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holding that the street informant failed the "veracity" prong because no information was provided as to whether the street informant had passed on information before and turned out to be correct
Summary of this case from State v. BracyOpinion
No. 303, September Term, 1972.
Decided January 8, 1973.
SEARCHES AND SEIZURES — Probable Cause For Warrant Or Warrantless Search — Hearsay Information — "Credible" Informant — "Reliable" Information — "Veracity" — Aguilar v. Texas, 378 U.S . 108 — Aguilar Commands Magistrate Be Informed Of Some Underlying Circumstances From Which Officer Concluded Informant Is "Credible" Or His Information "Reliable" — "Credibility" Means Reputation And Demonstrated History Of Honesty And Integrity — "Reliability" Of Information Involves Some Circumstances Assuring Trustworthiness On Particular Occasion It Is Given — Any Circumstance Qualifying As A Trustworthy Exception To Hearsay Rule In A Trial Would Qualify In A Probable Cause Setting. pp. 562-563
SEARCHES AND SEIZURES — Probable Cause For Warrant — Primary And Secondary Informants — Hearsay Information Twice Compounded — Issuing Magistrate Must Judge Hearsay Information Passed Along By Primary Informant On (1) Credibility Of Secondary Informant And (2) Worth Of Secondary Informant's Information — Ultimately, Magistrate Must Have Benefit Of Someone's First-Hand Observation To Evaluate Worth Of Information And Satisfactory Proof Of Credibility Of Every Person In Chain Of Transmission Of Information From Initial Observer To Magistrate Himself. pp. 564-565
SEARCHES AND SEIZURES — Warrant Or Warrantless Search — Probable Cause — Aguilar's "Veracity" Prong — Hearsay Information May Be Furnished Under Circumstances Reasonably Insuring Its Reliability Even Absent Any Knowledge As To Its Source's Credibility. pp. 566-567
SEARCHES AND SEIZURES — Probable Cause For Warrantless Search Of Automobile For Evidence Of Narcotics Violations — Hearsay Information From Regular Police Informant — Reliability Of Secondary Informant — Information Furnished In Instant Case Where Unnamed Street Seller Of Drugs, As A Secondary Informant, Passed On Information To His Customer Who In Turn, As A Regular Primary Informant, Gave Such Information To Police, Were Circumstances Reasonably Trustworthy For Police To Act In Making A Warrantless Search Of Accused's Automobile For Drugs — Upon A Constitutionally-Mandated Independent Review, Appellate Court Found That Information Furnished By Secondary Informant Was Reliable Notwithstanding His Utter Lack Of Demonstrated Credibility. pp. 567-568
J.A.R.
Appeal from the Criminal Court of Baltimore (GRADY, J.).
Guy Charles Thompson, Jr., was convicted in a nonjury trial of possession of heroin, and, from the judgment entered thereon, he appeals.
Note: Certiorari denied, Court of Appeals of Maryland, March 14, 1973.
The cause was argued before THOMPSON, MOYLAN and DAVIDSON, JJ.
Gerald A. Kroop for appellant.
David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State's Attorney for Baltimore City, and Mark Van Bavel, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
This case prompts a consideration of the long-neglected alternative spur of Aguilar's "veracity" prong. The two-pronged test of Aguilar established constitutional guidelines for measuring hearsay information in a probable cause setting (either as predicate for a warrant or for acting, under appropriate circumstances, without a warrant). The "basis of knowledge" prong requires of him who would act upon hearsay, a knowledge "of some of the underlying circumstances" upon which the informant based his conclusion. The "veracity" prong is in the alternative. It requires of him who would act upon the hearsay, a knowledge of "some of the underlying circumstances" which leads to the conclusion that the informant is 1) "credible or 2) his information reliable."
Aguilar v. Texas, 378 U.S. 108.
Most of the case law treats exclusively of the "credibility" aspect of the "veracity" prong. In Dawson v. State, 14 Md. App. 18, 35 (concurring opinion), we despaired at the failure of the Supreme Court to make clearer the meaning of the phrase "or his information reliable":
"The intrinsic approach to veracity is an alternative one in that Aguilar commands that the magistrate `be informed of some of the underlying circumstances from which the officer concluded that the informant' was `credible' OR `his information reliable.' The Supreme Court, ironically, has never discussed the impact of the language, `or his information reliable.' Arguably, supporting facts which show that an informant's information is `reliable' thereby show also that the informant is, on that occasion at least, `credible.' Unless the alternative phraseology is meaningless, the informant's `credibility' would seem to involve his inherent and ongoing character as a person — his reputation and demonstrated history of honesty and integrity. Informational `reliability,' as something separate from its source's credibility, would seem to involve some circumstances assuring trustworthiness on the particular occasion of its being furnished. Although hypothetical examples are difficult to conjure up in the context of police informers, it would certainly follow that any circumstance qualifying as a trustworthy exception to the hearsay rule in a trial setting would, a fortiori, qualify in a probable cause setting. Fortunately, it is not this aspect of Aguilar's veracity prong which is before us in the case at bar."
This aspect of Aguilar's "veracity" prong is now before us. The present case, by way of illustration, will help to fill that former void.
The appellant, Guy Charles Thompson, Jr., was convicted in the Criminal Court of Baltimore by Judge J. Harold Grady, sitting without a jury, of possession of heroin. He was sentenced to a prison term of four years. On December 22, 1970, the appellant was arrested in his automobile and the automobile was searched. The search uncovered a brown paper bag containing 143 glassine bags of heroin. The conviction rises or falls on the legitimacy of that automobile search, which is the sole issue presented by the appellant on this appeal.
Counsel have been helpful in narrowing the issue. It is agreed that we are dealing with a warrantless search of the appellant's automobile under the so-called "automobile exception" to the warrant requirement. It is further agreed that there is no problem as to exigency. The only issue is whether Officer Donald Schline of the Narcotics Unit of the Baltimore City Police Department had probable cause to believe that the automobile contained evidence of narcotics violations. The adequacy of that probable cause, in turn, depends upon whether Officer Schline was entitled to credit certain hearsay information.
At approximately 12:30 p.m. on December 22, 1970, Officer Schline received information from one of his regular informants, which precipitated his search of the appellant's automobile within the hour. Officer Schline furnished to the trial court a substantial basis for believing in the credibility of this regular informant. The appellant agrees that the credibility of this primary informant is established beyond dispute. The rub is that this credible, primary informant passed on to Officer Schline information which he had, in turn, received from another unnamed person. We are dealing with hearsay twice compounded. We are dealing with the type of problem referred to in Dawson v. State, 11 Md. App. 694, 701, n. 3, although we were discussing it there in a search warrant setting:
"If the informant himself is offering not direct observation but hearsay twice compounded, the entire evaluation process must begin again at a second level of remoteness. The primary informant must then pass along sufficient data in sufficient detail so that the magistrate may again judge for himself 1) the credibility of the secondary informant and 2) the worth of that secondary informant's information. If, in some extreme hypothetical situation, the secondary informant should be a mere conduit for hearsay thrice compounded from a tertiary informant, the evaluation process is escalated to yet another level of remoteness and so on ad infinitum. Spinelli, at 416 (majority opinion by Harlan, J.) and 423-425 (concurring opinion by White, J.). Ultimately, the magistrate must have the benefit of someone's first-hand observation in order to evaluate the worth of the information and must have also satisfactory proof of the credibility of every person involved in the chain of transmission of the information from the initial observer to the magistrate himself."
The credibility of the primary informant — Officer Schline's regular informer — is granted. That credibility is indispensable, since the primary informant is a conduit for the information from its more remote source back to Officer Schline. The credibility of that primary informant is not enough, however, since he is but the conduit. In addition, Officer Schline must have had, and must have passed on to the trial court, a basis for crediting that more remote, secondary informant. Kapler v. State, 194 Md. 580, 587-588; Bolesta v. State, 9 Md. App. 408, 412-416; Mullaney v. State, 5 Md. App. 248, 252-256. With this analysis in mind, we look to the events of December 22.
Officer Schline's informant was, or posed as, a narcotics addict and regular purchaser of narcotic drugs. During the late morning of December 22, he went to the 700 block of Newington Avenue to buy from his seller some drugs, which he intended to pass on to Officer Schline. This unidentified seller, who is the secondary informant now under analysis, informed his purchaser that he did not then have any drugs to sell. He urged his purchaser to return at around 1 p.m. He indicated that he would then have drugs to sell "when Guy made the drop." A "drop" is a recognized term in the jargon of the junkie for a delivery of drugs by an upper-echelon distributor to a street dealer.
From his own knowledge, the primary informant — Officer Schline's regular informer — was able to specify that "Guy" was the appellant Guy Thompson and that he would be driving a 1965 Pontiac with Maryland tag number FG 5147. The primary informant's own information, however, went only to the identity of "Guy" and not to his anticipated criminal activity at or about 1 p.m. on December 22. That information came only from the more remote, secondary informant. With respect to that secondary informant, it is agreed that he spoke from first-hand knowledge. Aguilar's "basis of knowledge" prong is not in issue. Our single problem is to measure this secondary informant — this unnamed street seller — against Aguilar's "veracity" prong. Was there reason to believe that he was "credible" or that his information was "reliable?"
In terms of our now classical mode of measuring an informant by the credibility aspect of Aguilar's "veracity" prong, this unnamed street seller could not pass the test. Officer Schline did not know who he was or anything at all about him. No information was furnished as to whether the street seller had ever passed on information before, which had turned out to be correct. His inherent credibility — his integrity — his status as a truth speaker — is a total and unrelieved mystery. This aspect of traditional Aguilarian analysis yields absolute zero.
The "veracity" prong of Aguilar is, however, significantly phrased in the disjunctive. Even knowing nothing about the inherent credibility of a source of information, we may still ask, "Was the information furnished under circumstances giving reasonable assurances of trustworthiness?" If so, the information is "reliable," notwithstanding the ignorance as to its source's credibility.
Although the rationale was not always neatly pigeonholed for convenience of later analytic synthesis, and although additional reasons based on practical necessity were sometimes advanced, the decisions of the Court of Appeals and of this Court have long portended that hearsay information may be furnished under circumstances reasonably insuring its reliability, even absent any knowledge as to its source's credibility. Jones v. State, 242 Md. 95, 100-101 (reliable information furnished by a rape victim, a named witness, and several other unidentified witnesses); Taylor v. State, 238 Md. 424, 429-431 (reliable information furnished by an unidentified witness to a robbery); Evans v. State, 11 Md. App. 451, 455-459 (reliable information furnished by an unknown robbery victim); Ward v. State, 9 Md. App. 583, 590-592 (reliable information furnished by two cleaning maids at a motel who observed narcotics in a motel room); Knight v. State, 7 Md. App. 282, 285-286 (reliable information furnished by two witnesses to a crime); Edwards v. State, 7 Md. App. 108, 112, f. 1 (reliable information furnished by one confessing to a crime, in the course of which confession he implicated another); Grimm v. State, 6 Md. App. 321, 326-328 (reliable information furnished by a taxicab driver); Boone v. State, 2 Md. App. 80, 93 (reliable information furnished by one confessing to a crime, which confession implicated another).
We believe a like reasoning to apply to the unnamed street seller at bar. Though from the criminal milieu, to be sure, he was not, wittingly at least, working with the police. He was not in the position of "the common informant. . . hidden behind a cloak of anonymity" who more often than not "is paid or provides information in exchange for immunity from prosecution for his own misdeeds." People v. Glaubman, 485 P.2d 711, 716-717 (Colorado, 1971). This street seller was, so far as he knew, engaged in a purely commercial venture for his own profit. He was dealing with a regular and presumably valued customer. Being unable initially to satisfy his customer's demand, it was to his every advantage to assure the prompt return of that customer as soon as fresh merchandise was available for sale. He simply had no purpose in misleading his own clientele. The circumstances in which the seller passed on the information to a customer and confidant are replete, we think, with reasonable assurances of trustworthiness. Upon our constitutionally-mandated independent review, we believe the information furnished by this secondary informant to have been reliable, notwithstanding his utter lack of demonstrated credibility.
Believing the reliability of the information to have been intrinsically established by the circumstances in which it was transmitted, it is unnecessary to recite several other items of Officer Schline's own knowledge and direct observation which would have lent extrinsic support, were such extrinsic support necessary.
Judgment affirmed.