Thompson v. State

• Citation: 16 Md.App. 560,298 A.2d 458
• Decision Date: 08 January 1973
• Docket Number: No. 303,303
• Parties: Guy Charles THOMPSON, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 560

16 Md.App. 560

298 A.2d 458

Guy Charles THOMPSON, Jr. v. STATE of Maryland.

No. 303.

Court of Special Appeals of Maryland.

Jan. 8, 1973.

Certiorari Denied March 14, 1973.

Gerald A. Kroop, Baltimore, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Mark Van Bavel, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before THOMPSON, MOYLAN and DAVIDSON, JJ.

MOYLAN, Judge.

This case prompts a consideration of the long-neglected alternative spur of Aguilar's ¹ 'veracity' prong. The two-pronged test of Aguilar established constitutional guidelines for measuring hearsay information in a probable cause setting (either as predicate for a warrant or for acting, under appropriate circumstances, without a warrant). The 'basis of knowledge' prong requires of him who would act upon hearsay, a knowledge 'of some of the underlying circumstances' upon which the informant based his conclusion. The 'veracity' prong is in the alternative. It requires of him who would act upon the hearsay, a knowledge of 'some of the underlying circumstances' which leads to the conclusion that the informant is 1) 'credible or (2)) his information reliable.'

Most of the case law treats exclusively of the 'credibility' aspect of the 'veracity' prong. In Dawson v. State, 14 Md.App. 18, 35, 284 A.2d 861, 870 (concurring opinion), we despaired at the failure of the Supreme Court to make clearer the meaning of the phrase 'or his information reliable':

'The intrinsic approach to veracity is an alternative one in that Aguilar commands that the magistrate 'be informed of some of the underlying circumstances from which the officer concluded that the informant' was 'credible' or 'his information reliable.' The Supreme Court, ironically, has never discussed the impact of the language, 'or his information reliable.' Arguably, supporting facts which show that an informant's information is 'reliable' thereby show also that the informant is, on that occasion at least, 'credible.' Unless the alternative phraseology is meaningless, the informant's 'credibility' would seem to involve his inherent and ongoing character as a person-his reputation and demonstrated history of honesty and integrity. Informational 'reliability,' as something separate from its source's credibility, would seem to involve some circumstances assuring trustworthiness on the particular occasion of its being furnished. Although hypothetical examples are difficult to conjure up in the context of police informers, it would certainly follow that any circumstance qualifying as a trustworthy exception to the hearsay rule in a trial setting would, a fortiori, qualify in a probable cause setting. Fortunately, it is not this aspect of Aguilar's veracity prong which is before us in the case at bar.'

This aspect of Aguilar's 'veracity' prong is now before us. The present case, by way of illustration, will help to fill that former void.

The appellant, Guy Charles Thompson, Jr., was convicted in the Criminal Court of Baltimore by Judge J. Harold Grady, sitting without a jury, of possession of heroin. He was sentenced to a prison term of four years. On December 22, 1970, the appellant was arrested in his automobile and the automobile was searched. The search uncovered a brown paper bag containing 143 glassine bags of heroin. The conviction rises or falls on the legitimacy of that automobile search, which is the sole issue presented by the appellant on this appeal.

Counsel have been helpful in narrowing the issue. It is agreed that we are dealing with a warrantless search of the appellant's automobile under the so-called 'automobile exception' to the warrant requirement. It is further agreed that there is no problem as to exigency. The only issue is whether Officer Donald Schline of the Narcotics Unit of the Baltimore City Police Department had probable cause to believe that the automobile contained evidence of narcotics violations. The adequacy of that probable cause, in turn, depends upon whether Officer Schline was entitled to credit certain hearsay information.

At approximately 12:30 p. m. on December 22, 1970, Officer Schline received information from one of his regular informants, which precipitated his search of the appellant's automobile within the hour. Officer Schline furnished to the trial court a substantial basis for believing in the credibility of this regular informant. The appellant agrees that the credibility of this primary informant is established beyond disput. The rub is that this credible, primary informant passed on to Officer Schline information which he had, in turn, received from another unnamed person. We are dealing with hearsay twice compounded. We are dealing with the type of problem referred to in Dawson v. State, 11 Md.App. 694, 701, f. 3, 276 A.2d 680, 683, although we were discussing it there in a search warrant setting:

'If the informant himself is offering not direct observation but hearsay twice compounded, the entire evaluation process must begin again at a second level of remoteness. The primary informant must then pass along sufficient data in sufficient detail so that the magistrate may again judge for himself) the credibility of the secondary informant and 2) the worth of that secondary informant's information. If, in some extreme hypothetical situation, the secondary informant should be a mere conduit for hearsay thrice compounded from a tertiary informant, the evaluation process is escalated to yet another level of remoteness and so on ad infinitum. Spinelli, 393 U.S. (410), at 416, (89 S.Ct. 584, 21 L.Ed.2d 637) (majority opinion by Harlan, J.) and 423-425 (concurring opinion by White, J.). Ultimately, the magistrate must have the benefit of someone's firat-hand observation in order to evaluate the worth of the information and must have also satisfactory proof of the credibility of every person involved in the chain of transmission of the information from the initial observer the the magistrate himself.'

The credibility of the primary informant-Officer Schline's regular informer-is granted. That credibility is indispensable, since the primary informant is a conduit for the information from its more remote source back to Officer Schline. The credibility of that primary informant is not enough, however, since he is but the conduit. In addition, Officer Schline must have had, and must have passed on to the trial court, a basis for crediting that more remote, secondary informant. Kapler v. State, 194 Md. 580, 587-588, 71 A.2d 860; Bolesta v. State, 9 Md.App. 408, 412-416, 264 A.2d 878; Mullaney v. State, 5 Md.App. 248, 252-256, 246 A.2d 291. With this analysis in mind, we look to the events of December 22.

Officer Schline's informant was, or posed as, a narcotics addict and regular...