State v. Graziano
| Decision Date | 09 March 1973 |
| Docket Number | No. 289,289 |
| Parties | STATE of Maryland v. Constance Josie GRAZIANO et al., Vincent Joseph Lamartina, Additional Appellee. |
| Court | Court of Special Appeals of Maryland |
Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Samuel A. Green, Jr., State's Atty. for Baltimore County and Stuart E. Hirsch, Asst. State's Atty. for Baltimore County, on the brief, for appellant.
W. Lee Harrison, Towson and Cooper G. Graham, Baltimore, for appellees Vincent J. Lamartina, Paul F. Schulman and Sam Santo Alascio.
Stephen L. Miles, Baltimore, for appellees Grace Sara Rykiel, Edward Joseph Rykiel, Laura Katherine Portera, Cosimo Portera, Constance Josie Graziano, Goldie Schulman, Daniel Schulman and Michael Angelo Graziano, with whom were Russell J. White, Towson, Michael J. Lambros, Cockeysville, Frank B. Cahn, II, Baltimore, and Thomas L. Hennessey, Towson, on the brief.
Argued before ORTH, C. J., and THOMPSON and DAVIDSON, JJ.
Sam Santo Alascio, Constance Josie Graziano, Michael Angelo Graziano, Cosimo Portera, Laura Catherine Portera, Edward Joseph Rykiel, Grace Sara Rykiel, Daniel Schulman, Goldie Schulman and Paul Frank Schulman, appellees, were charged with various violations of the gambling laws of Maryland as presented in indictments numbered 41493, 41495, 41498, 41500, 41501, and 41502 returned by the Grand Jury for Baltimore County on 26 April 1971. All the evidence which could be adduced by the State to prove the charges derived from the interception of telephone communications. The interception was authorized by an order of 18 December 1970 of the Circuit Court for Baltimore County. The order was issued upon the sworn petition of the State's Attorney of Baltimore County supported by the affidavit of the Special Services Unit, Maryland State Police, pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Code, Art. 27, § 125A, and Code, Art. 35, §§ 92-99. Appellees filed pretrial motions to suppress the evidence and to dismiss the indictments. On 14 April 1972, upon hearing, both motions were granted. The State appealed from the order dismissing the indictments. See Code, Art. 5, § 14; State v. Simms, 13 Md.App. 203, 282 A.2d 533; State v. Hunter, 10 Md.App. 300, 270 A.2d 343.
We have found that a judicially approved interception of communications is constitutionally permissible if issued and conducted under the rigid controls of the Fourth Amendment to the Constitution of the United States. Conversation is within the ambit of Fourth Amendment protection and the use of electronic and wiretapping devices to intercept it is a search within the meaning of that Amendment. State v. Siegel, 13 Md.App. 444, 449, 285 A.2d 671, aff'd., 266 Md. 256, 292 A.2d 86. The Fourth Amendment proscribes the issuance of any warrant '. . . but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' The action of the court below was predicated upon its finding that there was not sufficient probable cause for the issuance of the order, and, therefore, the order was invalid as violating the constitutional prohibition. The State claims that the court was wrong in this judgment; appellees urge that it was right.
It has been firmly established in this State that the court's consideration of the showing of probable cause must be confined to the affidavit alone. No evidence may be received outside the four corners of the affidavit either to show the existence of probable cause or to controvert the truth of the allegations therein. Scarborough v. State, 3 Md.App. 208, 211-212, 238 A.2d 297.
The affidavit here stated that the affiant, a police officer for 20 years, was regularly assigned to investigate violations of the laws regulating gambling within Maryland. He had participated in hundreds of such investigations, including those pertaining to lottery, and had made many arrests throughout the State for such violations. Early in December 1970 he received information from two confidential informants. Informant #1 had 'on several occasions' furnished affiant 'with information concerning violations of the lottery laws in this State, which led directly to the arrest and conviction of no less than eight (8) such persons for said violations . . .' What Informant #1 told affiant was set out in the affidavit:
'(T)he said informant had made 'connections' with certain members of a lottery ring which enabled the said informant to place lottery wagers via telephone with a certain unidentified female known to the informant only by a certain code number consisting of a certain combination of two digits; that the said informant had sought these 'connections' at the request and direction of your affiant, and had placed lottery wagers, as aforesaid, at the direction of your affiant; that the said informant advised your affiant the method of operation insisted upon by the 'connection' requires that the informant be at a certain telephone at a certain prearranged time each day, except Sunday to receive a telephone call for the purpose of placing lottery wagers with the caller; the informant further advised that both the 'connections' and the unidentified female who initiates the telephone call, as aforesaid, have refused to provide the said informant with a telephone number which would enable the informant to initiate the telephone call and place the wagers, as aforesaid, and that the unidentified female advised the said informant it would be necessary that the informant be available to receive the telephone call at the specified time because she had many such calls to make and could not call back; . . .'
Affiant directed Informant #1 to continue placing the wagers. About ten days later Informant #1 told affiant that he had played the numbers daily, except Sunday, under the same procedures and that the female caller, identifying herself by the code was the same person each day.
During the ten day period in which Informant #1 was placing wagers as directed, affiant got in touch with Informant #2. The affidavit stated the basis of his reliability: '. . . Informant #2 has given your affiant information in the past concerning gambling violations which has proven to be accurate and correct . . .' The affidavit set out what Informant #2 told affiant:
'(L)ottery wagers were then being accepted via telephone numbers 655-3024 in the Baltimore, Maryland area; that Informant #2 advised your affiant the person accepting these wagers is a female who identifies herself only by a code number consisting of a certain combination of two digits; that your affiant was advised Informant #2 could not place such lottery wagers personally but had observed a 'friend' dial telephone number 655-3024, and said Informant #2 had continued to observe as the 'friend' read from a list of lottery numbers and concomitant wagers to the...
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...thereto. . . .'6 See also Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).7 See also State v. Graziano, 17 Md.App. 276, 301 A.2d 36 (1973); State v. Lee, 16 Md.App. 296, 295 A.2d 812 (1972). See as well Robert v. State, 220 Md. 159, 151 A.2d 737 (1959), where the ......
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