C. [§ 3.213] Article 26—Loss of Liberty Or Property Due To Improper Warrant

• Jurisdiction: Maryland

C. [§ 3.213] Article 26—Loss of Liberty or Property Due to Improper Warrant

Article 26 of the Maryland Declaration of Rights proscribes the issuance of warrants that lack oath or affirmation or do not state with specificity the place to be searched or the person to be seized. The Court of Appeals recognizes a private action for damages if a plaintiff is deprived of a liberty or property interest as a result of a warrant issued in violation of Article 26. Ashton v. Brown, 339 Md. 70, 660 A.2d 447 (1995); Widgeon v. E. Shore Hosp. Ctr., 300 Md. 520, 479 A.2d 921 (1984). See generally Dua v. Comcast Cable of Md., Inc., 370 Md. 604, 805 A.2d 1061 (2002).

Article 26 of the Maryland Declaration of Rights, entitled "Warrants," provides that:

All warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.

Article 26 of the Maryland Declaration of Rights is derived from Article 24 of the Declaration of Rights, embodied in the Constitution of 1776. Givner v. State, 210 Md. 484, 124 A.2d 764 (1956). Article 26 grew out of the same historical background as the Fourth Amendment to the United States Constitution, and both seek to protect individuals from arbitrary intrusions resulting from unrestricted searches and seizures by general warrant. Solis v. Prince George's County, 153 F. Supp. 2d 793 (D. Md. 2001) (same facts that supported plaintiff's § 1983 claim brought under Fourth Amendment apply with equal force to plaintiff's state constitutional claims); Carler v. State, 367 Md. 447, 788 A.2d 646 (2002); Scott v. State, 366 Md. 121, 782 A.2d 862 (2001) (Maryland courts tend to equate the federal and state provisions, despite their differing language, and to construe the Maryland provision in conformance with U.S. Supreme Court constructions of the Fourth Amendment); Salmon v. State, 2 Md. App. 513, 235 A.2d 758 (1967).

Each state provision provides a distinct protection, however, and is construed in pari materia with a different federal amendment. Franklin v. Montgomery County, Civil No. DKC 2005-0489, 2006 U.S. Dist. LEXIS 68476 (D. Md. Sept. 13, 2006). "Article 24 protects substantive due process rights and Article 26 protects the right to be free from unreasonable searches and seizures; the statutes...