Burrell v. State

• Decision Date: 17 May 1955
• Docket Number: No. 157,157
• Citation: 113 A.2d 884,207 Md. 278
• Parties: Grafton Ambrose BURRELL and Harriet Smith Burns v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 278

207 Md. 278

113 A.2d 884

Grafton Ambrose BURRELL and Harriet Smith Burns v. STATE of Maryland.

No. 157.

Court of Appeals of Maryland.

May 17, 1955.

Ernest L. Perkins, Baltimore (William H. Murphy and Donald G. Murray, Baltimore, on the brief), for appellants.

James H. Norris, Jr., Sp. Asst. Atty. Gen., C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro, State's Atty., and James W. Murphy, Asst. State's Atty., Baltimore, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

With the aid of evidence secured through a search warrant, appellants were convicted of violation of the lottery laws in the Criminal Court of Baltimore by the court sitting without a jury. They duly moved to quash the warrant and to suppress the evidence, and the court denied the motion. The claim was that Harriet Smith Burns, one of the appellants, whose observed actions constituted much of the basis of the probable cause for the issuance of the warrant, was not in Baltimore on the days when the supposed observations were made. She proffered evidence to prove this fact and the court refused the proffer.

The sole question which the appellants raise is the correctness of the court's action in denying them an opportunity to controvert the facts set forth in the affidavit of probable cause. It is conceded that the facts as set forth in the affidavit established probable cause.

The appellants concede that the settled law of Maryland is against their contention but ask us to overrule the cases which have so declared the law. They say that it is unreasonable and unjust to allow an officer who has made no personal observation to appear before a judge and secure a warrant, and yet, when the warrant is challenged, refuse to allow the facts set forth in the affidavit of probable cause to be refuted. It is suggested that the deterrent to which this Court has adverted, namely, that one making a false affidavit would be subject to the penalties of perjury, is of little practical effect if the officer who makes the oath can do so on information and belief coming from disclosures made through official channels. In Tischler v. State, Md., 111 A.2d 655, 657, Judge Delaplaine said for the Court:

'Appellant, however, earnestly contended that the Court should not have overruled his motion to quash the search warrant because the allegations in the application for the warrant were completely contradicted by his motion and the accompanying affidavits. We must reject his contention because the law was established in 1948 by our decision in the case of Smith v. State, 191 Md. 329, 335, 62 A.2d 287, 5 A.L.R.2d 386, certiorari denied 336 U.S. 925, 69 S.Ct. 656, 93 L.Ed. 1087, that if the affidavit that forms the basis for the issuance of a search warrant is sufficient on its face, any question as to whether the affidavit showed probable cause is confined to the affidavit itself, and on a motion to quash the search warrant on the ground of lack of probable cause, no testimony can be received to contradict the truth of the allegations in the affidavit.

'Appellant urged that we should abrogate this rule because it encourages police officers to make false statements under oath. But the rule which was adopted by this Court in 1948 was reaffirmed in 1951 in Goss v. State, 198 Md. 350, 354, 84 A.2d 57; again in 1952 in Adams v. State, 200 Md. 133, 139, 88 A.2d 556; and again in 1953 in Harris v. State, 203 Md. 165, 172, 99 A.2d 725. Accordingly we have observed that the rule is so firmly...