4th Circuit says proximity to drug market does not justify search of home

A federal appeals court threw out the 2019 gun possession conviction of a Calvert County man, agreeing with his argument that the warrant that allowed the search of the home he was in was based on flimsy information.

A divided three-judge panel of the 4th U.S. Circuit Court of Appeals, in a ruling handed down Friday, said the affidavit from police seeking a warrant to search a home in the Kent Bottom area of the county described Kent Bottom in great detail as an “open-air drug market.” But the 21-page affidavit did not tie any of that activity directly to 6740 N. Solomons Island Road, the one home searched among several in the area.

Evidence seized in that search needs to be suppressed, wrote Judge DeAndrea Gist Benjamin, because “the Fourth Amendment does not permit suspicion by geography.”

“The affidavit failed to establish a fair probability that contraband or evidence of a crime would be found inside the 6740 residence at the time of the search because the facts set forth in the affidavit were either too old, not connected to the 6740 residence, or both,” Benjamin wrote for the court. “The affidavit may have supported suspicion that drug activity occurred somewhere in Kent Bottom, but it did not provide a substantial basis to cross the firm constitutional line at the entrance of the 6740 residence.”

The case began on Aug. 30, 2019, when the Calvert County Sheriff’s Department’s Drug Enforcement Unit applied for a no-knock warrant to search the 6740 address. To do so, officers submitted an affidavit describing Kent Bottom, an area off a dirt road south of Kent Road.

It  described Kent Bottom as “an open-air drug market where multiple street and mid-level dealers conduct CDS [controlled dangerous substance] transactions,” dealing that police said had been going on for decades. Based on the history of surveillance, officers said they were familiar with the “area, the subjects who reside in or frequent the area, and the manner in which these subjects conduct CDS transactions.”

The affidavit proceeded to identify five homes along the road and a total of eight people who live there or frequented the area, including Earl Griffin Jr. It included details of apparent drug activity from 2006, 2016, 2017 and 2018.

A warrant was issued that day for officers to search 6740 and “any and all vehicles, building, sheds, and storage containers found on the premises.”

Officers executed the warrant on Sept. 5. When officers showed up, Griffin was the only one in the home, where no drugs were found. But a search of a Chevy Tahoe at the house found cocaine base, powder cocaine, marijuana and a firearm.

Griffin was arrested and later indicted on charges of possession with intent to distribute cocaine base, cocaine, and marijuana; possession of a firearm in furtherance of a drug-trafficking crime; and possession of a firearm by a felon.

At trial, he moved to have the evidence thrown out, arguing that the affidavit supporting the warrant failed to make any connection between alleged drug activity and the house. But the trial judge said the allegations were sufficient in light of the description of Kent Bottom as a “drive-up drug shop.”

Griffin was acquitted on all counts but possession of a firearm by a felon, and he was sentenced to 15 years in prison, followed by five years of supervised release.

But the appeals court agreed with Griffin that the affidavit did not provide examples of criminal activity that were linked closely enough to 6740, either in time or proximity, to support a warrant. The only drug activity in the house was from 2006, and more recent activity involved apparent drug deals conducted by others — not Griffin — near the house, but not in it or with anyone going in or out of the house as part of a deal.

“The affidavit failed to establish a fair probability that contraband or evidence of a crime would be found inside the 6740 residence at the time of the search because the facts set forth in the affidavit were either too old, not connected to the 6740 residence, or both,” Benjamin wrote.

In a brief dissent, Judge Toby Heytens said the evidence from the search should not be suppressed because the officers who executed the warrant acted in good faith on the belief that it was valid, which typically protects the evidence seized.

“Two judges — the state trial court judge who issued the warrant and the federal district court judge who presided over this case — concluded that the same materials were sufficient to establish probable cause,” Heytens wrote. “Having reviewed both the warrant application and the district court’s explanation for reaching that conclusion, I cannot say the officers were ‘entirely unreasonable’ in relying on the warrant here.”

But Benjamin disagreed, writing that “there was not a single fact contained in the affidavit that would allow a reasonable trained officer to believe drugs would be located in the 6740 residence at the time of the search.”

Griffin’s attorney, Stuart Berman, said they were “pleased with the court’s ruling,” but declined further comment on an active case. The U.S. Attorney’s Office declined to comment.

The ruling vacates Griffin’s conviction and sends the case back to U.S. District Court for further proceedings.