Price v. State

Orth, J., delivered the opinion of the Court. On 16 February 1968 Everett David Price was found guilty by a jury in the Circuit Court for Prince George’s County under the 1st count of the indictment, charging that he knowingly used, on 28 October 1967, medicine, drugs, mixture and preparation for the purpose of caus ¹³³ ing an abortion as proscribed by Md. Code, Art. 27, § 3 1 and a five year sentence was imposed to run consecutively with a sentence he was then serving. On 21 February 1968 he filed a motion for a new trial which was denied on 29 February. On 28 March he filed a notice of appeal to this Court, which, by order of 28 May, dismissed the appeal upon motion of the State as not timely filed.

On 17 June he petitioned for relief under the U.P.C.P.A. and, after hearing, he was granted leave to file a belated appeal by order of 19 September of the Circuit Court for Prince George’s County. The same day he noted the appeal which is now before us and claims that the lower court erred in: I denying a motion to suppress evidence; II admitting in evidence articles seized; and III reversing its grant of a motion for judgment of acquittal as to the second count of the indictment. I THE DENIAL OF THE MOTION TO SUPPRESS EVIDENCE Prior to trial the appellant filed a Motion to Suppress Evidence, specifying items seized by a search of his automobile and “all other evidence tangible or intangible, directly obtained or indirectly derived” from such search on the primary ground that the search and seizure warrant, under the authority of which the search was made, was invalid. The motion was denied after hearing.

The appellant claims error in the denial for the reason that the application for the warrant did not show probable cause for its issuance. The application was made by John D. Schrock, a detective sergeant of the Montgomery County Police Department. He swore before a committing magistrate of Montgomery County that he had reason to believe that in a described automobile listed to ¹³⁴ Everett David Price, Sr. “is now being concealed certain property, namely briefcase type bag, dark in color; syringe (sic) with red top and tube and container of dark fluid which are in violation of Common Laws of the State of Maryland pertaining to crime of abortion.” The facts “tending to establish the grounds for issue of a search warrant” were contained in two affidavits incorporated in the application by reference and attached thereto. The first affidavit was that of Schrock.

Stating that Schrock was a detective sergeant of the Montgomery County Police Department it read: “I received information from Detective John J. Rossi, known to me as a Detective of the Prince George’s County Police, relating to the commission of the crime of abortion in Prince George’s County and the location in Montgomrey County of evidence and instruments of the crime. I have further received information in my official capacity that one Everett David Price, Sr., of 4410 Aspen Hill Road, Wheaton, Maryland, was arrested for said crime and is charged in Prince George’s County. I have read the affidavits of Det. John J. Rossi and discussed with him the statements there, and on the basis of that affidavit, which I have read, and which is attached, I have made application for a search and seizure warrant.” The affidavit of Rossi read as follows: “I, JOHN J. ROSSI, hereby certify that I am a Detective of the Prince George’s County Police Department, assigned to the Vice Squad, having been a member of the Police Department for a period of six (6) years, and prior thereto with the Metropolitan Police Department for two (2) years.

After receiving information that an abortion had been committed upon one Darlyne Stevens, ¹³⁵ I proceeded to the premises known as 3513 Toledo Terrace, Apartment H-2, Hyattsville, Prince George’s County, Maryland, and upon entry therein observed among other things one bed covered with blood, paper towels covered with blood placed in trash can, green colored property upon the towels, female sanitary napkin covered with blood, and other objects. Thereafter the said Darlyne Stevens stated that she had been aborted by a person identified to her as “Mr. Ed”, a white male, with general physical description; said abortion having been committed on October 28th at the said premises. I spoke with one Mrs. Jane Patnode, who resides at 7004 Gregg Street, Apt. 27 K, Seat Pleasant, Maryland, who stated that she had been at the premises of the apartment building, had seen a person of the same description as the “Mr. Ed” leave the premises, place a briefcase type bag in his trunk of his red late model convertible, with white top, then put down top, and drive away, with no other person seen entering or occupying the said vehicle. Mrs. Patnode stated that her observations were at approximately 3 :30 P.M. on Saturday, October 28, 1967.

The victim stated that she had observed the person known as “Mr. Ed” take from and later return to a briefcase type bag one red topped syringe, with tube attached, fill same with a fluid; that said tube attached to said syringe was inserted into her vagina and a fluid entered therein and thereafter she commenced aborting a fetus, that said fetus when passed was disposed of by flushing same in the apartment toilet. The said victim, after being shown five (5) or more photographs, stated that the photograph of one Everett David Price, Sr., was the person known to her as “Mr. Ed”. Upon investigation by your affiant it was determined that one Everett David ¹³⁶ Price, Sr., was found guilty of abortion in the Circuit Court of Prince George’s County, Maryland and was presently on probation; that when arrested he stated that he was also known as “Eddie”. Another arrest having been made in this case, i.e. concerning the abortion of Darlyne Stevens, to wit, of Philip Petry, included a statement, after the said Petry was duly advised of his rights, that he had made the arrangements for the abortion by contacting a person called “Ed” at a certain telephone number.

A check by your affiant of said number showed that it was listed in the name of June Price at 4410 Aspen Hill Road, Rockville, Maryland, also the residence of Everett David Price, Sr., the same person as above described. A warrant for the arrest of Everett David Price, Sr., was issued by a Justice of the Peace for Prince George’s County, Maryland, at 4:30 P.M. on November 2, 1967, and thereafter served upon Everett David Price, Sr., at the aforesaid premises at Aspen Hill Road, Rock-ville. At that time I requested permission to search the premises, having previously advised the defendant of his constitutional rights. He stated that such a search could be made.

I did not observe the aforesaid bag or instruments. I also requested permission to search his red convertible Thunderbird but was denied such permission ; and I again asked and was denied same. Your affiant knows of no other residence of the said Everett David Price, Sr., or place where he could conceal the aforesaid instruments and evidence.” On 2 November 1967 Schrock and Rossi both personally appeared before the committing magistrate who issued the warrant and made oath as to his respective affidavit. In Spinelli v. United States, 89 Sup.

Ct. 584, decided 27 January 1969, the opinion of the Court expressly stated, ¹³⁷ at 590-591, that it did not retreat from the established propositions that: 1) “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U. S. 89, 96 , 85 S. Ct. 223, 228 , 13 L.Ed.2d 142 (1964);" 2) “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, 1062 (1967);" 3) “in judging probable cause issuing magistrates are not to be confined by nigardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U. S. 102, 108 , 85 S. Ct. 741, 745 (1964);" 4) “their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, 362 U. S. 257, 270-271 , 80 S. Ct. 725, 735-736 (1960).” In Spinelli an informant’s tip had a fundamental place in the warrant application — “without it, probable cause could not be established.” p. 588. Although the Court concluded that “the informant’s tip — even when corroborated to the extent indicated — was not sufficient to provide the basis for a finding of probable cause,” p. 590, it continued: “This is not to say that the tip was so unsubstantial that it could not properly have counted in the magistrate’s determination. Rather it needed some further support. When we look to the other parts of the application, however, we find nothing alleged which would permit the suspicion engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” The Court granted certiorari in Spinelli “believing it de ¹³⁸ sirable that the principles of Aguilar should be further explicated.” p. 587.

In Aguilar v. Texas, 378 U. S. 108 , a search warrant had been issued upon an affidavit of police officers who swore only that they had “received information from a credible person and do believe” that narcotics were being illegally stored on the described premises. While recognizing that the constitutional requirement of probable cause can be established by hearsay information, it held the affidavit inadequate for two reasons: (1) the application failed to set forth any of the “underlying circumstances” necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he said they were; and (2) the affiant-officers did not attempt to support their claim that their informant was “credible” or his information “reliable.” Explicating Aguilar’s principles in Spinelli the Court said that “the informer’s report must first be measured against Augilar’s standards so that its probative value can be assessed.” If the tip is found inadequate under Aguilar , “the other allegations which corroborate the information contained in the hearsay report should then be considered * * * The magistrate must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration ?” Applying those principles to the facts in Spinelli the court noted that the affidavit offered no reason in support of the statement that the informant was “reliable.” And, it said, p. 589: “Perhaps even more important is the fact that Aguilar’s other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the F.B.I.’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him.

Moreover, if the informant came by the information indirectly, he did not explain ¹³⁹ why his sources were reliable * * * In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” We think it significant that the Court said that the detail provided by the informant in Draper v. United States, 358 U. S. 307 , provides a suitable benchmark. In Draper the informer did not state the way in which his information was obtained and the reliability of the informer was shown only by the statement of a narcotic agent that the informer had been engaged as a “special employee” of the Bureau of Narcotics for almost six months and from time to time gave information regarding violations of the narcotics laws, for which he was paid small sums of money, and that the agent had always found that the information given to be accurate and reliable. The tip was that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings. The informer described, with minute particularity, the clothes that Draper would be v/earing upon his arrival at the Denver station.

The Court concluded that a magistrate, when confronted with such detail, could reasonably infer that the informer had gained his information in a reliable way. 2 In the instant case, that part of the affidavits of the officers which rested on hearsay came from three informants — Darlyne Stevens, the subject of the abortion, Jane Patnode, who had been in the apartment building where the abortion was performed on the day it was per ¹⁴⁰ formed, and Philip Petry, who bad been arrested with respect to the crime and said he had made the arrangements for the abortion. As to each of them, they had seen or perceived the facts asserted and did not come by the information themselves by hearsay. Coming by the information directly, the reliability of their sources was not in question. Thus there was only the question of the honesty of the informants.

The affiant-officers did not expressly state that any of these informants were “credible” or their information “reliable.” But we feel that this question can be adequately resolved by a consideration of the allegations