Gorman v. State

• Decision Date: 03 February 1932
• Docket Number: 52.
• Citation: 158 A. 903,161 Md. 700
• Parties: GORMAN v. STATE.
• Court: Maryland Court of Appeals

158 A. 903

161 Md. 700

GORMAN v. STATE.

No. 52.

Court of Appeals of Maryland

February 3, 1932

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Henry Gorman was convicted of keeping and permitting the use of a room for selling lottery tickets and possessing a book of such tickets, and he appeals.

Reversed and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and SLOAN, JJ.

Abram C. Joseph, of Baltimore (Daniel C. Joseph, of Baltimore, on the brief), for appellant.

G. C A. Anderson, Asst. Atty. Gen. (Wm. Preston Lane, Jr., Atty. Gen., and Herbert R. O'Conor, State's Atty. for Baltimore City, and Wm. H. Maynard, Asst. State's Atty., both of Baltimore, on the brief), for the State.

PATTISON J.

This appeal is from a judgment against Henry Gorman, who was convicted in the criminal court of Baltimore city on the charges (1) of keeping a room for the purpose of selling lottery tickets, (2) permitting a room of which he was then and there the owner to be used as a place for selling lottery tickets, and (3) having in his possession a book of lottery tickets; and who was sentenced to pay $500 and be imprisoned in the city jail for thirty days.

This, the companion case of No. 51 of the October term, 1931, Heyward v. State, 158 A. 897, includes many of the questions presented and decided in that case, with additional ones, the chief among them being whether certain slips and other papers, found by Sergeant Hitzelberger of the Baltimore city police in the defendant's home, No. 1716 Brunt street, Baltimore, Md., were admissible in evidence against the defendant.

The decision of this question depends upon the determination of the further question whether these slips, etc., were "procured by, through, or in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Rights of this State"; or "by, through or in consequence of a search and seizure, the effect of the admission of which would be to compel one to give evidence against himself in a criminal case." Section 4A of article 35 of the Code.

The facts found in the record upon which depends the determination of the question here presented are substantially these: Sergeant Hitzelberger, upon information received by him, watched for two successive days the home of Gorman, where lottery violations were suspected. On each of these days he saw, between the hours of 9 and 11 o'clock, fifteen or more colored persons, men and women, enter the house and thereafter leave, carrying papers in their hands. On the third day, some person unknown to the Sergeant entered the house through the front door leaving the door ajar, and, as he said, "I pushed it open and walked right in," following the person back into the kitchen. Hitzelberger had no warrant either to search the house or to arrest Gorman, the defendant. In the kitchen, he found Gorman and two other men. The two men were standing while Gorman was seated at a table with slips and money before him, which he was putting in envelopes. There were at the time three envelopes upon the table, each containing slips and money. Hitzelberger was told by Gorman that he was waiting for the collector to come and get the tickets, and suggested that, if Hitzelberger would wait, he (the collector) would be there in a few minutes. In addition to the slips, money, and envelopes lying upon the table, Hitzelberger saw three books in the drawer of the table, which was partially open. Upon seeing them, he opened the drawer further and took out the books. The slips upon the table which Gorman was putting in the envelopes were, he said, lottery slips. Gorman, in conversation with the officer, said: "I have been going for a good while (for two years) and it is the first time I have been caught."

It is upon the above stated facts that we are to decide whether or not the slips, money, and envelopes found upon the table and the books taken from the table drawer were procured "by, through, or in consequence of any illegal search or seizure."

In 24 Ruling Case Law, page 717, it is said: "An unreasonable (illegal) search is an examination or an inspection without authority of law of one's premises or person, with a view to the discovery of stolen, contraband or illicit property, or for some evidence of guilt, to be used in the prosecution of a criminal action. The right of individuals to be exempt from such searches is guaranteed by the Fourth amendment to the constitution of the United States, and such Amendment is incorporated generally in the constitutions of the several states. These provisions apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitute the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense." Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.

In Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 6, 70 L.Ed. 145, 51 A. L. R. 409, decided October 12, 1925, the court said: "While the question has never been directly decided by this court, it has always been assumed that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. Boyd v. United States, supra; Weeks v. United States, supra; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391, 40 S.Ct. 182, 64 L.Ed. 319, 24 A. L. R. 1426; Gouled v. United States, 255 U.S. 298, 308, 41 S.Ct. 261, 65 L.Ed. 647. The protection of the Fourth Amendment extends to all equally--to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws."

Involved in this constitutional right of the citizen is the maxim that "every man's house is his castle"; and in the enjoyment of it he shall not be subjected to unreasonable or illegal searches and seizures.

In this case, the home of the defendant, who was suspected of being guilty of a misdemeanor, was entered by the officer without either a search warrant or a warrant for his arrest. The information he then had was practically no greater than that which he possessed at the close of the preceding day. If upon that information he could have procured a warrant to search the defendant's home, he should have done so before entering upon the premises of the defendant. If upon such information he could not have procured a warrant, then he was not upon that information justified in attempting a search of the house without a warrant, unless he had the consent of the defendant, and his consent cannot be found in the fact that the door through which the officer entered was partially open, nor did the defendant thereby waive the necessity of a warrant. It is true the door was not locked or fastened, but partially open, and he was not required to burst open the door; but, as already stated in the authorities from which we have quoted, the bursting open of the door was not the essence of the offense; it was the invasion of the privacy of the defendant's home. Under the facts and circumstances stated, the officer was, we think, a trespasser in entering the house of the defendant.

In People v. Halveksz, 215 Mich. 136, 183 N.W. 752 753, two police officers entered a restaurant without a warrant either for the search of the premises or for the arrest of the defendant, and, from the restaurant, they, without permission, went into the living rooms in the rear, and there made a search for and found a quantity of whisky. The defendant was placed on trial for having liquor illegally in his possession and convicted. The Michigan Supreme Court in reversing this conviction and in holding the search and seizure illegal said: "By what authority did the police officers enter the premises and make the search and seizure? The record discloses none. No power exists at common law to make a search and seizure without a warrant." And in the case of...