Gipe v. State

Alpert, J., delivered the opinion of the Court. John Elmer Gipe, Jr., the appellant, having been convicted of possession of a controlled dangerous substance (marijuana), possession with intent to distribute marijuana, possession of a non-controlled dangerous substance intended by him for use or distribution as a controlled dangerous substance, and maintaining a common nuisance, was sen ⁶⁰⁶ tenced to 3 consecutive five-year sentences. 1 On appeal, he complains: I. The court below erred in denying the motion to suppress.

II

The State introduced insufficient evidence to prove that Appellant possessed a noncontrolled substance with the intent to distribute it as a controlled substance.

III

The evidence adduced at trial was legally insufficient to sustain a conviction for maintaining a common nuisance.

IV

The evidence adduced was legally insufficient to sustain Appellant’s conviction of possession with intent to distribute marijuana. As we perceive no reversible error, we shall affirm. FACTUAL BACKGROUND On January 15, 1982, local police executed a search and "seizure warrant at the appellant’s home, 32 East Washington Street, 2nd Floor Rear, Hagerstown, Maryland. It appeared that a party was in progress at the time, as a keg of beer was found on the back porch and a stereo was being played.

David Gipe, brother of the appellant, and one Robert Heimrich were observed pushing a tray underneath a couch upon which they were seated in the living room. It was later determined that on the tray were two bags of marijuana and three other bags containing 50-to-100 caffeine tablets. When Officer Nelson Sheppard, Jr., an affiant on the search warrant application and one of the officers executing the warrant, entered, the appellant was observed standing in the doorway leading from a hallway into a bathroom. His girlfriend and co-defendant below, Michele Reed, who along with appellant were the sole tenants of the subject premises, was observed seated in front of a stereo cabinet.

Another person, a Mr. Harvey, was found in the kitchen. ⁶⁰⁷ Property taken pursuant to the warrant included: Two clear plastic bags containing marijuana, weighing a total of 23.80 grams; Two clear plastic bags each containing marijuana, weighing a total of 18.30 grams; One clear plastic bag containing 63 oblong white single-scored "20” tablets with red and blue specks (caffeine tablets); Six blue single-scored "10” tablets (methapyrilene), a non-controlled dangerous substance; One clear plastic bag containing 20 oblong white single-scored "20” tablets with red and blue specks (caffeine tablets); One clear plastic bag containing 97 pink heart-shaped tablets (caffeine tablets); One clear plastic bag containing 96 white single-scored "20” tablets with red and blue specks (caffeine tablets); One clear plastic bag containing 108 pink heart-shaped tablets (caffeine tablets); One clear plastic bag containing 101 oblong single-scored "20” tablets with red and blue specks (caffeine tablets); One clear plastic bag containing 98 pink heart-shaped tablets (caffeine tablets); One clear plastic bag containing 8 off-white single-scored "714” tablets (Tylenol); Five oblong single-scored white tablets with green specks (caffeine tablets); Eight packs of cigarette papers; A stimulants catalog and sales receipt; A wood container with a cigarette holder; A "power hitter”; Two pipes; ⁶⁰⁸ A set of scales; Five documents referrable to the tenants John Gipe and Michele Reed; One syringe; and Eleven pieces of pipes. When the appellant was searched, he was found to be in possession of a cigarette holder, a chrome pipe with a wooden bowl, and a note listing people’s names with monetary figures ranging from $3.00 to $26.00 beside each name. On May 17, 1982, he was indicted and charged. A jury trial was held on August 16, 1982 and appellant was found guilty as charged on all four counts.

This appeal followed. I. Appellant contends that "the court is asked to take the word of 'the biggest liar in town’ 2 that appellant was selling marijuana and non-controlled substances while representing them to be controlled dangerous substances,” and therefore "the warrant fails under Aguilar, Spinelli, and fails again under Gates.” Appellant correctly observes that the trial court found probable cause to exist from the search warrant affidavit in that a "controlled buy” was conducted. See, Hignut v. State, 17 Md. App. 399, 412-15 (1973). However, he argues that "the affiant’s observations in this case confirmed nothing more than that someone in appellant’s house had for an unknown amount of money sold an unknown amount of an unknown legal substance.” Thus he contends that notwithstanding the controlled purchase, the informant’s credibility is highly germane for there is no probable cause without fully crediting the informant’s claim "that they were supposed to be 'Ludes.” It appears that appellant not only has misconstrued the factual allegations of the affidavit but also the import and meaning of the Supreme Court’s recent monumental decision in Illinois v. Gates, U.S. , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), ⁶⁰⁹ wherein the former Aguilar-Spinelli 3 analysis was abandoned in favor of a "totality of the circumstances” test.

The affidavit under attack was signed by Officers Nelson M. Sheppard, Jr. and Craig R. Bakner of the Hagerstown Police Department and provided in pertinent part: A second meeting was arranged with [Confidential Number Informant] 245 by your affiants during the second week of January 1982. it was learned from CNI 245 the door to the apartment on the 2nd floor of 32 E. Washington St. could be observed from the rear of the building through a glass enclosed rear porch. CNI 245 stated that he/she would be willing to make a controlled buy from the location. CNI 245 was then searched and found to be free of narcotics, narcotic paraphernalia, and any U.S. Currency. CNI 245 was then transported to the area of 32 E. Washington St. where he/she was then supplied with an amount of money from the Hagerstown Police Department Funds.

The informant then left the control of your affiants and went directly to the 2nd floor of 32 E. Washington St. in the rear without having contact with any other subjects. He/she was then observed by your affiants knocking on the door to the 2nd floor rear west side apartment, the informant was allowed inside where he/she stayed approximately 10 minutes. CNI 245 was then observed exiting the residence and walked directly to your affiants without having contact with any other person. CNI 245 then turned over to your affiants a glassine baggie containing a quantity of off white round tablets.

CNI 245 then stated that they were sold to him/her by John Gipe and that they were supposed to be "LUDES”. Your affiants recognized the term "LUDES” to be street ⁶¹⁰ jargon for Quaaludes. The informant was then searched and found to be free of all monies and drugs. Your affiants, through their experience and expertise, recognized the "LUDES” that were sold to the informant were actually counterfeit substances that were being sold and represented as a Methaqualone; a field test in fact did prove they were not a true Methaqualone, but were a mixture of various substances.

Assuming, arguendo, insufficient information in the affidavit to establish the informant’s veracity, 4 a common-sense practical approach under the totality of the circumstances would indicate a "controlled buy” of a non-controlled substance. As we stated in Hignut , "[i]f the informant had been nothing more than a robot or a trained ape, the directly observed 'controlled buy’ — with the informant as a mere mechanical agent — would have been sufficient to establish probable cause.” 17 Md. App. at 415 . There ought to be no distinction, logically or empirically, between a "controlled buy” of a controlled dangerous substance and a non-controlled substance. At this point it should be noted that the affiants through their experience and expertise recognized the "LUDES” as being counterfeit substances that were being sold and represented as Methaqualone (a controlled dangerous substance).

Given the fact that the informant told the affiants that "he/she” knew a subject by the name of John Gipe who was selling pills and "reef’ (marijuana) and given the fact that "he/she” did indeed, according to the affidavit, make a controlled buy of what were represented to be "LUDES,” probable cause existed, if not under the legal analysis of Hignut , then under the ⁶¹¹ totality of the circumstances as recently explicated by the Supreme Court in Gates : This totality of the circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific "tests” be satisfied by every informant’s tip. Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a 'practical, nontechnical conception.’ ... In dealing with probable cause, ... 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.

As these comments illustrate, probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types of persons. U.S. at , 103 S.Ct. at 2328-29 , 76 L.Ed.2d at 543-44 (citations and footnotes omitted) (emphasis supplied). In discussing the drafting of affidavits, Justice Rehnquist, delivering the majority opinion, went on to state: We also have recognized that affidavits 'are normally drafted by nonlawyers in the midst and haste of a criminal investigation.

Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area.’ Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of 'probable cause.’ The rigorous inquiry into the Spinelli prongs ⁶¹² and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are — quite properly, ibid. — issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the 'built-in subtleties’ of the 'two-pronged test’ are particularly unlikely to assist magistrates in determining probable cause. U.S. at , 103 S.Ct. at 2330-31 , 76 L.Ed.2d at 546 (citations omitted). In an attempt to render guidance to reviewing courts, Justice Rehnquist further advised: Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.

A magistrate’s ’determination of probable cause should be paid great deference by reviewing courts. ’ If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the warrant clause