Johnson v. State

• Decision Date: 18 May 1949
• Docket Number: 143.
• Citation: 66 A.2d 504,193 Md. 136
• Parties: JOHNSON v. STATE.
• Court: Maryland Court of Appeals

66 A.2d 504

193 Md. 136

JOHNSON v. STATE.

No. 143.

Court of Appeals of Maryland

May 18, 1949

Dissenting Opinion June 8, 1949.

Appeals from Circuit Court, Montgomery County; Charles W. Woodward Chief Judge.

Lillian C. Johnson was convicted of operating a disorderly house and of having in her possession lists, slips, and records drawn in a lottery, and she appeals.

Judgments reversed.

MARKELL and HENDERSON, JJ., dissenting.

Paul D. Taggart, Silver Spring, for appellant.

Harrison L. Winter, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Walter W. Dawson, State's Atty. Montgomery County Rockville, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON Judge.

On the afternoon of September 25, 1948, six officers of the Montgomery County Police went to the home of Lillian C Johnson, situated on Ritchie Avenue, in Silver Spring, Montgomery County, Maryland, and known as 501 Ritchie Avenue. Corporal Miller had a warrant, sworn out before a justice of the peace, charging the Johnson woman with operating a disorderly house at this residence. Only two of these officers testified at the trial, Corporal Miller and Sergeant Whalen.

Sergeant Whalen said they entered the screen door, which was unlatched, and found the traverser and another colored woman in the dining room, 'just sitting there talking.' He said Corporal Miller read the warrant to the traverser. 'Q. Then what, if anything, did you do after reading the warrant? A. We searched the house.'

Corporal Miller said: 'The Inspector walked up on the porch and I walked in back of him and the door was open, rather unlocked, I walked in and Catherine (meaning the traverser) was in the living room and I said, 'Catherine, just stand right there, I got a warrant here for you for running a disorderly house,' I read the warrant to her; everybody stood as they were until I finished reading the warrant, and then we started looking around and found various things.'

These women were the only people in the house at the time. There was no crime being committed by these women, that the officers saw at the time. Sergeant Whalen said: 'On the table in the dining room I observed a pasteboard tox with a quantity of numbers slips in it, along with $1.10 in change.' Corporal Miller said: 'That wastebasket (referring evidently to what Whalen described as a pasteboard box) was sitting by the telephone stand, directly inside the front door, or rather, in front of the door of the living room, right around the corner from the front door.' This pasteboard box, or wastebasket, is not described. How deep it was, what it contained, whether or not any of the officers saw any numbers slips in it, or any money at the time of the serving of the warrant is not stated. Whalen says that the pasteboard box was on the table in the dining room. Miller says the wastebasket was 'in front of the door of the living room, right around the corner from the front door' and 'was sitting by the telephone stand.' The testimony fails to show that these officers at the time of the reading of the warrant to the traverser saw anywhere in that room any slips or other material used in the operation of a lottery.

This was a frame, four-room bungalow with an enclosed porch. Immediately after the reading of the warrant these officers swarmed through this house and searched everything in it. It is perfectly apparent that the lottery slips and other matter used in connection with the operation of a lottery that was found in the pasteboard box was the result of this search. The search revealed a quantity of material used in the operation of a lottery; it also revealed a quantity of empty beer bottles and whiskey bottles, a case of beer that had not been opened, some whiskey bottles that had been opened but their contents not entirely consumed, glasses and other things that might or could be used in carrying on the business of the sale of intoxicating liquors. This search, as we have said, was thorough and consumed considerable time. Possessed of the fruit of the search, Sergeant Whalen swore out the following warrants before a justice of the peace, charging: 1. That Lilliam C. Johnson 'did have in her possession lists, slips, and records drawn in a lottery in this state or elsewhere.' And 2. That she did 'unlawfully violate Article 2B, section 2, Code 1939, in that she did have in her possession certain alcoholic beverages for the purpose of sale and delivery in this state without a license.'

When this woman was arraigned before the trial magistrate on these three charges she prayed a jury trial. The cases were sent to the Circuit Court for Montgomery County. Before the trial there was a motion to quash a warrant 'under which the person and home of the defendant was searched' and to suppress the evidence seized. This motion is confusing. The search was made at the serving of the warrant charging the traverser with maintaining a disorderly house. There was no reason to quash this warrant and we think that the trial court was right in overruling the motion. But as objection was made to the articles seized by the police in this search, as they were offered in evidence, the question as to whether the search was reasonable is presented to this court.

It was agreed by counsel for traverser and the State that all three of these charges be tried together, which was done. The trial was before a jury, and the traverser was found guilty on all three charges. All three of these charges are misdemeanors. The court suspended sentence under the conviction of selling intoxicating liquors without a license. Judgment and sentence were passed in the other cases, from which appeals were taken to this court.

At the trial below it was shown by the State that Sergeant Whalen and Corporal Miller secreted themselves in a house opposite the home of Lillian C. Johnson. They conducted a vigil on September 19, 20, 21 and 25, 1948. They were there on these occasions from around noon until ten or eleven o'clock at night. They described to the jury that they saw, which may be summarized as follows: A number of colored people came to and departed from this house. Most of them were men, but there were some women in this concourse. A few of them were intoxicated when they entered. Most of them were intoxicated when they left, some exhibiting bottles of beer and bottles of whiskey when they left. Some stayed in a very short while, some stayed there for a considerable time, and some the officers did not see depart. They came in automobiles, some bearing Maryland tags and some District of Columbia tags; some on foot; and one used a horsedrawn vehicle. Some came out so drunk that they could not stand. There was some cursing and foul language used. This was the evidence upon which the warrant charging the traverser with conducting a disorderly house was based. On of the officers was asked why he did not arrest these people, and he said they were on private property. They certainly were close to and near a public highway, and from the evidence there was drunkenness and disorderly conduct. Just why an arrest could not have been made by the officers at that time seems to be strange.

The first question presented is: Did this search and seizure which the officers conducted in this case, without having procured a search warrant to do so, violate Articles 26 and 22 of the Maryland Declaration of Rights, and section 5, Article 35, Code 1939, known as the Bouse Act? Article 26 provides:

'That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.'

Article 22 provides:

'That no man ought to be compelled to give evidence against himself in a criminal case.'

Section 5, Article 35, Code 1939, provides:

'No evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been 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; nor shall any evidence in such cases be admissible if procured 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.'

The 4th Amendment to the Constitution of the United States provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The 5th Amendment to the Constitution of the United States provides, among other things; as follows:

'* * * nor shall (any person) be compelled in any Criminal Case to be a witness against himself, * * *.'

Articles 26 and 22 of the Maryland Declaration of Rights are in pari materia with the 4th and 5th Amendments to the Constitution of the United States. Bass v. State, 182 Md. at 500, 35 A.2d 155.

The traverser urges that the search and seizure in this case violates Articles 26 and 22, as well as violates section 5 of Article 35 of the Code. She contends that it was an unreasonable search.

The State contends that the search was reasonable because it was made as an incident to a valid arrest.

We will not stop to give the background and history of Articles 26 and 22 of the Maryland Declaration of Rights, nor of the 4th and 5th...