Scott v. State

Menchine, J., delivered the opinion of the Court. John P. Scott appeals from a judgment of conviction for re•ceiving stolen goods of a value in excess of $100.00 and for vio ⁴⁸⁵ lation of Article 27, § 264B (Possession of Slot Machines). He was sentenced to six years’ imprisonment on the receiving count and one year’s imprisonment concurrent on the possession count. His numerous contentions of error are encompassed within: 1.

An attack upon the search and seizure warrants, with concomitant attack upon the admissibility of evidence seized thereunder. 2. An attack upon the sufficiency of the evidence to convict. 3. An assertion that the trial court improperly permitted a witness to refresh his recollection by a memorandum. 4. An assertion that he was denied due process by reason of the incompetency of counsel. 5.

An argument that the verdict in each case was contrary to the weight of evidence. 6. An assertion that the machines seized did not fall within the statute. 1. The Warrants On October 22, 1965, Associate Judge Samuel W. Meloy in the Circuit Court for Prince George’s County issued two search warrants, (1) to search the property known as 5303 Cable Avenue, Camp Springs, Maryland, and (2) to search a 1964 maroon Cadillac Convertible with a white top, bearing license number DN 3660. Each was issued after affidavit and application identical in every respect except the place to be searched and are attacked upon the following grounds: 1.

That they were technically deficient because affiant was not sworn before the notary. 2. That they were unconstitutional as general warrants. 3. That they were invalid because directed to the Sheriff of Prince George’s County for their enforcement. 4. That the affidavit and application did not show probable cause for their issuance.

As to- the oath of the Affiant The record affirmatively shows that in both instances the applicant was sworn by the judge who issued the warrant. This is sufficient, whatever the notary may have done. Tucker v. State, 244 Md. 488, 497 . ⁴⁸⁶ As to the contention they were General Warrants The affidavit and application were incorporated by reference and attached to the warrants, each of which specifically named the appellant. The fact that the warrants included others who may be found upon the premises does not make the warrants objectionable as general ones.

Griffin v. State, 232 Md. 389, 393 . In contending that one was a forbidden general warrant, counsel argued that “It is inconceivable that a slot machine could be concealed upon a person or inside a home safe.” The point is frivolous because it is quite conceivable that papers or documents relating to them may be found there. The direction of the Warrants to the Sheriff Appellant argues that § 551 of Article 27 grants exclusive power to- “policemen, constables and police officers” to serve and return warrants for search and seizure and that a sheriff is therefore without power to do so. The contention compels consideration of the nature of the power and duty of a sheriff.

The sheriff is a constitutional officer (Art. IV § 44) possessing common law powers and duties (Baltimore v. State, 15 Md. 376, 466, 488 ) by which he was “bound to execute all process issuing from the king’s court of justice.” 1 Bl. Comm. 344. Maryland embraced that common law duty by statutory mandate in § 5 of Article 87 requiring that the sheriff “shall serve and return all writs and process directed to him according to the command contained therein.” Constables, on the other hand, are without power to serve and enforce orders of court in the absence of statutory authority. Leavitt v. Leavitt, 135 Mass. 191, 194 ; Winkler v. State, 32 Ark. 539, 548 .

Historically, constables served process issued by justices of the peace. 1 Bl. Comm. 355. This common law distinction between sheriff and constable was preserved in Maryland by Constitution (Art. IV, § 42) and by Statute (Art. 20, § 3). Policemen and police officers historically had even lesser power in making service and return of process.

It has been said that the term “policeman” is the legal equivalent of “watchman” at common law. Porter v. State, 52 S. E. 283, 285 (Georgia); State v. Evans, 61 S. W. 590, 593 (Missouri). “Watchman” at common law was recognized as a “conservator of the peace” ⁴⁸⁷ who acquired his office by appointment from a constable. 1 Bl. Comm. 357. Manifestly, his powers would not exceed those of his creator.

LeGrand, C. J. in his concurring opinion in Baltimore v. State, supra, at page 482, et seq. discusses the kinship of “constables” and “police,” while pointing out the “constitutional” status of the former but only the “common-law” status of the latter. The contention that the legislature intended to prohibit the sheriff from the exercise of an usual and historic duty of his office is untenable. It can be made only on the basis that Art. 87, § 5, supra, was repealed by implication. It is a long established rule of statutory construction that repeals by implication “are not favored and will not be so held unless there is some express reference to the previous statute, or unless there is a manifest inconsistency in the two, or their provisions are so repugnant that they cannot stand together.” Green v. State, 170 Md. 134, 140 .

There is no such discord between Art. 87, § 5 and Art. 27, § 551. It must be assumed that the legislature knew that the sheriff already possessed full power to serve and return all process of the courts. It is clear therefore that Art. 27, § 551 intended only to enlarge the number and types of persons qualified to serve and return search and seizure warrants. It did not alter the sheriff’s ancient, historic function to serve and return the process of the courts.

The use in § 551 of the permissive word “may” rather than the compulsive words “shall” or “must” confirms this view. Shrout v. State, 238 Md. 170, 173 . Probable cause for issuance The appellant contends that “the basis for the issuance of the warrant must be within the personal knowledge of the applicant and cannot be certified by his oath or information and belief, even if the facts and sources of his information on which his belief was based, such as responsible official sources, were stated.” The essence of the appellant’s position is that the 1958 Amendment to Article 27, § 551, and certain decisions of the Court of Appeals in warrant cases, particularly Shrout v. State, supra, establish in Maryland a rule of law more stringent and demanding than the rule announced by the United States Supreme Court ⁴⁸⁸ in search warrant cases. We believe this position is not tenable.

In passing upon this question it is appropriate to point out that both the affidavit and application for the warrants allege violation of Article 27, § 264B. Under that section the mere possession of the proscribed article is itself a criminal offense. Probable cause has been clearly and succinctly defined as: “less than certainty or demonstration but more than suspicion or possibility.” Burrell v. State; 207 Md. 278 . The United States rule was declared in Jones v. United States, 362 U. S. 257 ; 4 L. Ed. 2d 697, 708 , as follows: “ ‘We conclude therefore that hearsay may be the basis for a •warrant.

We cannot say that there was so little basis for accepting the hearsay here that the Commissioner acted improperly. The Commissioner need not have been convinced of the presence of narcotics in the apartment. He might have found the affidavit insufficient and withheld his warrant. But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and tlmt is sufficient. * * * Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to skepticism than would be such a charge against one without such a history.’ (Emphasis supplied.)” The rule derived from Draper v. United States, 358 U. S. 307 ; 3 L. Ed. 2d 327 , itself not a search warrant case, but declared parallel because it arose under a statute requiring “probable cause” to exist before an arrest could be made.

The rule was discussed at length and fully adhered to in United States v. Ventresca, 380 U. S. 102 ; 13 L. Ed. 2d 684 , in which an appeal by the government from a decision adverse to a warrant produced reversal. It is conceded here that unless the reliable information acquired by Sheriff Jamieson from his informant could be considered by Judge Meloy in making his decision as to the existence of probable cause, the warrants are invalid. ⁴⁸⁹ The appellant relies heavily upon Shrout, supra, to support his contention. We hold it does not do so. The Court of Appeals made very clear in that case that its decision was not grounded upon a rejection of the use of reliable information as a factor in the determination of probable cause.

On the contrary, the Court at page 176 said: “Entirely apart from the information received from the informer, in our opinion, there were ample facts set forth in the affidavit to show probable cause for the issuance of the warrant.” Indeed, the Court of Appeals in that very case used language showing a leaning against rather than toward the appellant’s position. (See particularly pp. 176 and 177.) Close examination of this and other cases makes clear that the issue, now squarely before us, has never been determined in Maryland. However, the Court of Appeals in a number of cases has given manifest approval to general principles declared in Ventresco, supra; Jones, supra and Draper, supra 1 and this circumstance adds persuasively to the conclusion that the positions of Maryland and the United States are not disparate. The refusal of the Court of Appeals to permit the issuance of a warrant on hearsay from an unknown source as in Kapler v. State, 194 Md. 580 , announces no law special or peculiar to Maryland.

Aguilar v. Texas, 378 U. S. 108 ; 12 L. Ed. 2d 723 , is in full accord. But Ventresca, supra (at page 688 of 13 L. Ed. 2d) makes it crystal clear that “in Aguilar we recognized that ‘an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,’ so long as the magistrate is ‘informed of some of the underlying circumstances’ supporting the affiant’s conclusions.” [Italics supplied] The true state of the Maryland law appears precisely to par ⁴⁹⁰ allel the United States rule. It is very significant that Chief Judge Hammond, citing U. S. v. Ventresca, supra, with approval, chose to quote this passage from that decision in Henderson v. State, 243 Md. 342 , 347: “ ‘This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the “underlying circumstances” upon which that belief is based. See Aguilar v. Texas, supra [ 378 U. S. 114 , 12 L. Ed. 2d at 729 ].

Recital of some of the underlying circumstances in the affidavit is essential [fits1 it is under the Maryland statute] (the emphasized parenthetical words are Judge Hammond’s) if the magistrate is to perform his detached function