De Angelo v. State, 60

• Decision Date: 10 January 1952
• Docket Number: No. 60,60
• Citation: 85 A.2d 468,199 Md. 48
• Parties: DE ANGELO v. STATE.
• Court: Maryland Court of Appeals

Page 48

199 Md. 48

85 A.2d 468

DE ANGELO v. STATE.

No. 60.

Court of Appeals of Maryland.

Jan. 10, 1952.

R. Palmer Ingram, Baltimore (Malcolm J. Coan, Baltimore, on the brief), for appellant.

Robert M. Thomas, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Anselm Sodaro, State's Atty., and Chas. E. Orth, Jr., Asst. State's Atty., Baltimore, on the brief), for appellee.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS, Judge.

Here are appeals from judgments and sentences imposed on verdicts of guilty on charges of sale of lottery tickets; having in possession lottery tickets, slips and records; gambling on horse races; and making books on horse races. The cases were tried before the trial without a jury.

On March 16, 1951, about 1 P. M., Sergeant Joseph J. Byrne went to the premises at 236 S. Eaton Street, Baltimore, a private dwelling, having with him a search warrant signed by Chief Judge W. Conwell Smith, allowing him to enter those premises. That search warrant also authorized him to diligently search for lottery tickets and other paraphernalia used in the unlawful operation of lottery, and to bring said lottery tickets and lottery paraphernalia, so found, also the body of a person known to the officer 'as Chickie and all other persons who may be found participating in said lottery before me, the subscriber, or some Police Justice of the said State, in and for the City aforesaid, to be disposed and dealt with according to law.'

Sergeant Byrne knocked on the door of the dwelling, which, according to the testimony belonged to a Mr Martini and his wife, Clemy, the parents of 'Chickie', Anthony Martini, mentioned in the search warrant. Receiving no answer to his knock, Sergeant Byrne tried the lock on the door and finding it unlocked walked in and found there Mr. Martini and his wife and a 13 year old girl. He showed Mrs. Martini the search warrant and read sections to her. Sergeant Byrne testified that: 'She then asked if she could get a drink of water. I said yes, and she started back. It is necessary to pass the side door to get into the dining room. So I just walked to the side door, watched her go back and she started back. She ran over to a buffet, reached in, pulled out a brown paper bag and shoved it into her pocket. I followed immediately and took it away from her. It contained lottery numbers and $5.85 in money.' He then tried to quiet Mrs. Martini, who was very excited. Just then the side door opened and the appellant, DeAngelo, stepped immediately inside the door. Sergeant Byrne said: 'I told him the place was under search and seizure warrant and told him to come into the room where I was. He was in the hallway. He came in. I showed him the warrant, showed him the date, showed him the judge's signature and told him I had a right to search him'. Just then two small children, six and seven years of age, came running from the upper floors and approached Mrs. Martini. Sergeant Byrne then asked Angelo if he was 'going to let me search' him. Angelo replied 'No.' The Sergeant then asked: 'What effort would you put up if I attempted to search you, physical violence?' Angelo replied: 'Yes, if you attempt to search me, I will fight.' Sergeant Byrne then took Angelo to the police station where he was searched in the presence of the turnkey. They found on Angelo: '222 numbers, 7 slips, $41.52 in play, 2 slips containing 5 race horse bets and a $5 bill, wrapped in between them'. On cross examination Sergeant Byrne admitted that when Angelo stepped in the house he was not violating any law in his presence, and that he had never seen Angelo before.

At the trial of these cases testimony as to these articles and the articles themselves, found on the person of Angelo, were offered in evidence over objection. Appellant contends that these were not admissible in evidence, over his objection, and with this contention we agree.

Code, Article 35, Section 5, commonly known as the 'Bouse Act', provides that no evidence shall be admissible in a trial of a misdemeanor which has been procured by an illegal search and seizure. Of course, if a misdemeanor be committed in the presence of an officer who is charged with the enforcement of the law, he is authorized, without a warrant to arrest the offender. As an incident of the arrest he is authorized to search the prisoner, and the tangible evidence or instrument of the crime, whether upon his person or within his use and immediate possession, can be seized, taken into possession and examined. If the arrest was lawful, the search was lawful and the articles found on him were admissible in evidence. If the arrest was unlawful, the incidental search in connection therewith was likewise in violation of the constitutional rights of the defendant. Callahan v. State, 163 Md. 298, 301, 162 A. 856; Hill v. State, 190 Md. 698, 701, 702, 59 A.2d 630; Lawrence v. State, 103 Md. 17, 37, 63 A. 96. In the case now before this Court the arresting officer admits that the accused was not violating any law in his presence. The appellee admitted that no obvious misdemeanor was committed in the officer's presence by the accused.

The State, however,...