Hignut v. State

• Decision Date: 06 April 1973
• Docket Number: No. 238,238
• Citation: 303 A.2d 173,17 Md.App. 399
• Parties: Albert Francis HIGNUT, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 399

17 Md.App. 399

303 A.2d 173

Albert Francis HIGNUT, Jr. v. STATE of Maryland.

No. 238.

Court of Special Appeals of Maryland.

April 6, 1973.

[303 A.2d 175] William E. Seekford, Towson, for appellant.

James G. Klair, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen. Edwin H. W. Harlan, Jr., State's Atty. for Harford County, John Edward Kelly and Victor J. D'Avella, Asst. State's Attys. for Harford County, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON, THOMPSON, MOYLAN, POWERS, CARTER, GILBERT, MENCHINE, SCANLAN and DAVIDSON, JJ.

MOYLAN, Judge.

Commendably, there is a high resolve in many policemen to ferret out the last shred of probable cause; regrettably, there is a concomitant inertia in those policemen toward putting it down on paper. That gap between the latent and the kinetic (with its Fourth Amendment consequences) echoes T. S. Eliot in The Hollow Men, 'Between the idea and the reality, between the motion and the act, falls the Shadow.' In the case at bar, the shadow fell between what the police worked up and what the police wrote down.

The appellant, Albert Francis Hignut, Jr., was convicted in the Circuit Court for Harford County by Judge Albert P. Close, sitting without a jury, upon two separate counts of an indictment charging violations of the Controlled Dangerous Substances Law.

Upon the first count, he was convicted of distributing marijuana. The corpus delicti thereof occurred at 6:40 p. m. on August 20, 1971. No Fourth Amendment issue is involved in its proof. Upon the third count, he was convicted of possession of marijuana. The corpus delicti thereof was established by a search executed at 11:30 p. m. on that same evening. The evidence that directly supported the conviction upon the first count was available to support the issuance of the warrant critical to the third count. The most difficult question facing us will be that of how adequately the application for the warrant, within its four corners, reflected the available reality.

Since another of the contentions goes to the legal sufficiency of the evidence of distributing marijuana under the first count, an initial discussion thereof will provide the necessary backdrop for the contentions which follow.

SUFFICIENCY OF EVIDENCE-DISTRIBUTION COUNT

On August 20, 1971, Mrs. Phyllis Ann Rorrer, a 23-year-old divorcee, lived with her two young children at 302 N. Main Street in Bel Air. The building was a two- story apartment house, with two apartments upon the first floor, and two on the second. Mrs. Rorrer lived on the first floor. Since February, 1971, Laura Gunther had resided in apartment number 3, located on the second floor. The two neighbors became friendly with each other. Two regular habitues of the upstairs apartment were the appellant and another man known only to Mrs. Rorrer as 'Ted'. Mrs. Rorrer was aware that the occupants of the upstairs apartment used or dealt in drugs. She had on occasion told them that, as far as she was concerned, what they did was their own business, so long as they did not involve herself, her children, or her babysitter. At some time shortly before August 20, however, Mrs. Rorrer found out that her babysitter had gotten involved with drugs through the upstairs neighbors. She decided to notify the police. She picked August 20 because 'Laura informed me that there was a party that night and I figured well, that would be the time to do it.'

At some time between 4:30 and 5 p. m. on the afternoon of August 20, Mrs. Rorrer met with Sgt. Daniel Leftridge of the Bel Air Town Police. She informed him that there was going to be a 'pot party' in Laura Gunther's apartment later that evening. Sgt. Leftridge persuaded Mrs. Rorrer to attempt to obtain some marijuana from the occupants of the upstairs apartment. Mrs. Rorrer was searched by a police clerk, Mrs. Patricia Duty, and was found free of any narcotics. The two women then left together and went immediately to 302 N. Main Street. Mrs. Duty remained downstairs in the hallway and watched Mrs. Rorrer ascend the stairs and knock on the apartment door of Laura Gunther. The flight of stairs consisted of approximately twelve steps.

Mrs. Rorrer was admitted to the apartment. Laura Gunther, the appellant, and 'Ted' were all present. The appellant was sitting in front of a coffee table on which there was a scale and some aluminum foil. The appellant was cutting and weighing a dark brown vegetable substance. General conversation followed, in the course of which the appellant and Laura Gunther acknowledged to Mrs. Rorrer that they had some 'hash'. Mrs. Rorrer was invited to the party that night. She declined, claiming that she had other plans. She did indicate, however, that she wouldn't mind taking some 'hash' and trying it. She indicated that she wanted to be alone the first time she tried it. The appellant handed her a small package wrapped in aluminum foil. Mrs. Rorrer soon excused herself and left the apartment. As soon as she came through the door, she could see Mrs. Duty standing in the downstairs hall looking up at her. Both women immediately entered Mrs. Rorrer's downstairs apartment. Mrs. Duty noted the time and examined the package. They telephoned Sgt. Leftridge.

The clerk, Mrs. Duty, testified that before leaving the police station, she thoroughly patted down Mrs. Rorrer. Mrs. Rorrer was wearing a pair of slacks and a short-sleeved sweater. Mrs. Duty also thoroughly searched Mrs. Rorrer's pocketbook. Her testimony in all regards substantiated that of Mrs. Rorrer. She saw Mrs. Rorrer ascend the stairs, knock on the door of apartment 3, and then enter. She recorded the time as precisely 6:40 p. m. She remained in the hallway. She heard and saw Mrs. Rorrer exit the apartment at precisely 6:53 p. m. She immediately observed the brown substance contained in the small aluminum foil package. She proceeded with Mrs. Rorrer back to police headquarters. At no time was Mrs. Rorrer out of her sight except for the 13 minutes when Mrs. Rorrer was inside the apartment of Laura Gunther.

Sgt. Leftridge had been a policeman for approximately five years. He had attended a three-day seminar on the identification of narcotic drugs and had worked with the Maryland State Police on a number of cases involving narcotics. He had been involved in narcotic investigations for approximately three years. His testimony coincided with that of Mrs. Rorrer and that of Mrs. Duty. He testified further that immediately upon looking at the brownish-black substance turned over to him by the two women, he recognized it as hashish. He stated that he was familiar with it both because of previous investigations and because of narcotics seminars. The trial court ruled that he was qualified to render an expert opinion as to the identity of the substance.

Deputy Sheriff Richard Michael Aiello had been working on narcotic investigations for three years. He was with Sgt. Leftridge when the suspected hashish was turned over. His conclusion paralleled that of Sgt. Leftridge. He testified that he performed a Duquonois Levine field test on the substance and that the results of the test were positive for marijuana. The testimony as to that field test was excluded from the trial upon the merits, however, because the Assistant State's Attorney did not qualify Deputy Aiello as an expert. A report from the Baltimore City Crime Laboratory confirmed that the suspected substance was hashish, a variety of marijuana.

The evidence showed directly facts from which the trial judge could fairly be convinced, beyond a reasonable doubt, of the appellant's guilt of distributing marijuana. We cannot say, therefore, that the trial judge was clearly erroneous in reaching a verdict of guilty upon the first count. Williams v. State, 5 Md.App. 450, 459, 247 A.2d 731; Metz v. State,9 Md.App. 15, 23, 262 A.2d 331; Maryland Rule 1086. ¹

PROBABLE CAUSE FOR THE SEARCH WARRANT

With the single exception of the report from the Baltimore City Crime Laboratory, every bit of incriminating evidence hereinbefore recited as sufficient to sustain the conviction for distribution, was available to the police as they prepared the application for the search warrant. Moreover, the result of the Duquonois field test, which was ultimately excluded from the trial upon the merits, was also available on the issue of probable cause. Notwithstanding that wealth of evidence with which to establish unimpeachable probable cause, the actual recitation of supporting data was so spare as to be almost cavalier:

'That on Friday, August 20, 1971 your affiants received information from a confidential informant that Hashish was present in the said apartment house.

'It is further stated that the informant, after being searched by the affiants went to the said apartment house, then to the second floor of the said house, knocked on the door of apartment #3 and was permitted entrance to the said apartment #3. After entering said apartment, the informant had conversation with Laura Gunther, occupant of said apartment #3. It is further stated that the informant while in said apartment obtained a small block of compressed brown vegetable substance, wrapped in tinfoil, which your affiants tentatively identified as Hashish, a form of Marihuana. The informant exited from the said apartment house and brought the suspected Controlled Dangerous Substance directly to your affiant Patricia Ann Duty, who was standing in the hallway of 302 North Main St., Bel Air, Maryland. Your affiant, Patricia Ann Duty, with the Confidential Informant went directly to your affiant Sgt. Daniel V. Leftridge, who was waiting for them at the Bel Air Police Department, located at 39 Hickory Avenue, Bel Air, Maryland.

Your affiant Leftridge has been a Police Officer for approximately five years and has attended a Federal Narcotics Seminar on Narcotics and has worked with the Maryland State Police Vice Narcotics Unit in the investigation of...