Delnegro v. State

• Decision Date: 24 May 1951
• Docket Number: No. 148,148
• Citation: 198 Md. 80,81 A.2d 241
• Parties: DELNEGRO et al. v. STATE.
• Court: Maryland Court of Appeals

Page 80

198 Md. 80

81 A.2d 241

DELNEGRO et al. v. STATE.

No. 148.

Court of Appeals of Maryland.

May 24, 1951.

William H. Collins, Washington, D. C. and Frank M. Hall, Upper Marlboro, for appellants.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen. and Carlyle J. Lancaster, State's Atty., Prince George's Co., Upper Marlboro, on the brief), for appellee.

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

DELAPLAINE, Judge.

Eleven defendants are appealing here from judgments of conviction entered against them in the Circuit Court for Prince George's County on an indictment charging that they promoted and were concerned in carrying on a lottery in violation of a statute. Laws of 1939, ch. 258, Code P. L. L. of Prince George's County, 1943 Ed., sec. 562A.

On March 25, 1949, appellants and three other men and five women were arrested by deputies of the United States Marshal for the District of Columbia in the home of Mrs. Sadie E. Stanton at 4310 46th Street in Bladensburg. The deputies were armed with a search warrant issued by a United States Commissioner for the District of Maryland, and also a Federal warrant for the arrest of a man known as 'Frankie' for violating the gambling laws of the District of Columbia. An Act of Congress provides that a United States Marshal and his deputies, in executing the laws of the United States within a State, may exercise the same powers which a sheriff of such State may exercise in executing the laws thereof. 28 U.S.C.A. § 549. However, in this case we do not undertake to consider the legality of the search, the warrant for which was issued upon two affidavits, one by a woman that she had learned that lay-off bets were placed with a man known as 'Frankie' by calling either one of two telephone numbers in the Washington exchange, the other by an employee of the telephone company that these two telephones were installed in the house at 4310 46th Street.

When the officers arrived at the front door of Mrs. Stanton's house, they found the screen door latched. They forced this open and then, after there was no response to knocks on the door, they broke one of the small panes of glass in the door and lifted the latch. Entering the house they met Mrs. Stanton, four other women, and Sterling D. Welch, one of the appellants. They then rapped on the heavily barred door to the gambling room and demanded admittance. In the gambling room the officers found William Lewis, alias Snags Lewis, John Ralph Mitchell and George P. Scott, and five of the appellants, Bernard J. Delnegro, Dean Johnson Kennedy, Gregory A. Segar, Ellis L. Salet, and Edward L. Hinkle, Jr. The officers found in the room four gaming tables, three telephones, a ticker tape, adding machines, paper bags, envelopes containing money, and numbers slips. The officers searched the men and seized a total of $27,000. The ticker tape was in operation, and the telephones were continually ringing. One of the deputies found that the calls dealt with the placing of bets.

While the officers were in the house, knocks were heard on the rear door at five different times. Each time a deputy opened the door and, on seeing a Negro holding a paper bag, asked him to come in. As each one entered, the deputy requested him to put the bag on the table and be seated. In each bag were lottery tickets and cash. One by one the Negroes, Frederick Sutton, Fulton Boyd Mitchell, Ralph Spottswood, Lonnie James Black and Ennis Wyche, were placed under arrest. The officers took all of the accused to the jail in Washington.

On May 3, 1949, the grand jury of Prince George's County found two indictments, one for operation of a lottery, the other for operation of a bookmaking establishment.

On October 31, 1950, defendants moved to quash the search warrant, to suppress the evidence obtained in the search and seizure, and to return the seized property. On December 8, 1950, the Court ordered that the evidence be suppressed as to Mrs. Stanton, owner of the house, and also as to Lewis, John Ralph Mitchell and Scott, lessees of the gambling room, but overruled the motion as to the other defendants.

On December 20, 1950, the two cases were consolidated for trial before the Circuit Court without a jury. At the close of the case defendants moved for a verdict of not guilty. On the first indictment the Court found appellants guilty and the other defendants not guilty. On the second indictment all of the defendants were acquitted.

Five of the appellants, Delnegro, Segar, Salet, Hinkle and Welch, were each sentenced to the Maryland House of Correction for two years and to pay a fine of $500. The five Negroes who came with the paper bags, Sutton, Fulton Boyd Mitchell, Spottswood, Black and Wyche, were each sentenced to the House of Correction for twelve months and to pay a fine of $250. Kennedy was sentenced to the House of Correction for two years.

First. Appellants contend that, since the Court ruled that the search and seizure were illegal, the evidence seized in the raid should have been suppressed as to all of the defendants. They relied on the decision of the Supreme Court in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, that material seized as the result of an illegal search cannot be introduced in evidence in a Federal case. However, the Supreme Court also said in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 1364, 93 L.Ed. 1782, that in a prosecution in a State court for a State crime, the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. Thus we consider the admissibility of evidence obtained in an illegal search and seizure in the light of the Maryland Constitution and statutes. Prior to 1929 it was held by this Court that where evidence offered in a criminal trial is otherwise admissible, it will not be rejected because of the manner of its obtention. Meisinger v. State, 155 Md. 195, 141 A. 536, 142 A. 190; Heyward v. State, 161 Md. 685, 158 A. 897; Baum v. State, 163 Md. 153, 161 A. 244. This is still the rule in prosecutions for felonies in this State. Marshall v. State, 182 Md. 379, 35 A.2d 115. By the Bouse Act the Legislature of Maryland changed the rule for prosecutions for misdemeanors. That Act, passed as a result of objection to the Volstead Act, provides that any evidence procured by illegal search or seizure or by search and seizure prohibited by the Maryland Declaration of Rights is inadmissible in the trial of misdemeanors. Laws of 1929, ch. 194, Laws of 1947, ch. 752, Code Supp.1947, art. 35, sec. 5. We have consistently held, however, that in order to complain of an illegal search of property a person must either own, lease, control, lawfully occupy, rightfully possess, or have an interest in the property. Frankel v. State, 178 Md. 553, 16 A.2d 93; Bevans v. State, 180 Md. 443, 24 A.2d 792; Resnick v. State, 183 Md. 15, 36 A.2d 347; Frank v. State, 189 Md. 591, 56 A.2d 810; Lambert v. State, Md., 75 A. 2d 327.

In contrast to Mrs. Stanton, owner of the house, and Lewis, John Ralph Mitchell and Scott, lessees of the gambling room, appellants were invitees. Immunity from illegal search and seizure is a privilege personal to those whose rights have been infringed, and they alone may invoke it. The right cannot be invoked by invitees. As appellants failed to show that they were occupants of the property or had any interest in it, the material seized in the raid was admissible in evidence against them.

Second. Welch, who was found in the living room, claims that a statement which he made at the time of the arrest to Deputy Marshal Cornelius was a confession, and should not have been admitted in evidence, since the proper foundation was not laid for it. The deputy testified that he asked Welch what he was doing in the house. He replied that he was working there. The deputy then asked him what kind of work he was doing, and he replied: 'I work on the adding machines.'

It is true that when objection is made the burden of proof is on the State to show that the confession of an accused was freely and voluntarily made and was not obtained by improper inducements. Lubinski v. State, 180 Md. 1, 22 A.2d 455; Peters v. State, 187 Md. 7, 48 A.2d 586; Wood v. State, Md., 65 A.2d 316, 319. But Welch's reply to the deputy was...