Kapler v. State
| Decision Date | 08 March 1950 |
| Docket Number | 95. |
| Citation | 71 A.2d 860,194 Md. 580 |
| Parties | KAPLER v. STATE. |
| Court | Maryland Court of Appeals |
Michael Paul Smith, Baltimore, and W. Albert Menchine Towson, for appellant.
Kenneth C Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Francis T. Peach, State's Atty. for Baltimore County Towson, on the brief), for appellee.
Before MARBURY, C J., and DELAPLAINE, COLLINS, GRAYSON, HENDERSON and MARKELL, JJ.
The appellant was convicted in the Circuit Court for Baltimore County in a trial before a jury on each of seven criminal informations charging bookmaking activities. The charges were placed against appellant following a search conducted by the police under a search warrant. Timely objection to the validity of the warrant was made by a motion to quash, which was overruled, and then by objection at the trial to the admissibility of evidence seized under the warrant, which objection was also overruled.
The search warrant in the case was issued by the Honorable J. Howard Murray, associate judge of the third judicial circuit, on the affidavit of Sergeant C. A. Eitemiller of the Baltimore County Police Department. The affidavit alleged upon information and belief, and the court found, that there was probable cause to believe that a misdemeanor was being committed, in that the law in relation to bookmaking was being violated, in a one-story concrete or cinder block building on the southernmost side of Eastern Avenue, directly to the rear of the premises known as 411 Eastern Avenue, in Baltimore County, and adjacent to an alley running parallel to Eastern Avenue at approximately 150 feet distant therefrom. The Sergeant recites certain things which were observed by Officer Story of the Department, and certain information which Story received from an unknown informant. These recitals are as follows:
'Upon receipt of a complaint that bookmaking is being conducted on the above described premises at the rear of 409 and 411 Eastern Avenue, Essex, Baltimore County, the affiant instructed Officer Edner Story, a member of the Baltimore County Police Department, to investigate the complaint and to watch the said premises in an effort to obtain evidence of bookmaking activities.
'On Friday, May 6, 1949, Officer Story observed the above described premises and noted that the building marked "G" on the aerial photograph attached hereto, marked "State's Exhibit A" and prayed to be taken as a part hereof, is constructed to resemble a two car private family garage, with the customary sliding garage door facing on the alley shown on said exhibit, and is approximately 25 feet wide and 50 feet long, has only one window, covered on the inside, preventing observation of the interior; and on the west wall of the building is a closed booth marked "L" on State's Exhibit "A" and partially hidden from view by the stairway marked "S" on said exhibit, said lookout booth being approximately 6 feet wide and 3 feet in depth with two small windows approximately one foot square, and to the rear of this booth is a solid oak door into the said described building; that the entrance to the lookout booth is located about 10 feet from steps leading to the rear door of property number 409 Eastern Avenue, which is a tavern, duly licensed for the sale of alcoholic beverages, said tavern steps being marked "T" on the aforesaid exhibit.
'On Saturday, May 7, 1949, at about two o'clock P.M. and shortly thereafter, approximately twenty men walked out the rear door of the tavern located at 409 Eastern Avenue and entered said building to the rear of 411 Eastern Avenue. As these men approached the building an elderly man was sitting in the lookout booth referred to and looked at each man steadily before admitting them to the booth. These men left the said described building, gradually, in small groups around six o'clock P.M.
'On Thursday, May 12, 1949, Officer Story engaged in conversation with a man whose name is not known, who stated that on Saturday, May 7, 1949, he had been allowed to go through the door to the rear of the lookout booth into a large room where he observed two men behind a wooden counter engaged in taking bets from a group of men standing in the room. These two men are described as follows: The first is described as being approximately 32 years of age, medium height, black hair, brown eyes, dark complexion, clean shaven, slender and apparently of Italian extraction. The name of this man is reported to be Frank DiCarlo. The second man is described as being approximately 35 years of age, slender build, clean shaven, dark hair, long pointed nose and apparently of Hebrew extraction. This man is known by the name of John. In the large room, a radio was announcing the results and post times of horse races at various race tracks; on the wooden counter were copies of the "Daily Racing Form" and "Armstrong Scratch Sheet", both publications containing the names of horses entered in races and being widely used in bookmaking activities; pencils and small pieces of paper that were being used to record bets on horse races. Officer Story's informant stated that he saw the two men behind the counter take from many men slips of paper together with varying sums of money, and immediately after a race result was announced, the men behind the counter would give varying sums of money to the various individuals. 'On Saturday, May 14, 1949 at about two o'clock P.M. and shortly thereafter, approximately twenty-five men entered the building marked "G" on the aforesaid State's exhibit in the same manner as described on the preceding Saturday, May 7, 1949, and remained in the building until approximately six o'clock P.M., but it was not possible for Officer Story to observe what occurred inside the building.
'It is to be noted that on May 7, 1949 and on May 14, 1949, at the times referred to above, horse racing was being conducted on at least six different race tracks, including the Pimlico race track in Baltimore City, and that between the hours when the men referred to above entered and left the said building, is the period when most horse race betting and bookmaking activities are conducted.'
This affidavit was sworn to by Sergeant Eitemiller, and thereupon the warrant was issued to search the building and to arrest two men, neither of whom are parties to this case.
At the trial, the motion to quash the warrant and to suppress and return the evidence, which was made by the appellant and others, attacked the warrant on various grounds which will be hereinafter discussed, but it does not allege the relationship of the parties to the property or the articles seized. But at the trial of the case and before the testimony about the search was admitted, it was stipulated that the property, in which the search was made, was owned by William Kapler and his wife. Kapler was not found on the property when the search was made, although telephone receipts found in the premises were in Mr. Kapler's name and in that of Mr. Walter Kesler, care of Mr. W. Kapler. Kapler testified that he had rented the property to Kesler until July 1, and that he left January 2nd for Florida, and came back when he was advised that there was a warrant out for him. Under these circumstances the State contends that Kapler had no interest in the premises sufficient to justify him in making a motion to quash the evidence obtained as a result of the raid, or to object to its admission in evidence against him.
This Court has a number of times declined to permit a person who had no interest in the premises to object to the admission of evidence found in a raid there, even though such person was indicted as the result of such raid. In so doing, the court has negatively indicated who could object....
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