State v. Edwards

• Citation: 266 Md. 515,295 A.2d 465
• Decision Date: 16 October 1972
• Docket Number: No. 7,7
• Parties: STATE of Maryland v. Horace L. EDWARDS.
• Court: Court of Appeals of Maryland

Page 515

266 Md. 515

295 A.2d 465

STATE of Maryland v. Horace L. EDWARDS.

No. 7.

Court of Appeals of Maryland.

Oct. 16, 1972.

Clarence W. Sharp, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Edward F. Borgerding, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Gerald A. Kroop, Baltimore, on brief, for appellee.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

SMITH, Judge.

Horace L. Edwards was convicted in the Criminal Court of Baltimore on several charges involving violations of the narcotic laws. He was sentenced to concurrent terms of imprisonment, the two longest of which were for 12 years. On appeal, the Court of Special Appeals in Edwards v. State, 13 Md.App. 546, 284 A.2d 10 (1971), reversed the convictions without awarding a new trial on the ground that the affidavit filed 'failed to show probable cause for the issuance of the search warrant' which was the basis for the conviction. We granted certiorari. We shall reverse and remand the case to the Court of Special Appeals for further proceedings.

To understand the case it is necessary to quote the affidavit in its entirety:

'AFFIDAVIT in support of a Search and Seizure Warrant for the premises known as 1210 McElderry Court apartment A-3 which is kept, rented, used or occupied by a colored male known as Horace and a C/F one Brenda Stokes.

'By: Officer Robert Cohen and Leonard Santivasci Eastern Special Operations.

'After receiving information concerning Narcotics Violations being committed at 1210 McElderry Court Apartment A-3 we sent a informant who has been reliable in the past giving information in 12 cases of Narcotic violations to this location. He stated he was admitted to the apartment by a colored female known to him as Brenda Stokes and once inside he met a colored male known to him as Horace. He stated he had a conversation with Horace about trying to buy drugs. Horace stated he had just got some good stuff in, but it wasn't ready yet and they walked into the kitchen and the informant observed empty glassine bags on the table along with measuring spoons and a quantity of white powder. The subject Horace stated it would be a while before he could do anything for him and that when he was ready it would be on the street with his dealers and not to come to the house as he didn't want him there. The informant is familiar with the gelatin caps and envelopes used in the Narcotic operations as he is a addict himself.

'Because the source of information to the affiants mentioned in the opening paragraphs has given information to the affiants on previous occasions and which was correct and because this same information is given by other sources we believe that there are now illicit narcotic drugs and paraphernalia being secreted in the house by Horace and Brenda Stokes and they are with full knowledge and consent letting the premises be used for the purpose of selling Narcotic drugs.

/s/ Officer Robert Cohen

/s/ Officer Leonard Santivasci

'SUBSCRIBED TO AND SWORN TO BEFORE ME THIS 30 DAY OF SEPT. 1970.'

The Court of Special Appeals stated:

'It will be noted the affidavit fails to state the time of the events relied upon to show probable cause; thus there is no way the magistrate could determine there was probable cause to believe that the premises involved contained contraband on the date the warrant was issued.' Id. at 548, 284 A.2d at 11.

although it recognized the existence of what has been called in some places the 'present tense rule' of interpretation of affidavits for search warrants. See in this regard Annot., 100 A.L.R.2d 525 (1965), to which it referred.

The finding of 'probable cause,' while demanding more than mere suspicion, Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), requires less evidence than would justify conviction, Locke v. United States, 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. United States, 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. United States, supra, 358 U.S. at 311, 79 S.Ct. 329, 3 L.Ed.2d 327, and may in fact be hearsay, Jones v. United States, 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. United States, 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).

Stripped of all gloss and technicalities, the real issue, the closest we can come to the litmus-paper test mentioned in United States v. Rabinowitz,339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), in the evaluation of whether a search warrant was properly issued is the presence or absence of probable cause, a term defined by Chief Judge Brune for the Court in Dean v. State, 205 Md. 274, 284, 107 A.2d 88 (1954), as less than certainty of proof, but more than suspicion or possibility. The term and our concern were summed up by the Supreme Court in Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 549, 69 L.Ed. 1032 (1925), when it said:

'We are concerned only with the question whether the affiant had reasonable grounds at 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.' Id. at 441, 45 S.Ct. at 549.

In Henson v. State, 236 Md. 518, 521, 204 A.2d 516 (1964), and Henderson v. State, 243 Md. 342, 344, 221

A.2d 76 (1966), Judge Hammond discussed probable cause at some length for the Court. In the latter case at page 347 of 243 Md., 221 A.2d 76 he quoted extensively from the comments of the Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), relative to the need for a common sense approach in evaluating affidavits submitted in connection with search warrants. Mr. Justice Goldberg said for the Court in Ventresca:

'(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

'This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. See Aguilar v. Texas, supra. . . . However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U.S. at 270, 80 S.Ct., at 735.' Id. at 108-109, 85 S.Ct. at 746.

A number of courts have recognized that the very language of an affidavit, while not specifying in so many words an exact date or time, when taken as a whole may be indicative of a present violation.

In Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964), an affidavit was submitted by an F.B.I. agent on March 22, 1962, in which he said that another F.B.I. agent had advised of the theft of certain fur stoles and jackets on February 10, 1962. The affidavit reported that on March 16 a confidential informant had said 'that during the previous week' he had seen certain fur jackets and stoles in the basement of the defendant's home. Labels had been removed and the informant was told the furs were stolen. The challenge to the search warrant included a claim that 'during the previous week' was too indefinite. Mr. Justice Clark said for the Court:

'We believe that there was substantial basis for the Commissioner to conclude that stolen furs were probably in the petitioner's basement. No more is required.' Id. at 533, 84 S.Ct. at 828.

In United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the Court was concerned with the sufficiency of an affidavit for a search warrant. In a footnote Mr. Chief Justice Burger said for the Court:

'We reject the contention of respondent that the informant's observations were too stale to establish probable cause at the time the warrant was issued. The informant reported having purchased whiskey from respondent 'within the past 2 weeks,' which could well include purchases up to the date of the affidavit. Moreover, these recent purchases were part of a history of purchases over a...