Baum v. State

• Decision Date: 21 June 1932
• Docket Number: 45.
• Citation: 161 A. 244,163 Md. 153
• Parties: BAUM ET AL. v. STATE.
• Court: Maryland Court of Appeals

161 A. 244

163 Md. 153

BAUM ET AL. v. STATE.

No. 45.

Court of Appeals of Maryland

June 21, 1932

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Albert Baum, Thomas Kelly, William Lewis, and Horace Rockwell were convicted of violation of Code Pub. Gen. Laws 1924, art. 27 § 247, relating to gambling, and they appeal.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Samuel Greenfeld, of Baltimore (William Greenfeld, of Baltimore, on the brief), for appellants.

G. C A. Anderson, Asst. Atty. Gen. (Wm. Preston Lane, Jr., Atty. Gen., Herbert R. O'Conor, State's Atty., and Albert H. Blum, Asst. State's Atty., both of Baltimore, on the brief), for the State.

DIGGES J.

The appeal in this case is from a conviction of the appellants of violation of section 247 of article 27 of the Code, which makes it unlawful for persons, associations, or corporations within the state of Maryland to "bet, wage or gamble in any manner, or by any means, or to make or sell a book or pool on the result of any trotting, pacing or running race of horses or other beasts, or race, contest or contingency of any kind, or to establish, keep, rent, use or occupy or knowingly suffer to be used, kept or rented or occupied, any house, building, vessel, grounds or place, or portion of any house, building, vessel, grounds or place, on land or water, within the State of Maryland, for the purpose of betting, wagering or gambling in any manner, or by any means, or making, selling or buying books or pools therein or thereon upon the result of any race or contest or contingency, or by any means or devices whatsoever, to receive, become the depository of, record or register, or forward or purpose, or agree or pretend to forward any money, bet, wager, thing or consideration of value, to be bet, gambled or wagered in any manner, or by any means or device whatsoever, upon the result of any race, contest or contingency." The indictment contained a number of counts setting forth the violation of the various provisions of the above statute, in order to meet the varying character of the proof which might be adduced at the trial. The indictment was against the appellants and one Frank Adler. Before the trial, Adler filed a motion to suppress certain evidence, and to have returned to him certain articles which in the petition were alleged to have been seized illegally. In this petition he set forth that the premises No. 129 West Mt. Royal avenue belonged to him; that the articles and papers were seized by the police officers of the state of Maryland illegally and unlawfully and without a search warrant. This petition was overruled, whereupon Adler elected to be tried by jury; a severance was had, and the trial resulted in his acquittal. The other defendants, the appellants here, elected to be tried by the court sitting as a jury, and were found guilty and sentenced to suffer certain penalties.

The first contention is that under the provisions of chapter 194 of the Acts of 1929, now section 4A of article 35, the articles, papers, etc., which were seized by the police were taken in consequence of an illegal search and seizure. The provisions of the section relied upon are that "no evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been procured by, through, or in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Rights of this State; nor shall any evidence in such cases be admissible if procured by, through or in consequence of a search and seizure, the effect of the admission of which would be to compel one to give evidence against himself in a criminal case." This section has recently been construed by this court in the cases of Heyward v. State, 161 Md. 685, 158 A. 897, and Gorman v. State, 161 Md. 700, 158 A. 903, 906. Prior to the passage of chapter 194 of the Acts of 1929, the law was established, by previous decisions of this court, that evidence otherwise competent, pertinent, and admissible would not be rejected by reason of the method of its obtention, even though it was obtained through a search and seizure declared to be illegal by the Maryland Declaration of Rights and the Constitution of the United States. The former decisions were based upon the rule that at the trial of cases courts would not stop and permit a collateral issue as to the legality of the obtention of the evidence. The act of 1929 effected a change in respect to misdemeanors. We are of the opinion that the provisions of chapter 194 do not apply to these defendants, for the reason that the immunity from illegal search and seizure is a privilege personal to those whose rights thereunder have been infringed, and they alone may invoke it. 56 C.J. 1174, 1175; Silverthorne Lumber Co. v. U. S., 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A. L. R. 1426; Huhman v. U.S. (C. C. A.) 42 F. (2d) 733; Coon v. U.S. (C. C. A.) 36 F. (2d) 164; Simmons v. U.S. (C. C. A.) 18 F. (2d) 85; Graham v. U.S. (C. C. A.) 15 F. (2d) 740, certiorari denied O'Fallon v. U. S., 274 U.S. 743, 47 S.Ct. 587, 71 L.Ed. 1321; United States v. Olmstead (D. C.) 7 F. (2d) 760; United States v. Silverthorne (D. C.) 265 F. 853; State v. Hagan, 47 Idaho, 315, 274 P. 628; Snedegar v. State, 196 Ind. 254, 146 N.E. 849, 147 N.E. 918; Carter v. Commonwealth, 234 Ky. 695, 28 S.W.2d 976; People v. Oaks, 251 Mich. 253, 231 N.W. 557; Cofer v. State, 158 Miss. 493, 130 So. 511; State v. Griffith, 311 Mo. 630, 279 S.W. 135; Chanosky v. State, 52 Okl. 476, 153 P. 131; Moody v. State, 159 Tenn. 245, 17 S.W.2d 919; Aggers v. State, 114 Tex. Cr. R. 391, 24 S.W.2d 838. The reason for the rule is succinctly stated in United States v. Gass (D. C.) 14 F. (2d) 229, 230, wherein it is said: "Certainly such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment when its violation, if any, was with reference to the rights of another."

From the above authorities, and many others which might be cited, it is certain that one cannot complain of an illegal search and seizure of premises or property which he neither owns, nor leases, nor controls, nor lawfully occupies, nor rightfully possesses, or in which he has no interest. Or, stating it conversely, those whose private rights have been or may be disturbed alone may invoke the constitutional right against unreasonable search and seizure. The constitutional and statutory provisions against unwarranted searches and seizures are made in favor of the persons whose property or possessions are affected by such search and seizure.

The contention is also made by the appellants that evidence obtained by an illegal and unlawful search and seizure can properly be made the subject of objection when offered at the trial; and it is not necessary, as a preliminary, to file a petition for the suppression of the evidence and the return of the articles taken as a result of the illegal search and seizure. It is unnecessary to pass upon that question in this case. It is apparently the practice in the federal courts to file a motion or petition for suppression of the evidence before the trial, although recent decisions of the Supreme Court hold that this is a rule of practice, and is not of universal application. Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Amos v. U. S., 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654. It would seem that the individual's constitutional guaranties against illegal and unlawful search and seizure ought not to be made to depend upon a rule of practice which requires a preliminary motion for the suppression of evidence thus obtained.

In this case the petition of Adler states that the premises which were entered without a warrant were his premises; that is, that they either belonged to him or he was entitled to and had the possession thereof. There is no evidence of any claim whatever on the part of the appellants that it was their property or belonged to any one of them, or any claim of ownership by them to any of the papers or articles seized by the police. Under such circumstances, objection, whether made by motion to suppress or at the trial of the case, cannot avail these appellants.

The facts as disclosed from the record are that Sergeant Hitzelberger, a member of the police force of Baltimore city suspected that the law prohibiting betting or making pools on races was being violated at No. 129 West Mt. Royal avenue; and, having this suspicion, he, on the afternoon of Saturday, November 21, 1931, called a telephone number, Vernon 2954; he was told the line was busy, and then called Vernon 2539. Both of these numbers, according to the records of the telephone company, were the numbers of phones installed in 129 West Mt. Royal avenue. The sergeant got some one at Vernon 2539, and asked him, "Who won the first race?" and was informed the race had been won by "...