Calhoun v. State

Gilbert, C. J., delivered the opinion of the Court. The “tacking” of a prior owner’s adverse possession is permissible to show that the possession has continued for twenty years and that the possession has been open, notorious, hostile and continuous. Gore v. Hall, 206 Md. 485 , 112 A. 2d 675 (1955); Zehner v. Fink, 19 Md. App. 338 , 311 A. 2d 477 (1973). A different type of “tacking” is allowed so as to demonstrate probable cause on the basis of a prior warrant when an investigation is a continuing one.

Everhart v. State, 274 Md. 459 , 337 A. 2d 100 (1975); Carter v. State, 274 Md. 411 , 337 A. 2d 415 (1975); Brooks v. State, 13 Md. App. 151 , 282 A. 2d 516 (1971), cert. denied, 264 Md. 746 (1972). The question presented by this case is, may “tacking” be employed by the police, so as to cure a defective present affidavit in support of an application for a court order authorizing an electronic listening device, by incorporating by reference into the present affidavit a prior valid affidavit used in another application. ³⁶⁷ Acting upon information gathered as the result of an order of the Criminal Court of Baltimore permitting an electronic eavesdrop on telephone number (301) 444-4219, officers of the Baltimore City Police obtained a search and seizure warrant for 300 East 30th Street in Baltimore City. Execution of the search and seizure warrant revealed that a gambling operation was being conducted there. A large amount of bookmaking slips and other related gambling paraphernalia was impounded.

Roy Edwin Calhoun was charged with nine violations of Md. Ann. Code art. 27 § 240. Calhoun was tried in the Criminal Court on seven separate “statements of charges,” 1 convicted on each, and fined a total of three thousand dollars ($3,000 ). 2 Prior to the trial on the merits, Calhoun moved to suppress the fruits of the search on the ground that they were acquired through an illegal wiretap order in that the order did not comply with “the Fourth Amendment of the Constitution of the United States, Sections 2510 through 2520 of Title 18 of the United States Code, Section 10-403 of the Courts and Judicial Proceedings Article, and Article 27, Section 125A of the Annotated Code of Maryland.” Calhoun bottomed his argument upon facts stipulated to the trial judge. In essence those facts were: On May 27, 1975, an ex parte order authorizing the attachment of a decoder 3 to telephone numbers 685-9615 and 727-9656, located at 410 and 412 East Baltimore Street, respectively, was issued by the Criminal Court of Baltimore. The order was based on the petition of William A. Swisher, Esq., the State’s Attorney for Baltimore City, and the affidavit of Detective Walter Harmon of the Baltimore City Police Department.

The affidavit recited that apparent gambling activity was then occurring at 410 and 412 East Baltimore Street; that there was frequent use of the ³⁶⁸ telephones by known gamblers in telephoning bets to an unknown location. The affidavit averred that there existed an inability on the part of the police to discover by ordinary investigative techniques “. . . just where it is that these illegal bookmaking wagers are being phoned into.” The affidavit further declared that, “. . . these activities will continue uninterrupted unless conventional means of investigation are recognized to be ineffective and extraordinary investigative measures are taken against this wide open and flagrant criminal display.” Subsequently, on June 30, 1975, the court, upon petition, signed an ex parte order permitting a wiretap on telephone number 727-9656. The affidavit in support of the petition was made by three Baltimore City Police Department detectives, including Detective Harmon. While the affidavit does not explicitly state that normal police investigation will not succeed, it does implicitly allege that fact.

The affiants made clear that search and seizure warrants executed in premises housing telephone numbers called from 727-9656 would produce “unknown results,” and “alert the bookmakers.” The affiants informed the reader that at least one of the police officers had personally observed the structures housing the telephones frequently dialed from 727-9656 and did not see any activity. We make it perspicuous that the telephone bearing the number 444-4219 and the structure housing it were not mentioned in that affidavit. The wiretap order was self-terminating on July 22, 1975. Five days before the termination date of the June 30, 1975, order, the State’s Attorney petitioned for an ex parte order for a wiretap to be placed on telephone number 444-4219.

That petition was supported by the affidavit of Detective Harmon. The affidavit read, in pertinent part, that “[ajttached to this AFFIDAVIT, incorporated by reference herein, with the same force and effect as if reiterated verbatim, are exact duplicates of the following materialsj.]” There then appeared a summary of the order, petition, and affidavit for the installation of the decoder and of the wiretap on 727-9656. Nowhere in the affidavit was it stated ³⁶⁹ that any police officer observed 6995 McClean Boulevard, in Baltimore City, the site where a telephone bearing number 444-4219 was housed, nor was it alleged that normal investigative measures would not suffice. The affidavit narrated that telephone number 444-4219 was dialed from telephone number 727-9656 on July 4, 5, 7, and 8. “A white male answered” the phone, and a total of four bets was placed with that male.

The specific question posed to us is whether the affidavit upon which the application for a wiretap order for telephone number 444-4219 was structured was defective for want of compliance with 18 U.S.C. §§ 2510-2520 . 4 notwithstanding that prior valid affidavits and orders had been incorporated therein by reference. Put another way, will an affidavit pass muster by piggy-backing a valid affidavit that was used in support of an application to tap another phone at a different location? In deciding the issue, we bear in mind the words of Judge Digges in State v. Siegel, 266 Md. 256, 274 , 292 A. 2d 86, 95 (1972), aff'g 13 Md. App. 444 , 285 A. 2d 671 (1971), that, “[t]he statute [ 18 U.S.C. §§ 2510 — 2520] sets up a strict procedure that must be followed and we will not abide any deviation, no matter how slight, from the prescribed path.” In our discussion, we shall utilize those pregnant words as our guiding light. ³⁷⁰ The legislative history of the Omnibus Crime Control and Safe Streets Act of 1968 sets out that what is now codified as 18 U.S.C. §§ 2510-2520 was enacted because: “The tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance.

Commercial and employer-labor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed.

No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man’s personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor’s advantage.” [1968] U.S. Code Cong. & Ad. News 2154. The history makes it unmistakable that law enforcement officers “. . . engaged in the investigation or prevention of specified types of serious crimes,” 5 including the transmission of wagering data, may use electronic surveillance only after obtaining a court order based on probable cause.

Id. at 2153. 18 U.S.C. § 2518 (1) commands that “[e]ach application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation . . . and shall state the applicant’s authority to make . . . application.” The application shall contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or ³⁷¹ why they reasonably appear to be unlikely to succeed if tried or to be too dangerous[.]” 6 By Md. Cts. and Jud. Proc. Code Ann. § 10-403 (a), the General Assembly has mandated that an application for “[a]n ex parte order for the interception of telephonic and telegraphic communications may be issued by a judge . . . upon the verified application of the Attorney General or a state’s attorney setting forth fully the facts and circumstances upon which the application is based and stating that: (1) There are reasonable grounds to believe that a crime has been committed or is about to be committed. (2) There are reasonable grounds to believe that evidence will be obtained essential to the solution of a crime, or which may enable the prevention of a crime.

(3) There are no other means readily available for obtaining the information.” We interpreted, in Washburn v. State, 19 Md. App. 187, 196 , 310 A. 2d 176, 182 (1973), cert. denied April 1976, the legislative will of the Congress and the General Assembly to be that: “[Electronic surveillance is to be employed, assuming probable cause and compliance with the other provisions of the Federal and State laws, only when one of three things occur: (1) there are no other means available for obtaining the information because normal investigative procedures have been proven unsuccessful; (2) normal investigative procedures appear unlikely to succeed if utilized, and (3) the implementation of normal investigative procedures will be too ³⁷² dangerous to be operative. In the case before us, the affiants believed that it was unlikely that other investigative procedures would ‘succeed in obtaining the identity of all the co-conspirators and in obtaining evidence sufficient to convict.’ ” In asserting compliance with the legislative mandate, the State, in the case at bar, points to another affidavit of Detective Harmon, dated July 17, 1975, for an extension of the June 30, 1975, order with respect to telephone number 727-9656, wherein he said: “It has been the experience of your Affiant, when working under the authorization of court ordered wiretaps in the past, that illegal gambling operations will often move their headquarters for receiving bets for a variety of reasons, all of them good. Your Affiant has worked on a court ordered wiretap where an illegal gambling operation moved its station due to being raided by the Baltimore City Police Department. Your Affiant has worked on a court ordered electronic surveillance of illegal gambling activities where two large bookmaking stations both moved to new locations within two weeks of each other for reasons unknown to your Affiant.

In the matter of these latter mentioned bookmaking stations, these moves took place sometime between June 11, 1975 and July 3, 1975 and were in the matter of, in connection with and a part of this present investigation by your Affiant so it is then apparent that the aforementioned gambling station at (301) 444-4219 is subject to a move at any time. A gambling station may move for the following reasons: (1) They were raided by the Police. (2) They have decided they have been in one place too long and too many people have knowledge of it. (3) They may observe too many police in the area and become suspicious.

(4) They may observe unknown people in the area and become suspicious. (5) They ³⁷³ will move to keep fringe members of the organization who may be informants from keeping close track of the integral workings of the operation. (6) They may move when writers (bet takers) are arrested by police for fear that these writers may accidently or intentionally tip off the police as to the location of the station. There are numerous other