Gattus v. State, 146

• Decision Date: 27 May 1954
• Docket Number: No. 146,146
• Parties: GATTUS v. STATE.
• Court: Maryland Court of Appeals

Page 589

204 Md. 589

105 A.2d 661

GATTUS v. STATE.

No. 146.

Court of Appeals of Maryland.

May 27, 1954.

Douglas N. Sharretts, Baltimore (Ginsberg & Ginsberg, Baltimore, on the brief), for appellant.

H. Clifton Owens, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty. and J. Harold Grady, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment and sentence on a conviction of the crime of bookmaking.

An application for a search warrant was made to the Honorable Joseph R. Byrnes, Associate Judge of the Supreme Bench of Baltimore City, by Lieutenant Joseph J. Byrne, of the Baltimore City Police Department, on December 19, 1952, which alleged that believing the law in relation to a bookmaking establishment was being violated in an automobile bearing Maryland License No. 500-300, listed to one Maryann R. Gattus, 617 North Point Road, Lieutenant Byrne instructed officers William Hogan and John Livesay to investigate this complaint. On December 18, 1952, those two officers went to the vicinity of the Pennsylvania Railroad Hump and North Point Road where they noticed an automobile bearing the aforesaid license number pull into a parking lot on the corner of North Point and Bayview Roads. A white man 'who is described as being about 30 years of age, 5 feet 8 inches tall, weighing about 145 pounds, wearing glasses and a dark overcoat,' left this automobile and entered Jones' Tavern. After a few minutes this man came out of the tavern holding an Armstrong scratch sheet in his hand and making pencil notations thereon. As he started to reenter the said automobile, a short, stocky man, wearing a brown leather jacket, came hurriedly from the tavern and called to the described man: 'Wait a minute.' This man then approached the described man and said: 'Give me five to win on Bets Reward', and handed the described man some United States currency which he accepted and put in his pocket. The described man then glanced at the scratch sheet and made a notation on same and then said to the short, stocky man: 'Okay'. The described man then entered the described automobile and drove to the entrance of the Pennsylvania Railroad Hump where he entered and again parked the said automobile on a lot across from a small building, which appeared to be a railroad office. Then, as the described man got out of the said automobile, six men at intervals came out of this office building. After a short conversation with the described man, each of these six men took a scratch sheet from the described man and after glancing at same, returned it to him together with some United States currency, which the described man accepted. After about fifteen minutes the described man reentered the said automobile, drove back to North Point Road and went south toward Eastern Avenue. Officers Hogan and Livesay then left the vicinity. 'Bets Reward' was the name of a race horse entered to run in the fifth race at the Charles Town Race Track on December 19, 1952. This application asked for a search warrant to searth the said automobile and the pockets of all persons found in the said automobile who were actively participating in bookmaking activities, and to arrest the above described white man and all other persons found in said automobile who were actively participating in bookmaking activities and to seize all paraphernalia and other material pertaining to bookmaking.

As a result of that application, Judge Byrnes issued the search warrant reciting the probable cause in the application, Goodman v. State, 178 Md. 1, 7, 8, 11 A.2d 635, and authorizing Lieutenant J. J. Byrne, with assistants, to enter and search the above described automobile for rundown sheets and other racing forms and to bring in the racing paraphernalia so found and the body of the said described white man and all other persons found in the said automobile who were actively engaged in the unlawful operation of gambling on the races.

On December 19, 1952, at approximately 1 P.M., Lieutenant Byrne, with the aforesaid search warrant and with other officers, took a position at the Pennsylvania Railroad Bridge, near the 'Hump', which was approximately two hundred yards within the limits of Baltimore City. The officers were in plain clothes with no distinguishing marks on their automobile. They sat in the police car facing toward Baltimore County on the North Point Road. Shortly thereafter an automobile, bearing the license number set out in the search warrant, approached from a dirt road which curved in such a manner as to gradually merge with the road on which the police car was parked. As this car, with its window open, came along the right side of the police car, 'as close as you could get to him', Lieutenant Byrne was sitting on the front seat with the right window open and leaning half way out of that window. He blew his whistle and called 'Police, stop, we have a warrant'. The appellant showed no reaction, was not startled, looked right at the Lieutenant and drove on toward Baltimore County. The police followed him and when they were about one and one-half miles within Baltimore County, they forced the appellant over to the side of the road. Lieutenant Byrne got out of the police car, walked up to appellant's car, showed his badge and told him he had a search warrant. The Lieutenant opened the front door of appellant's car and from between his legs on the front seat, found race horse bet slips, which indicated the gambling operation. The officer asked the appellant why he did not stop when the whistle was blown and appellant replied: 'I didn't hear you.' The evidence in the trial below was confined to what occurred on December 19, 1952. Of course, evidence could have been offered as to the occurrences on December 18, 1952. Wilson v. State, 200 Md. 187, 193, 88 A.2d 564; Yanch v. State, 201 Md. 296, 300, 93 A.2d 749; Noel v. State, Md., 96 A.2d 7.

Seasonable motions were made to quash the search warrant and objections were made to the admission in evidence of the gambling paraphernalia found as a result of the search. The State here admits that the search and arrest were not made in Baltimore City, but in Baltimore County.

Code 1951, Article 27, § 328, which authorizes the issuing of a search warrant, provides in part: 'Whenever it be made to appear to any judge of the Supreme Bench of Baltimore City, or to any judge of any of the Circuit Courts in the counties of this State, or to any justice of the peace in this State, 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 building apartment, premises, place or thing within the territorial jurisdiction of such judge or justice of the peace, 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 building, apartment, premises, place or thing, then such judge or justice of the peace may forthwith issue a search warrant directed to any duly constituted policeman, constable or police officer authorizing him to search such suspected individual, building, apartment, * * *'. In Frank v. State, 189 Md. 591, 56 A.2d 810, a search warrant was issued by a judge of the Supreme Bench of Baltimore City, as in the instant case. The police thought the riding academy to be searched was in Baltimore City, but it was found at the time of the search, and after the building had been entered, that the place searched was in Baltimore County, as in the instant case. It was there admitted by the State that the search warrant was illegal and void. In Asner v. State, 193 Md. 68, 65 A.2d 881, 884, where it was contended that the search warrant issued in Baltimore County should specify that the search be made in Baltimore County, it was said by Chief Judge Marbury: 'We find, as we have indicated above, that by Section 306, of Article 27 [now Code (1951), Section 328 of Article 27, supra], a search warrant may be issued for an automobile and persons in it. See in this connection, Davis v. U. S., 328 U.S. 582, 609, 66 S.Ct. 1256, 90 L.Ed. 1453; Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. Of course, such search must be made within the limits of the jurisdiction of the judge or justice of the peace issuing the same. A search warrant cannot have extraterritorial effect. We do not, however, think it was necessary in this case to state in the warrant that the automobile must be searched within the limits of Baltimore County. That would be presumed from the statute authorizing its issuance.' Although the above quoted statement as to where the search should be made may be considered as dicta, yet the words of Art. 27, § 328, supra, upon which the search warrant here is based, bear out this statement. We must therefore hold that the search based upon the search warrant was unlawful.

It has been held by this Court in a number of cases that although part of a search warrant is invalid, such invalid parts are separate from the valid provisions. It was said in Wilson v. State, supra, 200 Md. at page 192, 88 A.2d at page 566: 'Recently we held invalid a search warrant which recited an application by 'Sergeant S. Ralph Warnken' because the Act of 1939 [Chapter 749, as amended by the Acts of 1950, Chapter 81, Code (1951), Article 27, Sections 328 and 329] requires that a search warrant shall state 'the name of the applicant on whose written application as aforesaid the warrant was issued'. Howard v. State, 199 Md. 529, 531, 87 A.2d 161, 162. More recently we held that general words in a search warrant, broad enough to include persons on the premises as to whom no probable cause is shown, DeAngelo v. State, 199...