Gatewood v. State

• Decision Date: 09 December 1966
• Docket Number: No. 519,519
• Citation: 224 A.2d 677,244 Md. 609
• Parties: Bland Calvin GATEWOOD v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 609

244 Md. 609

224 A.2d 677

Bland Calvin GATEWOOD v. STATE of Maryland.

No. 519.

Court of Appeals of Maryland.

Dec. 9, 1966.

Milton B. Allen, Baltimore, for appellant.

Morton A. Sacks, Asst. Atty. Gen. (Robert C. Murphy, Atty. Gen., Baltimore, and Marvin H. Anderson, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Before HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

OPPENHEIMER, Judge.

The appellant, found guilty and sentenced to four years under three counts of an information under the lottery laws, contends that his conviction was based on evidence seized under an invalid search warrant; that he was improperly tried and sentenced as a multiple offender under the statute; that the court's rulings on some evidentiary matters constituted prejudicial errors; and that the evidence was insufficient to sustain the convictions under several of the counts. The trial took place in the Circuit Court for Anne Arundel County before Judge Evans, sitting without a jury. The information contained 13 counts; Judge Evans found the appellant guilty under the third (keeping a certain place, a motor vehicle, to sell lottery tickets), the fifth (possession of a book of lottery tickets) and the sixth (possession of lottery tickets and other lottery paraphernalia); and not guilty under the other counts. The 'addendum to information' alleged that the appellant had been convicted in two prior trials of violations of the lottery laws, and the prior convictions were not disputed.

I

The physical evidence offered by the State consisted of lottery parapheralia found in the trunk of the appellant's automobile, which was obtained under a search warrant issued by Judge Evans several months before the trial. The items offered included over 1000 lottery slips, over 16,000 lottery bets and a total of over $3400 in lottery play. Counsel for the appellant, prior to the introduction of the evidence, moved to quash the search warrant and suppress the evidence seized under it, objected to the introduction of the evidence, and in all other respects diligently maintained his position that the warrant had been issued without probable cause. His motion was denied and his objections overruled.

The warrant was issued on the sworn application of two members of the Police Department of Anne Arundel County, assigned to the Intelligence Unit of that Department, who had been investigating alleged violations of the gaming and lottery laws for several years. One of the officers had been a member of the Department for approximately 7 1/2 years, the other for 8 years.

The application sets forth that one of the officers and Captain Kinsey of the Department had 'received information from a confidential source, who is considered reliable' that a man driving a 1955 green Plymouth automobile was periodically picking up lottery slips in Anne Arundel County. The unnamed informant gave the Maryland registration tags of the described car; these tags were found to have been issued to the appellant, Gatewood. The application states that the appellant, according to the records of the Federal Bureau of Investigation, had been previously convicted several times of violations of the lottery laws, and once for income tax evasion.

After reciting the information received from the unnamed informant, the application sets forth in detail the results of a close observation of the identified Plymouth automobile, driven by the appellant; much of this data was obtained through the use of binoculars. We refer only to those observed episodes which we consider most significant in determining whether there was probable cause for the issuance of the warrant.

On July 21, 1965, a Buick car parked behind Gatewood's Plymouth, and Gatewood gave the Buick driver a 'dark colored bag'; the two cars then drove off in different directions. On August 12, Gatewood parked his car at the rear of a tavern; a minute afterward, another car operated by an unknown heavy man 'wearing a black mustache' parked at the rear of the Plymouth and gave Gatewood a large brown shopping bag; Gatewood unlocked the trunk of his Plymouth, placed the bag he had received on the floor of the trunk near several similar bags already there, and relocked the trunk. A little later, a 1952 Ford, with four occupants, drove up and parked at the rear of the Plymouth, and an unknown man from the other car gave Gatewood a medium-sized brown paper bag; again Gatewood unlocked the trunk of his Plymouth, the man placed the bag in it, and the appellant locked the trunk. Gatewood then left. The next day, August 13, Gatewood drove his Plymouth to the same tavern and received a large brown bag from the heavy, mustached man, which Gatewood locked in his trunk. A few minutes later, what appeared to be the same Ford observed the day before, with apparently the same four occupants, drove up to the Plymouth, and Gatewood received from one of the men a medium-sized brown paper bag which Gatewood again locked in the trunk of the Plymouth.

The application concludes by stating that as a result of their experience and training the officers have probable cause to believe and do believe from all the observations and knowledge recited that the Plymouth driven by the appellant is being kept for the purpose of selling lottery tickets and other lottery paraphernalia and that Gatewood is in unlawful possession of such articles.

We shall not repeat the clear restatement of the law as to what is probable cause for the issuance of a search warrant given by Judge Hammond (now Chief Judge), for the Court, in Henderson v. State, 243 Md. 342, 221 A.2d 76 (1966). We agree with the appellant that the general statement received from an unnamed informant, who is only alleged to be 'considered reliable' without any reason given as to the basis for that conclusion, would not be probable cause for the issuance of the warrant. See Shrout v. State, 238 Md. 170, 175-176, 208 A.2d 585 (1965) an cases therein cited. That information, of course, could properly cause the officers to make the observations which they did, even though it did not of itself constitute probable cause. If the report of the informant be entirely eliminated as affording any basis for the issuance of the warrant, we think that the reported results of the officers' observations were sufficient for the judge to find that there was probable cause to believe that violations of the laws against lotteries were being committed, and that the evidence seized as a result thereof was properly admitted.

The significant elements are the observed, repeated transfer of paper bags of various sizes from other men to the appellant, and the locking of these bags in the trunk of the appellant's car; the observation, on the occasion, of similar bags in the trunk; the obvious pre-arrangement as to the times and place of the delivery of the bags; Gatewood's immediate departure after receipt of the bags; the fact that the transfers were made, on different occasions, by the same heavy, mustached man or the same person from the same car with the same four occupants; Gatewood's known prior lottery convictions; and the expertise of the officers who made the application.

We have referred to the incidence of brown paper bags as standard equipment in lottery violations. 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 States v. Whiting, 311 F.2d 191 (4th Cir. 1962), cert. denied, 372 U.S. 935, 83 S.Ct. 882, 9 L.Ed.2d 766. The appellant argues that the paper bags referred to in the application were of various sizes; that only some of them were brown; that their contents were not seen; and that their use for shopping or some other innocent purpose is entirely compatible with the officers' observations. However, it was not primarily the size or color of the bags, but the number of them given to Gatewood, the way in which they were delivered, and their quick deposit in the locked trunk of the appellant's automobile which together are significant. Knowledge of prior convictions of the person observed is one of the elements to be considered in determining whether there is probable cause. See Shrout, supra, at 238 Md. 174, 208 A.2d 585. As Chief Judge Brune, for the Court, said in Dean v. State, 205 Md. 274, 283-284, 107 A.2d 88, 92 (1954): 'The judge passing upon the application may give consideration to the experience and special knowledge of the police officers who may apply for the warrant.'

Even were the case a marginal one, its resolution is to be considered in the light of the preference to be accorded warrants. Where, as in this case, there is a recital in the application of detailed observations and underlying circumstances, the application is to be interpreted, not hypertechnically, but in a commonsense manner. Henderson, supra; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). So interpreted, we find the application showed probable cause.

II

The appellant had previously been convicted at least twice in Maryland courts for violations of the lottery laws before his conviction in the present case. Under Code (1957), Article 27, Section 358, the maximum imprisonment which can be imposed for a first conviction under the lottery laws is a year. Section 366 reads as follows: 'If any person shall be a second time convicted of any of the offenses mentioned in any of the sections of...