Stanley v. State

Decision Date02 January 1974
Docket NumberNo. 58,58
Citation19 Md.App. 507,313 A.2d 847
PartiesDavid Richard STANLEY v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Nelson R. Kandel, Baltimore, with whom was Leslie L. Gladstone, Baltimore, on the brief, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty., for Baltimore County, and L. Robert Evans, Deputy State's Atty., for Baltimore County, on the brief, for appellee.

Argued before MOYLAN, POWERS and GILBERT, JJ.

MOYLAN, Judge.

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), purported 'to explicate' Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Spinelli is not itself without some need of explication. The precise influence of Spinelli upon Aguilar and the murky relationship to both of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), govern our review of the conviction by a Baltimore County jury, Judge H. Kemp MacDaniel presiding, of the appellant, David Richard Stanley, for the possession of heroin.

The sufficiency of the incriminating evidence is not in dispute. When the appellant was arrested at 8:30 p. m. on July 3, 1972, two glassine bags of heroin were found beneath the driver's seat of the vehicle which he had been operating unitl the moment of arrest. Our decision hangs upon the validity of that search and seizure. The Baltimore County Police were operating without a warrant, upon ostensible probable cause to believe that the appellant was selling heroin from his automobile. The probable cause ran to both the person and the vehicle.

If the police did, indeed, have probable cause, the search and seizure in issue was reasonable upon either of two distinct exceptions to the warrant requirement. That postulated probable cause, in conjunction with what we deem to have been ample exigency, would have justified a warrantless search of the vehicle under the so-called 'automobile exception.' Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Mobley v. State, 270 Md. 76, 310 A.2d 803; King and Mobley v. State, 16 Md.App. 546, 298 A.2d 446; Soles v. State, 16 Md.App. 656, 299 A.2d 502; Peterson v. State, 15 Md.App. 478, 292 A.2d 714; Bailey v. State, 16 Md.App. 83, 294 A.2d 123; Skinner v. State, 16 Md.App. 116, 293 A.2d 828. That same postulated probable cause would, quite independently, have justified a warrantless arrest of the appellant, Art. 27, Sect. 594B, and, the unities of time and place having been in our judgment adequately established, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Brown v. State, 15 Md.App. 584, 292 A.2d 762, the search beneath the seat where the appellant had been seated when arrested scant seconds before, would have been a legitimate 'search incident' to that arrest. Peterson v. State, supra, at 15 Md.App. 481-493, 292 A.2d 714; Howell v. State, 18 Md.App. 429, 306 A.2d 554. Both State theories, it is therefore quite clear, depend upon the adequacy in the first instance of ther probable cause.

The probable cause consisted of minimal direct observations by the arresting officer coupled with significantly incriminating hearsay from an anonymous police informant. Our problem, upon our constitutionally mandated independent review, Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726, 738 (1963), is, as was the problem of the trial judge upon the motion to suppress, to evaluate that hearsay-to determine whether it was an appropriately trustworthy predicate for the Fourth Amendment intrusion.

In that regard, it is established that the guidelines for the valuation of hearsay information in a probable cause setting are the same whether a magistrate is contemplating the issuance of a warrant or whether a trial judge is weighing the propriety of a policeman's actions without a warrant. Wong Sun v. United States, 371 U.S. 471, 479-482, 83 S.Ct. 407, 412-415, 9 L.Ed.2d 441, 450-452 (1963); Beck v. Hio, 379 U.S. 89, 93-97, 85 S.Ct. 223, 226-228, 13 L.Ed.2d 142, 146-148 (1964); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Spinelli, at 393 U.S. 417, n. 5, 89 S.Ct. 584; Mobley v. State, supra; King and Mobley v. State, supra, at 16 Md.App. 554-557, 298 A.2d 446; Schmidt v. State, 17 Md.App. 492, 302 A.2d 714; Thompson v. State, 16 Md.App. 560, 298 A.2d 458; Soles v. State, supra, at 16 Md.App. 660-665, 299 a.2d 502; Bauckman v. State, 9 Md.App. 612, 267 A.2d 309; Green v. State, 8 Md.App. 352, 259 A.2d 829. Cf. Taylor v. State, 238 Md. 424, 209 A.2d 595. In applying the strictures of Aguilar to a warrantless arrest based upon an informant's hearsay, former Chief Judge Murphy said for this Court in Bolesta v. State, 9 Md.App. 408 at 412, 264 A.2d 878 at 880:

'Where the arrest is initiated on hearsay information received from an informant, the State to establish its legality where challenged should sufficiently inform the trial judge of some of the underlying circumstances from which the informant concluded that a crime was being or had been committed by the person to be arrested, and some of the underlyig circumstances from which the police concluded that the informant was credible or his information reliable. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Mullaney v. State, supra (5 Md.App. 248) at page 254, 246 A.2d 291.'

In undertaking then the evaluation of the hearsay information furnished to the arresting officer by the informant at bar, we follow the procedure set out in Spinelli, at 393 U.S. 415, at 89 S.Ct. 589:

'The informer's report must first be measured against Aguilar's standards so that its probative value can be assessed.'

The 'Veracity' Prong

We will look first to the 'veracity' prong of Aguilar's 'two-pronged test' to determine whether there was furnished sufficient 'underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . ., was 'credible' or his information 'reliable'.' Aguilar, at 378 U.S. 114, at 84 S.Ct. 1514.

We are persuaded that the informant was 'credible.' Detective Robert Oatman testified, at the suppression hearing outside the presence of the jury, as to the following knowledge about his informant:

'Your Honor, on 6/4/72 the reliable informant was made reliable by myself and Detective Minnerly. I went to a certain location and met the informant. At this time the subject was searched and found to be free of any narcotics and any money whatsoever. He was given a ten dollar bill and observed to walk into a home on Propeller Court in the Essex District, at which time he purchased a ten dollar amount of marihuana. He returned to the police unit where again he was searched and found to be free of the ten dollar bill given to him. He was also free of any narcotics. At this time he turned over the suspected marihuana to the Crime Lab and it was found to be marihuana, a controlled dangerous substance.'

'On 6/15/72, again the same reliable informant, 077, supplied our Department and myself with information involving the arrest of two subjects and the confiscation of 43 pounds of marihuana. This case is pending in Baltimore City. On 6/28/72 the same reliable informant, 077, supplied myself with information that led to the arrest of six subjects and the confiscation of 68 pounds of marihuana.'

This represents a highly commendable type of detail which enables a reviewing trial court to make a truly informed judgment as to the credibility of a source of information rather than be asked to ratify a policeman's conclusion in that regard. It is, under the circumstances, superfluous even to consider the buttressing effect, under Spinelli, of certain independent police verifications. Aguilar's 'veracity' prong is already satisfied with flying colors, upon the basis of the internal description itself.

The 'Basis of Knowledge' Prong

Such is not the case, however, with Aguilar's 'basis of knowledge' prong. The trial judge was not furnished 'the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were.' Detective Oatman's testimony in this regard was unenlightening:

'(H)e stated at this time one, David Stanley, would be operating a 1964 yellow Chevrolet and he would have in his possession Cocaine and Heroin. The informant stated the Stanley subject would be in the Dundalk area near the pool hall between the hours of eight o'clock and 8:30. At this time he would also be accompanied by another white male subject by the name of Walter Holak.'

There was no direct indication that the informant spoke from personal knowledge-no assurance that he arrived at his conclusion on the basis of that which he had seen with his own eyes or heard with his own ears-no direct elimination of the possibility that he was a mere conduit for information from yet a third party if not, indeed, for information no 'more substantial than a casual rumor circulating in the underworld.' Spinelli, at 393 U.S. 416, at 89 S.Ct. 589.

The hearsay at bar was, therefore, initially hung up on Aguilar's 'basis of knowledge' prong. The trial judge was not informed as to what the informant based his conclusion upon-as to how the informant came upon his information. 'To permit the informant, no less than to permit the affiant, to offer an unsupported conclusion, would be to usurp the (judicial) function which the Fourth Amendment forbids.' Dawson v. State, 14 Md.App. 18, 31, 284 A.2d 861, 868.

We would ordinarily now proceed to a routine examination of the 'basis of knowledge' prong under Spinelli's augmentation to Aguilar's analysis to see if the information coming from the informant was furnished...

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