Birchead v. State

MURPHY, Chief Judge. This case involves convictions of Alonza Birchead by a jury in the Circuit Court for Worcester County upon multiple violations of the controlled dangerous substance laws, Maryland Code (1987 Repl.Vol.), Article 27, §§ 286, 286A, 287 and 290, and of conspiracy to distribute cocaine. Sentences were imposed totalling forty-five years’ imprisonment and a $50,000 fine. Upon Birchead’s appeal to the Court of Special Appeals, we granted certiorari prior to decision by that court to consider these issues: (1) whether a District Court judge resident in Wicomico County lacked authority to issue a search warrant for execution in Worcester County; (2) whether there was probable cause to support the issuance of the warrants; and (3) whether the evidence was sufficient to support Birchead’s convictions.

I. Evidence adduced at the trial against Birchead was obtained upon execution of search warrants issued pursuant to an application of two police sergeants (Culver and Bacon), containing these sworn averments: on March 10, 1988, the Salisbury Police Department received a call from an anonymous subject that “a black male wearing a long tan coat and blue jeans was in the parking lot of Grants Shopping Center on Cypress Street, Salisbury, Wicomico County, Maryland, and was in possession of a handgun and was selling crack/cocaine.” Acting on the tip, police officers went to this location and observed a man fitting the informant’s description; they conducted a pat-down for a weapon, but found none. The suspect was identified by a New York State driver’s license as Arthur Lee Gaines. On March 18, 1988, Salisbury police officers were contacted by a “concerned citizen,” who wished to remain anonymous; this informant told the affiant Culver that he had ⁶⁹⁴ personal knowledge of a black male, approximately six feet tall from New York, who was known on the street as “New York.” The informant said that “New York” was driving a red Chevrolet Nova and was selling cocaine in the Salisbury area, particularly on the parking lot of Grants Shopping Center—an area known by the police for frequent illegal drug transactions. On March 30, 1988, another “concerned citizen,” who also wished to remain anonymous, contacted the Salisbury police with similar information.

This informant said that a black male from New York City, named Arthur Gaines, along with a black male known as Alonza Birchead and two black females, Sherry Rideout and Patricia Hunter, had recently returned from New York City with approximately eight ounces of cocaine which they planned to sell in the Salisbury area. The informant also stated Gaines usually drove a red Chevrolet Nova, and that the four subjects were staying at the Days Inn in Salisbury. Later the same day, this informant again contacted the Salisbury police and advised that Gaines, along with Birchead, Rideout and Hunter, were then staying in Room 101 at the Atlantic Budget Inn Motel in Delmar, Maryland. Gaines was then said to be operating a dark grey Ford Tempo, with a Maryland license tag, the number of which the informant disclosed.

Acting on this information, the police ascertained from the management at the motel in Delmar that Room 101 was rented by Gaines, who listed the Ford Tempo on the hotel registration form. The management told the officers that Gaines paid the motel bill one day at a time in cash of one, five and ten dollar bills, and that Room 101 received an “abnormal amount of telephone calls.” Cleaning personnel at the motel said that Room 101 had been occupied by two black males and two black females. The Tempo was determined to be owned by a car rental company and was rented by Hunter. On March 31, 1988, the first “concerned citizen” told the Salisbury police that Gaines, Birchead, Hunter and Rideout ⁶⁹⁵ were then staying in Room 207 at the Days Inn Motel in Pocomoke City, Worcester County.

The informant also stated that, in addition to the Ford Tempo, another rental vehicle from the same car rental company had been rented by the subjects. The informant further stated that Gaines was then on probation upon drug charges in New York. The Days Inn management confirmed that Room 207 had been rented by Hunter, who also rented Room 119 in the name of Flora Burckhead; that these rooms were occupied by two black males and two black females and paid for in small bills; and that numerous outgoing calls were placed to the Quality Inn Motel in Pocomoke City. Police surveying the Days Inn Motel witnessed a Ford Taurus, driven by a black male, arrive on March 31, 1988 and saw the driver enter Room 119.

Shortly thereafter, the police observed two black males and two black females leave Room 119. Two of the subjects entered the Tempo and two entered the Taurus; they then drove to the Quality Inn in Pocomoke City where they entered Rooms 102 and 109. Police investigation revealed that Room 102 had been rented on March 30, 1988 by Alonza K. Jones, who listed the Ford Taurus on the motel registration form as his vehicle. Police investigation also discovered that this vehicle was rented from a car rental company in Salisbury.

Room 109 was rented by Hunter. The two black females left the motel on March 31 in the Ford Tempo and drove to Salisbury, where Hunter exchanged the grey Tempo for a silver-colored Tempo. On April 4,1988, the police confirmed that Rooms 102 and 109 at the Quality Inn were still rented to Alonza K. Jones and Hunter. The management also told police that the Taurus and Tempo had been coming and going from the motel during the previous several days.

Management also noted that the rooms had been paid for on a daily basis and only in one and five dollar denominations. Police subsequently discovered that Hunter registered that day in Room 244 at the Days Inn in Pocomoke City. That night police observed two black males and one black female exit Room 244 at the Days Inn and drive to Room 109 at the Quality ⁶⁹⁶ Inn where the female entered the room and returned with a black shoulder bag. They returned to Room 244.

Police then observed all four subjects exit Room 244, enter the Tempo and travel to the Grants Shopping Center parking lot where three or four black males “conversed with the subjects in the vehicle in a manner indicative of controlled dangerous substance transactions.” The extensive experience and formal training of the two police sergeant affiants in controlled dangerous substance investigations were set forth in considerable detail in their affidavits. They stated that “the parking lot at Grants Shopping Center ... is a known area in which controlled dangerous substance transactions occur frequently,” and that “during a recent investigation, over thirty hand to hand purchases of crack/cocaine and other forms of controlled dangerous substances were made by law enforcement officers working in a covert capacity in the Grants parking lot as well as in other nearby areas.” Based on their experience, the affiants related “that it is common practice for subjects involved in the distribution of illegal drugs to utilize motel rooms in order to provide mobility and security from maintaining illegal drugs at their residences”; “that constantly changing rooms, motels, and names used to register is an additional tactic to avoid placing suspicion on themselves and their illegal activity as well as to deter any type of law enforcement investigation into their actions”; that the use and frequent switching of rental vehicles is a popular device among individuals involved in the distribution of controlled dangerous substances to “avoid drawing suspicion to a certain vehicle and to hamper any law enforcement surveillance that may be attempted”; that “it is also common practice for people involved in CDS distribution to rent more than one room at a time in order that the illegal drugs may be stored at one location, while the individuals are actually residing in a second room”; that females are frequently used by drug dealers “to rent vehicles and/or rooms in order to protect their anonymity”; and that it is also a common practice ⁶⁹⁷ among drug dealers to pay for motel rooms “one day at a time and to also pay in cash, made up of mostly small bills which are indicative of currency obtained during CDS sales.” The search warrant applications were directed to Richard D. Warren, then a judge of the District Court of Maryland, resident in Wicomico County; they alleged the existence of probable cause to believe that evidence relating to the commission of violations of the controlled dangerous substances law would be found within Room 102 of the Quality Inn Motel and Room 244 of the Days Inn Motel, both located in Worcester County; on the persons of Birchead, Gaines, Rideout and Hunter; and in the rented Tempo and Taurus vehicles. The warrants were issued by Judge Warren and were executed on April 5, 1988 in Worcester County. Numerous bags of cocaine and crack/cocaine totalling approximately fourteen ounces were seized from the rooms and rental cars, together with drug paraphernalia and approximately $19,000 in cash.

II

(A) Birchead argues that the District Court judge resident in Wicomico County was not authorized to issue search warrants for persons and property beyond his territorial jurisdiction in Worcester County. Consequently, he contends that the warrants were a nullity and the seized evidence must be suppressed. He relies on the holding in Gattus v. State, 204 Md. 589, 595 , 105 A.2d 661 (1954), that the power of circuit court judges to issue search warrants is limited to the county in which they sit. Birchead contends that this same restriction was made applicable to District Court judges in State v. Intercontinental, Ltd., 302 Md. 132 , 486 A.2d 174 (1985).

Unlike the circuit courts of the State, which are nonunified, common law courts of general jurisdiction, with one in each county and in Baltimore City, the District Court of ⁶⁹⁸ Maryland is a unified court of limited statutory jurisdiction created in 1970 by Article IV, §§ 1 and 41A of the Constitution of Maryland. Section 41A specifies that the jurisdiction of the District Court shall be uniform throughout the State, as prescribed by statute. 1 Section 41B provides that “[t]he State shall be divided by law into districts,” consisting of one county or two or more entire and adjoining counties. This provision also requires that “there shall be at least one District Court Judge resident in each district” and that in any district containing more than one county, “there shall be at least one District Court Judge resident in each county in the district.” Section 1-602 of the Courts and Judicial Proceedings Article, pertaining to the District Court, divides the State into twelve districts “for the purposes of operation and administration.” Section 1-603 allocates the total number of District Court judges among the districts and provides in subsection (c) that “there shall be at least one District Court judge resident and holding court in each county in the district.” District 2 consists of four counties, including Worcester and Wicomico Counties. Section 4-201 of the Courts Article provides that the District Court’s jurisdiction “extends to every case which arises within the State or is subject to the State’s judicial power, and which is within the limitations imposed by this title or elsewhere by law.” Section 594D(a) of Article 27 authorizes each judge of the District Court to issue warrants “when and in the manner authorized by law.” Section 551(a) of Article 27 authorizes a District Court judge, upon probable cause shown, to issue a warrant to search “any individual or in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge." (Emphasis added.) ⁶⁹⁹ As we said in State v. Intercontinental, Ltd., supra, 302 Md. at 136 , 486 A.2d 174 , a search warrant is in the nature of criminal process; its primary purpose is to aid in the detection and suppression of crime and to obtain evidence for use in criminal prosecution.

The issuance of a search warrant is collateral to a criminal prosecution; its execution may or may not result in placing a charge against the individual in whose possession the seized property is found. It is clear from the Maryland Constitution and the implementing statutes relating to the District Court that it is a single unified court, divided into districts, with statewide uniform jurisdiction. See Greenbelt Consumer v. Acme Mkts., 272 Md. 222, 224, n. 1 , 322 A.2d 521 (1974). The geographic division of the District Court into twelve districts, as set forth in § 1-602 of the Courts Article, was solely for purposes of operation and administration; it did not limit the exercise of jurisdiction by a District Court judge to the county or district of residence. 2 Consequently, as the jurisdiction of judges of the District Court is uniform and statewide, we think Judge Warren had “territorial jurisdiction” within the contemplation of Maryland’s search warrant statute, § 551(a), to issue a search warrant for execution in any other county of the State.

For the reasons stated, Gattus v. State, supra, relating to the power of circuit court judges to issue search warrants, is not dispositive of the authority of District Court judges to issue such warrants. 3 Nor does State v. Intercontinental, Ltd., supra, require a different result. The issue in that case was whether Article 551(a) authorized a Maryland judge to issue a warrant to search for evidence that pertained to violations of another state’s penal laws. We held that § 551(a) required only that the property to be ⁷⁰⁰ seized be located within the territorial jurisdiction of the issuing judge. Nothing in that case suggested that a District Court judge’s authority to issue a search warrant was restricted to the county of the judge’s residence.

(B) Birchead’s second contention is that the information received by the affiants from the unidentified informants was insufficient to support probable cause for the warrants. He also suggests that the affiants did not act in good faith in seeking the warrants because they knew nothing of their informants’ veracity and basis of knowledge. Additionally, Birchead contends that the police surveillance corroborated only “fairly obvious details” which could not sustain a finding of probable cause. The federal and state constitutions require that no search warrant shall issue without probable cause.

The fourth amendment states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”; it is applicable to the states by the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); see also Wolf v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949). Article 26 of the Maryland Constitution is in pari materia with the fourth amendment. Annapolis v. United Food, 317 Md. 544 , 565 A.2d 672 (1989); Malcolm v. State, 314 Md. 221, 227, n. 8 , 550 A.2d 670 (1988).

Probable cause means a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527 (1983); Malcolm, supra, 314 Md. at 227 , 550 A.2d 670 ; Potts v. State, 300 Md. 567, 572 , 479 A.2d 1335 (1984). In determining whether probable cause exists, the issuing judge is confined to the averments contained in the search warrant application. Valdez v. State, 300 Md. 160, 168 , 476 A.2d 1162 (1984); Smith v. State, 191 Md. 329, 335-36 , 62 A.2d 287 . (1948), cert. denied, 336 U.S. 925 , 69 S.Ct. 656 , 93 ⁷⁰¹ L.Ed. 1087 (1949).

The judge’s task is “ ‘simply to make a practical, common-sense decision’ ” whether probable cause exists, Potts, supra, 300 Md. at 572, 479 A.2d 1335 , quoting Gates, supra, 462 U.S. at 238 , 103 S.Ct. at 2332 ; however, “his action cannot be a mere ratification of the bare conclusions of others.” Gates, supra, 462 U.S. at 239 , 103 S.Ct. at 2333 . Our review of the judge’s decision to issue the search warrants is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application for the warrant. Potts, supra, 300 Md. at 571, 575, 479 A.2d 1335 . Moreover, we generally pay great deference to a magistrate’s determination of probable cause.

Malcolm, supra, 314 Md. at 229 , 550 A.2d 670 ; Potts, supra, 300 Md. at 572-73, 575, 479 A.2d 1335 ; see also Valdez, supra, 300 Md. at 169, 476 A.2d 1162 (if in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants, citing Jones v. United States, 362