Peterson v. State

• Decision Date: 29 June 1972
• Docket Number: No. 508,508
• Citation: 292 A.2d 714,15 Md.App. 478
• Parties: Wilson Thedore PETERSON et al. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 478

15 Md.App. 478

292 A.2d 714

Wilson Thedore PETERSON et al. v. STATE of Maryland.

No. 508.

Court of Special Appeals of Maryland.

June 29, 1972.

Certiorari Denied Sept. 12, 19, 1972.

Russell W. Shipley, Hillcrest Heights, for appellant Wilson Theodore peterson.

Leo William Dunn, Jr., West Hyattsville, for appellant Daniel Harvey Deal.

R. Moss Carrico, Jr., Laurel, with whom were Carlton M. Green, and Babcock, Shook & Green, Hyattsville, on the brief, for appellant Paul Edward Hunt.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Edward G. Neal, Asst. State's Atty., for Prince George's County, on the brief, for appellee.

Argued before MURPHY, C. J., and MOYLAN and CARTER, JJ.

MOYLAN, Judge.

A large number of complaints regarding narcotics violations in the 5700 block of Sheriff Road in the Fairmont Heights section of Prince George's County led the Narcotics Section of the Vice Control Unit of that county's police department to conduct on Thursday, April 6, 1971, a discreet, ten-hour surveillance of the parking lot adjacent to Jack's Liquors at 5701 Sheriff Road. As a direct result of that surveillance, six individuals were arrested on the parking lot at approximately 3:30 that afternoon and the two automobiles in which those six individuals had been sitting were searched.

All six individuals were charged in two counts of a single indictment, alleging respectively (1) the possession of heroin with an intent to sell and (2) the possession of heroin. The two owners of the automobiles were additionally charged under a third count with maintaining the automobiles as common nuisances. Charges against one of the six defendants, Joseph Henry Williams, were stetted. A second of the six defendants, Shandy Junior Richardson, was permitted to enter a plea of guilty to the charge of simple possession.

The other four defendants were jointly tried in the Circuit Court for Prince George's County and were all convicted of possession with intent to sell. The appellants Wilson Theodore Peterson and Daniel Harvey Deal along with Artemus Logan, who has not appealed, ¹ were tried by Judge Robert B. Mathias, sitting without a jury. The appellant Paul Edward Hunt was tried simultaneously by a jury, with Judge Mathias, of course, presiding. The three appellants, Peterson, Deal and Hunt, have filed separate briefs and their contentions vary to some extent. Because of the large overlap in their positions, however they will be considered together in this single opinion.

A common contention of all three appellants, and the most significant of the seven raised, is that the searches and the subsequent seizures of the contraband heroin were unconstitutional. The probable cause which seved as the predicate for the six warrantless arrests and which also served, under one of two alternate theories, as the predicate for the warrantless search of one of the two automobiles accumulated in the mind of the police-surveillant, Detective 1st Class Elmer L. Snow. Since the adequacy vel non of that probable cause will be measured from that vantage point, a word is in order about the professional experience and expertise which Detective Snow was able to bring to bear upon the otherwise raw data of visual observation.

Detective Snow had been a member of the Prince George's County Police Department for approximately six and one-half years. He had been assigned to the Vice Squad, working primarily in the Narcotics Section thereof, for approximately three years. His duties included the active investigation of narcotics complaints, the supervising of undercover police officers, and the playing of undercover roles himself. At the time of trial, he was Acting Commander of the Narcotics Section. He testified that while at the Police Academy in 1965, he received approximately 24 hours of classroom training in the identification of drugs and drug abusers. While at the Academy, he worked undercover on a narcotics investigation. He attended the training school conducted by the Bureau of Narcotics and Dangerous Drugs of the United States Department of Justice, and was graduated at the top of his class. At the time of this investigation, he had investigated 'well over 100 narcotics complaints.' He had testified in 'at least 75 cases.' He testified that he had seen the type of aluminum foil packet involved in this case on 'probably several hundred occasions.' We gauge the significance of the visual observations in the case at bar from the standpoint of those trained eyes. Taylor v. State, 9 Md.App. 402, 407, 264 A.2d 870; Johnson v. State, 8 Md.App. 187, 191-192, 259 A.2d 97.

In order to observe possible violations of the narcotics laws, Detective Snow, along with Detective Flaherty (both in civilian clothing), established a clandestine observation post in the bathroom of Jack's Liquors. It was apparently closed off to the public. Peering through venetian blinds, they could observe and photograph any activity on the adjacent parking lot, immediately below them. They were at a second-story level. They entered their observation post at 5:30 a.m. Detective Snow explained that he wanted them to arrive on station before anyone would be on the street to see them for fear that they, white men, might arouse suspicions in a predominantly Negro neighborhood.

The first pertinent observation was at 9:30 a. m. The appellant Peterson drove up in a 1964 white Pontiac. Peterson backed the Pontiac up against the building, immediately below the surveillants. They were in a position to see the top and the left (driver's) side of the Pontiac. At that time, Peterson was alone in the car.

Between 9:30 a.m. and 11:30 a.m., when Peterson was alone in the Pontiac, approximately eleven persons were observed to approach the car. They were all photographed. The first, one Stanley Ernest Henson, approached the driver's side of the automobile and conversed briefly with Peterson. Detective Snow testified that Henson was known to him as a heroin addict. On a second occasion, an unknown female approached the operator's side of the Pontiac, handed United States currency to Peterson, and received in return an aluminum foil packet. On another occasion, the appellant Deal was observed standing beaside the car conversing with Peterson. At a later time, two additional persons approached Peterson. One handed him a jacket, which Peterson tried on. Peterson placed the jacket in the Pontiac and delivered an aluminum foil packet in return. On yet another occasion, two other persons approached the car and exchanged money for an aluminum foil packet. Shortly before 11:00 a.m., four persons drove up in a vehicle, alighted, and approached Peterson. There again was an exchange of money for an aluminum foil packet, and the four person ran back to the vehicle in which they had arrived and departed. At approximately 11:00 a.m., Peterson drove the Pontiac away from the parking lot.

Peterson and the Pontiac returned at 11:15 a.m. and parked in the same place. At that point, Deal got into the car, sitting in the right front seat, where he remained for the rest of the period of observation. The transactions for the Pontiac continued unabated. Throughout the day, Detective Snow observed approximately fifteen persons approach Peterson on the driver's side of the automobile and exchange currency for aluminum foil packets. He further testified that between six and eight persons approached the passenger side of the automobile and engaged in similar exchanges with Deal. The observation of the passenger side of the Pontiac being slightly more obscured, Detective Snow could testify only to seeing the apparent purchasers count out currency and extend it to the interior of the automobile. He could then observe them withdraw their hands, place them inside their pockets, and walk away from the vehicle. At one point, apparently at approximately 2:00 p.m., while an unknown female was exchanging currency for an aluminum foil packet on the passenger side of the automobile, the co-defendant Logan (who reappears later that afternoon as the driver of the second automobile) was standing there at the passenger side, where he remained for approximately five minutes.

At approximately 1:00 p.m. that afternoon, the appellant Hunt and the co-defendant Williams got in the back seat of the car. They remained int he automobile from then until the arrests at 3:30 p.m., except that Hunt was absent for one approximately thirty-minute period between 2:00 p.m. and 2:30 p.m. While Hunt was in the Pontiac, somewhere between four and seven similar exchanges were transacted with both Peterson and Deal. At one point, Detective Snow observed the appellant Hunt, in the back seat, inserting a needle into his arm.

Detective Snow testified that, on the basis of his professional expertise, he belived the aluminum foil packets to contain heroin and he believed the transactions he had observed to be sales of heroin. At approximately 3:30 p.m., he put through a telephone call to Detective Gerald Howard notifying him to move in with his squad for purposes of making arrests. Shortly after that call was placed, Detective Snow observed a red and white Oldsmobile driven by the previously observed co-defendant Logan pull up and park beside the Peterson Pontiac, approximately two feet away from it. He observed Logan get out of his vehicle, walk over to the passenger side of the Pontiac occupied by Deal, and return to his own vehicle a few minutes thereafter. A supplemental dispatch alerted Detective Howard and his men to move in on the second vehicle as well. That second vehicle was also occupied by the co-defendant Richardson.

While the arrests and searches were being executed, Detectives Snow and Flaherty remained in hiding. It was their hope that if the existence of their hidden observation post were not compromised, it could be...