Donaldson v. State

Mason, J., delivered the opinion of the Court. Appellant, Gary Paul Donaldson, was convicted at a bench trial in the Circuit Court for Montgomery County of possession of controlled dangerous substances (PCP) and possession of controlled paraphernalia. On appeal he argues: 1. That the affidavit in support of the search and seizure warrant lacked probable cause. ⁵²³ 2.

That the delayed execution of the warrant constituted an unreasonable search and seizure. 3. That the seizure of the film canister from his pocket was an illegal search. I. On July 13,1978, a search and seizure warrant was issued for the premises located at 4511 Grenoble Court in Wheaton, Maryland authorizing the search of the premises and the seizure of controlled dangerous substances and paraphernalia. Application for the warrant was supported by affidavits from Officers Joseph R. Hock, Jr., who possessed considerable experience in conducting narcotic investigations and had received extensive training in this field, and Paul E. Morrison, a police officer for several years.

Appellant attacks the search and seizure warrant on the basis that the supporting affidavit lacked probable cause, i.e., it did not show that the informants were credible, the information reliable, and that they possessed a sufficient basis of knowledge as required by Aguilar v. Texas, 378 U.S. 108 (1964). It is axiomatic that probable cause may be established by either or both of the following: (1) the direct observation of the affiant, or (2) heresay information furnished to the affiant. In Moore v. State, 13 Md. App. 711, 715 , 284 A.2d 614 (1971) this Court said: "Thus probable cause may be shown in the affidavit by a statement by the affiant 1) of his direct observations, or 2) of information furnished the affiant by someone else, named or unnamed, or 3) of a combination of the direct observations of the affiant and hearsay information furnished him.” The affidavit in this case was based on hearsay information furnished by ten undisclosed informants who were described in the affidavit as "concerned citizens,” 1 combined with ⁵²⁴ independent investigations and observations by the affiant-officers which verified, corroborated or authenticated, in part, the information given by the informants. This buttressing technique was approved in Spinelli v. United States, 393 U.S. 410 (1969); accord, Stanley v. State, 19 Md. App. 507, 529 , 313 A.2d 847 (1974) where we said: "When the independent police observations have verified part of the story told by an informant, that corroboration lends credence to the remaining unverified portion of the story by demonstrating that the informant has, to the extent tested, spoken truly. . . .

The verification helps to demonstrate his 'credibility.’ Present good performance shows him to be probably 'credible’ just as surely as the past good performance.” Even excluding the hearsay information furnished by the ten alleged "concerned citizens,” the independent observations by the police were sufficient to establish probable cause. Therefore, an analysis of the hearsay information under the Aguilar test is not required. With respect to independent police observations, this Court said: "When such observations are sufficient in themselves to demonstrate probable cause, the final problem is thereby solved and all information both from and about the informant becomes a redundancy; probable cause is established without necessary resort to the hearsay.” Stanley v. State, supra, at 528. Accord Frankel v. State, 178 Md. 553 , 16 A.2d 93 (1940).

After conducting an independent investigation of substantial duration in connection with drug trafficking at the target premises, the affiants observed, among other things, a large number of persons with prior arrests for violating the narcotic laws entering and leaving the premises within short periods of time. They concluded that the residence was ⁵²⁵ characteristic of premises used for drug trafficking. These observations were summarized by the affiants as follows: "Several people arrive in one vehicle but only one or two persons enter the residence, persons involved in drug trafficking conduct such transactions within short periods of time. Persons purchasing C.D.S. [controlled dangerous substances] often park their vehicles not directly in front of a residence used for drug trafficking.

Vehicles from different jurisdictions frequent a premises used for the trafficking of C.D.S. Packages go in and out of the premise used for the trafficking of C.D.S. and premises used for the trafficking of C.D.S. are frequented by previous C.D.S. violators and members of the criminal element.” II. The search warrant in this case was issued on July 13, 1979 and executed on July 24, 1979. The warrant commanded the officers to conduct the search of the premises "forthwith”. The officers testified that the target premises were kept under surveillance from the date the warrant was issued until it was executed.

During this period the traffic pattern of the people coming and going was monitored in order to determine when appellant had the most drugs and when was the most opportune time to execute the warrant. The delay in executing the warrant occurred because appellant had a party at his house on the 14th and for security reasons the warrant was not executed. The officers did not work on the 15th and the 16th which was a Saturday and Sunday, and on the 17th there was not much activity on the premises. Appellant was arrested on the 18th for an unrelated drug charge, and the officers thought he probably had most of the drugs on his person or in his automobile at the time of the arrest.

On the 19th traffic was light and the officers assumed appellant was keeping quiet after his arrest. On the 20th and 21st ⁵²⁶ there was only a little traffic in and out of the premises. The 22nd and 23rd was a weekend and the officers did not work. The warrant was executed on the 24th.

Appellant contends that the officers disobeyed the command of the warrant by deliberately delaying its execution in the expectation of finding a larger quantity of drugs on the premises, and because they wanted to arrest other persons buying drugs. He argues that this delay amounted to an unreasonable search and seizure in violation of the Fourth Amendment. In support of this argument appellant relies on the case of Cave v. Superior Court, County of San Mateo, 267 Cal. App. 2d 517 , 73 Cal.

Rptr. 167 (1968). There the search warrant was issued on December 4, 1967 and executed on December 11, 1967. The sole reason for the seven day delay in executing the warrant was the officers’ expectation of finding additional stolen property on the premises. The California Penal Code required search warrants to be executed within ten days, and commanded peace officers to make an immediate search of the premises.

The petitioners argued that the search was illegal because of the delay in executing the warrant, whereas respondent argued that the search was valid because it was conducted within the prescribed ten day period. In holding that the search was invalid, the court said: "It is impossible for use to read this statute as permitting a search the time of which is at the officer’s discretion within the maximum, a search which is timed by the officer to produce property which he believes was brought to the premises subsequent to the issuing of the warrant, and the return to which is, of course, also delayed. The statute speaks of immediacy. It does not admit of delay that is calculated on the making of a more fruitful search than that which was described to the magistrate.

The terms of section 1529 and those of the warrant which was issued seems compelling to us. The words 'immediate’ and 'forthwith’ lose their ⁵²⁷ true meaning if they be thought to relate to any time at all within ten days.” Id. at 169. Article 27, section 551 of the Annotated Code of Maryland (1976 & Cum. Supp. 1979) provides that a search warrant shall be executed within fifteen days from issuance and after the expiration of the fifteen day period said warrant shall be null and void.

The statute, however, does not require the warrant to command peace officers to make an "immediate” or "forthwith” search. The State argues that because the warrant in this case was executed within the fifteen day period prescribed by the statute, it was per se timely and valid. As authority for this position, it cites Griffin v. State, 232 Md. 389 , 194 A.2d 80 (1963) where the defendant argued that the search warrant was defective in that it contained no limitation as to time or place. In disposing of this contention, the Court of Appeals held, among other things, that the fifteen days provided by the statute was a reasonable time to allow for the execution of the warrant.

We do not think Grifñn is authority for what the State purports. In Grifñn, the warrant authorized the search of a person and not a place, and did not direct an immediate or forthwith search. Furthermore, the Court was not concerned with the issue presented here, i.e., whether a police officer may delay execution of a search warrant (for eleven days in which a forthwith search is commanded) for the purpose of conducting the search at a time when the officer believes there would be a greater probability of seizing a larger quantity of drugs. No Maryland appellate case has come to our attention in which this precise issue has been considered.

As we read the statute, fifteen days is the maximum allowable delay for the execution of a search warrant, but execution in less than fifteen days may be required depending on the facts and circumstances of each case. Although the statute does not require the forthwith execution of the warrant, it goes without saying that the judicially imposed requirement that the warrant shall be served forthwith was a mandate which controlled the execution of the warrant in this case. Other jurisdictions confronted with statutes or rules requiring "forthwith” ser ⁵²⁸ vice of a search warrant have construed this to mean that the warrant must be executed with reasonable promptness and diligence, taking into consideration the actual difficulties encountered in attempting to effectuate the search. In Moss v. Director, 32 Md. App. 66, 73 , 359 A.2d 236 (1976) the term "forthwith” was interpreted to mean "with all reasonable dispatch consistent with the circumstances.” What we have here is an apparent conflict between the statute which requires service of the warrant within fifteen days, and the command of the warrant which required the search to be conducted forthwith.

Prior to a 1972 amendment eliminating the forthwith requirement, Rule 41 (c) of the Federal Rules of Criminal Procedure required that a search be made forthwith, and Rule 41 (d) required that a search warrant be executed within ten days. Many cases arose in the Federal Courts which attempted to reconcile the apparent conflict between the forthwith requirement of Rule 41 (c) and the ten day limit of Rule 41 (d). A distillation of these cases indicates that the Federal Courts have interpreted the forthwith requirement to mean that the warrant must be executed without unreasonable delay, but if the search is conducted within the ten day limitation period, evidence seized pursuant to the search will be suppressed only if the defendant can show that he was prejudiced by the delay. See, e.g., United States v. Wilson, 491 F.2d 724 (6th Cir. 1974) where execution of a warrant was delayed six days to conceal identity of informant; United States v. Rael, 467 F.2d 333 (10th Cir. 1972) — five day delay caused by lack of sufficient personnel; United States v. Harper, 450 F.2d 1032 (5th Cir. 1971) — nine day delay resulting from desire to arrest accomplices; United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969); cert. den. 397 U.S. 1002 (1970) — nine day delay resulting from a desire to arrest defendant;