Edwards v. State

WILNER, Judge. Petitioner, Anthony Edwards (also known as Harold Brooks), was convicted in the Circuit Court for Baltimore City of possessing, with intent to distribute, more than 448 grams of cocaine, in violation of Maryland Code, Article 27, § 286(f)(1) (1996 Repl.Vol.). The conviction was based on evidence, presented through an agreed statement of facts, that, in the course of executing a search warrant for 2125 Cliftwood Avenue on the evening of May 17, 1995, police officers discovered petitioner alone in the basement in immediate proximity to nearly 1,000 grams of 89% to 93% pure cocaine base, having a street value of approximately $500,000. About half of the cocaine was in a large zip-lock bag sitting on a table, another quarter-kilo was in a sandwich bag, and the rest was in a tape box and on a triple-beam scale.

On the table as well was $1,000 in 10 stacks of $100. Also found in the basement were a loaded .12-gauge shotgun and two loaded pistols. Additional weapons were discovered upstairs and in the car petitioner had driven to the house moments before the police entered to execute the warrant. Two women—one Imgene Reaves and a co-defendant, Sylvia Harris—were found in the living room.

For obvious reasons, petitioner does not challenge the sufficiency of the evidence underlying his conviction. His attack, ⁴³⁶ instead, is on the search warrant that led to the discovery of that evidence. We shall affirm. RELEVANT FACTS AND PROCEDURAL HISTORY On May 16, 1995, Officers Frank Alston and Lawrence Gardner made application to Judge H. Gary Bass, of the District Court, for a warrant to search (1) the persons of “Nat,” described as a black male, 20-25 years of age, 6 feet tall, 170 pounds, and “Silco,” a black female, 40 years of age, and (2) the premises of 2125 Cliftwood Avenue.

In their application, the officers stated that they had reason to believe that cocaine, narcotics paraphernalia, and other incriminatory objects and papers were then being concealed on those persons and in that property. In an accompanying affidavit, the officers attested first to their drug enforcement training and experience, which was extensive and undisputed. They then asserted that, during the first and second weeks of May, 1995, they had been informed by a registered confidential informant, identified only as NED #465, that the informant knew of a dwelling “where currently there is a large quantity of cocaine being stored,” that the informant “has seen cocaine and [sic] inside of 2125 Cliftwood Ave,” and that the cocaine was being sold in large quantities by “Nat” and “Silko,” the persons described in the application. The person identified as “Nat” drove a black Infíniti M-30 and a gray Mercedes and used those vehicles to transport and sell controlled dangerous substances.

The informant stated that he/she knew that information to be true “because he/she has purchased CDS from this house and has observed the above listed CDS inside the dwelling.” In further support of the application, the affidavit stated: “Prior to the signing of this warrant, on a date and time, that cannot be specific, as it might reveal the identity of the informant, your affiant brought NED # 465 to the chambers of the Honorable Judge Gary Bass who administered the oath under the penalty of perjury that what the affiants had been told by the informant, and that it was true and accurate. Judge Bass did this by having NED # 465 read ⁴³⁷ the information and promise that it was accurate and swear to its truthfulness. Judge Bass did not ask NED # 465 any information beyond the four corners of the affidavit.” Upon that application and affidavit, Judge Bass issued the search warrant, finding that there was probable cause to believe that controlled dangerous substances were being concealed on the described persons and at 2125 Cliftwood Avenue. On the application, Judge Bass wrote, in longhand, “I hereby find as a fact that the informant who swore under oath as to the accuracy of the information in the affidavit, and from whom I took no more information, is reliable.” In the agreed statement of facts presented at petitioner’s trial, it was established that the warrant was executed the next evening and that, immediately prior to executing the warrant, the officers observed petitioner drive up in a black Infíniti M-30, park the car in the rear of 2125 Cliftwood Avenue, exit the car, and enter the house through an open rear door.

In January, 1996, after having filed an earlier omnibus motion devoid of supporting facts but seeking a variety of relief, including the suppression of all evidence that may have been unlawfully seized, petitioner filed a motion for an in camera hearing to disclose and question the confidential informant referred to in the warrant affidavit and a separate motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). Each of the two latter motions was accompanied by an affidavit from petitioner. Both motions were based on petitioner’s assertion that the confidential informant was one Kelly Brooks, that petitioner indeed had arranged to buy a kilogram of cocaine from Brooks for $11,000, that the cocaine was supposed to be delivered to petitioner on the evening of May 16 but that it was not, in fact, delivered until the afternoon or evening of May 17, and that, accordingly, Brooks could not have been telling the truth when he asserted that there was cocaine at 2125 Cliftwood Avenue on May 16. 1 In the affidavit support ⁴³⁸ ing his motion for a Franks hearing, though not in the affidavit filed with his motion for disclosure of the informant, petitioner averred: “The affidavit [in support of the application for search warrant] falsely states that drugs were currently in residence at the time the search warrant was obtained on May 16,1995. I had no drugs in 2125 Cliftwood Avenue, and had not had any drugs in the house for several months prior.

As explained in detail above, there were no drugs in the residence until May 17, 1995, the day the search warrant was actually executed.” Petitioner also averred that he had never sold any drugs to Brooks and that Brooks’s statement to the contrary was also inaccurate. The motions for disclosure of the informant and for a hearing pursuant to Franks v. Delaware were related. Indeed, notwithstanding his assertion that he knew the informant to be Kelly Brooks, petitioner asserted in his motion for disclosure that it was necessary for the State to produce the informant and make him available for questioning in order to determine whether a Franks hearing was warranted. At a hearing on the three motions, the State asserted, and offered to prove through the testimony of the two police officers, that Kelly Brooks was not the informant.

That did not satisfy petitioner, who continued, on the one hand, to insist that Kelly Brooks was the only person with whom he was involved, and, on the other, that if Brooks was not the informant, it was equally critical that he be informed of who was the informant. The trial court denied the three motions, largely because of the appearance of the informant before Judge Bass and the informant’s attesting under oath to the truth of the statements attributed to him in the officers’ affidavit. That appearance was viewed by the court as the equivalent of an in camera hearing, thereby obviating the need for it to conduct another one, as precluding the need for a Franks hearing, and as sufficiently establishing the reliability of the informant for purposes of assessing probable cause. The court regarded the ⁴³⁹ dispute before it as a “swearing contest,” and, without any corroboration of petitioner’s affidavit, there was, in the court’s view, insufficient objective evidence that “the police engaged in a lie or engaged in reckless disregard for the truth with respect to how they responded to the informant’s information. ...” In affirming petitioner’s conviction, the Court of Special Appeals took much the same view.

On the issue of whether petitioner was entitled to an in camera disclosure of the informant, the appellate court discussed the balancing requirements of Roviaro v. United States, 353 U.S. 53 , 77 S.Ct. 623 , 1 L.Ed.2d 639 (1957), Warrick v. State, 326 Md. 696 , 607 A.2d 24 (1992), and Brooks v. State, 320 Md. 516 , 578 A.2d 783 (1990), and concluded that, because the informant was essentially a “tipster” and because Judge Bass, in effect, held an in camera hearing, it was not necessary for the circuit court to hold another one or to require disclosure of the informant. A Franks heating, it held, was required only when the accused makes a “substantial preliminary showing” that a false statement was knowingly and intentionally, or with reckless disregard for the truth, included by an affiant in the warrant affidavit, and no such showing had been made by petitioner. His unsupported assertion that the informant, whether Kelly Brooks or someone else, lied was not enough. Finally, the court found no merit in petitioner’s assertion that the application and affidavit failed to establish probable cause.

We granted certiorari to consider the same three issues debated in the circuit court and the Court of Special Appeals. DISCUSSION As a preface, we cannot help but note a certain anomaly in petitioner’s argument. In his own pre-trial affidavits, petitioner admitted having made an arrangement with Kelly Brooks to purchase, for $11,000, the 1,000 grams of cocaine discovered in the basement of 2125 Cliftwood Avenue and upon which his conviction ultimately rested. He admitted that the cocaine was due to be delivered to him at 2125 Cliftwood Avenue on the evening of May 16 and that it was only because of an ⁴⁴⁰ unexpected delay on Brooks’s part that the cocaine was not delivered until May 17.

This is not a case, in other words, of an alleged mistaken identity, of a police entrapment, or even of a fortuitous find on the part of the police; petitioner himself verified that he expected to be in possession of a substantial amount of cocaine on May 16 C the day the warrant was applied for and issued. Petitioner’s real complaint centers on pne day’s timing. His argument is that Mr. Brooks was the informant who “set him up,” by falsely asserting that the cocaine was at the Cliftwood Avenue house on May 16—the day it was supposed to be delivered—when he knew that it would not, in fact, be delivered until May 17. The legal issues arising from the circumstances under which the warrant was issued are still presented, and will be addressed, but the framework for their consideration is hardly a sympathetic one for petitioner.

Disclosure of the Informant The modern law governing the circumstances in which the State must disclose the identity of a confidential informant derives largely from three principles enunciated in Roviaro v. United States, supra, 353 U.S. 53 , 77 S.Ct. 623 , 1 L.Ed.2d 639 . The first principle was a reaffirmation of the well-established common law privilege possessed by the Government “to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law” Id. at 59 , 77 S.Ct. at 627 , 1 L.Ed.2d at 644 . That privilege, the Court said, is designed to encourage citizens to communicate their knowledge of criminal activity to law enforcement officials by preserving their anonymity and thus has as its purpose “the furtherance and protection of the public interest in effective law enforcement.” Id. The second principle announced in Roviaro was that the privilege of nondisclosure is limited by its underlying purpose and is further constrained by “fundamental requirements of fairness.” Thus, the Court held, “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair ⁴⁴¹ determination of a cause, the privilege must give way.” Id. at 60-61 , 77 S.Ct. at 628 , 1 L.Ed.2d at 645 .

Integration of those two principles produced the third—the requirement that, when presented with a defendant’s demand for disclosure, courts must “balancfe] the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Whether the balance requires disclosure, the Court added, “must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id. at 62 , 77 S.Ct. at 629 , 1 L.Ed.2d at 646 . Those principles were established “[i]n the exercise of [the Supreme Court’s] supervisory jurisdiction” to “defin[e] the scope to be accorded to the various common law evidentiary privileges in the trial of federal criminal cases,” and not as a Constitutional adjudication. McCray v. Illinois, 386 U.S. 300, 309 , 87 S.Ct. 1056, 1061 , 18 L.Ed.2d 62, 69 (1967). 2 They have, however, been adopted as part of Maryland common law. Drouin v. State, 222 Md. 271 , 160 A.2d 85 (1960); Brooks v. State, supra, 320 Md. 516 , 578 A.2d 783 ; Warrick v. State, supra, 326 Md. 696 , 607 A.2d 24 .

The privilege continues to be recognized, along with the articulated limitations and the required balancing process. Brooks, supra, 320 Md. 516 , 578 A.2d 783 . It is certainly evident here, beyond cavil, that the circuit court engaged in the requisite balancing process; it listened patiently to the arguments made on petitioner’s behalf and gave careful consideration to all of the reasons he asserted in favor of disclosure. The question at this point is whether the court reached the right balance among the competing interests.

Because the ultimate decision, assuming the application of correct principles of law in the balancing pro ⁴⁴² cess, is a discretionary one with the trial court (Gulick v. State, 252 Md. 348, 354, 249 A.2d 702, 706 (1969); Brooks v. State, supra, 320 Md. at 525 , 578 A.2d at 787 ), we look to- see whether the court applied correct legal principles and, if so, whether its ruling constituted a fair exercise of its discretion. The principal caveat to the privilege of non-disclosure articulated in Roviaro is that disclosure is required when the disclosure is relevant and helpful to the defense or is essential to a fair determination of the cause. That caveat has been interpreted, explained, and applied in a number of ways, but, as is the case with many judicial pronouncements, one must always keep in mind the context in which the pronouncement is uttered. Many courts, including this Court, have described the balancing process as hinging on “the materiality of the informer’s testimony to the determination of the accused’s guilt.” Warrick, supra, 326 Md. at 701 , 607 A.2d at 27 .

In that regard, courts have (1) drawn a distinction between an informant who actually participated in the criminal activity with which the defendant is charged, who may, as a result, have direct knowledge of what occurred and of the defendant’s criminal agency, and who therefore may be a critical witness with respect to the defendant’s guilt or innocence, on the one hand, and, on the other, an informant who is a mere “tipster”—a person who did nothing more than supply information to a law enforcement officer, who did not participate in the criminal activity and may not even have been present when it occurred, and who has little or no direct knowledge of the defendant’s guilt or innocence, and (2) tended to require disclosure in the first situation but not in the second. Roviaro and McCray are examples. In Roviaro , the informant “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged,” Roviaro, supra, 353 U.S. at 55 , 77 S.Ct. at 625 , 1 L.Ed.2d at 640 , and thus, because the identity and possible testimony of the informant bore directly ⁴⁴³ on the defendant’s guilt or innocence, especially in light of his defense of entrapment, the Court held that non-disclosure constituted reversible error. In McCray , the informant merely apprised the officers that the defendant was selling drugs on a certain corner.

The officers, one of whom was familiar with the defendant, drove to that corner and observed the defendant engaging in conduct that appeared to indicate drug trafficking. The defendant was arrested, searched, and found to be in possession of heroin. Distinguishing Roviaro , the McCray Court declined to overturn, on Constitutional grounds, a State common law rule not requiring police officers to disclose the identity of an informant “if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant.” McCray, supra, 386 U.S. at 305 , 87 S.Ct. at 1059 , 18 L.Ed.2d at 67 . This Court has also recognized that distinction.

In both Brooks and Warrick , we noted “that the privilege ordinarily applies where the informer is a mere ‘tipster,’ who supplies a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the informer is a participant in the actual crime.” Brooks, supra, 320 Md. at 525 , 578 A.2d at 787 ; Warrick, supra, 326 Md. at 701 , 607 A.2d at 26 , both citing United