Moore v. State, 299

Citation13 Md.App. 711,284 A.2d 614
Decision Date21 December 1971
Docket NumberNo. 299,299
PartiesHalton Wilson MOORE v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

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

Argued before MURPHY, C. J., and ORTH and GILBERT, JJ.

ORTH, Judge.

Halton Wilson Moore, convicted at a bench trial in the Criminal Court of Baltimore of violation of the narcotic laws, gives two reasons why the judgments entered should be reversed. First he claims that the lower court erred in denying his motion to suppress certain tangible evidence and second he contends that even if the challenged articles were properly admitted the evidence was not sufficient to sustain the convictions.

THE SEARCH WARRANT

The evidence sought to be suppressed was alleged to have been obtained in violation of the 4th Amendment proscription against unreasonable searches and seizures. The search and seizure were under the authority of a warrant valid on its face. But Moore contends it was illegal because the affidavit on which it was issued did not show probable cause.

The rules governing probable cause for the issuance of a search and seizure warrant need not be complex, intricate or perplexing. 1 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 in a hypertechnical manner, and the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants. * * * 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. 2 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.

The warrant before us, issued 24 November 1970, commanded the search of the premises 1145 S. Sharp Street and the person of Halton Moore, Sr., 3 affidavit having been made by Officer John W. Nock that he had reasons to believe that there was certain described property concealed on the premises and on Moore's person in violation of the narcotics laws and the issuing judge being satisfied that there was probable cause to so believe. The facts and circumstances set out in the affidavit incorporated in the application for the warrant consisted of a combination of direct observations of the affiant Nock and hearsay information furnished him by unnamed informants. It alleged that the premises 1145 Sharp Street were 'being used, kept, rented, owned, or occupied' by Moore and a person known as 'alias 'Country John', colored male, 40 years, 5 11 , 190 lbs, dark complexion.' It stated that Nock had 13 years experience with the Baltimore City Police Department, had 'completed a two weeks course on Narcotics and Dangerous Drugs', and had 'made approximately 150 arrests over the past year for violation of the narcotics laws.' Nock asserted that he had received information from reliable informants who had given him information in the past which resulted in arrests and convictions for violations of the narcotic laws. The information was that Country John had sold to them quantities of Dilaudid 'at different locations on the street over a period of weeks.' They knew the drug to be in fact Dilaudid 'because in administering the drug, they experienced the same state of euphoria they had in the past when using what they knew to be Dilaudid.' On 23 November 1970 Nock received further information from a confidential informant who had given him information in the past which he knew to be 'true and accurate in reference to Drug traffic in the South Baltimore area,' and who had 'shown a knowledge of Drug users and distributors in the South Baltimore area' and was in fact an addict. This informant said he had purchased Dilaudid from Country John and 'Halton Moore' on a regular basis over the past week. The sales were conducted 'inside the residence of 1145 Sharp Street which is the residence of Halton Moore and that 'County John' and Halton Moore appear to be conspiratores in these sales.' On the information received Nock gave the informant $6 in marked money. '(W)e went by personal vehicle to the area of West and Leadenhall Streets at which time the informant proceeded on foot to the rear of 1145 Leadenhall Street. I, your affiant observed as the informant knocked at the rear door and same was opened by a subject before described and known by me as 'Country John'. The informant spoke to 'Country John' and handed him the U. S. Currency which had been furnished by your affiant. 'Country John' in turn reached into his right pants pocket and removed what appeared to be several glacine bags containing white powder and removed one galcine bag which he handed to the informant. * * * Prior to and after the controlled informant buy, the informant was strip searched and found to be free of any narcotics or U. S. Currency in both instances.' 4 A field test of the powder in the bag sold to the informant showed that it was an opium derivative.

Moore questions the trustworthiness of the informants' information and the adequacy of the facts and circumstances to show probable cause.

Our first inquiry is whether the affidavit contained such underlying circumstances as would properly persuade the issuing judge that the informants were credible or the information they gave was reliable. Of course this can never be established solely by reason of the fact that the information proved accurate when acted upon. Bolesta v. State, 9 Md.App. 408, 264 A.2d 878. The only underlying circumstances given with respect to the first set of informants, characterized as 'reliable' by Nock, 5 were that '(o)ver the past' they had given him 'information in the past which resulted in arrests and convictions for violations of the narcotic laws.' The underlying circumstances as to the second informant were that he 'had given information in the past' which Nock knew 'to be true and accurate in reference to Drug Traffic in the South Baltimore area', that he had 'also shown a knowledge of Drug users and distributors in the South Baltimore area', and that he was 'in fact a user of prohibited substances himself.' We do not believe that these circumstances, considered alone, were sufficient in the light of their lack of specificity. As to the first informants it was not shown how many informants gave the prior information, or when. 'Over the past' and 'in the past' could be the distant past or the immediate past or sometime in between. It does not follow that because an informant gave a tip years or even months ago which proved reliable, that he is forever after credible. Nor do we think it enough that this information given at some undetermined time resulted in arrests and convictions for violation of the narcotics laws. We do not say that such facts must be so detailed as would compromise the identity of the informant but we think more specificity than here presented is required, at the least as to about when past quired, at the least as to about when past information was received and about how many arrests and how many convictions resulted therefrom. With regard to the second informant there is again a lack of specificity. ...

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17 cases
  • Stanley v. State, 58
    • United States
    • Court of Special Appeals of Maryland
    • 2 Enero 1974
    ...we evolve analogous guidelines for the reception of hearsay in a probable cause setting, is not to be unexpected.13 See Moore v. State, 13 Md.App. 711, n. 1, 284 A.2d 614.14 United States v. Rabinowitz, 339 U.S. 56, at 72, 70 S.Ct. 430 at 438, 94 L.Ed. 653 (1950).15 The word dealt only, in ......
  • Dawson v. State, 315
    • United States
    • Court of Special Appeals of Maryland
    • 23 Diciembre 1971
    ...about information leading to prior arrests may, if sufficiently particularized, be adequate, we held conversely in Moore v. State, 13 Md.App. 711, 284 A.2d 614 (1971), that an assertion that prior information led to 'arrests and convictions' may, if not sufficiently particularized, be inade......
  • State v. Kraft, 344
    • United States
    • Court of Appeals of Maryland
    • 30 Julio 1973
    ...to the second informant, it is clear the 'reliable information' is too general to support reliability under Moore v. State, (13 Md.App. 711, 284 A.2d 614 (1971)). The affidavit further says that the second informant has 'purchased LSD and other narcotics from the (sic) Thompson in the past.......
  • Soles v. State, 229
    • United States
    • Court of Special Appeals of Maryland
    • 26 Enero 1973
    ...have been our commentaries upon Aguilar and Spinelli. See, for example, Dawson v. State, 11 Md.App. 694, 276 A.2d 680; Moore v. State, 13 Md.App. 711, 284 A.2d 614; Holland v. State, 13 Md.App. 635, 284 A.2d 874; Dawson v. State, 14 Md.App. 18, 284 A.2d 861; Hudson v. State, 16 Md.App. 49, ......
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