Grimm v. State

• Decision Date: 17 March 1969
• Docket Number: No. 176,176
• Citation: 251 A.2d 230,6 Md.App. 321
• Parties: James Michael GRIMM v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 321

6 Md.App. 321

251 A.2d 230

James Michael GRIMM v. STATE of Maryland.

No. 176.

Court of Special Appeals of Maryland.

March 17, 1969.

Robert Gordon King, Towson, and Louis Peregoff, Baltimore, on the brief, for appellant.

Donald Needle, Asst. Atty. Gen., Baltimore, with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty. for Baltimore County, and Edward A. DeWaters, Jr., and Robert A. DiCicco, Asst. State's Attys. for Baltimore County, Baltimore, on the brief, for appellee.

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

MURPHY, Chief Judge.

On September 1, 1967 at approximately 4:55 a.m. Francis McCoy, a driver for the New Eastern Cab Company, was found robbed and murdered near his cab in the Middlesex homes area in Baltimore County. At 5:25 a.m. that same morning Officer John Breneman went to appellant's trailer at 55 Cool Breeze Trailer Camp and arrested him and Jerry Cooper, his companion, for the crimes.

On May 13, 1968, appellant was convicted by the court sitting without a jury of robbing McCoy with a deadly weapon, of the first degree murder of McCoy, and of carrying a deadly weapon openly with intent to injure McCoy. He was sentenced to a life term under the jurisdiction of the Department of Correction. His principal contention on this appeal is that several guns and some shells taken from his trailer approximately twelve hours after he had been illegally arrested were improperly received in evidence against him at the trial because the search warrant pursuant to which they were seized was constitutionally defective for failure to show probable cause for its issuance.

I

Officer Breneman, the affiant for the search warrant, recited in his application that there was probable cause to believe that 'the instrumentalities used in the commission of an armed robbery and homicide, * * * thought to be a certain pistol or pistols' were located within appellant's trailer home. In support of this conclusion, Breneman recited in the application that at 2:30 a.m. on September 1, Officer William Myers had investigated a prowler call, during which he encountered two white males who identified themselves by name as the appellant and Jerry Cooper, the appellant giving his address as 55 Cool Breeze Drive; and telling Myers that he was on his way home at that time; that appellant was observed by Myers to be 5 10 tall and Cooper about 5 9 , and wearing a black suit and blue shirt; and that after Myers satisfied himself that these men were not the suspected prowlers, he drove them to a phone booth where they made a phone call at 2:45 a. m., shortly after which a New Eastern cab arrived and picked them up.

Breneman further recited in his affidavit that at 3:00 a. m. that same morning he observed at a distance two white males emerge from Cedar Drive (near the Cool Breeze Trailer Park) and enter a sheltered bus station; that ten minutes later a New Eastern cab stopped and they got in, but immediately thereafter got out and returned to the waiting station; that ten minutes later a second New Eastern cab came by and picked up the two men; and that one of the white men was 5 10 to 5 11 and was wearing dark clothing, and the other white male was also 5 10 to 5 11 .

Breneman then stated in his application that at 4:00 a. m. a call was made to all police cars to 'locate a New Eastern cab last known to be going to 840 Arncliff Road'; that thereafter Officer J. Zulauf, assigned to the Essex Station, observed New Eastern cab $1348 parked near the Baltimore County pumping station and also saw a body lying near the cab, bleeding from the head; that upon investigation, Zulauf observed a wallet on the ground next to the body and noticed that the individual's rear pocket had been ripped off; and that at 4:55 a. m. Zulauf radioed that he had located the missing cab and 'also a man who had been badly beaten.' Officer Myers, who overheard Zulauf's call, radioed Zulauf that he had seen two white males whom he named as appellant and Cooper, enter a New Eastern cab.

Breneman further recited in his application for the search warrant that he knew both appellant and Cooper and knew that appellant lived at 55 Cool Breeze Trailer Park; that he then proceeded to appellant's trailer and was admitted to the premises by appellant's father; and that he arrested appellant and Cooper, who were then in bed, for the robbery and murder of the cab driver.

The affidavit further specified that at 8:55 a. m. Officers Myers and Neuner interviewed Johnie Milom, another nighttime New Eastern cab driver and were told by him that at 2:50 a. m. he picked up two men and took them to the Cool Breeze Trailer Park at Martin Boulevard and Cedar Drive; that at 3:05 a. m. he observed the same two men standing at the Cool Breeze Trailer Park and that they hailed his cab and asked to be taken to 840 Arncliff Road; that because he had another call, he called McCoy's cab over his radio and asked McCoy to pick them up; that McCoy acknowledged that he would pick them up and that at 3:15 a. m. he (Milom) was advised by his dispatcher that McCoy 'was in route to Arncliff'; and that he then requested the dispatcher to call McCoy to deliver a message for him but the dispatcher thereafter could get no response from McCoy's cab.

The search warrant application also stated that Luther Hawarth owner of the New Eastern Cab Company, related that McCoy's taxicab manifest showed that he had collected $22.60 during the course of the evening, and that Detective Sergeant Roemer had examined decedent's wallet and person at the scene of the crime and found that neither contained any money. Breneman further stated in the application that the Baltimore City morgue report indicated that McCoy had been shot numerous times, and that two .38 caliber slugs and one .22 caliber slug had been recovered from his body.

The search warrant was obtained between 2:00 p. m. and 3:00 p. m. on September 1 and was executed at approximately 4:40 p. m. the same day. As a result of the search of appellant's trailer, a .22 caliber sawed off rifle and a .38 caliber revolver and five spent shells were found and were introduced in evidence, together with expert testimony that these were the murder weapons.

It is well settled that the presence or absence of probable cause to support a search warrant must be determined solely from the allegations of the application for the warrant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Tucker v. State, 244 Md. 488, 224 A.2d 111; Hall v. State, 5 Md.App. 394, 247 A.2d 548. It is equally well settled that probable cause, which is less than certainty or demonstration but more than suspicion or possibility, is to be determined by the judge who issues the warrant, and if a prudent and cautious man would be justified from the facts presented to show its existence in believing that the offense had been or was being committed, the warrant properly may be issued. Henson v. State, 236 Md. 518, 204 A.2d 516; Salmon v. State, 2 Md.App. 513, 235 A.2d 758. It is thus clear that evidence which is sufficient for conviction is not required for the issuance of a search warrant. Frantom v. State, 195 Md. 163, 72 A.2d 744; Propst v. State, 5 Md.App. 36, 245 A.2d 88. In other words 'only the probability, and not a prima facie showing of criminal activity is the standard of probable cause.' Spinelli v. United States, 89 S.Ct. 584, 21 L.Ed.2d 637, decided January 27, 1969.

It is also settled beyond question that an affidavit for a search warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant, so long as the magistrate is informed of some of the underlying circumstances supporting the affiant's conclusion. United States v Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; Aguilar v. Texas, supra; Sessoms v. State, 3 Md.App. 293, 239 A.2d 118; Frey v. State, 3 Md.App. 38, 237 A.2d 774; Scott v. State, 1 Md.App. 481, 231 A.2d 728. More particularly, where the affidavit is based on hearsay, it must set out some of the underlying circumstances from which the affiant could reasonably conclude that the hearsay information was reliable and that the items sought to be seized were within the place to be searched. See Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887; Scott v. State, 4 Md.App. 482, 243 A.2d 609; Kist v. State, 4 Md.App. 282, 242 A.2d 586. It has been held that probable cause exists where a 'substantial basis' is shown for the magistrate to conclude that the items to be seized are 'probably' within the place to be searched. Aguilar v. Texas, supra; Rugendorf v. United States, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

Within this constitutional framework, affidavits of probable cause are to be tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, supra; the determination of a magistrate that probable cause exists should be paid great deference by reviewing courts, Jones v. United States, supra; and when determining whether an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants, United States v. Ventresca, supra.

Considering the allegations of Officer Breneman's application for the warrant in light of these principles, we think that probable cause for the issuance of the search warrant was properly shown. The affiant, a member of the investigating police team, recited in his affidavit that he had information from a police officer (Myers) that appellant and Cooper had entered a New Eastern cab at...