Saunders v. State

Decision Date02 April 1952
Docket NumberNo. 127,127
Citation87 A.2d 618,199 Md. 568
PartiesSAUNDERS v. STATE.
CourtMaryland Court of Appeals

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 house, followed by the other two officers. In the front room were a man 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 reasonable particularity, the individual, building, apartment, premise, place or thing to be searched'. Code 1939, art. 27, sec. 306, as amended by Laws 1950, ch. 81.

The constitutional and statutory provisions demand that a search warrant shall contain a description of the premises to be searched definite enough to prevent any unauthorized and unnecessary invasion of the rights of privacy. It is an accepted rule that a description in a search warrant of the place to be searched is sufficient if it enables the officer with the warrant to locate the place with certainty. In this case the warrant described the place to be searched as the two-story brick dwelling at 2403 Frances Street. Ordinarily the description in a warrant of a house to be searched is sufficiently definite if it correctly states the street number of the house. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757.

Appellant does not challenge the sufficiency of the description in the warrant of the premises to be searched, or the sufficiency of the evidence to justify his arrest in view of what was found on the premises and his obvious participation in the gambling operation. His only contention is that the command to search 'all persons found in the premises or who may enter the premises' was too broad and hence the warrant was invalid, even though the evidence produced at the trial was procured by search of the premises, and not by search of the persons.

We will assume that if the objection had been made by an accused who was found in the house or was entering the house, but there was nothing to connect him with the gambling operation, the warrant would not have justified a search of his pockets. De Angelo v. State, Md., 85 A.2d 468, 470. But, even under such assumption, it would not follow that appellant could object to the warrant on the ground that it authorized the search of other persons concerning whom no probable cause was shown and who were not adequately described. The rule is established in Maryland that the right to object to an unreasonable search is a personal privilege, and an accused cannot object to the admission of evidence on the ground that it was procured by an unlawful search of property in which he had no right, title or interest. Baum v. State, 163 Md. 153, 161 A. 244; Frankel v. State, 178 Md. 553, 562, 16 A.2d 93; Bevans v. State, 180 Md. 443, 24 A.2d 792; Lambert v. State, Md., 75 A.2d 327; Delnegro v. State, Md., 81 A.2d 241; Curreri v. State, Md., 85 A.2d 454. It has likewise been held in other jurisdictions that an accused cannot claim the right to escape conviction by reason of the fact that the constitutional rights of some other person were violated. Haywood v. United States, 7 Cir., 268 F. 795, 803, 804; Remus v. United States, 6 Cir., 291 F. 501, 511; Holt v. United States, 6 Cir., 42 F.2d 103; Shore v. United States, 60 App. D.C. 137, 49 F.2d 519, certiorari denied, 283 U.S. 865, 51 S.Ct. 656, 75 L.Ed. 1469; In re Nassetta, 2 Cir., 125 F.2d 924; 150 A.L.R. 577.

We have held that if the affidavit on which a search warrant is issued contains insufficient information or even improper information which ought not to be considered by the court, nevertheless if it also contains sufficient proper information to show reasonable ground for belief that a crime is being committed, the court is justified in issuing the warrant. Kapler v. State, Md., 71 A.2d 860. Compare Bratburd v. State, 193 Md. 352, 357, 66 A.2d 792. We have also held that a warrant authorizing the search of more than one suspected place is not void as a general warrant merely because separate warrants were not issued. Allen v. State, 178 Md. 269, 13 A.2d 352; Asner v. State, 193 Md. 68, 65 A.2d 881; Lucich v. State, Md., 71 A.2d 432.

It may be noted that in the Asner case the warrant commanded the search of a filling station and all persons found on or about the premises as well as the search of an automobile and all persons found therein. In the Lucich case the warrant commanded the search of all buildings in a tourist court and all persons found on the premises. Compare Purkey v. Mabey, 33 Idaho 281 193 P. 79; State v. Massie, 95 W.Va. 233, 120 S.E. 514; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210.

In United States v. 63,250 Gallons of Beer, D.C. Mass., 13 F.2d 242, 245, the court held that a warrant which directed the seizure of fixtures in the described premises as well as the contraband was totally void as to the owner of the property. On the other hand, it was held in State v. Moore, 125 Iowa 749, 101 N.W. 732, that the erroneous inclusion of a command to search the person as well as the premises of the owner did not vitiate the warrant but could be rejected as surplusage. It has also been held that where separate warrants are issued, the invalidity of one warrant will not vitiate a seizure under both. Maccieno v. United States, 6 Cir., 9 F.2d 61.

In the light of our decisions and the trend of the decisions in other jurisdictions, we conclude that the warrant in this case can be sustained as to the search of the premises and all persons participating in the crime,...

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