Everhart v. State, 118

• Citation: 315 A.2d 80,20 Md.App. 71
• Decision Date: 13 February 1974
• Docket Number: No. 118,118
• Parties: Michael Ashton EVERHART v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 71

20 Md.App. 71

315 A.2d 80

Michael Ashton EVERHART v. STATE of Maryland.

No. 118.

Court of Special Appeals of Maryland.

Feb. 13, 1974.

Frederick R. Joseph, Hyattsville, with whom were Feissner, Kaplan, Smith, Joseph & Greenwald, Hyattsville, and William Leckemby, Frederick, on the brief, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Robert S. Rothenhoefer, State's Atty. for Frederick County, on the brief, for appellee.

Argued before MORTON, MOYLAN and MOORE, JJ.

MOYLAN, Judge.

The exclusionary rule of evidence, a child of controversy since its birth in 1901, has always played to at-best mixed reviews. The present appeal by Michael Ashton Everhart from his conviction by a Frederick County jury, presided over by Judge Samuel Barrick, of 1) maintaining a common nuisance and 2) possession of marihuana prompts a first-impression consideration of the applicability of that exclusionary rule to the ex parte, in camera proceeding wherein a magistrate determines that probable cause exists for the issuance of a search and seizure warrant.

We will set the stage procedurally. On May 11, 1972, Sergeant Carl R. Harbaugh of the Maryland State Police applied for a search warrant to search 1) coincidentally, a 1966 Lincoln Continental owned by one Jerry Wayne Lawson, and 2) of primary concern, a farmhouse (particularly described and located) on the outskirts of Frederick known as 'the Nathan Doody farm.' The probable cause was set out fully in the four and one-half page application. District Court Judge Byron Thompson issued the warrant. The resultant search was executed on May 19, 1972. The inventory of approximately 200 items seized consumed four and one-half closely typewritten pages. Included was a broad variety of regular pipes, water pipes, bamboo pipes, numerous scales, weights, eyedroppers, gelatin capsules and baggies, measuring spoons and syringes, hypodermic needles, wire screens, homemade cookers, cherry incense and incense candles, a veritable rainbow of colored pills, cigarette papers, myriad evidence of marihuana and seventy-seven marihuana plants.

The two-count indictment against the appellant was handed down on June 22, 1972. The appellant filed an essentially three-point Motion to Suppress on September 18, 1972. On September 25, 1972, a full hearing was conducted on the motion by Judge Barrick. By Memorandum and Order of Court, filed on September 29, 1972, the Motion to Suppress was denied. The first of the appellant's eight contentions goes to that denial.

The point, in this regard, which the appellant now makes, and to which we will therefore confine our analysis, is not that there was any procedural infirmity in the suppression hearing but only that 'there was no probable cause for the issuance of the search warrant.' Focusing the issue still more narrowly, the precise question is whether there was probable cause for the search of 'the Nathan Doody farm.'

As to the person of Jerry Wayne Lawson and as to his 1966 Lincoln Continental, there was probable cause in abundance. On April 12, 1972, an undercover agent of the Federal Bureau of Narcotics spoke to Lawson, standing beside his Lincoln, on the parking lot of a Frederick bowling alley. Lawson agreed to sell the agent $50 worth of heroin later that evening. At 8 p. m. that evening, the undercover agent met Lawson by appointment on the same parking lot, and was informed by Lawson that he could not obtain heroin on that day but 'would be obtaining some at a later date and the transaction would then be made.' While awaiting the arrival of Lawson on that evening, the undercover agent met several known and suspected drug abusers who indicated that they were also waiting to contact Lawson in order to purchase drugs. On April 22, 1972, two Frederick City policemen, while maintaining surveillance on the above-mentioned parking lot, observed Lawson in his 1966 Lincoln Continental and observed one Dorothy May Boyd, a known and convicted heroin addict, make frequent short visits to the Lincoln. A second known and convicted heroin addict, designated by name, was seen to make brief contact with Lawson and with the Lincoln. The warrant application mentioned further that Lawson had pleaded guilty to a narcotics violation in July, 1970. What remained to be established in the warrant application was the nexus between Lawson and his 1966 Lincoln Continental, on the one hand, and the Nathan Doody farm, on the other hand.

Three references were made in the warrant application to the farm. One was this:

'That on May 2, 1972 Joe Lewis Petty, a known heroin addict, and distributor, was arrested and charged with several Breaking, Entering, and Larcenies; And

During the course of the investigation, while conversing with your Affiant and other State Police Officers the said Joe Lewis Petty stated he visited the aforesaid Jerry Wayne Lawson on May 1, 1972 at the previously described two story dwelling, located on the Nathan Doody farm, south of State Route 26, in an effort to 'make a deal' concerning purchases of heroin . . .'

Although that information did not necessarily point to the farm as the hiding place or 'stash' of the contraband drugs, it did go toward establishing some nexus between Lawson himself and the farm. The information came, to be sure, from a secondary source. There is no problem with the 'basis of knowledge' prong of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), since the secondary source explicitly spoke from firsthand knowledge. We are persuaded, moreover, that there is little, if any, problem with the 'veracity' prong of Aguilar. Significantly, the secondary source is not anonymous but named-'Joe Lewis Petty.' It appears, furthermore, that he was not a regular police informant but was a defendant, arrested and charged, who was making admissions under police interrogation. As such, he would appear to have been making a genuine 'declaration against penal interest' such as to satisfy not simply the plurality of the Supreme Court in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), but even the four-man minority represented by Justice Harlan. See Stanley v. State, 19 Md.App. 508, 313 A.2d 847. The independent information, developed directly by the police, confirming that Lawson dealt in drugs, verified, moreover, in significant measure the story told by this informant and, therefore, bolstered his 'veracity' under the augmentation technique spelled out in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), if his 'veracity' arguably needed any such bolstering.

The second reference to the farm was:

'That on May 6, 1972 the previously mentioned past proven, confidential and reliable informant advised your Affiant that prior to the arrival of the aforementioned Tfc. John W. Reburn and Det. Lt. Paul W. Mossburg, the said Jerry Wayne Lawson had sold heroin to a known drug user;'

Although, from an earlier reference to that same informant (not Joe Lewis Petty), his marginal 'veracity' might have been establishable under a combination of Aguilar and Spinelli, his 'basis of knowledge' for the reference to the farm was in no event set forth, either explicitly or implicitly, and will not be considered by us in weighing the probable cause as to the farm.

The third reference made in the warrant application to the farm-the information which goes to the heart of the appellant's present contention-was as follows:

'That on May 4, 1972, Tfc. John W. Reburn, Maryland State Police, and Detective Lieutenant Paul W. Mossburg, Frederick City Police Department, went to the aforesaid two story dwelling located on the Nathan Doody farm south of State Route 26 and obtained a large amount of narcotic and restricted drugs that had been reported stolen from the Parkview Medical Center on May 3, 1972; And

That the aforesaid Jerry Wayne Lawson was present at the aforementioned two story dwelling at the time officers obtained the stolen drugs;'

The appellant mounted a strenuous attack upon this information on the ground that it was come by in the course of an unconstitutional search and seizure. Judge Barrick found it unnecessary to decide whether the information was legitimately in the probable cause equation. In his Memorandum and Order denying the Motion to Suppress, he found the information superfluous:

'Assuming without deciding that part of the drugs seized on May 4, 1972, are not admissible in evidence, that alone will not suffice in determining probable cause in the issuance of the search warrant. The inadmissibility of that part of the evidence at trial would not warrant the suppression of all the evidence on the theory that there was not probable cause for the issuance of the search warrant. If we were to exclude that part of the evidence allegedly illegally seized, there is still more than ample facts in the application to establish probable cause for the issuance of the search warrant. The application and affidavit outlined numerous facts on which Judge Thompson had probable cause for effecting a search warrant for the 1966 Lincoln Continental and the dwelling located on the Nathan Doody farm.'

Upon our constitutionally mandated, independent review, we are not persuaded that the information was superfluous. Although purely redundant as to the person of Lawson himself, and silent as to his 1966 Lincoln Continental, it is the hard core of probable cause going to the farm. We believe, however, that the information was legitimately in the probable cause equation.

The suppression hearing went, of course, to the legitimacy of the May 19th search and seizure, the fruits of which were the primary evidence against the appellant. The appellant's cry of 'foul' went not to the May 19th search itself, but rather to the earlier police conduct of May 4 which contributed to the probable cause for the May 19th search. It is important...