What’s in a Name? What defines a warrant, under the Fourth Amendment?
A Court Order May Satisfy the Warrant Requirement for a Search, According to the Maryland Court of Appeals
The Supreme Court upheld the exclusionary rule and applied it to state courts in 1961. Mapp v.Ohio, 367 U.S. 643 (1961). The exclusionary rule makes clear that evidence seized in violation of the Fourth Amendment is unconstitutional and therefore inadmissible in a court of law. While there are exceptions to this rule, generally a warrantless search is illegal, and any evidence found as a result of a warrantless search must be excluded.
A Warrant to Search Does Not Have to be Formally Labeled a “Warrant”
The Maryland Court of Appeals in June, however, held that official authorization of a search
does not have to be called a “warrant” to satisfy the requirement. Whittington v. State, No. 35,
SEPT. TERM, 2020 (Md. June 2, 2021). Citing the Supreme Court’s decision in Carpenter v.
United States, 138 S.Ct. 2206 (2018), the Maryland Court of Appeals noted that a formal label of
an order as a “warrant” has never decided a case. Id at 10. Instead, they made clear that a warrant
must have three things (other than the name warrant) to be constitutionally valid:
- A warrant must be issued by a neutral, disinterested magistrate. Lo-ji Sales, Inc. v. New
York, 442 U.S. 319, 326 (1979).
- The affiant seeking the warrant must demonstrate to the magistrate probable cause to
believe that “the evidence sought will aid in a particular apprehension or conviction” for
a particular offense. Warden v. Hayden, 387 U.S. 294, 307 (1967).
- “Warrants must particularly describe the ‘things to be seized’ ” as well as the place to be
searched. Dalia v. United States, 441 U.S. 238, 255 (1979).
For Kevin Whittington, the court’s focus on substance rather than form led to his arrest. During
the investigation, law enforcement applied for a court order to GPS track Whittington’s car, and
later applied for a warrant to search his home for controlled substances. Whittington at 3-5.
Following a Supreme Court ruling in 2012 that defined placing GPS tracking on automobiles a
Fourth Amendment “search”, Maryland issued Md. Code, Criminal Procedure §1-203.1 to define
when the court could authorize GPS tracking. That code section, however, defined the court’s
authorization as an “order” rather than as a warrant. Whittington unsuccessfully challenged the
GPS tracking on the grounds that it was formally a court order not a warrant. Id at 11. The court
held that the requirements of §1-203.1 satisfied the warrant requirements because:
- The order was issued by a district court or circuit court judge.
- The application for the order contained the investigator’s affidavit alleging personal
knowledge of the facts that lead to probable cause,
- The application also articulated “with reasonable particularity” the location, person, or
object being tracked.
Probable Cause Inferences Allowed in a Warrant Application
The Court of Appeals also rejected Whittington’s argument that the judge issuing the warrant to
search his home did not have a substantial basis for finding probable cause. The substantial basis
test is a review by an appellate court of whether the magistrate properly found there was
probable cause. The appellate court will not review all the facts according to their own
judgement of probable cause, but rather whether the judge originally granting the warrant
application had a substantial basis to find there was probable cause. Id at 13.
The Court in Whittington, at 13-14, found that probable cause in the application for a warrant to
search a home:
- Does not require direct evidence that the evidence sought would be found in the place
searched. Stevenson v. State, 455 Md. 709, 724 (2017).
- May be inferred from the type of crime, the nature of the items sought, the opportunity
for concealment, and reasonable inferences about where the defendant may hide the
incriminating items.” Holmes v. State, 368 Md. 506, 522 (2002).
- May be predicated on an affiant’s professional experience and inferences drawn
therefrom in deciding whether probable cause exists. Moats v. State, 455 Md. 682, 700-
- Must be able to reasonably infer a logical connection, or “nexus” that ties police
observations, contained within the four corners of the court order application, to the
defendant’s home. Holmes, at 521.
How to Exclude if You Think You’ve Been Subject to a Warrantless Search
If your home, your car, or your person has been GPS tracked or searched by other means, your
Fourth Amendment rights may have been violated. It is important that you consult a criminal
defense attorney as soon as possible and ask them to review the facts of your case. You may
have a basis to exclude any evidence seized during an unlawful search. The attorneys at Gritz,
Hanifin, and Shih LLC are experienced and zealous representatives when it comes to protecting
your rights and fighting for the fair trial you deserve.