Hudson v. State

Orth, J., delivered the opinion of the Court. On 28 July 1971 criminal case 6510 came on for trial by the bench in the Circuit Court for Wicomico County. The indictment therein presented that THOMAS HUDSON, JR. on 4 October 1970 did possess heroin “in sufficient quantity to reasonably indicate under all the circumstances an intent to manufacture and distribute” (1st count), that on 2 October 1970 he did maintain a certain common nuisance at room 200, Stateman Motel, 712 N. Salisbury Boulevard, Salisbury, Maryland “which was then and there resorted to by drug abusers for purposes of illegally administering Controlled Dangerous Substances and was used for the illegal Manufacture, Distribution, Storage and Concealment of Controlled Dangerous Substances” (2nd count), and that on 4 October 1970 he did possess heroin (3rd count), all unlawfully. He was found guilty generally, thus convicting him under each of the three counts.

Manning v. State, 2 Md. App. 177, 181 . On 5 November 1971 he was sentenced to 20 ⁵³ years under the 1st count, to 10 years under the 2nd count “to run concurrent”, and to 4 years under the 3rd count “to run concurrent.” He appealed. The case is docketed in this Court as no. 10, September Term, 1972. On 19 October 1971 criminal cases 6807 and 6846 came on for trial before a jury in the Circuit Court for Wicomico County.

In 6807 the indictment presented that Hudson did possess heroin “in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture and distribute” (1st count), that he did possess controlled paraphernalia (2nd count), that he did conspire with Marie Stewart to violate the controlled dangerous substances law of Maryland (3rd count), and that he did possess heroin (4th count), all on 13 June 1971 and all unlawfully. In 6846 the indictment presented that on 13 June 1971 he did unlawfully maintain a common nuisance at Poplar Street, Fruitland, Wicomico County, Maryland “which was then and there resorted to by drug abusers for purposes of illegally administering controlled dangerous substances and was used for the illegal manufacture, distribution, storage and concealment of controlled dangerous substances, * * * to wit heroin.” He was found guilty under the 1st, 2nd and 4th counts in 6807, and of the offense as charged in 6846. On 5 November 1971 in 6807 he was sentenced to 20 years under the 1st count and to 4 years under the 2nd count, “each to run concurrently with the sentence in no. 6510 Criminal Cases.” 1 In 6846 he was sentenced to ⁵⁴ 10 years “to run concurrently with the sentence in no. 6510 Criminal Cases.” He appealed. The case is docketed in this Court as no. 11, September Term, 1972.

I In each case the evidence necessary to conviction was seized under the authority of a search and seizure warrant valid on its face. In each case the validity of the warrant was challenged on the ground of the sufficiency of the affidavit upon which it was issued. In no. 10 the challenge was in the form of an agreement between the prosecution and the defense presented to the court at the start of the trial that the only issue was the validity of the warrant — “The guilt or innocence will be determined by the ruling on the search warrant.” A hearing was conducted on oral motions to suppress the evidence and to declare the warrant invalid and the motions were denied. In no. 11 a pretrial motion to suppress was filed.

It was heard out of the presence of the jury and denied. In the appeal in each case Hudson claims the lower court erred in its ruling. We do not think it did in appeal no. 10. We think it did in appeal no. 11.

The Search Warrant in no. 10 Hudson claims that the warrant in appeal no. 10 “was contingent upon an unnamed informant whose reliability was not sufficiently proved.” The warrant, issued 3 October 1970, commanded the search of the Statesman Motel, Room #200, 712 N. Salisbury Blvd., Salisbury, Wicomico County, Maryland, “now occupied by Thomas Hudson, Jr. and all other persons”, and the seizure of all controlled dangerous substances and narcotic paraphernalia found. The application for the warrant was supported by the affidavits of Trooper David D. Luce of the Maryland State Police and Patrolman Elton R. Gravenor of the Salisbury Police Department who stated they had prob ⁵⁵ able cause to believe that controlled dangerous substances and narcotic paraphernalia were being secreted and administered on the premises in violation of Code, Art. 27, § 286. The basis for the belief was spelled out. On 30 September 1970 George Neal, assistant manager of the motel, known to the affiants “as a reliable respected person in the community of Salisbury, Maryland”, told the affiants that on 25 September he had rented room 200 to Hudson.

During the next five days “numerous persons both male and female, have frequented Unit #200 at all hours of the day and night.” Two persons who visited the room many times were Shirley Parker and Victor Anderson, each of whom was known to the affiants as a narcotics user. Another was Clarence Johnson, alias Speedy, known to the affiants to be a close friend of Hudson. Investigation initiated by the affiants disclosed “numerous long distance phone calls” made from room 200 and that the numbers called were listed “to several persons known to the Federal Bureau of Narcotics and Dangerous Drugs as narcotics users and peddlers.” The room was placed under surveillance. On 1 October at 10:25 p.m. a white male entered the room, stayed “only moments” and left.

At 10:47 p.m. a “colored female” came out of room 210, entered room 200, stayed 3 minutes and returned to room 210. At 11:17 p.m. the white male who had previously entered the room returned. He remained in room 200 for 7 minutes and left, placing a small object in his left rear pocket. On 2 October at 8:38 p.m.

Hudson entered room 200 carrying a small brown paper bag. He was accompanied by George Townsend and Charles Downing, known to the affiants as narcotics users and peddlers, and by an “unknown colored male.” Twelve minutes later Downing went to a Plymouth automobile, got therefrom a plastic toothbrush case and partially concealing it in his hand went back to the room. At 9:15 p.m. Wilson Wright, Jr. and David Brayboy, known to the affiants as narcotics users and peddlers in the Salisbury area, entered room 200.

Ten minutes later Brayboy left the room and was observed by a confidential ⁵⁶ informant holding a small piece of cotton or tissue paper, on which was a small spot of blood, in the crook of his left arm. The cotton or tissue was known to the affiants “as part of the procedure of administrating hypodermic injections to an individual, either by self administration or by another subject.” At 9:30 p.m. the confidential informant knocked on the door of room 200 and was permitted to enter. There were four men in the room. The one who opened the door had “a handful of money in his left hand.” Another was “sitting on the bed with a nylon stocking tied on the upper portion of his left arm.

The subject was holding a hypodermic syringe in his right hand getting ready to inject himself.” The affiants stated that the confidential informant had assisted them “in four narcotics investigations over the past three weeks, which had led to the arrest of two persons for violations of the controlled and dangerous substance laws.” The warrant was executed on 4 October 1970 at 5:00 a.m. Hudson answered the officer’s knock on the door. Shirley Mae Parker and John Curtis Evans were also in the room. The officers found and seized 121 decks of heroin from a suitcase belonging to Hudson, a deck of heroin from the pocket of a shirt worn by Shirley Mae Parker, a .32 caliber revolver in a dressing table drawer and $335 in U. S. currency.

The validity of the warrant is to be determined in the light of established propositions specifically affirmed in Spinelli v. United States, 393 U. S. 410, 419 , noted by us in Price v. State, 7 Md. App. 131, 137 , and set out in Buckner v. State, 11 Md. App. 55 , 62: “1) the standard of probable cause is only the probability and not a prima facie showing, of criminal activity; 2) affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial; 3) issuing judges are not to be confined to nig ⁵⁷ gardly limitations or by restrictions on the use of their common sense in judging probable cause; 4) the determination of probable cause by the issuing judge should be paid great deference by reviewing courts.” These propositions are to be followed in applying the rules governing probable cause for the issuance of a search and seizure warrant which we summarized in Buckner at 61-62 and repeated in Moore v. State, 13 Md. App. 711 , 714-715: “A judge may issue a search warrant when it is made to appear to him by a written application signed and sworn to by the applicant, accompanied by an affidavit containing facts within the personal knowledge of the affiant, that there is probable cause to believe that a crime is being committed by any individual or in a building within his territorial jurisdiction, and that evidence of the crime is upon the person or within the place to be searched. * * * Probable cause is less than certainty or demonstration but more than suspicion or possibility. It is to be determined by the judge to whom application for the warrant is made. If 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. In determining the existence vel non of probable cause, the judge may give consideration to the special significance which objects, happenings, and individuals may have conveyed to a trained, experienced and knowledgeable police officer making the affidavit accompanying the warrant. * * * And the affidavit may be based on hearsay information, even from an unidentified informant, and need not reflect the direct per ⁵⁸ sonal observations of the affiant, but it must contain some of the underlying circumstances from which the affiant could be reasonably justified in a belief that the hearsay information was reliable or the informant was credible. * * * When a search warrant is challenged, the lower court, and the appellate court when the determination of the lower court is before it on appeal, must look for probable cause only in the affidavit itself and may not go outside it. * * * However the affidavit should be interpreted in a commonsense and not in a hypertechnical manner, and the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants. * * * But * * * this is not to say that probable cause can be made out by affiants which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists.” (citations omitted)” We observed in Moore , at 715-716: “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.

In each instance the issuing judge must have before him enough circumstances to enable him to determine the trustworthiness of the information, for he must not only evaluate the adequacy to show probable cause of the facts and circumstances set out in the affidavit but he must also evaluate the truthfulness of the source of the information comprising those facts and circumstances. Due to the infinite variety of human conduct, the suffi ⁵⁹ ciency of any affidavit must necessarily depend upon the particular facts and circumstances in it contained.” We noted, note 2 at 715, that a problem arises with respect to the truthfulness evaluation only when hearsay information is involved. As to the direct observations of an affiant the “oath, as a trustworthiness device, establishes, per se, the credibility of the affiant-source, and thereby, the reliability of his directly observed information”, quoting Dawson v. State, 11 Md. App. 694, 699 . Here probable cause was shown in the affidavit by a combination of the direct observations of the affiants and hearsay information furnished them.

The hearsay information came from two sources, a named informant and an unnamed “confidential” informer. The reliability of the named informant, George Neal, the assistant manager of the motel, presents no problem. That he was named gives some basis to credit the information given by him, Holland v. State, 13 Md. App. 635, 639 , but in any event the reliability of what he imparted was established by the personal observations of and investigation by the affiants. They checked the registration of the room, they observed known narcotics users and peddlers frequent the premises and they found that phone calls were made from the room to numbers listed to known narcotics users and peddlers.

These observations by the affiants also go to establish the reliability of the unnamed informer, buttressing the fact that the informer had assisted the affiants in four narcotics investigations within the past three weeks which resulted in the arrest of two persons for violations of the narcotics laws. See Johnson v. State, 14 Md. App. 721 . And the information furnished by the direct observations of the informer is to be evaluated with regard to the personal knowledge the affiants had of the background of those frequenting the room. See United States v. Harris, 403 U. S. 573 .

We think that in all the circumstances shown in the affidavit the information received from the un ⁶⁰ named informer was redolent with assurances of trustworthiness and that his reliability was sufficiently proved. Thus the information given by him may properly be considered in determining the existence of probable cause. With it the facts in the affidavit clearly were sufficient to justify a prudent or cautious man in believing that acts in violation of the narcotics laws were being committed in the room. We hold the lower court did not err in upholding the validity of the warrant and denying the motion to suppress the evidence seized thereunder.

The Search Warrant in no. 11 The search warrant in appeal no. 11 issued 11 June 1971, commanded the search of a green, one story, frame bungalow situated on the east side of Poplar Street, Fruit-land, Wicomico County, Maryland and occupied by Hudson, also known as “June”, and Marie Stewart and the seizure of all evidence and paraphernalia used in the illegal distribution or possession of controlled dangerous substances and other prohibited drugs. Without question the application on its face shows probable cause for the issuance of the warrant. But Hudson claims that certain matters it sets out may not be considered because of the rules concerning reliability of informers and he urges that without those matters the application lacked “proof-competent to focus suspicion on the premises to be searched.” The affiant was Luce. The meat of his affidavit was told him by other persons rather than gained through his personal observations or investigations.

At times, in material part, the person communicating the information to Luce had not acquired it by personal observation or investigation but in turn had been told it by another person. The initial inquiry is whether there were enough circumstances set forth in the affidavit to enable the issuing judge to evaluate the truthfulness of the sources of the information. The information in the affidavit came to Luce through three unnamed informants, the State’s Attorney for Wicomico County, the Sheriff of Wicomico County and ⁶¹ an unnamed officer of the Maryland State Police. We consider the information supplied by each.

The First Informant The credibility of the first informant was sufficiently shown. According to Luce, that informant had: 1) conducted or participated in many investigations of violations of the controlled dangerous substances laws and furnished information to the federal authorities which “has led to the arrest of approximately twenty persons, the most recent being in August and September 1970 for which the accused stands indicted for the offenses”; 2) been a heroin addict in the past and as such was knowledgeable to all aspects of identification and usages of controlled dangerous substances; 3) received special training from the federal bureau in the identification and handling of violations of the dangerous substances laws; 4) purchased quantities of controlled dangerous substances both in large and small quantities on many occasions for agents of the federal bureau. About 10 March 1971 he was assigned to the SalisburyWicomico area. He infiltrated “a group of persons active in the trafficking of heroin and other controlled dangerous substances and was able to purchase small quantities” of such drugs.

As we read the affidavit this was known to Luce by his own observations. The affidavit then reads: “That during these purchases the reliable informant learned the identity of the main supplier of heroin in the Salisbury area to be Thomas Hudson, also known as ‘June’. That Thomas Hudson, also known as ‘June’ would make regular trips to the Baltimore- ⁶² Washington area and bring large quantities of heroin into the area for distribution throughout the area either by distributing himself or having several other persons distribute for him.” How the informant “learned” that Hudson was the main supplier is not explained and the grounds for a conclusion that he was, are not set out. Nor does there appear any basis for Luce’s statement about Hudson’s trips to the