Everhart v. State

Moylan, J., delivered the opinion of the Court. The exclusionary rule of evidence, a child of controversy since its birth in 1901, has always played to at-best mixed reviews. The present appeal by Michael Ashton Everhart from his conviction by a Frederick County jury, presided over by Judge Samuel Barrick, of 1) maintaining a common nuisance and 2) possession of marihuana prompts a first-impression consideration of the applicability of that exclusionary rule to the ex parte, in camera proceeding wherein a magistrate determines that probable cause exists for the issuance of a search and seizure warrant. We will set the stage procedurally.

On May 11, 1972, Sergeant Carl R. Harbaugh of the Maryland State Police applied for a search warrant to search 1) coincidentally, a 1966 Lincoln Continental owned by one Jerry Wayne Lawson, and 2) of primary concern, a farmhouse (particularly described and located) on the outskirts of Frederick known as “the Nathan Doody farm.” The probable cause was set out fully in the four and one-half page application. District Court Judge Byron Thompson issued the warrant. The resultant search was executed on May 19, 1972. The inventory of approximately 200 items seized consumed four and one-half closely typewritten pages.

Included was a broad variety of regular pipes, water pipes, bamboo pipes, numerous scales, weights, eyedroppers, gelatin capsules and baggies, measuring spoons and syringes, hypodermic needles, wire screens, homemade cookers, cherry incense and incense candles, a veritable rainbow of colored pills, cigarette papers, myriad evidence of marihuana and seventy-seven marihuana plants. The two-count indictment against the appellant was handed down on June 22, 1972. The appellant filed an essentially three-point Motion to Suppress on September 18, 1972. On September 25, 1972, a full hearing was conducted on the motion by Judge Barrick.

By Memorandum and Order of Court, filed on September 29, 1972, the Motion to ⁷⁵ Suppress was denied. The first of the appellant’s eight contentions goes to that denial. The point, in this regard, which the appellant now makes, and to which we will therefore confine our analysis, is not that there was any procedural infirmity in the suppression hearing but only that “there was no probable cause for the issuance of the search warrant.” Focusing the issue still more narrowly, the precise question is whether there was probable cause for the search of “the Nathan Doody farm.” As to the person of Jerry Wayne Lawson and as to his 1966 Lincoln Continental, there was probable cause in abundance. On April 12, 1972, an undercover agent of the Federal Bureau of Narcotics spoke to Lawson, standing beside his Lincoln, on the parking lot of a Frederick bowling alley.

Lawson agreed to sell the agent $50 worth of heroin later that evening. At 8 p.m. that evening, the undercover agent met Lawson by appointment on the same parking lot, and was informed by Lawson that he could not obtain heroin on that day but “would be obtaining some at a later date and the transaction would then be made.” While awaiting the arrival of Lawson on that evening, the undercover agent met several known and suspected drug abusers who indicated that they were also waiting to contact Lawson in order to purchase drugs. On April 22, 1972, two Frederick City policemen, while maintaining surveillance on the above-mentioned parking lot, observed Lawson in his 1966 Lincoln Continental and observed one Dorothy May Boyd, a known and convicted heroin addict, make frequent short visits to the Lincoln. A second known and convicted heroin addict, designated by name, was seen to make brief contact with Lawson and with the Lincoln.

The warrant application mentioned further that Lawson had pleaded guilty to a narcotics violation in July, 1970. What remained to be established in the warrant application was the nexus between Lawson and his 1966 Lincoln Continental, on the one hand, and the Nathan Doody farm, on the other hand. Three references were made in the warrant application to the farm. One was this: “That on May 2, 1972 Joe Lewis Petty, a known ⁷⁶ heroin addict, and distributor, was arrested and charged with several Breaking, Entering, and Larcenies; And During the course of the investigation, while conversing with your Affiant and other State Police Officers the said Joe Lewis Petty stated he visited the aforesaid Jerry Wayne Lawson on May 1, 1972 at the previously described two story dwelling, located on the Nathan Doody farm, south of State Route 26, in an effort to ‘make a deal’ concerning purchases of heroin . . .” Although that information did not necessarily point to the farm as the hiding place or “stash” of the contraband drugs, it did go toward establishing some nexus between Lawson himself and the farm.

The information came, to be sure, from a secondary source. There is no problem with the “basis of knowledge” prong of Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964), since the secondary source explicitly spoke from firsthand knowledge. We are persuaded, moreover, that there is little, if any, problem with the “veracity” prong of Aguilar . Significantly, the secondary source is not anonymous but named — “Joe Lewis Petty.” It appears, furthermore, that he was not a regular police informant but was a defendant, arrested and charged, who was making admissions under police interrogation.

As such, he would appear to have been making a genuine “declaration against penal interest” such as to satisfy not simply the plurality of the Supreme Court in United States v. Harris, 403 U. S. 573 , 91 S. Ct. 2075 , 29 L.Ed.2d 723 (1971), but even the four-man minority represented by Justice Harlan. See Stanley v. State, 19 Md. App. 507 , 313 A. 2d 847, n. 8 . The independent information, developed directly by the police, confirming that Lawson dealt in drugs, verified, moreover, in significant measure the story told by this informant and, therefore, bolstered his “veracity” under the augmentation technique spelled out in Spinelli v. United States, 393 U. S. 410 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969), if his “veracity” arguably needed any such bolstering. ⁷⁷ The second reference to the farm was: “That on May 6, 1972 the previously mentioned past proven, confidential and reliable informant advised your Affiant that prior to the arrival of the aforementioned Tfc. John W. Reburn and Det.

Lt. Paul W. Mossburg, the said Jerry Wayne Lawson had sold heroin to a known drug user;” Although, from an earlier reference to that same informant (not Joe Lewis Petty), his marginal “veracity” might have been establishable under a combination of Aguilar and Spinelli , his “basis of knowledge” for the reference to the farm was in no event set forth, either explicitly or implicitly, and will not be considered by us in weighing the probable cause as to the farm. The third reference made in the warrant application to the farm — the information which goes to the heart of the appellant’s present contention — was as follows: “That on May 4, 1972, Tfc. John W. Reburn, Maryland State Police, and Detective Lieutenant Paul W. Mossburg, Frederick City Police Department, went to the aforesaid two story dwelling located on the Nathan Doody farm south of State Route 26 and obtained a large amount of narcotic and restricted drugs that had been reported stolen from the Parkview Medical Center on May 3,1972; And That the aforesaid Jerry Wayne Lawson was present at the aforementioned two story dwelling at the time officers obtained the stolen drugs;” The appellant mounted a strenuous attack upon this information on the ground that it was come by in the course of an unconstitutional search and seizure.

Judge Barrick found it unnecessary to decide whether the information was legitimately in the probable cause equation. In his Memorandum and Order denying the Motion to Suppress, he found the information superfluous: “Assuming without deciding that part of the ⁷⁸ drugs seized on May 4, 1972, are not admissible in evidence, that alone will not suffice in determining probable cause in the issuance of the search warrant. The inadmissibility of that part of the evidence at trial would not warrant the suppression of all the evidence on the theory that there was not probable cause for the issuance of the search warrant. If we were to exclude that part of the evidence allegedly illegally seized, there is still more than ample facts in the application to establish probable cause for the issuance of the search warrant.

The application and affidavit outlined numerous facts on which Judge Thompson had probable cause for effecting a search warrant for the 1966 Lincoln Continental and the dwelling located on the Nathan Doody farm.” Upon our constitutionally mandated, independent review, we are not persuaded that the information was superfluous. Although purely redundant as to the person of Lawson himself, and silent as to his 1966 Lincoln Continental, it is the hard core of probable cause going to the farm. We believe, however, that the information was legitimately in the probable cause equation. The suppression hearing went, of course, to the legitimacy of the May 19th search and seizure, the fruits of which were the primary evidence against the appellant.

The appellant’s cry of “foul” went not to the May 19th search itself, but rather to the earlier police conduct of May 4 which contributed to the probable cause for the May 19th search. It is important initially to put the issue before us in procedural perspective. “Fruit of the Poisonous Tree”Doctrine Is Not the Issue We are dealing with a proper invocation by the appellant of “the fruit of the poisonous tree” doctrine. 1 He did not ⁷⁹ move, after learning of the police action of May 4, promptly to demand the return of the seized property and to enjoin its use directly or derivatively. He did not seek a “taint hearing” to establish a primary illegality, shifting the burden to the State to attenuate that taint before using the fruits even derivatively. Even if we were to assume that a proper protest could be lodged as remotely as two steps removed from the ostensible primary taint, 2 the very tentative effort to establish a primary taint was in no event preserved for appellate review.

The appellant half-heartedly offered to produce a witness, apparently to show that the police action of May 4 was both warrantless and nonconsensual. When the hearing judge, however, declined to hear from the witness, the appellant completely acquiesced: “Joseph:... I think it might be helpful at this point if the Court wishes to hear from Mr. Lawson as to what happened on that May 4th date that we should put it into the record. Court: I am not sure that it is even permissible at this time.

I don’t think I can take evidence on the search warrant as you mentioned that you have got to look at the search warrant, at the four corners of it and decide from that. Joseph: Okay, fine. I can understand the Court’s ruling.” One further reference to the possibility of calling ⁸⁰ witnesses, for the apparent purpose of establishing a primary taint, was even more diffident: “Court: All right, anything further, gentlemen? Joseph: Your Honor, I would ask the Court — ask permission of the Court to include in the file the copy of the application so that we can include this in the record for purposes of this hearing.

Court: Well, this will be, of course, put in the record. Joseph: As I understand it, the Court does not desire to have further factual statements or any factual statements, that the defense call the police officers to reiterate what happened on May 4 or to call the defendants to reiterate from their standpoint? Court: Well, at this stage of the proceedings, it is the Court’s opinion that I should not take testimony and that I should review the application of the search warrant and make a decision of what appears in the four corners of the application. Now, do you have any law to the contrary?

Joseph: Your Honor, counsel’s understanding is similar to the Court’s, but I just wanted to make sure that the Court — to make sure that I understood the Court’s position in that regard. Court: That is my position. Joseph: Thank you.” It is, therefore, quite clear that we are not, in the posture of this case, dealing with a “fruit of the poisonous tree” situation. The attack, rather, is directly upon the determination of District Court Judge Byron Thompson on May 11 to issue the search and seizure warrant.

The attack goes simply to the question of whether there was sufficient “probable cause” spelled out in the application to serve as predicate for the warrant. ⁸¹ Measuring Probable Cause and Negating Possible Illegality The appellant directs his attack at the facial validity of the warrant itself. He argues that the application fails to add up to probable cause because the recital of the May 4th incident did not per se negate the possibility of a Fourth Amendment violation. He argues that that failure requires the automatic factoring out of the May 4th allegation from the probable cause equation, resulting in its facial insufficiency. The focus of the attack is made very clear in the appellant’s brief: “Are there any allegations presented to inform the Magistrate as to the circumstances of this obtaining of narcotic and restricted drugs?

Are there any statements presented indicating that this seizure resulted from a warrantless search? In fact, the circumstances of the seizure are clearly nonexistent, and, therefore, the Magistrate was placed in a position whereby he was required to speculate, or guess, as to what facts were involved in this action on May 4, 1972. It should be emphasized that to permit a single, unsupported allegation to establish probable cause for a subsequent search and seizure, results in a situation whereby any type of illegal activity, although not used in a criminal proceeding itself, will be sufficient to provide foundation for future prosecution. To permit the State to do indirectly what it is forbidden to do directly, is clearly contrary to the fundamental precepts of Taw and order’ and violates the Appellant’s basic constitutional rights.” Thus, the attack upon the warrant at the suppression hearing was confined to a review of its surface sufficiency.

We are not here dealing with an attempt, at the reviewing level, to delve below the surface of a facially sufficient affidavit. The law as to whether and how such attempts shall be made is far from settled. In its one opportunity to deal with the ⁸² subject in Rugendorf v. United States, 376 U. S. 528 , 84 S. Ct. 825 , 11 L.Ed.2d 887 (1964), the Supreme Court left the matter unresolved. In parrying charges that the facts contained in a warrant application are untrue, Maryland has always flatly rejected the notion that a reviewing court — at the hearing level, trial level or appellate level — could look “beyond the four corners of the affidavit.” Smith v. State, 191 Md. 329, 335 , 62 A. 2d 287 . 3 But see United States v. Thomas, 14 Cr.

L. 2317 (5th Cir., 1973); United States v. Carmichael, 14 Cr. L. 2128 (7th Cir., 1973). 4 As the Annotation, “Search warrants: Disputing matters stated in supporting affidavit,” 5 A.L.R.2d 394 (1949), based on the Maryland prototype case of Smith v. State, supra, points out, the majority of American state courts hold, with Maryland, that warrant review should not look “beyond the four corners of the affidavit.” As that same Annotation points out further, however, disputing the accuracy of the supporting information is not the same thing as disputing the legality of the means by which that information was obtained. 5 The Annotation, at p. 395, makes this distinction: “Nor is the annotation concerned with the right to show that the averments in a supporting affidavit consisted of information obtained in an illegal manner.” ⁸³ Maryland has never addressed itself to that distinct proposition, and, in the procedural posture of this case, it is unnecessary for us to resolve it anticipatorily. 6 The appellant’s position seems to be that an item of incriminating information in a warrant application must be excluded from consideration, if the issuing magistrate questions, or should have questioned, the constitutional propriety of the means by which the information was obtained. The position is, perforce, that where some question might arise and where the application is silent as to means, the means are presumptively unconstitutional; absent a full recitation by the law enforcement officers negating such possible unconstitutionality, the exclusionary rule must bar consideration of the suspect information. Such a position is totally untenable for a number of reasons.

The Exclusionary Rule Is Not Mandated There is no clear constitutional mandate imposing an exclusionary rule of evidence upon the ex parte consideration by a magistrate of whether probable cause exists to justify the issuance of an arrest or search and seizure warrant. At the common law, no exclusionary rule of evidence obtained and, even today, the device is unknown in the common law world outside the United States. Wolf v. Colorado, 338 U. S. 25 , 69 S. Ct. 1359 , 93 L. Ed. 1782 (1949). Maryland followed that common law rule and would not exclude even from a trial upon the merits trustworthy and relevant physical evidence, notwithstanding that it was come by in an illegal or unconstitutional fashion.

Meisinger v. State, 155 Md. 195 , 141 A. 536 . In 1929, the Maryland ⁸⁴ Legislature passed the Bouse Act, applying a limited exclusionary rule of evidence. Where evidence was obtained by a search of seizure “prohibited by the Declaration of Rights of this State,” such evidence was barred from “the trial of misdemeanors.” A number of misdemeanors, such as carrying concealed weapons, possessing narcotics, and even gambling violations in a number of specific counties, were exempted from the operation of even this limited exclusionary rule. The rule, moreover, applied only to exclude evidence from “the trial.” In the wake of Mapp v. Ohio, 367 U. S. 643 , 81 S. Ct. 1684 , 6 L.Ed.2d 1081 (1961), Maryland was forced to apply the exclusionary law more broadly, but applied it only to the extent mandated by Mapp.

Mulcahy v. State, 221 Md. 413 , 158 A. 2d 80 ; Belton v. State, 228 Md. 17 , 178 A. 2d 409 . 7 The Mapp decision dealt only with the admissibility of unconstitutionally seized evidence at the trial upon the merits. Its holding was so limited. Absent a mandate under Mapp , we are thrown back upon preexisting Maryland law and common law, neither of which would exclude relevant and trustworthy information from a probable cause determination. Admitting that it is doctrinally niggardly to look to the facts of Mapp for its square holding rather than to feel for its “radiations,” “emanations” and “penumbra,” let us look then to the Supreme Court not only for clear commands, but for trends.

The discernible trend seems to be a retreat from the exclusionary rule. Recognizing with Wigmore that the exclusionary rule “rest[s] on no purpose of improving the search after truth but on the willingness to yield to requirements of extrinsic policy,” the Supreme Court in Mapp , in Elkins v. United States, 364 U. S. 206 , 80 S. Ct. 1437 , 4 L.Ed.2d 1669 (1960), and in Linkletter v. Walker, 381 U. S. 618 , 85 S. Ct. 1731 , 14 L.Ed.2d 601 (1965), set forth that extrinsic policy as that of “general deterrence.” The avowed purpose was not remedial, ⁸⁵ but deterrent. It was not to vindicate the rights of any aggrieved party, but rather “to police the police.” Since physical evidence is inherently trustworthy, the Supreme Court has recognized that it pays a price in terms of the search for truth in order to serve its other, prophylactic purpose. Some justices have been loath to pay the price at all.

See Chief Justice Burger in dissent in Bivens v. Six Agents, 403 U. S. 388 , 91 S. Ct. 1999 , 29 L.Ed.2d 619 (1971). He there said, at 403 U. S. 418 : “Suppressing unchallenged truth has set guilty criminals free but demonstrably has neither deterred deliberate violations of the Fourth Amendment nor decreased those errors in judgment that will inevitably occur given the pressures inherent in police work having to do with serious crimes.” See also Coolidge v. New Hampshire, 403 U. S. 443, 490-491 , 91 S. Ct. 2022 , 29 L.Ed.2d 564, 597 (concurring opinion by Harían, J.). Although Harris v. New York, 401 U. S. 222 , 91 S. Ct. 643 , 28 L.Ed.2d 1 (1971), dealt with a Fifth Amendment rather than a Fourth Amendment overstepping by the police, the treatment of the exclusionary rule by the Supreme Court is instructive. There, police interrogation techniques clearly violated a defendant’s right against compulsory self-incrimination under Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966).

The Court affirmed that the exclusionary rule would be invoked to bar the use of such evidence in the State’s case in chief. It recognized again, however, that it was paying a price in the search for truth in order to achieve the extrinsic purpose of deterring police illegality. In balancing those equities, the Court concluded that it would achieve enough deterrence by barring the State from offering the unconstitutionally obtained evidence in its case in chief at the trial on the merits. It declined to extend the exclusionary rule even to the rebuttal phase of the trial itself, where the trustworthy, though unconstitutionally obtained, evidence was valuable ⁸⁶ in rebutting possibly perjurious defense testimony.

The Court said, at 401 U. S. 225 : “Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” The Court conditioned its limitation upon the operation of the exclusionary rule upon the fact that the evidence under scrutiny was trustworthy. It said, at 401 U. S. 224 : “It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” In the Fourth Amendment area, no problem in this regard is presented, because the physical evidence is unquestionably trustworthy. In Harris, the Court relied heavily on Walder v. United States, 347 U. S. 62 , 74 S. Ct. 354 , 98 L. Ed. 503 (1954), where evidence seized in violation of the Fourth Amendment, and therefore inadmissible in a federal trial since 1914 under Weeks v. United States, 232 U. S. 383 , 34 S. Ct. 341 , 58 L. Ed. 652 , as far as the case in chief is concerned, was nevertheless admitted for collateral impeachment purposes. The most recent and enlightening indication of the extremely chary attitude of the Supreme Court toward the exclusionary rule is United States v. Calandra, 14 Cr.

L. 3061. Calandra had been subjected to an unconstitutional search and seizure. A suppression hearing ruled in his favor that the search warrant in question had been issued without probable cause and, further, that the search had exceeded the scope of the warrant. All seized property was ordered returned to Calandra.

Notwithstanding that adjudicated unconstitutionality, a grand jury had summoned Calandra and had questioned him about the seized evidence. The ⁸⁷ Federal District Court and the Court of Appeals for the Sixth Circuit ruled that Calandra could not be questioned on the basis of the unlawful search and seizure. The Supreme Court reversed, holding that the exclusionary rule had no applicability to a grand jury proceeding. It squarely held that “the fruit of the poisonous tree” doctrine had no applicability even where the poisoned fruit was the predicate for grand jury indictment.

The Court, through Justice Powell, said at 14 Cr. L. 3063: “Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, Costello v. United States, supra; Holt v. United States, 218 U. S. 245 (1910), or even on the basis of information obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination, United States v. Lawn, 355 U. S. 339 (1958).” The Court again evidenced its hesitancy about extending the application of the exclusionary rule backward from the trial Itself to other proceedings. It said, at 14 Cr. L. 3064: “Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally-seized evidence in all proceedings or against all persons.

As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Indeed, this Court anticipated the Supreme Court by several months with our ruling in Hopkins v. Maryland, 19 Md. App. 414 , 311 A. 2d 483 , that “That an indictment is founded on tainted evidence is no ground for dismissal. . . .” The Exclusionary Rule Is Not Desired Absent a clear mandate from the Supreme Court, the question recurs of whether Maryland, as a matter of judicial policy, should opt for the exclusionary rule when a ⁸⁸ magistrate makes his determination of whether probable cause exists to justify the issuance of a search warrant. We are persuaded that too much by way of relevant and trustworthy evidence would be lost, with no countervailing gain in police deterrence. Broad empirical studies have revealed no evidence to support the claim that the exclusionary rule actually deters illegal conduct by law enforcement officials. See Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi.

L. Rev. 665 (1970). We are, moreover, persuaded by some of the great anti-exclusionary rule champions that the loss in the search for truth is inordinate to the speculative extrinsic gain. In declining to adopt the exclusionary rule in New York, even at the trial upon the merits, Judge (later Justice) Cardozo in People v. Defore, 242 N. Y. 13, 21, 23-24 , 150 N. E. 585, 587, 588 (1926), characterized the effect of the exclusionary rule in the following terms: “The criminal is to go free because the constable has blundered.... A room is searched against the law, and the body of a murdered man is found....

The privacy of the home has been infringed, and the murderer goes free.” We are persuaded by the words of Justice Jackson, speaking for the Supreme Court in Irvine v. California, 347 U. S. 128, 136-137 , 74 S. Ct. 381, 385 , 98 L. Ed. 561 , 571 (1954): “Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its- remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches. The disciplinary or educational effect of the court’s releasing the defendant for police misbehavior is so indirect as to be no more than a mild deterrent at best.” ⁸⁹ The fundamental inappropriateness of the exclusionary rule was probably best captured by Dean Wigmore, in 8 Wigmore on Evidence (3d Ed., 1940), § 2184, p. 40, in his famous parody of the courts as they apply the rule: “Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the Constitution.

Titus ought to suffer imprisonment for crime, and Flavius for contempt. But no! We shall let you both go free. We shall not punish Flavius directly, but shall do so by reversing Titus’ conviction.

This is our way of teaching people like Flavius to behave, and of teaching people like Titus to behave, and incidentally of securing respect for the Constitution. Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else.” The competing nature of the equities was vividly captured in Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. of Pa. L. Rev. 378 (1964), at 388-389: “The rule is unsupportable as reparation or compensatory dispensation to the injured criminal; its sole rational justification is the experience of its indispensability in ‘exert[ing] general legal pressures to secure obedience to the Fourth Amendment on the part of federal law-enforcing officers.’ As it serves this function, the rule is a needed, but grudgingly taken, medicament; no more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity inflicts gratuitous harm on the public interest as declared by Congress.

Let me put the case another way. In every litigation in which exclusion is in issue, a strong public interest in deterring official illegality is balanced against a strong public interest in ⁹⁰ convicting the guilty. As the exclusionary rule is applied time after time, it seems that its deterrent efficacy at some stage reaches a point of diminishing returns, and beyond that point its continued application is a public nuisance.” For other expressions of disenchantment with the exclusionary rule or discussion of the limitations upon its effectiveness, see State v. Bisaccia, 45 N. J. 504, 213 A. 2d 185 (1965) (opinion by Weintraub, C. J.); Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif L. Rev. 929, 951-54 (1965); LaFave, Improving Police Performance Through the Exclusionary Rule, 30 Mo. L. Rev. 391 , 566 (1965); Schaefer, The Fourteenth Amendment and Sanctity of the Person, 64 Nw.

U.L. Rev. 1 (1969). Inappropriateness of the Exclusionary Rule at a Probable Cause Determination Whatever value the exclusionary rule may arguably have at a trial upon the merits, it is clear to us that it has no place when a magistrate makes his ex parte, in camera determination that the police application for a search warrant contains adequate probable cause to believe that a particular place or thing contains evidence of crime. The very purpose and nature of the proceeding make it peculiarly inappropriate. The warrant requirement does not envision an adversary proceeding.

Its fundamental purpose is simply to interpose the “neutral and detached magistrate” between the policeman and his quarry. The reason for the rule was made clear in Johnson v. United States, 333 U. S. 10, 13-14 , 68 S. Ct. 367 , 92 L. Ed. 436, 440 (1948): “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the ⁹¹ officer engaged in the often competitive enterprise of ferreting out crime.” It is not contemplated that the magistrate will anticipate, raise sua sponte and then proceed to resolve possibly inherent constitutional defects. His is to make the same raw quantitative judgment that a policeman might otherwise make — the vital protection being that the raw quantitative judgment is being made by a “neutral and detached” umpire or referee rather than by one of the players involved in the game.

Our classic definitions of probable cause speak not in terms of “admissible evidence” or of “constitutional unsullied evidence,” but only in terms of what a given set of facts would mean to “reasonable and prudent men.” No word is said as to how those facts are come by. The fundamental definition of probable cause today is that contained in Brinegar v. United States, 338 U. S. 160, 175 , 69 S. Ct. 1302 , 93 L. Ed. 1879 , 1890 (1949): “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ ” Smith v. State, supra, says, at 191 Md. 338 , “The facts alleged to show probable cause are sufficient if they are such as to warrant a prudent and cautious man in believing that the offense has been committed.” Frankel v. State, 178 Md. 553, 557 , 16 A. 2d 93 , holds, “[I]f the observation of the premises by the officers as disclosed by the application was sufficient to justify the belief in a rationally minded person that the law was there being violated, the existence of probable cause as contemplated by the statute is satisfied.” Buckner v. State, 11 Md. App. 55, 61 , 272 A. 2d 828 , says, “If ⁹² a prudent and cautious man would be justified from the facts presented in the affidavit in believing that the offense has been or is being committed, the warrant properly may be issued.” The Supreme Court has consistently told us that' affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial.

McCray v. Illinois, 386 U. S. 300, 311 , 87 S. Ct. 1056, 18 .L.Ed.2d 62, 70 (1967), cited with approval in Syinelli, supra. It was precisely to this point which Brinegar addressed itself, at 338 U. S. 173 : “There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them. For a variety of reasons relating not only to probative value and trustworthiness, but also to possible prejudicial effect upon a trial jury and the absence of opportunity for cross-examination, the generally accepted rules of evidence throw many exclusionary protections about one who is charged with and standing trial for crime. Much evidence of real and substantial probative value goes out on considerations irrelevant to its probative weight but relevant to possible misunderstanding or misuse by the jury.” In judging the facial sufficiency of the probable cause affidavit at hand, we hold that the District Court judge was entitled to consider the allegation of the policemen that they had obtained “a large amount of narcotic and restricted drugs” from the Nathan Doody farm on May 4.

The District Court judge was not required to raise the possibility that the policemen had perpetrated a Fourth Amendment intrusion and, therefore, to factor the information out of the probable cause equation, if the affidavit did not negative such a possibility. If such a requirement were part of our Fourth Amendment lav/, the problems that could fly from ⁹³ such a Pandora’s box would be legion. A policeman might allege that a suspect had a prior criminal record; would he be required to establish “aid and assistance ©£ counsel” under Burgett v. Texas, 389 U. S. 109 , 88 S. Ct. 258 , 19 L.Ed.2d 319