Kist v. State
| Decision Date | 04 June 1968 |
| Docket Number | No. 293,293 |
| Citation | 4 Md.App. 282,242 A.2d 586 |
| Parties | David P. KIST v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Richard K. Jacobsen, Baltimore, and on the brief with James J. White, III, Chestertown, for appellant.
Edward F. Borgerding, Asst. Atty. Gen., for appellee; Francis B. Burch, Atty. Gen., and Donald Needle, Asst. Atty. Gen., Baltimore, William P. Fennell, State's Atty. for Kent County, Chestertown, on the brief.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
The appellant was found guilty by a jury in the Circuit Court for Kent County of grand larceny and sentenced to imprisonment for a term of 5 years.
Prior to trial the appellant moved that the search warrant, under the authority of which evidence was seized from his home, be quashed and that the evidence be suppressed. 1 On this appeal from the judgment, the appellant claims error in the denial of the motion and in the admission at the trial of the evidence seized.
The affidavit to the search warrant, sworn to by Trooper Wilson E. Todd of the Maryland State Police on 18 December 1966, alleged that upon his personal knowledge, information and belief there was probable cause to believe that a misdemeanor or felony had been committed and that the fruits of the crime were held by Albert Kist in a 'one story bungalow, frame construction located off the north side of Maryland Route 7, Charlestown, Cecil County, Maryland.' The fruits of the crime were designated as 'one R.C.A. color television set and one Sears Silvertone portable television set bearing 'RCM' marks thereon, property of Roy C. Mitchell.' The only basis for the allegation of probable cause set forth in the affidavit was 'that the two television sets referred to above (plus another T.V. set) were seen by Robert S. Bean on the premises referred to above on December 14, 1966, and that two television sets of identical description were stolen from Roy C. Mitchell's residence on or about December 8, 1966, and that on or about December 8, 1966, David Kist, son of Albert Kist, was on the Roy C. Mitchell premises.'
It has been firmly established in this State that the court's consideration of the showing of probable cause must be confined solely to the affidavit itself. Scarborough v. State, 3 Md.App. 208, 211, 238 A.2d 297. 'The probable cause necessary for the issuance of a search warrant requires a proper showing not only that a crime has been or is being committed, but also that the evidence of the crime is upon the person or within the place or thing to be searched.' Frey v. State, 3 Md.App. 38, 44, 237 A.2d 774; Salmon v. State, 2 Md.App. 513, 235 A.2d 758. An affidavit may be based on hearsay information, even from an unidentified informant, and need not reflect the direct personal...
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...whether the non-swearing source is named or unnamed. Spinelli, at 424, 89 S.Ct. 584 (concurring opinion by White, J.); Kist v. State, 4 Md.App. 282, 285, 242 A.2d 586. His evaluation, in theory, will be the same in either case. The practical distinction is that in dealing with a named sourc......
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