Cuffia v. State

• Decision Date: 17 February 1972
• Docket Number: No. 471,471
• Citation: 287 A.2d 319,14 Md.App. 521
• Parties: George Z. CUFFIA v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 521

14 Md.App. 521

287 A.2d 319

George Z. CUFFIA v. STATE of Maryland.

No. 471.

Court of Special Appeals of Maryland.

Feb. 17, 1972.

Alan M. Wolf, Baltimore, for appellant.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Thomas Howard, Asst. State's Atty., for Baltimore City on the brief, for appellee.

Argued before MURPHY, C. J., and THOMPSON and GILBERT, JJ.

GILBERT, Judge.

George Z. Cuffia, appellant, was convicted in a non-jury trial, by Judge David Ross in the Criminal Court of Baltimore, of violation of the lottery laws of this state. Appellant was fined $1,000.00 and sentenced to a term of one year under the jurisdiction of the Department of Correctional Services.

The question presented by the appeal to this Court is whether or not the arrest and subsequent search of the appellant of May 6, 1971, he received information

Officer Joseph Mitchell, of the Baltimore City Police Department, who has five years experience and has participated in twenty investigations involving violations of lottery laws, testified that on the morning of May 6, 1971, he recived information from an informant that a man '* * * between 55 and 60 years old, who had on a gray suit and black umbrella, * * *' was writing 'numbers in the vicinity of the 900 block of West Lexington Street and the 200 block of Amity Street.' The officer stated that the informant was reliable in that he had previously given information to the officer that led to the arrest of 'two lottery violators and 8 narcotic peddlers.' The officer also said that the informant had advised him that he, the informant, had played numbers with the man that the informant had described. Within 15 to 20 minutes after receiving the information, Officer Mitchell, accompanied by Officer Webb, went to the geographical location related to Officer Mitchell by the informant, and there they observed a man dressed in the manner described by the informant. Office Mitchell said that we '* * * watched him, and he left from the 200 block of Amity Street, and went north of Amity Street to about halfway, about a quarter of the block. That's where you can make an entrance into the Poe Homes at that location. At which time we watched him come back south into the Poe Homes, and he went into several Poe Homes, staying only about maybe a minute or a minute and a half, or two minutes.' The officer continued his testimony saying, 'Well, we continued to watch him, and then he went into the last, I say, about the third home, inside the Poe Homes are several apartments, about three, on the west side of the street, about three houses from the corner, he went in there and came back out. He had a piece of paper in his hand.' (Emphasis supplied). Officers Mitchell and Webb alghted from the automobile in which they had been sitting and further observed the appellant. Officer Webb approached the appellant from the rear and Officer Mitchell went around the block and approached the appellant from the front. Officer Mitchell had his badge in his hand as he approached the appellant. The appellant then put his right hand to his mouth. The officer grabbed the hand, brining it away from the mouth, and observed a piece of paper in the hand. The paper was introduced in evidence and contained 125 numbers representing $40.99 in play.

The appellant argues that there was no probable cause for the police officer to arrest appellant and hence under the theory of the 'fruit of the poison tree' the subsequent recovery of the paper upon which the numbers were written would, of necessity, be inadmissible.

The informant's statement that he had 'played numbers' with the person described by the informant was against informant's own penal interest inasmuch as Article 27, § 240, proscribes the placing of a bet, wager or gamble by any means and imposes sanctions of a fine of not less than $200.00, nor more than $1,000.00, and imprisonment for not less than six months, nor more than one year. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), for the effect of an informant's statement against penal interest.

We think the factual situation here presented falls squarely within Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In Draper, a Federal narcotics agent, with 29 years experience, received information from an informant that Draper 'was peddling narcotics to several addicts' in Denver. Four days later the informant told the Federal agent 'that Draper had gone to Chicago the day before (September 6) by train (and) that he was going to bring back three ounces of heroin (and) that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train.' The informant further gave to the Federal agent a detailed physical description of Draper and of the clothing he was wearing and said that he would be carrying a 'tan zipper bag' and that he characteristically 'walked real fast.' The Federal narcotics agent, together with a Denver police officer, went to the train station on the morning of September 8th and watched all incoming trains from chicago. They failed to observe Draper. However, on September 9th they repeated the process and they observed a person having the physical attributes and wearing the clothing described by the informant alight from an incoming Chicago train and walking 'fast.' Draper was carrying a tan zipper bag. The officers apprehended Draper. Mr. Justice Whittaker delivered the opinion for the majority of the Supreme Court. He said:

'Nor can we agree with petitioner's second contention that 'Marsh's (the Federal narcotics law enforcement officer) information was insufficient to show probable cause and reasonable grounds to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant. The information given to narcotic agent Marsh by 'special employee' Hereford (the informant) may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found accurate and reliable, it is clear that Marsh would have been derelict in his duties had he not pursued it. And when, in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a 'fast' pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had 'reasonable grounds' to believe that the remaining unverified bit of Hereford's information-that Draper would have the heroin with him-was likewise true.'

Article 27, § 594B., of the Annotated Code of Maryland, provides in pertinent part:

'(b) A police officer may, when he has probable cause to believe that a felony or misdemeanor is being committed in his presence or within his view, arrest without a warrant any person whom he may reasonably believe to have committed such offense.'

'Probable cause' has been defined as a non-technical conception of a reasonable ground for belief of guilt requiring less evidence for such belief than would justify a conviction, but more evidence than mere...