Permissible Scope of Warrant Execution

• Jurisdiction: Maryland

X. Permissible scope of warrant execution

In Payton, 445 U.S. 573, the Supreme Court stated: "[I]ndiscriminate searches and seizures conducted under the authority of 'general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment." Id. at 583. In Marron, 275 U.S. 192, the Supreme Court stated: "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Id. at 196.

In Frey v. State, 3 Md. App. 38, cert. denied, 250 Md. 731 (1968), the Court of Special Appeals held:

A general warrant, broadly defined, is one which fails to sufficiently specify the place or person to be searched or the things to be seized, and is illegal since, in effect, it authorizes a random or blanket search in the discretion of the police in violation of the Fourth Amendment to the Federal Constitution, [and] Article 26 of the Maryland Declaration of Rights[,] which require that search warrants particularly describe the place to be searched and the things to be seized, so as to prevent the search of one place, or seizure of one thing, under a warrant authorizing search of another place, or the seizure of another thing."

Id. at 46.

In Garrison, 480 U.S. 79, the Supreme Court stated:

The manifest purpose of [the] particularity requirement was to prevent general searches. By limiting the authorization to search to the specific area and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.

Id. at 84.

Whether or not a given warrant has described the place or person to be searched with sufficient particularity is judged on a case-by-case basis. In Tucker v. State, 244 Md. 488 (1966), the Court of Appeals stated: "[T]here is no formula which can be used to measure the particularity with which premises must be described and that the adequacy of the description in every case will depend on the facts and circumstances there present." Id. at 496 (citing Dow v. State, 207 Md. 80, 83 (1955); Saunders v. State, 199 Md. 568, 572 (1952); Allen v. State, 178 Md. 269, 278 (1940)).

One warrant that particularly describes multiple places to be searched or persons to be arrested is permissible if all places or persons are sufficiently described. In Bland v. State, 197 Md. 546 (1951), the Court of Appeals stated: "[A] search warrant is not illegal merely because it authorizes a search of more than one apartment or building." Id. at 552. In Allen v. State, 178 Md. 269 (1940), the Court of Appeals stated: "[I]t was not error to combine under one writ the right to search the two suspected premises instead of issuing a separate writ for the search of each one." Id. at 278.

A. Particularity as to the place to be searched

In Frey, 3 Md. App. 38, the Court of Special Appeals stated: "A description of a place to be searched is ordinarily sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended." Id. at 46-47; see Thomas v. State, 50 Md. App. 286, 293 (1981), cert. denied, 292 Md. 639 (1982). In Jackson v. State, 132 Md. App. 467, 478-79, cert. denied, 360 Md. 487 (2000), the Court of Special Appeals held that, when police had a search warrant for a health club, with a particular street address (7963), the warrant included the attached storage area, even though it had its own street address (7959A), because the separate storage area was part of the same business establishment.

In Walls v. State, 179 Md. App. 234, 253 (2008), the Court of Special Appeals held that a warrant and affidavit that stated "said premise is described as a single story duplex which is tan in color with white trim around the windows, a white storm door, and the numerals '30' to the left of the door on a dark colored shutter" was sufficiently particular to permit a search of the shed within the fenced-in yard because "premise" was intended to include "premises," and the shed was within the curtilage of the premises.

In Braxton v. State, 123 Md. App. 599 (1998), the Court of Special Appeals held that a search warrant for an address that is believed to be the residence of the defendant must include a factual basis for that belief to support a search warrant for that home. The Court stated:

[A]n affidavit that accuses a suspect of a crime without including the facts supporting that assertion would not demonstrate probable cause to arrest the suspect. Similarly, an affidavit supporting a search warrant request must show some basis for the belief that the suspect occupies or is otherwise connected to the targeted premises.

Id. at 629 (internal citations omitted).

In Harris v. State, 17 Md. App. 484 (1973), the Court of Special Appeals held that, when a warrant mistakenly stated that the defendant's house was on a different side of the road than it actually was, it was not fatal to the warrant, stating:

The only error in the description of the property was the statement that it was situated on the left side of the dirt road, whereas, it was located on the right side . . . if one is entering from the main road. Of the four structures located on [that road]. the dwelling house occupied by the [defendants], and the object of the search, was the only building which matched the premises described in the warrant and supporting application. Additionally, the occupants of the house were named in the affidavit attached to the warrant. The property searched was located in a rural area and had no street address which could be used to identify it. Nevertheless, the arresting officers were able to proceed directly to the house without stopping to inquire as to its location. . . . Under these circumstances, the error in the description of the precise location of the dwelling house is not fatal to the warrant.

Id. at 491 (internal citations and quotations omitted).

In Ferguson v. State, 236 Md. 148 (1964), the Court of Appeals held that a search of three buildings connected to the building described in the warrant was not illegal when the warrant stated that the "adjoining buildings constituted one business establishment. . . ." Id. at 156. In Hall v. State, 232 Md. 588, 590 (1963), the Court of Appeals held that a warrant for a business did not limit the scope of the search to the first floor because the business encompassed three floors of the building. See Leonard v. State, 200 Md. 58, 61 (1952) (rejecting the defendant's "hyper-technical" reading of the affidavit); Lucich v. State, 194 Md. 511, 515 (1950) (search warrant was directed to the buildings consisting of cabins and an office).

In Butler v. State, 19 Md. App. 601, cert. denied, 271 Md. 732 (1974), police believed that a row home was a single-family home when it actually contained multiple dwelling units. The Court of Special Appeals held that the warrant was sufficiently particular because the officers had no reason, based on the outward appearance of the structure, to believe that it was anything but a single-family home.

The Court stated: "There was no showing that the affiant to the warrant had any knowledge, actual or constructive, that the dwelling was other than a single family dwelling. Neither he nor other police officials were shown to possess any information such as would reasonably indicate that the property was a multiple unit building." Id. at 605-06.

In Reidy v. State, 8 Md. App. 169, 181-82 (1969), the Court of Special Appeals held that a warrant to search the entire third floor, which contained three separate apartments, was permissible because the warrant described the exterior of the building in detail and gave the correct address. The Court stated: "[T]he police, not knowing which room of the dwelling was occupied by the [defendant], described the place to be searched with sufficient particularity that the warrant was not a prohibited general one." See Md. Code Ann., Crim. Proc. § 1-203(a)(3)(ii).

1. A warrant is sufficiently particular if it incorporates specific items from the warrant application or affidavit, if those documents accompany the warrant

In Groh, 540 U.S. at 557-58, the Supreme Court held that a defective description in a warrant may be saved by an adequate description in an affidavit or application, if the affidavit and/or application accompanies the warrant and is incorporated in the warrant and/or cross-references other documents.

In Thomas v. State, 50 Md. App. 286, 293 (1981), cert. denied, 292 Md. 639 (1982), the Court of Special Appeals held that a warrant that failed to specify the apartment to be searched was valid because the affidavit attached to the warrant identified the apartment with the name of the occupant. In Wood v. State, 196 Md. App. 146 (2010), cert. denied, 418 Md. 192 (2011), the Court of Special Appeals held that the warrant was valid because it incorporated the affidavit, which was "attached to and made a part of the warrant itself." Id. at 166.

In Brock v. State, 54 Md. App. 457, cert. denied, 297 Md. 338 (1983), the Court of Special Appeals stated that, when "determining whether a warrant adequately describes the place to be searched, it is permissible to look to the affidavit . . . [because it] is part of the warrant and incorporated by reference therein." Id. at 469. In Frey, the Court of Special Appeals stated:

In determining whether the description of the place to be searched meets these standards, it is permissible to look to the affidavit as well as the warrant since the affidavit is part of the warrant and incorporated by reference therein. Certainly, a designation in the affidavit of the apartments to be searched as those being occupied by the

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