Clayton v. State

• Citation: 231 A.2d 717,1 Md.App. 500
• Decision Date: 21 July 1967
• Docket Number: No. 153,153
• Parties: Herman CLAYTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 500

1 Md.App. 500

231 A.2d 717

Herman CLAYTON v. STATE of Maryland.

No. 153.

Court of Special Appeals of Maryland.

July 21, 1967.

Milton B. Allen, Baltimore, Richard K. Jacobsen, Baltimore, on the brief, for appellant.

Lewis A. Noonberg, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., for Baltimore City, Baltimore, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and PRETTYMAN, Special Judge.

ORTH, Judge.

On May 19, 1966 the appellant was convicted of violation of the lottery laws in the Criminal Court of Baltimore, Judge Joseph L. Carter presiding without a jury. He was sentenced to imprisonment for a term of eleven months and fined $1,000 and costs, consecutive.

The only contention raised on appeal from this judgment is that the search warrant was 'executed too late.'

The appellant filed a motion to quash the warrant which included as a ground therefor that 'the warrant is a stale warrant in that the probable cause for search of the so-called premises occurred more than 15 days prior to the issuance of the warrant or at a time too remote from the issuance of the warrant to constitute probable cause for the issuance of a warrant.' The motion was denied. The application for the search warrant disclosed that the observations of the police were made on November 10, 1965, November 11, 1965, and November 17, 1965. The affidavit was made and the search warrant was issued on November 29, 1965 and served on the appellant on December 2, 1965. Apart from the allegation that the facts set forth in the application were too remote in time from the issuance of the warrant, the appellant does not contend that the facts are insufficient to establish probable cause. Maryland Code (1967 Replacement Volume), Article 27 § 551 provides in part:

'Whenever it be made to appear to any judge * * * by a written application signed and sworn to by the applicant, accompanied by an affidavit or affidavits containing facts within the personal knowledge of the affiant or affiants, that there is probable cause, the basis of which shall be set forth in said affidavit or affidavits, to believe that any misdemeanor or felony is being committed by any individual * * * such judge * * * may forthwith issue a search warrant * * * to search such suspected individual * * *.'

The section further provides:

'* * * any search or seizure under the authority of such warrant, shall be made within fifteen (15) calendar days from the date of the issuance thereof and after the expiration of said fifteen (15) day period said warrant shall be null and void.'

It is established that the finding of presence or absence of probable cause is to be made from the allegations of the application for the warrant, Henderson v. State, 243 Md. 342, 344, 221 A.2d 76, and that a period of fifteen days is a reasonable time to allow for the execution of a search warrant, Griffin v. State, 232 Md. 389, 392, 194 A.2d 80. In Henderson, 243 Md. at page 344, 221 A.2d at page 77, the Court quotes Hensen v. State, 236 Md. 518, 521, 204 A.2d 516:

'Probable cause, which is less than certainty or demonstration but more than suspicion or possibility, is to be determined by the judge or justice who issues the warrant, and if a prudent and cautious man would be justified from the facts presented to show its existence in believing that the offense had been or was being committed, the warrant properly may be issued. In making his determination this judicial, hypothetical, 'cautious and prudent man' may give consideration to the special significance which objects, happenings and individuals may have conveyed to the trained, experienced and knowledgeable police officers who apply for the warrant. Dean v. State, 205 Md. 274, 107 A.2d 88, 48 A.L.R.2d 1096; Bratburd v. State, 193 Md. 352, 66 A.2d 792.'

It is noted that the Court construed the statute so that the facts to show the existence of probable cause may be in regard to an offense that 'had been or was being committed.' The appellant urges that the facts must justify a belief that the offense 'is being committed' and therefore the elapsed time from the observations establishing the facts for the issuance of the warrant is pertinent to a determination of probable cause. Thus, he contends, this elapsed time, in order to...