Circuit Court for Montgomery County Case No. 130347
Nazarian, Arthur, Shaw Geter, JJ.
Joseph Sweeney was convicted in the Circuit Court for
Montgomery County of second-degree theft and burglary. Mr.
Sweeney was found guilty of breaking into a church
pastor's garden shed and taking, among other smaller
items, a John Deere riding lawn mower and twenty-five pairs
of sneakers that had been donated to the church. The State
presented its case against Mr. Sweeney on a first-degree
principal theory of liability, but the jury convicted Mr.
Sweeney only after the circuit court provided a supplemental
instruction on accomplice liability after deliberations had
begun, in response to a note from the jury. Mr. Sweeney
contends that the supplemental instruction was not generated
by the evidence at trial and unfairly prejudiced him because
he had no opportunity to defend against an accomplice theory
of liability. He also challenges the circuit court's
decision to admit a collection of "burglary tools"
into evidence, and the court's denial of his motion to
suppress evidence obtained from a GPS tracker affixed to his
truck. We agree with Mr. Sweeney's first two arguments,
reverse, and remand for further proceedings.
Morales is a pastor who resides in a church-owned property in
Silver Spring. On the morning of June 25, 2016, Mr.
Morales's landscaper informed him that the church's
John Deere riding lawnmower was not in its usual spot in a
shed at the back of the property. Mr. Morales checked the
shed, which he kept closed but unlocked, and found "many
items" missing including the riding mower, "small
tools[, ]" and boxes of sneakers that had been donated
to the church. Mr. Morales estimated the total value of the
missing items at about $5, 000. Mr. Morales's nephew
contacted the Montgomery County Police Department
("MCPD") to report the burglary.
before the church shed burglary, on May 27, 2016, the Howard
County Police Department ("HCPD") had responded to
a different burglary. That victim reported that a neighbor
had approached him to let him know that he had seen a
suspicious person at 5:15 that morning loading a lawnmower
into the bed of a red pickup truck with Washington D.C.
plates. The neighbor described the suspicious person as
"a black male between 30 [and] 40 years old" and
noted a partial license plate number containing the numbers
5035. The victim called the police after noticing several
items, including an "ATV, power washer, and a
chainsaw," missing from his shed. Detective Kenneth
Drummond of HCPD investigated and discovered that a 2003 red
Dodge pickup truck with Washington D.C. registration ENV5035
was registered to a Patrick J. Sweeney. His investigation
further revealed that Mr. Sweeney had recently used his
driver's license in a pawn shop transaction and that he
had been charged with burglary several times before, most
recently in 2009.
on the information he learned in his investigation, Detective
Drummond secured a warrant to attach a GPS tracking device to
Mr. Sweeney's truck for thirty days. HCPD attached the
device to Mr. Sweeney's truck while it was parked at a
Days Inn in Silver Spring, where Mr. Sweeney was living at
the time. After thirty days, HCPD removed the tracker and
Detective Drummond reviewed the data. He then shared the
tracker data with Detective Joseph Vitaletti of MCPD.
Detective Vitaletti forwarded the data to Detective Scott
Sube of MCPD, an expert in electronic surveillance, who
reviewed it. The data revealed that on June 25th,
Mr. Sweeney's truck left the Days Inn around 1:17 a.m.
The truck drove to the vicinity of Norwood Road and remained
stationary on a side street from 2:12 a.m. to 4:43 a.m. It
moved to the area of 321 Norwood Road (the Morales residence)
and remained stationary again from 4:50 a.m. to 5:08 a.m. The
truck then left the area, drove to Washington D.C., and
returned to the Days Inn at 5:43 a.m.
August 18, 2016, Detective Vitaletti executed a search
warrant for Mr. Sweeney's truck and hotel room. In the
truck, he found a collection of tools, including
bolt-cutters, Allen wrenches, a hammer, a bicycle pump, a
chisel, a small shovel, a pair of gardening gloves, and a set
of binoculars. Detective Vitaletti also found a pair of
distinctively colored sneakers that matched the description
of sneakers stolen from Mr. Morales' shed. The Detective
arrested Mr. Sweeney for the Morales burglary.
Sweeney was tried by a jury on November 13 and 14, 2017.
Detectives Drummond, Sube, and Vitaletti each testified about
their role in the investigation. Multiple detectives
testified that although they had seen Mr. Sweeney driving his
truck on other occasions, none had seen him on the day of the
alleged burglary. Detective Vitaletti testified that he could
not rule out the possibility that someone "either
borrowed or stole [Mr. Sweeney's] truck and was in Silver
Spring at Mr. Morales's using his truck[.]"
Morales testified at trial that he hadn't seen anything
the night of the burglary, but that there were tire tracks on
the road and in the grass leading up to his shed the
following morning. He identified the sneakers recovered from
Mr. Sweeney's hotel room as a pair that had been in his
shed. The tools found in Mr. Sweeney's truck, which the
State characterized as "burglary tools," were
admitted into evidence over Mr. Sweeney's objection. The
State did not provide any witnesses to the crime, DNA
evidence, fingerprint evidence, or boot track evidence.
Sweeney offered two witnesses in his defense. Orca Stewart
testified that he had known Mr. Sweeney for fifteen years and
that Mr. Sweeney had occasionally performed odd jobs for him,
such as hauling and landscaping. Mr. Stewart confirmed that
Mr. Sweeney drove a red pickup truck and that he had seen
other people driving it on multiple occasions. He could not
account for Mr. Sweeney's whereabouts the day of the
alleged burglary, though, and testified that he had not
employed Mr. Sweeney during the summer of 2016.
Tilley testified that she was a childhood friend of Mr.
Sweeney's and had been a passenger in Mr. Sweeney's
truck. She stated that Mr. Sweeney kept a variety of tools in
the vehicle to use for "the kind of work that he did, or
he needed gloves for . . . hauling trash.  [W]orker's
tools." Ms. Tilley testified that she knew Mr. Sweeney
to rent out his truck for income because he was unable to
work full time due to a back injury. Ms. Tilley stated that
she had spent the night of the alleged burglary with Mr.
Sweeney at the Days Inn, where they were "organizing the
work that has to be done for getting ready for the  Fourth
closing arguments, the trial judge instructed the jury. Both
parties stated, when asked, that they were satisfied with the
instructions. After deliberations had begun, the trial judge
received a note from the jury, and discussed it with the
parties on the record:
THE COURT: [The note] says [']if two people engage in the
crime of burglary but only [one] enters the shed are both
guilty of the crime[?'] And, I think the answer is yes,
but I guess the definition of, of engage would be if he aided
or abetted. There's an instruction on that deals with
aiding and abetting which I guess it's called accomplice
liability . . . which I might propose to read. What's
the State's position[?]
[THE STATE]: Well, initially my response  was that your
[sic] only considering charges against Mr. [Sweeney], but
then as I've been sitting here I looked at the note
again, I realized that the answer to that question is yes.
So, I would, if the Court's inclined to say the answer is
yes and then give them that instruction I would be satisfied
with that, Your Honor.
THE COURT: . . . What's the defense position on that?
[MR. SWEENEY'S COUNSEL]: Your Honor, the defense position
is that this wasn't charged and hasn't been argued as
an aiding and abetting theory. This would be the first time
we had heard of that and I don't think that's the
case that, that the State's tried to argue here.
Certainly, that wasn't something we ever had an
opportunity to try to respond to or rebut and our request
would be that the Court reiterate  the instruction that was
It's not what [the State] argued in [its] closing and not
something we've ever had a chance to address . . . either
as a matter of bringing up certainly any legal objection we
might have to it and certainly not had an opportunity to
address the jury on why we don't think the specific
elements of aiding and abetting would be satisfied here.
trial judge disagreed with Mr. Sweeney and gave the jury a
supplemental instruction on aiding and abetting. The jury
subsequently convicted Mr. Sweeney of second-degree burglary
and theft. We supply additional facts below as needed.
Sweeney raises three issues on appeal. He argues
first that the trial court committed reversible
error by instructing the jury, after deliberations had begun,
on an accomplice liability theory not generated by the
State's evidence at trial. He argues second that
the trial court abused its discretion by admitting irrelevant
and unduly prejudicial evidence of "burglary tools"
that Mr. Sweeney had in his truck. He argues third
that the court erroneously found probable cause to grant the
GPS tracker warrant for Mr. Sweeney's truck because the
underlying affidavit contained material misrepresentations of
fact, and that the circuit court erred by denying his motion
to suppress the resulting evidence. We agree with Mr.
Sweeney's first two arguments, reverse his convictions
and, for guidance on remand, find that the circuit court
properly denied his motion to suppress the GPS data.
A.The Circuit Court Erred By Giving A Supplemental Jury
Instruction On ...