Ramia v. State

MOYLAN, Judge. The appellant, Timothy Ramia, was convicted in the Circuit Court for Wicomico County, by Judge Alfred T. Truitt, Jr., sitting without a jury, of various violations of the Controlled Dangerous Substances Law. He was sentenced to six years incarceration and a fine of $15,000. The appellant does not challenge the propriety of his trial upon the merits.

In a commendable narrowing of the focus for the purpose of appellate review, he pinpoints the critical issue and does not clutter the appeal with interminable trivia. The single challenge is to the pretrial ruling made by Judge Richard M. Pollitt in denying the appellant’s motion to suppress the physical evidence. Even thus concentrated, however, the challenge does not manage to gather any momentum. Judge Pollitt’s ruling can be affirmed so many ways that the only difficulty is in deciding which to choose.

The first issue to be addressed, of course, is that of what standard of review should be employed by us to scrutinize the ruling of Judge Pollitt. The definitive word on that subject is found in Illinois v. Gates,-U.S.-, 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983). Reviewing courts (at the suppression hearing level or at the appellate level) do not undertake de novo review of the magistrate’s probable cause determination but pay, rather, “great deference” to that determination. -U.S. at-, 103 S.Ct. at 2330-2331 , 76 L.Ed.2d at 546-547 . “Traditional deference to the probable cause determinations of magistrates” restricts the reviewing court to the limited question of inquiring as to whether “the magistrate had a ‘substantial basis for . . . concluding] that a search would uncover evidence of wrongdoing.” Id. at ⁶⁵⁶ -, 103 S.Ct. at 2331 , 76 L.Ed.2d at 547 . “The Fourth Amendment requires no more.” Ibid. In an imaginative effort to avoid the foreclosing effect of that deference, the appellant argues that Illinois v. Gates, supra, should not be given retroactive effect.

He contrasts the date of June 8, 1983, on which Illinois v. Gates was decided, with the date of September 25, 1982, when the search warrant in this case was issued. He argues that a new standard of review should not be applied to a judicial determination made nine months before the new standard was promulgated. Among many other possible frailties, however, the syllogism proceeds from a false premise. It presupposes that Illinois v. Gates promulgated a new standard of review.

Illinois v. Gates itself, however, left no doubt that it was simply declaring and reaffirming a preexisting and traditional standard of review. Another and more significant part of Illinois v. Gates, not here pertinent, did, to be sure, break new ground. In setting forth the guidelines to be employed primarily by warrant-issuing magistrates in assessing information coming from confidential informants on the subject of probable cause, the Supreme Court, to some yet undetermined greater or lesser extent, abandoned (or modified) the highly structured approach of Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969). It countenanced a return to a looser “totality of circumstances” approach, eschewing the rigidly compartmentalized analysis of first Aguilar’s “veracity prong” and then Aguilar’s “basis of knowledge prong,” with no doctrinal osmosis between the two.

Although, to be sure, not addressing the retroactivity issue as such, this Court on two occasions has applied the new “totality of circumstances” approach of Illinois v. Gates in reviewing warrants issued prior to June 8, 1983. Brown v. State, 57 Md.App. 186 , 469 A.2d 865 (1984); Gipe v. State, 55 Md.App. 604, 608-613 , 466 A.2d 40 (1983). ⁶⁵⁷ The decision as to the appropriate set of guidelines — the loose approach of Gates versus the highly structured approach of Aguilar-Spinelli — is one that is addressed primarily to the warrant-issuing magistrates who will apply those guidelines in the first instance. Illinois v. Gates in this regard candidly broke with the past. A timely raised issue as to the retrospective application of Illinois v. Gates would be an intriguing one.

Ironically, it is the State that on this occasion would be arguing for retrospective application and the defendant who would be championing a narrow prospectivity. 1 An interesting dimension would be added to that analysis by the prevailing philosophy as to the exclusive purpose, and intended beneficiaries, of the exclusionary rule of evidence. Since the purpose of the exclusionary rule is only prophylactic or deterrent and not remedial, the defendant would not appear to have had any entitlement or right even under the now-displaced constitutional standard, but would have been merely the unintended beneficiary who had ⁶⁵⁸ served as the vehicle for the prophylactic purpose of general deterrence. The defendant would hardly be able to claim a vested interest in an evidentiary exclusion that, even originally, had never been intended for his direct benefit, but had come to him only by way of an unintended but unavoidable procedural bonus. All of this, however, is not the issue before us.

Our concern in this case is not with the question of which set of constitutional guidelines — Aguilar-Spinelli or Gates —should be used by the warrant-issuing magistrate in evaluating information from a confidential informant. Our concern is rather with the question of what standard of review we, as an appellate court, 2 should apply in scrutinizing, after the fact, the decision made by that warrant-issuing magistrate. This is an absolutely discrete issue and one that could arise regardless of whether the warrant-issuing magistrate had used Aguilar-Spinelli guidelines, Gates guidelines, or any other set of guidelines. This is a recurring question which goes to the very heart of the reviewing function.

It is also a question that has strangely suffered from massive neglect. Frequently arising out of a welter of ambiguous circumstances, the ultimate issue of probable cause or the threshold issue of the admissibility, credibility, and weight of information coming from a confidential informant .are both issues that do not yield computerized “white or black” answers. They occupy gray areas where reasonable minds might reasonably differ. A close question of probable cause (or the admissibility of information from an informant bearing on probable cause) might be submitted to twenty fair and knowledgeable judges with ten finding one way and ten finding the opposite way and none of them being unreasonable or clearly erroneous.

What happens when such a ruling comes to us, ⁶⁵⁹ or to a suppression hearing judge, for review? Do we simply monitor the system for “error” (which is the basic, though limited, appellate function)? Do we extend due deference to any reasonable conclusion arising out of the gray area or broad discretionary range as something not “clearly erroneous” or a “clear abuse of discretion,” even where we ourselves might have concluded otherwise from the same ambiguous predicate? Or do we make a de novo determination on these issues?

This broad range for legitimate and error-free differences would prevail and this question of the appropriate standard of review would, therefore, arise, regardless of whether an Aguilar-Spinelli standard or a Gates standard were being applied to the literal subissue of the admissibility of hearsay information from a confidential informant. In what we perceived to be the absence of any clear and unmistakable direction from the Supreme Court, we in Maryland had (erroneously, it turns out) applied an essentially de novo standard of review to such probable cause determinations in the warrant context. Proceeding largely by analogy to the appellate review of a finding of obscenity and the appellate review of a finding of voluntariness of a confession, Gardner v. State, 10 Md.App. 233, 245 , 269 A.2d 186 (1970); Mulligan v.