Shoemaker v. State

⁴⁶⁵ Moylan, J., delivered the opinion of the Court. A long-range and highly sophisticated investigation into a widespread prostitution organization, operating behind the front of a series of massage parlors, culminated in the conviction of the appellants, Gary Maynard Shoemaker and Benjamin Katz, on eleven related conspiracy counts and twenty-nine counts of receiving the earnings of prostitutes. Five of the seven appellate contentions now raised deal with the constitutionality of a search and seizure conducted in Anne Arundel County on August 30,1979 at the home of the appellant Shoemaker. Those search and seizure issues are as follows: 1.

Whether probable cause existed for the issuance of the warrant; 2. Whether that probable cause was stale; 3. Whether the search warrant was invalid because it was based upon facts not within the personal knowledge of the applicant; 4. Whether the warrant was, on its face, an unconstitutional general warrant; and 5.

Whether evidence was seized under the warrant that had not been particularly described. Both the affidavit for the search warrant now in question and the evidence at the trial on the merits revealed an extensive prostitution operation both in Baltimore City and in a Hagerstown branch office. The Kingpin of the operation was a co-conspirator, Charles "Eddie” Elmore, who was indicted along with the appellants but entered into a negotiated plea of guilty. The appellants were shown to be partners and high-level functionaries in the operation.

The conspiracy also embraced a general manager, five local managers at four of the retail outlets, and a legion of unlicensed masseuse-prostitutes. On August 30, 1979, a series of simultaneous searches were executed at, inter alia, (1) the Inner Circle Health Spa, in Baltimore City; (2) the Geisha House, in Baltimore City; (3) the Cat’s Pajamas, in Baltimore City; (4) the home of the ⁴⁶⁶ appellant Katz, in Baltimore City; and (5) the home of the appellant Shoemaker, in Anne Arundel County. We are concerned on this appeal only with the search executed at the home of the appellant Shoemaker in Anne Arundel County. The Standing of the Appellant Katz The State now challenges, belatedly we hold, the standing of the appellant Katz to object to the search of the home of the appellant Shoemaker.

Had such a challenge been timely and unequivocally raised, it might well have prevailed. Although such a challenge was raised, successfully we note, with respect to two other codefendants, it was not clearly raised (unless arguably by the most oblique of generalities) with respect to the appellant Katz. Since the State acquiesced in reaching the Fourth Amendment merits with respect to the appellant Katz and since the very avoidance of unnecessary litigation which is a key purpose of the standing requirement was not accomplished, the State will not be heard to raise the issue now. Steagald v. United States, 451 U.S. 204 , 101 S.Ct. 1642 , 68 L.Ed.2d 38 (1981); Combs v. United States, 408 U.S. 224 , 92 S.Ct. 2284 , 33 L.Ed.2d 308 (1972).

The victory is, however, hollow since, even granted standing by default, Katz loses, along with Shoemaker, on the Fourth Amendment merits. The Probable Cause for the Issuance of the Warrant It was a Baltimore City jury, presided over by Judge Peter D. Ward, that found the appellants guilty. It was also Judge Ward, presiding at the pretrial suppression hearing, who found that there was probable cause to support the issuance of the warrant for the search of Shoemaker’s home in Anne Arundel County. We hold that Judge Ward was eminently correct in that finding.

Our discussion and our holdings on the various Fourth Amendment issues here involved are confined to the specific subissues raised and argued by the appellants. Those ⁴⁶⁷ holdings, therefore, intimate nothing with respect to other possible issues (if there be any) not specifically raised before us. The warrant application here in question was a model of careful detail and is worthy of emulation throughout the law enforcement ranks. The primary applicant for the warrants that were to issue in Baltimore City was Detective Eric P. Husok, a two-year veteran of the Vice Unit of the Criminal Investigation Division of the Baltimore City Police Department.

At the outset of his detailed, sixteen-page recitation of the probable cause that had been gathered by him and other members of the police team, he set forth his expertise as a vice investigator. He held a Bachelor of Science degree in Criminal Justice, was a graduate of the Institute of Contemporary Corrections and Behavioral Sciences, had received special training from the Federal Drug Enforcement Agency, and had attended departmental in-service training seminars conducted by the Criminal Investigation Division with heavy emphasis on the subject of probable cause in support of search and seizure warrants. He had participated in over thirty vice raids and in the arrest of over two hundred persons for vice-related offenses. The applicant for the Anne Arundel County warrant now in issue was Detective Gary L. Barr, a five-year veteran with the Anne Arundel County Police Department.

At the outset of his separate application, he recited his own expertise. That included intensive on-the-job training in the field of illegal prostitution activities and operations. Detective Barr had also completed courses in vice investigation sponsored by the Atlantic City Police Department and the University of Delaware, and had attended a specialized school conducted by the Baltimore County Police Training Center on telephonic interceptions. Detective Barr holds an Associate of Arts degree in Law Enforcement and has been certified by the Maryland Police Training Commission as an instructor in the areas of illegal gambling, organized crime and other vice-related investigations.

He recited his familiarity with the modus operandi of prostitution rings in the State of ⁴⁶⁸ Maryland. He incorporated into the application for the warrant in Anne Arundel County the full sixteen-page application from Baltimore City as well as other supporting documents. The competence of Detective Husok and Detective Barr to interpret what might otherwise be ambiguous observations was well established. It is undisputed that in measuring probable cause, the warrant-issuing judge and the reviewing judge may give significance to such expert interpretation.

Although there was significant corroborative data, which will be hereinafter discussed, the heart of the probable cause in this case was the information related to the police by one William Larsen. He had been intimately involved over a period of years with the criminal activities under investigation. He had worked for Charles Elmore for approximately fouryears and had served as either president or managing officer of several of the Maryland corporations that operated the massage parlors and body painting studios involved in this case. Since William Larsen did not appear personally before the warrant-issuing judge but passed his information along through the conduit of Detective Husok, he was classically a "secondary source” within the contemplation 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).

The appellants here have chosen to attack the probable cause for the search of Shoemaker’s home by asking whether William Larsen, as a secondary source, passes muster according to the two-pronged test of Aguilar . That now classic test established two distinct requirements: "Although an affidavit may be based .on hearsay information and need not reflect the direct personal observations of the affiant, ... the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose ⁴⁶⁹ identity need not be disclosed, ... was 'credible’ or his information 'reliable.’ ” 378 U.S. at 114-115 . That test simply points to the two constituent parts of the decisional process that always must take place whenever a judge is required to make a finding of fact, whether on the subject of probable cause, whether on the subject of guilt or innocence or whether on any other subject. The judge must (1) assess the credibility of the source of information and (2) determine whether the source is offering competent information or just passing along some unsubstantiated rumor or flight of fancy.

The two prongs of Aguilar — the veracity prong and the basis of knowledge prong — are simply a formal way of referring to the very fundamental questions that a judge, consciously or subconsciously, always asks himself about a witness, an affiant, an informant, or any other source of information: (1) Why should I believe him? (2) Does he know what he is talking about? We first spoke of the essential nature of this analysis in Dawson v. State, 11 Md.App. 694, 698 , 276 A.2d 680 : "Whether the information being evaluated is the direct observation of the affiant or is hearsay information, the issuing magistrate is required to perform the same intellectual surgery. In determining the existence vel non of probable cause, the magistrate must make two distinct determinations.

The number and the nature of these determinations do not vary, whether the specimen being analyzed is direct observation or hearsay information. He must: (1) Evaluate the truthfulness of the source of the information; and (2) Evaluate the adequacy of the factual premises furnished by that source to support the validity of the source’s conclusion.” ⁴⁷⁰ a. The Basis of Knowledge of the Informant William Larsen The basis-of-knowledge prong seeks to avoid the danger that even a reliable informant might be passing on, through the conduit of the police affiant, a bit of barroom gossip or a mere underworld rumor. In probing for a more sure basis of knowledge, we seek some assurance that the informant speaks from personal knowledge, that he is passing along what he perceived with his senses.

The secondary source, William Larsen, passes that basis-of-knowledge test in this case many times over. Our only hesitancy in reciting, even by way of partial summary, the richness of that knowledge and of that basis of knowledge in this case is our fear that an uncritical reader will mistake this mere description of the abundance before us as an unrealistically high standard by which future recitations should be judged. To dispel that notion in advance, we point out that it will be exceedingly rare that an application remotely approaches this one in establishing the basis of the informant’s knowledge. Larsen went to work for Elmore in approximately 1975.

His initial job was to transport females from the Cat’s Pajamas in Washington, D.C. to various private residences, motels and hotels where they were to meet customers who had phoned in for massages. From conversations with Elmore and with the girls themselves, he learned that the primary purpose of these outcalls was to engage in acts of prostitution with the customers. Shortly thereafter, Larsen became the manager of the Washington, D.C. Cat’s Pajamas, where he had the daily opportunity to observe the activities of the females who were to engage in prostitution. Elmore spoke openly to him about prostitution as the primary function of the business, and they conspired regularly as to methods to avoid police interference.

When in 1977 Elmore was arrested for bribery, Larsen become the general manager and the president not simply of the Washington operation but of (1) H.N., Inc., which operated the Geisha House in Hagerstown; (2) General Promotions, which operated the Cat’s Pajamas in Baltimore and in Washington, D.C.; (3) ⁴⁷¹ Universal Promotions, Ltd., which operated the Cat’s Pajamas in Baltimore; and (4) Circle Spas, Inc., which operated the Inner Circle in Baltimore. 1 With those expanded responsibilities, Larsen traveled to all of the establishments in question, supervised the hiring and firing of the masseuses and saw to the proper collection, through local managers, of the money and of the business records. He was in regular contact with both Elmore and Elmore’s partner, the appellant Shoemaker. Larsen described the interviewing process for prospective employees. The "girls” were asked what they thought their duties would involve.

When they acknowledged that commercial sex was an integral part of it, they were asked to engage in an act of sex with the interviewers to help insure that the prospective employees were not undercover policewomen. At all of the establishments in question, the employees received no salary but only "tips.” The initial fee from the customer, collected in cash or by Master Charge or Visa credit card, was all kept by the establishment. At three of the retail outlets, the initial service delivered was a massage; at the Hagerstown outlet, it was the opportunity for the customer to engage in "body painting” upon the naked recipient of the paint; and at the Washington Cat’s Pajamas, it was a "social encounter.” The females would then solicit for various acts of prostitution in return for "tips.” This was their only remuneration. Larsen then narrowed the focus and pinpointed his observations with respect to each of the five customer outlets under investigation.

With regard to the Geisha House in Hagerstown, Larsen described how the customer is met by the local manager, Russell Eugene Frye. He detailed how the money for the body painting session is taken from the customer and noted on a standard daily activity form. He described how the money is then deposited in a small safe in the front room, a safe to which the local manager has no key. He detailed the storage of the daily activity forms and ⁴⁷² of the charge account slips.

He repeated numerous conversations with female employees at that establishment, with the local manager, Frye, and with both Elmore and Shoemaker about that establishment. With reference to the Cat’s Pajamas in Baltimore, Larsen described his numerous visits to that establishment and gave a detailed description of its physical appearance and of the procedure for logging in the customers and accepting payment. He described numerous conversations with Elmore, Shoemaker and the female employees at this establishment, confirming and regulating engagement in acts of prostitution. He recounted how this establishment is also the base of operations for an outcall service.

With respect to the Inner Circle Health Spa, Larsen recited with the same detail the same aspects of that operation. Larsen gave similarly detailed information with respect to the Geisha House in Baltimore and the Cat’s Pajamas in Washington. He described further how Elmore and Shoemaker always picked up in person, generally on a weekly basis, the receipts from the three Baltimore establishments. He recounted how, he, Larsen, would pick up the weekly receipts from Washington and Hagerstown and deliver them in person to either Elmore or Shoemaker.

He described, with respect to the deliveries to Shoemaker, trips to Shoemaker’s home in Anne Arundel County. He described the small office in that home and the desk wherein Shoemaker kept the records (and no other records) from this business. He described the bonuses he would receive from Shoemaker, always in denominations under $100, and of how the $100 bills were taken by Shoemaker for deposit in a safe deposit box at a Glen Burnie bank. Larsen accompanied Shoemaker to the safe deposit box on several occasions and observed that it was full of $100 bills.

Larsen also detailed his association with the appellant Katz, the bookkeeper for the massage parlor operation. He described how Katz was fully knowledgeable about the whole nature of the business and how he participated as ⁴⁷³ more than a bookkeeper. He recounted how Katz described his own efforts as one of keeping the books in such a manner as to conceal money illegitimately obtained. He described several other techniques designed by Katz to evade both taxes and criminal investigation.

On a full-time basis over a period of four years, the informant Larsen could not have had a more sure or direct basis of knowledge for the information he passed on, through Detective Husok, to the warrant-issuing judge. b. The Veracity of the Informant William Larsen Aguilar’s veracity prong, by way of contrast, is concerned not with how the informant knows the thing he describes but with whether the informant is worthy of belief. In the case at bar, three separate avenues move us in the direction of the informant Larsen’s believability. The first is that Larsen is named and identified.

The healthy skepticism of Aguilar and Spinelli on the subject of believability is aimed at the unnamed informer hiding in his cloak of anonymity. It is the professional stool pigeon, trading information for a few dollars or a cheap fix, who compels our closer constitutional scrutiny. In dealing with this aspect of the problem, we noted in Dawson v. State, supra, at 11 Md.App. 699 : "[I]n dealing with a named source, the very naming of the source and the relationship of the source to the observed information may go a long way (or even be sufficient unto itself), under the facts of a particular case, to establish the credibility of that source or the reliability of his information. Kapler v. State, 194 Md. 580 ; Ward v. State, 9 Md.App. 583, 591-592 ; Grimm v. State, 6 Md.App. 321, 328 .

See also Taylor v. State, 238 Md. 424 ; Jones v. State, 242 Md. 95 ; Knight v. State, 7 Md.App. 282 .” Although the naming and identifying of the secondary source in this case helps, it is probably not in this case enough standing alone to establish veracity. What we observed in Dawson and in like contexts about the ⁴⁷⁴ sufficiency of naming the informant was with respect to those secondary sources who were "citizen informers,” with no motive to lie, rather than with respect to those drawn from the criminal milieu. The informant Larsen in this case was not a citizen-informer but was a fully culpable participant in the criminal activities. His revelations to the police were inferentially in return for some sort of immunity and they invite skepticism, though not to the degree they might if he had remained totally anonymous.

That brings us to the second avenue pointing toward his believability. His relevations constituted a significant declaration against penal interest. The plurality opinion of Chief Justice Burger in United States v. Harris, 403 U.S. 573 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971), argue that a declaration against penal interest, made by one who had participated in the crime in question, could in and of itself establish the probable veracity of the source. Although, as a mere plurality opinion, United States v. Harris was not constitutionally binding, Maryland has been persuaded by it and has independently adopted the view espoused by the Harris plurality.

Merrick v. State, 283 Md. 1 , 389 A.2d 328 . Although these two avenues in combination would probably suffice to satisfy Aguilar’s veracity prong, it is not necessary in this case to make so close a decision. We have bountifully available a third broad avenue pointing toward veracity, that of independent police verification. When a structural flaw inheres in Aguilar’s veracity prong, Spinelli makes available to us the buttressing technique of "independent police verification.” The Supreme Court described the technique, at 393 U.S. 415 : "If the tip is found inadequate under Aguilar , the other allegations which corroborate the information contained in the hearsay report should then be considered.

At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate’s decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as ⁴⁷⁵ trustworthy as a tip which would pass Aguilar’s tests without independent corroboration?” We ourselves spoke of this technique in Stanley v. State, 19 Md.App. 507, 529 , 313 A.2d 847 : "When independent police observations have verified part of the story told by an informant, that corroboration lends credence to the remaining unverified portion of the story by demonstrating that the informant has, to the extent tested, spoken truly. Hignut v. State, 17 Md.App. 399, 411 , 303 A.2d 173 . The verification helps to demonstrate his 'credibility.’ Present good performance shows him to be probably 'credible’ just as surely as does past good performance.” In this case, the independent verification of Larsen’s story was massive.

Records were appended to the warrant application from the Department of Motor Vehicles, confirming the addresses at which both Elmore and Shoemaker lived and confirming the descriptions of the automobiles they drove. Articles of Incorporation of the various corporations used in this operation were also collected by the police and appended to the application. They corroborated fully the corporate structure recited by Larsen. A letter from the appellant Katz’s father confirmed Katz’s place of business.

The police also recounted in the application for the warrant an independent interview with Russell Eugene Frye, the local manager of the Geisha House in Hagerstown. He described the method of payment by the customers for a body painting session, the recordkeeping procedure and procedure for depositing money in the safe. He described the weekly pick-up of the money by Larsen, Shoemaker or Elmore. Frye confirmed in every detail the story told by Larsen, including his personal conversations and observations that every female employed at the Hagerstown establishment engages in prostitution with customers.

Again by way of independent corroboration with respect to the Cat’s Pajamas in Baltimore, the Baltimore City Police ⁴⁷⁶ Department arrested a total of three females for prostitution when they were operating on an outcall basis from the Cat’s Pajamas. In 1979 as well, the