Iannone v. State, 564

• Decision Date: 24 July 1970
• Docket Number: No. 564,564
• Citation: 267 A.2d 812,10 Md.App. 81
• Parties: Vincent IANNONE, Leslie N. Sellman and Carroll T. Glorioso v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 81

10 Md.App. 81

267 A.2d 812

Vincent IANNONE, Leslie N. Sellman and Carroll T. Glorioso v. STATE of Maryland.

No. 564.

Court of Special Appeals of Maryland.

July 24, 1970.

Certiorari Denied Oct. 20, 1970.

Alan H. Murrell, Baltimore City, for appellants.

Francis X. Pugh, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., Joseph Harlan, Barry S. Frame and Peter D. Ward, Asst. State's Attys. for Baltimore City, respectively, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

On June 13, 1968 a warrant was issued authorizing search of apartment 910 of the Washington Park Apartments in Baltimore for illegal lottery slips and related gambling paraphernalia. The warrant was executed the same day and resulted in the seizure of evidence indicating that the lottery laws were being violated on the premises. Appellants were subsequently charged with various lottery offenses and the incriminating evidence seized under the warrant was introduced against them at their joint court trial. Appellants Iannone and Glorioso were each convicted of keeping a room (apartment 910) for the purpose of selling lottery tickets and possession of lottery slips. Appellant Sellman was convicted of keeping and permitting a room (apartment 910) to be kept for the purpose of selling lottery tickets. Appellants jointly contend on appeal that the search warrant was issued without probable cause and was therefore invalid.

In the application for the warrant, the affiant, an F.B.I. Agent, recited that 'a confidential informant who has furnished information which has proven to be reliable in the past' advised that Leslie Sellman was employed by Vincent Iannone, operator of the Atlas Vending Company; that two weeks prior to April 16, 1968, the informant was told by Sellman, who lived at 1210 North Calvert Street, that he had been given money by Tony Iannone to rent and furnish an apartment somewhere in Baltimore for the purpose of booking numbers; that on May 6, 1968, a representative of a furniture rental company advised the affiant that Sellman had rented furniture for an apartment at 111 West Centre Street (the Washington Park Apartments); that on May 7 and 22, 1968, representatives of the Washington Park Apartments advised that Sellman and Tony Iannone had together rented apartment 910 for one year; that on May 31, 1968, the affiant was standing in the public hall in front of apartment 910 at 4:35 p. m. when he overheard a male voice inside the apartment say 'All we can take is $200.00,' followed by the sound of an adding machine; that on the same day, the affiant heard a male voice inside apartment 910 use the words 'lay off'; that at 5:40 p. m. the same day two males left apartment 910 and entered separate Cadillac automobiles, one of which was registered to the Atlas Vending Company; that on June 5, 6, 7 and 10 these same men, one of whom interim investigation revealed to be Glorioso, were again observed 'in the vicinity' of apartment 910; that Glorioso had previously been convicted on gambling charges in 1966; that Sellman had previously been arrested in Philadelphia and Las Vegas; that the telephone in apartment 910 was listed to Sellman and a number of long distance calls had been made therefrom, including calls to a Washington number listed to two named individuals arrested on gambling charges in January, 1968 and known to the Intelligence Unit of Internal Revenue Service to be conducting a large scale gambling operation in Washington; and that on June 12, 1968, Glorioso was observed to park his car, 'conceal sheets of white paper' under the front of his shirt, and then go to the vicinity of apartment 910. On the basis of these allegations, the affiant concluded that gambling activity was being conducted on an interstate basis in apartment 910.

That a search warrant may properly issue based on hearsay information not reflecting the direct personal observations of the affiant is well settled, so long as the magistrate is informed of some of the underlying circumstances from which the affiant could reasonably conclude that the hearsay information was reliable and that the items sought to be seized were within the place to be searched. Grimm v. State, 6 Md.App. 321, 251 A.2d 230; Scott v. State, 1 Md.App. 481, 231 A.2d 728. We think it clear that an undisclosed informant's reliability is not established by the affiant's mere unsupported and unparticularized conclusory assertion that he was 'furnished information which has proven to be reliable in the past.' See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Gatewood v. State, 244 Md. 609, 224 A.2d 677; Frey v. State, 3 Md.App. 38, 237 A.2d 774. But where, as here, the information provided by the informer's tip is corroborated by independent police work undertaken by the affiant, the details of which are recited in the warrant application, we think the informer's tip, together with the other allegations in the warrant, may be collectively considered in determining whether probable cause existed for the issuance of the warrant. ¹ See Spinelli v. United States, 391 U.S. 933, 88 S.Ct. 1834, 20 L.Ed.2d 853;Price v. State, 7 Md.App. 131, 254 A.2d 219. Clearly, the conversation personally overheard by the affiant emanating from apartment 910 on May 31, 1968 provided strong corroboration of the informer's tip; this fact, viewed in the light of the other recitations in the affidavit, heretofore set forth, provided far more than mere suspicion that the lottery laws were being violated on the premises. Of course, only the probability, and not a prima facie showing of criminal activity is the standard of probable cause. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Cornish v. State, 6 Md.App. 167, 251 A.2d 23. Equally clear is the principle that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, that the determination of a magistrate that probable cause exists should be paid great deference by reviewing courts, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, and that when determining whether an affidavit...