MD: Dragnet search of 21 apts looking for a shooter was unreasonable

For an exigent entry into a dwelling, probable cause is required. Here, police intended to search every apartment in two buildings looking for a shooter, and there was no probable cause as to any particular unit. They searched 21 apartments before the shooter was found. Plain view doesn’t work for the state here because the entries were invalid, so the view wasn’t “plain.” Peters v. State, 2015 Md. App. LEXIS 108 (August 26, 2015):

As Hinton, Higgins, Johnson, and Busk make plain, the search of individual apartment units within a multi-unit apartment building is no different from the search of individual homes within a neighborhood or town. Probable cause to believe that the object of the search—here a suspected shooter and his accomplice—will be within a particular apartment unit is a necessary prerequisite to search that apartment absent consent. The generalized, though reasonable, belief that the target of a search is somewhere within a multi-unit building does not give rise to probable cause to search every unit in the building. As the Johnson Court aptly stated, such a police tactic amounts to a “shell game.”

In the case at bar, Officer Loiero and the other officers involved in the search did not have knowledge of facts giving rise to a reasonable belief that “Ty” and the shooter were inside Apartment J in building 5933. This would be true if it had been the first apartment searched and remained true when it was the third to last apartment searched. See Vasquez, supra (search of the fourth of four houses amounted to a “shot in the dark”). Even in Scott, supra, where the majority held that the search of the seventh of seven apartments was supported by probable cause because the other six apartments had been eliminated, the court implied that the search of the prior six apartments may not have been supported by probable cause. See 520 F.2d at 700 (noting that the probable cause inquiry turned on the police officers’ reasonable belief at the time of the search of the seventh apartment, “with action frozen at that moment,” and that the propriety of the prior six searches was not properly raised by the defendant).

Instead of developing information by investigation, the police proceeded to search the apartments in buildings 5931 and 5933 one by one, for almost six hours, ordering occupants out of their homes at gunpoint, and opening apartment doors with a battering ram if necessary. All the apartment occupants were made to leave their homes and wait in a bus outside. Before the search of Apartment J in building 5933, the police had searched 21 apartments in this manner. The police only stopped when they happened upon an apartment with an occupant named “Ty.”

The Fourth Amendment is designed to prevent such generalized, wholesale searches. See Garrison, 480 U.S. at 84 (in adopting the Fourth Amendment, the Framers intended to prevent “wide-ranging exploratory searches”); Scott, 520 F.2d at 703 (Ferguson, J., dissenting) (“The majority position puts this court in the position of condoning—or, at the least, relying upon—[general] searches of the very kind intended to be prohibited by the Fourth Amendment” to support a finding of probable cause); Parmenter, 531 F.Supp. at 982 (Fourth Amendment’s particularity clause designed to prevent “unlawful intrusion by police officials into the homes of innocent persons”). The police lacked probable cause to believe that the suspects in this case were in any particular apartment in either building; and they did not obtain probable cause to believe that the suspects were in Apartment J at any time before they entered Apartment J without consent. The warrantless entry into 5933 Radecke Avenue, Apartment J, without probable cause to believe the suspects were inside that apartment, was illegal under the Fourth Amendment.