Fischer v. State

• Decision Date: 07 June 1950
• Docket Number: 183.
• Citation: 74 A.2d 34,195 Md. 477
• Parties: FISCHER v. STATE.
• Court: Maryland Court of Appeals

74 A.2d 34

195 Md. 477

FISCHER v. STATE.

No. 183.

Court of Appeals of Maryland.

June 7, 1950

Bennett B. Cockey and W. Albert Menchine, both of Towson (John D. C. Duncan, Towson, and Michael Paul Smith Baltimore, on the brief), for appellants.

Kenneth C Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Francis T. Peach, State's Atty., Baltimore County, Johnson Bowie and John E. Raine, Jr., Asst. State's Attys. for Baltimore County, all of Towson, on the brief), for appellee.

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

DELAPLAINE, Judge.

Henry Fischer Brent L. Atkins, Bradford H. Houck and Earl A. Reich were convicted by the Circuit Court for Baltimore County of operating an establishment for gambling on horse races. Code 1939, art. 27, sec. 291. They are appealing here from the judgments of conviction.

The convictions were obtained upon evidence seized by officers of the Baltimore County Police Department on the second floor of the building at 7714 Harford Road in Parkville on the afternoon of November 3, 1949. Appellants rely on the Bouse Act, which directs that in the trial of misdemeanors no evidence is admissible where it has been procured as the result of illegal search or seizure. Code Supp. 1947, art. 35, sec. 5. It is conceded that Fischer, the operator of the tavern on the first floor of the building, was the lessee of the entire building; but it is contended that, because he had subleased the second floor to Houck, the operator of the bookmaking establishment, the search of that floor by the officers without a warrant was illegal.

There are two entrances to this building, both of which are open to the public. One is the front door of the tavern. The other is to a vestibule, from which a person can either go up the steps or enter the restaurant. The police officers entered the front door of the tavern, and walked through the tavern and restaurant to the vestibule. Corporal Kessler testified that as he was walking up the steps to the second floor, he 'heard persons numbling and heard the loud speakers talking.' He said that the door at the top of the stairway was 'wide open,' and from the doorway he saw about 25 or 30 people sitting at two tables and looking at sheets of paper and listening to announcements of the races broadcast by loud speaker. From the tables the officers seized scratch sheets and copies of the Daily Racing Form.

There were two small windows and a door to a smaller room. A sign above the of the windows contained the notice: 'Parlays will not be paid until all races are over.' Upon entering the small room the officers found Houck and Reich, each sitting at a desk. Houck admitted that he was the operator of the establishment and that Reich was his employee. On the desks the officers found money, scratch sheets and betting tickets. Two telephones were continually ringing. Within less than a half hour 14 people phoned to make 52 bets on 52 horses.

It is undisputed that the police had the right to inspect and search Fischer's Tavern without a warrant, inasmuch as the owner of the building had given consent to inspection and search of all parts of the building in which the liquor business is to be conducted, as a prerequisite to the issuance of the liquor license. The Alcoholic Beverages Law provides that every application for a license shall contain a statement executed and acknowledged by the owner of the premises in which the business is to be conducted assenting to the granting of the license, and authorizing certain officers 'to inspect and search, without warrant the premises upon which the business is to be conducted, and any and all parts of the building in which said business is to be conducted, at any and all hours.' Code Supp. 1947, art. 2B, sec. 44(17). Such consent to inspection and search of premises is valid. Zukowski v. State, 167 Md. 549, 555, 175 A. 595.

In Miller v State, 174 Md. 362, 198 A. 710, the defendant occupied an apartment on the third floor of a building, formerly known as the Forbes Hotel, in Baltimore. The police entered his apartment without a warrant and seized some of his property. It was shown at the trial that the lessee of the first floor of the building had obtained a license to operate a saloon there with the owner's consent to inspection and search of the premises. But the...