MD: Suppression judges act like appellate judges and shouldn’t second guess PC

A suppression hearing judge sits like an appellate judge in determining the adequacy of the showing of probable cause. The suppression judge improperly second guessed the probable cause here, and the suppression order is reversed. State v. Johnson, __ Md. App. __, 56 A.3d 830 (2012) (Moylan, J.):

What A Reviewing Judge Must Not Do:

Determine Probable Cause De Novo

[Query: Isn’t that exactly what appellate courts do under Ornelas? Come on; you’re going too far in your rhetoric.]

What A Reviewing Judge Should Do: Be Content With A Substantial Basis

In Fitzgerald v. State, 153 Md. App. 601, 627, 837 A.2d 989 (2003), aff’d, 384 Md. 484, 864 A.2d 1006 (2004), this Court switched to affirmative terms to praise a suppression hearing judge for doing what a reviewing judge should do:

Once again [the suppression hearing judge] commendably recognized the constraints on her reviewing role. She did not presume to find probable cause. That was not her job. What she found was that [the warrant-issuing judge] had had a “substantial basis” for finding probable cause. That was her job. .

The relatively lower hurdle that must be cleared by an application for a search warrant is that it must provide a “substantial basis” for the issuance of the warrant. Illinois v. Gates described that lower hurdle, 462 U.S. at 236: …

. . .

“Substantial Basis” Is Less Than “Probable Cause”

Terms such as “substantial basis” and “probable cause” can be, however, frustratingly slippery. The one thing we can be certain about is their relative weight when compared with each other. A substantial basis is less weighty and less logically probative than probable cause. A tightly reasoned examination, for instance, might reveal a subtle logical flaw in the posited probable cause, but the substantial basis test would not subject the warrant application to so rigorous an analysis. The preference for the warrant and the resulting presumptive validity of the warrant will be able to cover over flaws that might be more compromising if one were examining probable cause in a warrantless setting. Fine points in the arguable nexus between the street criminality of the suspect and the police entitlement to search his home for evidence might well constitute such a case wherein the relative intensities of the examinations might produce very different conclusions. What we know for certain is that some warrant applications will past muster under the lesser test that would not pass muster under the more demanding test.

. . .

A Prima Facie Case Is Not Required