State v. Kraft

Decision Date30 July 1973
Docket NumberNo. 344,344
PartiesSTATE of Maryland v. Betty Jean KRAFT.
CourtMaryland Court of Appeals

George A. Eichhorn, III, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Gary Melick, Asst. Atty. Gen., Baltimore, and Joseph D. Weiner, State's Atty. for St. Mary's County, Leonardtown, on the brief), for appellant.

Neal P. Myerberg, Lexington Park, for appellee.


SMITH, Judge.

The sole question presented in this case is the validity of a search warrant, whether the affidavit properly established probable cause. The Court of Special Appeals in Kraft v. State, 16 Md.App. 347, 297 A.2d 328 (1972), held the warrant should not have been issued. We granted certiorari in order that we might consider the question, particularly in the light of our holding in State v. Edwards, 266 Md. 515, 295 A.2d 465 (1972). For reasons which we shall set forth, we conclude the Court of Special Appeals erred in its holding.

The warrant in question was issued upon the basis of the application and affidavits of two deputy sheriffs of St. Mary's County. The application was for a warrant to search a residence in Lexington Park, St. Mary's County, said to be 'occupied by one; Betty (Blaylock) Kraft, and one David Thompson.' At trial the rental agreement between the landlord and Mr. Thompson and Mrs. Kraft was placed in evidence. The information contained in the affidavit submitted to obtain the search warrant was as follows:

'That on or about 1 September 1971, one; Peter Fletcher, a known and convicted Heroin user was seen at this apartment. Further that on the 3RD of October 1971, information from a reliably established informant, who is responsible for eleven narcotics arrests, states that the Thompson subject is making trips to the Wash. D. C. area twice weekly to obtain narcotics, and is transporting them back into the County. Further, this informant states that he has personally observed the Thompson subject with 100 units of LSD on the 2ND of October 1971.

'Further, that on 4 October 1971, information from a second informant, who has provided reliable information to this Dept. for the past six months, and who has also purchased LSD and other narcotics from the Thompson (sic) in the past states that he had seen large quantities of LSD and amphetamines in the Thompson apt. on 3 October 1971. Further, on 6 October 1971, this same informant states that he personally observed a large quantity of LSD, described as; White Lightnings, and Orange Paradise, in a tin can in the refrigerator in the Thompson apt.

'The Kraft subject residing at this address is known by Dept. Clarke to be an admitted user of Heroin.'

The Court of Special Appeals in striking down the warrant said in pertinent part:

'In the instant case the assertion that the first informant 'is responsible for eleven narcotics arrests,' unsupported by further detail would not enable the magistrate to conclude that that informant was credible or his information reliable. He was not told whether the cases had been tried or, whether they had resulted in acquittals or convictions. The magistrate was not informed whether materials found at the time of the arrests corresponded with the information supplied by the informant. He was not apprised as to the police assessment of the value of the information furnished by the informant, e. g., whether it amounted to more than an underworld rumor which, to be of any value, would have to be corroborated by independent information. The magistrate was not informed whether the informant's previously furnished information had always proved correct. See concurring opinion of Moylan, J., in Dawson v. State, 14 Md.App. 18, 284 A.2d 861 at 870.

'Referring to the second informant, it is clear the 'reliable information' is too general to support reliability under Moore v. State, (13 Md.App. 711, 284 A.2d 614 (1971)). The affidavit further says that the second informant has 'purchased LSD and other narcotics from the (sic) Thompson in the past.' While admission of crime by an undisclosed informant may be an element to consider in determining that informer's credibility, United States v. Harris, (403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971),) here the assertion of generally related criminal activity in the indefinite past cannot lend credibility to an informant who is baldly alleged to be reliable. (Citing cases in the Court of Special Appeals.) As to remoteness in time see, Johnson v. State, 14 Md.App. 721, 288 A.2d 622.

'Although the statement '(t)hat on about 1 Sept. 1971, one; Peter Fletcher, a known and convicted Heroin user was seen at this apartment,' would add some slight support to the informants' information, unfortunately the statement is deficient in that the observer is not identified. We cannot make the assumption that the observer was one of the affiants; the affiants could well have received this information from others. The final statement that '(t)he Kraft subject residing at this address is known by Dept. Clarke to be an admitted user of Heroin' is as bald and unilluminating an assertion as the statement 'entitled to no weight' that 'William Spinelli is known to this affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.' Spinelli v. United States, (393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). See Grimm v. State, 7 Md.App. 491, 256 A.2d 333. Here, there is absolutely nothing to indicate the source of the officer's 'knowledge' concerning the 'Kraft subject.'

'The credibility of an unnamed informant is at best, suspect. Where, as here, the informers were not shown to be reliable, and there are no legally competent facts, circumstances or observations to add to their information, we cannot say that a prudent and cautious man would be justified in finding probable cause to believe that an offense was being committed at the residence sought to be searched. Grimm v. State, 6 Md.App. 321, 251 A.2d 230. Of course, the allegations of personal observations by each of the unnamed informants would have supported the finding of probable cause had their reliability in some way been established, or their information corroborated.' Id. 16 Md.App. at 351-352, 297 A.2d at 331-332.

We approach our evaluation of this affidavit bearing in mind the old quotation that 'a man's house is his castle'; 1 that in an effort to protect future citizens of this great country from abuses known in the past many of our forebears insisted as a condition to ratification of the Constitution of the United States that there should be added to that document the amendments commonly called the 'Bill of Rights'; that under one of those amendments to that Constitution, the Fourth, '(t)he right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, 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'; and that what we are here concerned with is the delicate balancing of the rights of the individual on the one hand to be secure in his home and on the other the right of society in the person of the sovereign to pursue violators of the law.

In essence, the issue here is whether there was probable cause for the issuance of the warrant, a term defined by Chief Judge Brune for this Court in Dean v. State, 205 Md. 274, 284, 107 A.2d 88 (1954), as less than certainty of truth, but more than suspicion or possibility. It is conceded that if this affidavit satisfies the various tests previously laid down by the Supreme Court of the United States, probable cause is established. In our evaluation of this affidavit in comparison with affidavits in other cases we must remember the comment in State v. Kasabucki, 52 N.J. 110, 244 A.2d 101 (1968):

'(N)o mathematical formula exists for application either by a trial or appellate court in deciding whether a search warrant was supported by probable cause. Each case depends upon a sensitive appraisal of the circumstances shown to the issuing judge.' Id. at 117-118, 244 A.2d at 104.

We shall also bear in mind the comment of the Supreme Court in June of this current year in Cady, Warden v. Dombrowski, -- U.S. --, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (decided June 21, 1973), 'The ultimate standard set forth in the Fourth Amendment is reasonableness.'

In Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), it was pointed out that the preference for a warrant is so marked that less persuasive evidence will justify the issuance of a warrant than would justify a warrantless search or warrantless arrest. Mr. Justice Goldberg there said for the Court:

'Thus, when a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing courts will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,' (Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960),) and will sustain the judicial determination so long as 'there was substantial basis for (the magistrate) to conclude that narcotics were probably present . . .." Id. at 111, 84 S.Ct. at 1512.

In fact, he went on to quote from the opinion of Mr. Justice Jackson in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), where the Court said that the public is protected by 'requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.'

In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), Mr. Justice...

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