Lambert v. State
| Decision Date | 19 July 1950 |
| Docket Number | 207. |
| Citation | 75 A.2d 327,196 Md. 57 |
| Parties | LAMBERT et al. v. STATE. |
| Court | Maryland Court of Appeals |
Jerome Robinson, Baltimore, and John Grason Turnbull Towson (John W. Farrell, Baltimore, on the brief), for appellants.
Kenneth C Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Francis T. Peach, State's Atty., and Johnson Bowie, Asst State's Atty., Towson, on the brief), for appellee.
Before MARBURY, C J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.
The appellants were tried jointly before the court, sitting without a jury, in the Circuit Court for Baltimore County, on two informations charging violation of the gambling laws. These informations were filed subsequent to the issuance of a search warrant and a search under its authorization. On January 20, 1950, all defendants were found guilty of violating the third, fourth and thirteenth counts of both informations. The two informations were alike, except that one charged its violations as occurring on October 25, 1949, and the other on October 26, 1949. Each defendant was sentenced to one year and a thousand dollar fine on each information, to run consecutively. From the judgment and sentences against them they appealed here.
The main questions raised are the validity of the search warrant and the admissibility of the evidence obtained under it. The search wararnt was attacked by motions to quash on three grounds. A. That the statute authorizing its issuance, Chapter 749 of the Acts of 1939, codified as Article 27, Sections 306 and 307 of the Code, was never constitutionally passed by the Legislature. B. That Chapter 749 of the Acts of 1939 is invalid because its title is defective, and C. That the affidavit filed with the Court, upon which the search warrant was issued, failed to show probable cause of the commission of the crime charged. The State contends that the appellants cannot raise these kindred question involving the search warrant and the admission of the evidence procured thereby, because they are not shown by the evidence to have had any connection with the premises searched, other than their presence there. The appellants, in opposition, rely upon the words 'lawful occupants' or 'lawful occupancy' found in our decisions defining those who have a right to object. Baum v. State, 163 Md. 153, 155, 161 A. 244; Kapler v. State, Md., 71 A.2d 860. They say the State did not raise this question below, and that it must be presumed, in the absence of evidence to the contrary, that they were legitimately on the premises, and were, therefore, lawful occupants, and, as such, entitled to move to suppress the evidence and to object to its introduction.
The trial court ruled adversely to appellants on the issues raised by them, although the record does not show that it passed directly on the right of the appellants to raise them. Such right is personal, cannot be exercised by any defendant, and its existence is a matter which must be determined by the court before consideration of the other points involved. The question of such right was obviously primarily involved in the motions and objections, and the trial court, by passing on the grounds urged by appellants, impliedly held that they had the right to make these motions and objections. We think the decision of that question in favor of the appellants was implicit in the rulings of the trial court, and that it is properly before us.
In the course of the remarks of the trial judge announcing his verdicts and sentences, he asked the State's Attorney whether appellants came from Baltimore City. The State's Attorney said This statement is not only, in terms, no concession by the State of any right of Alder to be on the premises, but it was made after the trial, and could have had no effect on the rulings made. Nor does the fact that the 5th count of the informations charged that appellants rented the premises for gambling purposes held the appellants. The State offered no evidence to support this allegation, and the appellants were not convicted on this count. We must determine from the facts produced in the trial, what was the status of the appellants with respect to their occupancy of the property.
We re-examine and re-state, briefly, the constitutional and statutory provisions involved, their origin and their previous construction. The 4th Amendment to the Federal Constitution is not involved, since it does not apply to State action. Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223; Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. The 14th Amendment, however, includes within its protection those immunities in the first eight amendments which may be found to be 'implicit in the concept of ordered liberty.' Justice Cardozo in Palko v. State of Connecticut, supra [302 U.S. 319, 58 S.Ct. 152]. Immunity from illegal search was one of the early freedoms claimed by the colonists and provisions with respect to it were inserted in the first Maryland Constitution. These provisions are found today in Article 26, of our Declaration of Rights. The Supreme Court has held that in a prosecution in a state court for a state crime the 14th Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. Wolf v. People of State of Colorado, supra. We, therefore, consider the subject of an unlawful search, and the admission of evidence thereby obtained solely from the standpoint of our own Constitution and our own statutes and their historical origins, although the decisions of the Supreme Court on the kindred 4th Amendment are entitled to great respect.
General warrants of search were used in England and in the Colonies to find evidence of political crimes or evidence which might be used to convict political opponents. Entick v. Carrington, 19 How. St. Trials 1029; Otis' argument, Works of John Adams, Vol. 2, page 523. We have recently discussed this somewhat at length. Bass v. State, 182 Md. 496, 35 A.2d 155; Asner v. State, Md., 65 A.2d 881. The prohibitions in the 4th Amendment, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and in the State Constitutions were directed primarily against these practices. United States v. Kirschenblatt, 2 Cir., 16 F.2d 202, 51 A.L.R. 416, Judge Learned Hand. The people intended to be protected were those whose houses or possession were to be searched, and not those who had no interest in or connection with such houses or possessions. In considering the question before us, this is the important fact to be borne in mind.
In Maryland it was formerly held that the question whether evidence was admissible in a prosecution depended on the nature of the evidence, and whether it was pertinent, and not on how it was procured. Lawrence v. State, 103 Md. 17, 63 A. 96; Meisinger v. State, 155 Md. 195, 141 A. 536, 142 A. 190. This is still the rule as to felonies, Marshall v. State, 182 Md. 379, 35 A.2d 115, but the Legislature changed it with respect to misdemeanors only, by the passage of the Act of 1929, Ch. 194, Code Article 35, Sec. 5. Then, in order to permit the lawful obtention of evidence to be used in the trial of misdemeanors, the Act of 1939, Ch. 745, was passed. This act has been before this Court in many cases, and we have, in a number of them, held that only certain people had a right to object to evidence obtained under its provisions. The description of such people in these decisions has followed the pattern laid down by Judge Digges in Baum v. State, 163 Md. 153, 161 A. 244, 245. He said, '* * * one cannot complain of an illegal search and seizure of premises or property which he neither owns, nor leases, nor controls, nor lawfully occupies, nor rightfully possesses, or in which he has no interest'. (Emphasis supplied here.) Only recently we cited the cases which followed that formula, and re-affirmed it as a positive statement of those who could complain. Kapler v. State, Md., 71 A.2d 860.
In all of these cases the words 'lawfully occupies' are intended to be of the same nature and kind as the others used, and contemplate an occupation of some character which is connected with the property or the premises by some lawful means. They have not been used to include those who are merely invitees, or whose presence is only 'lawful' because they are not trespassers. The occupancy must have some relation to the property or premises searched in order to enable such 'occupants' to claim that their possessions have been unlawfully seized. It is not sufficient that they are merely there when the search is made. They must be there with some show of right to be in possession of the premises or property.
Not only is this clear on rational and historical grounds, but it appears from the cases themselves. In the Baum case, supra, the first case in which the point was decided, the defendants, who were not allowed to object to the evidence produced by the search were found on the premises playing a game of cards. From this fact, it could not be said they were not there lawfully but on the other hand it could not be said that their presence showed they had any special rights in the property. In Frankel v. State, 178 Md. 553, 16 A.2d 93, the police were searching No. 110 Jackson Place, and finding that some of the men found there had run through a fake partition into No. 112 Jackson Place, the police searched the latter...
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