Bland v. State

• Court: Maryland Supreme Court
• Writing for the Court: Before MARBURY; DELAPLAINE; Gontrum
• Citation: Bland v. State, 197 Md. 546, 80 A.2d 43 (Md. 1951)
• Decision Date: 12 April 1951
• Docket Number: No. 133,133
• Parties: BLAND v. STATE.

Page 546

197 Md. 546

80 A.2d 43

BLAND v. STATE.

No. 133.

Court of Appeals of Maryland.

April 12, 1951.

J. Elmer Weisheit, Jr., Towson (Lawrence E. Ensor and McKenrick & Weisheit, Towson, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and John E. Raine, Jr., State's Atty. Baltimore County, Towson, on the brief), for appellee.

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

DELAPLAINE, Judge.

Clarence Bland, a Negro, resident of an apartment house at Turner's Station in Baltimore County, was charged by a criminal information with violations of the lottery law. He was tried before the Circuit Court for Baltimore County, sitting without a jury, and was found guilty on two counts: (1) keeping a room for the purpose of selling lottery tickets, and (2) permitting an apartment of which he was the owner to be used as a place for selling lottery tickets. Code 1939, art. 27, secs. 409, 410. From the judgment sentencing him to the Maryland House of Correction for one year and to pay a fine of $1,000, he took this appeal.

It appears that Sergeant Eitemiller, of the Baltimore County Police, made application to Judge Gontrum on July 11, 1950, for a warrant to search the apartment house at 407 Tompkins Court, in which Bland and his wife resided, and also his Lincoln convertible sedan. Sergeant Eitemiller averred in his affidavit that he had ordered Corporal Kessler to investigate a complaint that the lottery law was being violated in the apartment house, and then presented a detailed report of the Corporal's investigation. According to the affidavit, the Corporal watched the house for several hours on June 28 and again on July 5. On June 28 at 12:07 o'clock he saw a Negress enter the rear door with two paper bags, which apparently contained something light in weight. She came out at 12:15, went to 101 Tompkins Court, knocked at the door but did not enter, and returned to 407 Tompkins Court, and entered the rear door at 12:18. She came out two minutes later with the paper bags, which looked smaller but heavier than they did when she went in. Between 12:20 and 2 o'clock the Corporal saw eight men, eighteen women, a boy and a girl, all Negroes, enter the rear door and come out after a few minutes. On July 5 between 12:20 and 2:07 o'clock the Corporal saw three men, twenty women, and a boy enter the rear door without knocking and come out after a few minutes. Several of the women carried pieces of paper when they went in. At 2:07 Bland arrived in his Lincoln sedan and entered the house. When he came out three minutes later, his pants pockets were bulging. He drove to Hamlin Court about a block away, stayed there a few minutes, and came out with a paper bag. The Corporal, following in the police car, found the Lincoln parked in front of a cafe on Dundalk Avenue, while Bland was sitting behind the wheel talking with a crowd of Negroes standing around the automobile.

Judge Gontrum issued a search warrant upon that affidvait. On the same day Sergeant Eitemiller and Corporal Kessler, accompanied by three other members of the police force, raided the apartment house.

Corporal Kessler testified that the officers entered the rear door and went to the second-floor apartment, and on opening the door of the living room they found Bland's wife sitting at a desk writing on a numbers tally pad, and Lillian Walker, who lived on the first floor, sitting beside her with three slips of paper in her hand. The officers also found a tally pad on the desk, and $42 worth of numbers slips in a drawer of the desk. They also found a 'rundown tape from the headquarters where these tickets are turned in every day.' They also found a calendar showing the winning numbers for each day from the first of January. It is obvious that, if the search warrant was legal, the evidence was ample to sustain the conviction, because it was undisputed that appellant and his wife were the lessees and occupants of the second-floor apartment.

First. Appellant complained because the record in this case does not contain a definite notation that the affidavit and the search warrant were admitted in evidence. There is no merit in this objection. Corporal Kessler, the first witness on the stand, identified the affidavit and the warrant. The affidavit was marked Exhibit 1, and the warrant Exhibit 2. The defense objected to their admission, and the trial judge overruled the objection. Objections were also made to the admission of Corporal Kessler's testimony and to the gambling paraphernalia seized in the raid, but all of the objections were overruled. It is clear from these entries in the record that it was thoroughly understood by the judge and by the counsel on both sides that the affidavit and the warrant were admitted in evidence. Moreover, after Corporal Kessler testified that he had a search warrant, the warrant was 'marked for identification' and was handed to the judge. This was enough without technically offering the warrant in evidence, if the warrant was sufficient in law, as we hold it was.

Second. Appellant's chief contention was that the allegations of the affidavit were not sufficient to show probable cause for the belief that numbers tickets were being sold in the apartment house. As stated in Bratburd v. State, Md., 66 A.2d 792, probable cause which will authorize the issuance of a search warrant is more than suspicion or possibility but less than certainty or proof. Appellant relied on Wood v. State, 185 Md. 280, 44 A.2d 859, where the Court invalidated a search warrant based on an affidavit that a number of men and women had entered a restaurant on several days and stayed inside only a few minutes. The Court held that the restaurant may have been selling tobacco, soft drinks and candy, and the fact that a number of people had entered the restaurant and remained only a few minutes was not of itself sufficient to constitute probable cause for the belief that numbers tickets were being sold in the restaurant.

Appellant contended that the people who entered the rear door of the house in this case could conceivably have come for...