Johnson v. State

• Decision Date: 22 March 1972
• Docket Number: No. 536,536
• Citation: Johnson v. State, 14 Md.App. 721, 288 A.2d 622 (Md. App. 1972)
• Parties: Nathaniel JOHNSON, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 721

14 Md.App. 721

288 A.2d 622

Nathaniel JOHNSON, Jr. v. STATE of Maryland.

No. 536.

Court of Special Appeals of Maryland.

March 22, 1972.

Certiorari Denied June 9, 1972.

Donald Daneman, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., Peter D. Ward and Jerry J. Hyatt, Asst. State's Attys., for Baltimore City on brief for appellee.

Argued before ANDERSON, MORTON and ORTH, JJ.

ANDERSON, Judge.

The appellant, Nathaniel Johnson, Jr., was convicted by a jury in the Criminal Court of Baltimore, Judge Charles D. Harris presiding, of conspiracy to violate the Controlled Dangerous Substance Law (Indictment #658), possession of heroin (Indictment #663), possession with intent to manufacture and distribute a controlled dangerous substance, heroin (Indictment #665), and maintaining a common nuisance (Indictment #664). Under the combined Indictments #663 and #665, the appellant was sentenced to a term of twenty (20) years and was fined $25,000.00. The appellant was sentenced to a term of fifteen (15) years and fined $25,000.00 under Indictment #664, the sentence and fine to run consecutively to those imposed under Indictments #663 and #665. Under Indictment #658, the appellant was sentenced to a term of fifteen (15) years and fined $25,000.00, the term to run concurrently with the other two imposed but the fine was imposed consecutively. The total prison sentence received by the appellant was a term of thirty-five (35) years and the total fine imposed was $75,000.00.

On appeal the appellant contends that the trial court erred in denying his motion to quash the search warrant. The appellant makes a two-pronged attack on the warrant. He argues that the affidavit in support of the warrant was insufficient to establish probable cause. Secondly, the appellant argues that the time stated in the affidavit for the warrant of the observation of the offense and the time when the warrant was issued was so remote as to render the probable cause stale, thereby invalidating the search warrant.

On January 15, 1971, at approximately 7:00 p. m., the police, armed with a search warrant issued the previous day, entered 818 Wicklow Road in Baltimore, searched the premises and found heroin. The appellant, who was present at the time, was arrested and indicted.

I THE AFFIDAVIT AND PROBABLE CAUSE

The appellant argues that the affidavit in support of the warrant was insufficient to establish probable cause.

Judge Orth, speaking for this Court, in Moore v. State, 13 Md.App. 711, at 713-716, 284 A.2d 614, at 615, succinctly set forth the rules governing probable cause for the issuance of a search warrant:

'The rules governing probable cause for the issuance of a search and seizure warrant need not be complex, intricate or perplexing. We said in Buckner v. State, 11 Md.App. 55, 61-62, 272 A.2d 828, 832:

'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 cautious man would be justified from the facts presented in the affidavit in believing that the offense has been or is being committed, the warrant properly may be issued. In determining the existence vel non of probable cause, the judge may give consideration to the special significance which objects, happenings, and individuals may have conveyed to a trained, experienced and knowledgeable police officer making the affidavit accompanying the warrant. * * * And the affidavit may be based on hearsay information, even from an unidentified informant, and need not reflect the direct personal observations of the affiant, but it must contain some of the underlying circumstances from which the affiant could be reasonably justified in a belief that the hearsay information was reliable or the informant was credible. * * *

'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. * * * However the affidavit should be interpreted in a common-sense and not a hypertechnical manner, and the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants. (Frey v. State, 3 Md.App. 38, 45-46, 237 A.2d 774, summarizing the observations in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684). But * * * 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.' (citations omitted)

'Thus probable cause may be shown in the affidavit by a statement by the affiant 1) of his direct observations, or 2) of information furnished the affiant by someone else, named or unnamed, or 3) of a combination of the direct observations of the affiant and hearsay information furnished him. In each instance the issuing judge must have before him enough circumstances to enable him to determine the trustworthiness of the information, for he must not only evaluate the adequacy to show probable cause of the facts and circumstances set out in the affidavit but he must also evaluate the truthfulness of the source of the information comprising those facts and circumstances. Due to the infinite variety of human conduct, the sufficiency of any affidavit must necessarily depend upon the particular facts and circumstances in it contained.' (Footnotes omitted).

We note that Moore v. State, supra, paid due homage to the most important Supreme Court cases dealing with the rules governing a search and seizure warrant, i. e., Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and the recent case of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, which somewhat limited the application of Spinelli v. United States, supra.

In reviewing the five page affidavit in the instant case we must note that there are many instances in which statements made by the affiants are merely conclusory. A number of different informants are relied on by the affiants and in the case of all but one of these informants the affiants make no showing of their reliability other than bald statements that the informants are reliable. However, a warrant which is inadequate in one regard is salvageable in another. Dawson v. State, 14 Md.App. 18, at 24, 284 A.2d 861, concurring opinion by Moylan, J. In the instant case we feel that the following passage from the affidavit was sufficient to establish probable cause 'During the second week of December 1970, Det. Requer received certain information from a reliable informant known to members of the Narcotic Unit, this informant has in the past given information that proved to be accurate and true, this informant has identified over 35 different (sic) photographs of individuals known to the Narcotic unit as being actively engaged in the illicit drug traffic in Baltimore City. This same informant gave information about each concerning their activities. This information accurately corresponded with information (Page Three) that was previously given by other logally (sic) reliable informants. This same informant gave information and actively participated in certain investigations that resulted in over five arrest and seizures of certain quanities (sic) of controlled dangerous substances and their related paraphernalia during the past six months.

'This same informant related to Det. Requer that he has been in the company of a person known to him as: Junior Bunk N/M 32, the informant was shown a group of photographs and from the group the informant identified the B of I photo #107-996, that being: Nathaniel Johnson N/M 32, the informant related that during the last two days of the 3rd week of December 1970, he was in company with two other males and Junior Bunk, they were in a Mercury Cougar, Gold in color bearing Md. Lic. GN-4034, and same was being operated by Junior Bunk, the informant and the two other males were picked up at the corner of Fulton and Baker Sts. by Junior Bunk in the Mercury Cougar. The informant related that the conversation was about narcotic drugs. While in the car...