Washburn v. State

Decision Date24 October 1973
Docket NumberNo. 66,66
Citation19 Md.App. 187,310 A.2d 176
PartiesOakley Chaffin WASHBURN, Jr. v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Harold Buchman, Baltimore, for appellant.

Clarence W. Sharp, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Donaldson C. Cole, Jr., State's Atty. for Cecil County, on the brief, for appellee.

Argued before MOYLAN, POWERS, and GILBERT, JJ.

GILBERT, Judge.

In this appeal, we are asked to decide whether vel non the Circuit Court for Cecil County, Wise, J., erroneously deprived the appellant, Oakley Chaffin Washburn, Jr., of a hearing to establish that the evidence adduced by the State against appellant was tainted by an illegal wiretap, whether a search and seizure warrant was invalid because it was 'conceivably based upon tainted evidence' obtained through an illegal wiretap, and whether 'tapes of the wiretapping' should have been made available to the appellant. We shall set forth herein only those facts necessary to understand the issues involved.

On May 9, 1972, Detective Sergeant Frank Mazzone and Trooper Robert D. Sherman, both of the Narcotics Section, Maryland State Police, made affidavit before a judge of the Circuit Court for Cecil County in support of an application for an ex parte wiretap order. The officers stated that they had received information from a number of confidential informants whose reliability and credibility were demonstrated in the affidavit, that Washburn was 'a Distributor of Controlled Dangerous Substances and as such is dealing with other persons who are unknown at this time; and further that the said Washburn is planning together with other persons unknown, to hire someone to murder . . . Mazzone who has been making arrests for (violation of the laws pertaining to) Controlled Dangerous Substances for several years.' The affidavit set forth the telephone number that Washburn used for the purpose of arranging the time and place for the delivery of the controlled dangerous substances and to contact persons 'unknown . . . to hire someone to murder . . . Mazzone.'

An order was signed by the judge upon the authority of Md.Ann.Code art. 27, § 125A; art. 35, §§ 92-99; and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. The telephonic interception order was 'to begin . . . as soon hereafter as practicable' and to 'terminate . . . in no event later than 11:45 p. m. on May 30, 1972.' The interception actually began on May 11, 1972. The State's Attorney, on May 30, 1972, made application, supported by an affidavit of Trooper Sherman, for an extension of the order. The order as signed contained the proviso that the tap should terminate at 11:45 p. m. on June 25, 1972.

Trooper Michael J. Callanan, Maryland State Police, assigned as an undercover agent, was introduced to appellant by an informant, Richard Whittmere, on June 6, 1972. The trooper and the informant went to appellant's residence where the trooper observed Whittmere purchase the hallucinogenic drug, LSD, from appellant. Whittmere paid to appellant the sum of $125.00. Thereafter the trooper met appellant on 'several other occasions in order to purchase large quantities of substances which field tested as LSD.' The dates, places, and amounts of the purchases were set out by the trooper in his affidavit in support of an application for a search and seizure warrant. The warrant was issued on June 23, 1972, executed at 5:00 p. m. the next day, and a return thereon was properly made.

The following Controlled Dangerous Substances, proscribed by Md.Ann.Code, art. 27, § 279, LSD, marijuana, amphetamine, hashish, secobarbital, amobarbital, and meprobamate, were all seized from appellant's home as a result of the execution of the warrant.

Washburn was indicted on July 14, 1972 for violation of the Controlled Dangerous Substance Laws, and presumably he was also indicted for conspiracy to murder Det. Sgt. Mazzone. The record is unclear as to the precise charge with respect to the conspiracy to murder Mazzone because on motion by appellant, trial for that alleged offense was severed and is not before us.

Appellant filed a motion on July 28, 1972 to suppress the evidence on the ground of 'an unlawful search.' He moved on August 8, 1972 to dismiss all indictments because they were bottomed on 'evidence seized by illegal wire taps.' A second motion to suppress the evidence was simultaneously filed. That motion was based upon the alleged illegality of the wiretaps. A third motion to suppress, also filed on August 8, 1972, was predicated upon the right of the appellant 'to be free from unreasonable searches and seizures,' appellant's right against self-incrimination and his right to counsel. 1 The State denied all allegations in the motions to dismiss, and answered the various motions to suppress by averring that, 'It does not intend to use illegally obtained evidence and denies its existence. . . .' On August 29, 1972, the State's Attorney reportedly mailed a letter to appellant. We were advised on oral argument that a copy of the letter was handed to counsel on August 29, 1972. We quote the letter:

'Dear Mr. Washburn:

This letter is to put you on notice that for a period of time prior to your arrest, the Maryland State Police placed a wiretap on your telephone line.

We are not going to use any evidence obtained by use of this wiretap to prove our case against you. We are going to use only that evidence that resulted from the undercover work when we present our cases against you. Our cases against you are not based on the wiretap but based on the undercover work.

We did not use any evidence obtained from the wiretap when we presented our cases against you during the recent Grand Jury sessions which resulted in the indictments now pending against you.'

Appellant filed another motion to dismiss on September 22, 1972, in which he alleged:

'The indictment is founded upon the contents of telephone and oral communications unlawfully intercepted by the state in violation of the Defendant's rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, and of the Maryland Declaration of Rights, and of Title III of the Omnibus Crime Control Safe Streets Acts of 1968.'

Judge Wise denied all motions to dismiss, but he suppressed '(a)ll logs, records, and memoranda of wire or oral interceptions of conversations of the Defendant or at his premises. . . .' The judge also ordered the State to furnish appellant with copies of the 'application, order, logs, and dates of any wire-tap or electronic surveillance of the Defendant or upon his premises. . . .' Appellant then requested a 'full adversary hearing to suppress evidence tainted by illegal wire tap and to suppress evidence obtained through search and 'seizure warrant based upon illegal wire tapping.' The motion was denied.

Seemingly, appellant advanced a twofold theory. First, the wiretap was illegal because of non-compliance with Chp. 119, Title 18 U.S.C., §§ 2510-2520. Second, the information leading to the issuance of the search and seizure warrant was obtained through the medium of the illegal telephonic interception and was, therefore, ipso facto so tainted that its use in the affidavit supporting the application for the search warrant rendered the warrant invalid.

In this Court the appellant's first contention is subdivided into five separate and distinct attacks upon the hearing judge's ruling on the motion to suppress the evidence gathered under the search and seizure warrant. We shall discuss each of them seriatim.

(1)

'The Maryland statutes and the Omnibus Crime Control and Safe Streets Acts of 1968 are unconstitutional.'

Appellant acknowledges that his arguments with respect to the unconstitutionality of both the Federal and State Acts is 'whistling in the wind' in view of State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972), affirming this Court in State v. Siegel, 13 Md.App. 444, 285 A.2d 671 (1971). The Siegel cases are dispositive of the issues raised by the appellant and necessitate no further discussion on our part except to note that many other jurisdictions have upheld the constitutionality of the Omnibus Crime Control and Safe Streets Act of 1968. 2

(2)

'Was there the requisite probable cause for the issuance of the order authorizing wiretapping?'

Washburn avers that the information upon which the joint affidavit of Mazzone and Sherman was based was stale and, consequently, furnished no probable cause for the issuance of the warrant. In support of his argument, he relies principally upon Johnson v. State, 14 Md.App. 721, 288 A.2d 622 (1972), cert. denied 266 Md. 738 (1972); cert. denied 409 U.S. 1039, 93 S.Ct. 517, 34 L.Ed.2d 487 (1973). In Johnson, supra, 14 Md.App. at 730, 288 A.2d at 627, we held that a lapse of 26 days 'between the observation of the facts and the issuance of the warrant' was, considering the attendant circumstances, not so remote as to invalidate the search warrant for lack of probable cause. There is no statute in this State mandating a designated time within which a warrant must issue, after observation of the facts upon which the affidavit in support of the warrant is founded. We observed in Johnson, supra, that we were unable to locate any judicial decision that spelled out a rigid time rule, and we declined to do so. Further, 14 Md.App. at 729-730, 288 A.2d at 627, we stated that, '. . . remoteness of the facts observed from the date of the issuance of the warrant is an element to be considered in each instance by the issuing authority in determining whether it appears that there was probable cause.' Johnson does not hold that remoteness is the sole or controlling element. Remoteness is but one of the factors to be considered in the circumstances of the case.

A perusal of the affidavit in support of the application for the initial wiretap order reveals that the affiants, Mazzone...

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