# Petition for Writ of Certiorari — Johnson v. Maryland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1423%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 409 U.S. 1039 ## Text 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 -