Dawson v. State

• Decision Date: 23 December 1971
• Docket Number: No. 315,315
• Citation: 14 Md.App. 18,284 A.2d 861
• Parties: Patrick Kelly DAWSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 18

14 Md.App. 18

284 A.2d 861

Patrick Kelly DAWSON v. STATE of Maryland.

No. 315.

Court of Special Appeals of Maryland.

Dec. 23, 1971.

Sidney Blum, Baltimore, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Raymond G. Thiemes, State's Atty., and Frank R. Weathersbee, Asst. State's Atty. for Anne Arundel County on brief, for appellee.

Argued before MORTON, ORTH and MOYLAN, JJ.

PER CURIAM.

The appellant, Patrick Kelly Dawson, was convicted in the Circuit Court for Anne Arundel County by Judge E. Mackall Childs, sitting without a jury, of four separate offenses: 1) unlawful possession of dilaudid; 2) unlawful carrying of a dangerous and deadly weapon; 3) unlawful possession of marihuana; and 4) unlawful maintenance of a house for the keeping of narcotic drugs. Articles of contraband, clearly sufficient to sustain the convictions, were found by the police in the home and in the automobile of the appellant. The pivotal issue, raised by the appellant in his motion to quash the search and seizure warrant and resolved against him below, is whether the application for the warrant contained adequate probable cause to justify its issuance.

The first, second and sixth paragraphs of the six paragraph application were essentially formal in nature. The heart of the application was in the third and fourth paragraphs, which recited information from and information about three anonymous informants:

'I Officer Gray having received information from a reliable informant who has been established as being reliable in the past by information which led to the arrest of eight persons for violation of the narcotic laws and three persons for burglary that one, Patrick Dawson, a white male twenty nine years old, is dealing both Marihuana and Dilaudid in the area of Ponca and Eastern Ave. in Baltimore City.

Information from a second reliable informant whose reliability has been established in the past by the arrest of two persons for narcotics and one for burglary that one Patrick Dawson is dealing Dilaudid from his auto, a Black Ford approximately a 1963 model in the area of Ponca and Eastern Ave. in Baltimore City. He further states that Patrick Dawson said that he kept the narcotics at his house in Glen Burnie Anne Arundel County. Information from a third informant whose reliability has been establishes from the arrest of two persons for narcotic violations that Patrick Dawson lived in a Pink shingled house at 7829 Oakwood Rd. Anne Arundel County, and that he held Dilaudid and Marihuana in his house and in his autos';

and in the fifth paragraph, which recited the following:

'I officer Michael Gray have observed this Black 63 Ford in the area of Ponca and Eastern Ave. in Baltimore City on numerous occasions at approximately nine PM. I also went to 7829 Oakwood Rd. and observed the person known to me as Patrick Dawson going into this house. I have also observed a Red Chev. Maryland registration GS 7609 sitting in the driveway, the auto is listed to Patrick Dawson, 7888 Crain Highway, to a 1960 Lincoln. I have observed Patrick Dawson in this 60 Lincoln in the area of Ponca and Eastern Ave. on one occasion. My third reliable informant, told me that Patrick had sold this Lincoln. I further observed the Black Ford, Maryland registration HP 4135 listed to Norma A. Dawson 7888 Crain Highway, the above auto is a 1964 Ford.'

Judge Childs, at the suppression hearing, declined to consider, on the issue of probable cause, the information furnished by the first informant and by the third informant. He ruled that no substantial basis was shown to indicate that either informant had come upon his information by direct observation. He ruled, however, that sufficient supporting facts had been furnished by the affiant to the magistrate to satisfy him both that the second informant had come upon his information directly and that the second informant was credible. The appellant here attacks the 'credibility' aspect of that ruling.

In his affidavit, the affiant set out for the magistrate the fact that his 'reliability has been established in the past by the arrest of two persons for narcotics and one for burglary.' The affidavit also set out certain independent observations made by the affiant himself, which tended to verify some of the story as told by the informant to the affiant. We hold that the combination of the recitation as to the informant's demonstrated reliability in the past and the independent, police verification of some of his story was sufficient to supply the magistrate with a 'substantial basis' for crediting the hearsay information. The credibility of the informant being established, there is no question but that the affidavit set out sufficient probable cause to justify the issuance of the search and seizure warrant.

There remains only to consider the appellant's further contention that the committing magistrate of the People's Court of Anne Arundel County, who issued the warrant in this case, was without jurisdiction to issue search and seizure warrants.

Article 52, Section 98B(9), creates the office of committing magistrate for Anne Arundel County. Subsection (a) thereunder provides that the committing magistrates:

'shall have throughout the county all the powers and jurisdiction vested by law in justices of the peace other than trial magistrates and substitute trial magistrates.'

Article 27, Section 551 (Search Warrants), spells out just what the powers and jurisdiction are which are vested by law in the justices of the peace with respect to search warrants. It provides, in pertinent part:

'Whenever it be made to appear . . . to any justice of the peace in this State, by a written application signed and sworn to by the applicant, accompanied by an affidavit or affidavits containing facts within the personal knowledge of the affiant or affiants that there is probable cause, the basis of which shall be set forth in said affidavit or affidavits to believe that . . . any property subject to seizure under the criminal laws of the State is situated or located . . . in or on any such building, apartment, premises, place or thing, then such . . . justice of the peace may forthwith issue a search warrant . . .'

The conferring of power and of jurisdiction is clear. The difficulty in this case arises because Article 52, Section 98B(9)(c), goes on to provide, in pertinent part:

'The committing magistrates and deputy committing magistrates shall sit at such times and places and shall perform such duties, including the issuance of warrants, the taking of bail bonds, the acceptance of collateral, and clerical functions as are assigned to them by the chief judge of the People's Court.'

At the suppression hearing, Chief Judge Thomas J. Curley, of the People's Court for Anne Arundel County, testified that it was his policy to request the committing magistrates of the county not to issue search warrants. He took the position because of his feeling that the committing magistrates of the county did not have sufficient legal training to evaluate questions of probable cause. On cross-examination by the State, however, he indicated that his policy was based not on legal authority but was 'a matter of personal preference.' He further indicated that it was several years earlier that he had made his feeling 'generally known.' There was no indication that he had ever communicated to the committing magistrate in this case any direct prohibition against the issuing of search warrants.

We feel that Article 52, Section 98B(9)(c), is directory in nature and is intended to foster the orderly administration of the People's Court of Anne Arundel County by giving to the chief judge thereof the power to assign duties and caseloads as he sees fit. We do not believe it was intended to diminish the official powers and the jurisdiction of the committing magistrates at the pleasure of the chief judge. We feel further that, in any event, the expression of a 'general indication' several years earlier of what was a 'personal preference' could not be deemed to have divested the committing magistrate in this case of his basic statutory authority to issue search warrants.

Judgments affirmed.

MOYLAN, Judge (concurring).

I concur in both the result reached and in the opinion of the Court. I feel constrained, however, to amplify upon the reasons why I feel the warrant before us here was inadequate in one regard but salvageable in another, and also to state the salutary purpose which, I believe, is being served by several recent and controversial Supreme Court decisions, notwithstanding the disesteem in which they are held in most law enforcement and many legal circles.

In Dawson v. State, 11 Md.App. 694, 276 A.2d 680, we had occasion to treat broadly the two-pronged test for evaluating hearsay information in a probable cause setting as that test was anticipated by Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, and Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; necessitated by Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; articulated by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; explicated by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; and obfuscated by United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723. ¹ In this appropriately entitled sequel (the appellant here is one Patrick Dawson), our focus is narrowed to Aguilar's 'first prong,' and, indeed, to a single aspect of that prong.

Conceptually, the Aguilar-Spinelli line of cases should pose little difficulty, having been but a natural and logically foreseeable next step in the gradual forging of Fourth Amendment doctrine.

The clear and unremitting command of the Supreme Court throughout this century has been that search and seizure by authority of a warrant is always to be preferred over a warrantless intrusion and,...