Patterson v. State

*112 BATTAGLIA, Judge,

dissenting.

I respectfully dissent. Having concluded, correctly in my view, that the issuing judge lacked a substantial basis for finding probable cause to support the search warrant at issue, the majority erroneously applies a hypertrophic version of the good faith exception doctrine of United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), to uphold the patently unconstitutional search in the case sub judice. I would hold that the warrant affiant could not reasonably have relied on the warrant and that the particularity requirement is implicated whenever a search warrant enumerates items for which probable cause is as attenuated as here.

Since the Supreme Court decision in Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), the Fourth Amendment to the U.S. Constitution 1 has been held applicable to the states by incorporation through the Fourteenth Amendment. 2 The resulting federalization of search and seizure law meant, in particular, that the states were required to follow the exclusionary rule of Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914) (holding that evidence seized in violation of the Fourth Amendment generally is inadmissible at resulting criminal trial). The Supreme Court subsequently limited the application of the exclusionary rule in a series of cases, United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , *113 38 L.Ed.2d 561 (1974) (exclusionary rule inapplicable to grand jury proceedings); United States v. Janis, 428 U.S. 433 , 96 S.Ct. 3021 , 49 L.Ed.2d 1046 (1976) (exclusionary rule inapplicable to civil proceedings); Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976) (Fourth Amendment claims could not be raised in habeas corpus petition); United States v. Payner, 447 U.S. 727 , 100 S.Ct. 2439 , 65 L.Ed.2d 468 (1980) (evidence illegally seized from third party admissible in criminal trial), culminating in Leon . Because it is well settled that Article 26 of the Maryland Declaration of Rights 3 is construed in pan materia with the Fourth Amendment, Byndloss v. State, 391 Md. 462 , 465 n. 1, 893 A.2d 1119 , 1121 n. 1 (2006); Fitzgerald v. State, 384 Md. 484, 506 , 864 A.2d 1006, 1019 (2004), this Court generally has applied Supreme Court precedent to delineate the extent of the protections guaranteed by Article 26.

Although Leon relaxed the usual probable cause requirement 4 to the less stringent standard, “whether ‘a reasonably well trained officer would have known that the search was illegal’ despite the authorization from the judge,” Minor v. State, 334 Md. 707, 717 , 641 A.2d 214, 218 (1994), quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. at 3420 n. 23, 82 L.Ed.2d at 698 n. 23, we have never held that a judge’s authorization effectively relieves the affiant from his own independent duty to act in conformity with the law. The majority in the instant case holds that a police officer may reasonably rely on an objectively unreasonable search warrant. Moreover, it is well settled that the behavior of the police officer is judged under *114 an objective standard. Leon, 468 U.S. at 922 , 104 S.Ct. at 3420 , 82 L.Ed.2d at 698 . Therefore, the majority holding today countenances objectively reasonable reliance on an objectively unreasonable search warrant. Because this holding is logically impossible, I dissent.

I. The Good Faith Exception to the Exclusionary Rule

As the majority points out, Leon explicated four circumstances under which the exclusionary rule would still apply, and provided that, under those circumstances, a reviewing court should infer that the warrant affiant did not act in good faith. Ante at 104, 930 A.2d at 365. Those “exception[s] to the exception,” 5 Minor, 334 Md. at 722, 641 A.2d at 221 (Bell, J., dissenting), include: (1) cases where the warrant affidavit was procured with “knowing or reckless falsity,” Leon, 468 U.S. at 914 , 104 S.Ct. at 3416 , 82 L.Ed.2d at 693 ; Franks v. Delaware, 438 U.S. 154, 165 , 98 S.Ct. 2674, 2681 , 57 L.Ed.2d 667, 678 (1978); (2) cases where the judge or magistrate has abandoned all pretense of neutrality and functions effectively “as a rubber stamp for the police,” Aguilar v. Texas, 378 U.S. 108, 111 , 84 S.Ct. 1509, 1512 , 12 L.Ed.2d 723, 727 (1964), or where the magistrate acts as “an adjunct law enforcement officer,” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 , 99 S.Ct. 2319, 2325 , 60 L.Ed.2d 920, 929 (1979); (3) cases where a warrant was issued in reliance on an affidavit that fails to provide “ ‘a substantial basis for determining the existence of probable cause’,” Leon, 468 U.S. at 915 , 104 S.Ct. at 3416 , 82 L.Ed.2d at 693 , quoting Illinois v. Gates, 462 U.S. 213, 239 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527, 549 (1983); and (4) cases where a warrant is “ ‘so facially deficient ... that the executing officers cannot reasonably presume it to be valid.’ ” Greenstreet v. State, 392 Md. 652, 679 , 898 A.2d 961, 977 *115 (2006), quoting Leon, 468 U.S. at 923 , 104 S.Ct. at 3421 , 82 L.Ed.2d at 699 .

Clearly, exceptions (1) and (2) are inapposite here. The majority quotes language from Leon, 468 U.S. at 923 , 104 S.Ct. at 3421 , 82 L.Ed.2d at 699 , to cast exception (3) as whether “the warrant was based on an affidavit that was so lacking in probable cause as to render official belief in its existence entirely unreasonable.... ” Ante at 104, 930 A.2d at 365. Although it is undisputed that such a circumstance would invalidate a search conducted in reliance on that warrant, the majority overlooks the following passage from Leon :

Third, reviewing courts will not defer to a warrant based on an affidavit that does not “provide the magistrate with a substantial basis for determining the existence of probable cause.” “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Even if the warrant application was supported by more than a “bare bones” affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances, or because the form of the warrant was improper in some respect.

Id. at 915 , 104 S.Ct. at 3416-17 , 82 L.Ed.2d at 693-94 (emphasis added) (citations omitted).

The Leon Court further noted, “[i]n so limiting the suppression remedy, we leave untouched the probable-cause standard and the various requirements for a valid warrant.” Id. at 923 , 104 S.Ct. at 3421 , 82 L.Ed.2d at 699 . In particular, the probable cause standard left untouched was that explicated one year earlier in Gates :

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is *116 simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

462 U.S. at 238-39 , 103 S.Ct. at 2332 , 76 L.Ed.2d at 548 (alteration in original), quoting Jones v. United States, 362 U.S. 257, 271 , 80 S.Ct. 725, 736 , 4 L.Ed.2d 697, 708 (1960). Likewise, the “various requirements for a valid warrant” were embodied in the Gates totality-of-the-circumstances test. 6

In the instant case, the majority finds the search warrant deficient when measured by the Gates test. As I will explain subsequently, the test contemplated in Gates and applied in the case sub judice is not a de novo review of the ultimate legal conclusion of the warrant-issuing judge; rather, our review extends “great deference” to the judge’s decision. Id. at 236 , 103 S.Ct. at 2331 , 76 L.Ed.2d at 547 . The Gates Court held that the proper standard of appellate review of search warrants was whether “the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing----” Id. (citation omitted). Under that deferential standard, the majority correctly holds that the judge lacked a “substantial basis” for issuing the search warrant.

The majority cites the opinion of Judge Diana Gribbon Motz of the U.S. Court of Appeals for the Fourth Circuit in United States v. Bynum, 293 F.3d 192, 195 (4th Cir.2002), for the proposition that “ ‘[substantial basis’ provides the measure for determination of whether probable cause exists in the first instance.” In support of that contention, Judge Motz cites United States v. Harris, 403 U.S. 573 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971). Harris applied the substantial basis test to determine whether an informant’s hearsay could be relied *117 upon in support of a search warrant. Nowhere in Harris did the Court address the existence vel non of probable cause; the entire focus of Harris was whether the magistrate’s determination was reasonable. Id. at 579-80 , 91 S.Ct. at 2080 , 29 L.Ed.2d at 731 . In Part II of the opinion by Chief Justice Warren E. Burger, a total of only three Justices reviewed the magistrate’s determination under a deferential standard of review, Harris, 403 U.S. at 580-83 , 91 S.Ct. at 2080-82 , 29 L.Ed.2d at 732-33 (Burger C.J., joined by Black and Black-mun, JJ.); the Harris Court took a first step towards the eventual overruling of Aguilar, 378 U.S. at 108 , 84 S.Ct. at 1509 , 12 L.Ed.2d at 723 , and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969), that culminated some twelve years later in Gates .

The distinction lost on the majority in the instant case is the difference between whether there actually was probable cause, and simply whether an issuing judge could have determined that there was probable cause. When Leon was decided, Justice William J. Brennan penned a vigorous dissent in which he pointed out the redundancy of the third Leon prong and the holding of Gates , and questioned the necessity for reaching the issue decided in Leon when it was likely that the lower courts would have reached the same result on remand simply by applying Gates. Leon, 468 U.S. at 958-59 , 104 S.Ct. at 3444-45 , 82 L.Ed.2d at 721-22 (Brennan, J., dissenting). Unfortunately, not even Justice Brennan could foresee the full enormity that would result from Leon and its progeny:

Given such a relaxed standard [as Gates], it is virtually inconceivable that a reviewing court, when faced with a defendant’s motion to suppress, could first find that a warrant was invalid under the new Gates standard, but then, at the same time, find that a police officer’s reliance on such an invalid warrant was nevertheless “objectively reasonable” under the test announced today. Because the two standards overlap so completely, it is unlikely that a warrant could be found invalid under Gates and yet the police reliance upon it could be seen as objectively reasonable; otherwise, we would have to entertain the mind-boggling *118 concept of objectively reasonable reliance upon an objectively unreasonable warrant.

Id. (emphasis added). Unfortunately, the majority in the present case entertains exactly that “mind-boggling concept” and holds that the police officer could reasonably rely on an objectively unreasonable search warrant.

II. Probable Cause, Substantial Basis and Standards of Review

The notion of “substantial basis” arises in the context of appellate review of search and seizure, not the determination of probable cause per se. In Greenstreet, 392 Md. 652 , 898 A.2d 961 , we recently explicated the process that appellate courts undertake in reviewing contested search and seizure warrants. “We determine first whether the issuing judge had a substantial basis to conclude that the warrant was supported by probable cause.” Id. at 667 , 898 A.2d at 970 . In so doing, we do not apply a de novo standard of review; rather, we apply a deferential standard. Id. The task of the issuing judge is to determine the existence of probable cause, i.e., “to make a practical, common-sense decision whether, given all the circumstances ..., there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 667-68 , 898 A.2d at 970 , citing Gates, 462 U.S. at 238 , 103 S.Ct. at 2332 , 76 L.Ed.2d at 548 . The task of the appellate court, however, is to determine only if there exists a substantial basis for the issuing judge’s decision that probable cause existed. This cannot be the same as the legal determination whether probable cause existed in the first place.

In Ker v. California, 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963), the Supreme Court reviewed a warrantless search and held that the standard of review was de novo. The Court explained that “the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case” but that such findings “are respected only insofar as consistent with federal constitutional guarantees” and in any event, “findings of state courts are by no means insulated against examination” *119 by the Supreme Court. Id. at 33-34 , 83 S.Ct. at 1630 , 10 L.Ed.2d at 738 . The Court stated that “[w]hile this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the funda mental—i.e., constitutional—criteria established by this Court have been respected.” Id. at 34 , 83 S.Ct. at 1630 , 10 L.Ed.2d at 738 . Therefore, the existence of probable cause per se is a mixed question of law and fact susceptible to de novo review. See, e.g., United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.1984); 6 Wayne R. LaFave, Search & Seizure § 11.7(c) (4th ed. 2004).

By contrast, substantial basis appellate review of the judge’s decision to issue a warrant has been deemed by some courts tantamount to review under the clearly erroneous standard. See, e.g., United States v. Spears, 965 F.2d 262, 269 (7th Cir.1992); 6 LaFave, at § 11.7(c). Indeed, the Court of Special Appeals has taken the view that substantial basis review is even more deferential than clear error review. See, e.g., State v. Coley, 145 Md.App. 502, 521 , 805 A.2d 1186, 1198 (2002); State v. Amerman, 84 Md.App. 461, 472 , 581 A.2d 19, 24 (1990). Substantial basis review already affords the benefit of the doubt to the State, permitting the admission of evidence seized pursuant to warrants that would not withstand de novo review. Judge Charles E. Moylan of the Court of Special Appeals explained just how much deference substantial basis review grants the issuing judge:

Under the circumstances, it is perfectly logical and not at all unexpected that a suppression hearing judge might say, “I myself would not find probable cause from these circumstances; but that is immaterial. I cannot say that the warrant-issuing judge who did find probable cause from them lacked a substantial basis to do so; and that is material.”

Amerman, 84 Md.App. at 464 , 581 A.2d at 20 . See also United States v. Ritter, 416 F.3d 256, 263-64 (3d Cir.2005) *120 (“Were we reviewing the magistrate’s decision de novo, we might reach a different result. However, the Supreme Court has charged us, when reviewing the sufficiency of an affidavit and resulting warrant, not to engage in ‘after-the-fact scrutiny’ that ‘take[s] the form of de novo review.’ ”) (alteration in original), quoting Gates, 462 U.S. at 236 , 103 S.Ct. at 2331 , 76 L.Ed.2d at 547 .

The Supreme Court explained the policy considerations undergirding its decision to grant deference to the warrant-issuing magistrate. Its principal concern was that police, if confronted with a hypertechnical warrant process subjected to detailed judicial scrutiny, would be tempted to skip the warrant process altogether. Gates, 462 U.S. at 236 , 103 S.Ct. at 2331 , 76 L.Ed.2d at 547 (“If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search.”).

Even though the warrant application process is ex parte, Leon, 468 U.S. at 970 n. 22, 104 S.Ct. at 3451 n. 22, 82 L.Ed.2d at 729 n. 22 (Stevens, J., concurring and dissenting); Franks, 438 U.S. at 169 , 98 S.Ct. at 2683 , 57 L.Ed.2d at 680 , and a reviewing court sees essentially the same record as the issuing judge, the Court nonetheless has adopted a deferential rather than a de novo standard for the express purpose of encouraging the police to apply for warrants. See Ornelas v. United States, 517 U.S. 690, 699 , 116 S.Ct. 1657, 1663 , 134 L.Ed.2d 911, 920 (1996), rev’g United States v. Ornelas-Ledesma, 16 F.3d 714 (7th Cir.1994) (The Supreme Court determined that warrantless searches are subject to de novo review rather than the Gates substantial basis test applicable to review of search warrants, stating explicitly that “the police are more likely to use the warrant process if the scrutiny applied to a magistrate’s probable-cause determination to issue a warrant is less than that for warrantless searches.”). As the Leon Court stated:

*121 Because a search warrant “provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime,’ ” we have expressed a strong preference for warrants and declared that “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according “great deference” to a magistrate’s determination.

468 U.S. at 913-14 , 104 S.Ct. at 3415-16 , 82 L.Ed.2d at 692-93 (citations omitted). See United States v. Ventresca, 380 U.S. 102, 108 , 85 S.Ct. 741, 746 , 13 L.Ed.2d 684, 689 (1965) (“A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”).

The majority erroneously conflates the deferential substantial basis standard of appellate review applicable to the issuance of search and seizure warrants with the legal determination of probable cause per se. The majority errs in adopting the analysis of Bynum, 293 F.3d at 195 , where it states, “[i]f a lack of a substantial basis also prevented application of the Leon objective good faith exception, the exception would be devoid of substance.” Ante at 105, 930 A.2d at 366. The Supreme Court itself, however, stated the exact opposite of Bynum and today’s holding. See Leon, 468 U.S. at 915 , 104 S.Ct. at 3416 , 82 L.Ed.2d at 693 , quoting Gates, 462 U.S. at 239 , 103 S.Ct. at 2332 , 76 L.Ed.2d at 549 , where the Court said, “reviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause’.” The Bynum court and the majority today fail to appreciate the fact that deferential review already permits borderline cases to proceed in favor of the State. To maintain as they do that an affiant may reasonably rely on a warrant that does not *122 satisfy even substantial basis review would amount as a practical matter to holding that the decision of a judge to issue a warrant is not susceptible to appellate review. That cannot be a correct statement of the law. Indeed, the Leon Court said, “[d]eference to the magistrate ... is not boundless.” 468 U.S. at 914 , 104 S.Ct. at 3416 , 82 L.Ed.2d at 693 . The Court pointed out that a police officer’s good faith belief that he is acting in accord with the Fourth Amendment is insufficient in the absence of an objective basis for that belief. Id. at 915 n. 13, 104 S.Ct. at 3416 n. 13, 82 L.Ed.2d at 693 n. 13. The objective determination of the affiant’s good faith can come only from an external source. In the usual case where there is no evidence of deliberate falsification in the warrant application, Franks , 438 U.S. at-, 98 S.Ct. at-, 57 L.Ed.2d at -, that external source can only be the four corners of the warrant itself and its supporting affidavit. Greenstreet, 392 Md. at 669 , 898 A.2d at 971 ; Valdez v. State, 300 Md. 160, 168 , 476 A.2d 1162, 1166 (1984). In the instant case, that warrant has been found objectively unreasonable by this Court.

What the majority proposes is to insulate farther the actions of the affiant from appellate review by holding that the officer acted in good faith despite our holding that the warrant clearly was unsupported by probable cause. Moreover, the inevitable result of the holding today is “to convey a clear and unambiguous message to [judges] that their decisions to issue warrants are now insulated from subsequent judicial review.” Leon, 468 U.S. at 956 , 104 S.Ct. at 3443 , 82 L.Ed.2d at 720 (Brennan, J., dissenting).

III. The Particularity Requirement

The Fourth Amendment was enacted in large part to prohibit the odious British practice of general warrants that permitted virtually unlimited searches of private dwellings and places of business. See Minnesota v. Carter, 525 U.S. 83, 94 , 119 S.Ct. 469 , 475, 142 L.Ed.2d 373, 383 (1998) (Scalia, J., concurring), citing Semayne’s Case, 77 Eng. Rep. 194 (K.B. 1604) and 4 Sir Edward Coke, Institutes of the Laws of England 176-177 (1797) for the proposition that the Magna *123 Carta had outlawed “general warrants based on mere surmise”; Arizona v. Evans, 514 U.S. 1, 23 , 115 S.Ct. 1185, 1197 , 131 L.Ed.2d 34, 52 (1995) (Stevens, J., dissenting) (“The use of general warrants to search for evidence of violations of the Crown’s revenue laws understandably outraged the authors of the Bill of Rights.”); Lo-Ji Sales, 442 U.S. at 325 , 99 S.Ct. at 2323 , 60 L.Ed.2d at 927 (“This search warrant and what followed the entry on petitioner’s premises are reminiscent of the general warrant or writ of assistance of the 18th century against which the Fourth Amendment was intended to protect.”). The result was the fundamental requirement that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. (emphasis added). That search warrants must “particularly describe ... the things to be seized” is so elementary that courts have become inured to its implications. The majority today effectively would obviate the particularity requirement by holding the fourth Leon exception inapplicable to the case sub judice.

The warrant at issue particularly described a physical location, 12525 Laurel Bowie Road, Room 217, and a list of things to be seized that included “a firearm and/or ammunition, paperwork and documentation related to the possession, acquisition, disposition, and maintenance of firearms in Garfield Patterson’s name or known alias ... as well as ammunition magazines, ammunition boxes, holsters, ammunition pouches, firearm boxes, cleaning kits, bullet proof vests, firearm parts, and accessories for firearms.... ” The fact that the warrant enumerated, with seemingly impressive precision, a lengthy roster of items does not necessarily mean that the warrant satisfied the particularity requirement. By so holding today, the majority elevates form over substance and denies that the particularity requirement has any substantive meaning. The clear conclusion from this record is that only on the basis of wildly improbable hunches was there any reason whatsoever to believe that there was “a fair probability” that the Petition *124 er possessed any of the enumerated articles on November 17, 2003.

The warrant in the case sub judice violated the particularity requirement. Groh v. Ramirez, 540 U.S. 551, 557 , 124 S.Ct. 1284, 1289 , 157 L.Ed.2d 1068, 1078 (2004) (holding that search warrant failed particularity when it failed to incorporate by reference a facially valid affidavit); Giles v. State, 10 Md.App. 593, 597 , 271 A.2d 766, 768 (1970) (conviction reversed because search warrant was blank in positions provided for name and place to be searched, and warrant failed to incorporate a supporting affidavit by reference). The warrant purported to “particularly describe” items to be seized that could not reasonably have been expected to be found in Room 217 of the Red Roof Inn, and in fact never were found. Moreover, pursuant to Article 26, the General Assembly in 1939 7 enacted a statute mandating, inter alia, that “[t]he search warrant shall ... name or describe, with reasonable particularity ... the person, building, apartment, premises, place, or thing to be searched; [and] the grounds for the search[.]” Md.Code (1957, 2001 Repl.Vol. & 2006 Supp.), Section l-203(a)(3)(ii) of the Criminal Procedure Article. Because the grounds for the search in the present case were so insubstantial, it is clear that the search also violated Section l-203(a)(3)(ii).

One wonders whether the majority’s reasoning would apply if the warrant application had carefully and precisely listed a B-2 bomber, the original copy of Newton’s Principia, fairy dust and a unicorn as the items to be seized. Obviously the point is to illustrate by means of a deliberately absurd example that the particularity requirement must carry a substantive meaning in addition to any formal or procedural aspect. I submit that when a warrant fails substantial basis review because its factual underpinnings are as patently insubstantial as in this case, then it will also be true that the warrant fails *125 under the particularity requirement. Moreover, “[although the Court’s opinion tends to overlook this fact, the requirement of particularity is not a mere ‘technicality,’ it is an express constitutional command.” Leon, 468 U.S. at 947 , 104 S.Ct. at 3439 , 82 L.Ed.2d at 714 (Brennan, J., dissenting).

When viewed in light of the plain view doctrine, see, e.g., Minnesota v. Dickerson, 508 U.S. 366, 374-75 , 113 S.Ct. 2130, 2136-37 , 124 L.Ed.2d 334, 345 (1993); Horton v. California, 496 U.S. 128, 136-137 , 110 S.Ct. 2301, 2307-08 , 110 L.Ed.2d 112, 122-23 (1990); Michigan v. Long, 463 U.S. 1032, 1050 , 103 S.Ct. 3469, 3481 , 77 L.Ed.2d 1201, 1220 (1983), today’s decision assumes a more ominous tone. By upholding the search at issue in this case, the majority gives its imprimatur to a grave abuse of the warrant process. If the good faith exception applies here, then the inevitable effect will be to obviate the particularity requirement, because today’s decision effectively permits the issuance of a general warrant. Article 26 of the Maryland Declaration of Rights commands that “all general warrants ... are illegal, and ought not to be granted.” I cannot join the majority in permitting such a “grievous and oppressive” practice.

IV. Maryland Cases Under the Good Faith Exception

A review of our cases illustrates the anomaly of the majority decision in the instant case. In Greenstreet, 392 Md. at 652 , 898 A.2d at 961 , a search warrant had been issued on the basis of incriminating evidence discovered in a search of discarded trash pursuant to California v. Greenwood, 486 U.S. 35, 37 , 108 S.Ct. 1625, 1627 , 100 L.Ed.2d 30, 34 (1988) (trash left for collection outside the curtilage of a home may be searched without a warrant). The listed date of the trash search was more than one year prior to the date of warrant execution, and we applied the four corners rule to hold that the warrant on its face was stale and consequently, that the evidence gathered pursuant to the warrant must be excluded. Greenstreet, 392 Md. at 661 , 898 A.2d at 966 . The State argued that the good faith exception should apply, in part because extrinsic evidence *126 8 strongly suggested that the date noted on the warrant was a typographical error, but “we [did] not conclude that a reasonable, well-trained police officer executing the 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 giving rise to a belief in probable cause [was] a year old and [did] not indicate continuing criminal activity.” Id. at 683 , 898 A.2d at 979 .

In McDonald v. State, 347 Md. 452 , 701 A.2d 675 (1997), the appellant was convicted of possession of CDS with intent to distribute, having lost a suppression hearing, at which he argued that the search warrant was defective because it was anticipatory 9 and because it was unsupported by probable cause. Id. at 456 , 701 A.2d at 677 . Police suspicion had been aroused when a UPS investigator discovered during a random check a package containing CDS that was addressed to the premises in question. Id. at 456-57 , 701 A.2d at 677 . The police subsequently filed an application for a search warrant for the address disclosed by UPS, and arranged for a controlled delivery. Id. at 457-59 , 701 A.2d at 677-78 . After the controlled delivery, the police executed the search warrant and discovered the appellant in possession of contraband. Id. at 460 , 701 A.2d at 679 .

The State argued successfully that the good faith exception applied. Id. at 463 , 701 A.2d at 680 . In its analysis, the Court avoided the question whether the warrant itself was supported by probable cause, looking instead to the four-pronged Leon test. Id. at 469, 701 A.2d at 683 . In holding that the appellant had failed to demonstrate that any of the “exceptions to the exception” outlined in Leon were applicable, the Court noted *127 that: (1) the appellant never argued that the issuing judge had been misled through deliberate falsehood or reckless disregard for the truth by the warrant affiant, 10 id. at 471, 701 A.2d at 684 ; (2) there was nothing in the record to support the notion that the issuing judge had abandoned his impartiality, 11 id.; (3) “the affidavit was not so lacking in indicia of probable cause that it was unreasonable for the officers to rely upon it ... [because] [t]he warrant application contained several objective facts from which the officers could have reasonably concluded that there was probable cause to search” the premises, id. at 472 , 701 A.2d at 685 ; and (4) the warrant itself was not “ ‘so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers [could not] reasonably presume [the warrant] to be valid.’ ” Id. at 473 , 701 A.2d at 685 , quoting Connelly v. State, 322 Md. 719, 729 , 589 A.2d 958, 963 (1991).

In Minor, 334 Md. at 707 , 641 A.2d at 214 , this Court examined the third Leon exception and its applicability to the suppression of CDS evidence uncovered through a search for stolen goods. The police officer had been investigating the theft of a motorcycle and had reason to believe, based on the word of a confidential informant, that the motorcycle was stored at a particular residence. Id. at 710-11, 641 A.2d at 215 . When the warrant was executed, the police did not find the motorcycle, but did discover a quantity of CDS, a box of razor blades and a triple beam balance scale. Id. at 711 , 641 A.2d at 215 . The appellant noted an appeal after convictions were entered pursuant to a not guilty statement of facts; he challenged the denial of his suppression motion on the basis that the search warrant was unsupported by probable cause because the affidavit was silent about the informant’s reliability and his basis of knowledge. 12 In upholding the convictions, *128 this Court determined that the investigating officer had made a good faith effort to comply with the requirements of Gates, 462 U.S. at 213 , 103 S.Ct. at 2317 , 76 L.Ed.2d at 527 , in her presentation of corroborating information in the warrant application. Minor, 334 Md. at 715-16 , 641 A.2d at 217-18 .

In Connelly, 322 Md. at 719 , 589 A.2d at 958 , the petitioner had been convicted of violations of lottery and gambling laws on the basis of evidence seized during the execution of what the State later conceded was a defective search warrant. The petitioner argued unsuccessfully at his suppression hearing that the search warrant was unsupported by probable cause because it was issued nine months after the surveillance cited in the affidavit, and because the “ ‘numerous occasions’ described in the affidavit were not specific as to dates.” Id. at 723-24 , 589 A.2d at 961 . In its analysis of the issue, the Connelly Court followed Leon in confining its inquiry “ ‘to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.’ ” Id. at 730, 589 A.2d at 964 , quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. at 3420 n. 23, 82 L.Ed.2d at 698 n. 23. Because the issue of staleness as construed in light of Peterson v. State, 281 Md. 309 , 379 A.2d 164 (1977), could have supported either the ruling below in Connelly by the Court of Special Appeals that probable cause was stale, or that the affidavit furnished evidence of a continuing criminal enterprise and thus was legally sufficient, Connelly, 322 Md. at 734 , 589 A.2d at 966 , this Court held that the police “could have reasonably believed that the averments of their affidavit related a present and continuing violation of law, not remote from the date of their affidavit, and that the *129 evidence sought would likely be found at Connelly’s store and at his residence.” Id. at 735 , 589 A.2d at 967 .

V. Conclusion

The facts of the instant case are more similar to Greenstreet and less similar to McDonald, Minor and Connelly . It is clear that the affidavit in the instant case supported, at most, that probable cause to believe Patterson possessed a handgun existed just prior to the time of his October 14, 2003 encounter with Officer Haak. The notion that probable cause existed that Patterson possessed a handgun at Room 217 of the Red Roof Inn some thirty-four days later, when the only evidence tended to show that Patterson did not possess the weapon at the time of his arrest October 14, flies squarely in the face of reality. Moreover, the fact that the warrant on its face appears to comport with particularity should not save this search from constitutional infirmity. The majority itself concedes that the question of good faith applies to the affiant, not only to other police officers who subsequently rely on the warrant, ante at 108 n. 9, 930 A.2d at 367 n. 9, because to hold otherwise would permit a police officer to knowingly swear out an invalid warrant, pass the tainted warrant to other officers to execute, and then rely on the good faith of those officers who were unaware of the taint. See Leon, 468 U.S. at 923 n. 24, 104 S.Ct. at 3420 n. 24, 82 L.Ed.2d at 698 n. 24.

Simply because “probable cause is a fluid concept,” Gates, 462 U.S. at 232 , 103 S.Ct. at 2329 , 76 L.Ed.2d at 544 , does not mean that police officers “ ‘may [not] properly be charged with knowledge [ ] that [a] search was unconstitutional under the Fourth Amendment,’ ” under appropriate circumstances. Leon, 468 U.S. at 919 , 1014 S.Ct. at 3419, 82 L.Ed.2d at 696 , quoting United States v. Peltier, 422 U.S. 531, 542 , 95 S.Ct. 2313, 2320 , 45 L.Ed.2d 374, 384 (1975). To hold that under the circumstances presented, the police acted in good faith in presenting their warrant application would call into question whether it is even possible for a reviewing court to find an absence of good faith. As then Judge Bell pointed out in his dissenting opinion in Minor , “a reasonably well-trained police *130 officer would not submit an affidavit to a magistrate for a probable cause determination that the officer knows, or should know, does not establish probable cause,” 334 Md. at 727 , 641 A.2d at 223 (Bell, J., dissenting), because that hypothetical officer is chargeable with knowledge of what the Fourth Amendment prohibits, subject to its subsequent interpretation in Gates and Leon. Id. at 724-26, 641 A.2d at 222-23 . I would hold that, in the case sub judice, Officer Haak knew or should have known that Patterson almost certainly possessed neither the weapon nor the accessories referenced in the warrant application and therefore, the good faith exception does not apply. I respectfully dissent.

Chief Judge BELL authorizes me to state that he joins in this dissent.

. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const, amend. IV.

. In relevant part, the Fourteenth Amendment states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1.

. "That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.” Md. Decl. of Rights, Art. 26.

. "Probable cause means a ‘fair probability that contraband or evidence of a crime will be found in a particular place.'" McDonald v. State, 347 Md. 452, 467 , 701 A.2d 675, 682 (1997), quoting Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527, 548 (1983).

. As then Judge Robert M. Bell noted in his dissenting opinion in Minor v. State, 334 Md. 707 , 720 n. 1, 641 A.2d 214 , 220 n. 1 (1994) (Bell, J., dissenting), the Supreme Court itself was unclear whether the good faith exception was "an exception or intended to be the rule.”

. Gates overruled a previous test for appellate review of search warrants known as the AguilarSpinelli test. In Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969), the Court had developed a two-pronged test that required independent evidence of an informant's reliability and basis of knowledge. See Stanley v. State, 19 Md.App. 507 , 313 A.2d 847 (1974). Gates relaxed the two-pronged test, requiring instead only that the evidence submitted to a magistrate satisfy a flexible totality-of-the-circumstances standard.

. See 1939 Md. Laws, Chap. 749. Senate Bill 116 was passed and subsequently signed into law May 11, 1939, and was codified at Maryland Code (1939), Article 27, Section 306. The language quoted in the text above has remained unchanged substantively to this day.

. The regular trash collection day for the premises in question was consistent with the State's interpretation of a typographical error, a point that apparently swayed the Court of Special Appeals. State v. Greenstreet, 162 Md.App. 418, 435-36 , 875 A.2d 177, 187 (2005).

. At the time, the constitutionality of anticipatory search warrants was an open question, McDonald, 347 Md. at 463-64 , 701 A.2d at 680 ; subsequently, the Supreme Court upheld the practice. See United States v. Grubbs, 547 U.S. 90 , 126 S.Ct. 1494 , 164 L.Ed.2d 195 (2006).

. In other words, McDonald held that Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978), was inapposite.

. In other words, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 , 99 S.Ct. 2319 , 60 L.Ed.2d 920 (1979), was inapposite.

. Although the Supreme Court by this time had abrogated the AguilarSpinelli test that previously required in a probable cause determination *128 that the warrant affidavit independently satisfy both veracity and basis-of-knowledge tests, and that an informant’s reliability constituted part of the veracity prong, the Court did not completely abandon consideration of an informant’s reliability, credibility, veracity or basis of knowledge, but had merely reduced their stature to that of factors to be weighed in a totality-of-the-circumstances analysis. See Gates, 462 U.S. at 230 -33 & n. 6, 103 S.Ct. at 2328-29 & n. 6, 76 L.Ed.2d at 543 -45 & n. 6.