Washburn v. State

Gilbert, J., delivered the opinion of the Court. In this appeal, we are asked to decide whether vel non the Circuit Court for Cecil County, Wise, J., erroneously deprived the appellant, Oakley Chaffin Washburn, Jr., of a hearing to establish that the evidence adduced by the State against appellant was tainted by an illegal wiretap, whether a search and seizure warrant was invalid because it was “conceivably based upon tainted evidence” obtained through an illegal wiretap, and whether “tapes of the wiretapping” should have been made available to the appellant. We shall set forth herein only those facts necessary to understand the issues involved. On May 9, 1972, Detective Sergeant Frank Mazzone and Trooper Robert D. Sherman, both of the Narcotics Section, Maryland State Police, made affidavit before a judge of the Circuit Court for Cecil County in support of an application for an ex parte wiretap order.

The officers stated that they had received information from a number of confidential informants whose reliability and credibility were demonstrated in the affidavit, that Washburn was “a Distributor of Controlled Dangerous Substances and as such is dealing with other persons who are unknown at this time; and further that the said Washburn is planning together ¹⁹⁰ with other persons unknown, to hire someone to murder .. . Mazzone who has been making arrests for [violation of the laws pertaining to] Controlled Dangerous Substances for several years.” The affidavit set forth the telephone number that Washburn used for the purpose of arranging the time and place for the delivery of the controlled dangerous substances and to contact persons “unknown ... to hire someone to murder ... Mazzone.” An order was signed by the judge upon the authority of Md. Ann. Code Art. 27, § 125A; Art. 35, §§ 92-99; and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 . The telephonic interception order was “to begin ... as soon hereafter as practicable” and to “terminate ... in no event later than 11:45 p.m. on May 30, 1972.” The interception actually began on May 11, 1972.

The State’s Attorney, on May 30, 1972, made application, supported by an affidavit of Trooper Sherman, for an extension of the order. The order as signed contained the proviso that the tap should terminate at 11:45 p.m. on June 25,1972. Trooper Michael J. Callanan, Maryland State Police, assigned as an undercover agent, was introduced to appellant by an informant, Richard Whittmere, on June 6, 1972. The trooper and the informant went to appellant’s residence where the trooper observed Whittmere purchase the hallucinogenic drug, LSD, from appellant.

Whittmere paid to appellant the sum of $125.00. Thereafter the trooper met appellant on “several other occasions in order to purchase large quantities of substances which field tested as LSD.” The dates, places, and amounts of the purchases were set out by the trooper in his affidavit in support .of an application for a search and seizure warrant. The warrant was issued on June 23, 1972, executed at 5:00 p.m. the next day, and a return thereon was properly made. The following Controlled Dangerous Substances, proscribed by Md. Ann. Code, Art. 27, § 279, LSD, marijuana, amphetamine, hashish, secobarbital, amobarbital, and meprobamate, were all seized from appellant’s home as a result of the execution of the warrant. ¹⁹¹ Washburn was indicted on July 14, 1972 for violation of the Controlled Dangerous Substance Laws, and presumably he was also indicted for conspiracy to murder Det.

Sgt. Mazzone. The record is unclear as to the precise charge with respect to the conspiracy to murder Mazzone because on motion by appellant, trial for that alleged offense was severed and is not before us. Appellant filed a motion on July 28, 1972 to suppress the evidence on the ground of “an unlawful search.'” He moved on August 8, 1972 to dismiss all indictments because they were bottomed on “evidence seized by illegal wire taps.” A second motion to suppress the evidence was simultaneously filed.

That motion was based upon the alleged illegality of the wiretaps. A third motion to suppress, also filed on August 8, 1972, was predicated upon the right of the appellant “to be free from unreasonable searches and seizures,” appellant’s right against self-incrimination and his right to counsel. 1 The State denied all allegations in the motions to dismiss, and answered the various motions to suppress by averring that, “It does not intend to use illegally obtained evidence and denies its existence. . . .” On August 29, 1972, the State’s Attorney reportedly mailed a letter to appellant. We were advised on oral argument that a copy of the letter was handed to counsel on August 29, 1972. We quote the letter: “Dear Mr. Washburn: This letter is to put you on notice that for a period of time prior to your arrest, the Maryland State Police placed a wiretap on your telephone line.

We are not going to use any evidence obtained by use of this wiretap to prove our case against you. We are going to use only that evidence that resulted from the undercover work when we present our cases against you. Our cases against you are not ¹⁹² based on the wiretap but based on the undercover work. We did not use any evidence obtained from the wiretap when we presented our cases against you during the recent Grand Jury sessions which resulted in the indictments now pending against you.” Appellant filed another motion to' dismiss on September 22,1972, in which he alleged: “The indictment is founded upon the contents of telephone and oral communications unlawfully intercepted by the state in violation of the Defendant's rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, and of the Maryland Declaration of Rights, and of Title III of the Omnibus Crime Control Safe Streets Acts of 1968.” Judge Wise denied all motions to dismiss, but he suppressed “[a] 11 logs, records, and memoranda of wire or oral interceptions of conversations of the Defendant or at his premises. . . .” The judge also ordered the State to furnish appellant with copies of the “application, order, logs, and dates of any wire-tap or electronic surveillance of the Defendant or upon his premises.. . .'' Appellant then requested a “full adversary hearing to suppress evidence tainted by illegal wire tap and to suppress evidence obtained through search and seizure warrant based upon illegal wire tapping.” The motion was denied.

Seemingly, appellant advanced a two-fold theory. First, the wiretap was illegal because of non-compliance with Ch. 119, Title 18 U.S.C., §§ 2510-20 . Second, the information leading to the issuance of the search and seizure warrant was obtained through the medium of the illegal telephonic interception and was, therefore, ipso facto so tainted that its use in the affidavit supporting the application for the search warrant rendered the warrant invalid. ¹⁹³ In this Court the appellant’s first contention is subdivided into five separate and distinct attacks upon the hearing judge’s ruling on the motion to suppress the evidence gathered under the search and seizure warrant. We shall discuss each of them seriatim.

(1) “The Maryland statutes and the Omnibus Crime Control and Safe Streets Acts of 1968 are unconstitutional.” Appellant acknowledges that his arguments with respect to the unconstitutionality of both the Federal and State Acts is “whistling in the wind” in view of State v. Siegel, 266 Md. 256 , 292 A. 2d 86 (1972), affirming this Court in State v. Siegel, 13 Md. App. 444 , 285 A. 2d 671 (1971). The Siegel cases are dispositive of the issues raised by the appellant and necessitate no further discussion on our part except to note that many other jurisdictions have upheld the constitutionality of the Omnibus Crime Control and Safe Streets Act of 1968. 2 (2) “Was there the requisite probable cause for the issuance of the order authorizing wiretapping?” ¹⁹⁴ Washburn avers that the information upon which the joint affidavit of Mazzone and Sherman was based was stale and, consequently, furnished no probable cause for the issuance of the warrant. In support of his argument, he relies principally upon Johnson v. State, 14 Md. App. 721 , 288 A. 2d 622 (1972), cert. denied 266 Md. 738 (1972); cert. denied 409 U. S. 1039, 93 S. Ct. 517 , 34 L.Ed.2d 487 (1973). In Johnson, supra, at 730 , we held that a lapse of 26 days “between the observation of the facts and the issuance of the warrant” was, considering the attendant circumstances, not so remote as to invalidate the search warrant for lack of probable cause.

There is no statute in this State mandating a designated time within which a warrant must issue, after observation of the facts upon which the affidavit in support of the warrant is founded. We observed in Johnson, supra, that we were unable to locate any judicial decision that spelled out a rigid time rule, and we declined to do so. Further, at 729-30, we stated that, “ . .. remoteness of the facts observed from the date of the issuance of the warrant is an element to be considered in each instance by the issuing authority in determining whether it appears that there was probable cause.” Johnson does not hold that remoteness is the sole or controlling element. Remoteness is but one of the factors to be considered in the circumstances of the case.

A perusal of the affidavit in support of the application for the initial wiretap order reveals that the affiants, Mazzone and Sherman, received information about appellant’s violation of the Controlled Dangerous Substances Laws of this State from six confidential informants. The first informant stated that “he has been purchasing Marihuana from Washburn for his own use since approximately November of 1969, with the last purchase being approximately three months ago.” The police said that they were unable to effect an arrest of Washburn through the use of the first informant because the informant feared for his life. Informant No. 2 gave information that “Oakie [appellant] was distributing Marihuana,” and that he, the informant, had been with others “within the past two years ¹⁹⁵ when they purchased Marihuana” from the appellant. Informant No. 2 did not believe that he knew the appellant “well enough to take an undercover investigator to Washburn to purchase Controlled Dangerous Substances.” A third informant stated that Washburn had been “distributing Marihuana from January, 1971 to within six months ago.” The third informant said that he had purchased Marihuana from appellant for his personal use “with the last purchase being within the past one year.” Informant No. 4 furnished information “that Washburn was growing Marihuana in an area near Old Conowingo, Cecil County, ... in the Summer of 1971.” He pointed out the place where the marihuana was grown and from which it was thereafter recovered by the police.

Washburn was, however, not observed at the scene. The fifth informant, who was the only one who had not given previous information to the police, advised that “ten persons were distributing Controlled Dangerous Substances in the Ceeil-Harford County area. One such person was named as Oakie Washburn who was described as operating a white Cadillac; played in a band at the Ebbtide Rest, Have (sic) de Grace, Harford County, Maryland. This C.I. [confidential informant] #5 stated that Washburn distributes Opium-Speed and Marihuana.” Informant No. 5 had “been present when Washburn . . . sold Controlled Dangerous Substances.” A sixth informant, in addition to furnishing information regarding the alleged conspiracy to kill Det.

Sgt. Mazzone, stated that Washburn had told him, the informant, that he, Washburn, “uses, grows and sells Marihuana.” The affidavit is silent with respect to a frame of reference as to when in point of time Washburn’s admission was made to the informant. We think the information supplied by the first four informants, when considered and weighed together with that of the fifth and sixth informants, clearly shows that there was a continuous violation by appellant of the Controlled Dangerous Substances Laws of this State. The information supplied the affiants was not stale because of remoteness, and in our view furnished probable cause for the issuance of the order to tap appellant’s telephone. ¹⁹⁶ (3) “Lack of proof of absence of alternative investigative means required by statute as condition'for order invalidates order.” Ch. 119, 18 U.S.C., § 2518 (3) provides in part: “Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications' within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that — (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;” Md. Ann. Code Art. 35, § 94 (a) states that an ex parte order for the interception of telephonic or telegraphic communications may be issued by a judge of the Circuit Court or the Supreme Bench of Baltimore City upon a “verified application” that sets forth the facts and circumstances upon which the application is made and avers that “[t]here are no other means readily available for obtaining such information.” It is patent that the legislative will, both Federal and State, is that electronic surveillance is to be employed, assuming probable cause and compliance with the other provisions of the Federal and State laws, only when one of three things occur: (1) there are no other means available for obtaining the information because normal investigative procedures 'have been proven unsuccessful; (2) normal investigative procedures appear unlikely to succeed if utilized, and (3) the implementation of normal investigative procedures will be too dangerous to be operative.

In the case before us, the affiants believed that it was unlikely that other investigative procedures would “succeed in obtaining ¹⁹⁷ the identity of all the co-conspirators and in obtaining evidence sufficient to convict.” Affiants set out their reasons as “those persons who distribute Controlled Dangerous Substances make their plans such as dates, times, places and manner over the telephone and rarely by any other means, and that persons who would be putting up money to have a murder committed would make contact with each other over the telephone to discuss meeting places, money matters and other arrangements . . . and rarely by any other means.” We think it apparent that in order for the State Police to have obtained the identity “of all the co-conspirators,” other than through electronic eavesdropping, it would have been necessary to infiltrate the group of “ten persons”