Supreme Court of MD: Exclusionary rule

Criminal; exclusionary rule

BOTTOM LINE: Where a suppression court is asked to exclude evidence obtained pursuant to a search warrant when the search warrant affidavit includes information that was observed during a prior unlawful entry, the evidence remains admissible if the court determines (1) that the officers’ decision to seek the search warrant was not prompted by what they saw during the illegal entry and (2) after redacting the references to the tainted facts or conclusions, the remaining untainted evidence would provide a warrant-issuing judge with probable cause to issue a warrant.

CASE: Founds v. State, No. 48, Sept. Term, 2025 (filed Aug. 7, 2026) (Justices Fader, Watts, Booth, Biran, Gould, EAVES, Killough) (Justice WATTS dissents) (Justices BIRAN, Gould dissent).

FACTS: Law enforcement suspected that Andrew Campbell Founds possessed a large quantity of marijuana that was the subject of a controlled FedEx delivery. Officers detained Mr. Founds and engaged in a protective sweep of his apartment after Mr. Founds relayed to the officers that there was another individual in his apartment.

During that protective sweep, officers observed in plain view various drugs, firearms and a bulletproof vest. Law enforcement subsequently presented everything that transpired in an application for a warrant to search the apartment. A judge issued that warrant; police eventually searched and seized the contraband and accordingly charged Mr. Founds.

Mr. Founds filed a motion to suppress, arguing that officers had unconstitutionally searched his home during the protective sweep prior to the issuance of the warrant and that the police officers’ observation of the contraband therein—which was mentioned in the affidavit in support of the subsequently issued warrant—tainted the warrant. The circuit court denied that motion and found Mr. Founds guilty on all three counts. The Appellate Court affirmed the circuit court on both issues.

LAW: The court today holds that when a defendant challenges a search warrant application or affidavit on the ground that the warrant contains unlawful information arising from a previous illegal search, the suppression court must determine: (1) “if the [officers’] decision to seek the warrant was prompted by what they had seen during the initial entry[;]” and (2) “if information obtained during that entry was presented to the [issuing judge] and affected his [or her] decision to issue the warrant.” Both questions must be answered in the affirmative for the warrant to be an independent source exception to the exclusionary rule.

If the suppression court determines (1) that the officers’ decision to seek the search warrant was not prompted by what they saw during the illegal entry; and (2) after redacting the references to the tainted facts or conclusions, the remaining untainted evidence would provide a warrant-issuing judge with probable cause to issue a warrant, then the evidence seized is admissible pursuant to the independent source doctrine.

Here, the assumed illegal entry in this case does not compel suppression of the evidence seized pursuant to the subsequent warrant-authorized search. After excising any tainted material from the warrant affidavit, the remaining untainted information independently establishes probable cause. And with the contraband in Mr. Founds’ apartment lawfully in play, the court finds that agreed-upon statement of facts provided a sufficient basis for the circuit court to find beyond a reasonable doubt that Mr. Founds committed the three possessory offenses for which he was convicted.

Judgment of the Appellate Court of Maryland affirmed.

DISSENT: Respectfully, I dissent. There are two opinions authored by my colleagues, each offering a different test for determining whether evidence recovered pursuant to a search warrant is admissible under the independent source doctrine when the warrant affidavit contains both information obtained during a prior unlawful search and information that was not obtained from the prior search.

I join Justice Biran’s opinion in its entirety because, in my view, it is the opinion that best gives effect to the requirements of the independent source doctrine set forth by the Supreme Court of the United States in Murray v. United States, 487 U.S. 533 (1988), and the principles underlying the exclusionary rule itself. I agree with Justice Biran that the state failed to demonstrate that exigent circumstances justified the search of Mr. Founds’s apartment. I address this issue mainly to point out that the test for exigent circumstances is an objective one.

DISSENT: The majority’s approach “provide[s] government agents with an affirmative incentive to engage in unconstitutional violations of the privacy of the home.” Because the majority’s decision is incompatible with the purpose of the exclusionary rule, I respectfully dissent.