Hall v. State

• Decision Date: 18 May 1972
• Citation: 290 A.2d 803,15 Md.App. 363
• Parties: Edgar C. HALL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 363

15 Md.App. 363

290 A.2d 803

Edgar C. HALL v. STATE of Maryland.

Court of Special Appeals of Maryland.

May 18, 1972.

Joseph F. Lentz, Jr., Baltimore, for appellant.

Harry A. E. Taylor, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Charles O. Fisher, Jr., Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Argued before MORTON, ORTH and POWERS, JJ.

POWERS, Judge.

Appellant was convicted of several violations of the lottery laws in a non-jury trial in the Criminal Court of Baltimore on August 13, 1971.

Certain property introduced in evidence by the State had been seized on February 17, 1971, in the execution of a search warrant issued that day. Appellant filed a pretrial motion to suppress and exclude the evidence. His ground was that the affidavit supporting the application showed that when the officer heard the words that constituted the evidence of probable cause to justify the issuance of the search warrant, he was illegally upon the premises of the appellant. He does not argue that the facts in the affidavit, if legally obtained, failed to show probable cause.

The affidavit, made by Detective Bruce H. Hilgartner of the Baltimore Police Department, recited his observations of the premises 3807 Towanda Avenue, Baltimore, on February 10, 1971. He described the premises as a two-story brick row house with a porch front. The affiant went on to recite further observations of the premises on February 12, 1971. He said:

'While on the detail between 12:50 p. m. and 1:20 p. m. this date I observed three unidentified colored males and two colored females go up to the front door of 3807 Towanda Avenue at intervals and each, after knocking, would be admitted to the premises by someone on the inside. These persons stayed inside only a short time, when they would come back out the front of 3807 Towanda Avenue and walk away, leaving the vicinity.

About 1:24 p. m. after having walked up onto several porches in the 3800 block Towanda Avenue pretending to be a door-to-door salesman, I went up on the porch of 3807 Towanda Avenue and was standing on same when a colored female approximately 30-35 years, 5 0 , 130 lbs, who is herein known as the First woman and whom I had seen enter the front door of 3807 Towanda Avenue several minutes before, came back out the front door of 3807 Towanda Avenue and stood there holding the aluminum storm door open and talking to a male voice on the inside whom I was unable to see. After several words were exchanged I overheard the First woman state to the person inside 'Keep 720 in tomorrow and I'll stop by tomorrow night and pay you.' The First woman then closed the storm door and walked off of the porch and north on Towanda Avenue to Keyworth Ave. leaving the neighborhood.'

At the pretrial hearing on the motion to suppress, the detective testified that when he heard the unidentified woman talking through the open door to someone inside the house, he was in fact standing on the porch of 3809 Towanda Avenue, next door, and not on the porch at 3807. He said the error was typographical, and put in evidence his handwritten offense report which recorded that he was on the porch of 3809. After recessing the hearing to a later date, the judge who heard the motion amended the affidavit to read 3809 Towanda Avenue, and denied the motion to suppress.

Appellant contends that the affidavit cannot be amended, but even if it were, it would show that the detective was a trespasser on the porch next door, and the conversation he heard was still an illegal seizure.

If we assume that the evidence at the hearing showed conclusively that the detective was in fact on the porch at 3809 Towanda when he heard the woman speaking, and that there was in fact a typographical error in the affidavit, the error is immaterial to the question. The question is, 'Was probable cause shown at the time the search warrant was issued?' It can be shown only by facts supplied to the issuing judge within the four corners of the affidavit. We said in Dawson v. State, 11 Md.App. 694, at page 714, 276 A.2d 680, at page 690:

'The law has long been firmly settled that the court's consideration of the showing of probable cause will be confined solely to the four corners of the affidavit itself.'

In Dawson we quoted from Smith v. State, 191 Md. 329, at page 335, 62 A.2d 287, at page 289, where the Court of Appeals said:

'The better rule seems to be that the court's consideration of the showing of probable cause should be confined solely to the affidavit itself, and the truth of the alleged grounds stated in the affidavit cannot be controverted, as was done in the instant cases, by receiving the testimony of the accused and other witnesses.'

In Buckner v. State, 11 Md.App. 55, at pages 61 and 62, 272 A.2d 828, at page 833, we said:

'When a search warrant is challenged, the lower court, and the appellate court when the determination of the lower court is before it on appeal, must look for probable cause only in the affidavit itself and may not go outside it. Scarborough v. State, 3 Md.App. 208, 238 A.2d 297. However the affidavit should be interpreted in a common-sense and not in a hypertechnical manner, and the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants.'

But no matter how informal the language of an affidavit may be, and much latitude in this respect is permitted, the basic facts, as they are given, must be sufficient to support a finding of probable cause for the issuance of the warrant. If the facts as they are presented to the magistrate when the warrant is issued are not sufficient, then the warrant is illegal. It cannot be judged on any other facts, or as of any other time.

It can no more be made good by a subsequent showing of different facts than a good warrant can be...