Ward v. State

Thompson, J., delivered the opinion of the Court. On May 25,1977, Larry Stephen Ward, the appellant, was convicted in the Criminal Court of Baltimore of violating Md. Code, Art. 27, §§ 240 and 360 (placing and accepting wagers ⁴¹¹ and maintaining a lottery). After a motion to suppress evidence obtained through a court authorized wiretap was denied, the case proceeded on a statement of facts. Judge J. Harold Grady, presiding without a jury, imposed a suspended prison sentence and fines totaling $3,000.

The sole issue on appeal is whether the trial court erred in denying appellant’s pretrial motion to suppress the fruits of the wiretap. On August 26,1976, William A. Swisher, State’s Attorney for Baltimore City, filed an application before the Supreme Bench of Baltimore City for a wiretap on the telephone bearing the number 732-0559 at 2201 Gough Street, in Baltimore, which was the location of an enterprise known as Dan’s Tavern. The basis of this application was a forty-four page affidavit executed by Detectives Robert Glassmyer and Robert Bieschke of the Baltimore City Police Department. The court authorized the requested wiretap for the period from August 30 through September 28, 1976.

On September 23, 1976, the State’s Attorney applied for a second wiretap to be placed on a telephone numbered 276-9137 also located in Dan’s Tavern. This second application was based on another affidavit by Detective Glassmyer and Bieschke and incorporated by reference an attached copy of the affidavit submitted in support of the original wiretap. The court authorized the surveillance from September 24 to October 23, 1976. This second wiretap produced the evidence which appellant sought to suppress and which eventually formed the basis of his conviction.

Appellant argues that the order authorizing the second wiretap was invalid in that the affidavit and application requesting it failed to comply with the requirements of the Md.Code, Cts. & Jud. Proc. Art., § 10-403 1 and 18 U.S.C. §§ 2510-2520 . Specifically, appellant contends that the affidavit and application for the second wiretap did not ⁴¹² sufficiently set forth facts to support the allegation that traditional investigative procedures had proven unsuccessful or that they were unlikely to succeed if utilized, or that the implementation of normal investigative procedures would have been too dangerous to be utilized.

The State does not contend that the second affidavit, standing apart from the incorporated references, would be sufficient to support the issuance of an order authorizing the wiretap. It argues that the incorporation by reference of the first affidavit cured any defect which the second affidavit would have had standing alone. Appellant, on the other hand, relying primarily on Calhoun v. State, 34 Md. App. 365 , 367 A. 2d 40 (1977), argues that the incorporation by reference will not cure a defect in the incorporating affidavit. In Calhoun , this Court held that an affidavit which was itself insufficient to meet the requirements of 18 U.S.C. § 2518 (1) (c), 2 could not be cured by incorporating a previous valid affidavit executed in support of another application to tap another phone at another location.

In Calhoun the police had obtained an order authorizing a wiretap on a phone located in a building on East Baltimore Street in Baltimore. The application had been based on an affidavit which was clearly sufficient for that purpose under the applicable statutes. Subsequently, another application was filed to obtain a wiretap on a telephone at another location. It appeared that this second phone had been called on a number of occasions from the one originally tapped and that certain wagers