Winters v. State

Decision Date01 September 1983
Docket NumberNo. 126,126
Citation301 Md. 214,482 A.2d 886
PartiesRichard Mark WINTERS v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Joseph F. Murphy, Jr., Towson (White & Murphy, Towson, on the brief), for appellant.

Gary P. Jordan and Bruce C. Spizler, Asst. Attys. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, DAVIDSON, * RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), specially assigned.

COUCH, Judge.

Richard Winters was tried before a jury, in the Circuit Court for Anne Arundel County, and convicted of conspiracy to violate the Maryland tax law, and filing fraudulent State income tax returns. The defendant took an appeal to the Court of Special Appeals. Thereafter, this Court, on its own motion, issued a writ of certiorari prior to a decision by the intermediate appellate court.

The issues we are asked to consider are:

"1) Whether the trial court committed prejudicial error by denying Appellant's Motion for Suppression of Evidence seized from his home.

2) Whether the trial court committed prejudicial error by permitting improper cross-examination of Appellant's character witnesses.

3) Whether the trial court committed prejudicial error by denying Appellant's Motion for Dismissal of the Conspiracy Count (Count I) of the Indictment.

4) Whether the trial court committed prejudicial error by denying Appellant's Motion to Dismiss the Substantive Counts of the Indictment.

5) Whether the trial court committed prejudicial error by denying Appellant's Motion for a Judgment of Acquittal on the Substantive Counts of the Indictment.

6) Whether the Court committed prejudicial error by incorrectly answering the jury's question directed to the court concerning the dates set forth in the conspiracy count."

We shall answer these questions seriatim.

Facts

In setting forth the facts of this case we shall merely provide the factual framework that led to the indictment and subsequent trial of appellant, Richard Winters. Thereafter we shall provide the necessary factual predicate as each specific issue is addressed.

The Attorney General's office, in conjunction with the Maryland State Police was conducting an investigation into various forms of criminality in Frederick County, Maryland. During the course of that investigation it was believed that certain individuals, including appellant, were involved in illegal drug activities. This information led to a cooperative investigative effort with the United States Drug Enforcement Administration (hereinafter referred to as "DEA").

While appellant was under investigation for drug involvement, the authorities received information concerning alleged tax violations on the part of the partners in the Osburn and Winters law firm. This information was initially supplied by Winters' former secretary and girlfriend, Edith Eader.

Pursuant to information acquired during the drug investigation a federal search and seizure warrant was issued for appellant's residence. This warrant was executed on September 23, 1982. Detective Sergeant Thomas H. Carr, a Maryland State Police officer assigned to the Attorney General's office, Criminal Investigations Division, who had been involved in the joint narcotics investigation from its inception, assisted the federal agents in the execution of the warrant. Carr was also on the premises to serve a subpoena in regard to the tax investigation.

During the search Carr discovered twenty-two sheets of lined yellow paper, approximately 8 1/2" X 14", which contained a listing of names, dates, and dollar amounts. Carr examined the sheets to see if they were papers relating to the transportation, ordering, purchase or distribution of controlled dangerous substances; records, notes and other papers relating to the drug investigation were among the items listed on the federal warrant as property to be seized. Robert Osburn, appellant's law partner, 1 was present during the search. He identified the yellow sheets as an accounting of legal fees paid to the Osburn and Winters law firm. Carr had previously been informed by Edie Eader that appellant kept such a list of income received from cash fees that were not reported on his income taxes; she had also shown Carr photo copies of these lists. The information supplied by Eader coupled with Osburn's statement led Carr to recognize that these sheets did not pertain to the drug investigation, but that they were related to the state tax investigation.

Carr then telephoned the Attorney General's office and an application for a search and seizure warrant was prepared for the sheets. The federal search and seizure warrant, an affidavit, and an application for a state search and seizure warrant were submitted to Judge Stepler, District Court of Maryland sitting in Frederick County. The affidavit, by Carr, set forth his reasons for believing the yellow sheets were evidence relating to the commission of criminal violations of Maryland State Income Tax laws. Moreover, the affidavit set forth his authority to be on the property where he discovered the yellow sheets by reciting the circumstances of the joint drug investigation and referencing the DEA search and seizure warrant for Winters' residence. A copy of the federal search warrant was attached to the state affidavit. However, the affidavit which supported the issuance of the federal warrant was not attached; the federal affidavit was under seal at the time the state warrant was applied for. Judge Stepler signed the state warrant and the twenty-two yellow sheets were seized from Winters' home on September 23, 1982.

Prior to trial Winters unsuccessfully sought dismissal of the indictment and suppression of the evidence seized from his residence.

I

Appellant initially asserts that the trial court committed prejudicial error by denying the motion to suppress evidence seized from his home. He attempts to support this position by attacking the validity of both the state and federal search and seizure warrants.

(a) State Warrant

Appellant contends that the search warrant signed by Judge Stepler should not have been issued. This is so, he argues, because the state warrant was based upon an affidavit containing information acquired by applicant, Detective Carr, while participating in the execution of the federal warrant, and that the affidavit upon which the federal warrant was based was not presented to Judge Stepler. Appellant argues under the authority of Brooks v. State, 13 Md.App. 151, 282 A.2d 516 (1971), cert. denied, 264 Md. 746, 749, 750 (1972), that where a search warrant is sought based on observations during the execution of a preceding warrant, the issuing judge must review the affidavit of the first warrant to determine whether probable cause justified the initial intrusion. We think appellant reads Brooks too broadly.

In Brooks, there were two raids of the same premises, four days apart. The first raid was undertaken pursuant to a search and seizure warrant. While on the premises the officer observed but did not seize certain property which subsequent investigation revealed to be stolen goods. The officer thereafter applied for a second search warrant based on his observations. In the affidavit for the second warrant the officer asserted that the first warrant had been issued, but a copy of the first warrant and the application therefor were not attached to the second application.

The Court of Special Appeals held that the appellants had no standing to raise Fourth Amendment claims. Brooks, 13 Md.App. at 157, 282 A.2d at 520. However, in dicta the court stated that the conclusory statement by the affiant in the affidavit for the second warrant (as to the existence of the first warrant) rendered the second warrant defective. This was so, the court explained, because "conclusory statements without underlying facts by the affiant that probable cause exists, are not adequate to support the issuance of a search warrant;" and "probable cause must be determined by the magistrate, based on the facts presented to him in the affidavit." Brooks, 13 Md.App. at 154, 282 A.2d at 518-19. The court was thus stating the basic concepts of Fourth Amendment law--the principles that ensure that the guarantees of the Fourth Amendment are protected.

The Fourth Amendment to the United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." The protection of the Fourth Amendment consists in requiring that a search warrant be issued only after a neutral and detached magistrate determines that probable cause exists "therefor from facts or circumstances presented to him under oath or affirmation," in order to justify an invasion of privacy. Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159, 162 (1933). See also State v. Edwards, 266 Md. 515, 295 A.2d 465 (1972) (need underlying circumstances supporting affiant's conclusions); Henderson v. State, 243 Md. 342, 221 A.2d 76 (1966) (finding of probable cause to be made from the allegations of the application for the warrant, cannot be purely conclusory); Brooks v. State, supra (conclusory statements without underlying facts are not adequate).

Judge Stepler, in this instance, had the first warrant presented to her. Given the courts' preference for searches pursuant to a warrant, and the deference that is to be accorded an issuing magistrate's determination of probable cause to issue a warrant, see Massachusetts v. Upton, --- U.S. ----, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), Judge Stepler could reasonably rely on the validity of the federal warrant together with other facts presented to...

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  • Malcolm v. State, 68
    • United States
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    • 1 Septiembre 1987
    ...... We have long recognized the importance of police expertise. Winters v. State, 301 Md. 214, 228, 482 A.2d 886, 893 (1984) ("[The investigator's] interpretation of all this information led him to assert in the affidavit ......
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