Bell v. State, 949

• Decision Date: 16 August 1974
• Docket Number: No. 949,949
• Citation: 22 Md.App. 496,323 A.2d 677
• Parties: Wilbur G. BELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 496

22 Md.App. 496

323 A.2d 677

Wilbur G. BELL v. STATE of Maryland.

No. 949.

Court of Special Appeals of Maryland.

Aug. 16, 1974.

Certiorari Denied Oct. 24, 1974.

James C. Cawood, for appellant.

George A. Eichhorn, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., James G. Klair, Asst. Atty. Gen., Warren B. Duckett, Jr., State's Atty. for Anne Arundel County and Frank R. Weathersbee, Asst. State's Atty. for Anne Arundel County, on the brief, for appellee.

Arbued before THOMPSON, GILBERT and DAVIDSON, JJ.

GILBERT, Judge.

Wilbur G. Bell, Bernard Peters and James S. Cromartie, Jr. were jointly tried and convicted at a non-jury trial before Judge Matthew S. Evans, in the Circuit Court for Anne Arundel County, of violation of the Controlled Dangerous Substances Law of this State. ¹ Only the appellant Bell has appealed. ²

Appellant assigns a pental of reasons why the judgment of the Circuit Court should be reversed. He asserts:

(1) The trial judge erred in not requiring the State to supply appellant with the identity of an informant 'whose information led to a wiretap of a third party's house and ultimately to the wiretap of (appellant's) house . . .' when appellant proffered that if he knew the name of the informant it would probably enable appellant to demonstrate that the informant was a trespasser in the third party's home.

(2) Adequate steps were not taken by the police to minimize the interception of legitimate communications.

(3) The trial judge erred in continuing the case, over objection, so as to allow the State to serve upon appellant the contents of the wiretap.

(4) Appellant was denied a speedy trial.

(5) The nolle pros. of one count of a federal indictment, as the result of a plea of guilty to a lesser offense, precluded appellant's indictment and trial in a State court for the same crime.

As the result of a duly authorized wiretap, in Prince George's County, it was learned that appellant was engaged in the nefarious vending of proscribed narcotics. Acting upon that knowledge the State's Attorney for Anne Arundel County applied for and obtained an order of court authorizing the use of electronic equipment to intercept and record the telephonic wire communications of appellant and others. The wiretap order was issued and was in effect for the period of March 2, 1972 at 10:00 A.M. until 10:00 P.M. March 17, 1972. Thereafter the termination date and time were extended until 2:00 A.M. April 2, 1972, although the police terminated interception on March 31, 1972.

A factual recitation of appellant's involvement in the illicit narcotics traffic is not necessary to this opinion. It is enough to know that no attack is made on the sufficiency of the evidence, absent the assertion that the evidence was unlawfully obtained. We shall, therefore, discuss only such facts as are pertinent to this opinion, and only then as they relate to a particular issue posited by appellant.

I.

Appellant argues that the Prince George's County wiretap order was invalid because it 'failed to show that the confidential sources (upon whose information the affidavit in support of the application for the order was bottomed) were lawfully on the premises of the (third) person whose telephone was wiretapped.' To bolster his contention that he should have been allowed to show that the informants were illegally upon the third person's property, and thus demonstrate that the Prince George's order was invalid, with the end result that the Anne Arundel order would also fall because of taint, the appellant quotes from Everhart v. State, 20 Md.App. 71, at 93-94, 315 A.2d 80, at 94-95 (1974), where we said:

'We reiterate that our holding is restricted to a constitutional finding that the probable cause affidavit was not facially insufficient, and that the warrant issuing magistrate is not required to raise sua sponte possible constitutional problems. We do not intimate what the answer might have been, had the appellant adequately raised at the suppression hearing, and adequately preserved for appellate review, an effort to look behind 'the four corners of the affidavit' in order to establish some primary taint, and then to apply the exclusionary rule to the ostensible fruits of that ostensible taint. We recognize that the whole body of law grown up around the 'fruits of the poisonous tree' doctrine, on the one hand, and the discernible and almost tidal retreat from the exclusionary rule by the Supreme Court, on the other hand, are in essential collision. We will not try to predict how that collision may ultimately be resolved.' (Footnote omitted). (Emphasis supplied).

Appellant did in the instant case, however, preserve the question of supposed primary taint for appellate review.

Before we may consider that issue, we must first determine the appellant's standing to object to the alleged intrusion against the third party. Obviously, if appellant cannot clear the standing hurdle, we need not consider the question of 'primary taint' irrespective of its preservation for our review. The State asserts that appellant lacks standing, but we disagree.

The answer to the question of standing is found in 18 U.S.C. § 2518(10)(a) and § 2510(11). Section 2518(10)(a) provides that an aggrieved party may, in any trial, hearing or proceeding, move to suppress the contents of any intercepted wire or oral communication or any evidence that is derivative therefrom. Under § 2510(11) an aggrieved party is anyone who was a party to any intercepted wire or oral communication. Patently, appellant, a party to an intercepted wire communication, meets the definition of an 'aggrieved person' under § 2510(11) and thus has standing to challenge the validity of the wiretap order of the Circuit Court for Prince George's County. There is, of course, no question of the applicability of 18 U.S.C. §§ 2510-2520 to Maryland. See State v. Siegel, 13 Md.App. 444, 285 A.2d 671 (1971), aff'd 266 Md. 256, 292 A.2d 86 (1972).

We turn now to a discussion of the merits of appellant's contention. The application for the wiretap order in Prince George's County provided:

'On January Second, Nineteen Hundred and Seventy-Two, your affiant was contacted by a reliable confidential source of information. Your affiant has personally known the source for a period of over six months and during this period time the source has given information to your affiant in regards to persons violating the Controlled Dangerous Substance Laws of the State of Maryland. That persons arrested based on the source's information have been convicted and that the source has never given information which proved to be false, also that the said information has led to the recovery of quantities of Controlled Dangerous Substances. Hereinafter, in this affidavit, let the said source be referred to as source number one.

That on January Second, Nineteen Hundred and Seventy-Two, source number one advised your affiant that one Andrew William Townsley and his alleged wife, Cynthia Snyder, were residing at 4117 51st Street, apartment $302, Bladensburg, Prince George's County, Maryland. That both Mr. Townsley and Mrs. Snyder were to his personal knowledge through observation made during the last of January, 1972, presently is (sic) engaged in a conspiracy to violate the Controlled Dangerous Substance Laws of the State of Maryland with an unknown colored male about 28 to 30 years of age, 6-02, 190 pounds, medium complexion, residing somewhere in Annapolis, Maryland, and sometimes referred to as Bell.

That the reliability of this information is to be substantiated by the fact that during the week of January 16th, 1972, your affiant met with source $1, conducted a strip search of source $1 and its personal belongings at which time no narcotics were found. Your affiant then gave source $1 an amount of money and instructed source $1 to go to Mr. Townsley's residence and purchase Heroin. That said source then proceeded to 4117 51st Street, apartment $302, Bladensburg, Prince George's County, Maryland, while your affiant personally observed source $1. Source $1 went to and came from Mr. Townsley's residence without stopping or coming in contact with anyone or thing except while inside Mr. Townsley's residence where your affiant was unable to see source $1. That when source $1 returned to your affiant, source $1 turned over to your affiant, an aluminum foil package containing a white powdery substance. That said white powdery substance was field tested by your affiant with a Marquis test kit for Heroin. That said white powdery substance tested positive to Heroin and that your affiant believes it to be, in fact, Heroin.

Further adding to the reliability of source $1's information is the fact that Andrew William Townsley was arrested on September 14th, 1971 by members of the Prince George's County Vice Control Section. Andrew Townsley was charged on that date with possession of a Controlled Dangerous Substance, to wit: Heroin. Also on September 14th, 1971, your affiant personally viewed hypodermic needle marks on the inside portion of Mr. Townsley's arms. Through the past experiences of your affiant, that the marks lead your affiant to believe that Mr. Townsley was, in fact, a Heroin user.

That during the week of January 16th, 1972, your affiant was contacted by another confidential source of information, who has given information to your affiant constantly for the past two and a half months. That the information has led to the arrests of over five persons involved in violations of the Controlled Dangerous Substance Laws of the State of Maryland, and recovery of quantities of Controlled Dangerous Substances. That none of the information given to your affiant by the second source has been found to be false. Hereinafter, in this affidavit, your affiant will refer to the second source as source $2. Source $2 related to your affiant that it has recently been present inside apartment $302 at 4117 51st Street,...