Dawson v. State

• Decision Date: 30 April 1971
• Docket Number: No. 485,485
• Citation: 276 A.2d 680,11 Md.App. 694
• Parties: Donald Lee DAWSON and Frances M. Dawson, a/k/a Francis M. Dawson, v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 694

11 Md.App. 694

276 A.2d 680

Donald Lee DAWSON and Frances M. Dawson, a/k/a Francis M. Dawson, v. STATE of Maryland.

No. 485.

Court of Special Appeals of Maryland.

April 30, 1971.

Robert C. Heeney, Rockville, for appellant.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, State's Atty. for Prince George's County and Edmond B. O'Connell, Asst. State's Atty. for Prince George's County on brief, for appellee.

Argued before MURPHY, C. J., and MOYLAN, and POWERS, JJ.

MOYLAN, Judge.

The appellants, Donald Lee Dawson and Frances M. Dawson, husband and wife, were convicted in the Circuit Court for Prince George's County by a jury, presided over by Judge Samuel J. DeBlasis, of unlawfully maintaining a premises for the purpose of selling lottery tickets in violation of Article 27, Section 360, of the Annotated Code of Maryland. The appellant Donald Lee Dawson was also convicted of unlawfully betting, wagering or gambling on the results of horse races in violation of Article 27, Section 240.

On this appeal, they raise three contentions:

(1) That the search warrant for their home was issued and executed without adequate probable cause having been shown to justify its issuance;

(2) That the trial court committed error in refusing to require the State to reveal the name of the confidential informant mentioned in the application for the search warrant; and

(3) That the evidence was legally insufficient to justify the convictions of either of the appellants.

The first contention requires us to consider whether the application for the search warrant revealed probable cause for the issuing magistrate to belive that illegal gambling activities were being conducted at the appellants' home at 8103 Legation Road in Hyattsville. The affidavit offered in support of the application for the search warrant contained both the direct observation of Detective John M. Fyfe and hearsay information furnished to Detective Fyfe by a confidential source.

The Dual Analysis of Probable Cause

The existence of probable cause to justify the issuance of either a search and seizure warrant or an arrest warrant ¹ may be predicated upon either or both of two broad categories of information-1) the direct observation of the affiant applying for the warrant (or of the affiants on supporting affidavits, see Price v. State, 7 Md.App. 131, 254 A.2d 219; Scott v. State, 4 Md.App. 482, 243 A.2d 609) or 2) hearsay information furnished to the affiant by someone else and then recited by the affiant in his affidavit. It is axiomatic that probable cause may be based upon the direct observation of the affiant himself. Buckner v. State, 11 Md.App. 55, 61, 272 A.2d 828; Hall v. State, 5 Md.App. 394, 396, 247 A.2d 548. It is equally well-established that probable cause may be based upon hearsay information alone and need not reflect the direct personal observation of the affiant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723; Scott v. State, 1 Md.App. 481, 231 A.2d 728; Grimm v. State, 6 Md.App. 321, 326, 251 A.2d 230. It follows that probable cause may also be based upon a combination of direct observation and hearsay information. Aguilar, supra; Spinelli v. United States 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Frankis v. State, Md.App., 275 A.2d 532 (filed March 31, 1971); Lashley v. State, 10 Md.App. 136, 268 A.2d 502; Iannone v. State, 10 Md.App. 81, 267 A.2d 812.

Confusion somehow manages to creep into the cases, however, where the affidavit offered to support probable cause is based upon the mixed predicate of both direct observation and hearsay information. That confusion is engendered by the failure to grasp the unifying principle-to appreciate that both of the broad categories of information are evaluated by the same general standards of measurement. The apparent difference in the standards is simply one of surface application and not of theoretical significance.

Whether the information being evaluated is the direct observation of the affiant or is hearsay information, the issuing magistrate is required to perform the same intellectual surgery. In determining the existence vel non of probable cause, the magistrate must make two distinct determinations. The number and the nature of these determinations do not vary, whether the specimen being analyzed is direct observation or hearsay information. He must:

(1) Evaluate the truthfulness of the source of the information; and

(2) Evaluate the adequacy of the factual premises furnished by that source to support the validity of the source's conclusion.

In the first instance, he is judging the integrity of a person. In the second instance, he is judging the logic of a proposition. These functions are distinct. They are the direct analogues of those other two functions performed by the ultimate finder of fact who 1) assesses the credibility of a witness and 2) then assesses the weight to be given the testimony of that witness.

In evaluating the truthfulness of the source of the information, the magistrate is presented with no problem in dealing with the affiant-observer. 'The oath affirms the honesty of the statement and negatives the lie or imagination.' Spinelli, 393 U.S. at 423, 89 S.Ct. at 592 (concurring opinion by White J.). The oath, as a trustworthiness device, establishes, per se, the credibility of the affiant-source and, thereby, the reliability of his directly observed information. Where the source of the information, however, is an absent, non-swearing declarant (an informant), the pathway to the establishment of that source's credibility is more circuitous. The issuing magistrate must have, as a substitute for the oath, some other reason to be persuaded of the credibility of the source of the information.

In deciding whether he is so persuaded, the magistrate must perform the same analysis whether the non-swearing source is named or unnamed. Spinelli, at 424, 89 S.Ct. 584 (concurring opinion by White, J.); Kist v. State, 4 Md.App. 282, 285, 242 A.2d 586. His evaluation, in theory, will be the same in either case. The practical distinction is that in dealing with a named source, the very naming of the source and the relationship of the source to the observed information may go a long way (or even be sufficient unto itself), under the facts of a particular case, to establish the credibility of that source or the reliability of his information. Kapler v. State, 194 Md. 580, 71 A.2d 860; Ward v. State, 9 Md.App. 583, 591-592, 267 A.2d 255; Grimm v. State, 6 Md.App. 321, 328, 251 A.2d 230. See also Taylor v. State, 238 Md. 424, 209 A.2d 595; Jones v. State, 242 Md. 95, 218 A.2d 7; Knight v. State, 7 Md.App. 282, 254 A.2d 379 (although these cases involve probable cause for warrantless arrests based upon hearsay information, the principle involved as to the trustworthiness of a witness-informant would also apply to cases involving applications for warrants). Compare Kist v. State, supra.

Where the source of the information is unnamed, however, the method of persuading the magistrate is more involved. He must be furnished sufficient background information for him to judge for himself the credibility of the unnamed source and/or the reliability of that source's information. Spinelli, 393 U.S. at 416, 89 S.Ct. 584; Iannone v. State, supra; Grimm v. State, 6 Md.App. 321, 251 A.2d 230. The credibility of the person and the reliability of the information are but alternative aspects of the same trustworthiness phenomenon. To conclude that trustworthiness is probably present the magistrate must be convinced either 1) that the source himself, as a person, is inherently honest and credible, see Sessoms v. State, 3 Md.App. 293, 295-196, 239 A.2d 118, or 2) in the absence of such proof of character of the man, that the information is furnished by that source under circumstances redolent with insurances of trustworthiness. Spinelli, 393 U.S. at 425, 89 S.Ct. 584 (concurring opinion by White, J.). See also Buckner v. State, supra. Credibility and reliability may operate alternatively or in combination to establish probable trustworthiness.

In evaluating the credibility of different types of sources, the practical applications may vary, but the common denominator of all such decisions is that the issuing magistrate must have before him enough circumstances to be able to judge for himself the honesty of the source of the information, whether that source be an affiant, a named non-swearing informant or an unnamed non-swearing informant. The magistrate may no more accept an affiant's assertion that his source (named or unnamed) is credible in lieu of a recitation of facts from which the magistrate may draw that conclusion for himself than he may accept an affiant's assertion that the affiant himself is credible as a substitute for the affiant's taking of the oath. Spinelli, 393 U.S. at 424, 89 S.Ct. 584 (concurring opinion by White, J.); Gatewood v. State, 244 Md. 609, 224 A.2d 677; Grimm v. State, 7 Md.App. 491, 494-495, 256 A.2d 333. The concluding, in either case, is only for the magistrate.

Once the magistrate has decided that the information is trustworthy, he has still only half completed his ultimate determination. He must still decide what the information is worth. He has decided that the source is not lying; but he has not yet decided whether the source is mistaken. The magistrate's second function is now to evaluate the information which he is accepting as true and to see what probabilities emerge from that available data. Again, he may not accept the conclusion of either the affiant-observer or the non-swearing informant. ² He must take from either of those sources his facts and then arrive at his own conclusion as to the significance of those facts. Spinelli, 393 U.S. at 416, 89 S.Ct. 584; Buckner v. State, supra, 11 Md.App. at 62...