                 REPORTED

 IN THE COURT OF SPECIAL APPEALS

            OF MARYLAND

                  No. 811

          September Term, 2014

______________________________________


        STATE OF MARYLAND

                         v.

        CHUCKIE DONALDSON




     Meredith,
     Wright,
     Reed,

                   JJ.




          Opinion by Meredith, J.




         Filed: January 28, 2015
       In this appeal, the State, appellant, challenges the ruling of the Circuit Court for

Baltimore County suppressing evidence discovered during a traffic stop of Chuckie

Donaldson, appellee. The State concedes that the officer who performed the search lacked

probable cause to search appellee, but argues that, because appellee was on parole at the time

of the search, appellee had a diminished expectation of privacy, and therefore, the search was

lawful despite the lack of probable cause. Appellee asserts that, because the officer was

unaware that appellee was on parole when the officer performed the search, appellee’s status

as a parolee did not justify the warrantless search.

                                 QUESTION PRESENTED

       The State filed this interlocutory appeal pursuant to Maryland Code, Courts & Judicial

Proceedings Article, § 12-302(c), and presents a single question for our review, which we

have rephrased as follows: Did the circuit court err in granting appellee’s motion to

suppress? 1

       Because appellee’s parole status was not known to the police officer at the time of the

search, we conclude that the search cannot be justified as a parolee search, and we affirm the

circuit court’s grant of the motion to suppress.2


       1
           The State presented the following question for our review:

             Did the lower court err in granting Donaldson’s motion to suppress
       where Donaldson had a reduced expectation of privacy in his person and
       possessions because he was on parole, and Detective Wisniewski had
       reasonable suspicion that Donaldson was engaged in criminal activity?
       2
        An unreported opinion was previously filed in this case on January 12, 2015.
That opinion is superseded by this reported opinion.
2
                                      BACKGROUND

       On the evening of August 27, 2012, Detective Edward Wisniewski of the Baltimore

County Police Department was conducting surveillance of the Beltway Motel in Baltimore

County when he observed an unidentified, disheveled man pacing back and forth outside the

motel. After watching the man for several minutes, the detective saw a Buick driven by

appellee pull into the parking lot. The detective observed the unidentified man enter the

passenger side of the Buick and then exit a minute later. The disheveled man then entered

the side entrance of the motel, and the Buick drove away. Based on Detective Wisniewski’s

training and experience, Detective Wisniewski believed that he had just observed a drug

transaction. He followed the Buick out of the parking lot and requested that a marked police

vehicle conduct a traffic stop.

       After appellee’s vehicle had been pulled over for failure to use a turn signal, Detective

Wisniewski ordered appellee out of the vehicle. The officer searched appellee and found a

single blue pill in a pants pocket. Although the detective did not know what the pill was at

the time he discovered it, the pill was later identified as oxycodone, a painkiller for which

appellee had a prescription. Because the detective suspected the blue pill was an illegal

substance, however, he arrested appellee and searched appellee’s vehicle. Inside the vehicle,

police found a small plastic bag containing eleven gel capsules filled with brown powder, as

well as a cell phone that belonged to appellee. After the phone rang several times, the officer

flipped open the phone, and observed a text message from a contact named “Steve” that



                                               3
stated “7 for $60,” which the officer interpreted as an apparent reference to a drug

transaction. Appellee was charged with multiple drug offenses, including possession with

intent to distribute a controlled dangerous substance (based on the eleven gel capsules found

in the car).

       Appellee subsequently moved to suppress the drugs found on his person and in his car,

as well as the incriminating text message found on his phone. At the suppression hearing,

Detective Wisniewski testified that the area of the motel was a common place for drug

activity. He stated that, when appellee’s vehicle was being pulled over, the detective

observed appellee “jockeying around” suspiciously in the driver’s seat. The detective also

testified that, after the police stopped appellee’s vehicle for allegedly making a turn without

using a turn signal, appellee consented to a search of his person and his car. Detective

Wisniewski testified that he observed a suspicious blue pill in an open pocket of appellee’s

cargo pants prior to conducting the consensual searches of appellee’s person and vehicle.

Appellee testified, however, that he never consented to a search. The circuit court found

appellee’s testimony on this issue more credible, and determined that he had not consented

to a search. The circuit court also rejected the State’s contention that the small blue pill in

appellee’s pants pocket had been found in plain view by peering into a pocket.

       The State presented evidence at the suppression hearing indicating that appellee was

on parole at the time of the search, but the State conceded that the officer performing the

search was not aware of that fact prior to the search and arrest. In addition to the plain view



                                               4
and consent arguments proffered by the State to justify the search and arrest, the State argued

that, because appellee was on parole, he had a reduced expectation of privacy. As a result,

the State argued, the search was lawful because Detective Wisniewski needed only a

reasonable and articulable suspicion that appellee was engaged in criminal activity in order

to conduct a search of a parolee. Appellee responded that, because the officers searching

appellee were unaware that he was on parole, the search could not be justified on that basis.

The circuit court agreed with appellee and suppressed the evidence, stating: “I don’t see how

[appellee’s parole status] plays into this case on the facts that we have.” On June 13, 2014,

the State filed a timely notice of an interlocutory appeal, and the record was transmitted on

September 15, 2014.

                                STANDARD OF REVIEW

       When reviewing the grant of a motion to suppress, we extend “great deference” to the

factual findings and credibility determinations of the circuit court, and review those findings

only for clear error. Brown v. State, 397 Md. 89, 98 (2007). Further, we view the facts in

the light most favorable to the party who prevailed on the motion. Holt v. State, 435 Md.

443, 457 (2013). We review the circuit court’s legal conclusions de novo and “exercise our

independent judgment as to whether an officer's encounter with a criminal defendant was

lawful.” Brown, 397 Md. at 98. See also Williams v. State, 372 Md. 386, 401 (2002) (“In

determining whether a constitutional right has been violated, we make an independent, de




                                               5
novo, constitutional appraisal by applying the law to the facts presented in a particular

case.”).

                                       DISCUSSION

       The State asserts that the circuit court erred in two respects: first, by concluding that

appellee’s parole status was not relevant to the Fourth Amendment analysis; and second, by

concluding that Detective Wisniewski did not have reasonable, articulable suspicion that

appellee was engaged in illegal drug activity. The State does not contest the circuit court’s

factual finding that Detective Wisniewski did not observe the blue pill in plain view, nor does

the State argue that the court erred in finding that appellee did not consent to a search. The

State also does not challenge the circuit court’s conclusion that Detective Wisniewski lacked

probable cause to search appellee and his car; the State conceded at oral argument that it is

not suggesting we should find that there was probable cause for the search.

       The State’s principal argument is that a person on parole lacks a sufficient expectation

of privacy to assert a claim that the police have violated the Fourth Amendment by

conducting a warrantless search without probable cause. The State observes in its brief: “[A]

person on parole or probation has an ‘austerely diminished’ privacy interest as compared with

ordinary citizens.” (Citing Feaster v. State, 206 Md. App. 202, 217 (2011)). The State points

out that we held in Feaster that searches of parolees are permissible even if the searching

officer lacks probable cause to conduct a search. Feaster, 206 Md. App. at 219 (holding that

searches of parolees are lawful when officer has “a reasonable suspicion that evidence of a



                                               6
crime will be found”). Accord United States v. Knights, 534 U.S. 112, 121 (2001) (holding

that a warrantless search of a probationer’s home is lawful when supported by “reasonable

suspicion” that the probationer is engaged in criminal activity).         See also Samson v.

California, 547 U.S. 843, 857 (2006) (if the parolee has agreed to suspicionless searches as

a condition of parole, the Fourth Amendment “does not prohibit a police officer from

conducting a suspicionless search of a parolee”). Based on these authorities, the State

asserts: “Because Donaldson was a parolee at the time of the incident, his reasonable

expectations of privacy were diminished, and reasonable suspicion was all the detective

needed to search Donaldson’s person and vehicle.”

       The State focuses upon our discussion in Feaster as dispositive of appellee’s claim

that he was subjected to an unreasonable warrantless search. In Feaster, 206 Md. App. at

217-24, we explained that the Supreme Court had applied a balancing test in Knights and

Samson to conclude that a police officer may search a parolee if the officer has a reasonable,

articulable suspicion that the parolee is engaged in criminal activity. Because there was no

issue regarding the officer’s knowledge that the suspect was on parole in those cases, the

discussion of the balancing test in those cases gave no weight to the officer’s knowledge.

The State asserts, therefore, that the officer’s knowledge of the appellee’s parole status is

“irrelevant,” and the State’s interest in regulating parolees outweighs appellee’s privacy

interest regardless of the detective’s awareness that he was a parolee.




                                              7
       A similar argument regarding a probationer’s diminished expectation of privacy was

rejected by the United States Court of Appeals for the Fourth Circuit in United States v. Hill,

___ F.3d ___, 2015 WL 151613 (4th. Cir. 2015). The court indicated in Hill that, despite the

probationer’s diminished expectation of privacy, the government’s interest in supervision did

not excuse compliance with the Fourth Amendment’s warrant requirement. ___ F.3d at ___,

2015 WL 151613 at *4, citing United States v. Bradley, 571 F.2d 787, 790 (4th Cir. 1978).

Consequently, the court held in Hill that “law enforcement officers generally may not search

the home of an individual on supervised release who is not subject to a warrantless search

condition unless they have a warrant supported by probable cause.” Id. at ___, 2015 WL

151613 at *5 (footnote omitted).

       None of the cases cited by the State addressed a search that was conducted at a time

when the police officer had no knowledge that the suspect was on parole. Consequently,

even though Feaster, Knights, and Samson all address the quantum of suspicion necessary

to conduct a lawful search of a known parolee, those cases do not hold that an otherwise

unconstitutional search is authorized and beyond challenge on a motion to suppress if the

police discover after the arrest that the suspect was on parole. It appears that no appellate

opinion in Maryland has addressed that precise issue.

       A handful of courts in other jurisdictions have addressed similar issues in analogous

situations, and all have concluded that the reasonableness of a search must be viewed from

the officer’s perspective at the time of the search, and therefore, an illegal search cannot be



                                              8
justified based on information discovered after the fact. These cases are consistent with the

rule that, generally, the propriety of an arrest is to be analyzed based upon the facts known

at the time of the arrest, as recognized in Professor LaFave’s treatise on the Fourth

Amendment:

              It is axiomatic that hindsight may not be employed in determining
       whether a prior arrest or search was made upon probable cause. If the action
       was taken without a warrant, the information to be considered is “the totality
       of facts” available to the officer at the time of the arrest or search; . . . .

2 W AYNE L AF AVE, S EARCH & S EIZURE: A T REATISE O N T HE F OURTH A MENDMENT § 3.2(d)

(2012) (footnotes omitted).

       In People v. Sanders, 31 Cal. 4th 318, 73 P.3d 496 (Cal. 2003), the Supreme Court

of California held that a warrantless search of the home of a suspect who was a parolee who

had expressly consented to warrantless searches of his home as a condition of parole was

unlawful because the officers were unaware of the parole status when they conducted the

search. Sanders, 73 P.3d at 507-08. The only issue on appeal was “whether the search was

lawful because [the suspect] was on parole, despite the fact that the officers were unaware

of [his] parole status when they conducted the search.” Id. at 499–500. The government

argued in Sanders that parolees have a diminished expectation of privacy, and that the

officer’s knowledge of the parole condition (or lack of knowledge thereof) was immaterial

to the legality of the search. Id. The Sanders court rejected the government’s argument and

held that the reasonableness of the search had to be evaluated “from the circumstances

known to the officer when the search was conducted.” Id. at 508. Because the information

                                              9
known to the officers at the time was insufficient to provide a basis for conducting a

warrantless search of the suspect’s home, the Sanders court concluded that the search was

unconstitutional. The court commented that, if it were to permit the police to justify a

warrantless search by pointing to information discovered subsequent to the search, such a

practice “would legitimize unlawful police conduct.” Id. at 507. Accordingly, the court

stated: “[W]e hold that an otherwise unlawful search of the residence of an adult parolee may

not be justified by the circumstance that the suspect was subject to a search condition of

which the law enforcement officers were unaware when the search was conducted.” Id. at

507-08. Accord In re Jaime P., 40 Cal. 4th 128, 130, 146 P.3d 965, 966 (Cal. 2006)

(applying rationale of Sanders to a warrantless search of a juvenile probationer whose

probationary status was unknown to the officer at the time of the search).

       In 2006, Sanders was cited with apparent approval in Justice Thomas’s majority

opinion in Samson, in response to Justice Stevens’s dissent which expressed the concern that

permitting suspicionless searches of parolees would give police unfettered discretion to

harass and annoy parolees. Samson, 547 U.S. at 856 n.5 (Justice Thomas wrote: “Under

California precedent, we note, an officer would not act reasonably in conducting a

suspicionless search absent knowledge that the person stopped for the search is a parolee.”).

In addition, other courts have adopted the Sanders court’s reasoning when faced with a

similar issue. See United States v. Caseres, 533 F.3d 1064, 1075-76 (9th Cir. 2008) (“The

[parolee’s] search condition validates a search only if the police had advance knowledge that



                                             10
the search condition applied before they conducted the search.”); Moreno v. Baca, 431 F.3d

633, 641 (9th Cir. 2005) (“[A]n officer must know of a detainee's parole status before that

person can be detained and searched pursuant to a parole condition.”).

       In Moreno v. Baca, the United States Court of Appeals for the Ninth Circuit addressed

whether a suspicionless arrest could be retroactively justified by the fact that the suspect had

an outstanding warrant for his arrest that the arresting officer was not aware of. Moreno, 431

F.3d at 638. Two police officers arrested Moreno without probable cause after observing

him walking down the street in Los Angeles. Id. at 636–37. After Moreno was placed under

arrest, one of the officers ran a warrant check and learned that there was an outstanding

warrant for Moreno’s arrest. Id. at 636. Moreno sued the two officers, claiming that,

because the officers lacked probable cause to arrest him, the arrest violated his Fourth

Amendment right to be free from unreasonable searches and seizures. Id. at 637. The

officers argued that, because there was an outstanding warrant for Moreno when he was

arrested, the arrest was lawful even though they were unaware of the warrant’s existence.

Id. The Ninth Circuit rejected the officers’ arguments, holding that the legality of the search

was determined based on the information the officers had at the time of the arrest, and that

the arrest could not be justified with new information obtained after the fact. Id. at 641.

       The Moreno court relied upon a series of Supreme Court cases establishing that the

legality of an arrest must be analyzed based on the facts and circumstances known to the

officer at the time the arrest occurs. Id. at 639 (citing Scott v. United States, 436 U.S. 128,



                                              11
137 (1978) (“[A]lmost without exception in evaluating alleged violations of the Fourth

Amendment the Court has first undertaken an objective assessment of an officer’s actions

in light of the facts and circumstances then known to him.”), and Illinois v. Rodriguez, 497

U.S. 177, 188 (1990) (holding that “factual determinations bearing upon search and seizure”

must be judged against an “objective standard” based on “facts available to the officer at the

moment”)). Cf. Ashcroft v. al-Kidd, ___ U.S. ___ , 131 S.Ct. 2074, 2080 (2011) (“Fourth

Amendment reasonableness ‘is predominantly an objective inquiry.’ We ask whether ‘the

circumstances, viewed objectively, justify [the challenged] action.’ If so, that action was

reasonable ‘whatever the subjective intent’ motivating the relevant officials.” (Citations

omitted.))

       The Supreme Court of Ohio confronted a similar issue in State v. Gardner, 135 Ohio

St. 3d 99, 984 N.E.2d 1025, 1039 (Ohio 2012). The Ohio court rejected the government’s

contention that the belated discovery of an outstanding arrest warrant could cure an unlawful,

suspicionless arrest. The Gardner court stated: “We will not condone the notion that the

unlawfulness of an improper arrest or seizure can always be purged by the fortuitous

subsequent discovery of an arrest warrant.” Id.

       The conclusions of the Ohio Supreme Court and the Ninth Circuit regarding the use

of later-acquired information to justify a warrantless arrest are also consistent with the

holding of the United States District Court for the Northern District of Illinois in Bruce v.

Perkins, 701 F. Supp. 163 (N.D. Ill. 1988). That court opined that the government’s



                                             12
contention in that case that an unlawful arrest could be justified after the fact by the

discovery of an outstanding arrest warrant was “preposterous,” and the court cautioned that

“the Fourth Amendment does not countenance such post hoc rationalization.” Bruce, 701

F. Supp. at 165. See also 3 W AYNE L AF AVE, S EARCH & S EIZURE: A T REATISE O N T HE

F OURTH A MENDMENT § 5.1(h) n.387 (2012) (“[A]n arrest without a warrant is not converted

into an arrest with a warrant merely because after the arrest the police learn there is an

outstanding warrant on the defendant for some other offense.”).

       Although none of the cases discussed above speaks directly to the question presented

in this case, they all stand for the more general proposition that the government cannot justify

an officer’s performance of a warrantless search with later-discovered information that, if

known to the officer at the time, would have justified a search or arrest. The State presents

no case holding to the contrary, and asserts that Sanders was simply wrongly decided. But

we are persuaded by the reasoning of the cases which have held that a constitutionally

defective search cannot be justified after the fact by information unknown to the officer at

the time of the warrantless search. Accordingly, the fact that appellee was on parole does not

validate Detective Wisniewski’s search that was conducted without probable cause.

       This result is consistent with the policy goals underlying the exclusionary rule,

namely, discouraging police misconduct. See Herring v. United States, 555 U.S. 135, 139-40

(2009) (the exclusionary rule is “‘designed to safeguard Fourth Amendment rights generally

through its deterrent effect’” (quoting United State v. Calendra, 414 U.S. 338, 348 (1974))).



                                              13
As the California Supreme Court noted in Sanders, permitting police to use a suspect’s

parolee status to justify a search even when the officer was unaware of that status would

serve “to encourage unlawful police conduct, especially in neighborhoods in which a higher

than average number of persons are on probation.” Sanders, 73 P.3d at 508. Officers could

simply search and arrest people without probable cause, and if the officers were lucky

enough to have searched a person who happened to be a parolee, there would be no bar to

introducing any evidence found as a result of the search. See In re Jaime P., supra, 40 Cal.

4th at 138, 146 P.3d at 972 (“To allow searches of probationers or parolees based solely on

the officer’s supposed subjective ‘belief’ that legal cause existed for a search predictably

would invite repeated harassment and arbitrary searches.”). In our view, such conduct by

the government would be incompatible with the Fourth Amendment’s protection against

unreasonable searches and seizures.

                                                 JUDGMENT OF THE CIRCUIT
                                                 COURT FOR BALTIMORE COUNTY
                                                 AFFIRMED. COSTS TO BE PAID BY
                                                 BALTIMORE COUNTY.




                                            14
