Winters v. State

COUCH, Judge. Richard Winters was tried before a jury, in the Circuit Court for Anne Arundel County, and convicted of conspiracy to violate the Maryland tax law, and filing fraudulent State income tax returns. The defendant took an appeal to the Court of Special Appeals. Thereafter, this Court, on its own motion, issued a writ of certiorari prior to a decision by the intermediate appellate court.

The issues we are asked to consider are: “1) Whether the trial court committed prejudicial error by denying Appellant’s Motion for Suppression of Evidence seized from his home. 2) Whether the trial court committed prejudicial error by permitting improper cross-examination of Appellant’s character witnesses. 3) Whether the trial court committed prejudicial error by denying Appellant’s Motion for Dismissal of the Conspiracy Count (Count I) of the Indictment. 4) Whether the trial court committed prejudicial error by denying Appellant’s Motion to Dismiss the Substantive Counts of the Indictment. 5) Whether the trial court committed prejudicial error by denying Appellant’s Motion for a Judgment of Acquittal on the Substantive Counts of the Indictment. ²²⁰ 6) Whether the Court committed prejudicial error by incorrectly answering the jury’s question directed to the court concerning the dates set forth in the conspiracy count.” We shall answer these questions seriatim. Facts In setting forth the facts of this case we shall merely provide the factual framework that led to the indictment and subsequent trial of appellant, Richard Winters. Thereafter we shall provide the necessary factual predicate as each specific issue is addressed. The Attorney General’s office, in conjunction with the Maryland State Police was conducting an investigation into various forms of criminality in Frederick County, Maryland.

During the course of that investigation it was believed that certain individuals, including appellant, were involved in illegal drug activities. This information led to a cooperative investigative effort with the United States Drug Enforcement Administration (hereinafter referred to as “DEA”). While appellant was under investigation for drug involvement, the authorities received information concerning alleged tax violations on the part of the partners in the Osburn and Winters law firm. This information was initially supplied by Winters’ former secretary and girlfriend, Edith Eader.

Pursuant to information acquired during the drug investigation a federal search and seizure warrant was issued for appellant’s residence. This warrant was executed on September 23, 1982. Detective Sergeant Thomas H. Carr, a Maryland State Police officer assigned to the Attorney General’s office, Criminal Investigations Division, who had been involved in the joint narcotics investigation from its inception, assisted the federal agents in the execution of the warrant. Carr was also on the premises to serve a subpoena in regard to the tax investigation. ²²¹ During the search Carr discovered twenty-two sheets of lined yellow paper, approximately 8V2" X 14", which contained a listing of names, dates, and dollar amounts.

Carr examined the sheets to see if they were papers relating to the transportation, ordering, purchase or distribution of controlled dangerous substances; records, notes and other papers relating to the drug investigation were among the items listed on the federal warrant as property to be seized. Robert Osburn, appellant’s law partner, 1 was present during the search. He identified the yellow sheets as an accounting of legal fees paid to the Osburn and Winters law firm. Carr had previously been informed by Edie Eader that appellant kept such a list of income received from cash fees that were not reported on his income taxes; she had also shown Carr photo copies of these lists.

The information supplied by Eader coupled with Osburn’s statement led Carr to recognize that these sheets did not pertain to the drug investigation, but that they were related to the state tax investigation. Carr then telephoned the Attorney General’s office and an application for a search and seizure warrant was prepared for the sheets. The federal search and seizure warrant, an affidavit, and an application for a state search and seizure warrant were submitted to Judge Stepler, District Court of Maryland sitting in Frederick County. The affidavit, by Carr, set forth his reasons for believing the yellow sheets were evidence relating to the commission of criminal violations of Maryland State Income Tax laws.

Moreover, the affidavit set forth his authority to be on the property where he discovered the yellow sheets by reciting the circumstances of the joint drug investigation and referencing the DEA search and seizure warrant for Winters’ residence. A copy of the federal search warrant was attached to the state affidavit. However, the affidavit which supported the issuance of the federal warrant was not ²²² attached; the federal affidavit was under seal at the time the state warrant was applied for. Judge Stepler signed the state warrant and the twenty-two yellow sheets were seized from Winters’ home on September 23, 1982.

Prior to trial Winters unsuccessfully sought dismissal of the indictment and suppression of the evidence seized from his residence. I Appellant initially asserts that the trial court committed prejudicial error by denying the motion to suppress evidence seized from his home. He attempts to support this position by attacking the validity of both the state and federal search and seizure warrants. (a) State Warrant Appellant contends that the search warrant signed by Judge Stepler should not have been issued.

This is so, he argues, because the state warrant was based upon an affidavit containing information acquired by applicant, Detective Carr, while participating in the execution of the federal warrant, and that the affidavit upon which the federal warrant was based was not presented to Judge Stepler. Appellant argues under the authority of Brooks v. State, 13 Md.App. 151 , 282 A.2d 516 (1971), cert. denied, 264 Md. 746 , 749, 750 (1972), that where a search warrant is sought based on observations during the execution of a preceding warrant, the issuing judge must review the affidavit of the first warrant to determine whether probable cause justified the initial intrusion. We think appellant reads Brooks too broadly. In Brooks , there were two raids of the same premises, four days apart.

The first raid was undertaken pursuant to a search and seizure warrant. While on the premises the officer observed but did not seize certain property which subsequent investigation revealed to be stolen goods. The officer thereafter applied for a second search warrant based ²²³ on his observations. In the affidavit for the second warrant the officer asserted that the first warrant had been issued, but a copy of the first warrant and the application therefor were not attached to the second application.

The Court of Special Appeals held that the appellants had no standing to raise Fourth Amendment claims. Brooks, 13 Md.App. at 157 , 282 A.2d at 520 . However, in dicta the court stated that the conclusory statement by the affiant in the affidavit for the second warrant (as to the existence of the first warrant) rendered the second warrant defective. This was so, the court explained, because “conclusory statements without underlying facts by the affiant that probable cause exists, are not adequate to support the issuance of a search warrant;” and “probable cause must be determined by the magistrate, based on the facts presented to him in the affidavit.” Brooks, 13 Md.App. at 154 , 282 A.2d at 518-19 .

The court was thus stating the basic concepts of Fourth Amendment law — the principles that ensure that the guarantees of the Fourth Amendment are protected. The Fourth Amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The protection of the Fourth Amendment consists in requiring that a search warrant be issued only after a neutral and detached magistrate determines that probable cause exists “therefor from facts or circumstances presented to him under oath or affirmation,” in order to justify an invasion of privacy. Nathanson v. United States, 290 U.S. 41, 47 , 54 S.Ct. 11, 13 , 78 L.Ed. 159, 162 (1933). See also State v. Edwards, 266 Md. 515 , 295 A.2d 465 (1972) (need underlying circumstances supporting affiant’s conclusions); Henderson v. State, 243 Md. 342 , 221 A.2d 76 (1966) (finding of probable cause to be made from the allegations of the application for the warrant, cannot be purely conclusory); Brooks v. State, supra (conclusory statements without underlying facts are not adequate). ²²⁴ Judge Stepler, in this instance, had the first warrant presented to her.

Given the courts’ preference for searches pursuant to a warrant, and the deference that is to be accorded an issuing magistrate’s determination of probable cause to issue a warrant, see Massachusetts v. Upton, ___ U.S. ___, 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983); United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), Judge Stepler could reasonably rely on the validity of the federal warrant together with other facts presented to her. Therefore, unlike the situation in Brooks , Judge Stepler did not merely “ 'accept the affiant’s conclusions and thus [did not] “serve merely as the rubber stamp for the police.” Aguilar v. Texas, 378 U.S. 108, 112 [, 84 S.Ct. 1509, 1512 , 12 L.Ed.2d 723, 727 (1964)].’ ” Brooks, 13 Md.App. at 155 , 282 A.2d at 519 [quoting Grimm v. State, 7 Md.App. 491, 493 , 256 A.2d 333, 334 (1969)]. Appellant now asks this Court to expand his reading of the dicta in Brooks to require the issuing magistrate not only to make an independent determination of probable cause for the issuance of the second warrant, but also to determine if probable cause existed for the issuance of the first warrant, when that warrant is attached to and is an underlying fact in determining probable cause to issue the subsequent warrant. We decline to do so because we do not think that Brooks requires the magistrate who issues the second warrant to. determine if probable cause existed to issue the first warrant; if it did it would be contrary to law.

What appellant advocates as the duty of the warrant-issuing judge interfuses two distinct principles of law — the warrant requirement of the Fourth Amendment, and the judicially created exclusionary rule. In our system of justice, these two principles take effect at different stages in the proceedings; appellant’s contention can.be more appropriately addressed at the later stage. Therefore, we find no error was committed by Judge Stepler. She issued the ²²⁵ state warrant only after making an independent determination of probable cause based on facts and circumstances presented to her including the issuance of the federal warrant; thus, appellant’s Fourth Amendment privacy expectations were protected.

Appellant’s only attack on the issuing judge’s determination of probable cause in this case rests on her failure to determine probable cause for the issuance of the federal search warrant. We hold that the issuing state judge had no obligation to determine the existence of probable cause for the issuance of the federal warrant. Therefore, issuing the state warrant based on probable cause contained in the state affidavit was not improper. A motion to suppress evidence obtained as a result of the state search warrant was heard and denied by the trial court.

At that hearing appellant asserted the aforesaid issue as well as two issues directly related to the issuance of the federal search warrant. The trial court reviewed the affidavit upon which the federal warrant was issued and found that there was “clear probable cause to issue the federal warrant.” (b) Federal Warrant Appellant advances two reasons for contending that the federal warrant was invalid. First, he attacks the adequacy of the affidavit upon which the federal warrant was based. Second, he questions the propriety of Detective Carr’s participation in the execution of the federal warrant.

He contends that if the federal warrant is invalid for either of these reasons, evidence derived from the federal search is tainted and its existence may not be used as a valid basis for establishing probable cause in the application for the state search and seizure warrant under our holdings in Carter and Everhart. (i) As the initial basis for this contention appellant asserts that the affidavit in support of the federal warrant con ²²⁶ tained a false statement of a material fact requiring redaction of so much information that the remaining allegations did not establish probable cause for the search. This contention is predicated on a statement made in the federal affidavit in reference to the second confidential informant. Source number two was identified at the suppression hearing by Detective Carr as Edith Eader.

She was alleged by the federal affiant, Special Agent William L. Athas, to be a reliable source since her admissions were a “Declaration Against Penal Interest.” However, Detective Carr testified at that hearing that Eader had received immunity from federal and state authorities before she provided the information related in the affidavit. All parties agree that Eader’s statements could not have been against her penal interest if she had previously received immunity. Additionally, there is agreement that the “assertion” of Athas may not be used to bolster the veracity of Eader. However, appellee asserts that the characterization of the use of the term declaration against penal interest as a false statement of a material fact is unduly harsh; and, further, that when judged under the standards of probable cause of Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), the remaining information in the affidavit is more than adequate to support the issuance of the federal warrant in this case.

We agree. Technically, Edith Eader. did not make a declaration against penal interest since she had received complete immunity from prosecution prior to providing information to the authorities. However, we cannot agree with appellant’s contention that “her information would have been totally useless unless it was falsely alleged to constitute a declaration against penal interest.” Appellant would have the Court excise the entire statement under authority of Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). We think the appropriate remedy is to discount that phrase that tends to bolster the credibility of Eader, ²²⁷ and then evaluate the affidavit without considering her statement as a declaration against penal interest.

Appellant’s basic argument is that if the information obtained from Eader is not a declaration against penal interest, then the veracity and reliability of this source is not demonstrated in the affidavit; the foundation for this reasoning are the principles set forth in 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). However, appellant’s singular reliance on Aguilar and Spinelli is unfounded in view of the Supreme Court’s decision in Gates . Gates replaced the rigid technical analysis of the reliability of informant data in Aguilar and Spinelli with a more flexible approach. Massachusetts v. Upton, ___ U.S. ___, 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984); see also Potts v. Maryland, 300 Md. 567 , 479 A.2d 1335 (1984).

(Gates decision applied to pre-Gates search warrant). “Veracity,” “reliability,” and “basis of knowledge” are still considered relevant inquiries. Gates, 462 U.S. at ___ , 103 S.Ct. at 2329 , 76 L.Ed.2d at 545 . However, rather than give them independent status, they are to be considered in the “totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. In Gates , the Court illustrates the application of the totality of the circumstances assessment.

One indicia of reliability is particularly relevant to our inquiry in the case sub judice: “[Ejven if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.” ²²⁸ Gates, 462 U.S. at ___ , 103 S.Ct. at 2329-30 , 76 L.Ed.2d at 545 . In this instance Eader provided a significant amount of detailed information in the affidavit, most of which was observed first-hand. Moreover, much of this information was independently corroborated by the law enforcement authorities during the drug investigation. The totality of the circumstances would indicate that the confidential informant in question was giving credible information.

Moreover, Agent Athas was an experienced drug investigator, assigned to the DEA. His interpretation of all this information led him to assert in the affidavit that there was probable cause to believe that controlled dangerous substances and records related to drug transactions would be found at appellant’s home; considerable credit can be given to the expertise of law enforcement officers. Gates, 462 U.S. at ___ , 103 S.Ct. at 2328 , 76 L.Ed.2d at 544 ; Gatewood v. State, 244 Md. 609, 616 , 224 A.2d 677, 682 (1966); Henderson v. State, 243 Md. 342, 344 , 221 A.2d 76, 77 (1966). On the basis of the facts and circumstances contained in the affidavit a magistrate issued the search warrant.

The facts relied upon “are sufficient if they are such as to warrant a prudent and cautious man in believing the offense has been committed.” Lucich v. State, 194 Md. 511, 514 , 71 A.2d 432, 434 (1950); Dean v. State, 205 Md. 274 , 107 A.2d 88 (1954); Fleming v. State, 201 Md. 145 , 92 A.2d 747 (1952); Smith v. State, 191 Md. 329 , 62 A.2d 287 (1948), cert. denied, 336 U.S. 925 , 69 S.Ct. 656 , 93 L.Ed. 1087 (1949). This is in accord with the Fourth Amendment’s expressed preference for “searches conducted pursuant to a warrant.” Gates, 462 U.S. at ___ , 103 S.Ct. at 2331 , 76 L.Ed.2d at 547 ; United States v. Leon, supra; United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965). The traditional standard of review