Soles v. State

• Decision Date: 26 January 1973
• Docket Number: No. 229,229
• Citation: 16 Md.App. 656,299 A.2d 502
• Parties: Charles Calvin SOLES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 656

16 Md.App. 656

299 A.2d 502

Charles Calvin SOLES v. STATE of Maryland.

No. 229.

Court of Special Appeals of Maryland.

Jan. 26, 1973.

John J. Garrity, West Hyattsville, for appellant.

Gary Melick, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., and Robert W. King, Asst. State's Atty., for Prince George's County, on the brief, for appellee.

Argued before MOYLAN, GILBERT, SCANLAN and DAVIDSON, JJ.

MOYLAN, Judge.

The appellant, Charles Calvin Soles, was the New York connection for a large-scale distribution operation for illicit drugs in Washington, D. C. After five days of activity in the District of Columbia, he left in the early morning hours of September 19, 1971, for a 'midnight run' back to New York. Officer Terry Womack, of the Vice Squad of the Metropolitan Police Department, was on automobile surveillance, waiting for the appellant to make his move from 30 Sheridan Street ¹ in northest Washington. He gave immediate pursuit and intercepted the appellant's 1971 Pontiac Grand Ville moments after it had crossed the Maryland line into Prince George's County. A search of the trunk revealed a large quanity of 'cutting' and packaging paraphernalia, $6700 in hidden cash, and enough high-quality cocaine to produce an estimated 3,240 'dime bags' worth an estimated 'street price' of $32,400.

The appellant elected a court trial before Judge Ralph W. Powers in the Circuit Court for Prince George's County. He was convicted 1) of possession of cocaine in sufficient quantity to indicate an intent to distribute and 2) of attempted bribery. He was sentenced to respective terms of twenty years and five years, to be served consecutively. He attacks 1) the search, 2) the arrest, 3) the denial of an in-court lineup, and 4) the sufficient of the evidence.

The Automobile Search

The appellant was alone in his automobile when he was stopped. He was arrested and ordered to alight from his vehicle. He was directed to produce the keys to the trunk, with which the police opened the locked trunk. Underneath some clothing, they discovered a dark-colored briefcase. It was locked. After the appellant failed to produce a key for the briefcase, the police snapped it open. Much of the incriminating evidence was found inside the briefcase. The rest had been found inside the locked trunk. In any event, the search could not qualify as a 'search incident' to a lawful arrest, which must be limted in geographic scope to the person of the arrestee and the immediately surrounding area 'which may fairly be deemed to be an extension of his person.' Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Brown v. State, 15 Md.App. 584, 597-598, 292 A.2d 762, 769. If the warrantless search of the automobile is to pass constitutional muster, it must qualify rather under the so-called 'automobile exception,' Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, to the basic proposition that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. The necessary conditions for such qualification are 1) probable cause to believe that the automobile contains evidence of crime and 2) exigent circumstances making the warrant procedure impractical and making the resort to the warrantless search reasonable and necessary. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Peterson, Deal and Hunt v. State, 15 Md.App. 478, 491-492, 292 A.2d 714.

Probable Cause

We take up first the quantitative analysis of probable cause, which involves, in turn, the qualitative analysis of hearsay information coming to Officer Womack from a police informant.

Officer Womack was at home in Alexandria, Virginia, at approximately 12:30 a. m. on September 19, 1971, when he received a telephone call from one of his regular informants. That phone call trigered the police action of the next few hours and supplied the great bulk of the probable cause on which that action was predicated. In making our constitutionally-mandated independent review of the Fourth Amendment questions before us, it becomes our duty to evaluate that informant and his information by the 'two-pronged' test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as explicated by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

The interpretions placed by the Twelfth Century Glossators upon the Institutes of Gaius and Justinian were not more extensive than 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, 294 A.2d 109; Kraft v. State, 16 Md.App. 347, 297 A.2d 328; Lomax v. State, 16 Md.App. 502, 298 A.2d 454; King and Mobley v. State, 16 Md.App. 546, 298 A.2d 446; Thompson v. State, 16 Md.App. 560, 298 A.2d 458.

We look first to the Aguilarian mandate that Officer Womack have furnished to the trial court, in this case in the course of a pretrial suppression hearing, 'some of the underlying circumstances from which the officer concluded that the informant . . . was 'credible' or his information 'reliable." Aguilar, at 114 of 378 U.S., at 1514 of 84 S.Ct. It is the 'credibility' aspect which concerns us here. ²

A. Credibility of Informant

Officer Womack detailed for the trial court, at the suppression hearing, that he had worked with his informant for a number of months. On many occasions, he had received information from his informant as to narcotics activity within the Washington metropolitan area. This information included names, addresses and modes of operation of a number of known narcotics dealers in Washington. Some of this information was already known by Officer Womack. His own information agreed with that furnished by the informant. Other information, not known to Officer Womack, was checked out by him and found to be true. On one occasion, the informant alerted Officer Womack to a private residence where drugs were being sold. Officer Womack went with the informant to the vicinity of that residence. The officer searched the informant and found him to be free of any drugs or money. He then handed money to the informant and instructed him to go into the premises and to purchase narcotic drugs. The informant did so. An arrest was made as a result of this activity, and a large quantity of high-grade heroin was seized under a search warrant, which was based upon this same activity. Officer Womack indicated that he had received reliable information from the informant on more than twenty occasions.

We conclude, as did Judge Powers, that Officer Womack had shown his informant to be 'credible.' Dawson v. State, 14 Md.App. 18, 284 A.2d 861; Moore v. State, supra; Holland v. State, supra.

As will be referred to more fully in our discussion of the ultimate question of probable cause, Officer Womack had, in addition, independent knowledge which verified in part the story told by the imformant. We deliberately eschew detailing that knowledge at this point, however, so as not to water down our holding that the internal recitation alone about the informant was sufficient to establish his credibility intrinisically. Dawson v. State, 14 Md.App., at 32-35, 284 A.2d 861; Spinelli described the buttressing technique, at 415 of 393 U.S., at 588 of 89 S.Ct.:

'If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate's decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration?'

The tip not having been 'found inadequate under Aguilar,' the extrinsic corroboration is redundant in this context.

B. Basis of Knowledge: Self-Verifying Detail

The 'basis of knowledge' prong of Aguilar's 'two-pronged' test requires that the officer pass on to the trial judge 'some of the underlying circumstances from which the informant concluded' that the evidence was where he claimed it would be. Aguilar, at 114 of 378 U.S. 84 S.Ct. 1509. At one point in his cross-examination at the suppression hearing, Officer Womack gave the general response that his informant was speaking on the basis of personal knowledge. In his lengthier recital in chief of the information passed on to him by the informant, however, Officer Womack never established the pedigree of the information. We lack the direct and explicit reassurances that could remove all doubt: 'The informant told me that which he saw with his own eyes; that which he heard with his own ears; that which he touched with his own fingers; that which he smelled with his own nose.' Even failing such explicit reference to the observations of the informant's own senses, we are yet not bereft. Spinelli points out that if the information is furnished in sufficient detail, it may, under Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, be 'self-verifying,' on the theory that only a first-hand observer could ever possess such minute detail. It said, at 416-417 of 393 U.S. at 589 of 89 S.Ct.:

'In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or...