Manger v. State

• Decision Date: 24 June 1957
• Docket Number: No. 169,169
• Citation: 133 A.2d 78,214 Md. 71
• Parties: Charles Warren MANGER and Morris Schwartz v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 71

214 Md. 71

133 A.2d 78

Charles Warren MANGER and Morris Schwartz v. STATE of Maryland.

No. 169.

Court of Appeals of Maryland.

June 24, 1957.

Johnson Bowie, Towson, for appellants.

Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Frank H. Newell, 3rd, State's Atty., Towson, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

On June 1, 1956, there became effective Chapter 116 of the Acts of the General Assembly of that year, adding to Code, 1956 Supp., Art. 35, Secs. 100 to 107, both inclusive, as well as to Code 1951, Art. 27, Sec. 570A. We will hereinafter sometimes refer to Chapter 116 as 'the Act'. The Act (a) made wire-tapping illegal unless authorized by order of court issued beforehand on the verified statement of named law enforcement officials that a specified crime has been or is about to be committed, and (b) said in Sec. 105 that 'Only evidence obtained in conformity with the provisions of this subtitle shall be admissible in evidence, and then only in a prosecution for the crime or crimes specified in the court order * * *.' Criminal sanctions were provided for violation of the prohibitions of the Act.

Between May 17 and May 23, 1956, on three separate occasions, officers of the Maryland State Police tapped telephone wires leading to a house in Pikesville known as 9 Brightside Avenue, in which were two telephones, one, Hunter 6-8088, listed to Mrs. Wanda Manger, and the other, Hunter 6-7019, to one Gerald Williams. On each occasion police overheard calls to 9 Brightside Avenue concerning bets on horse races. The participants were not identified. On May 28, Sergeant Smith of the State Police made application for a search and seizure warrant, and in his affidavit set forth in considerable detail the conversations intercepted by the wire-tap of May 23. Judge Barrett of the Circuit Court for Baltimore County found probable cause to believe that the gambling laws had been and were being violated at 9 Brightside Avenue and issued the warrant on May 28. On that same day the police executed the warrant and found the appellants, Charles Manger and Morris Schwartz, in a rear bedroom on the second floor of the house. Also in that room was ample evidence of a large and well organized bookmaking operation, which the police seized. Several calls came in while the police were there from persons attempting to place bets.

Before trial each of the appellants filed a motion to quash the search warrants, to suppress the evidence, illegally and wrongfully obtained, and for the return of the property seized. These were overruled and trial was had before the court, who found appellants guilty. The appeals are from the judgments and sentences that followed.

Appellants do not contend that the evidence procured in the raid and offered at the trial was insufficient to sustain the convictions if properly admitted. Rather, they argue that the evidence was inadmissible. First they say that it was barred by Sec. 105 of the Act, and second that the search warrant was invalid because it was issued without probable cause. The first contention has two thrusts. One is that the prohibition of Sec. 105 against admission of evidence not obtained in conformity with the Act is a rule of evidence that became law on June 1, 1956, and was controlling at the time of the trial on June 28, 1956, regardless of the fact that the evidence was obtained before June 1. The other is that the evidentiary prohibition covers not only the conversation overheard by means of the wire-tap but extends to the 'fruit of the poisonous tree', as the Supreme Court described it in the second Nardone case--Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 268, 84 L.Ed. 307. On this point they say that the Act bars any evidence 'procured by, through, or in consequence of' the forbidden wire-tapping, to use the phraseology of the Bouse Act, Code, 1956 Supp., Art. 35, Sec. 5, as to the fruits of a forbidden search and seizure.

In the view we take of the case we do not reach either thrust of the appellants' first contention. We agree with the State in reading the Act to mean that an accused, not a participant in the conversation overheard by means of an unlawful wire-tap, may not invoke the Act to keep out of a case evidence against him procured by, through, or in consequence of the intercepted conversation. In turning the decision on this point, we do not decide, but assume, (a) that wire-tap evidence obtained before, but offered after, June 1, 1956, is subject to the provisions of the Act, and (b) that the ban of Sec. 105 of the Act extends to and embraces the fruits of the conversation unlawfully intercepted.

Maryland has long applied the common law rule that evidence is admissible against one accused of crime, be it felony or misdemeanor, even though it was obtained unlawfully. Meisinger v. State, 155 Md. 195, 141 A. 536, 142 A. 190; Salsburg v. State, 201 Md. 212, 94 A.2d 280, affirmed 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281.

The Bouse Act, passed in 1929, made an exception to this rule as to misdemeanors, making evidence obtained by an illegal search and seizure inadmissible in such cases. Since the passage of the Bouse Act, this Court has held repeatedly that an accused who has no interest in the premises searched cannot complain of an illegal search and seizure or bar evidence obtained thereby from being used against him. Rizzo v. State, 201 Md. 206, 209, 210, 93 A.2d 280; Baum v. State, 163 Md. 153, 161 A. 244. Before the passage of the Act of 1956, it had been established by decisions of the Supreme Court and this Court that wire-tapping was not either a search or a seizure forbidden by the Fourth Amendment or the Constitution or laws of Maryland. Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944; Leon v. State, 180 Md. 279, 23 A.2d 706.

In this setting and with this background the Legislature passed the wire-tapping Act of 1956. A somewhat similar measure, Senate Bill 32 was introduced in the 1956 Legislature as a Legislative Council bill. Senate Bill 32 was based upon House Bill 352 of the 1955 session. See the report of the Legislative Council to the General Assembly of 1956, item 44. The explanation at the head of the draft of the council bill reads in part as follows: 'There is presently no prohibition or regulation by State law of wire-tapping and evidence thus obtained is admitted in trials of criminal cases. It is the feeling of the Council that there should be strict regulation of wire-tapping * * * except when done under a court order * * * the court order must specify the crime in connection with which the wire-tap evidence is sought and the evidence so obtained may be used only in connection with that crime.' Senate Bill 122, (which emerged as Ch. 116) as introduced in the 1956 Legislature, could well have been based on proposals set forth in an article by Alan F. Westin on 'The Wire-Tapping Problem' in 52 Columbia L.R. 165, and the outline of a proposed statute set forth on pages 200-208. The bill, however, was rather extensively amended in passage through the Legislature. It contains a declaration of policy in Sec. 100, which states: 'The right of the people to be secure against unreasonable interception of telephonic and telegraphic communications shall not be violated. The interception and divulgence of a private communication by any person not a party thereto is contrary to the public policy of this State, and shall not be permitted except by court order in unusual circumstances to protect the people. It is further declared to be the public policy of this State that detection of the guilty does not justify investigative methods which infringe upon the liberties of the innocent.' Sec. 101 prohibits the interception of telephonic and telegraphic communications, with certain exceptions in favor of employees of telephone or telegraph companies. Sec. 102 provides for the issuance of court orders under stated conditions for the interception of telephonic and telegraphic communications. Sec. 105 provides: 'Only evidence obtained in conformity with the provisions of this subtitle shall be admissible in evidence, and then only in a prosecution for the crime or crimes specified in the court order, in the circuit courts of this State or in the criminal courts of Baltimore City.' It is to be noted that the committee on judicial proceedings, in reporting the bill favorably, amended Sec. 101(a)(1), changing the requirement for consent to wire-tapping from at least one participant to 'the participants'. The other amendments do not seem to throw any great light as to legislative intent in regard to the questions before us.

A consideration of Sec. 102 of the Act and the provisions of the search warrant statute, Code, 1951, Art. 27, Sec. 328, show a great similarity between requirements for obtaining a search warrant, so that a search will not be unreasonable under the Bouse Act, and those for obtaining a wire-tap order. The declaration of public policy of the Act is substantially in the language of the Fourth Amendment, which is of significance in light of the fact that neither under the Fourth Amendment nor the Maryland law is wire-tapping a search and seizure. We think the Legislature intended the Act to be in pari materia with the Bouse Act...