Comi v. State

Lowe, J., delivered the opinion of the Court. Louis Comi was tried before a jury in the Criminal Court of Baltimore on indictments and informations charging fourteen counts of receiving stolen goods. He was convicted on all but one count, upon which the jury returned a not guilty verdict. Judge Robert Karwacki imposed a ten year sentence on each of the thirteen counts of which Mr. Comi was found guilty, but permitted each to be served concurrently, thus permitting appellant to serve 130 years while immured but for ten.

Appellant assigns error in the denial of his motion for separate trials, the denial of a mistrial following an “in ⁵¹³ flammatory” suggestion in opening statement, the failure to suppress evidence, the admission of photographs, the failure to grant his motion to acquit and sentencing. In short he claims that the State’s mistakes began before the trial and ended after conviction. Factually the most difficult complaint relates to the seizure of what the prosecutor later regretted having termed “the largest cache of stolen goods in Baltimore City.” 1 The evidence was seized from two buildings, 4016 and 4020 Lombard Street. 2 Louis Comi admittedly resided at least part time in 4016, and while his son owned 4020, the evidence provides no further link between appellant and 4020. The evidence was seized on the strength of two search warrants.

On February 15, 1973 warrant #1 was issued authorizing a search of 4016 Lombard. Upon that search, the officers discovered that 4016 and 4020 were two separate buildings. On February 16, 1973, the police applied for and received a warrant to search 4020 which authorized as well their return to 4016. Thus warrant #1 is as the horseshoe nail for which a kingdom was lost, since warrant #2 was largely founded upon information obtained during the execution of warrant #1.

It follows that unless the information in warrant #1 amounted to probable cause and complied with the requirements of Aguilar v. Texas, 378 U. S. 108 both warrants must fall. On the other side of the coin however, the validity of #1 will not serve as a guarantee of the validity of #2. Search Warrant Number One The affiant is a police officer eminently qualified by service in criminal investigation and extensive experience in ⁵¹⁴ search and seizure. He recites information received from an unidentified confidential informant who had provided the affiant “with accurate information in the past three months that had led to the recovery of approximately $300.00 worth of stolen property and the arrest of three people for burglary.” The three had not as yet been tried.

Furthermore, the police officer knew personally that his informant had given truthful and accurate information to other officers though it had not as yet culminated in an arrest. We note from the hearing transcript that appellant’s first counsel conceded that the informant was “credible or reliable.” Aguilar v. Texas, 378 U. S. 108, 114 . Though that concession would seem to preclude appellant’s attack on credibility here, we find in any case that the affidavit fit within the “pattern . .. derived from the cases cited ...” in State v. Kraft, 269 Md. 583 , 614-615 and adequately established credibility. The Court of Appeals pointed out in Kraft, supra, that there was no requirement to assert convictions from the arrests reasoning that it could be assumed that a prudent officer would not mislead the court by swearing to an arrest that had resulted in acquittal.

Further we can equate affiant’s personal knowledge of the truthful and accurate information given by the informant to other officers, with a Kraft example of one who was described as having on “repeated occasions in the past furnished reliable and credible information,” citing United States v. Rich, 407 F.2d 934 . The affidavit far exceeded that of State v. Perry, 59 N. J. 383, cited by Kraft with approval, 269 Md. at 611 . If further verification of the informant’s credibility were required, it was found when the affiant independently corroborated certain of the information given him by the informant. Spinelli v. United States, 393 U. S. 410, 415 ; Stanley v. State, 19 Md. App. 507, 529 .

The adequacy of the informant’s “basis of knowledge,” the second Aguilar prong, is not as clear cut as was his “credibility.” The informant related in great detail that at about 11:00 p.m. on February 14, 1973 Larry Boardwine, whom he described, met with Gene Comi, from whom he ⁵¹⁵ received $100 in exchange for several pieces of property. The affidavit says “they” then went to 4016 E. Lombard Street. We know “they” included Boardwine but cannot determine whether it also included the informant. In any event, the goods were delivered to Louis Comi at the above address.

The informant next named four persons, whom he described, as responsible for the theft of the described items of property from a private residence in Howard County the same day. The informant concluded by saying that one of the burglary participants, Gary Jacob Huster, “related to him/her” that the burglars had stolen stereo speakers from the house, but decided to leave the stereo components behind because they “got frightened.” He further related that they had proceeded to Larry Boardwine’s house immediately after the burglary. Although this latter information is inartfully expressed, we infer the informant’s suggestion that the burglary was within a few hours of the Boardwine sale of goods to Gene Comi at 11:00 p.m., which, in February, would have been after dark. The affiant contacted a State Trooper in Howard County who told him that there had been a residential burglary on the day in question, during which items precisely matching five of the six items allegedly sold to Comi were taken.

Burned paper matches were found, indicating that the burglary was at night, and although two stereo speakers were stolen, the components were not. The complaint report was attached to and incorporated into the affidavit. The “basis of knowledge” prong of Aguilar, 378 U. S. at 113 , serves to insure that the information included originated as personal knowledge. At no point in this affidavit are we told that the informant “saw” or “heard” or participated in the activities described, the kind of assurance Aguilar prescribes.

Spinelli , however, in its explication of the Aguilar requirements, permitted the “self-verifying detail” alternative for establishing an informant’s basis of knowledge. 393 U. S. at 416-417 . In the description of the delivery of goods to Gene and Louis Comi the informant provides such detail — including brand names, colors, the name of the cafe, time, the amount and form of payment — ⁵¹⁶ that we may safely conclude that he spoke from personal knowledge. The remainder of his story, however, suggests that he was told about the burglary by one of its participants, Gary Jacob Huster. We have held that a chain of informants may serve as the basis of a valid search warrant, but that each informant in the chain must meet the Aguilar-Spinelli requirements.

Thompson v. State, 16 Md. App. 560 . In assessing the credibility of the secondary informant, we note first that he was named in the affidavit: “The confidential source further stated that Gary Jacob Huster related to him/her that. . ..” As we have previously observed: “.. . in dealing with a named source, the very naming of the source and the relationship of the source to the observed information may go a long way (or even be sufficient unto itself) under the facts of a particular case, to establish the credibility of that source or the reliability of his information.” Dawson v. State, 11 Md. App. 694, 699 . In addition to the source being named, his information was, to some extent, buttressed by the affiant’s independent verification of the Howard County burglary, particularly the revelations concerning burned matches and stereo components. Watson v. State, 18 Md. App. 184, 193 .

Even if “credibility” were not adequately established by the foregoing (we think it is), the underlying circumstances of his recitation suggest that his information was reliable. Credibility and reliability are alternative methods of establishing the veracity prong of Aguilar, Thompson v. State, 16 Md. App. 560, 562-563 . The secondary source here was not a paid police informer, nor promised any sort of inducement to speak. In fact, he had no way of knowing his information would eventually arrive at police headquarters.

He was merely relating an occurrence to a friend. We conclude that Huster had no motive to lie and his ⁵¹⁷ information was conveyed in circumstances consistent with its reliability. The secondary informant’s “basis of knowledge” was obviously established by his admitted participation in the burglary. Aguilar, 378 U. S. at 113 .

The requisite tests having been met, the combination of direct and hearsay information in this affidavit was properly relied upon in the determination of probable cause. Dawson v. State, 11 Md. App. 694, 697 . We hold that those facts were sufficient to establish probable cause in that they were: “. . . such as to justify a prudent and cautious man in believing that the offense has been committed.” Dean v. State, 205 Md. 274, 284 . Execution The warrant was executed and the search revealed a vertible warehouse of coins, jewelry, cameras and appliances in the cellar of 4016.

To the chagrin of the police they were unable to locate the items whose seizure the warrant commanded, all of which had been stolen from the Howard County home. In plain view, however, they saw and seized Hash pipes and narcotic syringes, arguably if not clearly contraband, and seizable as such. Hughes v. State, 14 Md. App. 497, 511 . They also wrote down the serial number of one of several television sets, and seized a rifle which was not among the items listed in the search warrant.

Without deciding whether at that point in the investigation the sheer quantity of goods observed, coupled with other police knowledge of the occupants’ activities provided probable cause to believe the rifle stolen, Anglin v. State, 1 Md. App. 85 , we will assume the rifle was illegally seized as outside the scope of the warrant, Hughes, 14 Md. App. at 510 . Its suppression does not alter our position on the validity of the second warrant. Search Warrant Number Two Appellant argues primarily that the second search ⁵¹⁸ warrant is bad either because it relies on an invalid first warrant, or because it relies on illegal seizures during the execution of the first warrant. The first alternative is nullified by our foregoing conclusion as to search warrant #1.

The second warrant affidavit incorporated the first by reference, and requested authority to search 4020 E. Lombard Street for the same items the police had unsuccessful sought at 4016. This was because the officers did not discover that the pool room at 4016 E. Lombard Street was really two separate buildings, 4016 and 4020, until they executed the first warrant. In addition, the second warrant recited that the rifle and television serial number had been seized, that the affiant had discovered that those items had been stolen in a Montgomery County burglary (the complaint report was attached), and described the tremendous volume of items the officers had observed during their first visit to 4016. The affiant then listed all of the items taken in the aforementioned Montgomery County burglary and sought authority to seize them from 4016.

We need not consider the warrant affidavit as it relates to 4020 since we hereafter decide that 4020 was inadequately linked to appellant. As to 4016, however, the affidavit was clearly adequate. The television set serial number had been in plain view at 4016 during the officer’s first visit, and had been seen by virtue of a prior valid intrusion, viz. the first warrant. Its seizure was permissible under the plain view doctrine, Coolidge v. New Hampshire, 403 U. S. 443 ; Brown v. State, 15 Md. App. 584 .

The attachment of the Montgomery County police report listing the television as stolen consummated the probable cause equation. This is true notwithstanding our assumed illegality of the rifle seizure. The information regarding the television was an adequate basis, independent of and untainted by the rifle seizure, to support the second warrant: “If an affidavit for a search and seizure warrant contains improper information which should not be ⁵¹⁹ considered by the court [in issuing the warrant] the court is nonetheless justified in issuing the warrant if additionally the affidavit contains within it sufficient proper information to show the existence of probable cause.” Carter v. State, #51, Sept. Term, 1974, (Court of Appeals, filed April 11,1975). Execution of Number Two When the officers arrived at 4016 E. Lombard Street the second time they seized items they knew to be fruits of the Montgomery County burglary as well as a tremendous number of other