Bornschlegal v. State

SONNER, J. The Circuit Court for Garrett County convicted Robert P. Bornschlegal of possession of cocaine, and sentenced him to eighteen months’ imprisonment, suspending all but two months. The court also imposed a $2,000 fine. Bornschlegal raises two questions on appeal, which we have set forth here as they appear in his brief: I. Did the trial court properly conclude that the application and affidavit in support of the first requested search warrant set forth sufficient facts to establish probable cause that the appellant possessed lottery slips or was otherwise engaged in lottery operations or other gaming activities in Maryland and that evidence of those gaming violations would be found at his residence in McHenry, Maryland? ³²⁵ IT. Assuming there was a lack of probable cause contained in the application for search warrant and affidavit in support thereof, did the police officers lack an objective reasonable belief in the existence of probable cause when they did not specifically know what the slips of paper with the dates and numbers on them were and when it was known the appellant participated in a dice game in Pennsylvania which was not mentioned/contained in the affidavit?

We find no error and affirm. FACTS Police received information from a confidential informant in March, 2000 that Bornschlegal bought and transported drugs from Pennsylvania for sale in Maryland. A records check for Bornschlegal showed a history of gambling and controlled dangerous substance arrests in Pennsylvania. On May 24, 2001, the police placed Bornschlegal under surveillance because they suspected that he was involved in drug trafficking.

The police checked his driving record and learned that Bornschlegal had a suspended Maryland driver’s license. Because they knew that if he drove, he would be in violation of the law, they planned to intercept Bornschlegal as he drove from Pennsylvania to Maryland on that Thursday morning, as was his habit. Instead, on that date, police discovered that Bornschlegal was already at his Garrett County, Maryland residence. Later on that afternoon, however, police saw Bornschlegal driving and they conducted a traffic stop with the intent to arrest him for driving with a suspended license.

At the time of the stop, Bornschlegal was not wearing a seatbelt, and that provided a second basis for the traffic stop. A drug dog conducted a perimeter search of the car incident to the arrest for the driving violation, and gave a positive alert indicating the presence of a controlled dangerous substance inside the car. A police search of the car did not, however, disclose any drugs. ³²⁶ The police arrested Bornschlegal for the traffic offense and took him to the police station, where a search of his person revealed a slip of paper with numbers on it, numerous bank checks, and $5,397 in cash. Bornschlegal admitted to the police that the money came from an illegal dice game in Pennsylvania.

When asked what he did for a living, Bornschlegal replied that he mostly gambled. The large amount of cash, numerous bank checks, ledger sheets, and Bornschlegal’s statement about how he made a living—plus knowledge of his criminal record—raised police suspicions about Bornschlegal’s possible gambling activities in Maryland. That same day, Sergeant Mark Rodeheaver applied for a search warrant for Bornschlegal’s Maryland residence. The search warrant contained the following information: [Y]our affiant observed a traffic stop that was initiated by Cpl.

Mike Bittinger, Garrett County Sheriffs Office, on Bornschlegal’s vehicle for a seat belt violation on Rt. 219 north of [Oakland,] Garrett County, Maryland. The vehicle was the red Subaru, PA tag DRJ9025 and the driver identified as Robert Bornschlegal, date of birth of 05/09/1939. Cpl. Bittinger caused a check through the Maryland Motor Vehicle Administration which revealed that Bornschlegal’s privilege to drive a motor vehicle in the State of Maryland had been suspended.

Bornschlegal was arrested for the violation and a search incident to the arrest found Bornschlegal to be in possession of $5397.00 in U.S. Currency. Deputy Dave McLaughlin stated that he scanned the Subaru vehicle and his K9 Tara gave a positive alert for the presence of CDS. After being advised of his Miranda Rights and acknowledging that he understood these rights Bornschlegal stated that the U.S. Currency was profit from an illegal gambling operation which he took part [in] the State of Pennsylvania. Found in Bornschlegal’s vehicle and on his person were ledger sheets which appear to be associated to Bornschlegal’s involvement in illegal gambling.

The sheets contain dates and money amounts that are additions and subtractions and appear to be associated with gambling. When Bornschlegal was asked about his occupa ³²⁷ tion he stated that he sold a little real estate but mainly gambled for a living. Your Affiant asked Bornschlegal [where] he lived and he stated that he had a residence in Springwoods Acres in McHenry. Additionally, the affidavit included Bornschlegal’s arrest record, which indicated twenty-two arrests in Pennsylvania between 1964 and 1992.

Fourteen of those arrests were for operating a lottery, and three arrests were for drug possession. With warrant in hand, police searched Bornschlegal’s home for evidence of illegal gambling operations. While conducting that search, they found three bags of cocaine in plain view in a bedroom dresser drawer, so police stopped the search of Bornschlegal’s home, and immediately sought and received a second search warrant to include drugs. 1 The police continued the search, and then charged him with possession of cocaine. Before trial, Bornschlegal moved to suppress the cocaine evidence.

He argued that the original search warrant was defective because the affidavit did not contain sufficient facts to show probable cause in that the affiant did not have specialized training in gambling operations, and therefore, could not conclude that Bornschlegal was engaged in gambling operations in Maryland. The State replied that Bornschlegal’s arrest on May 24, 2001, was a valid Whren 2 stop, with the stated purpose of searching for a controlled dangerous substance. The State also argued that the one fruit of the stop, that is the tally sheets or ledgers found on Bornschlegal, violated Maryland law prohibiting possession of gaming paraphernalia, and gave rise to probable cause that he had other illegal gambling materials in his home. ³²⁸ The trial court denied Bornschlegal’s motion to suppress the cocaine evidence. The court explained: Now, in this case, I note that the warrant names a specific place, a specific person, adequately describes the residence, and specifies exactly what the Officer may do and [what] he may look for and what he may take.

Now, there’s a lot of things when a search warrant is issued that can’t be done. In this case, for example, as you point out, [defense counsel], he indicates that, “found in Bornschlegal’s vehicle and on his person were ledger sheets, which appeared to be associated with his involvement in illegal gambling.” Is that a ledger sheet? Is it his? It appears to the Officer to be involved in illegal gambling. “The sheets contain dates and money amounts that are additions and subtractions that appears to be associated with gambling.” On June 6, 2002, Bornschlegal proceeded on a not guilty statement of facts.

The court found him guilty, which prompted this appeal. Discussion I. Probable Cause Our standard of review is whether, in viewing the affidavit for the search warrant as a whole, “there was ‘a substantial basis for concluding that the evidence sought would be discovered in the place described’ ” in the search warrant. McDonald v. State, 347 Md. 452, 467 , 701 A.2d 675 (1997) (citations omitted). In State v. Lee, 330 Md. 320, 326 , 624 A.2d 492 (1993), the Court of Appeals stated that the Fourth Amendment of the U.S. Constitution and its counterpart, Article 26 of the Maryland Declaration of Rights, require that no search warrant shall issue without probable cause. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 236 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983); State v. Amerman, ³²⁹ 84 Md.App. 461, 469 , 581 A.2d 19 (1990). “Moreover, we generally pay great deference to a