Fleming v. State, 42

Decision Date05 December 1952
Docket NumberNo. 42,42
Citation92 A.2d 747,201 Md. 145
PartiesFLEMING v. STATE.
CourtMaryland Court of Appeals

Ellis Levin, Baltimore (Joseph F. DiDomenico, Baltimore, on the brief), for appellant.

Ambrose T. Hartman, Sp. Asst. Atty. Gen. (J. Edgar Harvey, Depty. Atty. Gen., Anselm Sodaro, State's Atty. and J. Harold Grady, Asst. State's Atty., Baltimore, on the brief), for appellee.

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

COLLINS, Judge.

This is an appeal from a conviction for violation of the lottery laws in Baltimore City by having in possession lottery tickets, books, and records.

The lottery paraphernalia was found in appellant's second floor apartment. She contends her motion to dismiss the search warrant should have been granted because the warrant fails to show upon its face any reasonable or probable cause for its issuance and also that it is a general warrant. With these contentions of the appellant we do not agree.

The search warrant in this case authorized Lieutenant Joseph J. Byrne to search 'the said premises at 1135 N. Monroe Street, a two-story brick dwelling occupied on the first floor as the Monroe Cafe.' As to probable cause, the search warrant alleges the following facts based on the signed and sworn statement of Lieutenant Byrne. Acting on a complaint by a member of the Maryland State Police that a man, known as Robert E. Stanton, described therein, and hereinafter referred to as Stanton, writes and collects lottery numbers in Frederick and carries them to Baltimore, the officers on January 30, 1952, went to the vicinity of the 2900 block of Edmondson Avenue to look for the bus from Frederick. They then saw a man answering the description of Stanton alight from the Blue Ridge bus and hail a taxicab. He was driven to the 900 block of North Monroe Street where he alighted, walked to, and entered 1135 North Monroe Street. This man carried in his hand a brown paper bag, partially filled with unknown contents. Upon reaching the door of the premises he was met by another man wearing a vest and white apron, described therein, who spoke to the said Stanton. The two men then held a brief conversation and acted suspiciously by looking about in all directions as if to ascertain whether they or the premises were being watched. About five minutes later the officers looked through the tavern window but did not see either of these two men. They then observed the same premises from a greater distance and saw Stanton on the second floor, looking out of the window. Again on February 7, 1952, about 12:25 P.M. they saw the same man alight from the Blue Ridge bus carrying a large brown paper bag. He engaged a taxicab and went in the same manner to the premises at 1135 North Monroe Street where he met the same man wearing a white apron. The two men acted suspiciously and entered the tavern. At about 12:45 P.M. Stanton came hurriedly out of the tavern without the bag and met another man who produced 'some yellow looking slips' of the kind and color generally used in the operation of a lottery. After some conversation, this man handed Stanton the 'yellow looking slips' and Stanton returned to the tavern. Again on February 11, 1952, Stanton alighted from the Blue Ridge bus carrying a large brown paper bag and again went to 1135 North Monroe Street and after acting suspiciously by looking around to see whether he was followed, entered the tavern. When he left the tavern he had no bag. The search warrant authorized Lieutenant Byrne to enter the premises at 1135 North Monroe Street, a two-story brick dwelling, occupied on the first floor as the Monroe Cafe, and to search the pockets of the two men described in the search warrant, and to search the premises for lottery paraphernalia and to bring any lottery paraphernalia and all persons found in the premises actively engaged in the lottery, or who might have lottery paraphernalia in their possession before some Police Justice of Baltimore City.

The appellant specifically contends that the fact that Stanton was seen only once on the second floor, looking out the window, was not sufficient probable cause for the search of the second floor. From the affidavit presented to the judge there was no knowledge on the part of the officers that this two story brick dwelling was not occupied by the same persons as one premises. Stanton was seen to enter the first floor and very soon afterwards at a window on the second floor. This was enough to show connection between the two

In the case of Bratburd v. State, 193 Md. 352, at page 356, 66 A.2d 792, at page 794 it was said: 'In support of his contention that there was no probable cause shown for the issuance of the search warrant, defendant relies on Wood v. State, 185 Md. 280, 44 A.2d 859. In that case we said: 'Probable cause is more than suspicion or possibility but less than certainty or proof. On the facts this case is near the border. The question of probable cause must be determined by the judge, not by the applicant for the search warrant. * * * But in making this determination, the experience and special knowledge of the police officers...

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9 cases
  • Winters v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1983
    ...committed." Lucich v. State, 194 Md. 511, 514, 71 A.2d 432, 434 (1950); Dean v. State, 205 Md. 274, 107 A.2d 88 (1954); Fleming v. State, 201 Md. 145, 92 A.2d 747 (1952); Smith v. State, 191 Md. 329, 62 A.2d 287 (1948), cert. denied, 336 U.S. 925, 69 S.Ct. 656, 93 L.Ed. 1087 (1949). This is......
  • Chernock v. State
    • United States
    • Maryland Court of Appeals
    • November 6, 1953
    ...authorized the search of the automobile bearing Maryland license 231-833 and of the premises at 3926 Green Spring Avenue. In Fleming v. State, Md., 92 A.2d 747, 749, a case very similar to the one before us here, the affidavit for the search warrant stated that the police officers had recei......
  • Gatewood v. State
    • United States
    • Maryland Court of Appeals
    • December 9, 1966
    ... ... Chernock v. State, 203 Md. 147, 154, 99 A.2d 748 (1953); Fleming v. State, 201 Md ... 145, 92 A.2d 747 (1952); Bland v. State, 197 Md. 546, 551, 80 A.2d 43 (1951). See also the opinion of Soper, J., in United ... Tucker, supra, and Vandegrift v. State, 226 Md. 38, 42, 171 A.2d 713, 91 A.L.R.2d 507 (1961). In the case before us, the sentence of four years did not exceed the maximum authorized by Section 366. Our ... ...
  • Manger v. State
    • United States
    • Maryland Court of Appeals
    • June 24, 1957
    ...to more than suspicion or possibility, even though not certainty or proof, and this is sufficient under the cases. Fleming v. State, 201 Md. 145, 149, 92 A.2d 747; Dean v. State, 205 Md. 274, 107 A.2d 88, 48 A.L.R.2d 1096; Davis v. State, 205 Md. 552, 109 A.2d 774. It was not necessary that......
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