State v. Ward, 35

• Decision Date: 01 September 1997
• Docket Number: No. 35,35
• Citation: 350 Md. 372,712 A.2d 534
• Parties: STATE of Maryland. v. Gary R. WARD. ,
• Court: Maryland Court of Appeals

Page 372

350 Md. 372

712 A.2d 534

STATE of Maryland. v. Gary R. WARD.

No. 35, Sept. Term, 1997.

Court of Appeals of Maryland.

July 1, 1998.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Petitioner.

Brian J. Murphy, Baltimore, for Respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, Judge (retired), Specially Assigned.

RODOWSKY, Judge.

The issue in this search warrant case is whether there was probable cause to believe that instrumentalities and evidence of a street murder could be found in the residence and/or motor vehicle of the person identified as the murderer. As explained below, we hold that there was probable cause.

Shortly before 11:30 p.m. on Wednesday, September 30, 1992, Alfred Stewart (Stewart) was shot a number of times and killed on a public street in Baltimore City. Over the next two days persons who would not identify themselves telephoned the police stating that the respondent, Gary R. Ward (Ward), had murdered Stewart. Ward was brought to police headquarters for questioning, and his automobile was towed there. Ward was not charged at the time, but the police would not allow Ward to drive his car away because its license tags had expired. Three days after the murder an eyewitness identified Ward in a photographic array as Stewart's killer. The police then obtained the subject warrant to search Ward's home and automobile. Seized in the search of the automobile were three .357 "MAG" hollow point cartridges. These were introduced into evidence by the State at Ward's trial on charges of murder in the first degree and of using a handgun in the commission of a crime of violence.

That trial was conducted in November 1993. Ward was convicted and sentenced to life imprisonment. On appeal, the Court of Special Appeals, in an unreported opinion dated November 9, 1994, remanded for the limited purpose of holding a suppression hearing. ¹ On remand the Circuit Court for Baltimore City conducted a hearing and denied the motion to suppress in September 1995. Ward again appealed, and the Court of Special Appeals reversed in an unreported opinion filed January 7, 1997. That court concluded "that the search warrant was invalid because the affidavit lacked information of nexus between the item sought and the place to be searched." The State moved for reconsideration, contending that the opinion of January 7, 1997, conflicted with the opinion of November 9, 1994. That motion was denied in an unreported opinion filed March 20, 1997, in which the court held "that there was nothing in the warrant documents upon which the officer could have based objectively reasonable reliance that the automobile contained evidence of the crime involved."

We granted the State's petition for certiorari. That petition raises only the nexus issue.

Application for the search warrant here involved was made on October 4, 1992, four days after the Stewart murder. The affiant was a detective of the homicide unit of the Baltimore City Police. His thirteen years' experience included work in the drug enforcement and vice units. The warrant sought was to search "[a] two (2) story row-type dwelling" located at 1634 Darley Avenue in Baltimore City and a 1983 Oldsmobile Cutlass, described by tag number, serial number, and color. Set forth in the margin is the text of the affidavit, excluding those portions describing the places to be searched and the background of the affiant. ² United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), directs how the affidavit is to be read by courts reviewing the magistrate's decision to issue a search warrant.

"If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants ... 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."

Id. at 108, 85 S.Ct. at 746, 13 L.Ed.2d at 689.

I. The Inferences

With the foregoing guidance in mind, we turn to a review of the affidavit in the instant matter. Stewart was shot late on the evening of September 30, 1992, in the 1400 block of Cliftview Avenue in the Eastern District of the Baltimore City Police Department. Inasmuch as the cause of death was multiple gunshot wounds and his body was found lying between two parked cars, the inference is that Stewart was gunned down on the public street. The warrant authorized a search for, inter alia, "Handguns, Ammunition, Personal Papers showing ownership/possession of a firearm." It is self-evident that the murder weapon was not found at the crime scene.

The fact that the first of the witnesses who telephoned the police would not identify themselves is significant. These witnesses knew Ward by sight and name. There was no information from any caller that the murderer was a person other than Ward. Ward, age twenty to twenty-one, had an arrest record that included two or more handgun "[v]iolations." All of this information permitted the magistrate to infer that these witnesses were unwilling to identify themselves because they feared Ward. The affidavit described Ward, not in terms but in reasonable inference, as a person to whom a handgun and ammunition are items of utility and value. Consequently, the magistrate could infer a reasonable probability that, between the murder and the application for the warrant, Ward had not disposed of the murder weapon and that Ward would be even less likely to have disposed of the weapon's less incriminating bullets.

The magistrate further could infer that the weapon was not on Ward's person when he was brought in for questioning less than forty-eight hours after the murder. As a matter of self-protection the police most certainly would have done a pat-down for weapons when they accosted Ward, and the police were still looking for the murder weapon when they applied for the warrant. Apparently Ward was accosted when he was in or about his automobile, inasmuch as the police towed that automobile to headquarters while Ward was transported to headquarters by other means. Thus, the weapon was not in plain view in Ward's automobile when the police towed it.

Under the authorities reviewed below, the magistrate had probable cause to believe that the murder weapon and associated evidence of the crime of murdering Stewart could be found in Ward's home and/or in his automobile, but out of view. Because more court decisions deal with residences than with automobiles, we shall review the residence cases first.

II. The Residence

That there was probable cause to find a nexus in the instant matter is supported by Mills v. State, 278 Md. 262, 363 A.2d 491 (1976).

Mills was convicted of kidnapping two women and of raping and robbing one of them. He was arrested on the day following the crimes when he was identified by the rape victim while he was on a public street. The crimes had been effected by threatening the victims with a hunting knife which was not on Mills's person when he was arrested. The victims were able to give a detailed description of the knife which the police seized under a warrant, issued after Mills's arrest, for the search of his residence. Mills contended, inter alia, on appeal to the Court of Special Appeals that there was no probable cause for the search. Mills v. State, 28 Md.App. 300, 303, 345 A.2d 127, 129-30 (1975). The opinion by the Court of Special Appeals does not quote from the application for the warrant, but the court upheld the search on the following rationale:

"The remaining question is, therefore, whether the affidavit as presented demonstrated probable cause within its four corners, as required. We think that the law in Maryland is clear in this regard. In Grimm v. State, 6 Md.App. 321, 251 A.2d 230 (1969), cert. denied 397 U.S. 1001[, 90 S.Ct. 1150, 25 L.Ed.2d 412] (1970) and Reidy v. State, 8 Md.App. 169, 259 A.2d 66 (1969) this Court found no defects in warrants issued to search residences where weapons used in the commission of recent crimes could reasonably be found. Chief Judge Murphy, in Reidy, where the affidavit related that an individual had been shot with a .22 caliber weapon and that there was a witness to the crime who identified the defendant as the perpetrator, observed:

" 'We think that it was reasonable, given the information set out in the application for the warrant, for police to believe that the gun used in the crime could be found in appellant's house.' [Citing Grimm.]

"We reach the same conclusion concerning the knife and sheath in the instant case and therefore find no error in their admission."

Id. at 305, 345 A.2d at 130-31.

This Court granted certiorari in Mills and affirmed. The opinion summarized the affidavit which described in detail the offense, the arrest of Mills, the knife, and the place to be searched. The only express facts dealing with the nexus between the knife and Mills's residence was that Mills, when arrested, was " 'not carrying a weapon similar to the one described by' the two victims." Mills, 278 Md. at 276, 363 A.2d at 499. We quoted favorably the following passage from United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970), a prosecution for theft from the mails:

" '[T]his court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the...