When is offsite criminal activity sufficient to permit a warrant to search one’s home?
Search warrants of people’s homes often are issued as a result of alleged criminal activity that takes place far from the suspect’s home.
When is alleged offsite criminal activity sufficient to permit a warrant to search one’s home? In such a jurisdiction as Maryland, a limited nexus is needed between the criminal activity that has already taken place and the suspect’s home. In such other jurisdictions as Virginia, a stronger nexus is required.
Virginia’s intermediate appellate court wrote in 2007:
“[W]e have held that [the inference that the suspect "’was engaged in the sale of illicit drugs and that evidence of such criminal activity would probably be found in his home.’"] can be permissibly drawn in some cases and provide the necessary factual nexus between the crime and place to be searched. In Gwinn, the police observed seven drug transactions where a drug seller went to Gwinn’s store, returned with the cocaine, and went back to the store after the sale. 16 Va. App. at 974, 434 S.E.2d at 903. Shortly before several of those transactions, Gwinn’s automobile arrived at the store from Gwinn’s residence. Gwinn was present at the store for several of these occasions, and one time he and the seller left the store simultaneously in different automobiles and met at a separate location. Id. We recognized that "’[a] magistrate is entitled to draw reasonable inferences about where incriminating evidence is likely to be found, based on the nature of the evidence and the type of the offense.’" Id. at 975-76, 434 S.E.2d at 904. Thus, we concluded that the magistrate was entitled to infer from the evidence that Gwinn was supplying the seller with cocaine and to further infer "’the probability that drugs . . . or other evidence of Gwinn’s suspected drug-related activity would be found in his residence.’" Id. at 976, 434 S.E.2d at 904.
“In Anzualda, 44 Va. App. 764, 607 S.E.2d 749, where the evidence did not show a pattern of transactions, the plurality opinion reached a different conclusion. There, the police obtained a warrant to search Anzualda’s residence for a gun, which they suspected was a murder weapon in another case and which they had been told was traded to Anzualda for marijuana. Id. at 771, 607 S.E.2d at 752. We held in a plurality opinion that the affidavit "’fail[ed] to provide a sufficient nexus between the item sought (the pistol) and the premises to be searched.’" Id. at 777, 607 S.E.2d at 755. We noted, however, that generally evidence is likely to be found where ‘drug dealers’ live, but that the affidavit for Anzualda’s residence only contained an account of an isolated drug transaction and did not suggest that Anzualda was a known drug dealer. Id. at 777-78, 607 S.E.2d at 755-56; see also Lalor, 996 F.2d at 1579-83 (holding that the affidavit in support of the warrant lacked probable cause even though it included facts indicating Lalor sold cocaine regularly, because it did not ‘describe circumstances that indicate[d] such evidence was likely to be stored at Lalor’s residence’).”
Sowers v. Virginia, 49 Va. App. 588, 597-99 (2007).
Maryland’s intermediate appellate court asserts that Maryland takes a middle ground on the matter:
“[Holmes v. State, 368 Md. 506, 521, 796 A.2d 90 (2002)] adopted a middle ground that probable cause to search a suspect’s home can be found when there is a nexus between the suspect’s criminal actions and his home sufficient to support a reasonable inference that the tools or fruits of the crime probably will be found at his home. It reasoned by analogy to Mills v. State, 278 Md. 262, 363 A.2d 491 (1976), and State v. Ward, 350 Md. 372, 712 A.2d 534 (1998), which involved search warrants for weapons in the defendants’ homes. The defendants in those two cases were arrested away from their homes for crimes in which particular weapons were used, and were not in possession of the weapons when arrested. In upholding the warrants, the Court in both cases employed what it later characterized in Holmes as ‘pure deductive reasoning’ to draw a reasonable inference that the weapons would be found in the homes:
[A] particular kind of weapon was used in the crime; there was evidence linking the defendant to the crime; the weapon was of a kind likely to be kept, and not disposed of, by the defendant; when arrested shortly after the crime, the defendant was not in direct possession of the weapon; ergo, it was likely to be found in a place accessible to him — his home or car.
“The Holmes Court likened this ‘deductive approach, based on reasonable factual assumptions,’ id., to the approach other courts have employed to find a nexus between a suspect’s illegal drug activity and the probability that evidence of that activity will be found in his home. Applying the logic to the facts before it, the Holmes Court concluded that the issuing judge reasonably could infer from the circumstances, including that Holmes was seen selling drugs soon after he had entered and exited his house, at a location near his house, that evidence of drug trafficking probably would be found in his home. Accordingly, there was a substantial basis for the issuing court’s probable cause determination.
Maryland v. Faulkner, 190 Md. App. 37, 52-53 ; 985 A.2d 627 (2010).