Petition for Writ of Certiorari — Maryland v. Ott

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Supreme Court, U.S.

wy? q FinbnED

ad MAR 17 1992

OFFICE OF THE CLenk

No.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1991

STATE OF MARYLAND,

Petitioner,

THOMAS E. Ort, III,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

Gary E. Bair*

MarY ELLEN BARBERA

Assistant Attorneys General

200 Saint Paul Place

Baltimore, Maryland 21202

(410) 576-6422

Counsel for Petitioner

*Counsel of Record

AEE RNR ARR RR ame. ent NF

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

i. Whether the collective police

knowledge doctrine of Whiteley v. Warden

requires exclusion of evidence seized

incident to an arrest based upon a police

computer record of an open warrant that

had been satisfied seven days before the

arrest?

2. Whether a non-owner occupant of

an automobile may challenge the seizure of

drugs from the vehicle as the fruits of

the occupant’s illegal arrest notwith-

standing his failure to establish a

reasonable expectation of privacy in the

vehicle?

PARTIES

The caption contains the names of all

the parties below.

;

-iii-

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.......2.ccccees eres |

3 eeeeeeeseseee#eee#ee#e#e#ee#ee#*# ii

OPINIONS 0 eeee#ee#e#e# 2

STATEMENT OF JURISDICTION......2222.0-. 2

CONSTITUTIONAL PROVISION INVOLVED...... 3

STATEMENT OF THE CASE. .cccccccccccccccecse 3

REASONS FOR GRANTING THE WRIT.......... 9

I. The courts are in conflict on

the issue whether the

collective police knowledge

rule of Whiteley v. Warden

applies to invalidate an

otherwise reasonable arrest

based upon stale warrant

BUA wee eS bbe cee eercceccccecs 11

II. The courts are in conflict on

the issue whether a passenger

of an automobile must

demonstrate a legitimate

expectation of privacy in the

vehicle in order to challenge

the lawfulness of its search...... 18

CONCLUSION... .-. cece evecsocesecscce 0ece26

APPENDIX........ cece cccccccecs a la

TABLE OF AUTHORITIES

Page

Cases

Albo v. State, 477 So. 2d 1071

(Fla. App. 29BS) ccccccccccsccvccceeclk®

Carter v. State, 18 Md. App. 150,

305 A.2d 856 C1973) cwccccecccccccecscehd

Childress v. United States,

381 A.26' 638 (D.C. 2977) «cccccevcesesi3

Chimel v. California,

395 Wels 752 C1969) cccccccccccccsccscah

Commonwealth v. Riley,

284 Pa. Super. 280,

425 A.2d 813 (19B1) wcccccsccccccccccl4

Durio v. State, 807 S.W.2d 876

(Tex. ~ App. Lh Perr rTerErrerere? <.

Illinois v. Rodriguez,

110 S. Ct. 2793 (1990)......16, 17, 18

Jones v. United States,

362 a * 257 CROSS besacoscsceecscssead

Josephs v. Commonwealth,

10 Va. App. 87,

390 S.E.2d 491 (1990)

(ON DANG) csccccvcecsecccccceaG, 21, 22

Maryland v. Garrison,

480 U.S. 79 (1987) eccccccccclkG, 7 18

Mayberry v. State,

561 So. 2d 1201

(Fla. App. 0) eee era eee

Meeks v. State, 692 S.W.2d 504

(Tex. Crim. App. 1985)....-----+-eees 22

Ott v. State, 325 Md. 206,

600 A.2d 111 (1992)... cece reece ecceccs 2

People v. Fields, 785 P.2d 611

(COlLO. 1990) .. eee ee renee ccc reeeeecces 16

People v. Ivey,

228 Cal. App. 3d 1423,

279 Cal. Rptr. 554 (1991)......-2--- 16

People v. Jennings,

54 N.Y.2d 518,

446 N.Y.S.2d 229,

430 N.E.2d 1282 (1981)..----2eeeeees 13

People v. Manke,

181 Ill. App. 3d 374,

537 N.E.2d 13 (1989)... eeecececes 23

People v. Mitchell,

678 P.2d 990 (Colo. 1984)........-- .13

People v. Mourecek,

208 Ill. App. 3d 87,

566 N.E.2d 841 (1991) ..---eeeeeeeces 16

People v. Ramirez,

34 Cal. 3d 541,

194 Cal. Rptr. 454,

eS Se, at Pee eee eee ere rere 13

People v. Smith,

106 A.D.2d 525,

483 N.Y.S.2d 62 (1984) ..-eeeeeeeeees 23

Page

Rakas v. Illinois,

630 0.8... 236. 4209S. ocves. <dOs By Bi

Rawlings v. Kentucky,

666. Gifs. 9B: ARON) oc. cercccecccss38¢ 20

State v. Cheek, 81 Md. App. 171,

567 A.2d 158 (1989),

cert. dismissed sub non.

Waters v. State, 319 Md. 483,

S73. AcBG GOT CISSG dc cccccvcvcccsccsda

State v. Cowen, 104 Idaho 649,

662 P.2d 230 C29S3) womdocecescccosscdd

State v. Cross, 164 N.J. Super.

368, 396 A.2d 604 (1978) ..ccccccccrcld

State v. DeMasi, 419 A.2d 285

(R.I. 1980), vacated on other

grounds, 452 U.S. 934 (1981)........23

State v. Eis, 348 N.W.2d 224

(Iowa 1964) cc ecdbbbeterese vet eeosceesds

State v. Epperson, 237 Kan. 707,

703 P.2d 761 (29GS) se cescodsssceccscosdd

State v. Gough, 35 Ohio App. 3d

S1, 519 W.B.2G 842 (1066) .ccccceccecdS

State v. Ott, 85 Md. App. 632,

S584 A.2G 1266. (IDSA) acancvcvsrcccvescse 2

State v. Ribera, 183 Mont. 1,

DOT Bi. DG 2EGK Care icc 8485085 ieee

State v. Somfleth, 8 Or. App. 171,

402 Bi SR OO Fae tel 66k d6 ck dk essacnwul

-vii-

Page

State v. Taylor, 468 So. 2d 617

(La. App.), cert. denied,

472 So.2d 918 (La. 1985) eccccccccceeldd

State v. Trenidad, 23 Wash. App.

418, 595 P.2d 957 (1978) ~.--eeeeeeces 13

Terry v. Ohio,

392 U.S. 1 (1968) cece reeeerereeces 12

United States v. De Leon-Reyna,

930 F.2d 396

(5th Cir. 1991) (en banc)...---- 1S 27

United States v. Durant,

730 F.2d 1180 (8th Cir.),

cert. denied, 469 U.S. 843

TERMED. chb 5 adhd abd dbs b 0 sess ocendes 23

United States v. Hensley,

469 U.S. 222 (1988) .cccccccccccccces 12

United States v. Hill,

855 F.2d 664 (10th Cir. 1988)...-.--- 22

United States v. Leon,

468 U.S. 897 (1984)....-.-- er oe

United States v. Mackey,

387 F. Supp. 1121

(D. Nev. 1975) «cece eceees eee3e#eee#e# ere

United States v. Manbeck,

744 F.2d 360 (4th Cir. 1984),

cert. denied sub non.

O’Hare v. United States,

469 U.S. LETT CUSSS) wvccvcccsecccves 22

-viii-

Page

United States v. Salvucci,

448 Woe 83 (1980) cecccccccccccccvcceed

United States v. Towne,

870 F.2d 880 (2d Cir.),

cert. denied, 490 U.S. 1101

CSOOOD Ce bRe oe ceeedSecesisaseovececossecs 15

United States v. Williams,

589 F.2d 210 (5th Cir. 1979),

aff‘’d, 617 F.2d 1063

(Sem CAS. 2900) (eh BONG) ci. ce cwecves 23

Whiteley v. Warden,

401 U.8. SEG CASTA} soc ccvsccs 8, passim

Wong Sun v. United States,

S78: Gu be 472. CAOGR 6 ccc veces 19, passim

Constitutional Provision

United States Constitution,

Fourth Amendment..... wees eeee 3, passim

Statute

fe ee |) ee eee 3

Rule

Rule 13, Rules of the

| ee ee ee a ee ee a 3

Miscellaneous

4 W. LaFave, Search and Seizure

(2d ed. 1987) ecccccece e*ee#ee#ee#es? es*eeseeese#e#e¢ 24

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

STATE OF MARYLAND,

Petitioner,

¥.

THOMAS E. OTT, III,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

Petitioner, the State of Maryland,

respectfully requests that a writ of

certiorari issue to review the judgment

and opinion of the Court of Appeals of

Maryland.

=-2-

OPINIONS BELOW

The reported opinion of the Court of

Appeals of Maryland, Ott v. State, 325 Md.

206, 600 A.2d 111 (1992), affirming the

grant of Respondent’s motion to suppress,

is reproduced in Appendix A (1a-49a).

The reported opinion of the Court of

Special Appeals of Maryland, State v. Ott,

85 Md. App. 632, 584 A.2d 1266 (1991),

reversing the trial court’s grant of

Respondent’s motion to suppress, is

reproduced in Appendix B (50a-84a).

The transcribed opinion of the trial

court, granting Respondent’s motion to

suppress, is reproduced in Appendix C

(85a-88a).

STATEMENT OF JURISDICTION

The opinion of the Court of Appeals

of Maryland was filed on January 13,

1992. This petition is filed within 90

days of that judgment as required by Rule

ne nell *

Therefore,

properly invoked pursuant to 28 U.S.C.

-3-

of the Rules of the Supreme Court.

1257(a).

IV:

Corporal James Fogle of the Frederick

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment

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.

STATEMENT OF THE CASE

The suppression hearing testimony of

County, Maryland sheriff’s

disclosed the following.

1:40 a.m. on January 5, 1990, Corporal

Fogle observed a car,

jurisdiction of this Court is

At approximately

with two people in

-4<

it, sitting in an otherwise deserted

shopping mall parking lot. (E. 4-5).2

Because of vandalism and thefts that had

occurred in the parking lot, Corporal

Fogle stopped to check the two persons in

the car. (E. 5).

Respondent Thomas Ott was seated in

the driver’s seat; Sandra Sorenson was in

the passenger seat. (E. 6). After

obtaining identification from Ott and

Sorenson, Corporal Fogle ran a computer

check to determine whether either was the

subject of an outstanding warrant. (E.

6). The check revealed that Ott was

wanted for failure to appear in a civil

non-payment case. (E. 6). Based on this

information, Fogle arrested Ott. (E. 6).

i References to the record herein are to

the Joint Record Extract filed in the

Court of Appeals of Maryland.

st te nly ante itl,

Nene tte: Ba Neil te, bela

ee ae ee

| PE OIE Fo A

-5-

By this time, three other Sheriff’s

Office deputies had arrived. (E. 7-8).

Sorenson, later determined to be the owner

of the car, (E. 14), was asked to step

outside the car so it could be searched

incident to Ott’s arrest, (E. 7). As

Sorenson was getting out of the car, one

of the deputies, Corporal Johnson, noticed

a twenty-dollar bill rolled up into a

straw. (E. 8). Corporal Fogle seized the

bill because in his experience it was

something that could be used for the

ingestion of controlled dangerous

substances. (E. 8). A search of the glove

compartment uncovered three bags of a

white powdery substance that was

recognized to be cocaine. (E. 9, 16). In

addition, a small round mirror with white

powdery residue on it was found under the

passenger seat. (E. 9). Both Ott and

-6-

Sorenson were then handcuffed and

transported to headquarters. (E. 9).

Later that evening, Corporal Fogle

learned that the arrest warrant for ott

had been satisfied on December 29, 1989.

(E. 7, 12-13). The warrant already had

been served but, as of January 5, 1990,

had not been removed from the computer.

(Be Phi A printout dntrodeced at the

suppression hearing reflected that an

active warrant for Ott was in the computer

when Corporal Fogle ran the check on

January 5. (E. 7).

The State rested at the conclusion of

Corporal Fogle’s testimony, whereupon

Ott’s attorney informed the court that he

would present no evidence. (E. 19). In

arguing why oOtt’s suppression motion

should be denied, the State asserted that

Ott lacked standing to object to the

search of the car because Sorenson owned

eee

-7-

the vehicle. (E. 19-20). Counsel for Ott

countered that Ott had standing because he

was the person seated behind the wheel of

the car, and argued that the evidence

should be suppressed because there was no

outstanding warrant when Ott was arrested

on January 5, 1990. (E. 20-23).

The suppression court granted defense

counsel’s motion. (86a-87a). The State

appealed, and the Court of Special Appeals

of Maryland reversed. The court assumed,

arguendo, that Ott had standing’ to

challenge the search, (57a), but held that

the officer’s good faith reliance on the

computerized information was sufficient to

justify both Ott’s arrest and the search

of the car incident thereto, (74a-82a) .

On certiorari, the Court of Appeals

of Maryland reversed the decision of the

intermediate appellate court. The Court

of Appeals held that application of the

collective police knowledge rule of

Whiteley v. Warden* invalidated ott’s

arrest. The court reasoned that the

arresting officer’s reliance on the

outdated computer information, while in

good faith, was nonetheless objectively

unreasonable on the facts presented. (26a-

34a). The Court of Appeals further held

that, because Ott’s arrest was unlawful,

he had standing to challenge the fruits of

the search of the car, even though he did

not own the car and the car’s owner had

been in the car with him. (35a-48a).

Chief Judge Robert Cc. Murphy

dissented. He agreed with the Court of

Special Appeals that the arresting

officer’s conduct was objectively

reasonable; that the delay in updating the

computer record to reflect satisfaction of

2 401 U.S. 560 (1971).

-9-

the warrant did not constitute police

misconduct or negligence; that nothing in

Whiteley mandated invalidating the arrest

and the search; and, finally, that

exclusion of the evidence did not “further

the ends of the exclusionary rule in any

appreciable way.” (48a-49a).

REASONS FOR GRANTING THE WRIT

Every day, police officers encounter

situations similar to that faced by the

officer here. Pursuant to a police

computer warrant check, a passenger of a

car is arrested because of an outstanding

warrant and the car is searched incident

to the arrest. Not uncommonly, such a

search uncovers drugs, weapons, or other

contraband items as, indeed, the search

did here. Given the passenger’s lack of a

legitimate privacy interest in the vehicle

-10-

and the reasonableness of the police

conduct, a Fourth Amendment’ challenge

should fail.

Nonetheless, the Maryland Court of

Appeals wrongly ruled that under Whiteley

v. Warden an arrest is unlawful and its

fruits must be suppressed if the arrest

was made in reliance on a validly issued

warrant, which, unbeknown to the arresting

officer, had recently been satisfied.

Compounding its error, the Maryland Court

of Appeals misapplied the fruit of the

poisonous tree doctrine. It decided that

a mere non-owner occupant of an

automobile, regardless of whether he has

demonstrated an expectation of privacy,

automatically may seek suppression of the

fruits of a vehicle search, so Leng as he

asserts that the search derived from his

unlawful detention.

WSS LP

Lat ha Me

-ll-

Given the frequency of traffic

encounters like that presented by this

case, the decision of the Maryland court

has far-reaching consequences. Not only

is this case of great public importance,

the two closely related issues it presents

have not been addressed by this Court.

Left undecided, these questions will

continue to generate conflicts among the

state and federal courts.

THE COURTS ARE IN CONFLICT ON

THE ISSUE WHETHER THE

COLLECTIVE POLICE KNOWLEDGE

RULE OF WHITELEY v. WARDEN

APPLIES TO INVALIDATE AN

OTHERWISE REASONABLE ARREST

BASED UPON STALE WARRANT

INFORMATION.

Twenty-one years ago this Court ruled

in Whiteley v. Warden, 401 U.S. 560

(1971), that an arrest based upon a radio

bulletin that is unsupported by probable

cause cannot be insulated from challenge

-12-

merely because the arresting officer is

unaware of the absence of probable cause.

Id. at 568. More recently, the Court

applied the Whiteley doctrine in the

context of a Terry? stop, where the issue

was whether the police had articulable

suspicion for the stop. See United States

v. Hensley, 469 U.S. 221 (1985). The

present case involves an issue related to,

but distinct from, Whiteley and Hensley:

Is the collective police knowledge

doctrine applicable where it is undisputed

that probable cause existed for the

issuance of a warrant, but the warrant

remains in police records for a brief

period of time after it has_ been

satisfied?

Courts have taken conflicting

approaches to resolving this as_ yet

3 Terry v. Ohio, 392 U.S. 1 (1968).

ines etl MSE ae ¢

SP 0 MAR? tA DTOA he's il GS Ce Rage Ret EM

ORE el: oo BA Oe

RA ln Ta OX A Cae RP BI AON a hd a

-13-

unaddressed question. Some courts have

concluded that the collective police

knowledge doctrine of Whiteley applies and

that the arrest is illegal. See, e.g.,

United States v. Mackey, 387 F. Supp.

1121, 1125 (D. Nev. 1975); People v.

Ramirez, 34 Cal. 3d 541, 194 Cal. Rptr.

454, 668 P.2d 761, 764-65 (1983); People

v. Mitchell, 678 P.2d 990, 993-94 (Colo.

1984); Carter v. State, 18 Md. App. 150,

155-56, 305 A.2d 856 (1973); People v.

Jennings, 54 N.Y.2d 518, 446 N.Y.S.2d 229,

232, 430 N.E.2d 1282 (1981); State v.

Trenidad, 23 Wash. App. 418, 595 P.2d 957,

958 (1978).

Other courts have refused to apply

the Whiteley doctrine where, as here, the

warrant: once enjoyed unassailable legal

existence and the delay in updating the

computer information is of short

duration. See, e.g., Childress v. United

-14-

States, 381 A.2d 614, 616 (D.C. 1977)

(four days); Mayberry v. State, 561 So. 2d

1201, 1202 (Fla. App. 1990) ("no showing

of excessive and unacceptable delay”);

State v. Cross, 164 N.J. Super. 368, 396

A.2d 604, 605-07 £(1978) (one month);

Commonwealth v. Riley, 284 Pa. Super. 280,

425 A.2d 813, 816 (1981) (four days). See

also State v. Somfleth, 8 Or. App. 171,

492 P.2d 808, 811 (1972) (arrest based

upon radio broadcast that defendant was

AWOL or deserter, later determined to be

erroneous, held not to invalidate search

incident to arrest).

More recently, courts have applied

the good faith exception doctrine of

United States v. Leon, 468 U.S. 897

(1984), finding that the exclusionary rule

should not be applied absent intentional

police misconduct. Such was the rationale

of the intermediate appellate court and

-15-

the dissenting chief judge of the Maryland

high court in this case. Within the past

several years, three other courts have

ruled to like effect. See United States

v. De Leon-Reyna, 930 F.2d 396, 401 (5th

Cir. 1991) (en banc) (applying good faith

exception to uphold warrantless arrest

where officer relied upon mistaken license

plate information); United States v.

Towne, 870 F.2d 880, 885 (2d Cir.), cert.

denied, 490 U.S. 1101 (1989) (reliance on

warrant improperly kept in NCIc files

upheld on basis of Leon); Durio v. State,

807 S.W.2d 876, 877-78 (Tex. Ct. App.

1991) (applying Leon exception to evidence

seized by officers relying upon warrant

subsequently determined to have _ been

executed).

Still other courts, however, have

ruled that Leon is inapplicable to the

present situation. Like the Court of

OQ ———e

-16-

Appeals majority here, these tribunals

have reasoned that arrests resulting from

the collective negligence of a police

department are not subject to the good

faith exception. See, e.g., People v.

Ivey, 228 Cal. App. 3d 1423, 279 Cal.

Rptr. 554, 557 (1991); People v. Fields,

785 P.2dad 611, 613 (Colo. 1990); Albo v.

State, 477 So. 2d 1071, 1073-75 (Fla. App.

1985); People v. Mourecek, 208 Ill. App.

3d 87, 566 N.E.2d 841, 845 (1991); State

v. Taylor, 468 So. 2d 617, 623 (La. App.),

cert. denied, 472 So.2d 918 (La. 1985);

State v. Gough, 35 Ohio App. 3d 81, 519

N.E.2d 842, 844-45 (1986).

In addition to the above conflicts,

Whiteley itself appears to be in conflict

with this Court’s recent pronouncements in

Maryland v. Garrison, 480 U.S. 79 (1987),

and Illinois v. Rodriguez, 110 S. Ct. 2793

(1990). In those cases this Court ruled

LAO AB Ppa PAL? eat > .

Mt oo 5 spss et Nah Be ee.

ee eee ee eed

=-17=

that the Fourth Amendment is satisfied

where a police officer conducting a search

makes a mistake of fact, but nonetheless

acts reasonably. Although no lower court

has yet expressly relied upon Garrison and

Rodriguez in a situation like the one

presented here, the Fifth Circuit, sitting

en banc, has intimated that mistaken

reliance on a police radio broadcast

satisfies the reasonableness requirement

of the Fourth Amendment. See United

States v. De Leon-Reyna, 930 F.2d at 399-

401 & n.5.

In the present case, it is undisputed

that the officer who arrested Ott acted

reasonably. Given the police computer

information that a warrant was outstanding

(which Ott did nothing to dispel), it

would have been most unreasonable had the

officer acted otherwise. In light of

—

-18-

Rodriguez and Garrison, there was no

Fourth Amendment violation.

A definitive decision by this Court

will resolve the aforementioned

.conflicts. It will necessarily resolve

the question of Whiteley’s scope, its

continued viability, and whether it, or

this Court’s more recent pronouncements,

control this case and others like it.

II.

THE COURTS ARE IN CONFLICT ON

THE ISSUE WHETHER A PASSENGER

OF AN AUTOMOBILE MUST

DEMONSTRATE A LEGITIMATE

EXPECTATION OF PRIVACY IN THE

VEHICLE IN ORDER TO CHALLENGE

THE LAWFULNESS OF ITS SEARCH.

Assuming, arguendo, that Whiteley

applies, this case presents a _ second

question worthy of this Court’s review:

May an occupant of a car, who has

demonstrated no reasonable expectation of

privacy in s¢, nonetheless seek

suppression of evidence seized therein if

be nb thee i td aD

-19-

the search that produced the evidence

derived from the occupant’s unlawful

detention? This issue stands at _ the

crossroads of two Fourth Amendment

doctrines--that which entitles an accused

to suppression of evidence obtained as the

fruits of unlawful police conduct, Wong

Sun v. United States, 371 U.S. 471 (1963),

and that which requires persons who seek

to litigate the lawfulness of a Fourth

Amendment search and seizure to show first

a reasonable expectation of privacy in the

place searched, Rakas_v. Illinois, 439

U.S. 128 (1978); Rawlings v. Kentucky, 448

U.S. 98 (1980).

In Rakas, this Court decided that a

passenger qua passenger of a car could not

challenge its search. 439 U.S. at 148-

49. Since then, the Court has not

addressed the question left open in that

case but squarely presented here. There,

-20-

unlike here, the petitioners neither

challenged the legality of the stop of the

automobile nor contended that they had

been seized when they were told to get out

of the car. Id. at 151 (Powell, J.,

concurring). In the wake of Rakas, lower

courts have grappled with the tension

between the fruit of the poisonous tree

doctrine of Wong Sun and the reasonable

expectation of privacy requirement of

Rakas and Rawlings. Not surprisingly,

this tension has produced conflicts among

the courts.

Representative of the sharply

divergent views taken on this question is

the recent en banc decision of the Court

of Appeals of Virginia in Josephs v.

Commonwealth, 10 Va. App. 87, 390 S.E.2d

491 (1990) (en banc). The five-judge

majority relied on Rakas to hold that

Josephs, a passenger in an automobile that

-21-

had been stopped and searched, could not

challenge the fruits of the search because

she enjoyed no legitimate privacy

expectation in the vehicle. 390 S.E.2d at

496. Three of the remaining judges

disagreed. Eschewing Rakas, they would

have ruled that Josephs could contest the

stop--which the dissenters believed was

unlawful--and that the fruits of her

detention were suppressible under Wong

Sun. Id. at 499-502 (Barrow, J.,

dissenting).

Some courts are in accord with the

Josephs majority. These courts take the

position, like that urged by the State of

Maryland in this case, that a defendant’s

entitlement to litigate the lawfulness of

the search and seizure requires that he

first demonstrate a legitimate expectation

of privacy in the place searched. See,

e.g., State v. Cowen, 104 Idaho 649, 662

-22-

P.2d 230, 231 (1983); State v. Ribera, 183

Mont. 1, 597 P.2d 1164, 1168-69 (1979);

State v. Cheek, 81 Md. App. 171, 567 A.2d

158, 159-60 (1989), cert. dismissed sub

nom. Waters v. State, 319 Md. 483, 573

A.2ad 807 (1990); Meeks v. State, 692

S.W.2d 504, 510 (Tex. Crim. App. 1985).

Other courts, including the Court of

Appeals here, approach the issue as did

the dissenters in Josephs, and hold that a

defendant may challenge any search that

flows from unlawful police conduct vis-a-

vis hin, thereby holding, at least

implicitly, that the defendant’s lack of

reasonable expectation of privacy in the

place searched is irrelevant. See, e.g.,

United States v. Hill, 855 F.2d 664, 666

(10th. -Ciri 1988); United States v.

Manbeck, 744 F.2d 360, 380-81 (4th Cir.

1984), cert. denied sub nom. O/’Hare v.

United States, 469 U.S. 1217 (1985);

-23-

United States v. Durant, 730 F.2d 1180,

1182 (8th Cir.), cert. denied, 469 U.S.

843 (1984); United States v. Williams, 589

F.2d 210, 214 (5th Cir. 1979), aff’d, 617

F.2d 1063 (5th Cir. 1980) (en banc);

People v. Manke, 181 Ill. App. 3d 374, 537

N.E.2d 13, 15 (1989); State v. Eis, 348

N.W.2d 224, 226 (Iowa 1984); State v.

Epperson, 237 Kan. 707, 703 P.2d 761, 770

(1985); People v. Smith, 106 A.D.2d 525,

483 N.Y.S.2d 62, 63 (1984); State v.

DeMasi, 419 A.2d 285, 294-95 (R.I. 1980),

vacated on other grounds, 452 U.S. 934

(1981).

Indeed, one noted commentator has

gone so far as to state: "Where the search

of the person or the surrounding area has

its only justification as being ‘incident

-24-

to’ the arrest under Chimel Vv.

California, [4] then unquestionably the

evidence found in the search must be

suppressed if the antecedent arrest was in

violation of the Fourth Amendment.” 4 W.

LaFave, Search and Seizure § 11.4(d) at

408 (2d ed. 1987) (emphasis added). This

reasoning, however, confuses the

justification for the search with the

distinct question of aan individual’s

Fourth Amendment privacy expectation.

Here, Ott did have an expectation of

privacy in the search of his person, but

did not have a similar expectation in the

search of Sorenson’s car, even though both

were justified as incident to oOtt’s

arrest.

Moreover, those courts which find

that the fruit of the poisonous tree

4 395 U.S. 752 (1969).

-25-

doctrine controls seemingly ignore that

Wong Sun was decided at a time when

defendants accused of possessory crimes

had “automatic standing” to challenge the

search that produced the contraband. See

Jones v. United States, 362 U.S. 257, 264-

65 (1960). This rule, of course, was

subsequently disavowed in United States v.

Salvucci, 448 U.S. 83, 85 (1980), in favor

of the rule that a defendant who has no

legitimate privacy expectation in the

place searched is not’ permitted to

challenge the search.

The conflict among the courts on this

issue makes it, like the first issue,

appropriate for the Court’s consideration.

The Court can provide much needed guidance

to the lower courts and law enforcement

officials on this important and recurring

issue of Fourth Amendment law.

-26-

CONCLUSION

For the reasons stated, this Court

should issue a writ of certiorari to

review the judgment of the Court of

Appeals of Maryland.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

GARY E. BAIR*

MARY ELLEN BARBERA

Assistant Attorneys General

Counsel for Petitioner

54 Counsel of Record

March 17, 1992

APPENDIX

CONTENTS OF APPENDIX

Page

APPENDIX A:

Reported opinion of the Court of

Appeals of Maryland, Ott v. State,

325 Md. 206,

Owe Mame GAR CAGOS) ccccocececsesessss la

APPENDIX B:

Reported opinion of the Court of

Special Appeals of Maryland,

State v. Ott, 85 Md. App. 632,

584 A.2d 1266 (1991)... ..cceccccees 50a

APPENDIX C:

Unreported ruling of the Circuit

Court for Frederick County,

Maryland, dated August 7, 1990,

in State v. Ott, Criminal

po Oe ee ee eee 85a

hpi Ange nd Ae afE

“1a-

APPENDIX A

THOMAS E. OTT, III

Vv.

STATE OF MARYLAND.

No. 31, Sept. Term, 1991.

Court of Appeals of Maryland.

January 13, 1992.

Argued before MURPHY, C.J, and

ELDRIDGE, RODOWSKY, MCAULIFFE, CHASANOW,

KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

This case presents for resolution the

questions whether Thomas E. Ott, III, the

petitioner, was illegally detained and/or

illegally arrested and, if he was, whether

-2a-

the evidence seized by reason of the

detention or arrest should have been

suppressed. The latter question requires

a determination of petitioner’s standing

to challenge the seizure of the

evidence. The Circuit Court for Frederick

County ruled in favor of petitioner,

finding that: (1) he had standing by

virtue of his occupation of the driver’s

seat in the automobile; (2) "the officers

had [no] probable cause in the first place

to go in like they did;” and (3) the

search of the car’s glove box was not

incident to petitioner’s arrest “and

certainly not for the presence of

weapons.” The court, therefore,

Suppressed the evidence and the State

appealed. +

1 The state appeals pursuant to Maryland

Code (1974, 1989 Repl. Vol.) § 12-

302(c)(3)(i) of the Courts and Judicial

(Continued)

~ Seeiee giand~t 10) Wedd CA. Diets Bite dae ted cthd capt idandlit”™ gedit, . Citltes ibe bit eine te! pel tg 0 Ah Baal Phe tk

i ee Pe ee

-3a-

The intermediate appellate court

reversed. State v. Ott, 85 Md. App. 632,

584 A.2d 1266 (1991). Assuming arguendo

that petitioner had standing, the court

held that the initial encounter between

petitioner and the police did not rise to

a Fourth Amendment violation. It further

held that the petitioner’s arrest, albeit

pursuant to an invalid arrest warrant, was

effected in good faith. "Thus, the

warrantless search of the vehicle was

valid as a search incident to a lawful

arrest...,” 85 Md. App. at 646-47, 584

A.2a at 1273, notwithstanding that the

petitioner had been handcuffed and placed

Proceedings Article. Pursuant to that

section, the State may appeal, inter alia,

in a case brought under, Art. 27, § 286.

In accordance with § 12-302(c) (3) (iv), the

charges must be dismissed should this

Court affirm the decision of the trial

court. Petitioner was charged with

possession of cocaine with intent to.

distribute and related offenses.

-4a-

outside the automobile before the glove

box was searched.

We granted petitioner’s petition for

writ of certiorari and the _ State’s

conditional petition to address’ the

important questions presented. For the

reasons hereinafter set forth, we will

reverse the judgment of the Court of

Special Appeals.

The facts are not in dispute.

Consequently, we will adopt the statement

of facts as set out in the opinion of the

Court of Special Appeals:

On January 5, 1990, Cpl. Fogle [2] was

on routine patrol near the Francis

Scott Key Mall in Frederick,

Maryland. At about 1:40 a.m., he

observed two people sitting in a car

in an otherwise deserted public

parking lot in that mall. No signs

were posted that said “No

2 The only witness to testify at the

suppression hearing was Cpl. Fogle.

-5a-

trespassing,” nor were there = any

indicating that parking was prohibited

after certain hours... In short, no

restrictions had been posted at all.

Fogle [approached] the car and its

occupants because of thefts and acts

of vandalism that previously had

occurred in the parking lot. When he

decided to do so, he saw nothing

suspicious occurring in the car or

anywhere else nearby.

Fogle asked the two individuals their

names and also asked what they were

doing there. They identified

themselves as Thomas Ott (seated in

the driver’s seat) and Sandra Sorenson

(seated in the passenger’s seat), and

said that they were just talking.

After Fogle obtained identification

from each one, he radioed police

headquarters to run a computer check

to determine whether either of them

was the subject of an outstanding

warrant. Nothing in Fogle’s testimony

suggested that oOtt’s or Sorenson’s

responses to his initial questions

were suspicious in any manner;

likewise, Fogle appears to have

requested written identification to

run a computer check as a matter of

routine.

The computer check indicated that an

outstanding warrant existed for ott

because of his failure to appear in a

civil /*”non-payment” case. Fogle

subsequently arrested Ott on this

basis. Fogle then asked Sorenson--the

car owner--to step out of the car so

that the other officers on the scene

-6a-

could conduct a search incident to

Ott’s arrest. As Sorenson exited the

car, Cpl. Johnson spied a MTwenty-

dollar bill rolled up into a straw

that fell from her lap. Fogle

confiscated the bill as evidence,

recognizing that it could be used to

ingest controlled dangerous

substances. The officers proceeded to

search the car. They discovered in

the glove compartment three bags of a

white powdery substance that Fogle

recognized to be cocaine. In addition

they found under the passenger seat a

small round mirror with a white

powdery residue on it. The officers

handcuffed Ott and Sorenson, and

transported them both to the police

station. After Ott signed a waiver of

rights form he told Cpl. Smith that he

was trying to sell the cocaine to get

out of debt.

Cpl. Fogle later determined that, in

fact, no outstanding warrant existed

for Ott because the bench warrant had

been satisfied on December 29, 1989.

Another sheriff apparently had served

the warrant, but had not removed it

from the computer before January 5,

1990. At the suppression hearing, the

State introduced a computer printout

which showed that there was an active

warrant when Cpl. Fogle ran_ the

computer search.

85 Md. App. at 634-35, 584 A.2d at 1267-

68.

= 2 IE ag eK

Be RE Mat BB, eA 0 OPA ALLE AE RE RI At PP BE DAL ae EINE A SCI AE ne in,

-J7a-

Petitioner did not present’ any

evidence. He argued, however, that, since

the warrant on the basis of which the

arrest was made was invalid, he was

illegally arrested. Petitioner also

contended that he had standing, by virtue

of his being seated in the driver’s seat

of the car.

It is undisputed that petitioner was

arrested on the basis of an outstanding

arrest warrant which had been satisfied

seven days earlier. Thus, unless Cpl.

Fogle’s subjective good faith reliance on

the outdated information supplied by the

Frederick County sheriff’s computer

mandates a different result, petitioner’s

arrest was illegal. The State argued

below, and the Court of Special Appeals

agreed, that the good faith exception to

-8a-

the exclusionary rule applies to the case

sub ‘judice. The court reasoned that the

policy underlying the exclusionary rule,

“a judicially created remedy designed to

safeguard Fourth Amendment rights

generally through its deterrent effect,

rather than a personal constitutional

right of the party aggrieved,” United

States v. Leon, 468 U.S. 897, 906, 104

S.Ct. 3405, 3412, 82 L.Ed.2d 677, 687

(1984), quoting United States v. Calandra,

414 U.S. 338, 348, 94 S.Ct. 613, 620, 38

L.Ed.2d 561, 571 (1974), and, § in

particular, "to deter police misconduct”,

id., 468 U.S. at 917, 104 S.Ct. at 3417,

82 L.Ed.2d at 694, is not furthered by

suppressing evidence when, rather than

acting in bad faith, the police act in

complete good faith. 85 Md. App. at 643-

44, 584 A.2d at 1272, citing Leon, 468

U.S. at 919, 104 S.Ct. at 3418, 82 L.Ed.2d

-9a-

at 696 (citing United States v. Peltier,

422 U.S. 531, 539, 95 S.Ct. 2313, 2318, 45

L.Ed.2d 374, 382 (1975)). As the Peltier

Court put it:

If the purpose of the exclusionary

rule is to deter unlawful police

conduct, then evidence obtained by a

search should be suppressed only if it

can be said that the law enforcement

officer had knowledge, or may properly

be charged with knowledge, that the

search was unconstitutional under the

Fourth Amendment.

Id. The Court of Special Appeals

recognized the applicability of the

"collective knowledge/collective

ignorance” rule, see Albo v. State, 477

awiacratenniaNeltntinnie) 0.

So.2d 1071, 1075 n. 4 (Fla. App. 1985);

nevertheless, it was of the view that,

because of the relatively small number of

days by which the information’ was

outdated, "this is [not] a case of police

misconduct or negligence such that we

should apply the exclusionary rule.” 85

Md. App. at 646, 584 A.2d at 1273. The

-10a-

court relied upon Commonwealth v. Reilly,

284 Pa. Super. 280, 425 A.2d 813, 816

(1981) and Childress v. United States, 381

A.2d 614 (D.C. App. 1977).

The State argues, in addition, that

Maryland v. Garrison, 480 U.S. 79, 107

S.Ct. 1013, 94 L.Ed.2d 72 (1979); Illinois

v. Rodriguez, 497 U.S. , 230 2...

2793, 111 L.Ed.2d 148 (1990); and Florida

v. Jimeno, 500 U.S. » 232 8.8. 296i,

114 L.Ed.2d 297 (1991) require affirmance

of the Court of Special Appeals. It

contends that police reliance on warrant

information received from its computer was

objectively "reasonable conduct under the

Fourth Amendment and therefore no Fourth

Amendment violation occurred....”

Petitioner concedes that Cpl. Fogle

acted in “subjective good faith,” i.e. he

was not aware that the warrant on the

basis of which he made the arrest had been

Ab dee Pie:

Met

ed tah ta LTE 0

ne 2 UO 6 SEO

ker BATON ee tee tee IRR terns aOR A TM recat Battle ee

-lla-

previously served. Petitioner denies,

however, that that fact is dispositive.

Applying the "collective knowledge/

collective ignorance” rule, which he too

asserts is applicable, he argues that Cpl.

Fogle must be charged with knowledge that

the warrant had been satisfied prior to

petitioner’s arrest. That result is

required, according to petitioner, because

the outdated information came from a

computer belonging to the Frederick County

Sheriff’s Department, the warrant was

issued in Frederick County, it had been

turned over to the Sheriff’s Department

for execution, and the warrant had been

executed by a member of the Sheriff’s

Department. From this, the petitioner

maintains that the arresting officer did

not act objectively reasonably. Moreover,

petitioner observes, "the State does not

explain why a County Sheriff’s department

aaa a

-12a-

would reasonably require more than seven

days to update its own records.”

In Whiteley v. Warden, 401 U.S. 560,

91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), a

sheriff in one Wyoming county, acting on

an informant’s tip, obtained a warrant for

the arrest of Whiteley and a companion.

That fact, along with descriptions of the

two men, were broadcast over state-wide

police radio. An officer in another

Wyoming county, relying on the

descriptions, arrested Whiteley and his

companion. Evidence uncovered during the

search incident to that arrest was used,

over objection that he was illegally

arrested, to convict Whiteley. The

Supreme Court agreed with Whiteley,

holding that the warrant, pursuant to

which he was arrested, was invalid. It

then rejected the argument that, because

he was unaware of the factual basis

-413a-

provided to the magistrate for issuance of

the warrant, the arresting officer had

probable cause for a warrantless arrest.

401 U.S. at 566, 91 S.Ct. at 1036, 28

L.Ed.2d at 312. In particular, the Court

found unpersuasive the argument that the

radio bulletin rendered reasonable the

assumption that, whoever authorized the

bulletin had probable cause to direct the

arrest. 401 U.S. at 568, 91 S.Ct. at 1037,

28 L.Ed. 2d at 313. It explained:

We do not, of course, question that

the Laramie Police were entitled to

act on the strength of the radio

bulletin. Certainly police officers

called upon to aid other officers in

executing arrest warrants are entitled

to assume that the officers requesting

aid offered the magistrate the

information requisite to support an

independent judicial assessment of

probable cause. Where, however, the

contrary turns out to be true, an

otherwise illegal arrest cannot be

insulated from challenge by the

decision by the instigating officer to

rely on fellow officers to make the

arrest.

“a

-14a-

In United States v. Hensley, 469 U.S.

221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985),

a case decided after its decision in Leon,

the Supreme Court explicated the Whiteley

holding. There, the issue was whether a

stop, in reliance on a “wanted flier”

issued by another police department, of an

automobile- driven by the accused was

valid. Relying on Whiteley, the Court

held that it was, so long as the stop was

in objective reliance on the “wanted

flier” and the police department issuing

it collectively possessed reasonable

suspicion sufficient to justify it. 469

U.S. at 229-33, 105 S.Ct. at 680-82, 83

L.Ed.2d at 612-15. The Court opined:

Thus, Whiteley supports the

proposition that, when evidence is

uncovered during a search incident to

an arrest and reliance merely on a

flier or bulletin, its admissibility

turns on whether the officers who

issued the flier possessed probable

cause to make the arrest. It does not

turn on whether those relying on the

= | ee

‘

ees Te

Palle OAS, BOO Naa ele anata.

Pi Mtns ~Deer ith eRIeA l

Nah ae AOA ET.

-15a->

flier were themselves aware of the

specific facts which led their

colleagues to seek their assistance.

In an era when criminal suspects are

increasingly mobile and increasingly

likely to flee across jurisdictional

boundaries, this rule is a matter of

common sense: it minimizes the volume

of information concerning suspects

that must be transmitted to other

jurisdictions and enables police in

one jurisdiction to act promptly in

reliance on information from another

jurisdiction.

469 U.S. at 231, 105 S.ct. at 681, 83

L.Ed.2d at 613-14. Although Hensley

emphasized the reasonableness of a police

department’s reliance on information

possessed by another police department, it

also recognized the limitation expressed

in Whiteley: if the sending police

department does not have the requisite

information, the receiving police

department’s reliance on the_- sending

department is not “insulated from

challenge.” 469 U.S. at 230-31, 105 S.Ct.

at 680-81, 83 L.Ed.2d at 613-14.

-16a-

In Maryland, probable cause may be

based on information within the collective

knowledge of the police. Mobley and King

v. State, 270 Md. 76, 81, 310 A.2d 803,

807 (1973), cert. denied, 416 U.S. 975, 94

S.Ct. 2003, 40 L.Ed.2d 564 (1974); Hopkins

v. State, 239 Md. 517, 520, 211 A.2d 831,

833 (1965); Johnson v. State, 238 Md. 528,

539, 209 A.2d 765, 770 (1965); Mercer v.

State, 237 Md. 479, 483, 206 A.2d 797, 800

(1965); Farrow v. State, 233 Md. 526, 531-

32, 197 A.2d 434, 436-37 (1963); Carter v.

State, 18 Md. App. 150, 154, 305 A.2d 856,

858 (1973). Thus, while an officer may

make an arrest on the strength of a

warrant, the existence of which has been

certified to him by other officers in his

department, if the officers who obtained

the warrant did not possess sufficient

information or evidence to establish

probable cause, the arrest based on the

-17a-

warrant is illegal. In Carter, an

automobile, with a specific license tag

number, was reported stolen. The police

recovered the automobile on the same day

it was reported stolen; however, the

incident report that had been prepared was

not cancelled. Approximately two months

later, Carter was a passenger in a car

whose license tags were, according to the

stolen automobile report, the same as

those on the car that previously had been

reported stolen. He was arrested, charged

with, and convicted of possession and

control of narcotics. Applying’ the

collective knowledge rule, the Court of

Special Appeals noted that "the police

department should have known that [the

stolen vehicle report] was erroneous,

Since police officers had recovered the

vehicle and tags originally reported

-stolen on January 10, 1969.” 18 Md. App.

~18a-

at 154, 305 A.2d at 859. It concluded

that, because the information on which the

police acted was its own “outdated copy of

an erroneous report of a stolen motor

vehicle which the police had recovered on

the same day it was taken,” the arresting

officer, a part of the police team, “must

be charged with the knowledge that the

report was, in effect, rescinded when

members of the Baltimore City Police

Department recovered the car shortly after

it was stolen. Accordingly, the erroneous

information transmitted [to the arresting

officer] and on the basis of which he

arrested the appellant was clearly

insufficient to show probable cause.” 18

Md. App. at 156, 305 A.2d at 860. This

case thus stands for the proposition that

“police may not rely upon incorrect or

incomplete information when they are at

fault in permitting the records to remain

-19a-

uncorrected.” (footnote omitted). LaFave,

Search & Seizure, Vol. 2, § 3.5(d), 21-22

(1987).

Cases from other jurisdictions,

whether decided before Leon, e.g., United

States v. Mackey, 387 F.Supp. 1121, 1125

(D.Nev. 1975); People v. Ramirez, 34

Cal.3d 541, 194 Cal. Rptr. 454, 458, 668

P.2d 761, 764-65 (1983); People Vv.

Mitchell, 678 P.2d 990, 993-94 (Colo.

1984); State v. Trenidad, 23 Wash. App.

418, 595 P.2d 957 (1978), or after Leon,

People v. Howard, 162 Cal.App.3d 8, 208

Cal. Rptr. 353 (1984); Albo v. State, 477

So.2d 1071 (Fla. App. 1985); People v.

Mourecek, 208 I1l1.App.3d 87, 152 Ill. Dec.

964, 968, 566 N.E.2d 841, 845 (1991);

People v. Joseph, 128 I1ll.App.3d 668, 83

Ill. Dec. 883, 470 N.E.2d 1303 (1984);

State v. Taylor, 468 So.2d 617 (La. App.

-20a-

1985); State v. Gough, 35 Ohio App.3d 81,

519 N.E.2d 842 (1986), are in accord.

Whiteley is not affected by Leon, as

Hensley makes clear. In fact, cases that

directly address the “good faith”

exception in the context of the collective

knowledge rule reject the applicability of

the good faith exception to the

exclusionary rule.

In Joseph, supra, for example, a case

Similar to that sub _ judice, after

distinguishing the Leon facts from those

before it, the court noted the problems

evolving “from police reliance on

electronically recorded and disseninated

criminal files,” which are not kept up to

date. 83 Ill. Dec. at 886, 470 N.E.2d at

1306. It then opined: >

In the case at bar the arresting

officer received computerized

information that there was a warrant

outstanding against the defendant, and

he arrested defendant solely on that

-2la-

basis. The warrant, in fact, had been

recalled eleven days earlier. During

this period of time defendant was

subject to arrest through no fault of

his own and, only because information

had been retained in the system when

it was no longer valid. See People v.

Jennings, 1981, 54 N.Y.2d 518, 446

N.Y.S.2d 229, 430 N.E.2d 1282 (1982).

eh ea es iP an he vil

In Leon the Supreme Court observed

that the exclusionary rule is designed

to deter police misconduct rather than

to punish the errors of judges and

magistrates. (468 U.S. [897], 104

| S.Ct. 3405, 3419, 82 L.Ed.2d 667).

|| The situation in the instant case

reflects a matter within the responsi-

bility and control of police

authorities who failed to update their

records to accurately reflect

defendant’s current status. In this

age of computerization, we do not

believe it would be appropriate to

sanction the arrest here, thereby

allowing for law enforcement

authorities to rely on an error of

their own making.... Moreover, it is

our opinion that the good-faith

reliance of the arresting officer, in

acting upon information provided to

him through police channels, cannot

overcome the intrusion made upon

defendant’s fourth amendment rights.

(some citations omitted).

Id. Taylor, supra, 468 So.2d at 625,

relying on Joseph, added:

-22a-

It logically follows that once police

authorities have actual knowledge of a

fact (here the invalidity of the

warrant which the . . . Sheriff’s

Office must be charged with because of

the information on file in its records

department), all successive officers

who dealt with defendant are held to

have knowledge of this fact.

See also Albo, supra, 477 So.2d at 1074,

in which the court commented:

Any doubt about the inapplicability of

Leon to a case in which the arresting

officer, although in individual “good

faith,” acts in reliance upon

objectively incorrect information

supplied by other police sources, has

been dissipated by the recent, post-

Leon decision in United States v.

Hensley, 469 U.S. [(221}), 105 S.Ct.

675, 83 L.Ed.2d 604 (1985).

Hensley directly applied the Whiteley

probable cause-arrest rule to a Terr

stop effected to investigate a prior

crime. It held that a stop based on a

flyer or bulletin is permissible when

the officers who issued it had a

founded suspicion that the designated

person had committed an offense. But

the court emphasized that just as the

police may permissibly act upon their

collective knowledge, so they are

restrained by their collective

ignorance.

-23a-

Indeed, Leon, itself, supports the

proposition that the good faith exception

is inapplicable:

References to ¥Yofficer” throughout

this opinion should not be read too

narrowly. It is necessary to consider

the objective reasonableness not only

of the officers who eventually

executed the warrant, but also of the

officers who originally obtained it or

who provided information material to

the probable-cause determination.

Nothing in our opinion suggests, for

example, that an officer could obtain

a warrant on the basis of a “bare

bones” affidavit and then rely on

colleagues who are ignorant of the

circumstances under which the warrant

was obtained to conduct the search.

See Whiteley v. Warden, 401 U.S. 560,

568, 28 L.Ed.2d 306, 91 S.Ct. 1030

(1971).

468 U.S. at 923 n.24, 104 S.Ct. at 3420

n.24, 82 L.Ed.2d at 698 n.24.

Garrison, Rodriguez, and Jimeno are

also inapposite. In none of those cases

was the source of the misapprehension of

the facts information obtained from

another police officer or the result of a

police department failure to update its

-24a-

own records. In Garrison, the search was

pursuant to ae facially valid search

warrant; however, due to the peculiar

layout of the subject premises, the

officers mistakenly believed that they had

authority to search an area not covered by

the warrant. That belief was, the Court

held, objectively reasonable. 480 U.S. at

80-81, 107 S.Ct. at 1015, 94 L.Ed.2d at

78. The Supreme Court held, in Rodriguez,

that it was objectively reasonable for the

police to conduct a search in reliance on

the consent given by a person. who,

notwithstanding that it later turned out

she did not, appeared to have authority to

do so. 497 U.S. at __, 110 S.Ct. at 2801,

111 L.Ed.2d at 161. Significantly, the

consenting person, albeit illegally,

possessed a key to the apartment and

stated that she lived at the premises,

neglecting to add that she had done so

ie anemeienmmaannanieaeee

-25a-

some days before. 497 U.S. at , 110

S.Ct. at 2797, 111 L.Ed.2d at 156. Nor is

Jimeno supportive of the State’s

arguments. It stands for the rather

unremarkable proposition that, having

advised the consenting person as to what

is being’ sought, it is objectively

reasonable for the officer to whom consent

is given to assume that the consent covers

the search of any container in which the

evidence sought could logically fit. 500

U.S. at __, 111 S.Ct. at 1804, 114 L.Ed.2d

at 303.

In the case sub judice, whether

probable cause existed depended upon the

accuracy of the outstanding warrant

information in the Sheriff Department’s

computer. Placing accurate and current

information into the computer, just as

taking inaccurate or outdated information

out, is a function performed by personnel

-26a-

in the Sheriff’s Department. Allowing

outdated, inaccurate information to remain

in the computer, thus, placing citizens at

risk of being deprived of liberty, without

legal basis, see Joseph, 83 Ill. Dec. at

886, 470 N.E.2d at 1306, therefore, is the

fault of the Sheriff’s Department.

The arresting officer had no actual

knowledge that the warrant on which he

arrested petitioner was no longer

outstanding. In that sense, then, he

acted in subjective good faith.

Nevertheless, he was chargeable with

knowledge of the warrant’s invalidity.

Since an officer in the Sheriff’s

Department had previously served the

warrant, that department must have known

that it was outdated.

Notwithstanding the applicability of

the "collective knowledge/collective

ignorance” rule to the circumstances sub

-2/a-

judice, a fact that the Court of Special

Appeals specifically acknowledged, 85 Md.

App. at 645, 584 A.2d at 1273, and which

the State has not expressly denied, the

State argues, as the Court of Special

Appeals held, that this is not a "case of

police misconduct or negligence,”

implicating the exclusionary rule. Also,

like the Court of Special Appeals, it

asserts that “it is the amount of time

which elapses between the time that the

warrant...becomes invalid and the time of

the arrest which primarily determines

whether probable cause exists for a valid

warrant.” Ott, 85 Md. App. at 645-46, 584

A.2d at 1243. Thus, the State proffers

that "“[b]Jecause the erroneous information

remained in the computer only four days

longer than it should have, it is

inappropriate to apply the exclusionary

rule.’”-

-28a-

Neither Reilly, nor Childress, the

cases upon which the State relies, is

persuasive. Both involved arrests based

upon warrants that, although previously

satisfied, had not been removed from the

computerized “active” list. In Reilly,

the computer was that of the National

Crime Information Center (NCIC), not the

Philadelphia Police Department, and the

court recognized that there was no

indication that the Philadelphia Police

were responsible for NCIC’s failure to

update the information. Reilly, 425 A.2d

at 816. Because police may reasonably

rely upon an NCIC report of an outstanding

arrest warrant and juvenile detainer in

making a warrantless arrest, 425 A.2d at

816, the court held that the information

subsequently proven wrong and stale by

only four days was insufficient to negate

the probable cause otherwise provided by

-29a-

the NCIC report. Id. Without adopting the

merits of the distinction drawn by Reilly

--that the source of the erroneous

information is dispositive, the case sub

judice, is nevertheless distinguishable on

that basis, i.e., as we have seen, the

computer in this case was that of the

Sheriff’s Department, which, consequently,

had the responsibility of updating the

information in it.

In Childress, the case upon which

Reilly relied, the erroneous information

was the result of the District of Columbia

Police Department’s failure to remove a

satisfied warrant from its “active” list.

381 A.2d at 616. Notwithstanding, the

court held that “the police officer’s good

faith reliance on the radio report and the

resultant reasonable belief that valid

traffic warrants were outstanding provided

probable cause to arrest appellant

-30a-

Childress.” Id. Whiteley was not

controlling, it asserted, because the

warrant in that case /"never legally

existed”. 318 A.2d at 617. It then opined

(at 617-18):

Administrative delays attendant to the

operation of any metropolitan area

police department resulted in failure

to remove the satisfied warrants from

the computerized “active” list before

the officers received the radio

dispatch on November 18 that the

warrants were outstanding. This

combination of reasonable

administrative delay and reasonable

police reliance on misinformation

produced by such a delay presents a

Situation in which acceptance of

appellants’ position would do nothing

to advance the purposes of _ the

exclusionary rule. (Footnote omitted)

Apparently as a matter of law, the court

concluded that a four day delay, two days

of which occurred on the weekend, did not

amount to “police administrative

negligence.” 381 A.2d at 617-18 n.3.

We are not persuaded. The Childress

court never addressed the critical

-3la-

distinctions drawn by Whiteley--whether

the department is chargeabie with

knowledge that the information is outdated

and is at fault for not having cleared the

computer of the erroneous information.

Moreover, it never explained why the delay

in that case was reasonable. Furthermore,

the conclusion reached by Childress

presents an anomalous situation that, for

some period of time, a police department’s

failure to maintain accurate records,

without explanation, may lawfully place

citizens at risk. We are not prepared to

reach such a conclusion without, at the

very least, some indication that the

department’s omission or failure is

reasonable.

3 The distinction between the case where,

although the information in the police

department’s possession was erroneous,

that fact was known, not to a police

officer, but, rather, to a third party who

(Continued)

-32a-

The record is devoid of evidence, or,

for that matter, any attempt to introduce

evidence, tending to establish the amount

of time it reasonably would, or should,

have taken to clear the computer of

executed warrants. The Court of Special

Appeals held as a matter of law, reasoning

from cases upholding arrests based on

similar outdated information, that a “net”

did not inform the police that the

information was erroneous, and the case

where the police know or should know that

information upon which they rely is

erroneous is’ significant. Carter v.

State, 18 Md. App. 150, 154 n.1, 305 A.2d

856, 859 n.1 (1973). Thus, the cases of

United States v. De Leon-Reyna, 930 F.2d

396 (5th Cir. 1991) (en banc), in which

the good faith exception was applied to

uphold a warrantless arrest based on

reliance upon mistaken license plate

information, and Durio v. State, 807

S.W.2d 876 (Tex.Cr.App. 1991), in- which

the good faith exception was applied to

uphold reliance by police officers upon an

invalid warrant which’ was, however,

facially valid, do not support the Court

of Special Appeals’ decision. In both

cases, a third party was the actor, not

the police department.

-33a-

delay of four days* in clearing a computer

of outdated information is not sufficient

to amount to - police misconduct’ or

negligence implicating the application of

the exclusionary rule. That

determination, however. is not one that

may be made as a matter of law. The

question whether a lapse of time was

sufficiently short so that reliance by the

police may properly be considered

reasonable and in good faith may be a

mixed question of law and fact. Moreover,

the burden to establish the _ facts

underlying that determination rests with

the State. Stackhouse v. State, 298 Md.

203, 217, 468 A.2d 333, 341 (1983) (Burden

of proving exigent circumstances is on the

4 As previously noted, the total delay was

seven days, but two of those days were on

a weekend and a third was a holiday.

-34a-

State); Bouldin v. State, 276 Md. 511,

515, 350 A.2d 130, 133 (1976) (Burden on

State to show that lawful arrest occurred

prior to search alleged to be incident

thereto). And the good faith exception

does not serve to excuse the State of that

burden. Since the State failed to meet

its burden of going forward with evidence

as to the amount of time reasonably

required to clear the computer of outdated

information, not to mention the burden of

persuasion on the issue, the trial court

properly suppressed the evidence;

consequently, the judgment of the Court of

Special Appeals must ‘be reversed. >

5 The determination whether it is

reasonable or unreasonable for outdated

information to remain in a computer must

be made after consideration of the

totality of the circumstances. One of the

circumstances is whose responsibility it

is to keep information in the computer

current. We point out that, where the

right of citizens to be free from an

(Continued)

ia na ecienaiiaciaaeacaeaa satiate

-35a-

Notwithstanding the illegality of

petitioner’s arrest, the State maintains

that petitioner lacked standing to

challenge the search of his companion’s

illegal arrest is at stake, because

infringement upon the rights of the

citizenry will not be lightly tolerated,

the State’s burden is heavy. In that

regard, we observe that the dispatch with

which a police department acts in putting

information into its computer’ system

should serve as a guide as to the dispatch

with which it should be required to act in

taking information out of the system. The

State acknowledged at oral argument that

it does not take a lot of time to enter

warrant information into a _ computer,

certainly not seven days, or even four

days; it should take no longer to remove

information from the computer than it

takes to put it in. We also wonder

whether the occurrence of a weekend or

holiday has any real relevance to the

question of the reasonableness of a delay

in clearing a computer of outdated

information. Unlike a business in the

private sector, a police department

ordinarily is a 24-hour a day, seven days

a week and holiday operation. Therefore,

strong evidence should be required to

justify omitting holidays and weekends in

computing the delay.

-36a~-

automobile. It argues, therefore, that

the Court of Special Appeals erred in

assuming, albeit arguendo, that he did.

This argument must proceed on the premise

that at issue is the legality of a car

search qua car search, see the State’s

citation to, inter alia, Rakas_ssv.

Illinois, 439 U.S. 128, 99 S.Ct. 421, 58

L.Ed.2d 387 (1978), and its reliance upon

California v. Acevedo, 500 U.S. » 223

S.Ct. 1982, 114 L.Ed.2d 619 (1991); New

York v. Class, 475 U.S. 106, 112-13, 106

S.Ct. 960, 965, 89 L.Ed.2d 81, 89-90

(1986); South Dakota v. Opperman, 428 U.S.

364, 368, 96 S.Ct. 3092, ° 3096, 49 L.Ed.2d

1000, 1005 (1976); Doering v. State, 313

Md. 384, 399, 545 A.2d 1281, 1288

(1988). Thus, it is understandable that

the State asserts that petitioner failed

to show that he had a legitimate

expectation of privacy in the

-37a-

automobile. See Ricks v. State, 312 Md.

11, 26, 537 A.2d 612, 619, cert. denied,

488 U.S. 832, 109 S.Ct. 90, 102 L.Ed.2d 66

(1988). As to the latter contention, it

also says that petitioner did not

establish his standing to challenge the

search by merely showing that he was

seated in the driver’s seat; he needed to

show, in addition, that he had driven the

car or to produce evidence that he had

control over, or an expectation of privacy

ami 2G,

The search in this case was. one

incident to arrest, as the Court of

Special Appeals held, 85 Md. App. at 647,

584 A.2d at 1274, and the State, in its

brief, concedes. Such a search is lawful

to the same extent as the arrest pursuant

to which it was undertaken; if the arrest

is illegal, the search incident to that

arrest is also illegal. fTrusty v. State,

-36a-

308 Md. 658, 661 n.2, 521 A.2d 749, 750

n.2 (1987); Stanley v. State, 230 Md. 188,

191, 186 A.2d 478, 481 (1962); Dipasquale

v. State, 43 Md. App. 574, 575, 406 A.2da

665, 666 (1979); Dixon v. State, 23 Md.

App. 19, 26, 327 A.2a 516, 521 (1974).