Trussell v. State

²⁵ MOYLAN, Judge. The appellant, Stephen Alexander Trussed, was convicted by a Harford County jury, presided over by Judge Cypert O. Whitfill, of 1) possession of cocaine with intent to distribute; 2) possession of marijuana; and 3) possession of LSD. Upon this appeal, he raises five contentions: 1) That the judge, having earlier issued the search warrant, should have recused himself from ruling on the suppression motion; 2) That the affidavit in support of the search warrant did not demonstrate probable cause; 3) That the evidence was not legally sufficient to sustain the convictions; 4) That a mistrial should have been declared when a question from a juror demonstrated prejudice on the part of that juror; and 5) That the judge prejudiced the jury when he redefined a question asked by the jury and volunteered an answer that went beyond the question. Competence of Warrant-Issuing Judge to Hear Suppression Motion The appellant’s first claim is that Judge Whitfill was guilty of an abuse of discretion when he refused to recuse himself from ruling on the appellant’s motion to suppress physical evidence.

It was Judge Whitfill who issued the search and seizure warrant on June 5, 1984. It was Judge Whitfill who presided over the suppression hearing, challenging that warrant, on October 10, 1984. The unilluminating, single-paragraph challenge to the failure of Judge Whitfill to recuse himself is devoid of any citation to case authority or legal treatise whatsoever. There is simply the bald assertion that "it would be virtually impossible to be objective where he was sitting on an appeal of his own decision that the warrant was valid on its face.” Notwithstanding the skimpiness of the challenge, it ²⁶ is an important issue that could recur and is, therefore, worthy of more than summary resolution.

Precisely the same challenge was before the Court in Peaper and Lowe v. State, 14 Md.App. 201, 208 , 286 A.2d 176 (1972), cert. denied, 409 U.S. 987 , 93 S.Ct. 342 , 34 L.Ed.2d 253 , where both appellants contended “that they were denied due process of law because the trial judge who reviewed the validity of the search warrant was the very judge who had issued that warrant in the first instance.” Our literal holding in that case was that the point had not been preserved for appellate review under Maryland Rule 1085. By way of deliberate and well-considered dicta, however, we indicated that we would have found the contention without merit if it had been properly before us. We stated unequivocally, at 14 Md.App. 209 , 286 A.2d 176 : “[AJbsent a showing of bias or prejudice, the mere fact that a judge issued the warrant would not preclude him from sitting either at a suppression hearing dealing with that warrant or at the trial upon the merits.” We looked, by way of analogy, to the landmark decision of the Court of Appeals in State v. Hutchinson, 260 Md. 227 , 271 A.2d 641 (1970). Although involving the impact of knowledge of a confession upon the capacity of a judge to be a neutral fact finder, the analysis of the Court, in holding that a judge was not thereby disqualified, was one that “goes to the very marrow of the role, function, and capacity of the judge in our legal system.” Id.

We went on to consider the persuasive authority from sister jurisdictions, summarizing that authority at 14 Md.App. 209 -210, 286 A.2d 176 : “Although only implicit in the Maryland case law, the issue has been resolved directly and explicitly that a judge is not disqualified from later participation in a case, even where the suppression of physical evidence is the key issue, by virtue of the fact that he issued the search and seizure warrant. Waupoose v. State, [ 46 Wis.2d 257 ], 174 N.W.2d 503, 504 (Wisc.1970); Arnold v. Commonwealth, 421 S.W.2d 366, 366-367 (Ky.1967); State ex ²⁷ rel. French v. Hendricks Superior Court, [ 252 Ind. 213 ], 247 N.E.2d 519, 525 (Indiana 1969); State v. Smith, [ 113 N.J.Super. 120 ], 273 A.2d 68, 78 (N.J.1971); State v. Toce, [6 Conn.Cir. 192], 269 A.2d 421, 422-423 (Conn.1969); Irwin v. State, 441 S.W.2d 203, 208-209 (Texas 1969).” Indeed, the same principle manifests itself in a wide variety of applications. Whenever a judge is called upon to reconsider an earlier ruling and most of the time when a judge is asked to render a judgment n.o.v. or to grant a motion for a new trial, the judge is being called upon to review and possibly to reverse an earlier decision made by that judge.

It has never been held that there was any conflict of interest or other impropriety in such situations. We can find no dissenting voice from the broad consensus that a judge, in issuing a search warrant, is not thereby disqualified from presiding over the suppression hearing which will review that warrant. In Hawkins v. State, 586 S.W.2d 465 (1979), the Supreme Court of Tennessee held that a statute that authorizes a judge to hear a challenge to the warrant which he earlier issued is not unconstitutional. In United States v. Cansdale, 7 M.J. 143 (C.M.A.1979), the United States Court of Military Appeals surveyed both the state and federal case law and concluded, at 145, that “many cases approve the concept that a trial judge is not disqualified merely because he must rule upon the validity of a search conducted pursuant to a warrant issued by him.” It found no case holding to the contrary.

In State v. Smith, 113 N.J.Super. 120 , 273 A.2d 68 (1971), the New Jersey Appellate Division not only approved the procedure but explained the different natures of the two judicial determinations, at 273 A.2d 78 : “The action in issuing the warrant is ex parte and merely appraises the prima facie showing of probable cause. The motion proceeding is adversarial, and the judge adjudicates all questions of law and fact posed on the challenge of the validity of the warrant.” ²⁸ See also State v. Cooper, 52 Ohio St.2d 163 , 370 N.E.2d 725 (1977), vacated in part on other grounds, Cooper v. Ohio, 438 U.S. 911 , 98 S.Ct. 3137 , 57 L.Ed.2d 1157 (1978). What is required for a judge to be compelled to recuse himself is the presence of bias. An excellent analysis of bias, as a term of art within the contemplation of recusal requirements, is found in United States v. Garramone, 374 F.Supp. 256, 258 (E.D.Pa.1974): “The facts do not establish any personal bias or prejudice on the part of this Court____The affidavit must establish a bias or prejudice of an extra-judicial origin, a bias that has been acquired outside the four walls of the courtroom.

Adverse judicial rulings or prior judicial exposure to the parties or questions are not sufficient to establish personal bias or prejudice.” See also State v. Toce, 6 Conn.Cir.Ct. 192 , 269 A.2d 421, 422 (1969). As but a slight variation on the same theme, a number of state court decisions have held that a judge, by virtue of having issued the search warrant in the case, is not thereby disqualified from presiding over the trial upon the merits. State v. Brown, 20 N.C.App. 413 , 201 S.E.2d 527 (1974); State v. Knoblock, 44 Wis.2d 130 , 170 N.W.2d 781 (1969); State ex. rel. French v. Hendricks Superior Court, 252 Ind. 213 , 247 N.E.2d 519 (1969); Sanders v. State, 649 S.W.2d 59 (Tex.App. 1st Dist.1982), overruled on other grounds, 658 S.W.2d 572, 580 (Tex.Crim.App.1983).

The only qualification on this eligibility of the warrant-issuing judge to sit at later stages of the same case is the rare situation dealt with in Coslow v. State, 490 P.2d 1116 (Okla.Crim.App.1971). Where the warrant-issuing judge is going to be called as a witness in a subsequent proceeding, his status as a witness dictates that another judge should be assigned to hear the case. Judge Whitfill was not called as a witness in the case now under review. We hold that the fact that a judge has issued a warrant does not disqualify that judge from presiding over ²⁹ a subsequent suppression hearing involving the validity of that warrant.

Under the circumstances, Judge Whitfill obviously committed no error. Probable Cause for the Search Warrant The appellant next complains that Judge Whitfill erroneously failed to suppress all of the physical evidence. The search and seizure in question was executed pursuant to a warrant that had been issued by Judge Whitfill on June 5, 1984. Even if the warrant had been technically lacking in probable cause, the reliance of the executing officers upon the presumptive validity of the warrant would have exempted the search from the sanctions of the Exclusionary Rule.

Massachusetts v. Sheppard, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984); United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984). The warrant was not, however, deficient. Under the “totality of circumstances” approach for reviewing warrants now mandated by Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), the reviewing judge does not (at the suppression hearing level or at the appellate level) make a de novo determination of probable cause but simply determines whether there was a “substantial basis” for the warrant-issuing magistrate’s determination that probable cause existed. Illinois v. Gates substituted this looser approach for the earlier and more rigorous “two-pronged test” 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 warrant application before us, however, would have passed muster even under the more rigorous standard. A fortiori, it is good under the less demanding standard. A word about Aguilar and Spinelli is appropriate. As valuable case law, they are not dead.

They have simply been reduced from “constitutionally binding” stature to “helpful guidelines” stature. Illinois v. Gates determined that it was inappropriate, on the probable cause issue, to ³⁰ insist that the rigorous standards mandated by Aguilar and Spinelli and their progeny be rigidly applied. The flexibility of the “totality of circumstances” approach was more desirable in assessing these ex parte decisions that are but part of the preliminary, investigative process. The analytic framework provided by Aguilar and Spinelli , however, continues to be of service in helping judges to understand what they should look for as they review a warrant application in the first instance.

As was discussed in R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure (1985 Supp.), at 40-41: “The Supreme Court made it very clear, however, that ‘an informant’s “veracity,” “reliability,” and “basis of knowledge” are all highly relevant in determining the value of his report.’ The thrust of the change wrought by the Gates decision was to avoid treating ‘veracity’ and ‘basis of knowledge’ as ‘entirely separate and independent requirements to be rigidly exacted in every case.’ In place of ‘rigid compartmentalization of the inquiries,’ the Court directed that these questions ‘be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place.’ As an aid, therefore, in understanding the nature and purpose of the magistrate’s inquiry, [Aguilar and Spinelli ] should continue to provide that ‘useful illumination’ referred to by the Supreme Court.” Aguilar’s “veracity prong” dealt with the issue of what it was in a warrant application that might persuade the warrant-issuing judge that a police officer’s secondary source was worthy of belief. A big distinction in that regard was whether the secondary source (sometimes called the informant) was from the criminal milieu, and therefore inherently suspect, or was a citizen-informant, whose very status militated toward a finding of trustworthiness. In this case, two of Corporal Bane’s sources were described as “concerned citizen-informants” who “wished to remain anony ³¹ mous.” Corporal Bane elaborated further on the status of these two sources as citizen-informants: “The two concerned citizen-informants are both members of the West Riding Community, United States and Maryland citizens, hold full-time jobs, are on the Harford County Voters’ Register and do not have any criminal record. Neither of the concerned informants is receiving any compensation or remuneration for this information.” We spoke of the inherent credibility of the citizen-informant, as contrasted with the more suspect police “stool pigeon,” in King and Mobley v. State, 16 Md.App. 546, 554-555 , 298 A.2d 446 450 (1973): “It was made clear in Dawson v. State, 14 Md.App. 18, 33-34 , 284 A.2d 861 , that the strictures of Aguilar v. Texas, 378 U.S. 108 [ 84 S.Ct. 1509 ], and Spinelli v. United States, 393 U.S. 410 [ 89 S.Ct. 584 ], ‘are aimed primarily at unnamed police “informers” rather than at that broad class of secondary sources who are the victims of crime, the disinterested witnesses of crime, other disinterested civilian sources of information or other law enforcement officers.

The members of this broad class are generally, but not universally, named. They are not from the criminal milieu.’ Dawson , [14 Md.App.] p. 33 [ 284 A.2d 861 ].” In terms of what Aguilar-Spinelli dubbed the “veracity prong,” the two citizen-informants posed no problem. Of minimal significance but throwing some light on the general behavioral pattern of the appellant, the two citizen-informants revealed that they had been at a party at the appellant’s residence “three or four years ago” when the appellant openly stated that “if anyone wanted to smoke pot,” the marijuana was upstairs. This information, of course, was the product of direct observation.

More significantly, one of the citizen-informants had been in more recent conversation “with a number of neighborhood teenagers.” The teenagers reported that the appellant “was selling marijuana