Dean v. State
| Decision Date | 27 July 1954 |
| Docket Number | No. 164,164 |
| Parties | , 48 A.L.R.2d 1096 DEAN v. STATE. |
| Court | Maryland Court of Appeals |
Alan H. Murrell, Baltimore, for appellant.
Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty. for Baltimore City and M. Peter Moser, Asst. State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.
Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
This is an appeal from a judgment entered upon a verdict of guilty on six counts of an indictment which, respectively, charged the defendant with permitting an automobile to be used as a place for selling lottery tickets, having lottery books in his possession, being a 'second offender' in lottery law violations, keeping an automobile for gambling and permitting gambling in an automobile.
Before the trial below the defendant moved to quash the search and seizure warrant under which his person and automobile were searched and to exclude all evidence obtained thereunder. This motion was denied.
The questions raised by this appeal are these: (1) whether the application for the search warrant showed probable cause to believe that a misdemeanor was being committed within the territorial jurisdiction of the Judge to whom the application was presented and by whom the warrant was issued; and (2) whether the application showed probable cause to believe that the automobile described therein was being used in connection with violation of the lottery laws.
The search warrant was issued by a Judge of the Supreme Bench of Baltimore City. The application upon which it was issued referred to several streets but did not state that they were in Baltimore City. This, the appellant contends, is a fatal defect, since it failed to show that the alleged violation of law was being committed within that city which was the area in which a Judge of that Court has 'territorial jurisdiction.' This objection is based upon Code (1951), Article 27, § 328, which, insofar as here pertinent, provides:
'Whenever it be made to appear to any judge of the Supreme Bench of Baltimore City * * * by a writing signed and sworn to by the applicant, that there is probable cause, the basis of which shall be set forth in said writing, to believe that any misdemeanor or felony is being committed by any individual or in any * * * place or thing within the territorial jurisdiction of such judge * * * or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such * * *, place or thing, then such judge or justice of the peace may forthwith issue a search warrant directed to any duly constituted policeman * * * or police officer authorizing him to search such suspected individual, * * * place or thing, and to seize any property found liable to seizure * * *, provided that any such search warrant shall name or describe, with reasonable particularity, the individual, * * * place or thing to be searched * * *.'
In this case the written application shows that it was made by a sergeant in the Department of Police of Baltimore City. It may safely be assumed that the judge to whom the application was made was aware both actually and as a matter of judicial notice that the ordinary territorial jurisdiction of that Department is the City of Baltimore. The application also showed that this officer had been seeking evidence of violations of the lottery laws for a period of some three and a half hours one morning, that while so engaged near certain premises on East 21st Street, he had seen the defendant enter an automobile bearing a designated license number and then drive to the vicinity of Bond and Monument Streets, that he later saw him enter premises on North Eden Street at two different street numbers, that he then saw the defendant go to an address on East 20th Street and thereafter saw him return to the first address on East 21st Street. The application also showed that another officer, acting under the direction of the affiant, had made certain observations of another man during a period of about two and a half hours on the previous day in the vicinity of Bond and Monument Streets. This second officer was not specifically stated to be a member of the Baltimore City Police Department, but since his activities detailed in the application were stated to have been under the direction of a sergeant of that force, it seems to require no imagination to conclude from that assertion that the subordinate officer was also a member of that Department.
The judge was clearly entitled to take judicial notice not only of the law with regard to the territorial jurisdiction of that Department but also that laws against lotteries and other forms of gambling are among those which it is the duty of that Department to enforce in Baltimore City. It seems to require no feat of deduction to arrive at the conclusion that the efforts of the police officers to obtain evidence of the violation of the lottery laws which were set forth in the application were being carried on in the city where their official duties were to be discharged, and that what they saw in the course of those efforts took place in that city and hence within the jurisdiction of the judge to whom the application was presented. We think that a judge may make use of matters within the field of judicial notice and of reasonable inferences in determining whether the statements contained in a written application for a search warrant are sufficient to make it appear to him that there is probable cause to believe that an offense is being committed within his territorial jurisdiction. Compare Asner v. State, 193 Md. 68, 65 A.2d 881, 884, in which a warrant to search an automobile was upheld, although it did not specify that the search was to be made within the limits of the county in which the justice of the peace who issued the warrant had territorial jurisdiction. This Court observed 'That would be presumed from the statute authorizing its issuance.'
In addition, we think that although it would have been far preferable that the application should have stated explicitly that the places mentioned were in Baltimore City, the judge who acted on the application might have taken judicial notice of the fact that there are streets in Baltimore City bearing the names stated in the application. There is a wide diversity of opinion on this question. It was referred to, but not decided, by this Court in Wood v. State, 191 Md. 658, at page 670, 62 A.2d 576.
A distinction on this subject which supports our view in the present case is made by some authorities between the knowledge which judges of the trial courts in the particular city may be thought to have with regard to the streets of that city and the knowledge which judges of other courts sitting elsewhere may possess.
Among the authorities supporting the view that judicial notice of the location of streets may be taken are the following: Randall v....
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