Spease v. State

• Decision Date: 21 May 1974
• Docket Number: No. 419,419
• Citation: 21 Md.App. 269,319 A.2d 560
• Parties: Clifton SPEASE and Willie Ross v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 269

21 Md.App. 269

319 A.2d 560

Clifton SPEASE and Willie Ross v. STATE of Maryland.

No. 419.

Court of Special Appeals of Maryland.

May 21, 1974.

Fred Warren Bennett, Rockville, for appellants.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Elias Silverstein, Asst. State's Atty. for Prince George's County, on the brief, for appellee.

Argued before MOYLAN, GILBERT and LOWE, JJ.

MOYLAN, Judge.

The appellants, Clifton Spease and Willie Ross, were convicted in the Circuit Court for Prince George's County by a jury, presided over by Judge Robert B. Mathias, of conspiracy to distribute cocaine. Ross was sentenced to a term of 20 years and Spease, to one of 15 years.

The prosecution was the latest episode in the continuing effort of Prince George's County authorities, spearheaded by Detective Elmer L. Snow, to crack the higher echelons of the apparatus behind the widespread trafficking in illicit drugs in that county. The evidence at bar is permeated with familiar names from Peterson, Deal and Hunt v. State, 15 Md.App. 478, 292 A.2d 714, and Soles v. State, 16 Md.App. 656, 299 A.2d 502.

The first of six assignments of error goes to the denial of the appellants' pretrial motion to suppress incriminating conversations seized by a court-ordered wiretap. A resume of the probable cause for the issuance of the wiretap order will help place the ensuing discussion of the manner of execution of that order in factual perspective.

The focus of the investigation was upon the appellant Ross. The appellant Spease was caught up in the net thrown about Ross.

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. ¹ 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 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 personalized 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 modus 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 survellance, 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.

On December 8, 1971, Judge Loveless issued the order authorizing Detective Snow, and necessary assistants, to tap Ross's home phone, placing the tap as soon as feasible after 4 p. m. on December 10, 1971, and continuing the tap through 8:30 p. m. on December 24, 1971. Because the investigation was aimed at all possible buyers in the network emanating from Ross and also at the unknown supplier of Ross, the order provided that the interception should not automatically terminate when some incriminating evidence had been obtained but should continue until all aspects of the illicit operation had been revealed. The tap was placed at 12:25 p. m. on December 11. Progress reports were made to Judge Loveless on the fifth, tenth and fifteenth days of the intercept. On December 16, the State's Attorney reported to the judge that during the first five days of the tap, 130 telephonic interceptions had been made, of which total approximately 25 calls were believed to be involved in the drug conspiracy. Surveillances were then established at a number of locations revealed by the intercepted calls. On December 21, the State's Attorney reported to the judge that during the second five days of interception, approximately 234 telephonic interceptions had been made, of which total approximately 20 phone calls were believed to be involved in the conspiracy. On December 27, the final report to the judge revealed that during the last four days of the intercept, approximately 190 telephonic interceptions had been made, of which total approximately 10 calls involved conspiratorial operations.

The order to intercept the telephonic communications was issued in full compliance with Art. 35, Sec. 94, of the Annotated Code of Maryland, and with Title III, Omnibus Crime Control and Safe Streets Act of 1968, Chapter 119, Title 18, United States Code, §§ 2510-2520. The appellants do not challenge the constitutionality of the statutes authorizing wiretaps. See State v. Siegel, 266 Md. 256, 292 A.2d 86; State v. Siegel, 13 Md.App. 444, 285 A.2d 671; Pennington v. State, 19 Md.App. 253, 310 A.2d 817. Nor do the appellants challenge the facial adequacy of the wiretap order itself. There is, therefore, no initial inadequacy tainting all subsequent police action under the order, as in State v. Siegel, supra, or in State v. Lee, 16 Md.App. 296, 295 A.2d 812. ² The appellants confine their attack to the manner in which the order was executed. They are chagrined in two regards.

They claim that the police, in executing the order, failed to comply with Title 18, § 2518(5), which provides, inter alia:

'Every order and extension thereof . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . .'

Additionally, they claim that the police also failed to comply with § 2518(8) (d), which provides, in pertinent part:

'(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge 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.'

The Minimization Question

The Compliance Issue

In our judgment, the appellants cannot prevail in their contention that the failure to minimize the interceptions mandated the suppression of incriminatory conversations. We believe this is so for two reasons. In the first...