Griffin v. State

• Decision Date: 08 October 1963
• Docket Number: No. 6,6
• Citation: 194 A.2d 80,232 Md. 389
• Parties: Oliver GRIFFIN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 389

232 Md. 389

194 A.2d 80

Oliver GRIFFIN v. STATE of Maryland.

No. 6.

Court of Appeals of Maryland.

Oct. 8, 1963.

Milton B. Allen, Baltimore (Llewellyn W. Woolford, Baltimore, on the brief), for appellant.

Stuart H. Rome, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, State's Atty., and Andrew J. Graham, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

PRESCOTT, Judge.

After being convicted of, and sentenced for, violating the lottery laws (Code [1957], Article 27, Section 356 et seq.), by the Criminal Court of Baltimore, Griffin appeals.

He contends: (1) that the incriminating evidence produced by the State was procured under an invalid general warrant; and (2) that the search of his person was unreasonable because it was conducted while he was being detained under an illegal arrest (both (1) and (2) in violation of Article 26 of the Maryland Declaration of Rights and the Fourth Amendment of the Constitution of the United States).

After obtaining from Judge Foster a search warrant based upon probable cause that the lottery laws were being violated and that appellant had certain of the gambling paraphernalia upon his person, the police located Griffin. He was shown the search warrant and asked if he wanted to read it; he replied that he did not. He was then arrested and taken to the police station, where a search of his person revealed lottery slips concealed in his clothing. Upon questioning, he stated he had been 'writing numbers.' Before his trial he moved to quash the search warrant.

It will be unnecessary to set forth the search warrant in full. It commanded a police officer, with necessary and proper assistants, '(b) to search the person and clothing of the said previously named or described person(s) [one of the two being the appellant], (c) to search all other persons who may be participating in said criminal activities; and seize all paraphernalia used in or incident to the operation or conduct of said criminal activities.'

I

The appellee argues the appellant has 'no standing' to contest certain aspects of the search warrant that do not appertain to him personally. We find it unnecessary to consider the proposition at length; for the purposes of this case, we shall assume, without deciding, that appellant has standing to challenge all portions of the search warrant, as the warrant and search made under it were, we think, valid.

Appellant's challenge to the indictment under his contention number one is triple edged. First, he argues that the search warrant was defective in that it contained no 'limitation as to time and place for its execution.' The short answer to this is that Code (1962 Cum. Supp.), Article 27, Section 551, provides that any search or seizure made under authority 'of such [a] search warrant' shall be made within fifteen calendar days from the date of its issuance, and, if not executed within that period, the warrant shall be null and void. We think, and therefore hold, that a period of fifteen days is a reasonable time to allow for the execution of a search warrant. Cf. Bell v. State, 200 Md. 223, 88 A.2d 567. And the warrant was not vulnerable because it failed to specify the place where it had to be executed. It directed the search of persons--not places; hence, since the appellant was properly described therein, the warrant could be validly executed anywhere within the limits of Baltimore City, Dow v. State, 207 Md. 80, 113 A.2d 423, 49 A.L.R.2d 1205, without an express provision therein limiting its execution to the City of Baltimore. Asner v. State, 193 Md. 68, 65 A.2d 881.

The second and third reasons assigned as to why the warrant was invalid may be considered together. Appellant states that the 'general commands' to arrest and search all other persons 'who may be participating in said criminal activities,' and the 'blanket order to seize any evidence used in, incident to, or which pertains to the operation of said criminal activities' render the warrant a general one proscribed by the above named constitutional provisions; consequently the search of his person was unreasonable and the evidence obtained thereby was inadmissible.

This argument completely overlooks the fact that the warrant herein described the appellant and another individual, and the sufficiency of said descriptions is not here challenged. For the purposes of this opinion, it will not be necessary to relate the history of search warrants or general warrants. ¹ It is a matter of common knowledge that search warrants originally were used to search for stolen articles. In the course of time, the purposes for which they may be issued have been implemented by the Legislature. At the time Judge Foster issued the warrant in the instant case, Code (1962 Cum. Supp.) Article 27, Section 551, explicitly authorized, under stated circumstances, the issuance of such warrants for the search of a person provided he was named or described 'with reasonable particularity.' This Court has approved warrants of this character. Wilson v. State, 200 Md. 187, 88 A.2d 564; Dow v. State, 207 Md. 80, 113 A.2d 423, 49 A.L.R.2d 1205; Giordano v. State, 203 Md. 174, 100 A.2d 31. And it has specifically held that general provisions to arrest and search not only named or described individuals but also others who are found to be participating in the unlawful activities named in the search warrant do not make the warrant objectionable as a general one. Asner v. State, supra. The provisions objected to are no more than a directive to the police to perform duties that they should perform in the absence of any command in the warrant to that effect; namely, that in the execution of a search warrant they should arrest all persons committing misdemeanors in their presence, and, after a valid arrest, they may search the arrestee as an incident thereto and seize any relevant evidence that pertains to the criminal activities of said arrestee.

The appellant makes one further argument under this heading that must be answered. He contends the directives in the warrant to the police to seize paraphernalia 'used in or incident to the operation or conduct of said criminal activities,' and 'any evidence that pertains to said criminal activities' fail to give the executing officers an ascertainable standard for determining the property to be seized because 'the definitive inadequacies of [these phrases] encompass the esoteric ramifications of the judicial concept of 'evidence' and the elusive qualities which are common among * * * the numerous and varied objects which 'pertain to' lotteries.' He cites, among others, the cases of United States v. Quantity of Extracts, etc., 54 F.2d 643 (D.C., S.D.Fla.1931) and Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, relying very heavily upon the latter. We are unable to agree.

Both cases are, we think, distinguishable. In Marcus, the Supreme Court held that Missouri's procedures, which permitted, by ex parte proceedings, the search for, and seizure by, officers of 'obscene' publications lacked the safeguards which due process demands to assure non-obscene material the constitutional protection to which it is entitled. The Court pointed out the complexity of the test as to what is and what is not 'obscene' material, and rejected the assimilation of the Missouri Supreme Court of 'obscene literature' to 'gambling paraphernalia' and 'gambling implements.' The majority opinion of the Supreme Court did not reach a conclusion that the warrant involved therein was a 'general one,' but based its decision on a violation of the First Amendment, as made applicable to the States by the Fourteenth.

In Quantity of Extracts, etc., an affidavit for a search warrant recited that within described premises 'there is located certain property designed for use in the unlawful manufacture of intoxicating liquor, which is being used as a means of committing a * * * violation of the National Prohibition Act * * *.' (Emphasis ours). The search warrant followed the affidavit in the description of the...