State v. Lewis ( 2023 )

State of Maryland v. Jermaine Cordell Lewis, No. 1695, September 2022 Term. Opinion
by Moylan, J.
HEADNOTE:
ANATOMY OF A DYING EMBER – AN UNSOLVED CASE FROM 2005 – THE
SEPARATE DYING EMBER: JAILHOUSE INFORMANT RAYMOND DARBY –
AN ANALYSIS DEFERRED – THE INVESTIGATION RESUMES – A SIX-YEAR
WILD GOOSE CHASE – APPLICATION FOR A STATEMENT OF CHARGES –
THE SOLE ISSUE BEFORE US: JUDGE ANDERSON’S RULING OF AUGUST
4, 2022 – A DOUBLE-BARRELED RULING – STANDARD OF APPELLATE
REVIEW – A NON-CONTENTIOUS CONTENTION – BUT A CONTENTIOUS
NON-CONTENTION – A BAD FAITH INVOCATION OF THE GOOD FAITH
EXCEPTION – THE COLLECTIVE KNOWLEDGE RULE – THE DARBY
FRAGMENT – CREDIBILITY AND RELIABILITY – A. DARBY WAS A
JAILHOUSE INFORMANT – B. DARBY MAY WELL HAVE BEEN AN
ACCOMPLICE – C. DARBY’S MEMORY WAS SUSPICIOUSLY PRECISE – D.
A RECOLLECTION OF A RECOLLECTION: ATTENUATION PER SE – E. THE
POLICE DID NOT CREDIT THE DARBY FRAGMENT – F. JUDGE ANDERSON
DID NOT CREDIT THE DARBY FRAGMENT – THE INCULPATORY
SIGNIFICANCE OF THE DARBY FRAGMENT: THE INTRACTABLE
AMBIGUITY OF THE PRONOUN “THEY” – WHERE ARE WE? – A DEAD
EMBER
Circuit Court for Prince George’s County
Case No. CT180385X
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1695
September Term, 2022
_____________________________________
STATE OF MARYLAND
V.
JERMAINE CORDELL LEWIS
Berger,
Beachley,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Moylan, J.
_____________________________________
Filed: December 5, 2023
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
2023-12-05 11:23-05:00
Gregory Hilton, Clerk
Ah, distinctly I remember,
It was in the bleak December,
And each separate dying ember,
Wrought its ghost upon the floor.
…Edgar Allan Poe, “The Raven” (1845)
Anatomy Of A Dying Ember
This is a cold case. A very cold case. This appeal by the State from an adverse pre-
trial suppression ruling in 2022 raises an intriguing question: Could some vestigial spark
from what had been no more than a dying ember in 2008 actually resuscitate a criminal
case that had apparently turned cold 17 years before that 2022 suppression ruling?
The appellant, the State of Maryland, argues that a dying ember from 2008 had,
indeed, retained enough of a spark that it could, without more, have theoretically justified
the warrantless arrest of the appellee, Jermaine Cordell Lewis, on January 17, 2018, ten
years after the ember was discovered. The appellee stoutly maintains to the contrary that
his arrest on January 17, 2018 was without a shred of constitutional justification,
particularly from an ember that had long since been totally extinguished. From 2022, both
sides were actively looking back to 2008.
The appeal is from the August 4, 2022 ruling by Judge Tiffany H. Anderson in the
Circuit Court for Prince George’s County that a post-arrest statement to the police by the
appellee in 2018 would be suppressed on the ground that his 2018 arrest had been an
unconstitutional violation of the Fourth Amendment. The arrest had been made on the basis
of a clearly bad warrant. The State maintains that, despite the bad warrant, the ember from
2008 had nevertheless re-infused the 2018 arrest with vital constitutionality. Our analysis
will entail conducting a minute and granular anatomy of that dying ember from 2008. What
ghost had it wrought upon the investigation and did that ghost still retain any probative
vitality in 2022? We must stir the ashes.
An Unsolved Case From 2005
On February 16, 2005, at shortly before 3 P.M., a murder was committed at a
townhouse at 6534 Columbia Terrace in Landover, Prince George’s County. At least two
men, and quite possibly a third, entered the townhouse armed with a handgun. The intruders
tied Nathaniel Eugene Rozier’s hands behind his back and locked him in a downstairs
bathroom. The intruders then proceeded upstairs. Kerry Antonio Bennett, who was upstairs
in his bedroom, fought with the intruders as they attempted to search his room. In that
struggle, Bennett was stabbed and then shot. The intruders fled the house. When the police
arrived at the scene, they found Bennett suffering from apparent gunshot wounds. They
transported him to a local hospital where he later died from his injuries. The official cause
of death was given as gunshot wounds and multiple sharp force injuries, to wit, shooting
and stabbing. The manner of death was ruled to have been a homicide.
At the crime scene, there was no physical or scientific evidence linking anyone to
the perpetration of the crime. There were no video camera recordings, no fingerprints, no
bloodstains, and no DNA. The only source of information about the crime was the
recollection of the lone survivor, Nathaniel Rozier. At that point in 2005, Rozier could not
identify anyone. Rozier told the police that he did not see the faces of either (or any) of the
suspects. He could only describe their clothing. When Rozier was asked, “Can you identify
either suspect?,” he responded, “Possibly suspect number one.” He further indicated that it
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was suspect number one who had a gun. When Rozier was interviewed in the immediate
aftermath of the crime, he had apparently told the police that there had been two intruders.
When reinterviewed by Detective Jeffrey Eckrich in 2016, however, Rozier clearly stated
that there had been three intruders, not merely two.
That was the sum total of the evidence the police had to go on. When Bennett was
pronounced dead by Dr. Casiburg at the hospital at 3:41 A.M. on February 17, 2005, this
investigative file was effectively closed. The murder of Kerry Bennett had become a cold
case within 12 hours of its commission. It remained glacially cold for the next three and
one-half years.
The Separate Dying Ember:
Jailhouse Informant Raymond Darby
What happened to warm the case up three and one-half years later? It would be kind
to say that the police discovered a dying ember from the case in 2008. It would be more
accurate to say, however, that the dying ember discovered the police in 2008.
In March of 2008, Raymond Darby was an inmate in a federal detention facility in
Virginia. Of his own initiative, he sent word to the Prince George’s County Police that he
had information to trade that would be of interest to them. Detective Matthew Barba, a
homicide detective with the Prince George’s County Police, went to Virginia to interview
Darby in March of 2008. Detective Barba’s interview with Darby is our separate dying
ember. It is the sine qua non of the State appeal now before us.
Darby told Detective Barba that on the afternoon of February 16, 2005, three years
earlier, he spoke with one Anthony Forte and with the appellee, Jermaine Cordell Lewis,
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at the home of Lewis’s girlfriend and future wife. The story Darby provided to Detective
Barba narrated in vivid and painstakingly accurate detail the actus reus of the murder scene
from 2005. The spark that gave critical life to the ember, however, was the culmination of
Darby’s statement to Detective Barba: “…they admitted their involvement…” That was
the incendiary core of the lone ember in this case: “THEY ADMITTED THEIR
INVOLVEMENT.” Significantly, however, the appellee Lewis was not arrested at that
time nor was he arrested for the next ten years.
What the Darby information gave the police, of course, was, if nothing else, a
legitimate lead for further investigation. With the names of Forte and Lewis to work with,
the police were now able to reinterview the surviving victim of the crime, Nathaniel Rozier,
and to show him photographs of those two now named suspects. That reinterview took
place on August 8, 2008. At the photo array conducted that day, Rozier identified a
photograph of Forte.1 He could not, however, identify anyone else. In short, Rozier failed
to identify Lewis. With that, the case again went cold. It remained cold for another eight
years.
An Analysis Deferred
At this point we could engage in an analysis of that information supplied by the
informant Raymond Darby in 2008. We would find that ember to be terminally cold in two
regards. The first fatal flaw would be that Darby and, therefore, the Darby information was
1
As massive as the record is in this case, it neglects to tell us what, if anything, ever
happened to the potential criminal case against Anthony Forte.
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fundamentally unreliable. The second fatal flaw would be that, any issue of credibility or
reliability aside, the Darby information was substantively of scant inculpatory weight.
Rather than engage in that analysis now, however, it will be more convenient and
our narrative will make far more sense if we defer that final analysis of the Darby
information for the nonce and go forward with the subsequent procedural history of the
case.
The Investigation Resumes
What next happened in 2016, eleven years after the perpetration of the crime and
eight years after the addition of the Darby statement, was that Detective Jeffrey Eckrich, a
member of Prince George’s County Police Department’s cold case unit, was assigned to
the case and a new chapter unfolded. Although the earlier reinterview and photographic
array with the victim Rozier in 2008 had been completely unproductive, Detective Eckrich
decided to interview Rozier yet again and he did so on March 10, 2016, after eight years
of inactivity.
A Six-Year Wild Goose Chase
That reinterview of Rozier and especially the photo array session that was its central
purpose turned out to be calamitous. It sent the dormant case off on a six-year wild goose
chase that took flight on March 10, 2016 and was not brought to ground until Judge
Anderson granted the appellee’s motion to suppress a statement on August 4, 2022. For
that entire six year period what turned out to have been a patently false identification (or a
patently inaccurate recollection of a non-identification) took on a life, and flight path, of
its own.
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It was with respect to the appellee Lewis specifically that the reinterview and new
photo array turned chaotic. It is now clear that with respect to Lewis, the new photo array
was completely unproductive. It was an apparent misreading of what occurred on March
10, 2016, by Detective Eckrich that sent the wild goose aloft.
We now know that on March 10, 2016, the appellee Lewis was never identified by
Rozier. In the confusing muddle of the photographic array session, two parts of which
Detective Eckrich apparently failed to keep distinct were Exhibit #6, a photographic
composite that was never viewed by Rozier, and Photograph #6 of Exhibit 5, which very
definitely was viewed by Rozier. Photograph #6 versus Exhibit #6. That was inevitable
confusion waiting to happen.
Exhibit #6, which never became part of the later analysis, was an array of six
persons, one of whom was, indeed, Lewis. His photo was the middle photo on the top row.
There is no indication that Exhibit 6, however, was ever viewed by Rozier. It is now fully
agreed by all parties that Lewis was never identified.
Exhibit 5, by contrast, was very definitely viewed by Rozier. It was a black and
white composite of six photographs of six suspect persons. None of those photographs,
however, was of Lewis. On Exhibit 5, Rozier very definitely identified Photo 6, in the
lower right hand corner. It is again unanimously agreed by all parties that Photo 6 of Exhibit
5 was not a photo of the appellant Lewis. Rozier placed a circle around Photo 6 and wrote
on the photo the initials NER, for Nathaniel Eugene Rozier. Introduced into evidence were
the notes that Detective Eckrich made at the time of the reinterview. Those notes included:
6
SHowed [sic] Rozier photo spread. Rozier identified photo #6 – bottom right
picture of Jermaine Lewis.
(Emphasis supplied.) With that confused and mistaken recollection by Detective Eckrich
of what had actually happened at the photo array, the wild goose was in the air.
Application For A Statement Of Charges
A blatant police error had been made and that mistake dominated the rest of the
reopened investigation for the next six years. With respect to what happened to the case
over the course of the next year and nine months the record leaves us largely in the dark.
On December 28, 2017, however, it was Detective Eckrich who applied for a Statement of
Charges against Lewis. The prominent centerpiece of that application for a Statement of
Charges was his core allegation:
During the course of the investigation, the Defendant, Jermaine Cordell
Lewis (B/M DOB:[]) [sic] was developed as a suspect. On 3/10/2016, a photo
spread containing a picture of Jermaine Cordell Lewis was shown to Victim
Rozier. Victim Rozier positively identified Jermaine Cordell Lewis as one of
the suspects that tied him up and killed victim Bennett.
(Emphasis supplied.) In his recollection, Detective Eckrich had apparently confused Photo
#6, which was not Lewis, with Exhibit #6, which was Lewis.
Based entirely on that mistaken allegation by Detective Eckrich, a Statement of
Charges against Lewis was issued by Commissioner Redmond on December 28, 2017. On
that Statement of Charges, the appellee Lewis was arrested on January 17, 2018.
Questioned by the police following his arrest, Lewis gave a statement in which he staunchly
denied any involvement in the killing of Bennett but did admit that he had entered the house
with another person. On March 8, 2018, Lewis was indicted for the first-degree murder of
7
Bennett, the first-degree assault of Rozier, burglary, and the use of a firearm in the
commission of a crime of violence.
With that arrest and consequent statement to the police and with the ensuing
indictment, the once-cold case seemed to enjoy renewed vitality. On July 18, 2018,
however, Lewis moved to have any mention of the false report of an identification of him
by Rozier suppressed. He also moved to have his post-arrest statement to the police
suppressed.
The trial schedule generally at that point was massively interrupted by the Covid-
19 pandemic. There was also a significant delay caused by the fact that in the fall of 2018,
Lewis himself suffered a brain aneurysm. For the rest of 2018 and for much of 2019,
Lewis’s recovery and the various examinations to determine if he was competent to stand
trial kept the case from moving forward. His motion to suppress the false identification was
finally denied on September 23, 2021. That entire suppression motion, its hearing, and its
resolution actually sheds no light on the issue now before us on this appeal.
It was a year later, on July 13, 2022, that Lewis filed a renewed motion to suppress
his false identification. That renewed motion to suppress triggered the extended hearing
that finally took place on four hearing days on July 13 and July 21, 2022; and August 3 and
4, 2022. In mid-passage, that four days of hearing evolved from a hearing largely on the
motion to suppress the false identification into a hearing largely on a motion to suppress
the post-arrest statement Lewis had given to the police in 2018.
The Sole Issue Before Us:
Judge Anderson’s Ruling Of August 4, 2022
8
Over the course of four hearing days – on July 13, July 21, August 3, and August 4
of 2022 – Judge Anderson received evidence and argument on the appellee’s Motion to
Suppress an Identification and on his Motion to Suppress His Post-Arrest Statement. The
appellee had been arrested on January 17, 2018 on the basis of a Statement of Charges
against him that had been issued on December 28, 2017. On August 4, 2022, Judge
Anderson gave her rulings on both motions from the bench.
Judge Anderson ruled that the application for the Statement of Charges had failed
to establish probable cause to justify the Statement of Charges and that the subsequent
arrest of the appellee had, therefore, been unconstitutional. On that basis, she ruled that the
appellee’s post-arrest statement would be suppressed. The current appeal by the State of
that suppression ruling was filed on August 11, 2022. On December 8, 2022, pursuant to
the request of both parties, Judge Anderson filed a formal Opinion and Order
memorializing her ruling from the bench on August 4, 2022. We will look first at Judge
Anderson’s ruling from the bench on August 4 and her follow-up Opinion and Order in
close and careful detail.
Over the course of the hearings, Judge Anderson had examined in minute detail the
State’s Application for the Statement of Charges that became the basis for the appellee’s
arrest. Before turning to the critical piece of new information, to wit, the false
identification, Judge Anderson did take note of two items of earlier evidence from 2005
and 2008. They were 1) the description of the crime itself given by the surviving victim,
Nathaniel Rozier, on February 16, 2005 and 2) the statement made by the jailhouse
9
informant, Raymond Darby, in March of 2008. Judge Anderson was fully aware of these
two earlier pieces of evidence and she took them into consideration:
[I]n this statement of charges they reference information here that was known
to the officers in 2005. Based on the testimony that the Court received from
the witnesses and the evidence that has been sent in by the State, the
statements that were given by Mr. Darby in 2008, Mr. Rozier in 2005, that’s
State’s Exhibit Number 1 and 2, what is contained in these statements is the
same that is contained in this application for statement of charges.
(Emphasis supplied.) This belied the State’s allegation that Judge Anderson refused to look
at any evidence other than the statement about the false identification in the application for
the Statement of Charges.
Judge Anderson then examined in close detail Detective Eckrich’s reexamination of
the victim Rozier on March 10, 2016 that led to Detective Eckrich’s false report that Rozier
had positively identified the appellee Lewis. Judge Anderson found that report, which was
the only new information before her, to have been, indeed, absolutely false:
So other than that, we then go to 2016. And in 2016, Detective Eckrich writes
March 10th, 2016, “Meeting with victim Rozier at CID. Showed Rozier photo
spread. Rozier identified photo number six – bottom right photo.” And then
the next line says, “Picture of Jermaine Lewis.” Other than that, that’s the
only information we have.
Detective Eckrich is the same officer who has sworn out this application for
statement of charges indicating that on 3/10/16 a photo spread containing a
picture of Jermaine Cordell Lewis was shown to victim Rozier. Victim
Rozier positively identified Jermaine Cordell Lewis as one of the suspects
that tied him up and killed victim Bennett.
So that statement is false. On March 10th, 2016, there was no picture of
Jermaine Lewis that was shown to victim Rozier. He is not in that photo
spread. And in fact, the photo spread that Mr. Lewis was in, he was never
positively identified by anyone. And it says victim Rozier positively
identified Mr. Lewis, the Defendant, but indeed he never did.
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(Emphasis supplied.)
In her Opinion and Order of the Court filed on December 8, 2022, Judge Anderson
elaborated a bit more fully on her ruling from the bench on August 4, 2022:
There has been no evidence introduced that Mr. Rozier ever named the
Defendant or selected his photo on a different date, yet the Application for
the Statement of Charges specifically relies on his identification. In fact it is
the only new information included in the application sworn out in 2017. But
for that added detail about an identification by Mr. Rozier, presumably in
2016, according to Detective Eckrich’s notes, there is no additional evidence
or probable cause to effectuate an arrest warrant upon the Defendant. The
other evidence listed in the Application is the same evidence that existed in
2005 and 2008.
(Internal citation omitted.) (Emphasis supplied.)
In deciding that there was no probable cause to justify the appellee’s January 17,
2018 arrest, Judge Anderson clearly did not confine herself to the evidence about the false
identification and ignore all other evidence, despite the State’s present claim to the
contrary. She expressly acknowledged that other evidence outside the false identification
might theoretically have established probable cause for a warrantless arrest.
Notwithstanding that theoretical possibility, Judge Anderson found that there was no such
other evidence:
As stated previously, the probable cause in this case was only established
through the information provided by Detective Eckrich who stated that the
Defendant was identified in a photo array. The probable cause was based on
something that never occurred as there is no evidence of an identification of
the Defendant…Had probable cause been established through other evidence
then that may have overcome the illegal seizure; however, in this matter,
there is no other probable cause.
(Emphasis supplied.)
11
Other than that false identification, there was nothing else in the application for the
Statement of Charges that in any way established probable cause to support the appellee’s
arrest:
When reading the Application for Statement of Charges as a whole, without
the new identification information, the judicial officer would have only had
the statement, “During the course of the investigation the Defendant,
Jermaine Cordell Lewis, was developed as a suspect” with no other
information as to how he was developed as a suspect and without any other
evidence. This information alone would be insufficient probable cause for
the judicial officer.
The issue here is the arrest and the seizure of the Defendant. The arrest
warrant was issued because of the false information contained within the
application. There is nothing that is contained within the application that
would rise to the level of probable cause and allow a judicial officer to swear
out the arrest warrant, other than the newly added identification information.
(Internal citation omitted.) (Emphasis supplied.)
Judge Anderson added that other than the false identification in the application for
the Statement of Charges, no other information had been forthcoming that could have
supported a finding of probable cause:
There is no indication that Detective Eckrich had any other probable cause
to arrest Mr. Lewis other than the false identification.
(Emphasis supplied.)
A Double-Barreled Ruling
Thus, Judge Anderson’s ruling of August 4, 2022 was a double-barreled ruling. She
ruled that the appellee’s post-arrest statement to the police would be suppressed. It was her
reason for the ruling that was double-barreled.
12
The appellee had been arrested on January 17, 2018 on the basis of an arrest warrant.
That warrant was based on the Statement of Charges that Commissioner Redmond issued
on December 28, 2017. That Statement of Charges and the consequent arrest warrant was
unconstitutionally flawed because it was based exclusively on the false statement that the
victim Rozier had positively identified the appellee. That statement was false. The
warranted arrest was, therefore, unconstitutional.
The second part of that omnibus ruling was that, notwithstanding the fact that other
evidence might independently establish probable cause for a warrantless arrest and
overcome thereby such illegality, “there is no other probable cause.” We repeat that final
sentence of Judge Anderson’s ruling:
Had probable cause been established through other evidence then that may
have overcome the illegal seizure; however, in this matter, there is no other
probable cause.
(Emphasis supplied.)
It is the State’s appeal from that August 4, 2022 pretrial ruling by Judge Anderson
that the appellee’s post-arrest statement to the police would be suppressed that is the sole
issue now before us.
Standard Of Appellate Review
In reviewing a trial judge’s ruling to suppress or not to suppress evidence, which is
the only thing we are doing in this case, the controlling standard of appellate review was
clearly and definitively set out by our Supreme Court speaking through Judge (later Chief
Judge) Barbera in Gonzalez v. State, 429 Md. 632, 647, 57 A.3d 484 (2012):
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When reviewing the denial of a motion to suppress evidence we confine
ourselves to what occurred at the suppression hearing. We view the evidence
and inferences that may be reasonably drawn therefrom in a light most
favorable to the prevailing party on the motion, here, the State.
(Emphasis supplied.) (Internal quotation marks omitted.) See also Lee v. State, 418 Md.
136, 148, 12 A.3d 1238 (2011) (“In undertaking our review of the suppression court’s
ruling we confine ourselves to what occurred at the suppression hearing.”) (Emphasis
supplied.). That standard of appellate review is critically important to this case. See also
State v. Luckett, 413 Md. 360, 375 n.3, 993 A.2d 25 (2010).
In conducting our review, our field of vision is thus tightly circumscribed. The item
being searched for, of course, is “other evidence.” The “other evidence” must be evidence
other than the false evidence of a positive identification of the appellee that had been the
sole basis for the erroneous issuance of the Statement of Charges. It must, moreover, be
“other evidence” that could establish probable cause for the warrantless arrest of the
appellee.
Our field of search for such “other evidence” is strictly confined to what occurred
at the suppression hearing. The particular suppression hearing before us, moreover, is the
four-day suppression hearing conducted by Judge Anderson on July 13, July 21, August 3,
and August 4, 2022. We are, therefore, not knights errant ranging forth through a massive
17-year record in search of some long lost scrap of paper or passing tidbit. Our holy grail
is far more parochial. We are not looking for “other evidence” in some cosmic or universal
sense. Our field of search is confined within the four corners of the four-day hearing before
Judge Anderson. For appellate review purposes, anything else does not exist.
14
With respect to any possible “other evidence” appearing at that four-day hearing,
moreover, and, in case that evidence should turn out to be equivocal, the controlling
standard of review also reminds us, that we must “view the evidence and inferences that
may be reasonably drawn therefrom in a light most favorable to the prevailing party on the
motion.” In this case, of course, that prevailing party was the appellee, Jermaine Lewis. On
any debatable evidence, therefore, the appellee will enjoy the benefit of every possible
interpretive tilt. Far more often than not in appellate review, such an interpretive tilt will
control the final outcome. It is measurably better to be the appellee.
One final lesson to be drawn from the controlling standard of appellate review is the
deference the appellate court owes to the fact finding of the trial judge. As Judge Barbera
very clearly stated in Gonzalez v. State, 429 Md. at 647-48:
We defer to the motions court’s factual findings and uphold them unless they
are shown to be clearly erroneous. The credibility of the witnesses, the
weight to be given to the evidence, and the reasonable inferences that may
be drawn from the evidence come within the province of the suppression
court.
(Emphasis supplied.) (Internal citations omitted.)
In Longshore v. State, 399 Md. 486, 499, 924 A.2d 1129 (2007), the Maryland
Supreme Court spoke to the same effect:
Making factual determinations, i.e. resolving conflicts in the evidence, and
weighing the credibility of witnesses, is properly reserved for the fact finder.
In performing this role, the fact finder has the discretion to decide which
evidence to credit and which to reject.
(Emphasis supplied.) Credibility and weight!
15
In the course of our analysis of the single dying ember before us in this case, the
story told to the Prince George’s County Police in 2008 by the jailhouse informant
Raymond Darby, the credibility/reliability of Darby, and the weight to be given the story
told by him will be the dispositive factors. To the extent to which Judge Anderson made
such findings or even gave discernible indications of her implicit leanings in those regards,
we will be accordingly deferential. See Longshore v. State, 399 Md. 486, 499, 924 A.2d
1129 (2007) (“Making factual determinations, i.e. resolving conflicts in the evidence, and
weighing the credibility of witnesses, is properly reserved for the fact finder.”). To the
extent to which our own inclination coincidentally corresponds with Judge Anderson’s
feelings, that will be mere reinforcing surplusage. In any event, the controlling standard of
appellate review clearly marks out the boundaries of our review in this matter. We will stay
within those foul lines. Comfortably.
A Non-Contentious Contention
The State concedes that the arrest warrant, based as it was on the false claim of the
appellee’s identification by Rozier, was improperly issued. The arrest of the appellee on
the basis of a bad warrant was consequently unconstitutional. The State stoutly maintains,
however, that even if the warranted arrest had been improper, the police nonetheless had
independent evidence sufficient to establish probable cause for a warrantless arrest and that
that alternative justification for the appellee’s seizure precluded the suppression of
evidence.
The possibility for such an alternative justification is the heart of the State’s appeal.
Indeed, the United States Supreme Court cases of Brown v. Illinois, 422 U.S. 590, 95 S.Ct.
162254, 45 L.Ed.2d 416 (1975) and United States v. Watson, 423 U.S. 411, 965 S.Ct. 820,
46 L.Ed.2d 598 (1976) stand for just that proposition. This Court has squarely agreed with
the proposition in Faulkner v. State, 156 Md. App. 615, 847 A.2d 1216 (2004). In Faulkner,
an arrest warrant and the subsequent arrest were bad. Notwithstanding that fact, the police
had adequate independent evidence to support a warrantless arrest. As Judge Adkins (later
of the Supreme Court) wrote for this court:
Faulkner primarily challenges the court’s finding of probable cause by
relying on the inadequacy of the warrant affidavit. But, in contrast to the
court’s task in determining whether there was probable cause to issue the
warrant, the court’s task in determining whether there was probable cause to
make an arrest can be accomplished with evidence outside that affidavit.
156 Md. App. at 647. (Emphasis supplied.)
Even if an arrest based on a bad warrant would have been an unconstitutional seizure
of the arrestee, other evidence outside of the warrant application may nonetheless be
sufficient to justify a warrantless arrest:
In determining that the police had probable cause to arrest Faulkner, the
circuit court was not confined to the meager information presented in support
of the warrant application. We agree with the circuit court that, despite the
“bare bones” nature of the warrant affidavit, and uncertainties regarding the
reliability of Jackson’s story, police had ample evidence to establish probable
cause that Faulkner shot Powers.
156 Md. App. at 648. (Emphasis supplied.)
Judge Raker (specially assigned) wrote for this Court to a similar effect in
McCormick v. State, 211 Md. App. 261, 271, 65 A.3d 178 (2013):
[A]s long as the police could have stopped the driver for a traffic violation,
it is inconsequential that the police actually stopped the driver to investigate
another offense. An officer’s subjective reason for making the arrest need not
be the criminal offense as to which the known facts provide probable cause.
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The officer’s legal justification for the arrest is not the sine quo non of
probable cause – the officer’s actions are not invalidated so long as the facts
and circumstances viewed objectively, support the arrest.
(Internal citations omitted.) (Emphasis supplied.)
In Collins v. State, 17 Md. App. 376, 302 A.2d 693 (1973), the defendant was
arrested and searched on the basis of an arrest warrant that the Court deemed to have been
improperly issued. The resulting conviction was reversed. As Chief Judge Orth then
explained, however, we remanded the case for a new trial because the State might on retrial
be able to prove that notwithstanding the bad warrant, sufficient probable cause might have
existed to establish probable cause for a warrantless arrest:
[W]e shall remand the case for a new trial. The State may be able to show
that there existed probable cause for a warrantless arrest of Collins.
17 Md. App. at 384. (Emphasis supplied.) Chief Judge Orth further explained:
In other words, on retrial the State has the opportunity to prove the legality
of the arrest of Collins without reliance on the warrant, and by so doing
establish the reasonableness of the search and seizure by which the
challenged evidence was secured. The legality of a warrantless arrest would
be proved by showing that the police had facts and circumstances within their
knowledge or reasonably trustworthy information thereof, sufficient to
warrant a reasonably cautious man in believing that Collins had shot and
killed Butler.
17 Md. App. at 384-85. (Emphasis supplied.) To go on with this legal analysis would be
carrying coals to Newcastle because no one disagrees with it.
But A Contentious Non-Contention
The heart of the State’s appellate brief was dedicated to establishing and to
reaffirming this legal proposition that even a bad warranted arrest will not require the
exclusion of evidence if the police at the time had “other evidence” that could have justified
18
a warrantless arrest. We fully agree with the State as to that legal proposition itself. Nor
does the appellee himself disagree with that legal proposition. Nor does Judge Anderson
disagree with that legal proposition. Indeed, she affirmatively endorses it. By unanimous
acclaim, the first round goes to the State. But WHAT THEN?
Judge Anderson and the appellee and this Court, all in unison, now ask the State
with a single voice the single question, “Okay, but where do you go from there? You have
persuaded us that you don’t need a good identification by Rozier and a good warrant to
prevail. You can win with ‘other evidence’ that establishes probable cause for the
appellee’s warrantless arrest. But where is that ‘other evidence?’ What is that ‘other
evidence?’” Here, indeed, is the precise tectonic fault line of the appeal.
The State’s burden in this regard is not legal, but factual. The State may not, as an
abstraction, simply point to a massive 17-year record and self-confidently announce, “Here
it is. This is our ‘other evidence.’” The State needs to be more specific with respect to
“other evidence.” It must, moreover, specifically point to where such “other evidence” was
actually presented to the four-day suppression hearing. This is the contentious non-
contention. The clash is factual, not legal.
For all intents and purposes, the State’s brief made a sound legal argument about its
general legal proposition and then it stopped, halfway through its mission. It prevailed in
establishing its legal entitlement to rely on “other evidence” but it then failed to offer any
“other evidence.” Its development of its alternative theory that “other evidence” showed
probable cause for a warrantless arrest received scant mention. The State’s appellate brief
is 37 pages long. A bare two pages, under the subheading “3. Probable cause existed for
19
Lewis’s arrest,” are devoted to this “other evidence.” Full-half of those two pages deal with
general statements of law. Two paragraphs are devoted to the jailhouse informant Raymond
Darby and that is it. The second and longer of the two paragraphs is devoted to the
proposition that the detail Darby provided about the circumstances of the crime itself – the
actus reus – served as corroboration of Darby’s statement. A statement about the
information actually communicated by Darby consists only of one paragraph of seven lines.
That is the sum total of the “other evidence” offered to support the alternative theory of
probable cause for a warrantless arrest.
In her ruling from the bench on August 4, 2022, Judge Anderson reiterated on
several occasions that she had, before turning to the issue of the false identification, looked
at the initial report about the crime made by the victim Rozier in 2005 and also the
information supplied by the jailhouse informant Darby in 2008. Thus, the State’s claim that
Judge Anderson erroneously declined to look at “other evidence” outside the four corners
of the application for the Statement of Charges is simply not true. She definitely did look
at evidence other than the false identification and she found that it was not sufficient to
establish probable cause to arrest the appellee. Before ruling on the false identification,
Judge Anderson clearly stated:
[I]n this statement of charges they reference information here that was known
to the officers in 2005. Based on the testimony that the Court received from
the witnesses and the evidence that has been sent in by the State, the
statements that were given by Mr. Darby in 2008, Mr. Rozier in 2005, that’s
State’s Exhibit Number 1 and 2, what is contained in these statements is the
same that is contained in this application for statement of charges.
(Emphasis supplied.)
20
In her Opinion and Order of the Court filed on December 8, 2022, Judge Anderson
elaborated:
But for that added detail, they are in the same situation they would have been
in 2005 or 2008 without that detail, meaning that they did not have enough
to arrest Mr. Lewis prior to that other than this positive identification that has
been made or supposedly been made and was placed in the statement of
charges.
(Emphasis supplied.) In order to rely on “other evidence,” you need to supply such “other
evidence.”
A Bad Faith Invocation Of The Good Faith Exception
Before proceeding with our extended analysis of the State’s alternative theory of
probable cause, however, we must dispose of the State’s other argument that an alternative
theory of probable cause was unnecessary. That argument is that, notwithstanding the fact
that the warrant was bad, the suppression of the appellee’s statement was still not required
because the officers executing the warrant had acted in good faith reliance on the fact that
a judge had issued the warrant.
We note a serious flaw in the State’s effort to apply the Good Faith Exception of
United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) to this case.
Leon’s primary rationale is concerned with analyzing the purpose of the Exclusionary Rule
of Evidence. In Connelly v. State, 322 Md. 719, 728, 589 A.2d 958 (1991), Chief Judge
Murphy explained that the purpose of the Exclusionary Rule is to deter unreasonable police
conduct:
The Court emphasized that the exclusionary rule was designed to deter police
misconduct rather than to punish the errors of judges and magistrates. It said
that suppression of evidence obtained pursuant to a warrant should be
21
ordered only on a case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule. In this regard,
the Court questioned whether the exclusionary rule has a deterrent effect
when the offending officers acted in the objectively reasonable belief that
their conduct did not violate the Fourth Amendment.
(Emphasis supplied.)
The Collective Knowledge Rule
When in a typical United States v. Leon case a judge makes a legal mistake in
issuing a search and seizure warrant, the officer who then executes the warrant has had
nothing to do with that mistake and has behaved reasonably in trusting the judge’s
judgment. Exclusion would serve no deterrent purpose. If, on the other hand, the police
generally, through furnishing incorrect information or through a negligent investigation,
had actually contributed to the erroneous issue of the warrant by the judge, the police may
not then claim to have been acting in good faith.
In Ott v. State, 325 Md. 206, 600 A.2d 111 (1992), Judge Bell (later Chief Judge
Bell) wrote for our Supreme Court in expounding detail about the Collective Knowledge
Rule in cases involving the Good Faith Exception to the Exclusionary Rule. If the collective
knowledge of the police generally, including police record keeping systems, would have
revealed that a search warrant had been erroneously issued, such collective knowledge is
imputed to the officer who executes the flawed warrant, whether the executing officer
actually has such knowledge or not. As Judge Bell explained:
Applying the collective knowledge rule, the Court of Special Appeals noted
that ‘the police department should have known that the stolen vehicle report
was erroneous, since police officers had recovered the vehicle and tags
originally reported stolen on January 10, 1969.’ It concluded that, because
the information on which the police acted was its own ‘outdated copy of an
22
erroneous report of a stolen motor vehicle which the police had recovered on
the same day it was taken,’ the arresting officer, a part of the police team,
‘must be charged with the knowledge that the report was, in effect, rescinded
when members of the Baltimore City Police Department recovered the car
shortly after it was stolen.’
325 Md. at 215-216. (Internal citations omitted.) (Emphasis supplied.) See also Carter v.
State, 18 Md. App. 150, 154, 305 A.2d 856 (1973). The Supreme Court in Ott explained
the earlier Carter decision:
This case thus stands for the proposition that police may not rely upon
incorrect or incomplete information when they are at fault in permitting the
records to remain uncorrected.
325 Md. at 216. (Emphasis supplied.)
Indeed, United States v. Leon itself, 468 U.S. at 923 n.24, had earlier pointed out:
It is necessary to consider the objective reasonableness not only of the
officers who eventually executed the warrant, but also of the officers who
originally obtained it or who provided information material to the probable
cause determination.
(Emphasis supplied.) We look at the police team as a totality. That is what the Collective
Knowledge Rule is all about.
In this case, of course, the arrest of the appellee was transparently unconstitutional.
It was bad exclusively on the basis of the incorrect statement by Detective Eckrich that the
victim Rozier had positively identified the appellee as one of his assailants. The police
team in this case that arrested the appellee, therefore, was not free from blame for
Commissioner Redmond’s erroneous issuing of the Statement of Charges. The police were
responsible for his error. Commissioner Redmond acted exclusively on the basis of the
blatantly inaccurate sworn statement that the victim Rozier had positively identified the
23
appellee as one of his assailants. That statement was completely inaccurate and that mistake
was directly attributable to the police.
In this case, moreover, we are not even dealing with police knowledge in a general
sense. The police error that in and of itself caused the bad warrant to issue was made by
the cold case unit of the Prince George’s County Police Department specifically. The
officers who arrested the appellee were also members of that same cold case unit of the
Prince George’s County Police Department. That unit specifically had reason to know that
the application for a Statement of Charges was based on a false report. The police may not
rely on the judge’s mistake when the police are responsible for the judge’s mistake. The
police reliance on the warrant in this case, therefore, was not reasonable. In no way could
the Good Faith Exception to the Exclusionary Rule have applied in this case. It did not.
The Darby Fragment
For all intents and purposes, that would be enough to resolve the only issue before
us and to affirm the granting of the motion to suppress. Because the State has made,
however, such a heroic, indeed a Mary Shelleyesque, effort to breathe some life into this
lifeless cause, we feel constrained to give the State the benefit of our own assessment as
well of the Darby fragment, the only “other evidence” that the State can muster. The Rozier
statement to the police in 2005, of course, went only to the actus reus of the crime and not
to the criminal agency of the appellee. As the only “other evidence” offered to justify a
warrantless arrest of the appellee on January 17, 2018, the Darby fragment is the exclusive
specimen under our appellate microscope. We are dealing with the Darby fragment and
with nothing else. There is nothing else.
24
Credibility And Reliability
For the information from Raymond Darby, to wit, the Darby fragment, to establish
probable cause, the source of the information, Darby himself, must be credible and the
information from him must be reliable. Who was Raymond Darby? What were the
circumstances of his furnishing information to the police? We ask those questions with a
consciously jaundiced eye. As Chief Judge Murphy said for the Maryland Supreme Court
in State v. Lee, 330 Md. 320, 327, 624 A.2d 492 (1993):
[T]he veracity and basis of knowledge of the informant clearly remain
relevant to a probable cause determination.
(Emphasis suppled.)
A. Darby Was A Jailhouse Informant
Raymond Darby was a jailhouse informant. He had information to trade. He was
obviously not a concerned citizen immediately calling in information about a crime. Darby
ostensibly heard the inculpatory admission that he ultimately reported within several hours
of the commission of the crime in February of 2005. He did not deliver that information to
the police, however, until March 26, 2008, over three years later. That would have been a
very slow response for a Neighborhood Crime Stopper. Neighborhood Crime Stoppers,
moreover, do not “trade” their information to the police. That delay factor alone, not to
mention the trade factor, makes Darby’s credibility initially suspect.
The circumstances in March of 2008 were that Darby was in a federal detention
facility in Virginia. He sent word to the Prince George’s County police that he had
information to trade. From this massive 17-year record, incidentally, we have not been able
25
to discern what break or advantage, if any, Darby received in exchange for turning over the
names of the appellee Lewis and Forte. The State, which would be privy to such
information, has elected not to broadcast it. Why Darby talked, however, would obviously
be a very relevant factor in deciding whether he told the truth. This entire circumstance
tends to diminish the reliability of the information. We begin by viewing the Darby
fragment cum grano salis.
B. Darby May Well Have Been An Accomplice
Another factor derogating from credibility/reliability is that Darby may well have
been an actual participant in the crime. The victim Rozier’s corrected account of the crime
in 2016 describes three participants in the crime, not two. Darby, by his own admission,
was present with Lewis and Forte within an hour or two of the crime’s commission. Lewis
and Forte were discussing the crime with him in lucid detail. Why would they acknowledge
their criminal involvement to an uninvolved third person? It makes sense that a criminal
might talk freely about a crime to a fellow criminal. It makes far less sense that a criminal,
several hours after the crime occurred, would talk freely about the crime to an uninvolved
third person. The circumstances of the conversation may tell us as much as does the
narrative recounted in the conversation.
The Prince George’s County Police Department obviously believed that Darby may
have been involved in the crime. When they reinterviewed the victim Rozier in 2008, they
presented him with photo arrays that included not only pictures of Lewis and Forte, but
also a picture of Darby. When DNA samples were sent to the crime lab for examination,
the police sent samples not only of Lewis and Forte, but also a DNA sample from Darby.
26
There was clear suspicion that Darby may well have been an accomplice. Neighborhood
Crime Stoppers are generally not treated that way.
On the issue of independent evidence of probable cause, the ultimate issue before
the four-day suppression hearing, it was Judge Anderson who was charged with assessing
the credibility of any source of information on the subject. Her assessment of Darby as a
likely criminal accomplice obviously weighed heavily in her assessment of the credibility
of Darby. An exchange between Judge Anderson and the State at the second day of the
hearing on July 21, 2022, is revealing:
THE COURT: Okay. So, that’s new information. So, if Mr. Darby is
also possibly a suspect and the probable cause is based on the statement of a
suspect and there is nothing else, because Mr. Rozier did not identify the
defendant. So, if Darby is the star witness and Darby is also a suspect that’s
problematic.
(Emphasis supplied.) That exchange continued:
[THE COURT:] So, really, we’re stuck with Darby…[O]n April 8th Mr.
Darby is also being shown in a photo array, separate and apart so it wasn’t as
if he was in – they just added his picture to Mr. Lewis’ photo array or adding
his picture to Mr. Forte’s. He’s in his own photo array. So, if he is witness
he would not have been put in a photo array by himself. Then, there is nothing
else you’re relying on other than a co-defendant’s statement.
(Emphasis supplied.) Judge Anderson clearly looked upon Darby as a “co-defendant.”
Our devaluation of the efficacy of the dying ember before us, to wit, the story told
by Raymond Darby to Detective Barba in 2008, to establish, without more, probable cause
to arrest the appellant is, to be sure, based in part on analogizing it to the uncorroborated
courtroom testimony of an accomplice, a similar devaluation. The insufficiency of the
uncorroborated testimony of an accomplice in court to support a conviction and the relative
27
unsubstantiality of an uncorroborated story told to the police by a jailhouse informant are,
to be sure, distinct legal phenomena. The bar of admissibility for trial testimony is, of
course, much higher. The respective devaluations, however, may nonetheless be readily
analogized to one another because they share a common denominator raison d’etre. That
common denominator raison d’etre is the devalued credibility and consequently the
diminished reliability of the accomplice himself, in whatever guise or forum he appears.
C. Darby’s Memory Was Suspiciously Precise
Another factor in assessing Darby’s credibility was the laser-like precision of his
ostensible memory. In describing every step that the criminals took at the crime scene and
the precise location in the house where each step was taken, Darby’s description coincided
precisely with every detail that the victim Rozier had described at the time of the crime.
Darby was a human camera. Is such remarkable precision likely in one merely recollecting
a conversation one heard over three years before or is this more likely memory by one who
was present at and participated in the crime? We must remember, moreover, that we are
required to look at that version of the facts and all inferences that may reasonably be drawn
therefrom in the light most favorable to the appellee.
Was the Darby fragment, therefore, an uncorroborated story by a likely accomplice?
At the very mention of the word “corroboration,” the State leaps enthusiastically to the
barricades to remind us that Darby’s account of the crime was corroborated precisely and
in great detail by the victim Rozier’s account. The State neglects, however, the subtle
distinction between general corroboration and specific corroboration. On the issue of
whether the police had probable cause for the appellee’s warrantless arrest, the critical
28
information that was needed was not information about the crime scene generally, but
information about the appellee’s criminal agency specifically. Darby’s information about
the appellee’s criminal agency specifically was not corroborated by Rozier. Once again,
we must remind ourselves that we are enjoined to look at that version of the facts and all
inferences that may be reasonably drawn therefrom in the light most favorable to the
appellee. Does that not include Darby’s status as a likely accomplice and that status’s
consequential impact on his story’s reliability?
D. A Recollection Of A Recollection: Attenuation Per Se
The trajectory of the information from the jailhouse informant to the suppression
hearing court was also perilously attenuated. During the entire four-day hearing, only a
single witness was called. On August 3, 2022, the third day of the hearing, the State called
former Detective (retired Lieutenant) Matthew Barba. It was Detective Barba who had been
sent to Virginia to interview Darby on March 26, 2008.
Throughout his testimony, Detective Barba was straining to recollect his interview
with Darby fourteen years before. In trying to follow the trail back to the trailhead,
moreover, our ultimate destination is not Detective Barba’s interview with Darby in 2008.
At that interview, Darby, in turn, was ostensibly trying to recollect the conversation he had
overheard three years earlier. The only information at the suppression hearing bearing on
the Darby fragment, therefore, was a recollection of a recollection attenuated out over
seventeen years. That’s getting perilously thin.
29
E. The Police Did Not Credit The Darby Fragment
The Prince George’s County Police Department had the Darby fragment in hand as
of March of 2008. When the reinterview of Rozier in 2008 proved fruitless as far as the
appellee Lewis was concerned, the Darby fragment was still available. Although the State
now argues fervently before us that that Darby fragment, standing alone, constituted
probable cause for the appellee’s arrest, the Prince George’s County Police never arrested
him in 2008. Instead, the police let the case go completely cold for the next eight years,
notwithstanding what they now claim was probable cause for the appellee’s arrest. In the
meantime, the police put a picture of Darby in a photo array and sent a sample of his DNA
to the crime lab for analysis. Indeed, when the investigation reopened in 2016, it was not
on the basis of the Darby fragment. Indeed, the application for a Statement of Charges in
2017 did not so much as mention the Darby fragment.
In the written affidavit he submitted to the four-day suppression hearing in July and
August of 2022,2 Detective Eckrich explained that he deliberately omitted any mention of
Darby in his application for a Statement of Charges out of a concern for Darby’s security,
to protect him from possible retaliation. The police never arrested the appellee on the basis
of the Darby fragment. As is self-evident from their conduct, the Prince George’s County
Police Department never treated Darby as credible and never treated his information as
reliable. That appraisal of Darby on their part is a telling factor that simply cannot be
callously ignored. Their interpretive tilt unquestionably influences our interpretive tilt.
2
As of the summer of 2022, Detective Eckrich had left the Prince George’s County
Police Department and he did not appear as a witness at the suppression hearing.
30
F. Judge Anderson Did Not Credit The Darby Fragment
In making her suppression ruling on August 4, 2022, Judge Anderson on several
occasions pointed out that the Darby fragment was the only “other evidence” the State had
to establish probable cause for a warrantless arrest of the appellee. She expressly ruled that
that evidence did not establish probable cause. Implicit in her ruling to suppress the
appellee’s statement was her implicit conclusion that Darby was not credible and that his
information was not reliable. This is a critical factor that cannot be casually ignored.
Indeed, it is an interpretive factor to which we actually owe deference.
Each of these six factors is relevant, of course, on the issues of the credibility of
Darby and the reliability of his information. With respect to each of these factors
individually the controlling standard of review requires that all evidence and all inferences
that may reasonably be drawn therefrom must be viewed in the light most favorable to the
appellee. That interpretive tilt applies to each of the six factors individually and then to the
totality of the factors collectively. That does not leave much room for the State to wriggle.
Darby was obviously something less than an exemplar of integrity. In its totality, the Darby
fragment was a kaleidoscope of unreliability.3
The Inculpatory Significance Of The Darby Fragment:
The Intractable Ambiguity Of The Pronoun “They”
3
We have not mentioned as a possible seventh credibility/reliability factor that
Darby, as of 2008, obviously had some record of past criminal behavior. In this case, no
one ever bothered to explore the possible dimensions of his criminal record. Apparently
everyone deemed it to be mere surplusage. Darby’s credibility was shaky even without a
rap sheet.
31
Our anatomy of this dying ember, however, does not end here. Quite aside from any
issue about Darby’s credibility or about his story’s reliability, there is a further problem
with the Darby fragment’s substantive weight as inculpatory evidence. What was its actual
value as proof of the appellee’s guilt? Even if the conversation several hours after the
commission of the crime on February 16, 2005 had taken place exactly as Darby reported
it three years later, what, if anything, was its precise value as evidence of the appellee’s
guilt? Not somebody’s guilt? Not the pair’s collective guilt? Not THEIR guilt, but HIS
guilt?
Had Darby ultimately been offered as a witness, he could not have testified as to
what happened at the crime scene. According to his own version of events, he had not been
there. He could only repeat what someone else had told him about the crime scene. That,
of course, would be inadmissible hearsay. What Darby could relate, on the other hand,
might be an admission of guilt by a hearsay declarant. Darby would have heard that
admission with his own ears and it would be admissible as a recognized hearsay exception.
The critical question, of course, would then become, “An admission of guilt BY WHOM?”
Throughout this case, the universally accepted version of the Darby fragment seems
to have been that shortly after the commission of the crime, Darby engaged in a
conversation with Anthony Forte and the appellee Jermaine Lewis and that, after a detailed
recitation of the criminal acts, “THEY acknowledged THEIR involvement.” As the only
witness to testify at the four-day suppression hearing, Detective Barba summarized his
recollection of what Darby had said to him on March 26, 2008:
32
Summarization of what he provided in both verbal and a written statement
was that Mr. Forte and Mr. Lewis were involved in a home invasion that
occurred in 2005 that ended up being a homicide. And THEY gave him
direct details of what happened during that homicide, and Mr. Darby ended
up relaying that information in detail to us.
(Emphasis supplied.)
That brings the Darby fragment into head to head confrontation with the inherently
intractable ambiguity of the pronoun “THEY.” Who exactly are “THEY?” “THEY,” of
course, may denote swarming multitudes, as in “Under Attila, ‘THEY’ overran much of
central Europe.” “THEY” may also be a sedate and elderly couple, as in “‘THEY’ are the
focus of Grant Woods’s American Gothic.” In either manifestation “THEY” retains its
illusive ambiguity.
As the quantitative content of “THEY” diminishes, of course, the degree of
ambiguity correspondingly diminishes, but some ambiguity still abides. To be one of ten
thousand is obviously ambiguous. To be one of two, however, is also ambiguous. To be
one of “THEY” is by definition ambiguous, whatever the quantitative content of “THEY”
may be. That ambiguity is only resolved at the point where diminishing plurality finally
collapses into singularity, at the point where “THEY” becomes “HE.” On the basis of what
was produced before the four-day suppression hearing, that point was never reached. Darby
told the police what “THEY” said. He never told the police what “HE” said. Unlike in
Horseshoes, coming close does not count.
We thus do not know with any certainty what words, if any, the appellee himself
ever actually spoke to Raymond Darby on February 16, 2005. We do not know with any
certainty whether the appellee Lewis ever actually admitted his guilt to Darby. The appellee
33
Lewis may simply have been standing there as Forte did all, or most, of the talking. The
Darby fragment, even if reliable, was not, therefore, substantive evidence of the appellee’s
involvement in the crime. It lacked substantive weight. For an admission of guilty
involvement to qualify as cognizable proof of guilt, the authorship of the damaging
admission needs to be established with particularity. The law does not recognize a
declaration against interest by a Greek chorus. THEIR admission of guilty involvement is
not enough. It must be HIS admission of guilty involvement. We have failed to find such
particularity anywhere in the Darby fragment.
Where Are We?
Across a span of seventeen years and through the fog-like mist of seventeen years,
it is difficult to focus clearly on the precise argument the State is making. As a
constitutional alternative theory to a bad arrest on a bad warrant, did the police on January
17, 2018 actually have independent probable cause for a warrantless arrest of the appellee?
That depended exclusively on a declaration against interest allegedly, but not necessarily,
made by the appellee on February 16, 2005. The source of that damaging allegation was a
jailhouse informant in August of 2008 who reported that he had heard someone make such
a declaration in 2005. For a combination of reasons, the suppression hearing judge
considered that jailhouse informant to be non-credible and his allegations to be accordingly
unreliable.
That information from the jailhouse informant in 2008 is unquestionably the sole
basis on which the State now urges us to hold de novo that the police had probable cause
for a warrantless arrest of the appellee on January 17, 2018 and accordingly to reverse
34
Judge Anderson’s ruling to the contrary. Judge Anderson’s clear feelings about the
jailhouse informant’s lack of credibility and about his information’s lack of inculpatory
weight, while arguably debatable, were certainly not clearly erroneous. Can the State
seriously argue otherwise? We are required, therefore, to be deferential. Accordingly, we
affirm Judge Anderson’s ruling.
Even if we were not so inclined (such is not the case), our de novo determination of
the ultimate legal question (the existence of probable cause) would be subject to that same
tilt as to credibility and that same tilt as to inculpatory weight. On the basis, therefore, of
the lack of credibility in Raymond Darby and the lack of significant inculpatory weight in
his 2008 information to the police, our de novo constitutional judgment would also be that
there was no independent evidence to establish probable cause for the warrantless arrest of
the appellee on January 17, 2018. There was thus no spark of life remaining in this separate
dead ember, if ever there had been. The cold case remains inertly cold. If we were deciding
the probable cause issue de novo, we would also affirm Judge Anderson’s ruling to
suppress the appellee’s post-arrest statement.
A Dead Ember
This is an icily cold case. For fourteen years, the Prince George’s County Police
Department did not deem the Darby fragment, standing alone, to be actionable probable
cause. Accordingly, it did not act. At the suppression hearing in July and August of 2022,
Judge Anderson did not deem the Darby fragment, standing alone, to be constitutionally
rehabilitative probable cause. Accordingly, she did not uphold the arrest. On appellate
review, this Court would not de novo deem the Darby fragment, standing alone, to be
35
actionable probable cause. Might this ancient ember, therefore, ever rekindle a resuscitative
spark in this long forgotten chapter of investigative lore? Holdeth our panel,
“NEVERMORE.”
SUPPRESSION RULING OF AUGUST 4,
2022 AFFIRMED; COSTS TO BE PAID BY
PRINCE GEORGE’S COUNTY.
36