Henderson v. State

• Decision Date: 05 July 1966
• Docket Number: No. 62,62
• Citation: 221 A.2d 76,243 Md. 342
• Parties: Paul HENDERSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 342

243 Md. 342

221 A.2d 76

Paul HENDERSON v. STATE of Maryland.

No. 62.

Court of Appeals of Maryland.

July 5, 1966.

Alan H. Murrell, Baltimore, for appellant.

John C. Cooper, III, Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., Charles E. Moyland, Jr., and Stanley S. Cohen, State's Atty. and Asst. State's Atty., respectively, for Baltimore City, Baltimore, on the brief), for appellee.

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

HAMMOND, Judge.

The appellant was convicted by Judge Harris, sitting without a jury in the Criminal Court of Baltimore, of keeping a place for the purpose of selling lottery tickets and of possession of books, lists, slips and records of names drawn up in a lottery, contrary to Code (1957), Art. 27, §§ 360 and 362. The conviction was based in essential part upon evidence seized in or resulting from a search of the premises of the appellant made pursuant to a search warrant. The evidence was admitted over the objection of the appellant that the application for the warrant failed to show legal probable cause to justify its issuance and subsequent execution. On this appeal, no question is raised as to the sufficiency of the evidence, the sole issue being whether the application revealed probable cause to believe that a crime was being committed in the premises of the appellant.

Code (1965 Supp.), Art. 27, § 551, provides:

'Whenever it be made to appear to any judge * * * by a written application signed and sworn to by the applicant * * * that there is probable cause, the basis of which shall be set forth in * * * said affidavit * * *, to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises * * * such judge * * * may forthwith issue a search warrant * * * to search such suspected individual, building, apartment, premises * * *.'

It is established that the finding of presence or absence of probable cause is to be made from the allegations of the application for the warrant, Burrell v. State, 207 Md. 278, 113 A.2d 884, and that:

'Probable cause, which is less than certainty or demonstration but more than suspicion or possibility, is to be determined by the judge or justice who issues the warrant, and if a prudent and cautious man would be justified from the facts presented to show its existence in believing that the offense had been or was being committed, the warrant properly may be issued. In making his determination this judicial, hypothetical, 'cautious and prudent man' may give consideration to the special significance which objects, happenings and individuals may have conveyed to the trained, experienced and knowledgeable police officers who apply for the warrant. Dean v. State, 205 Md. 274, 107 A.2d 88, 48 A.L.R.2d 1096; Bratburd v. State, 193 Md. 352, 66 A.2d 792.' Henson v. State, 236 Md. 518, 521, 204 A.2d 516, 518.

Tested by these standards we think the application warranted Judge Jones in determining that probable cause existed to believe that a crime was being committed in the house of the appellant. The allegations in the application were based on the observations of a policeman who, for most of his ten years on the force, has been assigned to the 'duties of detecting and apprehending persons engaged in violating the gambling laws.' This presumably 'trained, experienced and knowledgeable' police officer alleged that after complaints had been made to the police that criminal activities were being engaged in at 3630 Columbus Drive, he began a watch of those premises on April 27, 1964. At 11:15 a. m. he saw a described man (the man) leave the house and walk to a restaurant in the next block. A few minutes later, the man came out of the restaurant and went to a nearby bakery where he remained but a short time. Next the man walked to a neighboring drug store for a short visit and then walked to the 'Esso Station' on the corner. The man approached a second man, who was described and who from the description appeared to the policeman 'to be an employee of the service station.' The employee gave the man 'what appeared to be U. S. currency,' the man placed it in his right trousers pocket and took from his jacket pocket a white pad and a pencil and 'went through the motions of writing on same.' The man then walked back to 3630 Columbus Drive and entered the house. Within minutes a described female rang the doorbell of 3630 Columbus...