Spease v. State

• Decision Date: 29 May 1975
• Docket Number: No. 120,120
• Citation: 275 Md. 88,338 A.2d 284
• Parties: Clifton SPEASE and Willie Ross v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 88

275 Md. 88

338 A.2d 284

Clifton SPEASE and Willie Ross v. STATE of Maryland.

No. 120.

Court of Appeals of Maryland.

May 29, 1975.

Fred Warren Bennett, Mt. Rainier, for appellants.

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

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

MURPHY, Chief Judge.

Charged in the Circuit Court for Prince George's County with conspiracy to distribute cocaine, Clifton Spease and Willie Ross filed an oral motion prior to trial to suppress incriminating evidence obtained through a court-authorized telephone wiretap; they contended that the State had violated the terms of the court's wiretap order and the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 Chapter 119, 18 U.S.C. §§ 2510-2520, by not minimizing the interception of communications as required by § 2518(5) and in failing to serve the requisite inventories required by § 2518(8)(d). The trial court denied the oral motion to suppress after an evidentiary hearing. At a jury trial which subsequently ensued, the incriminating evidence obtained through the wiretap was admitted and Spease and Ross were convicted. On appeal, the Court of Special Appeals found no merit in the contention that the trial court erred in denying the motion to suppress. Spease and Ross v. State, 21 Md.App. 269, 319 A.2d 560 (1974). We granted certiorari to determine whether the Court of Special Appeals was correct in so concluding.

Section 2518(5) requires that every order or extension of an order authorizing the interception of wire or oral communications

'shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . ..'

Section 2518(8)(d) directs that within a certain specified time, the judge issuing or denying authorization to intercept

'shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of-

(1) the fact of the entry of the order or the application;

(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and

(3) the fact that during the period wire or oral communications were or were not intercepted.'

Section 2518(10)(a) provides:

'Any aggrieved person (as defined in § 2510) . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that-

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

. . . If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. . . .'

The wiretap order in this case was issued in conformity with Title III and Maryland Code (1971 Repl. Vol.) Art. 35, § 94. ¹ See State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972). That probable cause was shown by the State for issuance of the order was not contested. The material facts underlying issuance of the order are not in dispute and were succinctly outlined in the opinion of the Court of Special Appeals (Moylan, J.), as follows:

'The wiretap order now under review was issued by Judge Ernest A. Loveless, Jr., on December 8, 1971. The probable cause therefor was contained in the affidavit of Detective Snow. The probable cause began accumulating on April 8, 1971, and continued to accumulate over the ensuing eight months. It was learned that Ross, who lived at 7404 Walker Mill Road in the District Heights area of Prince George's County, was a major dealer for the heroin which permeated the Fairmont Heights section of that county. He was the wholesale supplier for Daniel Deal, Shandy Richardson, Jr., Artemus Logan and James Arnett. Throughout the spring of 1971, Ross's modus operandi was for his retailers to come to his apartment at 7404 Walker Mill Road to purchase their uncut heroin in wholesale quantities. They would would then and there 'cut' or dilute the drugs for eventual resale. A discreet surveillance put both the appellant Ross and Daniel Deal together at that address on May 3, 1971.

'Ross's 1967 Cadillac was also observed parked on occasion at the intersection of 61st Street and Eastern Avenue in Fairmont Heights, an intersection frequently used by drug users as a distribution point. The community there is known as 'Junky Hill'.

'Information coming in from the Narcotics Squad of the Washington Metropolitan Police revealed that Ross had sold $900 worth of heroin to a government undercover agent on May 15, 1971, from an address at 7282 79th Avenue in Landover, Prince George's County. A second sale of $500 worth of heroin was made to the same undercover agent on June 5, 1971. This second sale was made from a 1969 Buick, with District of Columbia presonalized tags TJS, which Buick had been observed three days earlier, on June 2, 1971, parked in front of Ross's apartment. The heroin obtained on both May 15 and June 5 was chemically analyzed to be 9.1% pure, a quality of definitely wholesale strength. Street heroin almost universally tested out to be of a strength of 2% or less. On July 13, 1971, the undercover agent who had made the purchases of May 15 and June 5 was shot.

'Detective Snow arrested Ross on July 13, 1971, on two charges of distribution of heroin to the undercover agent. Detective Snow confirmed Ross's address as of that time as 7404 Walker Mill Road.

'On November 17, 1971, Detective Snow learned reliably that Ross was still dealing heavily in both heroin and cocaine. As a result of the July 13 arrest, however, Ross had radically changed his modu operandi. He was apprehensive of police interference and no longer kept the drugs at his home. A prospective purchaser would have to telephone Ross at home. Ross would then direct the purchaser to go to a specified location. Ross would then call a third person to meet him and the purchaser at that location. The third person would bring the drugs from its rotating 'stash.' The designated meeting places would generally be a motel or a location in Palmer Park, Maryland. Discreet surveillance had picked up the appellant Ross, the appellant Spease, one Gloria Holmes and an unknown fourth person at the Howard Johnson's Motel in Cheverly on October 3. Gloria Holmes was a known addict. Police records revealed that narcotics complaints had been lodged against Spease. A records check with the Howard Johnson's Motel revealed that Ross had been a frequent guest there.

'It was established that Ross, post-July 13, would sell drugs only to retail dealers and only in wholesale quantities. He would have no contact with ultimate users. The drugs sold would be of an unadulterated, higher quality and the sales usually involved sums of money in excess of $500. Ross would deal only with persons known to him. Automobile surveillance turned out to be unavailing. Ross regularly used evasive driving techniques-driving around the block several times watching in his rear-view mirror, making unexpected U-turns in the middle of little-traveled streets, etc. To discourage even neighborhood surveillance, Ross had installed a closed circuit television camera mounted on a house across the street, focused on his own apartment with a monitor inside the apartment. After the modus operandi changed on July 13, even Detective Snow's highly credible confidential source was cut off from direct contact with Ross. The entire operation had gone telephonic.' 21 Md.App. at 272-74, 319 A.2d at 562-63.

Finding from Detective Snow's affidavit that there was probable cause to believe that 'Willie Ross and other unknown persons are conspiring to violate and are violating the law with respect to controlled dangerous substances,' and that Ross's home telephone was being used in connection with the conspiracy, the court authorized placement of the wiretap, and interception of communications, 'during all hours of the day and night' from 4:00 P.M. on December 10, 1971, until December 24, 1971, at 8:30 P.M. The court's order specified that the telephone communications to be intercepted would be between Ross and his suppliers, and Ross and his buyers, and would relate to the delivery to Ross by his suppliers, and the delivery by Ross to his buyers of illegal narcotic drugs. The order directed that the wiretap authorization would not automatically terminate 'when the type of communications described above have first been obtained, but should continue until communications are intercepted which reveal the details of the scheme which has been used by Willie Ross and others as yet unknown to receive, counsel, buy and sell illegal narcotic drugs, and the entirety of his confederates, and places of operation and the manner of the conspiracy involved therein or for a period of fifteen days from the date of this Order, whichever is earlier.' In compliance with 18 U.S.C. § 2518(5), the court's order provided that the wiretap 'be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.' In accordance with the requirements of 18 U.S.C. § 2518(8)(d), the court's order directed.

'that within a reasonable time, but not later than ninety (90) days after the termination of the Order entered herein there shall be served, on the persons named in the Order, and such other parties to intercepted communications as the court may determine in...