Dawson v. State

Moylan, J., delivered the opinion of the Court. The appellants, Donald Lee Dawson and Frances M. Dawson, husband and wife, were convicted in the Circuit Court for Prince George’s County by a jury, presided over by Judge Samuel J. DeBlasis, of unlawfully maintaining a premises for the purpose of selling lottery tickets in violation of Article 27, Section 360, of the Annotated Code of Maryland. The appellant Donald Lee Dawson was also convicted of unlawfully betting, wagering or gambling on the results of horse races in violation of Article 27, Section 240. On this appeal, they raise three contentions: (1) That the search warrant for their home was issued and executed without adequate probable cause having been shown to justify its issuance; (2) That the trial court committed error in refusing to require the State to reveal the name of the confidential ⁶⁹⁷ informant mentioned in the application for the search warrant; and (3) That the evidence was legally insufficient to justify the convictions of either of the appellants.

The first contention requires us to consider whether the application for the search warrant revealed probable cause for the issuing magistrate to believe that illegal gambling activities were being conducted at the appellants’ home at 8103 Legation Road in Hyattsville. The affidavit offered in support of the application for the search warrant contained both the direct observation of Detective John M. Fyfe and hearsay information furnished to Detective Fyfe by a confidential source. The Dual Analysis of Probable Cause The existence of probable cause to justify the issuance of either a search and seizure warrant or an arrest warrant 1 may be predicated upon either or both of two broad categories of information — 1) the direct observation of the affiant applying for the warrant (or of the affiants on supporting affidavits, see Price v. State, 7 Md. App. 131 ; Scott v. State, 4 Md. App. 482 ), or 2) hearsay information furnished to the affiant by someone else and then recited by the affiant in his affidavit. It is axiomatic that probable cause may be based upon the direct observation of the affiant himself.

Buckner v. State, 11 Md. App. 55, 61 ; Hall v. State, 5 Md. App. 394, 396 . It is equally well-established that probable cause may be based upon hearsay information alone and need not reflect the direct personal observation of the affiant. Jones v. United States, 362 U. S. 257 ; Aguilar v. Texas, 378 U. S. 108, 114 ; Scott v. State, 1 Md. App. 481 ; Grimm v. State, 6 Md. App. 321, 326 . It follows that probable cause may also be based upon a combination of direct observation and hearsay information.

Aguilar, supra; Spinelli v. United States, ⁶⁹⁸ 393 U. S. 410 ; Frankis v. State, 11 Md. App. 534 ; Lashley v. State, 10 Md. App. 136 ; Iannone v. State, 10 Md. App. 81 . Confusion somehow manages to creep into the cases, however, where the affidavit offered to support probable cause is based upon the mixed predicate of both direct observation and hearsay information. That confusion is engendered by the failure to grasp the unifying principle —to appreciate that both of the broad categories of information are evaluated by the same general standards of measurement. The apparent difference in the standards is simply one of surface application and not of theoretical significance.

Whether the information being evaluated is the direct observation of the affiant or is hearsay information, the issuing magistrate is required to perform the same intellectual surgery. In determining the existence vel non of probable cause, the magistrate must make two distinct determinations. The number and the nature of these determinations do not vary, whether the specimen being analyzed is direct observation or hearsay information. He must: (1) Evaluate the truthfulness of the source of the information ; and (2) Evaluate the adequacy of the factual premises furnished by that source to support the validity of the source’s conclusion.

In the first instance, he is judging the integrity of a person. In the second instance, he is judging the logic of a proposition. These functions are distinct. They are the direct analogues of those other two functions performed by the ultimate finder of fact who 1) assesses the credibility of a witness and 2) then assesses the weight to be given the testimony of that witness.

In evaluating the truthfulness of the source of the information, the magistrate is presented with no problem in dealing with the affiant-observer. “The oath affirms the honesty of the statement and negatives the lie or imagination.” Spinelli , at 423 (concurring opinion by White, ⁶⁹⁹ J.). The oath, as a trustworthiness device, establishes, per se, the credibility of the affiant-source and, thereby, the reliability of his directly observed information. Where the source of the information, however, is an absent, non-swearing declarant (an informant), the pathway to the establishment of that source’s credibility is more circuitous. The issuing magistrate must have, as a substitute for the oath, some other reason to be persuaded of the credibility of the source of the information.

In deciding whether he is so persuaded, the magistrate must perform the same analysis whether the non-swearing source is named or unnamed. Spinelli , at 424 (concurring opinion by White, J.) ; Kist v. State, 4 Md. App. 282, 285. His evaluation, in theory, will be the same in either case. The practical distinction is that 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.

Kapler v. State, 194 Md. 580 ; Ward v. State, 9 Md. App. 583, 591-592 ; Grimm v. State, 6 Md. App. 321, 328 . See also Taylor v. State, 238 Md. 424 ; Jones v. State, 242 Md. 95 ; Knight v. State, 7 Md. App. 282 (although these cases involve probable cause for warrant-less arrests based upon hearsay information, the principle involved as to the trustworthiness of a witness-informant would also apply to cases involving applications for warrants). Compare Kist v. State, supra. Where the source of the information is unnamed, however, the method of persuading the magistrate is more involved.

He must be furnished sufficient background information for him to judge for himself the credibility of the unnamed source and/or the reliability of that source’s information. Spinelli , at 416; Iannone v. State, supra; Grimm v. State, 6 Md. App. 321 . The credibility of the person and the reliability of the information are but alternative aspects of the same trustworthiness phenomenon. To conclude that trustworthiness is probably pres ⁷⁰⁰ ent, the magistrate must be convinced either 1) that the source himself, as a person, is inherently honest and credible, see Sessoms v. State, 3 Md. App. 293, 295-296 , or 2) in the absence of such proof of character of the man, that the information is furnished by that source under circumstances redolent with insurances of trustworthiness.

Spinelli , at 425 (concurring opinion by White, J.). See also Buckner v. State, supra. Credibility and reliability may operate alternatively or in combination to establish probable trustworthiness. In evaluating the credibility of different types of sources, the practical applications may vary, but the common denominator of all such decisions is that the issuing magistrate must have before him enough circumstances to be able to judge for himself the honesty of the source of the information, whether that source be an affiant, a named non-swearing informant or an unnamed non-swearing informant.

The magistrate may no more accept an affiant’s assertion that his source (named or unnamed) is credible in lieu of a recitation of facts from which the magistrate may draw that conclusion for himself than he may accept an affiant’s assertion that the affiant himself is credible as a substitute for the affiant’s taking of the oath. Spinelli , at 424 (concurring opinion by White, J.); Gatewood v. State, 244 Md. 609 ; Grimm v. State, 7 Md. App. 491, 494-495 . The concluding, in either case, is only for the magistrate. Once the magistrate has decided that the information is trustworthy, he has still only half completed his ultimate determination.

He must still decide what the information is worth. He has decided that the source is not lying; but he has not yet decided whether the source is mistaken. The magistrate’s second function is now to evaluate the information which he is accepting as true and to see what probabilities emerge from that available data. Again, he may not accept the conclusion of either the affiant-observer or the non-swearing informant. 2 He ⁷⁰¹ must take from either of those sources his facts and then arrive at his own conclusion as to the significance of those facts.

Spinelli , at 416; Buckner v. State, supra, at 62; Hall v. State, supra, at 397. In the case of the affiant-observer, the magistrate cannot accept the affiant’s mere conclusion that “A probably committed a crime” or that “B probably contains contraband.” The magistrate needs to know what the observations were so that he can conclude for himself whether that observed data persuades him that “A probably committed a crime” or that “B probably contains contraband.” Nathanson v. United States, 290 U. S. 41 ; Jones v. United States, supra, at 269; Whiteley v. Warden, U. S. , 91 S. Ct. 1031 , 28 L.Ed.2d 306 ; Grimm v. State, 7 Md. App. 491, 493-494 ; Scott v. State, 4 Md. App. 482, 491 . By the same logic, the magistrate may not accept the non-sworn hearsay conclusion of even a credible informant any more than he may accept the sworn conclusion of a credible affiant-observer. United States v. Ventresca, 380 U. S. 102, 108-109 ; Frey v. State, 3 Md. App. 38, 45-46 .

Again, he needs to know just what the informant saw and just what the informant heard to warrant the informant’s conclusion. 3 Price v. State, supra, ⁷⁰² at 140. At issue here is not the informant’s credibility but the informant’s thinking process — not his integrity but his ratiocination. See Owings v. State, 8 Md. App. 572, 576-578 . In applying then these tools of analysis to an application based upon a mixed predicate of direct observation and hearsay information, the issuing magistrate may, after evaluating both the trustworthiness of the source of the information and the weight and worth of the information itself, reach one of four conclusions: (1) That the direct observation is adequate unto itself to establish probable cause; see Shrout v. State, 238 Md. 170 ; Gatewood v. State, supra; Nutt v. State, 9 Md. App. 501, 505 ; (2) That the hearsay information is adequate unto itself to establish probable cause; Ward v. State, supra; Sessoms v. State, supra; (3) That neither the direct observation nor the hearsay information, standing alone, is adequate to establish probable cause but that the two combined do add up to the establishment of such probable cause; Frankis v. State, supra; Buckner v. State, supra; Iannone v. State, supra; Lashley v. State, supra; Price v. State, supra; Frey v. State, supra; or (4) That even the sum total of the direct observation plus the hearsay information does not establish probable cause.

Spinelli, supra; Grimm v. State, 7 Md. App. 491 . The most logical procedure to follow in evaluating a warrant application (and that suggested by Spinelli , at 415-416) is to look first at the hearsay information. If the ⁷⁰³ affiant has furnished the issuing magistrate enough of the underlying circumstances to persuade the magistrate 1) that the informant is credible or his information other.wise reliable and 2) that'the informant’s conclusion was validly arrived at, probable cause is established. Aguilar , at 114.

What Spinelli , at 413, refers to as “Aguilar’s two-pronged test” has been met. If, on the other hand, the information furnished about the informant and the information furnished from the informant fail to pass muster by either or both of Aguilar’s prongs, the informant’s information is still not rendered valueless. “Rather, it need[s] some further support.” Spinelli , at 418. In search of that “further support,” the magistrate may then look to the direct observation recounted by the affiant. That direct observation may serve a dual function.

As substance in its own right, it bears directly on the question of probable cause. It may also serve the ancillary and concomitant function of corroborating or verifying the hearsay information. Initially, the trustworthiness of an informant’s information may not have been adequately established intrinsically because either 1) the magistrate was not persuaded that the informant was, by proven past performance (see McCray v. Illinois, 386 U. S. 300, at 303-304 ; Frankis v. State, supra; Owings v. State, supra; Green v. State, 8 Md. App. 352 ; Watkins v. State, 7 Md. App. 151 ; Cornish and Gilman v. State, 6 Md. App. 167 ; Rollins v. State, 5 Md. App. 495 ; Hundley v. State, 3 Md. App. 402 ) 4 or testimonials as to character (see Sessoms v. State, supra, and Bauckman v. State, 9 Md. App. 612 ) or otherwise, inherently credible or 2) the magistrate was not persuaded that the information was otherwise reliable by virtue of having been furnished under circumstances reasonably insuring trustworthiness. Spinelli , at 425 (concurring opinion by White, J.); Bauckman v. State, supra, at 619; Price v. State, supra, at 141.

The necessary trustworthiness may then be estab ⁷⁰⁴ lished extrinsically by the independent verification of the affiant’s direct observation. If some of the significant details of the informant’s story are shown to be, in fact, true, that encourages the magistrate to believe that all of the story is probably true. The Supreme Court outlined this procedure in Spinelli , at 415: “The informer’s report must first be measured against Aguilar’s standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar , the other allegations which corroborate the information contained in the hearsay report should then be considered.

At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate’s decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration?” See also Buckner v. State, supra, at 66; Iannone v. State, supra, at 85; Price v. State, supra, at 138. The Warrant in This Case The substance of the affidavit of Detective Fyfe in support of the application for the search and seizure warrant consists of nine paragraphs. The first paragraph lists the investigative experience of Detective Fyfe and ends with his conclusion that gambling activities are being conducted at the suspected premises.

Paragraphs three through nine contain the direct observations of Detective Fyfe himself. Only the second paragraph deals with the hearsay information. That paragraph contains not simply Detective Fyfe’s description of the confidential informant but also the information furnished to Detective Fyfe by the confidential informant. The paragraph recites: “That on Thursday April 17, 1969 your affiant interviewed a confidential source of informa ⁷⁰⁵ tion who has given reliable information in the past relating to illegal gambling activities which has resulted in the arrest and conviction of persons arrested for illegal gambling activities and that the source is personally known to your affiant.

That this source related that there was illegal gambling activities taking place at 8103 Legation Road, Hyattsville Prince George’s County, Maryland by a one Donald Lee Dawson. That the source further related that the source would call telephone #577-5197 and place horse and number bets with Donald Lee Dawson.” A moment’s analysis reveals that the first sentence relates to the “credibility/reliability” prong of the Aguilar test and that the second and third sentences relate to the “conclusionary validity” prong of the Aguilar test. In looking at the “conclusionary validity” prong first, Aguilar is satisfied by the recitation in this case. It is clear that the confidential informant is not passing on mere hearsay or idle rumor that he has picked up from some secondary source.

He has related that he has personally called telephone number 577-5197 and has personally placed horse and number bets with the appellant. His knowledge is first hand. His facts support his conclusion. With respect to meeting this prong of the Aguilar test, the hearsay recitation in the case at bar is diametrically contrary to that found to be inadequate in Spinelli , at 416: “Perhaps even more important is the fact that Aguilar’s other test has not been satisfied.

The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. [Emphasis supplied] Moreover, if ⁷⁰⁶ the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v. United States, 381 U. S. 214 (1965).

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” The information furnished by the affiant about his confidential source is more borderline, however, in meeting the “credibility/reliability” prong of the Aguilar test. In that the recitation includes the assertion that the informant’s information in the past has resulted in the “conviction of persons arrested for illegal gambling activities,” the circumstances go further to establish credibility than they did in Spinelli , wherein the confidential source was simply described as “a confidential reliable informant,” with no further recitation cataloging any results flowing from that source’s information, even in vague, general terms. In asserting that both arrests and convictions have resulted from the source’s information on past occasions, the underlying circumstances here furnished are stronger than those furnished in Iannone v. State, supra, wherein we held at 85: “We think it clear that an undisclosed informant’s reliability [credibility] is not established by the affiant’s mere unsupported and unparticularized conclusory assertion that he has ‘furnished information which has proven to be reliable in the past’.” See also Lashley v. State, supra, at 140. But see Draper v. United States, 358 U. S. 307, at 313 .

It may well be that the facts here recited are enough to establish the credibility of the informant. In view of the strong independent ⁷⁰⁷ verification hereinafter to be discussed, however, it is unnecessary for the State to rely exclusively on such recitation. Even were we to assume, arguendo, that the trustworthiness of the confidential information has not been directly established because 1) the circumstances furnished to support the informant’s credibility have been not quite adequate and 2) no circumstances have been furnished to show that the information is otherwise reliable, we must now explore the third avenue to trustworthiness. We must look to the direct observations of the affiant and see whether enough verification of parts of the informant’s story exists to foster the conclusion that the whole story is probably true.

Our analysis of the direct observations leads us to conclude that ample verification does exist; that the confidential information is sufficiently corroborated to be as trustworthy as that information would need to be to “pass Aguilar’s tests without independent corroboration.” Spinelli , at 415. In looking at “the other parts of the application,” we find ample allegations “which would permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli , at 418. A discreet surveillance was conducted on the appellant’s movements for six consecutive working days — Friday, April 18, 1969, through Thursday, April 24,1969, excluding only the intervening Sunday. The pattern of conduct that emerged strongly suggested that the appellant was a middle-echelon executive in the gambling business — a business that can conveniently accommodate both bets on the horses and bets on the day’s winning number, since both wagering activities are geared to the same hourly schedule and both look to the same sporting events for the winning and losing results.

The appellant urges strongly that not one of his observed activities could not easily have been engaged in by an innocent man. That is true. It is also beside the point. What the appellant ignores is that probable cause emerges not from any single constituent activity but, ⁷⁰⁸ rather, from the overall pattern of activities.

Each fragment of conduct may communicate nothing of significance, but the broad mosaic portrays a great deal. The whole may,