Watson v. State

• Decision Date: 03 July 1973
• Docket Number: No. 305,305
• Citation: 306 A.2d 599,18 Md.App. 184
• Parties: James Raymond WATSON and Naysi Harris v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 184

18 Md.App. 184

306 A.2d 599

James Raymond WATSON and Naysi Harris v. STATE of Maryland.

No. 305.

Court of Special Appeals of Maryland.

July 3, 1973.

Certiorari Denied Oct. 18 1973.

Phillip Leventhal, Bethesda, and Gary R. Alexander, Oxon Hill, with whom were Giordano, Alexander, Hass & Mahoney, Oxon Hill, on the brief, for appellants.

Gary Melick, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., and Edward P. Neal, asst. State's Atty. for Prince George's County, on the brief, for appellee.

Argued before THOMPSON, MOYLAN and DAVIDSON, JJ.

MOYLAN, Judge.

The appellants, James Raymond Waston and Naysi Harris, were both convicted in the Circuit Court for Prince George's County by a jury, presided over by Judge Robert B. Mathias, of possession of marihuana and of receiving a stolen television set belonging to the Colony 7 Motor Inn. Watson was, in addition, convicted of a combined burglary and armed robbery perpetrated against Mr. and Mrs. Robert Reed Wallace. Harris was convicted of receiving stolen goods taken from the Wallaces. Watson, upon this appeal, contends:

(1) That he was subjected to an unconstitutional search and seizure;

(2) That he was subjected to an unconstitutional arrest in the District of Columbia; and

(3) That the evidence was legally insufficient to sustain the charges of possession of marihuana and of receiving the stolen goods taken from the Colony 7 Motel. Harris joins in contentions 1 and 3.

The Search and Seizure

At approximately 12:30 a. m. on Sunday, February 14, 1971, a combination burglary and armed robbery was committed by two persons at the apartment of Mr. and Mrs. Robert R. Wallace, jr., in Suitland, Maryland. A 16-year-old son, Robert R. Wallace, III, was at home and was the victim of the rebbery. On February 24, 1971, Detective Vincent Raubaugh of the Prince George's County Police Department was issued a search warrant for apartment 202, 5200 Livingston Terrace, Oxon Hill, Maryland. The supporting affidavit of Detective Raubaugh read as follows:

'I, Vincent Ronald Raubaugh, am a Detective of the Prince George's County Maryland Police Department. I am assigned to the Criminal Investigation Division, Robbery Squad, and am assigned to the Seat Pleasant Station. On this date I have personally interviewed Robert Reed Wallace, Jr., and his statement to me has been reduced to affidavit form. His affidavit has been attached hereto, and is made a part thereof by reference.

I have contacted the Metropolitan Police of the District of Columbia and have determined that D.c. tag 811-432 is listed to James Raymond Watson, Jr., and is listed for a 1967 Thunderbird. From the same source I have determined that D.c. license #753-528 is listed to a 1969 Lincoln Mark III owned by James Raymond Watson, Jr.

Based on this information I believe that the property stolen from Mr. Wallace is now located at the premises for which this warrant is sought.'

The supporting affidavit of Robert R. Wallace, Jr., read as follows:

'I, Robert Reed Wallace, Jr., live at 4248 Suitland Road, Suitland, Prince George's County, Maryland, apartment 201. On February 13, 1971, at about midnight, I left my apartment with my wife and went out, leaving the apartment in the care of my son, Robert Reed Wallace, III. My son is sixteen years old. At about one A.M. on the morning of February 14, 1971, I was summoned to return to my home. Upon my return, I talked to my son. He told me that he answered a knock at the door. When he did, he was faced by a man who forced his way in, produced a gun, and asked where the money and jewelry were. He said he would 'burn' him if he didn't tell. He took him to the bedroom, tied him, then took him to the bathroom and put a pillowcase over his head. The man then called a second man into the apartment.

My son stated to me that he had overheard the conversation and thought he recognized the voice of the second man as being someone he had heard me talk to. My son stated that when he heard the men leave, he got loose and ran and locked the front door. He then ran to the window and saw a 1967 light green Thunderbird. He stated to me that he recognized the car as 'Inkydink's' Thunderbird. 'Inkydink' is a nickname for James Watson, Jr. My son has been in the presence of James Watson on numerous occasions and would recognize the voice. Goods valued at approximately eight thousand dollars were taken, this being my property and that of my wife. Among other things taken were a portable color television, an RCA model EL 418, serial 6546; a red coat; a polaroid camera; a diamond faced Omega watch. The television was valued at approximately 329.00 dollars.

On February 18, 1971, a cousin of my wife, who lives in the area, called me to tell me that a man had offered to sell her a coat. The description was similar to that of the one stolen, and she had become suspicious. I told her to proceed with the sale, and my wife and I were present when the sale was to be made. My wife recognized the coat as being hers. I talked with the man who was attempting to sell the coat. He stated to me that he had gotten the coat from 'Inkydink' at 'Inkydink's' apartment. He told me that he had been inside and had seen this coat there, that he had seen two color television sets, a gray coat, and a diamond watch of the same description as the one stolen from me.

Acting on this information, I went to 5200 Livingston Terrace, apartment 202, Oxon Hill, Prince George's County, Maryland. I know this to be the address of 'Inkydink' because I have visited him there. Although the name Harris appears on the door, I know from personal experience that this apartment is occupied by James Raymond Watson, Jr. At that time, I saw a green 1967 Thunderbird parked in front. I took that license number, D.C. 811-432 and have given it to Detective Raubaugh. I know Mr. Watson owns a 1969 Lincoln, and saw that vehicle parked in front of 5200 Livingston Terrace, Oxon Hill, Maryland. I took that license number, D.C. 753-528 and gave it to Detective Raubaugh.

The aforegoing is true to the best of my knowledge and belief, and is given in support of the application of Detective Raubaugh for a search warrant.'

Items seized from the apartment when the warrant was executed tied Watson in with the burglary-robbery and formed the basis for the receiving convictions against both appellants. The appellants filed a pretrial Motion to Suppress the evidence as unconstitutionally seized. Their motion was denied. The issue before us is whether the warrant application establishes good probable cause for the search of the apartment and the seizure of goods therefrom.

It is axiomatic that in analyzing the probable cause for the issuance of a search warrant, we are confined to the four corners of the affidavit itself. Smith v. State, 191 Md. 329, 335, 62 A.2d 287; Sessoms v. State, 3 Md.App. 293, 296-297, 239 A.2d 118; Dawson v. State, 11 Md.App. 694, 714-715, 276 A.2d 680.

Aside from determining that two license tags in question were listed to automobiles owned by Watson, the affidavit of Detective Raubaugh was simply formal in nature. The probable cause must be sought in the affidavit of Robert Wallace, Jr. With respect to Wallace, there was no credibility problem since the oath served as the guarantee of credibility. The great bulk of the substance contained in Wallace's affidavit, however, came to him from a number of secondary sources-1) his son, 2) his wife, 3) a cousin of his wife, and 4) an anonymous man who had attempted to peddle his wife's stolen coat. Before we can accept the information passed on from those secondary sources, we must subject those sources, not themselves under oath, to the two-pronged test mandated by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, in order to determine whether 1) they were 'credible' or their information otherwise 'reliable' and 2) whether there was a sound 'basis of knowledge' for their conclusions.

The Aguilarian adequacy of the cousin's hearsay report is irrelevant, since what she passed on, as a mere conduit from the unnamed coat peddler, was later repeated by the peddler to the affiant Wallace himself. The cousin's earlier version, in scantier detail, became a redundancy.

The second-hand information from the wife consisted simply of the wife's recognition of her own recently stolen coat as it was offered for sale by the unnamed peddler. Her 'basis of knowledge' under Aguilar is not to be doubted as she observed directly the cost she knew to be her own. Her very status-wife of the affiant and victim of the theft-and her being named-Mrs. Robert Wallace, Jr. (by necessary implication)-establishes her 'credibility' under Aguilar. King v. State, 16 Md.App. 546, 298 A.2d 446; Thompson v. State, 16 Md.App. 560, 298 A.2d 458; Dawson v. State, 14 Md.App. 18, 33-34, 284 A.2d 861.

The 16-year-old son similarly surmounts Aguilar's 'credibility' hurdle-as Robert Reed Wallace, III witness and victim of armed robbery. Nor is there any doubt that the son had a sound 'basis of knowledge'-passing on only those things which he himself saw with his own eyes and heard with his own ears. Our first real analytical problem is to determine what can properly be made of the son's observations in terms of probable cause.

In making that determination, we are animated by the philosophy permeating the opinions of the Supreme Court on the spirit in which applications for warrants must be reviewed. As that Court said in United States v. Ventresca, 380 U.S. 102, at 108, 58 S.Ct. 741, at 746, 13 L.Ed.2d 684:

'These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates...