Hall v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Before MURPHY; ORTH
• Citation: Hall v. State, 247 A.2d 548, 5 Md.App. 394 (Md. App. 1968)
• Decision Date: 15 November 1968
• Docket Number: No. 62,62
• Parties: Randolph Joseph HALL, Jr. v. STATE of Maryland.

Page 394

5 Md.App. 394

247 A.2d 548

Randolph Joseph HALL, Jr. v. STATE of Maryland.

No. 62.

Court of Special Appeals of Maryland.

Nov. 15, 1968.

James W. Murphy, Baltimore, with Alan H. Murrell, Baltimore, on brief, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr. and Joseph R. Raymond, State's Atty. and Asst. State's Atty. for Baltimore City respectively, on brief, for appellee.

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

ORTH, Judge.

The appellant was found guilty generally by the court sitting as a jury in the Criminal Court of Baltimore under an indictment containing four counts charging violations of the lottery laws. He was sentenced to imprisonment for a term of 6 months and fined $1000, the sentence of imprisonment to be suspended upon payment of the fine and court costs. The sole contention on appeal from the judgment is whether there was probable cause for the issuance of a search warrant under the authority of which a search was conducted and articles seized thereby were received in evidence against the appellant at his trial.

Subsequent to the indictment of the appellant and prior to his trial, he filed a motion to quash the indictment. ¹ At the trial on the merits, the lower court found that the warrant was 'legally sufficient' and denied the motion.

The law relating to probable cause for the issuance of a search warrant is clear. When it is made to appear to a judge or justice of the peace of this State by a written application signed and sworn to by the applicant, accompanied by an affidavit containing facts within the personal knowledge of the affiant, that there is probable cause to believe that a crime is being committed by any individual or in a building within his territorial jurisdiction, and that evidence of the crime is upon the person or within the place to be searched, he may issue a search warrant. Salmon v. State, 2 Md.App. 513, 519, 235 A.2d 758; Md.Code. Art. 27, § 551.

'Probable cause, which is less than certainty or demonstration but more than suspicion or possibility, is to be determined by the judge or justice 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. In making his determination this judicial, hypothetical, 'cautious and prudent man' may give consideration to the special significance which objects, happenings and individuals may have conveyed to the trained, experienced and knowledgeable police officers who apply for the warrant.' Henson v. State, 236 Md. 518, 521, 204 A.2d 516, 518.

When the question of probable cause for the issuance of the warrant comes before the trial court, its consideration of whether or not there was probable cause should be confined solely to the affidavit itself. Smith v. State, 191 Md. 329, 62 A.2d 287, 5 A.L.R.2d 386, cert. den. 336 U.S. 925, 69 S.Ct. 656, 93 L.Ed. 1087; Scarborough v. State, 3 Md.App. 208, 238 A.2d 297. But it should be mindful, as we are when the question reaches us, of the observations so forcefully made by the Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. We summarized those observations in Frey v. State, 3 Md.App. 38, 45-46, 237 A.2d 774, 779:

'That the requirements of the Constitution are practical and not abstract, that search warrants must be tested and interpreted by magistrates and courts in 'a commonsense and realistic fashion,' that the preference to be accorded a warrant indicates that in a doubtful or marginal case a search under a warrant may be sustainable, where without one it would fail and that a 'grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting,' and finally that:

'This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. See Aguilar v. State of Texas, supra (378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 at 729). Recital of some of the underlying circumstances in the affidavit is essential (as it is under the Maryland statute) if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U.S. 257, at 270, 80 S.Ct. 725 at 735, 4 L.Ed.2d 697."

Although the law is clear, its application must necessarily be made on a case to case basis, as the facts stated in an affidavit accompanying the application for the warrant vary according to the circumstances of the particular case.

In the instant case the facts to show probable cause were based in the main part on the observations of an officer of the Baltimore City Police Department. It was stated in the affidavit that a complaint was received that violations of the lottery laws were being committed in Randy's Confectionery and in a 1963 blue Thunderbird automobile, Maryland license GR85-71. Randy's Confectionery, so designated by a sign on the front of the store, was a grocery store in the first floor of the premises 1436 Holbrook Street, Baltimore City located on the southwest corner of Holbrook and Oliver Streets. The officer 'watched in the vicinity of said premises' on each of three days. On 6 November 1967 he arrived about 9:40 A.M. and remained about an hour. During this period seven men and eight women entered the store. Two of the women were carrying 'small brown paper bags' when they entered but not when they left. About 10:28 A.M. a man, designated in the affidavit as the First Man, came out of the store, walked over to a 1963 blue Thunderbird, Md. license GR85-71 parked on the Oliver Street side of the store and was about to enter the car when a man, designated in the affidavit as the Second Man, walking across the street from the northwest corner of Holbrook and Oliver Streets, hollered to the First Man. The Second Man handed the First Man 'what appeared to be several slips of white paper and U. S. currency.' The First Man entered the car and drove away. On 8 November the officer arrived in the vicinity of the store about 9:55 A.M. and remained about two...