Brooks v. State

• Decision Date: 18 October 1971
• Docket Number: No. 649,649
• Citation: 282 A.2d 516,13 Md.App. 151
• Parties: Nathaniel BROOKS et al. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 151

13 Md.App. 151

282 A.2d 516

Nathaniel BROOKS et al. v. STATE of Maryland.

No. 649.

Court of Special Appeals of Maryland.

Oct. 18, 1971.

Morris L. Kaplan, and Michael Lee Kaplan, Baltimore, on brief or appellant Brooks.

Gerald Kroop, Baltimore, on brief for appellant Keaton.

Richard G. Bartholomee, Baltimore, on brief for appellant Patterson.

Francis B. Burch, Atty. Gen., Gilbert Rosenthal, Asst. Atty. Gen., Milton B. Allen, State's Atty., and David Simonson, Asst. State's Atty., Baltimore City, on brief for appellee.

Submitted on briefs to ORTH, THOMPSON, and CARTER, JJ.

THOMPSON, Judge.

Nathaniel Brooks, Roscoe Keaton and Howard Lee Patterson, the appellants, were all convicted of violations of the narcotics laws in a court trial before Judge Charles D. Harris in the Criminal Court of Baltimore; total sentences of three years were imposed on each appellant. Brooks was also convicted of assault in addition to the narcotics violations, but no appeal was filed from this conviction.

The only substantial question presented on appeal is did the trial judge err by denying a motion to suppress evidence obtained in an illegal search?

On April 17, 1970, four days prior to the raid involving the appellants, there was a raid of the same premises, the second floor apartment of 643 South Paca Street, Baltimore City. The first search and seizure was made pursuant to a search warrant which had been issued on the affidavit of Officer Wayne Harris. During the first search and seizure, David Miller, the lessee of the apartment, was arrested, charged with and convicted of possession of heroin and narcotic paraphernalia. During this first search, Officer Harris observed but did not seize various items, including rings in a display case, a portable radio, a car radio and a portable television. At the time, these items signified nothing to Officer Harris; however, subsequent investigation revealed that these were stolen goods.

Upon discovering the items to be stolen, Officer Harris applied for a second search warrant based on his observations and investigation. The application for the second warrant recited the issuance of the first warrant, but a copy of the first warrant and the application therefor were not attached to the second application. A Judge of the Municipal Court of Baltimore City issued the second warrant for the premises. While executing this second warrant, the police, led by Officer Harris, apprehended the appellants for the instant violations. The officer had no prior knowledge of appellants' presence in the premises nor of their activities.

Appellants contend that the trial court erred for failing to grant their motion to suppress evidence. Their argument is that the validity of the second search warrant depends on the validity of the first search warrant; therefore, probable cause for the first search warrant must be established in the affidavit for the second search warrant. The trial court ruled that the burden of proof was on the appellants to prove the first search warrant was invalid. Further, the court held that since David Miller had been convicted after the execution of the first search warrant, that the conviction established the validity of the first warrant. The court was in error in both rulings.

The issues involved in this case border between two closely related basic concepts of the law governing search warrants. The first concept is that conclusory statements without underlying facts by the affiant that probable cause exists, are not adequate to support the issuance of a search warrant. Grimm v. State, 7 Md.App. 491, 256 A.2d 333, Frey v. State, 3 Md.App. 38, 237 A.2d 774, Scott v. State, 4 Md.App. 482, 243 A.2d 609.

The second basic concept is that probable cause must be determined by the magistrate, based on the facts presented to him in the affidavit. Md.Code, Art. 27, § 551 Hall v. State, 5 Md.App. 394, 247 A.2d 548, Clayton v. State, 1 Md.App. 500, 231 A.2d 717, and Henderson v. State, 243 Md. 342, 221 A.2d 76.

These basic concepts were effectively summarized by this Court in Grimm v. State, supra, at 493, 256 A.2d at 334:

'It is well settled that the Fourth Amendment requires that a search warrant be issued only after a neutral and detached magistrate himself sifts the facts presented to him by policemen to determine whether probable cause exists for the issuance of that warrant. Johnson v. United States, 333 U.S. 10, (68 S.Ct. 367, 92 L.Ed. 436). Obviously, to sift properly, the issuing magistrate must have the relevant facts before him which the affiant alleges as the basis of probable cause; otherwise, the magistrate would be obliged to accept the affiant's conclusions and thus would 'serve merely as the rubber stamp for the police.' Aguilar v. Texas, 378 U.S. 108, 112, (84 S.Ct. 1509, 12 L.Ed.2d 723).'

Factually similar to the instant case is Frankis v. State, 11 Md.App. 534, 275 A.2d 532, wherein an F.B.I. agent, while executing a federal search warrant for unrelated crimes, observed a certain gas stove. Sixteen months later, the agent discovered the stove to be stolen. At defendant's trial for storehouse breaking concerning the stove, the agent was called to testify concerning his observation of the stove on defendant's premises during the search and seizure under the unrelated federal search warrant. This Court said that the propriety of the presence of the F.B.I. agent in the residence of appellant on the day of the search and seizure, so that the agent would be in a position to legally observe the gas stove, is based upon the adequacy of the probable cause set out in the application for that search warrant. This Court then considered the adequacy of probable cause for the original search warrant and did not accept the legality of that warrant without question.

Here, as in Frankis, the probable cause for the original search warrant must be found and the officer's statement that the original warrant was issued cannot alone sufficiently support the conclusion. There must be a presentation of underlying facts.

The same logic which requires a showing of the underlying circumstances when probable cause is based upon hearsay or informers, applies, when a police officer seeks to use observations made during one search as grounds for a subsequent search warrant. The ultimate decision must rest with the issuing judge and to the extent that the affiant is allowed to present unsupported conclusions, he converts the issuing judge into a rubber stamp. As with hearsay and informers, to make a valid and intelligent decision, the issuing judge must have the appropriate background facts. To allow otherwise would be to condone that type of bald conclusory statement by the affiant that his conduct was legal and based upon sufficient probable cause, that was specifically condemned in Grimm v. State, supra.

In this case, the affidavit for the second search warrant says only that the first search warrant was signed; this does not present to the second issuing magistrate, underlying circumstances sufficient for him to reach his own independent conclusion.

Our conclusion is supported by Duggins v. State, 7 Md.App. 486, 256 A.2d 354, holding that where the validity of a seizure depended on the validity of an arrest warrant, that warrant, if properly challenged, must be produced by the State. We...