McCarthy v. State

Thompson, J., delivered the opinion of the Court. Alexander George McCarthy, III, the appellant, was convicted of several violations of the controlled dangerous substances law; all of the counts arose out of the seizure of substances under a search warrant issued for appellant’s home, Apartment A, 2668 Gatehouse Drive, in Baltimore City. The case was tried in the Circuit Court for Howard County, Judge James Macgill presiding with a jury. Sentences totaling five years were imposed.

The issues raised on appeal consist of the validity of the search warrant and the sufficiency of the evidence to support the convictions. We shall first discuss the validity of the warrant. The affidavit was executed by Officer John W. Nock who stated that: (1) he had thirteen years of experience with the Baltimore Police Department; (2) he had completed a two-week course in narcotics and dangerous drugs given by the Federal Bureau of Narcotics; and (3) he had personally ⁷²⁴ made 80 arrests for narcotic violations during the past nine months. FIRST INFORMANT The affidavit recited the credibility of this informant in the following language: “Informant has given members of the Baltimore City Police Department information in the past, consisting in one instance of two cases of violation of Burglary Laws in the State of Maryland, one occurred in Baltimore City and the other occurred in Baltimore County, which led to the arrest of two persons.

In addition, said Informant has given reliable information in the past which has led to the arrest of two persons for violation of the Narcotic Laws of the State of Maryland. Said Informant has never been known to give unreliable information in any instant to Your Affiant in the past.” The affidavit alleged that on May 26, 1970, between the hours of 8:30 and 9:30 a.m., a drug addict exhibited to the informant prohibited drugs, claiming that he had purchased them from Alexander McCarthy and Tony Ingrassia at 355 Front Hill Avenue, Baltimore. On May 27, the informant accompanied a drug addict to the above address between the hours of 3 and 3:30 and observed the addict purchase, for the sum of $5.00, a bag from Ingrassia who stated that the bag contained dilaudid. At 7:30 a.m. on May 27, Ingrassia told the informant that he was waiting for A1 McCarthy to “come to his house” with the drugs.

The informant further stated that on May 27 and May 28 he was in the neighborhood of 355 Front Hill Avenue between the hours of 8:30 and 9:00 a.m. and saw Alexander McCarthy, driving a 1969 Pontiac LeMans, steel gray, black vinyl top, Maryland Registration HA-2036, enter the Front Hill address on both dates. That on May 30, 1970, the informant had stated to your affiant that “the Informant asked Ingrassia how far does A1 (referring to McCarthy) have to go to get the stuff, to which Ingrassia replied, ‘out his house’.” ⁷²⁵ The informant stated that on June 2, 1970 between 9:00 and 9:30 p.m., Ingrassia informed the informant he was out of drugs and he wouldn’t have anything until the morning when A1 got there. The informant further stated that he took a narcotic addict to 355 Front Hill Avenue on June 3, 1970, at approximately 12:45 p.m. The drug addict entered and returned with two bags of dilaudid stating he had purchased one from McCarthy and one from Ingrassia which they had removed from their pockets.

That on June 4, at 10:50 a.m., the informant together with a drug addict went to the 355 Front Hill Avenue address and purchased two bags of dilaudid from Ingrassia. At that time, the vehicle described hereinbefore was parked in front of 355 Front Hill Avenue. The informant stated that he had observed the McCarthy operation in the past several weeks and found that between 8:30 and 9:00 a.m. McCarthy arrived in the motor vehicle hereinbefore described and entered 355 Front Hill Avenue carrying the drugs.

The informant stated that on at least one occasion he had personally observed McCarthy and Ingrassia cut and bag these drugs at the 355 Front Hill Avenue address immediately after McCarthy delivered them. The informant stated that at this point McCarthy would leave the premises and Ingrassia would sell the drugs during the rest of the day. The informant further stated that he had personally purchased prohibited narcotics from McCarthy several times: one year earlier, 3 months earlier and 2 to 3 weeks earlier. SECOND INFORMANT The credibility of this informant was recited as follows: “Based on information which he has given to members of the C.I.D. Narcotic Unit in the past which has led to an undercover buying and seizure of fifty-five capsules of heroin hydrochloride during June of 1970.” On May 26, 1970, this informant advised the affiant that he went to 355 Front Hill Avenue in the company of detectives from the C.I.D. Narcotic Unit, in an attempt to purchase narcotic drugs.

Ingrassia informed him that he ⁷²⁶ was out of drugs, “that McCarthy wasn’t there at the time and, therefore, he wasn’t in shape.” Based on his experience the affiant stated “in shape” to mean possession of prohibited narcotic drugs. THIRD INFORMANT The credibility of this informant was established as follows: “This Informant has given Your Affiant information in the past which has resulted in the arrest of seven persons during the month of March, 1970, for violations of narcotic laws of the State of Maryland.” He stated that during the past two weeks he had purchased dilaudid from Ingrassia in the area of Pratt and Monroe Streets. AFFIANT’S OBSERVATIONS The affiant determined that the vehicle registration HA-2036 was in the name of Dianna Theresa D’Anna, 2803 Arlene Circle, 21207. He examined the records of the Court of Common Pleas and found that Alexander McCarthy is currently married to Dianna T. McCarthy, maiden name Dianna T. D’Anna and that he had received information from Lieutenant Thomas J. Coppinger in the State’s Attorney’s Office that Mrs. McCarthy was employed in the Assignment Office of the State’s Attorney’s Office and that she had stated many times that she and her husband lived together.

Her address on the official records of the State’s. Attorney’s Office was 2668 Apartment A Gatehouse Drive, Baltimore, Maryland 21207. The affiant’s observations of activities of either Ingrassia or McCarthy were limited to a short period on May 26, 1970, that is between 8:20 and 9:30 a.m. He observed at 8:40 a.m.

Alexander McCarthy enter the premises at 355 Front Hill Avenue and that at 9:05 a.m. he saw a person known to him as a user of prohibited narcotics enter the premises and leave approximately five minutes later. Based upon this affidavit a warrant was issued authorizing the search of the premises at 355 Front Hill Avenue, the apartment at 2668 Apartment A Gatehouse Drive 21207 and the Pontiac car. ⁷²⁷ Appellant attacks the validity of this search warrant on a wide-ranging basis. First on the basis that the credibility of the informants was not shown therein as required by the veracity prong of Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964), as explicated in Spinelli v. United States, 393 U. S. 410 , 89 S. Ct. 584 , 21 L.Ed.2d 637 (1969). In making his attacks, he relies primarily upon earlier cases of this Court.

His reliance is misplaced inasmuch as the Court of Appeals in State v. Edwards, 266 Md. 515, 517 , 295 A. 2d 465 (1972) found an informer credible where the allegation was as follows: “[W]e sent a informant who has been reliable in the past giving information in 12 cases of Narcotic violations to this location.” and State v. Kraft, 269 Md. 583, 585 , 307 A. 2d 683 (1973), cert. denied, 94 S. Ct. 2408 , where the reliability was shown as follows: “[information from a reliably established informant, who is responsible for eleven narcotics arrests.” We cannot hold that the allegations in this case do not establish the credibility of the informants because, of course, decisions of the Court of Appeals of this State are binding upon this Court. The appellant does not discuss Edwards but he attempts to distinguish Kraft on the basis of a strong dissent which we are precluded from following.' We also note the Supreme Court of the United States had denied certiorari on the case. He further attempts to distinguish Kraft on the basis that there were eleven arrests as to the first informant, herein there were only two arrests involving four persons. We do not think this distinction is valid nor are we impressed with the argument the information must deal with narcotics rather than other kinds of offenses.

Certainly credibility may be established through accurate information regardless of whether furnished exclusively in narcotics cases or in other types of criminal cases. ⁷²⁸ Appellant also points to the sparsity of observations offered by the affiant in the instant case when compared to the affiant’s observations in Kraft . This has no bearing on the credibility prong of Aguilar and Spinelli. Stanley v. State, 19 Md. App. 507, 533 , 313 A. 2d 847 (1974). In either case, the observations were not themselves sufficient to establish credibility of the informant; yet the Court in both Kraft and Edwards accepted the informants’ credibility as being established.

The appellant also attempts to apply to Ingrassia the Aguilar-Spinelli criteria for evaluating the credibility of an unnamed police informant. Although we have discussed the trustworthiness of hearsay reports from non-police controlled secondary sources in the > terms of the Aguilar-Spinelli test, when faced with this specific problem Judge Charles E. Moylan, speaking for the Court held in Thompson v. State, 16 Md. App. 560, 567 , 298 A. 2d 458 (1973): “We believe a like reasoning to apply to the unnamed street seller at bar. Though from the criminal milieu, to be sure, he was not, wittingly at least, working with the police. He was not in the position of ‘the common informant. . . hidden behind a cloak of anonymity’ who more often than not ‘is paid or provides information in exchange for immunity from prosecution for his own misdeeds.’ People v. Glaubman, 485 P. 2d 711, 716-717 (Colorado, 1971).

This street seller was, so far as he knew, engaged in a purely commercial venture for his own profit. He was dealing with a regular and presumably valued customer. Being unable initially to satisfy his customer’s demand, it was to his every advantage to assure the prompt return of that customer as soon as fresh merchandise was available for sale. He simply had no purpose in misleading his own clientele.

The circumstances in which the seller passed on the information to a customer and confidant are replete, we think, with reasonable assurances of trustworthiness.” ⁷²⁹ On the same reasoning we hold that the veracity of Ingrassia was established in the instant warrant. Of course, the observations of the affiant in the office of a clerk of the Court of Common Pleas and the statement of Lieutenant Coppinger can be challenged neither on the basis of credibility of the witness nor on his basis of knowledge. Continuing his attack, appellant argues that, conceding veracity arguendo, there was nothing to show the basis of knowledge required by Aguilar and Spinelli . He does not argue that the basis of knowledge of the police informants was not shown because obviously how they acquired their information was completely set out, but once again, seeking to apply to the non-informant or secondary source declarant the rules developed by Aguilar and Spinelli for unnamed police controlled informants, he argues there is nothing in the affidavit to show how Ingrassia obtained his information that the drugs were kept at the home of the appellant.

He argues that in Stanley v. State, supra, we indicated that if the affidavit failed to set out what the informant saw, heard or smelled that provided the basis of his knowledge, the only other basis could be the detail of the information which he furnished which would itself show that the knowledge was firsthand. Once again appellant assumes that the Aguilar-Spinelli rules developed for unnamed informants would apply as well to third persons and further argues that Stanley indicated there was no other way in which the basis of knowledge prong of Aguilar-Spinelli could be established. We think he reads too much into Stanley; we held simply that detail was one way in which the basis of knowledge prong of an unnamed informant could be established and that detail could not supply evidence of credibility to satisfy veracity requirements. Once again we point out that Ingrassia was not an unnamed police informant,