87 A.2d 618 (Md. 1952), 127, Saunders v. State

Docket Nº:127.
Citation:87 A.2d 618, 199 Md. 568
Opinion Judge:[10] Delaplaine
Party Name:SAUNDERS v. STATE.
Attorney:[7] Harry A. Cole and Milton B. Allen for the appellant.
Case Date:April 02, 1952
Court:Court of Appeals of Maryland

Page 618

87 A.2d 618 (Md. 1952)

199 Md. 568

SAUNDERS

v.

STATE.

No. 127.

Court of Appeals of Maryland.

April 2, 1952

Rehearing Denied May 6, 1952. [199 Md. 569]

Page 619

Harry A. Cole and M. B. Allen, both of Baltimore, for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Anselm Sodaro, State's Atty. and Edwin A. Gehring, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

Charles Saunders, appellant, was convicted in the Criminal Court of Baltimore on three indictments charging that he sold lottery tickets, kept a room for the purpose of selling lottery tickets, and had lottery tickets in his possession. Code 1939, art. 27, secs. 405, 409, 411. The Court sentenced him on each indictment to serve in the Maryland House of Correction for nine months and to pay a fine of $1,000, the terms of imprisonment to run concurrently. He appealed here from the three judgments of conviction.

Appellant contends that the search warrant under which the evidence was obtained was illegal because it failed to name or describe the persons to be searched. He relies on the Bouse Act, which directs that in the trial of misdemeanors no evidence shall be deemed admissible where it has been procured by any illegal search or seizure or any search and seizure prohibited by the Declaration of Rights of this State. Code Supp.1947, art. 35, sec. 5.

The warrant was issued by Judge France on September 5, 1951, upon an affidavit of Captain Alexander L. Emerson of the Baltimore City Police Department. It commanded him, with the necessary and proper assistants, (1) to enter and search the two-story brick dwelling at 2403 Frances Street; (2) to search the pockets of the clothing of 'all persons found in the premises or who may enter the premises' for lottery paraphernalia; (3) to seize all evidence pertaining to any form of gambling; (4) to arrest a Negro about 35 years old, about 5 feet, 9 inches, in height, and weighing about 160 pounds; and (5) to arrest all persons found to be violating the lottery laws.

The search was made at about 10:30 p. m. Captain Emerson, who was accompanied by two other police officers, knocked on the door and demanded entrance, declaring that he had a search warrant. As the door was not opened, he opened it and entered the

Page 620

house, followed by the other two officers. In the front room were a man [199 Md. 571] and two women. He showed them the warrant, and sent the other officers to the second floor, where they found appellant. The telephone rang several times, the callers asking to place numbers bets with 'Ranny,' who was identified as appellant. In the kitchen cupboard were lottery books and 'dream books.' On the buffet in the dining room were more numbers slips. The captain then went to the second floor, where appellant showed him a brief case containing books with 481 lottery slips for bets totalling more than $1,000.

Article 26 of the Maryland Declaration of Rights declares: 'That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.'

There is a similarity between the search and seizure provisions in the organic law of the several States and the Fourth Amendment to the Constitution of the United States, which provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The first ten amendments were adopted as a result of the agitation of the framers of the Constitution for a Bill of Rights to secure the safeguards of freedom to American citizens. In addition to the constitutional provisions, the several States have statutes which regulate the issuance of search warrants in accordance with the basic law. The Maryland search warrant statute contains a proviso 'that any such search warrant shall name or describe, with...

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