Lee v. State

Gilbert, C. J., delivered the opinion of the Court. The appellant, Robert Edward Lee, was convicted by a jury in the Circuit Court for Montgomery County of various violations of the Maryland Controlled Dangerous Substances Act. See Md. Ann. Code art. 27, §§ 276-303 (1976 Repl. Vol.).

Following conviction, Lee was sentenced to a period of 15 years incarceration, but a sentence review panel reduced the time to be served to five years. Lee has appealed to this Court where he advances a pentad of reasons why the judgment of the circuit court should be reversed. Because we hold that the trial court erred in refusing to grant appellant’s motion to suppress physical evidence, we find it unnecessary to consider the other four issues raised. We set forth briefly the factual situation from which this matter arose.

From the record it is apparent that Officer Michael Garvey of the Montgomery County Police Department applied for and obtained a search warrant on December 19, 1978 for the premises known as Apartment 9, 12309 Braxfield Court, Rockville, Maryland. Lee was apprehended in that particular apartment on that same date when the warrant was executed at 9:10 a.m. As a result of the search, the police seized in the premises approximately 33V2 pounds of marijuana, 510 methaquadone tablets, 742 capsules of amphetamine, a scale, miscellaneous personal papers belonging to Lee, $7,266 in United States currency, of which $1,415 were in Lee’s pocket, a quantity of glass vials, two cutting boards, plastic "baggies,” and other paraphernalia. Prior to trial, Lee moved to suppress the evidence for want of probable cause in the issuance of the warrant.

Additionally, Lee asked for a hearing pursuant to Franks v. ²¹⁵ Delaware, 438 U.S. 154 (1978). The court heard argument on both motions and denied them. When the matter went to trial before the judge who issued the warrant, Lee, through his counsel, asked the court to rehear the motion to suppress the evidence. The rehearing was denied.

Lee contends that the application for the warrant shows on its face that the information relied upon by the issuing judge was stale and did not establish probable cause. We agree. In Peterson v. State, 281 Md. 309 , 379 A.2d 164 (1977), cert. denied, 435 U.S. 945 (1978), the Court of Appeals addressed the issue, for the first time, of stale probable cause. Judge Orth, writing for the Court, summarized the rules governing probable cause in the issuance of a search warrant.

He quoted from State v. Edwards, 266 Md. 515, 518-19 , 295 A.2d 465, 466-67 (1972), where it said: "The finding of 'probable cause,’ while demanding more than mere suspicion, Draper v. U.S., 358 U.S. 307, 311-12 , 79 S. Ct. 329 , 3 L. Ed. 2d 327 (1959), requires less evidence than would justify conviction, Locke v. U.S., 7 Cranch 339, 348 , 3 L. Ed. 364 (1813), and less than would justify an officer in making a search without a warrant, Johnson v. U.S., 333 U.S. 10, 15 , 68 S. Ct. 367 , 92 L. Ed. 436 (1948). The evidence itself need not be legally competent in a criminal trial, Draper v. U.S., supra, 358 U.S. at 311 , and may in fact be hearsay, Jones v. U.S., 362 U.S. 257, 272 , 80 S. Ct. 725 , 4 L. Ed. 2d 697 (1960), so long as the judicial officer issuing the warrant is informed of some underlying circumstances supporting the affiant’s conclusions and his belief that any informant involved was credible or his information reliable, Aguilar v. Texas, 378 U.S. 108, 114 , 84 S. Ct. 1509 , 12 L. Ed. 2d 723 (1964), and such judicial officer is entitled to draw reasonable inferences from the facts contained in the affidavit based on his ²¹⁶ experience in such matters. Irby v. U.S., 114 U.S. App. D.C. 246 , 314 F.2d 251, 253 (1963), cert. denied, 374 U.S. 842 (1963).” Peterson v. State, supra at 313, 379 A.2d at 166 . Judge Orth, for the Peterson Court, went on to declare: "Our concern in determining whether a warrant necessary to the reasonableness of a search and seizure has been issued upon an affidavit supporting probable cause is only with the question '"whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet [sic] and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.” ’ State v. Edwards, 266 Md. at 519 , quoting Dumbra v. United States, 268 U.S. 435, 441 , 45 S. Ct. 546 (1925).

It follows that if the facts set out in the affidavit are 'stale,’ the affiant would not have reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched. The question is what constitutes 'stale probable cause.’ ” (Emphasis supplied.) Id. at 313-14, 379 A.2d at 166-67 . The Peterson Court adopted the rule regarding stale probable cause as stated in Garza v. State, 120 Tex. Crim. 147, 149 , 48 S.W.2d 625, 626 (1932), which "properly states the law and embodies the holdings of the Court of Special Appeals,[ 1 ] the more persuasive teachings of the courts in ²¹⁷ other jurisdictions, and the general opinions of text writers and commentators.” Peterson v. State, supra at 315, 379 A.2d at 167 .

The Texas Court articulated the rule as follows: "The affidavit for a search warrant on probable cause, based on information and belief, should in some manner, by averment of date or otherwise, show that the event or circumstance constituting probable cause, occurred at the time not so remote from the date of the affidavit as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made.” Garza v. State, supra at 149, 48 S.W.2d at 626 . In the instant case, the warrant was issued, as we have said, on December 19, 1978. The affidavit in support of the warrant contains 24 numbered items. A careful review of its contents shows that many of the statements made by the affiant are merely conclusory, and although several different informants are relied upon by the affiant, only one was properly established as a reliable source.

Items one (1) through five (5), seven (7), nine (9), eleven (11), twelve (12), and fifteen (15) relate information received by various anonymous persons. No attempt was made, however, to establish that those persons were credible or reliable sources. Singularly, item 10 relates information received by affiant from an informant whose reliability is adequately established. See Aguilar v. Texas, 378 U.S. 108 , 84 S. Ct. 1509 , 12 L. Ed. 2d 723 (1964).

The affidavit in pertinent part stated: "10. On January 26, 1978, Cpl. R. Ricucci, Montgomery County Department of Police, Vice-Narcotic Division, received information from a confidential reliable informant. The confidential reliable informant will be referred to as Confidential Reliable Informant #2.

Confidential Reliable Informant #2 told Cpl. Ricucci that he had been in Robert Lee’s apartment during the week of January 12, 1978 and had observed in the apartment three ounces of cocaine, $1,000.00 worth of Quaaludes, ²¹⁸ 1,000 Black Beauties and 10 lbs. of Marihuana. Confidential Reliable Informant #2 stated that Robert Lee makes trips to Florida to obtain drugs. Confidential Reliable Informant #2 has in the past supplied information which was [sic] been reliable to the Narcotic Section of the Vice-Narcotic Division of the Montgomery County Department of Police.

A) Between November of 1976 and December of 1976, Confidential Reliable Informant #2 provided information which led to the execution of a search warrant and the seizure of a large quantity of pharmaceutical drugs along with two arrests which resulted in convictions in the Circuit Court for Montgomery County, Maryland. B) Between December 1976 and January 1977, this Confidential. Reliable Informant #2 provided information which led to the arrest of one adult for burglary in Montgomery County and the recovery of stolen property. C) Between May 1976 and June 1976, this Confidential Reliable Informant #2 set up a buy-bust arrest which resulted in the seizure of nineteen (19) pounds of marihuana and a conviction of the subject in the Circuit Court for Montgomery County, Maryland.

D) In February of 1976, this Confidential Reliable Informant #2 provided information which led to the arrest of a subject wanted for Distribution of Heroin by the Montgomery County Department of Police. E) In July of 1977, this Confidential Reliable Informant #2 set up a buy-bust arrest of a subject which resulted in the seizure of twenty-five (25) pounds of marihuana. F) In July of 1977, this Confidential Reliable Informant #2 provided information which led to the arrest of a subject wanted for daytime housebreaking and forgery. G) In February of 1978, this Confidential Reliable ²¹⁹ Informant #2 provided information which led to the arrest of a subject wanted for Assault with Intent to Murder and Escape in Montgomery County, Maryland.

H) During the month of January 1978, this Confidential Reliable Informant #2 provided information which led to the execution of a search warrant and a seizure of a quantity of controlled dangerous substance along with one arrest which resulted in a conviction in the Circuit Court for Montgomery County, Maryland.” The quoted passages would be sufficient to establish probable cause, notwithstanding the inadequacy of the information supplied in the affidavit as obtained from other sources. Johnson v. State, 14 Md. App. 721, 725 , 288 A.2d 622, 625 , cert. denied, 266 Md. 738 , cert. denied, 409 U.S. 1039 (1972). The remoteness of the informant’s observations as disclosed in the affidavit, however, leads us to conclude that the information was stale. The informant allegedly observed the unlawful drugs in Lee’s apartment during the week of January 12, 1978.

The warrant was issued on December 19, 1978, eleven months later. There are no facts asserted to indicate any continuing activity between January and December of 1978 which would link the appellant to illegal drugs. It has been held that "where the affidavit recites facts indicating activity of a protracted and continuoús nature, or a course of conduct, the passage of time becomes less significant, so as not to vitiate the warrant. . . .” (Citations omitted.) See Peterson v. State, supra at 317-18, 379 A.2d at 168-69 . No such facts are presented in the affidavit utilized in the matter now before us.

Items thirteen (13) through twenty-three (23) of the affidavit primarily concern observations made by the affiant through surveillance of the appellant’s residence. The officer said: "13. On August 21, 1978 at approximately 8:50 P.M., your affiant was on surveillance at 12309 ²²⁰ Braxfield Court. At approximately 9:15 P.M., your affiant observed a brown Mercedes with 1979 Maryland registration DZL 459 driven by a w/m with shoulder length brown hair, dark T-shirt, also a w/f with dark hair was observed in the vehicle.

Your affiant observed both subjects go to the door of Robert Edward Lee and knock. All the lights came on inside of R.E. Lee’s apartment. Both subjects were admitted into R.E. Lee’s residence. On August 21, 1978 at approximately 9:40 P.M., your affiant observed both subjects exit R.E. Lee’s residence and enter the Mercedes and leave the parking lot.

At this time, the lights in R.E. Lee’s living room went out. 14. According to Maryland Motor Vehicle Administration, Maryland registration DZL 459 is listed to Philip Edward Bourne, W/M, DOB 12/08/50 of 10 Schindler Court, Silver Spring, Montgomery County, Maryland on a 1969 Mercedes. 15. On February 6, 1975, Cpl. Ricucci, Vice-Narcotic Division, Montgomery County Department of Police spoke with a concerned citizen who stated that Philip E. Bourne had a lab in Ocean City, Maryland where Bourne was making pure Phencyclidine (PCP), a controlled dangerous substance of Schedule II.

This concerned citizen will be referred to as Concerned Citizen #3. Concerned Citizen #3 felt that Bourne was possibly making the Phencyclidine (PCP) at 10 Schindler Court, Silver Spring, Montgomery County, Maryland. 16. On November 13, 1978, your affiant was on a surveillance at 12309 Braxfield Court and at approximately 2005 hours, your affiant observed a Cadillac Eldorado convertible displaying Maryland registration FZW 902 drive into the parking lot and back into a vacant parking space. The vehicle was occupied by three white males.

One of the white ²²¹ males exited the vehicle and went to the door of Robert Lee’s apartment. The w/m was admitted into the residence. At 2015 hours, the white male was observed exiting the apartment. The white male went to and entered the Cadillac Eldorado then left the parking lot.

According to the Maryland Motor Vehicle Administration, Maryland registration FZW 902 is listed to a 1964 Volkswagon to Gregory Mark Hall, W/M, DOB 10/09/60, 540 Palisades Drive, Crownsville, Anne Arundel County, Maryland. At 2020 hours a white female was observed exiting Robert Lee’s apartment. This white female got into a vehicle which was displaying Maryland registration CVL 490. According to the Maryland Motor Vehicle Administration, Maryland registration CVL 490 is not a listed tag.

As the white female was getting into her vehicle, Robert Lee was observed looking out his balcony window. 17. On November 14, 1978 at approximately 8:25 P.M., your affiant was on surveillance at 12309 Braxfield Court and observed R.E. Lee come out of his residence and go to his vehicle. Your affiant observed R.E. Lee put something into his front pocket. R.E. Lee then went back into his residence.

On November 14, 1978 at approximately 8:30 P.M., your affiant observed an unknown W/F knock on R.E. Lee’s apartment door. Lee was observed through the open drapes on the patio admitting the w/f. R.E. Lee and the w/f then walked to the rear of the apartment. On November 14,1978 at approximately 8:35 P.M., your affiant observed an unknown W/M knock on R.E. Lee’s door.

R.E. Lee was observed through the patio window to go to the door and admit the W/M. R.E. Lee and the W/M walked to the rear of the apartment. The W/F was still inside R.E. Lee’s residence. ²²² On November 14,1978 at approximately 8:45 P.M., your affiant observed the W/M exit R.E. Lee’s residence. The W/M had shoulder length light hair. The W/M was driving a Ford Ranchero with a small camper top, mag wheels, with Maryland registration N 50636.

According to the Maryland Motor Vehicle Administration, Maryland registration N 50636 is listed to Philip Edward Bourne, W/M, DOB 12/08/50 of 10 Schindler Court, Silver Spring, Montgomery County, Maryland. On November 14,1978 at approximately 9:00 P.M., your affiant observed the W/F exit R.E. Lee’s apartment and get into a green Chevy Nova with a black top with damage to the right front fender with Maryland registration GFP 265. According to Maryland Motor Vehicle Administration, Maryland registration GFP 265 is listed to Robert Edward Bastian, W/M, DOB 05/30/49 of 12309 Braxfield Court, #1, Rockville, Montgomery County, Maryland. On November 14,1978 at approximately 9:19 P.M., your affiant observed R.E. Lee come out onto his balcony and look around and go back inside residence.

On November 14,1978 at approximately 9:35 P.M., your affiant observed a gray van operated by a W/M drive to the side of Braxfield Court Apartments. Your affiant then observed a W/F exit the gray Van and walk across the parking lot and enter Lee’s apartment. R.E. Lee and the W/F walked to the rear of R.E. Lee’s apartment. On November 14,1978 at approximately 9:50 P.M., your affiant observed R.E. Lee and the W/F walk to Lee’s door.

The W/F exited Lee’s apartment and walked across the parking lot toward the gray van holding her stomach as if she was hiding something ²²³ up her shirt. The W/F was observed to walk to the van and get in. Maryland registation