Spiering v. State

GETTY, Judge. On April 2, 1982, members of the Maryland State Police were conducting a surveillance of one Martin Bowman, a resident of Ridgely, Caroline County, Maryland. A confidential informant had advised the police that Bowman would be purchasing a quantity of marijuana that evening. At 7:00 P.M. Bowman was observed in a truck on Route 313.

Shortly thereafter, the truck stopped along the highway and the driver got out of the truck and walked into a wooded area. Bowman then drove the truck to the residence of Donald and Cathy Spiering, appellants herein, arriving at 7:38 P.M. At 7:52 P.M. Bowman left in the truck, returned to the wooded area where the first driver was waiting and at 8:05 P.M. the police stopped the vehicle and arrested Bowman for having in his possession two pounds of marijuana. Immediately after Bowman’s arrest, Trooper William Murphy instructed Trooper Richard Norman to maintain surveillance on the Spiering residence, to determine if anyone arrived at or left the residence, while Murphy went to obtain a search and seizure warrant for the premises. At approximately 8:30 P.M. Norman, accompanied by six other ⁴ officers, drove into the lane leading to the Spiering house, which has been described as an older type farmhouse surrounded by fields.

Upon their arrival at the back door of the dwelling, one of the officers present advised Donald Spiering that the house was being impounded pending the issuance of a search and seizure warrant that was in the process of being prepared. The basis of the search, Spiering was told, was that the police believed that violations of law, relating to controlled dangerous substances, were taking place on the premises. Cathy Spiering was taken into custody outside the home as she was observed “crouching down” in a nearby field. According to Cathy, she was walking the dog when the police approached with drawn guns, searched her and returned her to the house.

Both appellants were detained in the living room, but were permitted to go to the bathroom or kitchen upon request. A cursory search of the premises was conducted for safety purposes and although the officers “could hardly make a step throughout the house without tripping over a bag of marijuana,” no seizure took place until after the warrant was obtained. A request for consent to conduct a search was refused by appellants. The impoundment continued until approximately 11:30 P.M. when an officer returned with a search warrant.

Thereafter, a search uncovered quantities of marijuana, hashish, L.S.D. and currency totaling $2,320.00. Appellants were charged with various drug offenses and maintaining a common nuisance. Cathy elected a jury trial and Donald requested a court trial. A joint trial took place in the Circuit Court for Caroline County on January 7, 1983, and both were convicted of various counts of possession of controlled dangerous substances.

Donald Spiering was also convicted of manufacturing marijuana, and maintaining a common nuisance. Donald received a net sentence of six years and Cathy’s four year sentence was reduced by the suspension of two years of the term. This appeal followed. Appellants allege: ⁵ 1.

The trial court erred in denying appellants’ motion to suppress. 2. The trial court erred in imposing consecutive sentences upon Donald Spiering following his convictions for manufacturing and possession of marijuana with intent to distribute. Appellants’ argument on the suppression issue is two-fold. First, appellants insist that probable cause for the issuance of the warrant does not exist within the four corners of the warrant.

Second, appellants contend that the warrantless impoundment of their home for a period of three hours until a warrant was obtained constitutes a seizure within the meaning of the Fourth Amendment, and because the object of the impoundment was the securing of the evidence sought to be suppressed, the trial court’s ruling was error. The impoundment issue is one of first impression. Probable Cause The warrant application and affidavit contains the following facts: Friday, April 2,1982 - Affiant contacted by confidential informant who reported that he/she had personal knowledge that Bowman was to purchase marijuana later that day. Bowman would leave his residence at 6:00 P.M. 7:10 P.M. - Operator of a pickup truck and Bowman left Bowman’s residence in the truck. 7:12 P.M. - Operator of the truck entered a Texaco station and returned to the truck at 7:15 P.M. 7:80 P.M. - Truck stopped and operator went into the woods along the highway.

Bowman drove on in the truck. 7:38 P.M. - Bowman drove the truck onto the Spiering property, turning the lights off at the driveway entrance. 7:52 P.M. - Truck left the Spiering house and returned to the wooded area. 8:01 P.M. - Other subject returned to the truck and drove it to Route 813. Vehicle stopped, interior light came on and police observed a one pound bag of marijuana being passed between Bowman and the driver. 8:05 P.M. - Both subjects arrested and two pounds of marijuana confiscated. ⁶ The affiant, TFC W.O. Murphy, recited that he was experienced in investigating drug transactions, that the informant had proved to be reliable, and that Bowman’s activities in going to the Spiering residence alone is consistent with the practice of drug dealers who do not wish to reveal to their customers the identities of their suppliers. The Supreme Court in Illinois v. Gates, -U.S.-, 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), has approached probable cause in the context of “totality of the circumstances,” thereby departing from the more restrictive requirements articulated in Aguilar-Spinelli. 1 The factual predicate establishing probable cause in this case is sufficient to satisfy either test. We turn to the two-pronged test of “basis of knowledge” and “veracity.” The confidential informant is not identified beyond the attesting officer’s statement that he/she had proved to be reliable in the past.

The informant initiated the call, gave the name of the person who would be purchasing the drugs, specified that the sale involved marijuana, provided the exact date of the transaction and the approximate time thereof. The detailed information transmitted allows an inference of firsthand knowledge as a reasonable probability. See Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 (1959). Additionally,- the informant stated that the information was based upon personal knowledge.

The detail was sufficient for the magistrate to conclude that the basis of knowledge was supported by firsthand data arising above innuendo or rumor. “Veracity” is evident from independent police verification. The suspect was followed from his home within an hour of the time stated by the informant. He left his companion in the woods, proceeded to the Spiering residence, and twelve ⁷ minutes later was apprehended while examining two pounds of marijuana after rejoining his confederate. The actions of the police, standing alone, are sufficient to establish probable cause; coupled with the informant’s disclosures, authentication is reasonably demonstrated.

Appellants contend that the marijuana may have been in the truck from the beginning of the surveillance. That possibility exists, but probable cause for the issuance of a search warrant rests upon a common sense interpretation of facts contained in a sworn affidavit. What is to be satisfied at the warrant stage is the Fourth Amendment proscription of unreasonable searches and seizures; we are not dealing with the ultimate issue of guilt or innocence in considering the validity of the warrant. We hold that the trial judge’s decision denying the motion to suppress, as it relates to the sufficiency of the warrant, is supported by substantial evidence.

Impoundment Appellants’ secondary attack relates to the impoundment of their home for a three hour period prior to the issuance of the search warrant. Citing United States v. Allard, 2 appellants contend that the warrantless invasion of their home voids everything that followed. The State seeks to justify the intrusion based upon the 1980 Supreme Court case of Rawlings v. Kentucky. 3 A brief review of each decision is in order. In Rawlings the police were unsuccessfully searching a house for a person for whom they had an arrest warrant.

In the course of the search they smelled marijuana smoke and saw marijuana seeds. While two officers left to obtain a search warrant, other officers detained persons in the house stating that they could leave only if they consented to a ⁸ body search. Forty-five minutes later the officers returned with a search warrant which they read along with “Miranda” warnings to the three remaining occupants. Rawlings claimed ownership of certain controlled substances which one of the other occupants had earlier emptied out of her purse in response to an officer’s order.

Upon this admission, Rawlings was then searched and a large amount of cash was removed from his clothing. Charged with possession of the drugs with intent to distribute, Rawlings filed a motion to suppress both the drugs and the money. The Supreme Court affirmed the Supreme Court of Kentucky decision that appellant had no “standing” to challenge admission of the evidence. Because he had no reasonable expectation of freedom from intrusion into another person’s purse, Rawlings’ admission, after the Miranda warning, that he owned the drugs, justified the search of his person as incident to a lawful arrest based upon probable cause.

It is clear to us that neither the Kentucky Court nor the Supreme Court addressed the issue of whether the appellant’s admission to ownership of the drugs was the fruit of an unlawful detention. In Allard one group of agents had gone to appellant’s hotel room while another group was conducting a lawful search of a confederate’s home. The group in the hotel room determined to “stay there whatever Mr. Berg (the occupant) did or said” and to refuse to permit Berg to leave. The agents then determined to obtain a search warrant.

The United States Attorney was advised that the agents were in the room and would remain until the warrant was obtained. The United States Attorney prepared an application for a warrant which did not rely on any evidence