Soles v. State

Moylan, J., delivered the opinion of the Court. The appellant, Charles Calvin Soles, was the New York connection for a large-scale distribution operation for illicit drugs in Washington, D. C. After five days of activity in the District of Columbia, he left in the early morning hours of September 19, 1971, for a “midnight run” back to New York. Officer Terry Womack, of the ⁶⁵⁹ Vice Squad of the Metropolitan Police Department, was on automobile surveillance, waiting for the appellant to make his move from 30 Sheridan Street 1 in northeast Washington. He gave immediate pursuit and intercepted the appellant’s 1971 Pontiac Grandville moments after it had crossed the Maryland line into Prince George’s County.

A search of the trunk revealed a large quantity of “cutting” and packaging paraphernalia, $6700 in hidden cash, and enough high-quality cocaine to produce an estimated 3240 “dime bags” worth an estimated “street price” of $32,400. The appellant elected a court trial before Judge Ralph W. Powers in the Circuit Court for Prince George’s County. He was convicted 1) of possession of cocaine in sufficient quantity to indicate an intent to distribute and 2) of attempted bribery. He was sentenced to respective terms of twenty years and five years, to be served consecutively.

He attacks 1) the search, 2) the arrest, 3) the denial of an in-court lineup, and 4) the sufficiency of the evidence. The Automobile Search The appellant was alone in his automobile when he was stopped. He was arrested and ordered to alight from his vehicle. He was directed to produce the keys to the trunk, with which the police opened the locked trunk.

Underneath some clothing, they discovered a dark-colored briefcase. It was locked. After the appellant failed to produce a key for the briefcase, the police snapped it open. Much of the incriminating evidence was found inside the briefcase.

The rest had been found inside the locked trunk. In any event, the search could not qualify as a “search incident” to a lawful arrest, which must be limited in geographic scope to the person of the arrestee and the immediately surrounding area “which may fairly be deemed to be an extension of his person.” ⁶⁶⁰ Chimel v. California, 395 U. S. 752 ; Brown v. State, 15 Md. App. 584, 597-598 . If the warrantless search of the automobile is to pass constitutional muster, it must qualify rather under the so-called “automobile exception,” Carroll v. United States, 267 U. S. 132 , to the basic proposition that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.” Katz v. United States, 389 U. S. 347, 357 . The necessary conditions for such qualification are 1) probable cause to believe that the automobile contains evidence of crime and 2) exigent circumstances making the warrant procedure impractical and making the resort to the warrantless search reasonable and necessary.

Chambers v. Maroney, 399 U. S. 42 ; Coolidge v. New Hampshire, 403 U. S. 443 ; Peterson, Deal and Hunt v. State, 15 Md. App. 478, 491-492 . Probable Cause We take up first the quantitative analysis of probable cause, which involves, in turn, the qualitative analysis of hearsay information coming to Officer Womack from a police informant. Officer Womack was at home in Alexandria, Virginia, at approximately 12:30 a.m. on September 19, 1971, when he received a telephone call from one of his regular informants. That phone call triggered the police action of the next few hours and supplied the great bulk of the probable cause on which that action was predicated.

In making our constitutionally-mandated independent review of the Fourth Amendment questions before us, it becomes our duty to evaluate that informant and his information by the “two-pronged” test of Aguilar v. Texas, 378 U. S. 108 , as explicated by Spinelli v. United States, 393 U. S. 410 . The interpretations placed by the Twelfth Century Glossators upon the Institutes of Gaius and Justinian were not more extensive than have been our commen ⁶⁶¹ taries upon Aguilar and Spinelli . See, for example, Dawson v. State, 11 Md. App. 694 ; Moore v. State, 13 Md. App. 711 ; Holland v. State, 13 Md. App. 635 ; Dawson v. State, 14 Md. App. 18 ; Hudson v. State, 16 Md. App. 49 ; Kraft v. State, 16 Md. App. 347 ; Lomax v. State, 16 Md. App. 502 ; King and Mobley v. State, 16 Md. App. 546 ; Thompson v. State, 16 Md. App. 560 . We look first to the Aguilarian mandate that Officer Womack have furnished to the trial court, in this case in the course of a pretrial suppression hearing, “some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar , at 114.

It is the “credibility” aspect which concerns us here. 2 A. Credibility of Informant Officer Womack detailed for the trial court, at the suppression hearing, that he had worked with his informant for a number of months. On many occasions, he had received information from his informant as to narcotics activity within the Washington metropolitan area. This information included names, addresses and modes of operation of a number of known narcotics dealers in Washington. Some of this information was already known by Officer Womack.

His own information agreed with that furnished by the informant. Other information, not known to Officer Womack, was checked out by him and found to be true. On one occasion, the informant alerted Officer Womack to a private residence where drugs were being sold. Officer Womack went with the informant to the vicinity of that residence.

The officer searched the informant and found him to be free of any drugs or money. He then handed money to the informant and instructed him to go into the premises and to purchase narcotic drugs. The informant did so. An ⁶⁶² arrest was made as a result of this activity, and a large quantity of high-grade heroin was seized under a search warrant, which was based upon this same activity.

Officer Womack indicated that he had received reliable information from the informant on more than twenty occasions. We conclude, as did Judge Powers, that Officer Womack had shown his informant to be “credible.” Dawson v. State, 14 Md. App. 18 ; Moore v. State, supra; Holland v. State, supra. As will be referred to more fully in our discussion of the ultimate question of probable cause, Officer Womack had, in addition, independent knowledge which verified in part the story told by the informant. We deliberately eschew detailing that knowledge at this point, however, so as not to water down our holding that the internal recitation alone about the informant was sufficient to establish his credibility intrinsically.

Dawson v. State, 14 Md. App. at 32-35 . Spinelli described the buttressing technique, at 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 trustworthy as a tip which would pass Aguilar’s tests without independent corroboration?” The tip not having been “found inadequate under Aguilar," the extrinsic corroboration is redundant in this context.

B. Basis of Knowledge: Self-Verifying Detail The “basis of knowledge” prong of Aguilar’s “two-pronged” test requires that the officer pass on to the ⁶⁶³ trial judge “some of the underlying circumstances from which the informant concluded” that the evidence was where he claimed it would be. Aguilar , at 114. At one point in his cross-examination at the suppression hearing, Officer Womack gave the general response that his informant was speaking on the basis of personal knowledge. In his lengthier recital in chief of the information passed on to him by the informant, however, Officer Womack never established the pedigree of the information.

We lack the direct and explicit reassurances that could remove all doubt: “The informant told me that which he saw with his own eyes; that which he heard with his own ears; that which he touched with his own fingers; that which he smelled with his own nose.” Even failing such explicit reference to the observations of the informant’s own senses, we are yet not bereft. Spinelli points out that if the information is furnished in sufficient detail, it may, under Draper v. United States, 358 U. S. 307 , be “self-verifying,” on the theory that only a first-hand observer could ever possess such minute detail. It said, at 416-417: “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 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. ... A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” Measuring the hearsay information at bar against the “suitable benchmark” of Draper , as explicated by Spinelli , we conclude that it was sufficiently detailed to be “self-verifying” — sufficiently detailed to make implicit what ⁶⁶⁴ had not been made explicit: that the informant spoke from personal knowledge.

The informant described the appellant in the following detail: “A. The source described Mr. Soles. He gave— told me that the name of the subject was Soles. He didn’t know any other name. Just Soles.

He described Mr. Soles as being approximately five foot eight inches in height, approximately 160 pounds, as being a Negro male, approximately in his early 30’s. I believe one age was 35 years of age. He said he had a receding hairline slightly, a small bush cut. He said his hair wasn’t a big bush.

He said it was short. He said he had a goatee and he was light skinned.” The informant described the appellant’s automobile in the following detail: “A. It was a late model blue convertible with a white top bearing New York tags, I believe WQ 9579, something like that; WX 9579. My recollection isn’t real good on that.” The informant described the operation generally and the cocaine specifically in the following detail: “THE WITNESS: The source called me at home and related to me that he had information about a male subject from New York who was a major distributor of cocaine to several known narcotics dealers in Washington. He related to me that this source was named Soles.

He also indicated to me that he had given the tag number of Soles’ car to my partner, Officer Robert Polzin, earlier that week, and in the conversation with this source he related to me that Soles had in excess of an eighth of a kilo of cocaine in his trunk of his car inside a briefcase. He said this cocaine would be inside a glass jar. ⁶⁶⁵ He stated that Soles had several thousand dollars in cash on him, which were the assets from the sale of part of the cocaine he brought down from New York. He stated he was armed with a pistol, and stated that he would be leaving Washington for New York before three o’clock that evening.” The trial judge, “when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way,” Spinelli , at 417,— that is, via first-hand observation. Upon our independent review, we draw such an inference.

C. The Ultimate Question of Probable Cause The informant having been found “credible” and a sound “basis of knowledge” having been established for his information, that information is properly in the probable cause equation. Officer Womack had, therefore, properly credited and reliable information to the effect that Soles (named and minutely described) was a major distributor of hardcore narcotics out of New York to several known narcotics dealers in Washington. He had information that Soles would be leaving 30 Sheridan Street to return to New York in a late model blue convertible with a white top bearing New York tags WQ 9579 or WX 9579 at some time “before 3 o’clock” during the early morning of September 19, 1971. He had information that “in excess of an eighth of a kilo of cocaine” would be inside a glass jar inside a briefcase inside the trunk of the automobile.

He had information that Soles would be carrying several thousand dollars in cash, which were assets from the sale of drugs in Washington. He had information that Soles would be armed with a pistol. Three additional items of independent police information, although purely cumulative in their ancillary function of verifying the credibility of an informant whose ⁶⁶⁶ credibility needed no further verification, are now properly considered in their primary function of contributing directly and substantively to the sum total of probable cause. 1. Officer Robert Polzin, a colleague of Officer Womack, had, pursuant to confidential information which had been furnished to him, visited the unit block of Sheridan Street either three or four days prior to September 19.

The information furnished to Officer Polzin, not meeting the standards of Aguilar , will not be considered. Regardless of what prompted Officer Polzin to go to that unit block of Sheridan Street, however, he did personally observe an automobile parked in that block in close proximity to 30 Sheridan Street, which matched in every detail that of the appellant. That personal observation will be considered. 2. Officer Womack knew, of his own knowledge, that 30 Sheridan Street was the residence of one Joyce Jones, otherwise known as “Stud Joe.” 3 He knew Joyce Jones to be a “major narcotics distributor in Washington.” He knew that the Narcotics Squad of the Metropolitan Police Department had arrested Miss Jones on a number of occasions for narcotics violations. 3.

At some time between 2:15 and 2:30 a.m. on September 19, the police team arrived on station. Officer Polzin, along with Sgt. Alan Simmers, was in plain clothes and parked in an unmarked car close enough to observe 30 Sheridan Street. Officer Womack, with a uniformed officer at the wheel, was in a marked police vehicle several blocks away.

Both vehicles were in constant radio communication with each other. The appellant’s car arrived and parked in front of 30 Sheridan Street at 2:40 ⁶⁶⁷ a.m. A male figure was seen to enter the house. The appellant left the house ten minutes later and entered the car.

He drove for several blocks on Sheridan Street, turned onto Eastern Avenue, and within several blocks was at the Maryland line at the point where Eastern Avenue meets New Hampshire Avenue. He turned northbound onto New Hampshire Avenue. By that time, the marked police vehicle, in which Officer Womack was riding, had maneuvered into position behind Officer Polzin’s unmarked police car which was “tailing” the appellant. Officer Womack’s vehicle moved forward and immediately intercepted the appellant’s vehicle.

The appellant, matching his description, was at the wheel. We are persuaded that at that point, which is the relevant point for measurement, Officer Womack had probable cause to believe that the appellant’s automobile contained cocaine and other evidence of narcotics violations. Exigent Circumstances Probable cause having been established, we look to the question of exigency. On the record before us, the only information properly available to the police prior to 12:30 a.m. on September 19, was that a late model blue convertible with New York license tags was on a single occasion parked in the unit block of Sheridan Street.

That was palpably not enough to establish probable cause for an automobile search. The threshold of probable cause was crossed only with the call to Officer Womack at 12:30 a.m. on September 19. At that point, Womack was at his home in Alexandria. Officer Polzin was also at home.

The information from the informant was that the appellant would be moving at some time “before 3 a.m.” Even in the face of such exigency, Officer Polzin placed a telephone call to Assistant United States Attorney Robert Crimmins, who was at home in bed. Mr. Crimmins advised the officer to proceed against the appellant and his