Giordano v. State

• Court: Maryland Supreme Court
• Writing for the Court: Before SOBELOFF; COLLINS
• Citation: Giordano v. State, 203 Md. 174, 100 A.2d 31 (Md. 1953)
• Decision Date: 10 November 1953
• Docket Number: No. 10,10
• Parties: GIORDANO v. STATE.

Page 174

203 Md. 174

100 A.2d 31

GIORDANO v. STATE.

No. 10.

Court of Appeals of Maryland.

Nov. 10, 1953.

Reuben Shiling, Baltimore (Jos. Rosenthal, Baltimore, on the brief), for appellant.

Ambrose T. Hartman, Asst. Atty. Gen. (Edw. D. E. Rollins, Atty. Gen Anselm Sodaro, State's Atty., and Wm. C. Rogers, Jr., Asst. State's Atty., Baltimore, on the brief), for appellee.

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

COLLINS, Judge.

This is an appeal by Salvatore Giordano from a judgment on a verdict of guilty, rendered by the trial judges sitting without a jury, on three counts of an indictment charging him with bookmaking activities on July 19, 1952.

The appellant claims that the affidavit upon which the search warrant was based did not contain facts constituting probable cause for the issuance of the search warrant and that the evidence obtained thereby was not properly admissible against him.

The facts alleged in the application for the search warrant for the purposes of this case, substantially follows. Upon complaint that bookmaking was being conducted in the vicinity of a park bench located in Patterson Park, in Baltimore, Patrolman Edwin Taylor watched in the vicinity in an effort to obtain evidence pertaining to violations of the gambling laws. On July 15, 1952, Taylor watched in the vicinity of said park bench and remained in that vicinity from 12:15 P.M. until 1 P.M. About 12:30 P.M. the officer was lying in the grass about ten feet from said bench. A white man described 'as being about 40 years of age, about 5 feet 6 inches tall, weighing about 175 pounds, wearing a sport shirt' sat on the above described bench. The officer pretended to be asleep. The described man looked around as if he were looking for someone. A few minutes later a second white man described 'as being about 50 years of age, about 5 feet 5 inches tall, weighing about 145 pounds, wearing an old straw hat' walked over to the first described man and after a short conversation the first described man produced an Armstrong Scratch Sheet, which both men studied momentarily. The man secondly described said: 'I like Bess Passes, for a saw-buck in the third' and handed the first described man 'a U. S. currency bank note' which the first described man accepted and kept folded in his hand. The second described man then said: 'I wanted to play 642, but I guess it's too late.' The first described man then said: 'I can still get it in.' The second described man then handed the first described man a silver coin. The second described man walked south into the park and the first described man walked past the said officer and walked south. He stuffed the scratch sheet in his rear trousers pocket and entered an automobile bearing Maryland State License 40-445 issued to Mary C. Giordano, 3932 Rexmere Road, which automobile was parked at the curb. The first described man drove east on Baltimore Street out of the officer's vision.

As a result of this application, a search warrant was issued by Judge Herman M. Moser, of the Supreme Bench of Baltimore City, authorizing the entry and search of the automobile described in the application, 'also the pockets of the clothing of the said white man who is described as being about 40 years of age, about 5 feet 6 inches tall, weighing about 175 pounds, who will be identified by the said Patrolman Edwin Taylor' for gambling paraphernalia. The warrant also directed that if such gambling paraphernalia be found that it and the body of said white man so described as being 'about 40 years of age, about 5 feet 6 inches tall, weighing about 175 pounds, who will be identified by the said Patrolman Edwin Taylor; and all other persons who may be found in said automobile, who may be participating in the bookmaking or lottery activities,' be brought before the judge or some other justice for the City of Baltimore.

The testimony shows that on July 19, 1952, about 1:45 P.M., Lieutenant Wade Poole and Officers Edwin Taylor and Schultz went to the described location in the vicinity of Patterson Park at Patterson Park Avenue and Baltimore Street. About five minutes later appellant drove up in his automobile and walked into Patterson Park. The officers had the above described search warrant in their possession. Lieutenant Poole and Officer Taylor followed the appellant into Patterson Park and sat on the grass and the appellant sat on the curb near his car. Another car drove up and a man blew his horn and drove around on Patterson Park Avenue and parked. At that time the appellant got up and walked toward the car and the other man walked toward him. Lieutenant Poole and Officer Taylor walked up and sat on the grass. At that time the other man, Harry Buddmeyer, gave the appellant 'some white paper rolled up'. The appellant put it in his right pants pocket. The officers could not hear the conversation between these two men. The appellant walked back to his car and Buddmeyer walked toward his car. Lieutenant Poole and Officer Taylor walked toward the appellant who had gotten into his car. Lieutenant Poole, before the appellant closed the car door, told him that he had 'a search and seizure warrant', that he had seen the other man give him some paper which he had put in his right hand pocket. The appellant then said 'Yes, Sir' and took the paper out of his pocket and handed it to Lieutenant Poole. The paper contained 'horses' names and prices behind them'. These horses were running at various tracks. On this paper were 'forty-six bets, 77 horses, $152.00 bet.' Lieutenant Poole asked the appellant where he met to get the money and the appellant said: 'Well, we would settle up at night time.' The appellant was searched at the station house and $662 in cash and one slip of paper with horses' names on it were found on his person. The Armstrong Scratch Sheet for that day was over the top of the visor'.

Appellant contends specifically that the affidavit for the search warrant did not set forth sufficient facts to show probable cause that any crime was being committed in the automobile described in the warrant and therefore that the search warrant as a whole was invalid. Article 35, § 5, commonly known as the Bouse Act, provides that in the trial of misdemeanors no evidence shall be admissible where it has been procured by any illegal search or seizure or any search or seizure prohibited by the Declaration of Rights of this State. Of course, since the adoption of the Bouse Act, supra, if the affidavit presented to the judge or magistrate does not show probable cause for the issuance thereof, the prosecution based on the warrant fails and the evidence thereby obtained is not admissible. Goodman v. State, 178 Md. 1, 8-9, 11 A.2d 635, and cases there cited; Mazer v. State, 179 Md. 293, 302-303, 18 A.2d 217.

Assuming, without deciding, that there was not sufficient probable cause shown in the application for the warrant to justify the instructions to search the automobile, nevertheless, as the application contained reasonable...