Petition for Writ of Certiorari — Scovens v. United States (No. 06-108)

eienteatiiel

Suprem

9 p = y court U.S.

06-108 JUL 20 2006

Fe OFFICE OF THE CLERK

0.

IN THE

Supreme Court of the United States

CARLOS SCOVENS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

FRED WARREN BENNETT

GARY E. BAIR*

Bennett & Bair, LLP

6301 Ivy Lane, Suite 418

Greenbelt, Maryland 20770

301.220.1570

Counsel for Petitioner

*Counsel of Record

i

QUESTION PRESENTED

Is the Fourth Amendment violated when an officer obtains

a search warrant as a subterfuge to search for evidence of a

crime for which the officer does not have probable cause and,

when executing the warrant, flagrantly disregards its scope?

ii

PARTIES TO THE PROCEEDING

The caption contains the names of all the parties below.

ili

TABLE OF CONTENTS

Page

* RTE ee PURI covet cccccccesncessvreeve }

PARTIOS TO THE PROCEEIING 2. nice) ccccsecenes ii

eo ee Re ee rer a ee bps Ws |

STATEMENT OF JURISDICTION .........ccceccees |

CONSTITUTIONAL PROVISION INVOLVED ........ 1

SEAS RIMMEIVE GOP BUM CASE oc cc sc cecccecsccsccese 1

REASONS FOR GRANTING THE WRIT ........... 4

I. The Decision Below Raises An Issue Not Resolved

By Fourth Amendment Precedent of This Court ... 5

II. The Lower Courts Are in Conflict on Whether to

Recognize and How to Apply the “Flagrant

I IN 6 gan sa ea apd aeons ones 7

Iii. There Was a Flagrant Disregard of the Dictates

of the Fourth Amendment in Petitioner’s Case ... 10

REPPIN ob cc ac oe ewe eens 12

TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 463 (1976) ............ 5

Brigham City v. Stuart, 126 S. Ct. 1943 (2006).......... 6

iV

Page

Horton v. California, 496 U.S. 128 (1990) Ceacnce ees 6, 11

Klingenstein v. State, 624 A.2d 532 (Md.),

Gert, diniéd, SIOUS. GIS(IIS) onc ccceccscceccs 10

Marron v. United States, 275 U.S. 192 (1927) .......... 5

Scott v. United States, 436 U.S. 128 (1978)...........-. 6

Stanford v. Texas, 379 U.S. 476 (1965) ................ 5

State v. Johnson, 605 So. 2d 545 (Fla. App. 1992) ....... 8

State v. Valenzuela, 536 A.2d 1252 (N.H. 1987),

cert. denied, 485 U.S. 1008 (1988) ..............-. 9

_ United States v. Carpenter, 317 F.3d 618 (6" Cir. 2003) .. 9

United States v. Decker, 956 F.2d 773 (8" Cir. 1992) ..... 9

United States v. Foster, 100 F.3d 846 (10" Cir. 1996) .... 8

United States v. Hill, 322 F.3d 301 (4" Cir.),

cert. Gomiad, S40 US. SOG CS) 6 cocci veicvccceus 9

United States v. Leon, 468 U.S. 897 (1984)

United States v. Medlin, 842 F.2d 1194 (10" Cir. 1988) ... 7

United States v. Pope, No. 04-51008, 2006 WL 1531545

(5 Cir., June 6, 2006)

United States v. Rettig, 589 F.2d 418 (9" Cir. 1978) ...... 7

Vv

Page

United States v. Schandl, 947 F.2d 462 (11" Cir. 1991),

CONE, GUN, FOO UID. FID CASO a) ve ccc cetvesvcenes 9

United States v. Shi Yan Liu, 239 F.3d 138 (2d Cir. 2000), .

cert. denied, 334. U.S. 816 (2001) .. 0. ccc cece eseses 9

Waller v. Georgia, 467 U.S. 39 (1984) .............46. 6

Whren v. United States, 517 U.S. 806 (1996) ........... 6

Constitutional Provisions:

United States Constitution:

Feet PIs ah ca ceeswuncubawas i, passim

Statutes:

OD CLAD 545 oi eho Ro vwedusareiebieenl 1

Rules:

ME SN UE EP cn vs sc av ewe eva swaeeoevess l

Petitioner, Carlo: #»\vens, respectfully requests that a writ

of certiorari issue to 1. view the judgment of the United States

Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The unpublished opinion of the United States Court of

Appeals for the Fourth Circuit was issued on April 24, 2006.

(App. la). The Order of the United States District Court for the

District of Maryland was issued on June 14, 2005. (App. 3a).

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals for the Fourth Circuit

was entered on April 24, 2006. (App. 1a). This petition is filed

within 90 days of entry of judgment. Therefore, the jurisdiction

of this Court is properly invoked pursuant to 28 U.S.C. §

1254(1) and Supreme Court Rule 13.

CONSTITUTIONAL

PROVISION INVOLVED

United States Constitution, Amendment IV

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

On the evening of June 4, 2004, Baltimore County Police

Department officers reported to the scene of a shooting at 5949-

2

A Sunset Avenue. (App. 4a; JA 30-31).’ When Detective

_ Ivory Bing arrived a little after 10:00 p.m., several other patrol

officers and EMT personnel were already present. (JA 31).

The shooting victim being attended to was Petitioner Carlos

Scovens. (App. 4a).

The officers who initially arrived around 9:00 p.m.

discovered Mr. Scovens in the front doorway of his home

“suffering from multiple gunshot wounds to his person.” (JA

52). Six empty bullet casings were found outside of the house

on the front doorstep. (App. 4a). A window next to the front

door had been shattered and the adjacent part of the doorway

had three bullet holes. (App. 4a).

Inside the home, other bullet holes were discovered in a

stairwell, just inside the front door. (App. 4a). Blood was also

seen on the stairwell. (JA 36). When officers searched the

front yard for additional evidence, they located a closed circuit

television camera pointed at the front doorway area. (App. 4a).

Neither Mr. Scovens nor Terry Page, who was present at the

scene of the shooting, was able to provide police with a

description of the shooter. (JA 35, 38). Officers conducted

interviews in the area and determined that “a large amount of

pedestrian traffic is often witnessed traveling to and from that

location throughout all hours of the day.” (JA 53). A records

check disclosed that Mr. “Scovens had an extensive criminal

record that included a heroin distribution conviction.” (App.

4a).

At that time, no evidence was seized, although Detective

Bing testified that evidence of the attempted murder could have

~

JA” refers to the Joint Appendix filed in the United States Court

of Appeals for the Fourth Circuit.

3

been seized. (JA 40). Rather, the officer determined that a

search and seizure warrant would be obtained. (JA 37).

At 2:47 a.m. on June 5, 2004, Detective Bing applied for a

search warrant with Judge Alexandra Williams of the District

Court of Maryland for Baltimore County. (JA 38, 50). The

affidavit set forth the above information and asked for a warrant

to search for and seize “evidence pertaining to the Attempted |

Murder of Carlos Darryl Scovens.” (App. 4a).

The warrant authorized the police to search for and seize:

(1) handguns, bullets, and casings; (2) forensic evidence

pertaining to the attempted murder of Mr. Scovens; (3)

evidence of residency; (4) electronic equipment, including

computers and cell phones; and (5) any and all locked and

unlocked containers for any other evidence of attempted

murder. (App. 4a-5a). Nothing in the warrant authorized

officers to search for evidence of violations of the controlled

dangerous substances laws. (JA 48-49).

Detective Bing nonetheless testified at the suppression

hearing that the reason he sought a search warrant was his

motivation to search for narcotics. (JA 39). In answer to the

question whether a search for narcotics was “in your mind

before you sought the warrant,” the officer answered “Yes.”

(JA 39). Detective Bing also acknowledged that all of the items

listed on the inventory were drug-related. (JA 40).

The search of Mr. Scovens’s home began at 3:09 a.m. on ~

June 5, 2004. (JA 58). Items seized from under the bed in the

master bedroom included a Pyrex mixing bowl containing crack

cocaine, a glass jar containing suspected crack cocaine, and a

digital scale. (App. Sa). United States currency in the amount

of $3,500.00 was found on top of a bedroom dresser. (App.

5a). One half hour after the drug evidence was found, two

4

video tapes were recovered from the bedroom. (App. 5a). In

addition, two forks with suspected drug residue were found in

the kitchen sink. (App. 5a).

Mr. Scovens moved to suppress the evidence seized under

the search warrant. (JA 4). At the hearing held on the motion,

counsel argued that the warrant lacked probable cause, that the

warrant was a general search warrant, that the manner in which

the search was conducted tured it into a general warrant, and

that the good faith exception to the exclusionary rule did not

apply. (JA 9). The district court denied the motion to suppress

in a letter ruling dated June 14, 2005. (App. 3a-7a). Mr.

Scovens entered a conditional guilty plea to the indictment

before the Honorable William D. Quarles, Jr. on June 23, 2005.

(JA 4).

On September 16, 2005, Judge Quarles sentenced Mr.

Scovens to the custody of the Attorney General for 120 months

on Count one. Mr. Scovens was placed on supervised release

for three years. (JA 4). Mr. Scovens noted an appeal from this

judgment on September 20, 2005. (JA 5, 70).

The United States Court of Appeals for the Fourth Circuit

affirmed in a per curiam opinion “for the reasons stated by the

district court in its order denying Scovens’ motion to suppress.”

(App. 2a).

REASONS FOx GRANTING THE WRIT

This case presents an important and heretofore unresolved

issue under the Fourth Amendment: where the police obtain a

warrant under pretext and thereafter flagrantly disregard the

scope of the warrant, does such action transform the warrant

into an impermissible general warrant, and if so, is the remedy

blanket suppression of all evidence seized or only that evidence

5

seized beyond the scope of the warrant. Although the

subjective intentions of an officer generally are irrelevant for

Fourth Amendment purposes, this Court has never dealt with

the issue of pretext in the context of a search warrant

application and execution. This Court has mentioned the

“flagrant disregard” doctrine in passing, but has never expressly

recognized or applied it. The lower courts are in conflict over

the doctrine, with some courts recognizing and applying it,

other courts recognizing it, but not applying it, and still other

courts refusing to recognize it at all. With this case, the Court

can resolve these conflicts and answer the very important

Fourth Amendment search warrant issue.

I. The Decision Below Raises An Issue Not

Resolved By Fourth Amendment Precedent

of this Court.

The text of the Fourth Amendment requires that no warrant

shall issue unless it “particularly describ[es] . . . the place to be

searched, and the persons or things to be seized.” ‘she

requirement under the Fourth Amendment that warrants

particularly describe the place to be searched and the things to

be seized prevents a general, exploratory search and-prevents

the police from- obtaining an illegal “general warrant.” See

Andresen v. Maryland, 427 U.S. 463, 480 (1976); Stanford v.

Texas, 379 U.S. 476, 481-85 (1965). A warrant that is

sufficiently particularized also leaves nothing to the discretion

of the officer executing the warrant. See Marron v. Uniied

States, 275 U.S. 192, 196 (1927).

In the 30 years since this Court’s Andresen decision,

however, it has become much easier for police to engage in

exploratory searches. That is so for two reasons: (1) the Court

has ruled that subjective intentions generally play no part in the

determination of probable cause issues, at least with respect to

6

warrantless activity, see Brigham City v. Stuart, 126 S. Ct.

1943, 1948 (2006); Whren v. United States, 517 U.S. 806, 813

(1996); Scott v. United States, 436 U.S. 128, 138 (1978); and

(2) the Court has ruled that inadvertence is not an element of

lawful plain view seizures, see Horton v. California, 496 U.S.

128, 140 (1990). Thus, as in Petitioner’s case, when officers

use the warrant process pretextually and then rely on the pla‘n

view doctrine to permit seizure of items found on the premises,

there is no express guidance from this Court on whether this

type of activity is illegal under Andresen and Marron, or is

permissible under Whren and Horton.

This Court hinted at the solution to the problem in Waller

v. Georgia, 467 U.S. 39 (1984). There, the Court

acknowledged that some lower courts had ruled that where

officers “flagrantly disregarded” the scope of warrants and

thereby “turned the warrants into impermissible general

warrants,” the remedy was suppression of all evidence seized.

Id. at 43 n.3. The Court noted that items “unlawfully seized

were suppressed,” but that “there is certainly no requirement

that lawfully seized evidence be suppressed as well.” Jd. This,

of course, begs the question of whether the items seized in

cases like Petitioner’s were “unlawfully seized.”

Save that cursory discussion in passing, this Court has never

directly examined the issue. Now is the time to revisit the

Waller footnote and resolve this important question. It is

particularly crucial to do so now, given the intervening

decisions in Whren and Horton, and given the confusion among

the lower court decisions.

7

II. The -Lower Courts Are in Conflict on

Whether to Recognize and How to Apply the

‘Flagrant Disregard” Doctrine.

The lower courts treat the flagrarit disregard doctrine in

essentially three different ways. Some have acknowledged it

and applied it to suppress evidence. Others seem to

acknowledge it in theory, but do not apply it. Still others reject

it entirely.

Illustrative of the first category is a decision of the Ninth

Circuit authored by then Judge, now Justice, Kennedy. In

United States v. Rettig, 589 F.2d 418 (9 Cir. 1978), officers

sought to obtain a warrant to search for evidence of a cocaine

importation scheme, but were denied the warrant because the

information presented to the magistrate was stale. Jd. at 420.

Undaunted, the officers went to a different magistrate and

obtained a warrant to search the same home for evidence of

marijuana, based upon entirely different facts. Jd. Armed with

this warrant, officers conducted a full scale search of the

premises, and seized a large quantity of evidence relating to the

cocaine scheme. Id. at 421. The Ninth Circuit ruled that all the

evidence seized must be suppressed. Jd. at 423.

The court in Rettig did not determine the search warrant to

be a general one, because the things to be seized were

sufficiently described. Jd. at 423. Yet the conduct of the

Officers violated the Fourth Amendment when the court

considered “both the purpose disclosed in the application ... and

the manner of its execution.” Id.

Another leading case on this point is United States v.

Medlin, 842 F.2d 1194 (10" Cir. 1988). In that case, officers

obtained a warrant to search for illegal firearms, but also had

information that the Medlin residence might contain stolen

8

property other than firearms. /d. at 1195. The officers searched

for and seized 130 firearms, but also “seized some 667 items of

property none of which were identified in the warrant

authorizing the search.” Id. at 1196. The court held that this

seizure violated Medlin’s Fourth Amendment rights and ruled

that all evidence, including the firearms, must be suppressed.

Id. at 1200. See also United States v. Foster, 100 F.3d 846, 848

(10" Cir. 1996) (where officers obtained a warrant to search for

marijuana and illegal weapons, but also seized “videotapes

containing footage of sexual acts involving Foster and his

stepdaughter and footage of marijuana use”). Also following

the Medlin and Rettig view is the state court holding in State v.

Johnson, 605 So. 2d 545, 548 (Fla. App. 1992) (“the officers’

flagrant disregard for the terms of the warrant requires us to

conclude that the court’s suppression of these items was

proper”).

Although Rettig and Medlin pre-date this Court’s decisions

in Whren and Horton, a very recent decision of the Fifth Circuit

found a pretextual warrant invalid under circumstances similar

to Petitioner’s. In United States v. Pope, No. 04-51008, 2006

WL 1531545 (5" Cir., June 6, 2006), an officer obtained a

warrant purportedly to search for evidence of a prescription

drug operation while actually looking for evidence of a

methamphetamine lab. 7d. at *1. The subterfuge was used

because the officer was lacking probable cause to obtain a

warrant to search for evidence of the latter crime. Id. The Fifth

Circuit ruled that because the officer misled the magistrate

about the true purpose of the search, the magistrate could not

“properly perform his gate-keeping function of making the

probable cause determination.” /d. at *6. Further, the court

rejected the argument that Whren applied because of “the

palpable distinction between pretextual vehicle searches and the

searches of private residences pursuant to a judicially

9

authorized warrant, the kind of searches that lie at the core of

the Fourth Amendment’s protections.” Jd.

Other courts have mentioned the flagrant disregard doctrine,

but have not seen fit to apply it. A decision by Judge, now

Justice, Souter is typical of this view. A defendant in State v.

Valenzuela, 536 A.2d 1252 (N.H. 1987), cert. denied, 485 U.S.

1008 (1988), claimed “that the police flagrantly disregarded the

warrant’s limitations on the objects of search and seizure, and

thus proceeded from an initially lawful entry to a general

search.” Jd. at 1266. The court recognized that in such cases,

“the only appropriate remedy may be plenary suppression of all

evidence seized.” Id. at 1267. The court concluded, however,

that there was no flagrant disregard under the facts of the case.

Id.

Many federal courts of appeal have likewise acknowledged

the doctrine in theory, but not found it to be justified under the

facts of the cases confronting them. See, e.g., United States v.

Hill, 322 F.3d 301, 307 (4" Cir.) (“violations of the warrant

were not so flagrant as to require the exclusion of the lawfully

seized evidence”), cert. denied, 540 U.S. 894 (2003); United

States v. Carpenter, 317 F.3d 618, 624 (6" Cir. 2003 ) (“cannot

be said that the officers here grossly exceeded the scope of the

warrant”); United States v. Shi Yan Liu, 239 F.3d 138, 141 (2d

Cir. 2000) (“actions bear none of the hallmarks of a general

search”), cert. denied, 534 U.S. 816 (2001); United States v.

Decker, 956 F.2d 773, 779 (8 Cir. 1992) (“officers here did

not exceed the scope of the warrant in terms of the places to be

searched, and the unlawfully seized items have beer

suppressed”); United States v, Schandl, 947 F.2d 462, 465 (11"

Cir. 1991) (“the vast majority of the documents seized were

within the scope of the warrants”), cert. denied, 504 U.S. 975

(1992).

10

Finally, at least one court refuses to apply the doctrine under

any circumstances. Citing to Waller, the Court of Appeals of

Maryland stated it has no place in the jurisprudence of search

warrant challenges: “We are not persuaded to overlay the

exclusionary rule of the Fourth Amendment with the ‘flagrant

disregard’ concept. The Supreme Court has not seen fit to do

so and neither do we.” Klingenstein v. State, 624 A.2d 532,

537 (Md.), cert. denied, 510 U.S. 918 (1993). While this

Statement-may misread Waller, it nonetheless illustrates the

necessity of this Court’s resolution of the matter.

Ill. There Was a Flagrant Disregard of the

Dictates of the Fourth Amendment in

Petitioner’s Case.

Applying the flagrant disregard doctrine to Petitioner’s case,

there can be little doubt that the officer violated the Fourth

Amendment. Initially, the record is undisputed here that the

officer obtained the warrant under a pretext and subterfuge.

The affidavit speaks only to probable cause to search for

evidence of attempted murder, yet the officer freely admitted at

the suppression hearing that he only sought evidence of drug

activity. (JA 39). Second, the warrant sought and obtained was

overbroad. The shooting of Petitioner occurred at the front

door to his house. (JA 52). All of the evidence of the shooting,

i.e., the blood, bullets, and casings, was located just inside the

door and on the staircases. (JA 52). Yet the officers sought a

warrant giving them authority to search “any and all locked and

unlocked containers, all locked and unlocked suitcases, sheds,

outbuildings, and any other area.” (JA 48). The warrant also

authorized the officers to search for and seize evidence of

“occupancy, residency, and/or ownership of the premises.” (JA

48). Finally, the warrant permitted the officers to seize all

“electronic equipment including but not limited to computer

hardware and peripherals.” (JA 48). Given the circumstances

—

11

of the shooting, there was no need for such broad authority,

either as_to places to be searched or things to be seized. There

was no probable cause to search everywhere in the home for

anything in any container. Indeed, the relevant evidence had

already been searched for and could have been seized before the

warrant was obtained. (JA 40-41).

The warrant was also defective in its execution. The

officers knew that evidence relating to the shooting was located

in the vicinity of the front door. Yet the officers wanted to

search for evidence of narcotics, for which they did not have

probable cause, but which they hoped would be found in other

parts of the house. (JA 39-40). There was no need to look

under Petitioner’s bed to satisfy the warrant. Rather, it served

only to satisfy the officer’s quest for evidence of drug activity

for which he had no probable cause. Thus, the officer

embarked on the very type of fishing expedition prohibited by

the Fourth Amendment and calling for the extreme remedy of

blanket suppression.

In light of the fact that the officers violated the Fourth

Amendment by conducting a general search, any plain view

argument the Government might mount must fail. “It is, of

course, an essential predicate to any valid warrantless seizure

of incriminating evidence that the officer did not violate the

Fourth Amendment in arriving at the place from which the

evidence could be piainly viewed.” Horton v. California, 496

U.S. at 136. Thus, where there is a scope violation of even a

validly issued warrant, “the subsequent seizure is

unconstitutional without more.” Jd. at 140.

Nor could it be argued that the good f.. *» exception to the

exclusionary rule of United States v. Leon, 468 U.S. 897

(1984), applies. Leon applies only where officers act in an

objectively reasonable manner when they execute a search

12

warrant that is later found to be invalid. Jd. at 908-13. As this

Court pointed out-in that case, however, the exception

“assumes, of course, that the officers properly executed the

warrant and searched only those places and for those objects

that it was reasonable to believe were covered by the warrant.”

Id. at 918 n.9. In cases such as the present one where officers

- improperly execute the warrant by flagrantly disregarding its

terms, the good faith doctrine (like the plain view doctrine)

simply does not apply.

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests

that this Court issue a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fourth Circuit.

Respectfully submitted,

FRED WARREN BENNETT

GARY E. BAIR*

Bennett & Bair, LLP

6301 Ivy Lane, Suite 418

Greenbelt, Maryland 20770

301.220.1570

Counsel for Petitioner

*Counsel of Record

July, 2006

APPENDIX

la

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4971

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CARLOS SCOVENS, a/k/a Lucky

Defendant - Appellant

Appeal from the United States District Court for the

District of Maryland, at Baltimore. William D. Quarles,

Jr., District Judge (CR-05-35-WDQ)

Submitted: April 20, 2006 Decided: April 24, 2006

Before MICHAEL, KING, and DUNCAN, Circuit

Judges.

Affirmed by unpublished per curiam opinion

Fred Warren Bennett, Gary E. Bair, Bennett & Bair, LLP,

Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United

States Attorney, Philip S. Jackson, Assistant United States

Attorney, Baltimore, Maryland, for Appellee.

2a

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36 (c).

PER CURIAM:

Carlos Scovens pled guilty to possession with intent to

distribute cocaine base pursuant to a conditional guilty plea,

reserving the right to challenge the denial of his motion to

suppress. On appeal, he contends that the warrant was.

overbroad and was executed in an unconstitutional manner. We

have reviewed the record and the parties’ briefs on appeal, and

we find no reversible error. Accordingly, we affirm for the

reasons stated by the district court in its order denying Scovens’

motion to suppress. See United States v. Scovens, No. CR-05-

35-WDQ (D. Md. June 14, 2005; entered June 15, 2005). We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

3a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

_ CHAMBERS OF

WILLIAM D. QUARLES, JR.

UNITED STATES DISTRICT JUDGE

101 WEST LOMBARD STREET

BALTIMORE, MARYLAND 21201

410-962-0946

410-962-0868 (Fax)

MDD_WDQCHAMBERS @MDD.USCOURTS.GOV

June 14, 2005

Phillip Jackson, Esquire

Office of the United States Attorney

36 S. Charles Street, 4" Floor

Baltimore, MD 21201

Gerald C. Ruter, Esquire

3201 E. Joppa Road

Baltimore, MD 21234

Fred W. Bennett, Esquire

Bennett & Blair [sic]

6301 Ivy Lane, Suite 419

Greenbelt, MD 20770

Re: United States of America v. Carlos Scovens

Criminal No. WDQ 05-035

Dear Counsel:

4a

Pending is the defendant’s Motion to Suppress Search

Evidence. For the following reasons, the motion will be

denied.

BACKGROUND

On June 4, 2004, police officers D. Burns and C. Young

went to 5949A Sunset Avenue, Baltimore County, Maryland to

investigate an “unknown trouble” report after gunshots had

been heard in the vicinity. Search warrant affidavit

(“Affidavit”) at 2d unnumbered page. Upon their arrival, the

police found defendant Carlos Scovens at the front door; he had

sustained several gunshot wounds. /d. The officers found six

spent shells outside the Scovens residence. Jd. A window near

~the door had been shattered and the doorway contained three

bullets holes. /d.

Officers who entered the residence to secure it and aid

Scovens, found additional bullet holes and located several

projectiles. Id. Officers also found a video camera trained on

the front door. Affidavit at page before “Expertise” section.

Scovens’ neighbors informed the police of “a large amount of

pedestrian traffic [at his home] throughout all hours of the day.”

Id. The officers also determined that Scovens had an extensive

Criminal record that included a heroin distribution conviction.

Id.

Baltimore County Police Detective Ivery Bing and Officer

Burns obtained a warrant to search 5949A Sunset Avenue for

“evidence pertaining to the Attempted Murder of Carlos Darry!

Scovens.” Affidavit at 1. The warrant authorized the seizure

of inter alia, electronic equipment, “including computer

hardware and peripherals...for video evidence and telephone

numbers.” Warrant at 1. The warrant authorized the search of

locked and unlocked containers, suitcases, and other places at

Sa

the residence. Jd. Recovered during the search were a mixing

bowl containing crack cocaine and digital scale (found under a

bed in the master bedroom), $3,500.00 from atop a dresser in

another bedroom, twe forks with white powder residue from the

kitchen sink, and two videotapes. Warrant Inventory.

At the suppression hearing, Detective Bing stated his belief

that the drug evidence seized related to the motive for the

shooting of Scovens.

DISCUSSION

Although the defendant has made much of the number of

officers who responded to the “unknown trouble” call, there is

no evidence that the police did anything other than perform a

protective sweep of the scene of an attempted murder. Of

course, the Fourth Amendment does not bar police officers

from making warrantless entries and searches when they

reasonably believe that a person within is in need of immediate

aid; the need to protect or preserve life or avoid serious injury

is justification for what would be otherwise illegal absent an

exigency or emergency. Mincey v. Arizona, 437 U.S. 385, 393

(1978). And-although the officer here did not -- the police

could have seized any evidence that was in plain view during

the course of their legitimate emergency activities. Jd.

Relying upon U.S. v. McCall, 740 F.2d 1331 (4" Cir. 1984),

the defendant insists that probable cause had dissipated before

the warrant was issued because officers had already conducted

a complete search of the residence and had recovered all

evidence relevant to the attempted murder. This assertion is

factually incorrect: there was no search of the Scovens

residence before the warrant was issued. Had there been, the

drug evidence would most probably have been legally seized

under the plain view doctrine.

6a

The dissipation of probable cause- - staleness- is an issue

when: (1) the facts alleged in the warrant, although sufficient

when the warrant was issued, grow stale because of the

government’s delay in executing the warrant, or (2) the warrant

itself is suspect because the information on which it rests is

arguably too old to furnish “present” probable cause. McCall,

740 F.2d, supra, at 1336. Just as the more than 20 months

period in McCall was an insufficient basis for quashing that

warrant, probable cause had not dissipated in the search warrant

obtained and executed on the night of the Scovens shooting.

Nor is the warrant impermissibly general. General warrants

are prohibited by the Fourth Amendment. The problem posed

by the general warrant is not that of intrusion per se, but of a

general, exploratory rummaging in a person’s belongings. The

Fourth Amendment addresses the problem by requiring a

“particular description” of the place to be searched and the

things to be seized. Andresen v. Maryland, 427 U.S. 463, 480

(1976). The particularity of the warrant must be determined

within the context of the crime under investigation. Id., at 481-

483. The search for motive evidence is a legitimate purpose for

a search warrant. Jd., at 483. The likelihood that Scovens had

been a victim in a drug-related murder attempt, made it

reasonable for the police to assume that Scovens’ drug records

and possible computer-stored surveillance camera images could

have identified Scovens’ assailant.

The police are permitted to use common sense to assist in

determining the scope of the search authorized by the warrant.

U.S. v Owens, 848 F.2d 462, 466 (1988). They are permitted to

make a good faith interpretation of the warrant in light of the

information available to them at the time they acted. Jd. The

search authorized and conducted under the warrant was

justified and cannot be described as a fishing expedition.

7a

CONCLUSION

For the foregoing reasons, and the evident good faith of the

police in the execution of the warrant, IT IS ORDERED that

the Motion to Suppress Search Evidence BE, AND HEREBY

IS, DENIED.

Despite its informality, this letter is an Order of the Court

and the Clerk is directed to docket it accordingly.

Very truly yours,

/s/

William D. Quarles, Jr.

United States District Judge

cc: Addressees

Court File-Original