Carroll v. State

GARRITY, Judge. The appellant, Dwyome A. Carroll (Carroll), also known as Dwayne A. Carroll, was convicted at a non-jury trial in the Circuit Court for Baltimore City of possession of heroin and possession of cocaine. Carroll received an eight year sentence for possession with intent to distribute cocaine and a four year concurrent sentence for possession of heroin. At approximately 11:30 a.m. on July 21, 1983, several Baltimore City pólice officers executed a search and seizure warrant of Room 2 of the New Motel in Baltimore.

Pursuant to that warrant which had been issued by District Court Judge Blanche G. Wahl, the police forced entry into the room wherein they discovered, inside a dresser drawer, receipts in the name of Mr. and Ms. Johnson for July 17, 19, and 20 of 1982 for the rental of Rooms 2 and 48. No receipts were found dated July 21, 1982. The receipts were ¹⁶ seized and subsequently accepted into evidence over objection. While in Room 2, the police also discovered in a dresser drawer a plastic bag containing rice, a small plastic bag in which there was a residue of white powder, another small plastic bag with an unidentified residue, a roll of tape, a razor blade, and a piece of tin foil.

None of these items were subjected to chemical analysis. In Room 2, underneath a wall plate which covered the aperture for a light switch, the police recovered seven aluminum packets of white powder, three glassine bags of white powder, and one torn glassine bag of white powder. Chemical analysis revealed that seven of the packets contained cocaine and that one contained heroin. Fingerprints were not lifted from these items or from the interior of Room 2.

Then, without a search and seizure warrant for Room 48, the police entered that room after opening the door with a key obtained from the hotel manager. There were three people inside the room, one of whom was identified as Carroll. Carroll was then arrested. No keys to either Room 48 or Room 2 were found on the appellant’s person.

At trial, Detective Paul Miller of the Baltimore City Police Department testified over objection that at the time of the arrest, the desk clerk, Cora Lee Taylor, identified Carroll as the person who had rented both Room 2 and Room 48 numerous times on a daily basis. 1 Taylor’s testimony at trial against Carroll was inconsistent. On direct examination, she testified that Carroll, whom she identified in Room 48 on the day of his arrest, had rented Room 2 from her at approximately 11:15 a.m. on July 21,1982. But, on cross-examination, Taylor testified that on July 21, 1982, she was at that time not certain that the person she identified in Room 48 as Carroll was the same person who rented Room 2 for that day. On redirect, ¹⁷ however, Taylor stated that she was positive on the day of the arrest, that the person she identified as Carroll at that time was the person who had rented Room 2 from her earlier that day.

On recross-examination, Taylor testified that on the day of the arrest, she was certain that the man (Carroll) whom she had identified for the police in Room 48 as having also rented Room 2 from her earlier that day, was actually the man who had rented Room 2. The search and seizure warrant, admitted into evidence over objection by defense counsel, authorized the search and seizure of a 20-year old black male called “Boo” who was approximately 5'4" tall and weighed 130 pounds, and Room 2 of the New Motel. On appeal, Carroll raises two issues for our consideration: I. Did the trial court err in denying appellant’s motion to suppress where the affidavit did not sufficiently detail the unidentified informant’s basis of knowledge that narcotics would be found in Room 2 of the New Motel?

II

Was the evidence sufficient to convict appellant of possession of narcotics when there was no nexus proven between the appellant and narcotics found hidden behind a light switch in an unoccupied motel room? I. Appellant asserts that the facts in the affidavit, upon which the warrant was based, were insufficient to substantiate its issuance in that they failed to establish probable cause to believe that narcotics were being sold at the New Motel. His paramount point is that the facts in the affidavit do not show the informant’s basis of knowledge as is required under the two prong test of knowledge and reliability in Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969). ¹⁸ In our opinion, this prelude runs afoul of the “totality of the circumstances” analysis of Illinois v. Gates, -U.S.-,-, 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527, 548 (1983), which recently supplanted the strict two prong analysis test of Aguilar and Spinelli . Under Gates , the determination as to whether there is sufficient probable cause to substantiate the issuance of a search warrant turns upon the totality of the circumstances in a particular case.

In articulating the totality of circumstances rule, the Court stated in Gates that: [t]he task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concludpng]” that probable cause existed, at-, 103 S.Ct. at 2332 , 76 L.Ed.2d at 548 . Accordingly, our standard of review as to the issuance of a search and seizure warrant is simply whether the magistrate had a substantial basis, under the totality of the circumstances set forth in the affidavit, to make a practical, common-sense judgment that there was a fair probability that contraband or evidence of a crime would be found in a particular place. Ramia v. State, 54 Md.App. 260 , 458 A.2d 487 (1983), Brown v. State, 57 Md.App. 186 , 469 A.2d 865 (1984), Gipe v. State, 55 Md.App. 604 , 466 A.2d 40 (1983).

The relevant facts and circumstances which established the probable cause upon which the search and seizure warrant was based were set forth as follows in the affidavit that accompanied the warrant: Your affiant spoke with a confidential reliable informant who has supplied information in the past six months which has resulted in three street arrests for narcotics and one search and seizure warrant for narcotics. In all of ¹⁹ these instances narcotics were recovered as the informant stated that narcotics would be found and persons were arrested. This informant has been a drug user for the past few years and is familiar with heroin, its appearance, methods of packaging, usage and effect. The informant told your affiant that during the week of 7 July 1982 he/she purchased heroin from a Black male known to him/her as “Boo” who the informant described as about twenty years old, five feet four inches and 130 lbs.

The informant stated that he/she has purchased heroin from “Boo” several times at 4601 E. Monument St., the New Motel and each time used the heroin and received the same euphoric effect that he/she is used to receiving when using heroin. The informant further stated that each day “Boo” would be selling heroin from a different room at the New Motel, 4601 E. Monument St. On 12 July 1982 “Boo” sold heroin to the informant from room 2 at the New Motel, 4601 E. Monument Street and the informant stated that he/she used the heroin and again received the same euphoric effect that he/she knows to be heroin. Your affiant conducted an observation at the New Motel, 4601 E. Monument St. on several occasions and noted that numerous known drug addicts were loitering at 4601 E. Monument St. the New Motel and some would gather in certain rooms on the premises and after short periods of time would leave the area. On 12 July 1982 your affiant conducted an observation at the New Motel, 4601 E. Monument St. and observed many known drug addicts loitering in the area of room 2 at the New Motel.

Many persons were observed entering room 2 and after a short stay leaving the area. This activity is known by your affiant to be indicative of narcotic activity. Numerous complaints of narcotic activity at the New Motel, 4601 E. Monument St. have been received at the narcotic office of the Baltimore Police Department in the past several weeks by several different officers. The ²⁰ people calling were not identified and stated the names of different persons who weré dealing narcotics.

Your affiant personally spoke to one concerned citizen who stated that “Boo” was selling heroin at the New Motel during the first week of July 1982. Many arrests for narcotics including heroin have been made at 4601 E.