Petition for Writ of Certiorari — Johnson v. Maryland

In the REL PODAK, Jh..CLERK

Supreme Court of the Unite

Octoser Term, 1972

No. wQe4 7]

NATHANIEL JOHNSON, JR.,

PETITIONER,

Vv.

STATE OF MARYLAND,

RESPONDENT.

RN UF PU CEONE Serr Ys he ie akc

Lat eae

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS,

STATE OF MARYLAND -

F. Lee Bamey

ye One Center Plaza

Boston, Massachusetts 02108

Geratp ALCH

One Center Plaza

: Boston, Massachusetts 02108

Wim H. Murpay, Jr.

| 2115 One Charles Center

; Baltimore, Maryland 21201

: Leroy W. Carron

2115 One Charles Center

Baltimore, Maryland 21201

Blanchard Press, Inc.. Boston. Mass. — Law Printers

INDEX

Page

cele ckekcos cess ssh osreb acsaws 1

ee oe ay chen ece sks enee» 2

ian au Wakelin Kan ene esac dues 2

Constitutional Provisions Involved ................. 2

ne ie Cae d i ek eae eke ohn do 3

Reasons for Granting the Writ .................... 10

at 2 Ap UR ng a 18

Appendix — Opinion of Maryland Court of Special

ts a ge Ae, Ee, eae aera 19

Cases CrTep:

Aguilar v. Texas, 378 U.S. 108 (1964) ..:........... 11

Brady v. State of Maryland, 373 U.S. 83 ............. 17

Bridgewater v. State, 153 Ind. 560, 566; 55 N.E. 737,

EGS a 2 OO en 17

Clayton v. State,1 Md. App. 500 .................. 13, 14

Dandrea v. U. S., 7 F.2d 861 (8th Cir. C.A. 1925) .... 14

Giles v. Maryland, 372 U.S. 767 ..................-.. 17

Ingram v. State of Oregon, 445 P.2d 503 (1968) ....... 14

O’Comnor v. Ohio, 385 U.S. 92 (1966) ................ 18

eB eer rere ree 15

Slansky v. State, 192 Md. 94, 63 A.2d 599 ............ 18

Sparf and Hansen v. U. S., 156 U.S. 51 ............ 17

Spinelli v. U. S., 393 U.S. 410 (1969) ................ 11

State v. Cooper,154 A. 423 (N.J. 1931) .............. 14

State v. Gardner, 240 P. 984 (1925) ................ 14

U. S. v. Allen, 147 F. Supp. 955 (D.C. F.D. Kentucky

ee an aa Kentuckian eles ee eh ees 14

U.S. v. Bosch, 209 F. Supp. 15 (D.D.C. Mich. 1962) .... 14

ey SS 3! ee rer 11

U. S. v. Long, 169 F. Supp. 730 (D.D.C. 1959) ........ 14

Index

coe Page

Whitely v. Warden, Wyoming State Penitentiary, 410

i Se Derr erate ee ihe ste 11

Wyley v. Warden, Maryland Penitentiary, 372 F.2d 742,

cert. den., 389 U.S. 863, reh. den., 389 U.S. 997 16,18

Miscellaneous

Prescott, Juries as Judges of the Law: Should the Prac-

ro aa ky eceem segs 17

Henderson, The Jury as Judges of Law and Fact in

Maryland. 52 Md. S.B.A. 184, 199 (1947) .......... 17

Dennis, Maryland’s Antique Constitutional Thorn, 921

8 ee § FOR errere tere 17

dn the

Supreme Court of the United States

Octoser TERM, 1972

No.

NATHANIEL JOHNSON, JR.,

PETITIONER, ‘

v.

STATE OF MARYLAND,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF SPECIAL APPEALS,

STATE OF MARYLAND

The petitioner, NatHanrmL JoHNson, Jz., respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the Court of Special Appeals, State

of Maryland.

Opinion Below

The opinion of the Court of Special Appeals, not yet

reported, appears in the Appendix hereto. No opinion was

rendered by the Court of Appeals, State of Maryland.

2

Jurisdiction

The judgment of the Court of Special Appeals was filed

on March 27, 1972 and Mandate issued thereon on April

3, 1972. A timely petition for certiorari was filed with the

Court of Appeals, State of Maryland and said petition

was denied on June 9, 1972. An application was made to

Mr. Chief Justice Burger, Chief Justice of the Supreme

Court of the United States and Circuit Justice for the

Fourth Circuit, and order dated

was granted herein extending petitioner’s time for filing

a petition for writ of certiorari to and including Septem-

ber 21, 1972. This Court’s jurisdiction is invoked under

28 U.S.C. 1257(3).

Questions Presented

1. Whether incomplete and uncorroborated information

of an informant’s credibility can establish probable cause

for the issuance of a search warrant as required by the

Fourth Amendment of the United States Constitution.

2. Whether the lapse of time between an informant’s

observation relied upon, and the application for a search

warrant can be of such length so as to render stale the

necessary element of probable cause required by the Fourth

Amendment of the United States Constitution.

3. Whether a State’s constitutional provision empower-

ing juries to decide questions of both fact and law de-

prives an individual of due process and the equal protec-

tion of the law as required by the Fourteenth Amendment

of the United States Constitution.

Constitutional Provisions Involved

Fourth Amendment, U. S. Constitution:

_ The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

3

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly, de-

scribing the place to be searched, and the persons or

things to be seized.

Fourteenth Amendment, U. S. Constitution:

Section 1. * * * nor shall any State deprive any per-

son of life, liberty, or property, without due process

fiw: *”"”

* * * nor deny to any person within its jurisdiction

the equal protection of the laws * * *

Article XV, Maryland Constitution:

Section 5. ‘‘In the trial of all criminal cases, the

Jury shall be the Judges of Law, as well as of fact,

except that the Court may pass upon the sufficiency

of the evidence to sustain a conviction.”’

Statement of the Case

Petitioner was convicted by a jury in the Criminal Court

of Baltimore on June 21, 1971 of conspiracy to violate the

Controlled Dangerous Substance Law (Indictment No.

658), possession of heroin (Indictment No. 663), posses-

sion with intent to manufacture and distribute a controlled

dangerous substance, heroin (Indictment No. 665) and

maintaining a common nuisance (Indictment No. 664).

Under the combined Indictments No. 663 and 665, the

Petitioner was sentenced to a term of twenty years and

was fined Twenty-Five Thousand Dollars ($25,000.00). The

Petitioner was sentenced to a term of fifteen years and

fined Twenty-Five Thousand Dollars ($25,000.00) under

—

4

Indictment No. 664, the sentence and fine to run conse-

cutively to those imposed under Indictments No. 663 and

665. Under Indictment No. 658, the Petitioner was sen-

tenced to a term of fifteen years and fined Twenty-Five

Thousand Dollars ($25,000.00), the term to run concur-

rently with the other two imposed but the fine was imposed

consecutively. The total prison sentence received by the

Petitioner as a term of thirty-five years and the total

fine imposed was Seventy-Five Thousand Dollars ($75,-

000.00). >

At the trial the State introduced the application for the

search and seizure warrant and the supporting affidavit.

Petitioner’s counsel moved to quash the warrant and the

motion was denied by the trial court.

The following is an exact copy of the search warrant and

affidavit :

‘¢ AFFIDAVIT

Affidavit, in support of search and seizure for the

person known as Nathaniel Johnson N/M 32 aka Junior

Bunk, B of I #197-996 about 5-8 to 5-10, about 175-

185 Ibs. medium bush hair style, and the premises

which he occupies, uses, rents or keeps known and so

described as a two story brick row home type dwelling

known as 818 Wicklow Road, and the vehicles also

used by Nathaniel Johnson aka Junior Bunk so de-

scribed as: a 1969 Mercury Marquis — Green w a

white top, four door sedan bearing Maryland Lice.

GJ-6460, this vehicle is listed to: Shirley Johnson of

1003 N. Woodington Rd., this person is the wife of Na-

thaniel Johnson and is a past address of Nathaniel

Johnson. And the vehicle so described as: 1969 Mer-

cury Cougar Cpe. gold in color bearing Maryland Lice.

GN-4034, this vehicle listed to a: Willie Johnson 3815

Clifton Ave., this also is a past address of Nathaniel

Johnson.

5

Based on the attached information contained herein

this affidavit your affiants believe that probable cause

exist in that Nathaniel Johnson aka Junior Bunk is

presently using above described premises, and the so

described vehicles for the illegal manufacturing, pos-

sessing, distributing concealment and transporting of

the certain controlled dangerous substances and their

related paraphernalia and other tangible items and

goods in violation of th« law pertaining to Article 27,

Sections 276 thru 302 of the Annotated Code of Mary-

land.

The basis for the warrant is the probable cause based

on the information received from various reliable in-

formants, so described herein, the personal knowledge

of your affiants, the personal observations of your af-

fiants and other investigative aids.

Your First Affiant, Detective William Pennington, a

duly constituted member of the Baltimore City Police

Department, currently assigned to The Criminal In-

vestigation Division, Narcotic Unit.

[Page Two] Det. Pennington has been a police officer

for over (8) years, successfully completed the two

(2) week training class in Washington, D.C. which was

sponsored by The Bureau of Narcotics and Dangerous

Drugs, has attended the local training class also spon-

sored by that same organization, has given lectures to

various social groups has worked in the area of drug

enforcement for over five (5) years. Has worked in an

undercover capacity on many occasions, is familiar

with the methods and materials used by drug violators

in their acts of manufacturing and distributing certain

controlled dangerous substances and their related para-

phernalia, and is also familiar with the various ter-

minology frequently used in those transactions.

Your Second Affiant, Detective Oscar Requer, also

a duly constituted member of The Baltimore City

Police Department, presently assigned to Criminal In-

vestigation Division, Narcotic Unit, Detective Requer

has been a police officer for over seven (7) years and

has experience in the field of drug enforcement, has

completed the three day narcotic training class, spon-

sored locally by The Bureau of Narcotic and Dangerous

Drugs. Det. Requer is also familiar with the methods

and materials used by drug violators, he has also

worked in an undercover capacity and has been the

arresting and or investigating officer in over fifty cases

involving controlled dangerous drug violations.

During the second week of December 1970, Det.

Requer received certain information from a reliable

informant known to members of the Narcotic Unit, this

informant has in the past given information that

proved to be accurate and true, this informant has

identified over 35 different photographs of individuals

known to the Narcotic Unit as being actively engaged in

the illicit drug traffic in Baltimore City. This same in-

formant gave information about each concerning their

activities. This information accurately corresponded

with information [Page Three] that was previously

given by other logally reliable informants. This same

informant gave information and actively participated

in certain investigations that resulted in over five ar-

rest and seizures of certain quantities of controlled

dangerous substances and their related paraphernalia

during the past six months.

This same informant related to Det. Requer that he

has been in the company of a person known to him as:

Junior Bunk N/M 32, the informant was shown a group

of photographs and from the group the informant iden-

tified the B of I photo 4107-996, that being: Nathaniel

Johnson N/M 32, the informant related that during

a

7

the last two days of the 3rd week of December 1970,

he was in company with two other males and Junior

Bunk, they were in a Mercury Cougar, Gold in color

bearing Md. Lic. GN-4034, and same was being op-

erated by Junior Bunk, the informant and the two

other males were picked up at the corner of Fulton

and Baker Sts. by Junior Bunk in the Mercury Cougar.

The informant related that the conversation was about

narcotic drugs. While in the car one of the males, who

is known to members of the Narcotic Unit, whom the

informant identified from B of I photographs, asked

Junior Bunk “‘If he was going to give him his stuff

today?’’ Junior Bunk was then in the area of Edmond-

son Ave. and Pulaski St. and Brice St. and he stated

that he wanted to see if anyone else needed to re-up”’

Junior Bunk stopped the car once reaching that loca-

tion and had conversation with two males at the corner

of Brice and Edmondson Ave. the conversation was

about re-uping. (to the informant and your affiants

this terminology means to re-supply with a quantity

of narcotics) Junior Bunk advised them he would see

them later and that if he didn’t to get in touch with

Jerry or Smoke, (these persons are known to be drug

violaters — Jerry Knox, the brother-in-law of the

Person known as Junior Bunk-Nathaniel Johnson, re-

cently arrested by this Unit for violations of the nar-

cotic laws and is presently awaiting trial. And Henry

“‘Smoke Dope’’ Dawson, also a known drug violator.

These persons are known to be lieutenants for Na-

thaniel Johnson — Junior Bunk. The [Page Four]

informant then stated that Junior Bunk then drove

near the area of Edmondson Village and then to a

street that the informant identified as Wicklow Road,

Junior Bunk told the persons in the car to remain in

the car and that he would be right back. The informant

—

observed Junior Bunk go to 818 Wicklow Road and

enter with what appeared to be a key from his coat

pocket as he did not knock or ring a bell. After about

5 minutes he came out and walked back to the car and

once inside the car he handed to one of the males a

brown paper bag, the male opened it and the informant

saw that the bag contained from 5 to 8 bundles of

glassine bags that contained a white powder — sus-

pected heroin. (a bundle usually contains between 20

& 25 glassine bags) The male examined the bundles

and put them back into brown paper bag and put them

in his coat pocket. Junior Bunk then drove back to the

area of Edmondson and Brice Sts. and said “‘I don’t

_ see them so I guess they'll have to see Jerry or one

of the others.”’ Junior Bunk then drove to the area of

Fniton and Baker Sts. and everyone got out and Junior

Bunk drove from the area.

During the second week of December 1970 Det. Requer

observed the person known to him as Junior Bunk,

Nathaniel Johnson, operating a 1969 Mercury 4 dr.

sedan bearing Md. Lic. #GJ-6460 — Green with a

white top and this vehicle is listed to: Shirley Johnson

— 1008 Woodington Av. this is a past address of Na-

thaniel Johnson aka Junior Bunk, Det. Requer made

observations of Nathaniel Johnson leaving the address

of 818 Wicklow Rd. operate the Mercury Marquis Md.

Lic. GJ-6460, also the Mercury Cougar Md. Lic. GN-

4034 was parked in front of that location. After leav-

ing the area he drove to the area of Edmondson Village

and parked the auto, Det. Requer identified himself

as a police officer and the operator identified himself as

Nathaniel Johnson, and stated that he was living on

Brice St. However he could not produce a valid op-

erators permit. He advised Det. Requer that he would

9

leave the auto parked on the lot and have someone

come and remove the vehicle later on.

[Page Five] During the second week of Dec. 70, Det.

Pennington also received information from various in-

formants that Junior Bunk was presently using 818

Wicklow Rd. as a storage place and from which to

distribute controlled dangerous substances. And fur-

Stephen Tabeling in that one of Sgt. Tabelings reliable

informants while in company with an undercover pol-

ice officer identified the address of 818 Wicklow Rd.

and stated that this was the house used by Junior Bunk

as he has been in the company of Junior Bunk in the

house. This informant identified the B of I photo of

Nathaniel Johnson, as the person known to him as

Junior Bunk. Further information obtained from Det.

Sgt. Arthur Westveer that the telephone number 566-

2850 is in fact listed to a Mrs. Shirley E. Johnson N/F

— of 818 Wicklow Rd. and this person is the wife of

Nathaniel Johnson aka Junior Bunk.

During the last several months your affiant has seen

Nathaniel Johnson aka Junior Bunk in the company

of Jerry Knox, James Wesley Carter, Henry Dawson,

Charles Elliott, Jerry Wynn. All of these persons are

known to the C.LD. Narcotic Unit as being involved in

the illegal sales and distribution of controlled danger-

ous substances. All are in the files of the C.LD. Nar-

cotic Unit and have in the past been arrested for drug

charges. Nathaniel Johnson has in the past (1960)

been arrested for sales of heroin to police agents and

received a four (4) years sentence for that violation.

Det. Pennington has known this person for over a

period of five years (5) and about his activities, and

the C.LD. Narcotic Unit has maintained an active file

on Johnson for over 10 years and during those years

10

has received continuou:; reliable information as to his

activities and places of residence.

Based on the aforegoing probable cause, your affiants

believe that Nathaniel Johnson is presently using the

premises of 818 Wicklow Rd. for the illegal keeping;

concealing, distributing and manufacturing [Page Six]

of certain controlled dangerous substances and fur-

ther that the so named and described vehicles, Md. Lic.

GJ-6460 Mercury Marquis and the Md. Lic. GN-4034

Mercury Cougar is being used by Nathaniel Johnson

aka Junior Bunk for the illegal concealing, distribut-

ing there from and the transporting of certain con-

trolled dangerous substances, in violation of the law.

pertaining to Art. 27, Sections 276 thru 302 of The

Annoted Code of Maryland.

First Affant Der. Oscar Reqver

Second Affiant Der. Wm. Pennineton

Subscribed and Sworn to before me this 14 day of

Jan. 1971.

Rosert James Gerstunc

Judge of the Municipal Court of

Baltimore City.’’

Reasons for Granting the Writ

I. Expuication spy tuts Court oF wHat Ixrormation Is

Necessary To Scprort THE CrepisILity oF aN Uxipen-

TIFIED INFORMANT aND Hence to EstasisH PRoBABLE

Cavse ror THE Issvance or a Search Warrant, Is Es-

SENTIAL FOR THE GUIDANCE OF THOSE JUDICIAL OFFICERS

CaLitep Upon to Evatvate Sucu Ixrormation.

The Court below specifically and exclusively utilized as

its predicate for concluding that the informant was cred-

ible the following language in the affidavit:

ll

‘‘This same informant gave information and actively

participated in certain investigations that resulted in

over five arrests and seizures of certain quantities

(sic) of controlled dangerous substances and their

related paraphernalia during the past six months.’’

It is the contention of the Petitioner that the issue here

is not whether the informant had, in fact, given useful and

credible information in the past but rather whether within

the four corner of the affidavit sufficient facts were re-

flected to establish the necessary credibility of the in-

formant. Petitioner contends that such was not the case.

Before a magistrate can issue a search warrant he must

have sufficient information to support an independent judg-

ment that probable cause exists for the warrant. Whitely

v. Warden, Wyoming State Penitentiary, 401 U.S. 560

(1971).

To arrive at such an independent judgment the issuing

magistrate must conclude that the knowledge attributed to

the informant, if true, would be sufficient to establish prob-

able cause, that the affidavit is accurately and truthfully

relating what the informant said and that the informant

was accurate both in his description and perception of the

alleged criminal activity. U. S. v. Harris, 403 U.S. 573 at

587. (Dissenting opinion of Justice Harlan).

This Honorable Court had, in the past, held that it is

of the utmost importance that the informer be both truth-

ful and have personal observation of alleged acts. Aguilar

v. Texas, 378 U.S. 108 (1964); Spinelli v. U. S., 393 U.S.

410 (1969).

One must bear in mind that the affiant swears under

oath but the informer does not, all the more reason to lay

great stress upon the informer’s credibility.

If probable cause is to be determined by the magistrate

and not the affiant, then it follows that the greater the

12

amount ef infermation the magistrate hae about the in-

former, the more accurately will he be able to-.arrive ata

determination of the existence ef probable cause, or not,

This would undoubtedly benefit both sides since the in-

dividual’s 4th Amendment rights would be. well protected

and the warrants issued by magistrates would be less sus-

ceptible to attack on the issue of probable cause.

Petitioner contends that in the case at bar the magistrate

was furnished with insufficient information in order to

find probable cause. The affidavits said nothing about the

number of times the informer had even given imaccurate

information to the police. It did not further specify as to

when ‘‘during the past six months’’ the informant had

supplied information to the police. For all that appears,

the five arrests and seizures mentioned grew out of one

transaction or observation, occurring only on one day

during the prior six months. No mention was made of

what was actually seized, in what quantities and whether

such evidence was uncovered which the informant indicated

would be found. No corroborative information by the af-

fiants with regard to informant’s reliability cum informant

appears within the four corners of the affidavit. The ma-

gistrate was without sufficient foundation to form an opin-

ion regarding the credibility of the informer.

Surely the 4th Amendment should not be stretched to

cover the issuance of warrants upon information given by

unidentified persons whose credibility cannot be deter-

mined and whose names cannot be mentioned. Such a war-

rant, that has heen conceived in ignorance, and born in

secrecy, should be served in darkness.

IL Exp.ication sy THs Court Recarpixe tHe Errect on

Prosastz Cause or THe Lexoru or Tixe Between ay

Invormant’s OBSERVATION AND THE APPLIC. CION FOR A

Seance Wasrast Is or tHe Urmost Inuportance rm

THE GumpaNce oF JupiciaL OFrFricers.

s

—

Thé affidavit ‘reflects that the relied upon informant

made but one observation of: alleged illegal aetivity on the

part of Petitioner, on or about December 19, 1970. Applica-

tion for search warrant was not made until January 14,

1971. Petitioner contends that the lapse of 26 days between

the date of the alleged illegal activity observed and the

date of the search warrant renders the necessary element

of probable cause stale. Within the four corners of the

affidavit there are no facts which rise to a reasonable in-

ference that illegal activity was occurring at 818 Wicklow

Road on a continuing basis. Regardless of the additional

information regarding Petitioner’s past history, the only

information therein about 818 Wicklow Road is that during

the third week of December, 1970, the Petitioner was seen

entering said residence with a key and that five minutes

later he exited with a brown paper bag containing 5 to 8

bundles of glassine bags that contained a white powder

— suspected heroin. There was no information that the

powder was, in fact, heroin. There was no information

that this alleged illegal activity was anything more than

an isolated incident. No information was given to who

lived in said premises or that Petitioner had, in fact, ever

visited said premises prior to or after the observation

made during the third week of December, 1970.

The Court below cited Clayton v. State, 1 Md. App. 500,

to support its position that probable cause existed on

January 14, 1971. In Clayton v. State, supra, observation

establishing the facts set forth in the application for the

warrant were made during a period of 19 days to 12 days

from the making of the affidavit and the issuance of the

warrant. However, Judge Orth, speaking for the Court,

said, inter alia, “During this period the observation on the *

second and third day confirmed that the observations on

the first day were not an isolated instance but part of the

continuing plan and practice.’ 1 Md. App. at 504 (Em-

phasis added). ‘

18

14

The language emphasized indicates that the ‘‘hinge’’ in

the Court’s decision that probable cause existed, was the

confirmatory observations on the second and third day.

Clayton, supra, can be distinguished from the case at

bar since in the latter there was no information tending

to show a continuing plan and practice.

Clayton, supra, appears to be the only Maryland case

in point but several other jurisdictions have confronted

this issue. A lapse of 25 days was held not to vitiate

probable cause since the affidavit included an account of

extended observations in a case involving gambling activ-

ities. U. S. v. Long, 169 F. Supp. 730 (D.D.C. 1959). State

v. Cooper, 154 A. 423 (N.J. 1931).

Several jurisdictions have held that a delay in excess

of 25 days poses too great a risk to the accused that the

situation at the locus to be searched had changed during

the interim. State v. Gardner, 240 P. 984 (1925), U. S. v.

Bosch, 209 F. Supp. 15 (D.C. Mich. 1962), Dandrea v.

U. S., 7 F.2d 861 (8th C. C.A. 1925).

Ingram v. State of Oregon, 445 P. 2d 503 (1968) was a

case with a fact situation very similar to the case at bar.

There a defendant was convicted of possession of heroin

with the affidavit in support of the search warrant being

executed after a lapse of 28 days after the only observa-

tion made. The Court found lack of probable cause because

the length of time that had elapsed between the obtaining

of heroin (a sale was made) and the making of the af-

fidavit was too great to permit the magistrate to find that

probable cause existed that narcotics were on the premises

on the date of the affidavit.

In U. 8. v. Allen, 147 F. Supp. 955 (D.CFD. Kentucky

1957), Chief Judge Ford quoted from page 1414 of 162

A.L.R. 1406-1418, to the extent that an interval of not

15

more than 20 days had never been held so unreasonable

as to vitiate a search warrant, whereas an interval of 30

days had always been held to be an unreasonably long

delay. Therefore, the doubtful time zone was, roughly

speaking, the fourth week from the alleged offense.

There must, therefore, be some period of time whereby

the probable cause established by an isolated act on a

premise becomes stale. The only determination to be made

by the Honorable Court is whether the lapse of time in

the case at bar vitiates probable cause. Petitioner submits

that the test must be one of ‘‘continuing activity’’ as sup-

ported by the cases cited. There can be no magic formula

or specified lapse of time to identify ‘‘staleness’’. Rather

the concept of a ‘‘continuing activity or plan’’ becomes

a dynamic rule which can be applied irrespective of the

actual number of days involved.

Petitioner submits that a second argument can be made

by analogy to Article 27 Section 551 of the Annotated

Code of Maryland which provides that, ‘‘. . . Any search

or seizure under the authority of such search warrant

shall be made within fifteen (15) calendar days from the

date of the issuance thereof and after the expiration of

said fifteen (15) day period, said warrant shall be null

and void... .’’.

Petitioner contends that the fifteen (15) day period

should also govern any lapse between the time ef the ob-

servation of the alleged illegal act and the issucmece of

the search warrant. In support of this position, Petitioner

cites Sgro v. U. S., 287 U.S. 206, where, in a concurring

opinion, Mr. Justice McReynolds stated that sinee the

applicable statute declared that after ten days a warrant

not fully executed shall be void, no search warrant should

issue upon an affidavit more than ten days old.

a

16

= — ee

- <t0s Depgives THe Resipents or THAT STATS oF THE

Eeqvuat Prorection or tHe Laws Unper tHe Fovr-

TZENTH AMENDMENT OF THE Unitep States Constitv-

TION. - That ,

The Trial Court instructed the jury as follows:

‘‘Under the Maryland Constitution and Statutes the

jury in a criminal case is the final judge, and the

only judge, of both the facts and the law. I advise you

as to what I believe is the applicable Maryland law,

_but as I have said, under our Constitution and Stat-

utes, you have a right to disagree with my interpreta-

tion of the law.’’

The jury was subsequently instructed on various prin-

ciples of law regarding the definition of reasonable doubt,

the prohibition against inferring guilt from defendant’s

not taking the stand and so forth. However, under the

above quoted instruction the jury was free to disregard

these instructions and arrive at their own definition of

these fundamental principles of law, all to the Petitioner’s

prejudice.

The trial judge was acting in accordance with the provi-

sions of Article XV Section 5 of the Maryland Constitu-

tion which provides:

‘In the trial of all criminal cases, the Jury shall

be the Judges of Law, as well as of fact, except that

the Court may pass upon the sufficiency of the evi-

dence to sustain a conviction.’’

At the outset, Petitioner concedes that the Constitutional

issue here presented has been raised before this Honorable

Court on several occasions, Wyley v. Warden, Maryland

17

Penitentiary; -372 ‘F.2d: 742, cert. den. .389' U.S. 863, reh.

den. 389'U.S. 997;'as well as Brady v. State of Maryland,

373 U.S.:' 83; in connection with -a collateral. matter. In

Giles v. Maryland, 372 U.S. 767, an appeal was dismissed

which raised this issue along with others, for want of a

substantial federal question.

However, the Court in Brady considered this issue only

by way of deciding the main issue on appeal. Mr. Justice

Douglas commented that this provision of the Maryland

Constitution making the jury in criminal cases ‘‘the Judges

of Law does not mean precisely what it seems to say’’,

373 U.S. at 89. He then noted the limitations added by

state statute in judicial construction.

The rule embodied in Aricle XV Section 5 exists in

only two jurisdictions: Maryland and Indiana. Indiana

has largely eliminated the dangers flowing from such a

rule by holding that the trial court, ‘‘is not required to

neutralize the effect of its instructions by telling the jury

that they are at liberty to disregard them and to decide

the law for themselves.’’ Bridgewater vy. State, 153 Ind.

560, 566; 55 N.E. 737, 739 (1889).

In federal criminal prosecutions this Honorable Court

held as early as 1895 that juries are the judges of the facts,

under binding instructions by the judges on questions of

law. Sparf and Hansen v. United States, 156 U.S. 51.

Several Maryland jurists have advocated repeal or modi-

fication of Article XV Section 5. Chief Judge Stedman

Prescott declared it to be, ‘‘archaic, outmoded, and atro-

cious.’’ Prescott, Juries as Judges of the Law: Should the

Practice be Continued? 60. Md. S.B.A. 246, 247 (1955),

Chief Judge William L. Henderson referred to it as, ‘‘our

unique and indefensible procedure.’’ Henderson, The Jury

as Judges of Law and Fact in Maryland. 52 Md. S.B.A.

184, 199 (1947). See also Dennis, Maryland’s Antique

Constitutional Thorn, 92 U. of Pa. L. Rev. 34 (1943).

18

Petitioner contends that Article XV Section 5 empower-

ing the jury, as it does, to decide principles of law re-

garding the definition of reasonable doubt and to draw

inferences of guilt from his right to remain silent and not

testify at his trial operates so as to deny him due process

or violates the Equal Protection Clause of Fourteenth

Amendment.

Petitioner concedes that he did not object to the Trial

Court’s instruction at the time of trial. However, he is

not banned from raising the federal constitutionality of

Article XV Section 5, Maryland Constitution, by such

failure. Wyley v. Warden, Maryland Penitentiary, supra.

Furthermore, under the law as it existed, it would not have

availed him to do so. Slansky v. State, 192 Md. 94, 63

A.2d 599 ; O’Connor v. Ohio, 385 U.S. 82 (1966).

Conclusion

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Court of Special

Appeals of Maryland.

Respectfully submitted,

F, Lee Barmey

One Center Plaza

Boston, Massachusetts 02108

GeraLp ALCH

One Center Plaza

Boston, Massachusetts 02108

Wii H. Murpay, Jr.

2115 One Charles Center

Baltimore, Maryland 21201

Leroy W. CaRRou }

2115 One Charles Center

Baltimore, Maryland 21201

Attorneys for the Petitioner

19

APPENDIX

REPORTED

iN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 536

September Term, 1971

NATHANIEL JOHNSON, JR.

®.

State oF MaryLanpD

ANDERSON

Morton

CaRTER,

JJ.

Opinion by Anderson, J.

Filed: March 22, 1972

The appellant, Nathaniel Johnson, Jr., was convicted by

a jury in the Criminal Court of Baltimore, Judge Charles

D. Harris presiding, of conspiracy to violate the Control-

led Dangerous Substance’ Law (Indictment +658), pos-

session of heroin (Indictment #663), possession with in-

tent to manufacture and distribute a controlled dangerous

substance, heroin, (Indictment #665), and maintaining a

common nuisance (Indictment #664). Under the combined

Indictments #663 and #665, the appellant was sentenced

to a term of twenty (20) years and was fined $25,000.00.

The appellant was sentenced to a term of fifteen (15)

years and fined $25,000.00 under Indictment +664, the

sentence and fine to run consecutively to those imposed

under Indictments #663 and +665. Under Indictment

#658, the appellant was sentenced to a term of fifteen (15)

years and fined $25,000.00, the term to run concurrently

with the other two imposed but the fine was imposed con-

secutively. The total prison sentence received by the ap-

pellant was a term of thirty-five (35) years and the total

fine imposed was $75,000.00.

On appeal the appellant contends that the trial court

erred in denying his motion to quash the search warrant.

The appellant makes .a two-pronged attack on the war-

rant. He argues that the affidavit in support of the warrant

was insufficient to establish probable cause. Secondly, the

appellant argues that the time stated in the affidavit for

the warrant of the observation of the offense and the time

when the warrant was issued was so remote as to render

the probable cause stale, thereby invalidating the search

warrant.

On January 15, 1971, at approximately 7:00 p.m., the

police, armed with a search warrant issued the previous

day, entered 818 Wicklow Road in Baltimore, searched the

premises and found heroin. The appellant, who was pre-

sent at the time, was arrested and indicted.

I

Tue Arripavit axp Propaste Cause

The appellant argues that the affidavit in support of

the warrant was insufficient to establish probable cause.

Judge Orth, speaking for this Court, in Moore v. State,

13 Md. App. 711, succinctly set forth the rules governing

probable cause for the issuance of a search warrant at

713-716 :

‘*The rules governing probable cause for the issu-

ance of a search and seizure warrant need not be

complex, intricate or perplexing. We said in Buckner

v. State, 11 Md. App. 55, 61-62:

‘A judge may issue a search warrant when

it is made to appear to him by a written applica-

tion signed and sworn to by the applicant, ac-

companied by an affidavit containing facts within

the personal knowledge of the affiant, that there

is probable cause to believe that a crime is being

committed by any individual or in a building

within his territorial jurisdiction, and that evi-

dence of the crime is upon the person or within

the place to be searched. * * * Probable cause

is less than certainty or demonstration but more

than suspicion or possibility. It is to be deter-

mined 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. In determining the existence vel

non of probable cause, the judge may give con-

sideration to the special significance which ob-

jects, happenings, and individuals may have con-

veyed to a trained, experienced and knowledge-

able police officer making the affidavit accom-

panying the warrant. * * * And the affidavit may

be based on hearsay information, even from an

unidentified informant, and need not reflect the

direct personal observations of the affiant, but

it must contain some of the underlying circum-

stances from which the affiant could be reason-

ably justified in a belief that the hearsay infor-

mation was reliable or the informant was cred-

aoe?

‘When a search warrant is challenged, the

lower court, and the appellate court when the

determination of the lower court is before it on

appeal, must look for probable cause only in the

affidavit itself and may not go outside it. * * *

However the affidavit should be interpreted in a

common-sense and not a hypertechnical manner,

and the resolution of doubtful or marginal cases

should be largely determined by the preference

to be accorded to warrants. Frey v. State, 3 Md.

App. 38, 45-46, summarizing the observations in

United States v. Ventresca, 380 U.S. 102. But

* * © this is not to say that probable cause can

be made out by affidavits which are purely con-

clusory, stating only the affiant’s or an inform-

er’s belief that probable cause exists.’ (citations

omitted )

‘*Thus probable cause may be shown in the affidavit

by a statement by the affiant 1) of his direct observa-

tions, or 2) of information furnished the affiant by

someone else, named or unnamed, or 3) of a combina-

tion of the direct observations of the affiant and hear-

say information furnished him. In each instance the

issuing judge must have before him enough circum-

stances to enable him to determine the trustworthiness

of the information, for he must not only evaluate the

adequacy to show probable cause of the facts and

circumstances set out in the affidavit but he must also

»valuate the truthfulness of the source of the informa-

tion comprising those facts and circumstances. Due

to the infinite variety of human conduct, the sufficiency

of any affidavit must necessarily depend upon the

particular facts and circumstances in it contained.”’

[Footnotes omitted].

We note that Moore v. State, supra, paid due homage

to the most important Supreme Court cases dealing with

the rules governing a search and seizure warrant, te.,

Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509; Spinelli v.

United States, 393 U.S. 410, 89 S. Ct. 584, and the recent

ease of United States v. Harris, 403 U.S. 573, 91 S. Ct.

2075, which somewhat limited the application of Spinelli

v. United States, supra.

In reviewing the five page affidavit in the instant case

we must note that there are many instances in which state-

ments made by the affiants are merely conclusory. A num-

ber of different informants are relied on by the affiants

and in the case of all but one of these informants the

afiants make no showing of their reliability other than

bald statements that the informants are reliable. However,

a warrant which is inadequate in one regard is salvagable

in another. Dawson v. State, 14 Md. App. 18, concurring

opinion by Moylan, J., at 24. In the instant case we feel

that the following passage from the affidavit was sufficient

to establish probable cause :

**During the second week of December 1970, Det.

Requer received certain information from a reliable

informant known to members of the Narcotic Unit,

this informant has in the past given information that

proved to be accurate and true, this informant has

identified over 35 differnt [sic] photographs of indi-

viduals known to the Narcotic unit as being actively

engaged in the illicit drug traffic in Baltimore City.

This same informant gave information about each

concerning their activities. This information accur-

ately corresponded with information [Page Three]

that was previcusly given by other logally [sic] re-

liable informants. This same informant gave informa-

tion and actively participated in certain investiga-

tions that resulted in over five arrest and seizures

of certain quanities [sic] of controlled dangerous

substances and their related paraphernalia during the

past six months.

**This same informant related to Det. Requer that

he has been in the company of a person known to

him as: Junior Bunk N/M 32, the informant was

shown a group of photographs and from the group

the informant identified the B of I photo #107,996,

that being: Nathaniel Johnson N/M 32, the informant

related that during the last two days of the 3rd week

of December 1970, he was in company with two other

males and Junior Bunk, they were in a Mercury

Cougar, Gold in color bearing Md. Lic. GN-4034, and

same was being operated by Junior Bunk, the in-

formant and the two other males were picked up at

the corner of Fulton and Baker Sts. by Junior Bunk

in the Mercury Cougar. The informant related that

the conversation was about narcotic drugs. While in

the car one of the males, who is known to members

of the narcotic Unit, whom the informant identified

from B of I photographs, asked Junior Bunk ‘If ho

[sic] was going to give him his stuff today?’ Junior

Bunk was then in the area of Edmondson Ave. and

Pulaski St. and Brice St. and he stated that he wanted

fo see if anyone else needed to re-up’ [sic] Junior

Bunk stopped the car once reaching that location and

had conversation with two males at the corner of

Brice and Edmondson Ave. the conversation was

about re-uping. (to the informant and your affiants

this terminology means to re-supply with a quanity

[sic] of narcotics) Junior Bunk advised them he

would see them later and that if he didn’t to get in

touch with Jerry or Smoke, (these persons are known

to be drug violators — Jerry Knox, the brother-in-law

of the Person known as Junior Bunk-Nathaniel John-

son, recently arrested by this Unit for violations of

the narcotic laws and is presently awaiting trial. And

Henry ‘Smoke Dope’ Dawson, also a known drug

violator. [sic] These persons are known to be lieu-

tenants for Nathaniel Johnson — Junior Bunk. The

[Page Four] informant then stated that Junior Bunk

then drove near the area of Edmondson Village and

then to a street that the informant identified as Wick-

low Road, Junior Bunk told the persons in the car

to remain in the car and thet [sic] he would be right

back. The informant observed Junior Bunk go to 818

Wicklow Road and enter with what appeared to be

a key from his coat pocket as he did not knock or

ring a bell. After about 5 minutes he came out and

walked back to the car and once inside the car he

handed to one of the males a brown paper bag, the

male opened it and the informant saw that the bag

contained from 5 to 8 bundles of glassine bags that

contained a white powder — suspected heroin. (a

bundle usually contains between 20 & 25 glassine bags)

The male examined the bundles and put them back

into brown paper bag and put them in his coat pocket.

Junior Bunk then drove back to the area of Edmond-

son and Brice Sts. and said ‘I don’t see them so I

guess they'll have to see Jerry or one of the others.’

Junior Bunk then drove to the area of Fulton and

Baker Sts. and everyone got out and Junior Bunk

drove from the area.’’

Following the aplicable guidelines, we feel that the last

sentence of the first quoted paragraph in the affidavit,

which related that the informant had given information

and actively participated in investigations resulting in over

five narcotic arrests and seizures within the preceding six

months, was adequate for the issuing magistrate to con-

elude that the informant was credible. Frankis v. State,

11 Md. App. 534, 538. We feel further that the rest of

the above quoted passage sets forth sufficient facts and

circumstances so that the issuing magistrate would be

justified from the facts presented in the affidavit in believ-

ing that the offense has been or is being committed. The

second paragraph sets forth observations by an informant

who, as has been stated, could have been considered credible

by the issuing magistrate. These observations, if true,

constitute probable cause to believe that the narcotics laws

were being violated by the appellant at 818 Wicklow Road.

The appellant contends, however, that even the quoted

portion of the affidavit is insufficient because the sequence

of time as to when the informant relayed his observations

to Detective Requer is unclear. We disagree. It is true

that the first paragraph of the quoted passage relates that

the informant first gave information to Detective Requer

during the second week in December, 1970, and that no

other date is given for the passing of information between

the informant and Detective Requer. “Taken literally this

would seem to indicate that the informant gave Detective

Requer information about events which occurred on the

last two days of the third week in December, 1970, during

the second week in December, 1970. This, of course, is an

impossibility and we do not think the magistrate was

required to read the affidavit in this manner. As stated,

the affidavit should be interpreted in a common-sense and

not a hypertechnical manner, and the resolution of doubtful

or marginal cases should be largely determined by the

preference accorded to warrants. United States v. Ven-

tresca, supra; Henderson v. State, 243 Md. 342, 347; Frey

v. State, supra. Further the general rule is that when an

error appears in the affidavit concerning the date of the

observation such error will not vitiate an affidavit. Varon,

Searches, Seizure and Immunities, Sec. 13, at 324. In the

instant case, a common-sense interpretation of the affidavit

could only have led to the conclusion by the issuing magis-

trate that there necessarily had to have been some com-

munication between the informant and Detective Requer

after the secon? week in December, 1970. In fact, this

communication could only have taken place at some time

after the last two days of the third week in December, 1970.

27

II

Tue Issue or Statz Propastz Cause

The appellant contends further that the warrant was

a stale warrant in that the issuance of the warrant occurred

at a time which was too remote from the observation of

the offense. The observations occurred on the 18th and

19th of December, 1970, and the affidavit was made and

issued on January 14, 1971. There is no statute in this

State providing that the facts in the application, set forth

to establish probable cause, must result from observations

made within a designated time before the issuance of the

warrant. Nor do we find any cases which lay down a rigid

rule. However, the 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. Clayton v. State, 1 Md. App. 500, 503. The issue,

therefore, is whether this lapse of 26 days between the

observation of the facts and the issuance of the warrant, -

was so remote, when considered in the circumstances of

this case, so as to invalidate the search warrant. Clayton

v. State, supra, at 504. See Varon, supra, at 322; 100

A.L.R. 2d 525.

In Clayton v. State, supra, the observations establishing

the facts set forth in the application were made during

a period of 19 days to 12 days from the making of the

affidavit and the issuance of the search warrant. Three

observations were made and the Court in Clayton v. State,

supra, at 504, was of the opinion that the second and third

observations confirmed that the observations on the first

day were not an isolated instance but part of a continuing

plan and practice. The Court considered this continuing

plan and practice an important fact in holding that the

lapse of 19 days to 12 days was not so remote as to render

the warrant invalid. Clayton v. State, supra, at 504.

LUPE RH “Sy

28

It is true that in the instant case that there were only

two valid observations in the affidavit and that the lapse

was one of 26 days. However, in the instant case the

affidavit asserts that the informant was present when the

appellant was making his rounds to determine who was to

be re-supplied with narcotics. It was at this point that

the appelalnt returned to 818 Wicklow Road and brought

back five to eight bundles of glassine bags containing the

suspected heroin. The activity of the appellant when the

informant was in the appellant’s car seemed to suggest a

continuing business in the distribution of narcotics. We

feel, therefore, that under the facts and circumstances of

this case, the facts observed were not so remote from the

issuance of the warrant to invalidate the warrant for lack

of probable cause. Clayton v. State, supra, at 504. In this

regard it is important to remember what we have stated

above and what the Court of Appeals said in Henderson

v. State, supra, when the Court at 347 quoted United States

v. Ventresca, supra:

*** when a magistrate has found probable cause

the courts should not invalidate the warrant by in-

terpreting the affidavit in a hypertechnical, rather than

a commonsense manner. Although in a particular case

it may not be easy to determine when an affidavit

demonstrates the existence of probable cause, the

resolution of doubtful or marginal cases in this area

should be largely determined by the preference to be

accorded to warrants.”’

We find no error in the denial of the motion to quash

the warrant.

JUDGMENTS AFFIRMED;

APPELLANT TO PAY COSTS.