Cantine v. State
| Decision Date | 27 December 2004 |
| Docket Number | No. 1388,1388 |
| Citation | 864 A.2d 226,160 Md. App. 391 |
| Parties | Marvin CANTINE v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Brian J. Murphy, Assigned Public Defender (Nancy S. Foster, Public Defender, on brief), Baltimore, for Appellant.
Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Appellee.
Panel: SALMON, KRAUSER, and ANDREW L. SONNER, (Retired, specially assigned), JJ.
ANDREW L. SONNER, Judge (Retired, specially assigned).
A jury in the Circuit Court for Baltimore City found Harvey Lippman and Marvin Cantine guilty of conspiracy to possess heroin with the intent to distribute, but it found them not guilty of conspiracy to possess heroin and conspiracy to distribute heroin.1 Additionally, the jury found Cantine not guilty of being a kingpin. The court sentenced Lippman to thirty-five years' imprisonment, suspending all but fifteen years. It also imposed a $25,000 fine. The court sentenced Cantine to twenty-five years in prison without the possibility of parole pursuant to the "three time loser" statute.2
Appellants jointly present five issues on appeal, which we set forth here substantially as they appear in their briefs:3
Additionally, appellants put forth different arguments relating to Lippman's statements to police in October 2001. Lippman asks:
6a. Did the trial court err in refusing to exclude an exculpatory portion of Lippman's statement to police while admitting an arguably inculpatory portion?
Cantine asks:
6b. Did the trial court err in refusing to declare a mistrial when the jury heard the inadmissible portion of Lippman's redacted statement?
Lippman queries:
7. Did the trial court err in refusing to propound two requested instructions to the jury?
Lastly, Cantine asks:
8. Did the trial court err in sentencing Cantine to twenty-five years without parole as a "three-time loser"?
We determine that the trial court erred when it sentenced Cantine as a subsequent offender, so we remand for re-sentencing. On all other issues, we affirm.
During the Fall of 2001, Federal and Maryland authorities investigated the activities of Marvin Cantine, whom they believed operated as a narcotics kingpin in New York and Baltimore, and Harvey Lippman, whom they believed served as Cantine's lieutenant. Investigators secured approval from the Circuit Court for Baltimore City to conduct wiretap surveillance of Cantine, Lippman, and others believed to be involved in this drug ring.
According to appellants, the "most significant surveillance" took place on October 23, 2001, when agents saw Lippman and Cantine meet at the Baltimore Marriott Waterfront Hotel. Agents and officers staked out the hotel because of information that they had intercepted with wiretaps. As Lippman left the meeting, agents had a uniformed officer conduct a traffic stop. The agents ultimately intervened, and searched Lippman's car. They recovered a handgun, over $10,000 in cash, and marijuana.
One month later, on November 19, 2001, police recovered a little more than six pounds of heroin from inside a hidden compartment in a vehicle that an associate of the drug ring, Derrick Thomas, drove from New York to Baltimore. The approximate street value of this heroin was $1,000,000. The following day, agents searched Lippman's apartment and found over $120,000 in cash, a bag of highly diluted heroin, marijuana, packaging, and ammunition. The State tried Lippman, Cantine, and Edwin Richardson together. Before trial, Lippman moved to adopt all the motions filed by his co-defendants. The record does not reveal the status of that request, although during the course of the trial, the court agreed that an objection by one defendant was an objection by all three men. The trial lasted six weeks, and much of the testimony related to interpreting the alleged conspirators' intercepted phone calls.
Before the jury retired for deliberation, the State asked to show jurors how to use playback equipment in the deliberation room so that they could listen to the intercepted calls at their discretion. Lippman opposed this request, and the court decided to "wait and see" if the jurors requested assistance. Following further requests by the State, however, the court agreed to escort the State into the jury room. The court then asked, "Is there anything else, counsel?," to which no objection was lodged. The judge and the prosecutor went into the jury deliberation room. When the court returned, it announced:
Defense counsel then objected, but did not request curative action. On its own initiative, the court denied any motion for a mistrial.
Appellants argued below that police failed to exhaust conventional investigative techniques before resorting to wiretaps, and they moved to suppress evidence from the October car stop, and the November search of Lippman's house, as fruits of the wiretaps. The court denied these motions.
On review, we must determine whether "the application and supporting affidavits ... [were] sufficient to demonstrate the need for electronic surveillance." Vandegrift v. State, 82 Md.App. 617, 627, 573 A.2d 56 (1990). We give "`considerable deference' to the [trial] court's determination that `exhaustion' has been shown." U.S. v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir.1995) (citation omitted).
Every application for an ex parte wiretap order must include "[a] full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Md. Code (1974, 2002 Repl. Vol.), Cts. & Jud. Proc. § 10-408(a)(1)(iii). "The underlying purpose of this requirement is to guard against the use of electronic surveillance as an initial investigative tool." Vandegrift, 82 Md.App. at 627, 573 A.2d 56. These requirements are mandatory, and the failure to satisfy them dictates the suppression of all derivative evidence. See State v. Mazzone, 336 Md. 379, 383, 648 A.2d 978 (1994)
.
We are mindful that affidavits, like the one that accompanied the State's surveillance application, often contain boilerplate language. Certainly, "courts are not free to infer from the mere presentation of an application or petition, supported by an affidavit, that normal investigative procedure will not work." Allen v. State, 89 Md.App. 25, 35, 597 A.2d 489 (1992). In making its case for electronic surveillance, however, the State "need not exhaust every conceivable investigative possibility before seeking a wiretap order." Id. (citation omitted).
In denying the motion to suppress, the court considered the agents' seventy-page affidavit offered in support of their application. It found:
The affiants had been conducting surveillance over several years, more intensively, for several months prior to the submitted affidavit. Like Salzman the affiants checked criminal arrest records, used informants, toll records, pin registers. They also set up controlled calls and buys. In addition they articulated that bumper beepers and long term surveillances would likely result in detection. As in Salzman the known CDS members only dealt with old friends and associates. The affiants believed further checks of toll records or pin register would probably not reveal the higher ups, thus like in Salzman the affiants set forth an exhaustive list in their affidavits to the issuing Judge. In addition, the affidavit ... indicated that the investigation was ongoing and, however, the affiants had been unable to locate the stash house because the Defendants kept changing their telephone numbers and thereby blocking the affiants receiving their communications.... In light of the investigative procedures outlined in the affidavit, the State ... has shown that the affiants demonstrated to the issuing Judge that normal investigative measures had been tried and failed. Admittedly, the affiants probably could have made more than two attempts to collect trash. They also could have provided better factual support for the claim that cellular phone calls could not be monitored, however, the State does not need to exhaust every conceivable investigative possibility before seeking a wiretap order. As Defense Counsel admitted in their Motion to Suppress the police utilized many techniques including the use of confidential informants.
According to the affidavit, officers checked arrest records, employed three informants, reviewed toll records and pin registers, and set up controlled buys. Considering the application, the affidavit in support of it, and the court's findings, we determine that the State indeed demonstrated the need for the wiretaps.
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