Hudson v. State

• Decision Date: 08 August 1972
• Docket Number: 11,Nos. 10,s. 10
• Citation: 16 Md.App. 49,294 A.2d 109
• Parties: Thomas HUDSON, Jr. v. STATE of Maryland (two cases).
• Court: Court of Special Appeals of Maryland

Page 49

16 Md.App. 49

294 A.2d 109

Thomas HUDSON, Jr. v. STATE of Maryland (two cases).

Nos. 10, 11.

Court of Special Appeals of Maryland.

Aug. 8, 1972.

Certiorari Denied Oct. 17, 1972.

Henry M. Rutledge, Salisbury, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Fulton B. Jeffers, State's Atty., Wicomico County, on the brief, for appellee.

Argued before ANDERSON, ORTH and GILBERT, JJ.

ORTH, Judge.

On 28 July 1971 criminal case 6510 came on for trial by the bench in the Circuit Court for Wicomico County. The indictment therein presented that THOMAS HUDSON, JR. on 4 October 1970 did possess heroin 'in sufficient quantity to reasonably indicate under all the circumstances an intent to manufacture and distribute' (1st count), that on 2 October 1970 he did maintain a certain common nuisance at room 200, Stateman Motel, 712 N. Salisbury Boulevard, Salisbury, Maryland 'which was then and there resorted to by drug abusers for purposes of illegally administering Controlled Dangerous Substances and was used for the illegal Manufacture, Distribution, Storage and Concealment of Controlled Dangerous Substances' (2nd count), and that on 4 October 1970 he did possess heroin (3rd count), all unlawfully. He was found guilty generally, thus convicting him under each of the three counts. Manning v. State, 2 Md.App. 177, 181, 233 A.2d 821. On 5 November 1971 he was sentenced to 20 years under the 1st count, to 10 years under the 2nd count 'to run concurrent', and to 4 years under the 3rd count 'to run concurrent.' He appealed. The case is docketed in this Court as no. 10, September Term, 1972.

On 19 October 1971 criminal cases 6807 and 6846 came on for trial before a jury in the Circuit Court for Wicomico County. In 6807 the indictment presented that Hudson did possess heroin 'in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture and distribute' (1st count), that he did possess controlled paraphernalia (2nd count), that he did conspire with Marie Stewart to violate the controlled dangerous substances law of Maryland (3rd count), and that he did possess heroin (4th count), all on 13 June 1971 and all unlawfully. In 6846 the indictment presented that on 13 June 1971 he did unlawfully maintain a common nuisance at Poplar Street, Fruitland, Wicomico County, Maryland 'which was then and there resorted to by drug abusers for purposes of illegally administering controlled dangerous substances and was used for the illegal manufacture, distribution, storage and concealment of controlled dangerous substances * * * to wit heroin.' He was found guilty under the 1st, 2nd and 4th counts in 6807, and of the offense as charged in 6846. On 5 November 1971 in 6807 he was sentenced to 20 years under the 1st count and to 4 years under the 2nd count, 'each to run concurrently with the sentence in no. 6510 Criminal Cases.' ¹ In 6846 he was sentenced to 10 years 'to run concurrently with the sentence in no. 6510 Criminal Cases.' He appealed. The case is docketed in this Court as no. 11, September Term, 1972.

I

In each case the evidence necessary to conviction was seized under the authority of a search and seizure warrant valid on its face. In each case the validity of the warrant was challenged on the ground of the sufficiency of the affidavit upon which it was issued. In no. 10 the challenge was in the form of an agreement between the prosecution and the defense presented to the court at the start of the trial that the only issue was the validity of the warrant-'The guilt or innocence will be determined by the ruling on the search warrant.' A hearing was conducted on oral motions to suppress the evidence and to declare the warrant invalid and the motions were denied. In no. 11 a pretrial motion to suppress was filed. It was heard out of the presence of the jury and denied. In the appeal in each case Hudson claims the lower court erred in its ruling. We do not think it did in appeal no. 10. We think it did in appeal no. 11.

The Search Warrant in no. 10

Hudson claims that the warrant in appeal no. 10 'was contingent upon an unnamed informant whose reliability was not sufficiently proved.'

The warrant, issued 3 October 1970, commanded the search of the Statesman Motel, Room #200, 712 N. Salisbury Blvd., Salisbury, Wicomico County, Maryland, 'now occupied by Thomas Hudson, Jr. and all other persons', and the seizure of all controlled dangerous substances and narcotic paraphernalia found.

The application for the warrant was supported by the affidavits of Trooper David D. Luce of the Maryland State Police and Patrolman Elton R. Gravenor of the Salisbury Police Department who stated they had probable cause to believe that controlled dangerous substances and narcotic paraphernalia were being secreted and administered on the premises in violation of Code, Art. 27, § 286. The basis for the belief was spelled out. On 30 September 1970 George Neal, assistant manager of the motel, known to the affiants 'as a reliable respected person in the community of Salisbury, Maryland', told the affiants that on 25 September he had rented room 200 to Hudson. During the next five days 'numerous persons both male and female, have frequented Unit #200 at all hours of the day and night.' Two persons who visited the room many times were Shirley Parker and Victor Anderson, each of whom was known to the affiants as a narcotics user. Another was Clarence Johnson, alias Speedy, known to the affiants to be a close friend of Hudson. Investigation initiated by the affiants disclosed 'numerous long distance phone calls' made from room 200 and that the numbers called were listed 'to several persons known to the Federal Bureau of Narcotics and Dangerous Drugs as narcotics users and peddlers.' The room was placed under surveillance. On 1 October at 10:25 p. m. a white male entered the room, stayed 'only moments' and left. At 10:47 p. m. a 'colored female' came out of room 210, entered room 200, stayed 3 minutes and returned to room 210. At 11:17 p. m. the white male who had previously entered the room returned. He remained in room 200 for 7 minutes and left, placing a small object in his left rear pocket. On 2 October at 8:38 p. m. Hudson entered room 200 carrying a small brown paper bag. He was accompanied by George Townsend and Charles Downing, known to the affiants as narcotics users and peddlers, and by an 'unknown colored male.' Twelve minutes later Downing went to a Plymouth automobile, got therefrom a plastic toothbrush case and partially concealing it in his hand went back to the room. At 9:15 p. m. Wilson Wright, Jr. and David Brayboy, known to the affiants as narcotics users and peddlers in the Salisbury area, entered from 200. Ten minutes later Brayboy left the room and was observed by a confidential informant holding a small piece of cotton or tissue paper, on which was a small spot of blood, in the crook of his left arm. The cotton or tissue was known to the affiants 'as part of the procedure of administrating hypodermic injections to an individual, either by self administration or by another subject.' At 9:30 p. m. the confidential informant knocked on the door of room 200 and was permitted to enter. There were four men in the room. The one who opened the door had 'a handful of money in his left hand.' Another was 'sitting on the bed with a nylon stocking tied on the upper portion of his left arm. The subject was holding a hypodermic syringe in his right hand getting ready to inject himself.' The affiants stated that the confidential informant had assisted them 'in four narcotics investigations over the past three weeks, which had led to the arrest of two persons for violations of the controlled and dangerous substance laws.'

The warrant was executed on 4 October 1970 at 5:00 a.m. Hudson answered the officer's knocked on the door. Shirley Mae Parker and John Curtis Evans were also in the room. The officers found and seized 121 decks of heroin from a suitcase belonging to Hudson, a deck of heroin from the pocket of a shirt worn by Shirley Mae Parker, a .32 caliber revolver in a dressing table drawer and $335 in U.S. currency.

The validity of the warrant is to be determined in the light of established propositions specifically affirmed in Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637, noted by us in Price v. State, 7 Md.App. 131, 137, 254 A.2d 219, and set out in Buckner v. State, 11 Md.App. 55, 62, 272 A.2d 828, 833:

'1) The standard of probable cause is only the probability and not a prima showing, of criminal activity;

2) affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial;

3) issuing judges are not to be confined to niggardly limitations or by restrictions on the use of their common sense in judging probable cause;

4) the determination of probable cause by the issuing judge should be paid great deference by reviewing courts.'

These propositions are to be followed in applying the rules governing probable cause for the issuance of a search and seizure warrant which we summarized in Buckner at 61-62, 272 A.2d at 832-833 and repeated in Moore v. State, 13 Md.App. 711, 714-715, 284 A.2d 614, 615-616:

'A judge may issue a search warrant when it is made to appear to him 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. * * * Probable cause is less than certainty or demonstration but more than suspicion or possibility. It is to be determined by the judge to whom application for the warrant is made. If a prudent and cautions man...