Peterson v. State, No. 32

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before MURPHY; ORTH
• Citation: 281 Md. 309,379 A.2d 164
• Docket Number: No. 32
• Decision Date: 01 November 1977
• Parties: William DeWayne PETERSON v. STATE of Maryland.

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281 Md. 309 379 A.2d 164 William DeWayne PETERSON
v.
STATE of Maryland. No. 32. Court of Appeals of Maryland. Nov. 1, 1977.

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Mark Colvin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Arrie W. Davis, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

[379 A.2d 165] Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

ORTH, Judge.

William DeWayne Peterson does not suggest that there never was probable cause to believe that his apartment was used in connection with illicit traffic in narcotic drugs. He urges, however, that the facts and circumstances constituting probable cause that it was so used, as set out in the affidavit for the warrant commanding the search of his apartment, were so remote from the date of the affidavit as to render it improbable that the law was being violated at the time the warrant was issued. Whether the probable cause supporting the warrant was "stale" is the sole issue presented on this appeal. The Court of Special Appeals held that it was not. Peterson v. State, No. 590, September Term, 1976, decided 25 January 1977, unreported. We agree.

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I

Peterson was found guilty by a jury in the Circuit Court for Prince George's County of committing six offenses relating to drugs. Under an addendum to the indictment he was found to be a second offender. On direct appeal, the Court of Special Appeals affirmed the judgments as to the substantive offenses but reversed the finding under the addendum proceedings. It vacated the sentences and remanded the case for further proceedings. ¹ Peterson v. State, supra. We certified the case to us for review.

The first seven counts of a twelve count indictment under which Peterson was charged were based upon evidence seized on 30 December 1974 upon a search of his apartment, No. 202 at 5286 Marlboro Pike, Hillside, Prince George's County, Maryland, on the authority of a warrant issued 29 December 1974. He was convicted of the charges presented by three of these first seven counts: the first (possession of heroin with an intent to distribute), the third (possession of marihuana), and the fourth (possession of controlled paraphernalia). Peterson moved to suppress this evidence. He contended, inter alia, that the evidence was illegally obtained by an unreasonable search and seizure; the search and seizure were unreasonable because the warrant was invalid; the warrant was invalid because the probable cause on which it was issued was deficient; the probable cause was deficient because the facts to establish it set out in the affidavit were "stale," that is, so remote from the date of the affidavit as to render it improbable that the alleged violation of the law was extant at the time the application for the warrant was made. ²

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II

The Fourth Amendment to the Constitution of the United States, applicable to the states through the Due Process Clause of the Fourteenth Amendment, [379 A.2d 166] Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 1687, 6 L.Ed.2d 1081 (1961), provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The broad terms of the "unreasonable searches and seizures" clause must be viewed in light of the more specific dictates of the warrant clause. See United States v. United States District Court, 407 U.S. 297, 315, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Thus, except in certain carefully defined classes of cases, a search of private property without valid consent is "unreasonable" unless it has been authorized by a valid search warrant. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Camara v. Municipal Court, supra, 387 U.S. at 528-529, 87 S.Ct. 1727; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925). See South Dakota v. Opperman, 428 U.S. 364, 381-382, 96 S.Ct. 3092, 49 L.Ed. 1000 (1976), Powell, J. concurring.

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Under the Fourth Amendment a search warrant is not valid unless there is probable cause for its issuance as shown by the required affidavit. See also Declaration of Rights to the Constitution of Maryland, Art. 26; Maryland Code (1957, 1976 Repl.Vol.) Art. 27, § 551. We discussed what probable cause involved in State v. Edwards, 266 Md. 515, 295 A.2d 465 (1972):

"The finding of 'probable cause,' while demanding more than mere suspicion, Draper v. U. S., 358 U.S. 307, 311-12, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), requires less evidence than would justify conviction, Locke v. U. S., 7 Cranch 339, 348, 3 L.Ed. 364 (1813), and less than would justify an officer in making a search without a warrant, Johnson v. U. S., 333 U.S. 10, 15, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The evidence itself need not be legally competent in a criminal trial, Draper v. U. S., supra, 358 U.S. at 311, 76 S.Ct. 329, 3 L.Ed.2d 327, and may in fact be hearsay, Jones v. U. S., 362 U.S. 257, 272, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), so long as the judicial officer issuing the warrant is informed of some underlying circumstances supporting the affiant's conclusions and his belief that any informant involved was credible or his information reliable, Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and such judicial officer is entitled to draw reasonable inferences from the facts contained in the affidavit based on his experience in such matters, Irby v. U. S., 114 U.S.App.D.C. 246, 314 F.2d 251, 253 (1963), cert. denied, 374 U.S. 842, 83 S.Ct. 1900, 10 L.Ed.2d 1064 (1963)." Id. at 518-519, 295 A.2d at 466.

Stripped of all gloss and technicalities, "probable cause" is "less than certainty of proof, but more than suspicion or possibility." Id. at 519, 295 A.2d at 467.

Our concern in determining whether a warrant necessary to the reasonableness of a search and seizure has been issued upon an affidavit supporting probable cause is only with the question " 'whether the affiant had reasonable grounds at

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the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.' " State v. Edwards, 266 Md. at 519, 295 A.2d 465, 467, quoting Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 69 L.Ed. 1032 (1925). It follows that if the facts set out in the affidavit are "stale," the affiant would not have reasonable grounds at the time of his affidavit and the issuance of the warrant [379 A.2d 167] for the belief that the law was being violated on the premises to be searched. The question is what constitutes "stale probable cause." III

We find most cogent the expression of the rule regarding stale probable cause as set out in Garza v. State, 120 Tex.Cr. 147, 48 S.W.2d 625 (1932):

"The affidavit for a search warrant on probable cause, based on information and belief, should in some manner, by averment of date or otherwise, show that the event or circumstance constituting probable cause, occurred at a time not so remote from the date of the affidavit as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made." Id. at 149, 48 S.W.2d at 626.

See 2 Varon, Searches, Seizures and Immunities 431 (2d ed. 1974). Peterson asserts, and the State agrees, that the question of whether probable cause is stale has never heretofore been directly addressed by this Court. We, at the least, touched on the matter in State v. Edwards, supra. The Court of Special Appeals directly considered the issue shortly after the creation of the Court. Clayton v. State, 1 Md.App. 500, 231 A.2d 717 (1967). The point has since been before that court and determined several times. Johnson v.

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State, 14 Md.App. 721, 288 A.2d 622, cert. denied, 266 Md. 738, cert. denied, 409 U.S. 1039, 93 S.Ct. 517, 34 L.Ed.2d 487 (1972); Washburn v. State, 19 Md.App. 187, 310 A.2d 176 (1973); Andresen v. State, 24 Md.App. 128, 331 A.2d 78, cert. denied, 274 Md. 725 (1975), aff'd, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). ³ The question has also been considered by federal courts and state courts in other jurisdictions. The rule as stated in Garza properly states the law and embodies the holdings of the Court of Special Appeals, the more persuasive teachings of the courts in other jurisdictions, and the general opinions of text writers and commentators.

In Clayton v. State, supra, the Court of Special Appeals stated: "There is no statute in this State providing that the facts in the application, set forth to establish probable cause, must result from observations made within a designated time before the issuance of the warrant," ⁴ and it found no Maryland case directly on point. It thought that "the remoteness of the facts observed from the date of issuance of the warrant is an element to be considered in each instance by the issuing authority in his determination . . . of whether it appears that there is probable cause." Id. 1 Md.App. at 503, 231 A.2d at 719. In Johnson v. State, supra, finding...