial, the State introduced into evidence many of the items recovered from the searches. Needless to say, Mr. Carroll was convicted and his appeal followed.
Court of Special Appeals
During his argument before the CoSA, the appellant again contended that the affidavit did not establish a substantial basis for the issuing judge to conclude there was probable cause to believe that Carroll was involved in the robbery and homicides. In response to the “good faith” ruling of the trial court, the appellant reiterated that the warrants were so “obviously deficient” that “no trained officer could reasonably have concluded otherwise.”
Of particular significance was his additional contention that “the law of the state where a search was conducted controls” in a motion to suppress evidence. The appellant argued that the State of New Jersey has expressly refused to adopt the good faith exception to the warrant requirement and therefore, both the search of the residence as well as of the discarded garbage bags must be conducted pursuant to a valid warrant. Trash bags? No wonder the Soprano’s got away with murder. To add insult to injury, the appellate team argued that trial counsel’s failure to challenge the search of the garbage bag was ineffective assistance of counsel.
The State, as expected, responded that the issuing judge had “a substantial basis to find a nexus between the criminal activity and the places to be searched” and that the warrants were sufficient. The State also argued that “good faith” still applied because the trial attorney did not preserve his claim that Maryland courts are bound by New Jersey law and the admissibility of evidence is governed by the law of Maryland as the “forum state.” P. 15-16 of Slip Opinion. The State also contended that any error in the admission of evidence recovered in the searches was harmless.
Court of Special Appeals Analysis
The CoSA stated that, in order to determine whether an issuing judge had a substantial basis to find probable cause, they need only “look to the information provided in the warrant and accompanying application documents.” Id @ 16-17. The Court determined that the totality of the circumstance analysis, as established in Illinois v. Gates, 462 U.S. 213 (1983) was the appropriate standard to determine probable cause and that probable cause may be determined from either direct observations of the affiant, hearsay information provided to the affiant, or both.
The appellant contended that there was not a sufficient nexus between the criminal activity, the things to be seized and the place to be searched. The defense argued that the affidavit was defective as it merely stated the Carroll was “identified as a suspect” and that the allegation that he was a suspect was a conclusory statement that was not supported by any facts contained in the affidavit. Furthermore, there was nothing in the affidavit that “provided any factual foundation for the officer’s conclusory assertion that the appellant was a suspect in the homicide.” Id @19 Slip Opinion
The CoSA determined that there was a clear nexus between Carroll and the places to be searched and things to be seized. The Court went on to determine, however, that while the affidavit did provide meaningful information about the murder, there was indeed no information in the affidavit establishing why the appellant was a “suspect” in the murder. That was merely a conclusory statement, failing to establish any probable cause that Carroll was indeed, a suspect.
Having determined that the affidavit and warrant lacked probable cause, the Court next turned its attention to the questions of “good faith” reliance by law enforcement on the defective warrant and which state’s law should apply.
The appellant contended that New Jersey law should apply, as the affidavit, warrant and search were all done in New Jersey. They were placing their eggs in this basket as the New Jersey courts have refused to adopt the Leon “good faith exception” to the warrant requirement. The State countered that the appellant had not preserved his claim at the suppression hearing that New Jersey law applied. While the CoSA agreed in principle with the State on this matter, they nonetheless determined that because the suppression judge had found that the officers executed the warrants in good faith reliance, the issue was thus properly before the Court. That got rid of the ineffective assistance of counsel claim, thankfully.
Whose Law Applies?
The Court of Special Appeals pointed out that both the United States Supreme Court and the Maryland Court of Appeals have adopted a good faith exception to the warrant requirement, that is, that evidence seized under a warrant later found to be defective would still be admissible so long as officers “acted in good faith with reasonable reliance on the warrant.” Id @22; McDonald v. State, 347 Md. 452, 467 (1997); United States v. Leon, 468 U.S. 897, 919-22 (1984). This good faith exception exists as long as “the affidavit is not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” or that it is not “so facially deficient that the executing officers cannot reasonably presume the warrant to be valid.” P. 22 Slip Opinion; McDonald, 347 Md. At 468-469. The Court found that “good faith” did exist in these circumstances.
Having found good faith, the Court of Special Appeals, in a question of first impression, then had to determine which approach Maryland would adopt when ruling on the admissibility of evidence obtained in a search, where, if judged by the law in the jurisdiction where the search occurred, it would render the evidence inadmissible in that jurisdiction. Their analysis revealed four different approaches that have been adopted by states across the country:
- a mechanical approach determined by the law of the forum;
- a significant relationship approach that looks to which State has the greater interest in the process by which the evidence was obtained;
- a governmental interest approach that weighs the interests of the forum State against those of the State where the evidence was obtained; and
- an exclusionary rule approach based on the underlying policies of the respective exclusionary rules of the States involved.
The appellant and the State both sought bright line rules, with the appellant arguing for the law of the state where the search occurred, while the State argued for the laws of the forum state. The Court declined to adopt either of those approaches, instead choosing to focus on the governmental interest approach, weighing the overall interests of Maryland versus the interests of New Jersey. The Court decided that because there was nothing in the record to suggest that the Maryland police were consciously trying to circumvent Maryland law in the warrant process, and that New Jersey was involved only because the appellant had left Maryland for New Jersey, that whatever interest New Jersey may have in the process by which the evidence was obtained, Maryland had a greater governmental interest in the case. Booyeah! The Court went on to point out that ‘the application of the good faith exception in this case will, in no way, impact the privacy rights of New Jersey citizens or impair or negatively disrupt the procedures employed in New Jersey’s criminal justice system.” @p. 28
In a victory for the State, the Court of Special Appeals held that the good faith exception applied in this case; that the warrants were not so obviously deficient that they could not have been reasonably relied upon by the officers in good faith; and that the evidence recovered from both the residence and the garbage bag was admissible at trial. The convictions were affirmed! They also determined that there was no need to address the ineffective assistance of counsel claim nor the “abandonment” argument.
As previously mentioned, this case serves as a good refresher for police and prosecutors regarding the warrant process and the “good faith” exception to the exclusionary rule. There are at least four key takeaways from this opinion:
- Whenever competing an affidavit and request for warrant, make sure that probable cause exists within the four corners of the document to establish that the suspect committed the crime;
- Whenever competing an affidavit and request for warrant, make sure that probable cause exists within the four corners of the document to establish a nexus between the suspect, the crime, the places to be searched and the items to be seized;
- If you are seeking to have a warrant prepared and executed outside the boundaries of Maryland, it is extremely helpful to know the specific legal requirements from that foreign jurisdiction; and
- If you are seeking to have a warrant prepared and executed outside the boundaries of Maryland, it’s probably a good idea to work with your local prosecutor to help facilitate assistance from a prosecutor from the foreign jurisdiction.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEYS’ OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT.