Griffin v. State

• Decision Date: 11 November 1952
• Docket Number: No. 2,2
• Citation: 92 A.2d 743,200 Md. 569
• Parties: GRIFFIN v. STATE.
• Court: Maryland Court of Appeals

Page 569

200 Md. 569

92 A.2d 743

GRIFFIN v. STATE.

No. 2.

Court of Appeals of Maryland.

Nov. 11, 1952.

Rehearing Denied Dec. 12, 1952.

R. Palmer Ingram and Malcolm J. Coan, both of Baltimore, for appellant.

Ambrose T. Hartman, 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 MARKELL, C. J., and DELAPLAINE, COLLINS and HENDERSON, JJ.

DELAPLAINE, Judge.

These three appeals were brought by Richard Griffin from convictions by the Criminal Court of Baltimore on three indictments charging violations of the statutes prohibiting lotteries and gambling on races.

On October 15, 1951, shortly before noon, Officer Thomas McKew and two other policemen noticed three men enter the back door of appellant's home at 1002 North Durham Street. McKew approached the house and, by peeping through a side window, saw a man sitting at a table and several men standing. He also saw 'a pad of slips and a conventional lottery book open on the table.' According to his testimony, he had no search warrant but he knew that the slips and the book were lottery materials. He went to the back door, and just as he was about to ring the bell an unidentified Negro opened the door. As soon as the officer showed his badge and identified himself, he was admitted. He recognized the man sitting at the table to be appellant, arrested him, and seized the book and the slips. He then called in the other two officers. On the second floor he seized another lottery book and slips. Some of the slips were bets on horse races.

Appellant objected to the admission of the gambling paraphernalia in evidence, but the objection was overruled. He claims that the search and seizure were illegal. The Bouse Act, upon which he relies, provides that no evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been procured in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Rights of this State. Laws 1929, ch. 194; Laws 1947, ch. 752; Laws 1951, chs. 145, 704, 710, Code 1951, art. 35, § 5.

Article 26 of the Maryland Declaration of Rights condemns (1) all warrants, without oath or affirmation, to search or to seize, and (2) all general warrants. In this case the arresting officer had no warrant of any kind. The question for decision is whether the gambling paraphernalia introduced in evidence at the trial had been procured by 'illegal search or seizure'.

The Fourth Amendment to the Constitution of the United States, which forbids unreasonable searches and seizures, is a limitation upon the powers of the Federal government. That amendment originated in the determination of the framers of the Bill of Rights to secure against the Federal government those safeguards which had grown up in England to protect against unreasonable searches and seizures such as had been made under general warrants issued by authority of the British government. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.

Some of the States have constitutional provisions, some have statutory provisions, forbidding unreasonable searches and seizures. In People v. Chiagles, 237 N.Y. 193, 142 N.E. 583, 32 A.L.R. 676, Judge Cardozo said: 'It is thus the statutes of New York express the principle that English law received as the outcome of the prosecutions of Wilkes and Entick. * * * The immunity is not from all search and seizure, but from search and seizure unreasonable in the light of common-law traditions.' We accordingly hold that the term 'illegal search or seizure', as contained in the Bouse Act, means unreasonable search or seizure according to the standard of the common law. Wood v. State, 185 Md. 280, 285, 44 A.2d 859.

Generally, a police officer has no right to break into the privacy of a home and make a search for evidence without a warrant for that purpose. No mere belief that an article sought by law enforcement officers is concealed in a private dwelling furnishes justification for a search of the dwelling without a warrant, even though the facts show probable cause. Accordingly, after the passage of the Bouse Act, the Court of Appeals held in Gorman v. State, 161 Md. 700, 158 A. 903, that where a police officer, suspecting a violation of the lottery law in a certain house because of the number of persons entering and leaving it, entered it through an open door without a warrant and seized lottery books and slips found in the house, such articles were procured by illegal search and seizure and were inadmissible in evidence against the householders.

Nevertheless, it is the unquestioned law of Maryland that if a misdemeanor is committed in the presence or view of a police officer, he may arrest the offender forthwith without a warrant. Heyward v. State, 161 Md. 685, 692, 158 A. 897; Blager v. State, 162 Md. 664, 666, 161 A. 1; Callahan v. State, 163 Md. 298, 301, 162 A. 856; Silverstein v. State, 176 Md. 533, 540, 6 A.2d 465; Kershaw v. State, Md., 85 A.2d 783. In 1871 Judge Alvey used the following language in his opinion in Mitchell v. Lemon, 34 Md. 176, 181, in defining the authority of the members of the Police Department of the City of Baltimore: 'Such officers, by the common law, have full power to arrest and detain the offender, where the offense is committed in their view, and this, whether the offense be one at the common law, or created by statute or police regulation. Indeed, without such power, it would be impossible to execute the various police regulations of a prohibitory or preventive character. For it is obvious, if it were necessary before arresting an offender, caught in the act of offending, that a magistrate's warrant should be obtained, many offenses and violations of the police regulations, would be accomplished and the offender, if transient and unknown, would escape altogether. This is not contemplated either by the statute conferring the police power, or the common law.'

We specifically hold that it is lawful for a police officer without a warrant to enter and search a dwelling when he can see from the outside that a crime is being committed inside. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 6, 70 L.Ed. 145; Johnson v. United States, 333 U.S. 10, 69 S.Ct. 367, 370, 92 L.Ed. 436.

Appellant claimed that the table, on which the lottery book and slips were lying, was about four feet from the window, and that the officer could not possibly have read what was in the book or on the slips. Therefore, he earnestly contended, the officer did not see any violation of law by looking through the window. On the other hand, the officer, while admitting that he could not read what was written in the book or on the slips until after he had entered the house, declared that the table was not more than two feet from the window and, as it was broad daylight, he could see a conventional lottery book and lottery slips.

It is immaterial that the invading officer in the case at bar could not read any of the notations in the book or on the slips before...