In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court held that the placement of a global positioning satellite (GPS) tracking device on an automobile was a “search” under the Fourth Amendment. Like many states, Maryland responded with legislation to describe the circumstances under which a court may authorize law enforcement to use GPS to track a citizen. Unlike those in other states, the Maryland statute, Md. Code, Criminal Procedure (Crim. Proc.) § 1-203.1(b)(1), referred to the issuance of an “order” rather than “warrant” for this purpose. When detectives recovered incriminating GPS evidence against Kevin Whittington pursuant to “An Application for Court Order” (but not a “warrant”), Whittington cried foul. Answering one of two questions of first impression presented in the case, the Court of Appeals rejected Whittington’s “formalistic contention that the use of another term besides ‘warrant’ categorically prevents compliance with the Fourth Amendment,” and held “that the use of the term ‘court order’ in Crim. Proc. § 1-203.1 satisfies the warrant requirement . . . .” Whittington v. State (No. 35, Sept. Term 2020) (June 2, 2021) Slip Op. at 25; 30.
Whittington was under investigation for drug trafficking when Harford County detectives applied for an ex parte order from the district court to install a GPS tracker on his car. Neither the application nor the order authorizing the surreptitious installation of the device used the term “warrant.” Once installed, tracking data confirmed driving patterns the detectives described as “often employed by drug dealers,” and corroborated links to several residential properties they suspected were being used in Whittington’s drug business. Id. at 5. The detectives used the GPS data and other circumstantial evidence to obtain traditional search warrants for the vehicle and the residences which, in turn, yielded 5 pounds of cocaine and other contraband. Id. at 10.
Whittington moved to suppress the evidence derived using GPS data because “the Fourth Amendment strictly requires that only a formal document labeled as a ‘warrant’ satisfies the warrant requirement.” Id. at 17. He also argued that the search warrants ultimately obtained were based solely on circumstantial evidence and, therefore, lacked sufficient probable cause to support their issuance. Finally, he contended that the “good faith” exception to the exclusionary rule first announced in U.S. v. Leon, 468 U.S. 897 (1984) was unavailing in this case.
The trial judge, the Court of Special Appeals, and the Court of Appeals all rejected the primary argument and concluded that for Fourth Amendment purposes the title given a document authorizing a search is irrelevant. The high court opened discussion with the following observation:
We are not persuaded by Whittington’s argument that a label determines compliance with the Fourth Amendment. At the outset, we acknowledge a literary, but no less appliable, insight of William Shakespeare . . . :
What’s in a name? That which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call’d,
Retain that dear perfection which he owes
Without that title.
Whittington, Slip Op. at 22 (footnotes omitted), citing Romeo and Juliet, Act 2, Scene 2.
The Court noted that neither it nor the Supreme Court had yet “determined whether the label of ‘warrant’ impacts the validity of a warrant.” Id. at 23. The Court did, however, find some support for the Bard of Avon in analogous situations.
In previous cases where the issue might have been raised, courts opted instead to focus on whether the document at issue satisfied the three criteria necessary for a valid warrant under the Fourth Amendment: (1) whether it was issued by a neutral and detached magistrate; (2) whether the affiant seeking the warrant demonstrated probable cause to believe that the evidence sought would aid in the investigation of a particular offense; and (3) whether it particularly described the places to be searched and the things to be seized. Id.
In State v. Copes, 454 Md. 581 (2017), for example, the Court used this analysis to assess the validity of a court order issued pursuant to the state’s pen register statute. Finding the presence of all three of the stated prerequisites, the Court concluded that “[w]hen these criteria are met, it does not matter whether the order is labeled a ‘warrant.’ The constitutional requirements are addressed to substance, not form.” Copes, 454 Md. at 625.
The Court also found support in the legislative history of the GPS statute. As originally filed, the bill’s sponsors used the term “warrant” to describe what law enforcement would have to obtain before placing a GPS tracker on a vehicle. Whittington, Slip Op. at 27-8. In what they described a “technical amendment” after the first reading, the sponsors made a change “to harmonize nomenclature with pre-existing law enforcement practice and naming conventions,” such as the Maryland Wiretap Act, which required a court order. Id. at 28, n. 22.
The Court also reviewed the specific language of § 1-203.1 to determine whether it satisfied the prerequisites of a valid warrant. As the statute expressly required that a GPS order (1) be issued by a district or circuit court judge; (2) be based on a written application accompanied by an affidavit setting forth probable cause that the information sought will lead to evidence of the crime under investigation; and (3) describe with particularity the object of the search, “the plain text of Crim. Proc. § 1-203.1 fulfills the three criteria of a valid warrant.” Id. at 26, citing § 1-203.1(b)(1), (b)(2), and (b)(3). The Court concluded: “We accordingly hold that the use of the term ‘court order’ in Crim. Proc. § 1-203.1 satisfies the warrant requirement of the Fourth Amendment, and assume without deciding, that the court order satisfies Article 26 of the Maryland Declaration of Rights.” Id. at 30.
The Court went on to address Whittington’s argument that the warrants for the car and residences lacked probable cause and that the good faith exception to the exclusionary rule could not salvage the State’s case. The lower courts reached different results on the first of these questions, and the Court of Appeals granted certiorari to address it. The Court framed the issue as follows:
As a matter of first impression, did the issuing judge have a substantial basis for finding probable cause from exclusively circumstantial evidence of Whittington’s drug distribution activities that provided a sufficient nexus to support a warrant to search his home, car, and person?
Id. at 4.
Before tackling this question, the Court reiterated settled law regarding the limited nature of appellate review of a magistrate’s probable cause determination: “We do not conduct a de novo inquiry into whether the court order in this case was supported by probable cause, rather we must determine whether the issuing judge had a substantial basis for concluding that the [court order] was supported by probable cause.” Id. at 30 (citations and internal quotes omitted).
The Court then engaged in an extensive review of the facts, circumstances, and inferences available to the issuing magistrate within the four corners of the detectives’ affidavit before indirectly answering the question it posed:
Admittedly, the detectives did not observe direct evidence of CDS activity, but the absence of direct evidence does not preclude a finding of probable cause by the issuing court on a deferential, substantial basis review . . . . We conclude that the combination of GPS tracking, personal observation of Whittington and associates engaged in CDS activity, and experience of the detectives in investigating CDS crimes provided a substantial basis for the issuing court to find that evidence of CDS activity was likely to be found in Whittington’s home.
Finally, the Court chose to address the good faith exception to the exclusionary rule despite its acknowledgment that the question was moot in light of its rulings on other issues. “We are nonetheless constrained to address it, as an alternative holding, in an effort to stem the tide of what we perceive to be a recent and promiscuous overuse of Leon’s rare exemptions from the good faith exception in a way that Leon never intended.” Id. at 36–7 (quoting State v. Jenkins, 178 Md. App. 156, 194 (2008). After engaging in a detailed review of Leon and the Court of Appeals’ application of it in Patterson v. State, 401 Md. 76 (2007), the Court concluded that the good faith exception indeed would have applied on the facts of the case before it.
When assessing Whittington’s true import, one might start with the observation that the Court devoted six pages of its opinion to an analysis of an issue that it did not have to reach. Its discussion of the interplay of probable cause, substantial basis review, and the good faith exception to the exclusionary rule thus ought now be required reading in this arena.