Hignut v. State

Menchine, J.,

dissenting:

It is crystal clear that the substantive evidence at trial was legally sufficient to convict under the first count of the indictment. I support fully, as well, the views expressed by the majority: (a) that the warrant itself was in proper form; (b) that it properly was before the court below; (c) that the rulings of the trial judge in cross-examination of State’s witnesses were not erroneous; (d) that the chain of custody of evidence was established; and (e) that there was no evidence of entrapment in the case. It is equally clear to me, however, that the search and seizure warrant was improvidently issued by the judge of the District Court.

The opinion of the majority declares:

“It is axiomatic that in analyzing the probable cause for the issuance of a search warrant, we are confined to the four corners of the affidavit itself.” [Maj. Op. 6]

and that

“less persuasive evidence will justify the issuance of a warrant than would justify a warrantless search or warrantless arrest.” [Maj. Op. 7]

The affidavit in the subject case quite properly is to be viewed in the light of those clear, correct and reasonable rules of law. Nonetheless it must contain such *423 allegations of fact or inferences reasonably deducible therefrom as would establish “probable cause” for the issuance of the warrant. This demand, originating in the Fourth Amendment prohibition against unreasonable searches and seizures, means that: “A judge may issue a search warrant when * * * there is probable cause to believe that a crime is being committed * * * in a building * * * and that evidence of the crime is * * * within the place to be searched. * * * Probable cause is less than certainty or demonstration but more than suspicion or possibility. It is to be determined by the judge to whom application for the warrant is made. If a prudent and cautious man would be justified from the facts presented in the affidavit in believing that the offense has been or is being committed, the warrant properly may be issued.” 1 The majority contends that the data contained within the subject affidavit furnished that “probable cause.” Dissenting strongly from that conclusion, it appears appropriate to declare the basis for the contrary view.

For better understanding, the language of the affidavit is repeated:

“That on Friday, August 20, 1971 your affiants received information from a confidential informant that Hashish was present in the said apartment house.

It is further stated that the informant, after being searched by the affiants went to the said apartment house, then to the second floor of the said house, knocked on the door of apartment #3 and was permitted entrance to the said apartment #3. After entering said apartment, the informant had conversation with Laura Gunther, occupant of said apartment #3. It is further stated that the informant while in said apartment obtained a small block of compressed brown vegetable substance, wrapped in tinfoil, *424 which your affiants tentatively identified as Hashish, a form of Marihuana. The informant exited from the said apartment house and brought the suspected Controlled Dangerous Substance directly to your affiant Patricia Ann Duty, who was standing in the hallway of 302 North Main St., Bel Air, Maryland. Your affiant, Patricia Ann Duty, with the Confidential Informant went directly to your affiant Sgt. Daniel V. Leftridge, who was waiting for them at the Bel Air Police Department, located at 39 Hickory Avenue, Bel Air, Maryland.”

In making its preliminary assessment of that affidavit the majority opinion stated that “the actual recitation of supporting data was so spare as to be almost cavalier” [Maj. Op. 5], yet finally concluded that “Upon our constitutionally mandated, independent review, * * * we find that the search was carried out pursuant to a validly issued warrant.” [Maj. Op. 14]

The labored effort 2 of the majority to find probable cause for issuance of the warrant in the pages interveni. ing between those two statements is not persuasive.

The majority acknowledges that the ‘confidential informant’ at bar “fails ‘Aguilar’s credibility’ test abjectly” [Maj. Op. 8], but suggests that “Independent police observation may tend to verify — to corroborate— the story as told by the informant.” [Maj. Op. 9]

The majority’s assessment of those police observations begins with the unwarranted assumption “302 North Main Street was only a two-story apartment house.” The affidavit does not say so.

The majority then comments: “Under the most unfavorable of readings — * * * Mrs. Duty was downstairs and in no position to see where the informant went.” We *425 suggest this is not “the most unfavorable” reading. It is the only permissible reading from the four corners of the affidavit. Thus, there is neither fact nor inference to show that the informant entered “the place proposed to be searched” without contraband and emerged therefrom with contraband.

Brushing this circumstance aside, the majority then suggest that “the field of possibilities is still reduced to no more than two, or at most three, apartments,” adding that “The mathematical reduction in the number of possibilities is, ipso facto, the ratio of improved probability.” Implicit in that suggestion is a willingness by the majorty to accept the affidavit as furnishing probable cause for the search of any of their assumed two or three apartments.

The affidavit proceeded to recite: “Your affiants received information * * * that Hashish was present in the said apartment house * * * informant while in said apartment obtained a small block of compressed brown vegetable substance wrapped in tinfoil which your affiants tentatively identified as Hashish.”

There is a double deficit inherent in that data: (a) whether any contraband remained in the apartment after the informant’s departure, and (b) whether the substance was contraband at all. The word “tentative” is both conclusory and provisional. No facts are recited in the affidavit that would permit “a neutral and detached magistrate” 3 to make a reasoned resolution of the doubts arising from the wording of that part of the affidavit.

In my opinion, an affidavit should be a container of knowledge upon which an impartial magistrate can base his decision as to whether vel non probable cause exists for the issuance of a warrant. In the instant case the “container” was more of a sieve through which probable cause was allowed to leak out before the matter was presented to the District Court judge.

*426 I am persuaded that the language used in Spinelli v. U. S., 393 U. S. 410, 419 , has specific application in this case:

“We cannot sustain this warrant without diluting important safeguards that assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry.”

The first paragraph quotation from T. S. Eliot in the majority opinion: “Between the idea and the reality, between the motion and the act, falls the Shadow,” furnished an interesting prelude to that opinion’s fabrication of substance from shadow. Eliot’s Works would have provided a fitting epilogue to a wholly different opinion if the affiants had chosen to follow the course of an Eliot character in “Sweeney Agonistes”: “I gotta use words when I talk to you.”

I am persuaded the affidavit did not show probable cause.

I am authorized to state that Judge Gilbert and Judge Davidson concur in this opinion.

. Buckner v. State, 11 Md. App. 55, 61 .

. Footnotes 2, 3, 4, 7 and 8 of the majority opinion are almost plaintive in their description of what the affidavit “might have said.” It is suggested that they demonstrate that the majority decision on the warrant subconsciously is based upon the substantive evidence produced at trial.

. Aguilar v. U. S., 378 U. S. 108 .