Frey v. State

• Decision Date: 31 January 1968
• Docket Number: No. 83,83
• Citation: 237 A.2d 774,3 Md.App. 38
• Parties: William Randolph FREY and George Edward Peyton v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

Page 38

3 Md.App. 38

237 A.2d 774

William Randolph FREY and George Edward Peyton v. STATE of Maryland.

No. 83.

Court of Special Appeals of Maryland

Jan. 31, 1968.

Claude A. Hanley, Towson, for Frev.

Nelson W. Gatton, Towson, for Peyton.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, Samuel A. Green, Jr., L. Robert Evans and Charles E. Foos, State's Atty., Deputy State's Atty., and Asst. State's Atty., for Baltimore County, respectively, Towson, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

The appellants, William Frey and George Peyton, together with a co-defendant, James Peyton, were jointly indicted under two separate indictments, charging (together with allied counts) (a) breaking the dwelling of Louis J. Barry on March 22, 1966 with intent to steal, and (b) breaking the storehouse of Everett Smith on April 7, 1966 with intent to steal. The court, sitting without a jury, (Maguire, J. in the Circuit Court for Baltimore County) convicted appellants of housebreaking under the Barry indictment, and storehousebreaking and grand larceny under the Smith indictment, and imposed sentences of five years on each count, to run concurrently. James Peyton was acquitted.

Appellants' principal contentions on this appeal are that there was no probable cause for the issuance of the search warrant pursuant to which their apartments were searched, and that, in any event, the warrant was illegal as constituting a general one prohibited by both the State and Federal Constitutions.

The evidence showed that on May 12, 1966, Corporal Maddox of the Baltimore County Police Department applied to a judge of the Supreme Bench of Baltimore City for a search warrant, outlining in his application and affidavit therefor, in considerable detail, these facts: that the affiant (Maddox) had met with the same informant on three separate occasions- April 16, April 25, and May 9, 1966; that the informant told him that the appellants, and John Peyton, had stolen a safe from the Oak Grove Apartment rental office, and another safe from the Julius Requard rental office in Dundalk, abandoning both safes in a wooded area, the location of which the informant designated; that the informant's information concerning the safe burglaries, together with the modus operandi of the crimes, correctly corresponded with police records; that one of the stolen safes was not recovered until the very day that the informant told the police where it could be located; that the informant told police that a 'torch set' had been stolen in the Requard burglary which appellant Frey had given to him; that the informant gave the torch set to the police, which police verified as that stolen from Requard; that the informant told police that the appellants, together with John Peyton and William Wingate, had broken into the Sterling T. V. Shop on April 22, 1966; that the police verified the occurrence of this crime, and learned that a 1958 Chevrolet, with Maine license plates, belonging to appellant Frey, was seen in close proximity to the burgled premises on the night of the crime, and that appellant Peyton, William Wingate and John Peyton, were seen by police near the burgled premises at approximately the time the crime was committed; that the informant also stated that the appellants, together with John Peyton and William Wingate had also broken into a home at a location which he generally described, and stolen therefrom a number of articles, some of which he designated, and with respect thereto, stated that the stereophonic record player stolen in that burglary could be found in appellant Peyton's living room; that a portable television set so stolen was located in appellant Frey's apartment; that a transistor radio stolen in said burglary could be located in the apartment of John Peyton, and that a camera stolen in the burglary could be found in Wingate's apartment. The affidavit stated, in effect, that the police verified the fact that a burglary occurred in the general area described by the informant at the home of Louis Barry, and that articles were stolen therefrom of a description similar to that given by the informant.

The application for the search warrant recited that on the basis of the stated facts the affiant believed that the informant was reliable, and that articles stolen in the burglary of the Barry house 'are presently located on the premises of 2008 East Pratt Street, and that the said premises has been kept, used and occupied by William Frey, William Wingate, George Peyton, and John Peyton * * *.' On this information, the affiant requested a search and seizure warrant be issued authorizing him to 'enter and search the said premises.'

The search warrant was issued on May 12, 1966. It recited that there was probable cause to believe that a misdemeanor was being committed 'on the premises known as 2008 East Pratt Street, a two-story brick apartment house, * * * the said premises being an apartment house.' The affidavit of Maddox was included as a part of the search warrant. The warrant commanded the police, inter alia, 'to enter and search the said premises' and 'to seize all fruits and instrumentalities having to do with the larceny and receipt of the aforementioned stolen goods, believed by the affiant to be kept in Room #1 and Room #2 of 2008 Est Pratt Street * * *.'

On May 13, 1966, Corporal Maddox, together with an officer of the Police Department of Baltimore City, went to the apartment building at 2008 East Pratt Street to execute the search warrant. They first located appellant Frey's apartment, it being apartment #1 in the basement of the building. They read the search warrant to him and thereafter searched his apartment seizing numerous articles therefrom which had been stolen in the Barry burglary, as well as articles stolen at the time of the Smith storehousebreaking. The officers thereafter went to appellant Peyton's apartment, it being on the first floor in the rear of the building and designated apartment #2. They read the warrant to Mrs. Peyton, and thereafter seized the stereo record player, stolen from the Barry residence and specifically described in the warrant, as well as other articles stolen at the time of that burglary, together with a number of other items stolen during the Smith storehousebreaking. ¹

After searching the appellants' apartments, Maddox 'went into' the other two apartments in the building looking for appellant Peyton and Wingate, a right which he thought he had under the warrant. He was given an electric toaster by the second floor tenant, a relative of the appellant Peyton's sister, who told him that the toaster had been obtained from appellant Frey. Neither the toaster nor any other evidence taken from other than the appellants' apartments were introduced in evidence at the trial. Maddox testified that in searching for the stolen property, the only apartments he considered were those occupied by the appellants.

The building landlord testified that there were four apartments in the building; that his tenants were 'very transient,' that they moved in and out, that a 'whole gang' lived with appellant Peyton, including James Peyton and, while not clear from his testimony, possible John Peyton. So interrelated were the inhabitants of the building that during the trial they were referred to as residing in 'Peyton Place.'

Appellants' contention that there was no probable cause of the issuance of the search warrant is seemingly predicated on the premise that the affidavit was defective since it was based on information provided by an unidentified informant. That an affidavit may be based on hearsay information provided by an unidentified informant, and need not reflect the direct personal observations of the officer, is settled beyond question. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Scott v. State, 1 Md.App. 481, 231 A.2d 728. The probable cause necessary for the issuance of a search warrant requires a proper showing not only that a crime has been or is being committed, but also that the evidence of the crime is upon the person or within the place or thing to be searched. Salmon v. State, 2 Md.App. 513, 235 A.2d 758. It is thus essential that the magistrate to whom application is made for a search warrant be informed of some of the underlying circumstances from which the informer concluded that the crime was being or had been committed, and that, as here, the stolen goods could be found in a designated place; and, additionally, some of the underlying circumstances from which the officer concluded that the informer was credible or his information reliable. Aguilar v. State of Texas, supra; Scott v. State, supra. Thus, a general statement received from an unnamed informant, who is only alleged to be 'considered reliable,' without any reason given as to the basis of that conclusion, would not constitute probable cause for the issuance of the search warrant. See Gatewood v. State, 244 Md. 609, 224 A.2d 677.

Tested by these standards, and bearing in mind that the presence or absence of probable cause to support the search warrant must be determined solely from the allegations of the application for the warrant, Henderson v. State, 243 Md. 342, 221 A.2d 76; Clayton v. State, 1 Md.App. 500, 231 A.2d 717, we think it too clear to require discussion that sufficient underlying circumstances were set forth in the affidavit to demonstrate that the police could properly conclude that the informer was reliable. While the affidavit does not recite any particulars to show the basis or the source of the informer's knowledge of appellants' involvement in the burglaries, and there is no indication in the affidavit that the informer had, in fact, seen the specified stolen goods in appellants' apartments, or in the apartments of John Peyton or William Wingate (Cf. Rugendorf...