Grimm v. State, 428

• Decision Date: 12 August 1969
• Docket Number: No. 428,428
• Citation: 7 Md.App. 491,256 A.2d 333
• Parties: Elwood W. GRIMM v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 491

7 Md.App. 491

256 A.2d 333

Elwood W. GRIMM v. STATE of Maryland.

No. 428.

Court of Special Appeals of Maryland.

Aug. 12, 1969.

Howard Gilbert, Jr., and Kenneth J. Mackley, Hagerstown, with whom were Paul Ottinger, Hagerstown, and Robert H. Reinhart, Cumberland, for appellant.

Thomas M. Downs, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., David K. Poole, Jr., State Atty. for Washington County and Lynn Meyers, Deputy State Atty. for Washington County, for appellee.

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

MURPHY, Chief Judge.

On September 27, 1968 appellant Elwood W. Grimm was found guilty by a jury in the Circuit Court for Allegany County of grand larceny, specifically the theft of four aircraft jigs alleged to be the property of the United States, and was sentenced to imprisonment for an indeterminate term not to exceed one year and fined $1,000.00.

The principal question raised by this appeal is whether the search warrant authorizing a search of appellant's property was properly issued. We hold that it was not. As a result, evidence seized under it was improperly admitted at trial over appellant's objection, and, as such evidence contributed materially to his conviction, that conviction must be reversed.

On November 17, 1967, pursuant to information received from informants, William Mason, deputy sheriff of Washington County, applied for a search warrant to search appellant's junk yard for various aircraft tools stolen on June 11, 1967 from the premises of the Fairchild Hiller Corporation near Hagerstown, Maryland. The search warrant was issued and executed that day and a metal tag alleged to have been attached to one of the stolen aircraft jigs was found in appellant's junk yard.

The application for the search warrant stated, in pertinent part, that 'Elwood W. Grimm utilizes said property as a salvage yard upon which the affiant (Mason) has personal knowledge and probable cause to believe is being kept and stored certain property known to have been stolen from the premises of Fairchild Hiller Corporation.' (Emphasis added.) The application further stated that the affiant Mason 'hereby states that he was advised by reliable persons whose identities he desires not to disclose at this time because of jeopardy to their persons, that the said Elwood W. Grimm * * * has secreted certain stolen property previously described above on said premises * * * and said reliable informants did further state that they saw and identified the previous mentioned stolen property as being on these premises on or about June 12th, 1967 and that they have reason to believe that some, if not all, of said property is still situated there presently.' (Emphasis added.)

It is well settled that the Fourth Amendment requires that a search warrant be issued only after a neutral and detached magistrate himself sifts the facts presented to him by policemen to determine whether probable cause exists for the issuance of that warrant. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. Obviously, to sift properly, the issuing magistrate must have the relevant facts before him which the affiant alleges as the basis of probable cause; otherwise, the magistrate would be obliged to accept the affiant's conclusions and thus would 'serve merely as a rubber stamp for the police.' Aguilar v. Texas, 378 U.S. 108, 112, 84 S.Ct. 1509, 12 L.Ed.2d 723.

It is, of course, well settled 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. Tucker v. State, 244 Md. 488, 224 A.2d 111; Henderson v. State, 243 Md. 342, 221 A.2d 76; Burrell v. State, 207 Md. 278, 113 A.2d 884; Scarborough v. State, 3 Md.App. 208, 238 A.2d 297; Clayton v. State, 1 Md.App. 500, 231 A.2d 717. In other words, the court's determination of the existence of probable cause must be confined solely to the affidavit itself, and evidence outside the affidavit, no matter by whom produced or how, is not relevant to the linquiry of probable cause. Smith v. State, 191 Md. 329, 62 A.2d 287, 5 A.L.R.2d 386; Sessoms v. State, 3 Md.App. 293, 239 A.2d 118. See Scott v. State, 4 Md.App. 482, 243 A.2d 609.

We think Mason's bald and conclusory statement that he had 'personal knowledge and probable cause to believe' that stolen aircraft parts were being kept on appellant's land is insufficient to establish a factual foundation for probable cause. Mason did not state in his affidavit that he actually saw the contraband on appellant's land, nor did he set out any facts therein which might have constituted 'personal knowledge.' We are unwilling to conclude that Mason's mere assertion that he had 'personal...