Miller v. State

• Decision Date: 21 April 1938
• Docket Number: 9.
• Citation: 198 A. 710,174 Md. 362
• Parties: MILLER v. STATE.
• Court: Maryland Court of Appeals

198 A. 710

174 Md. 362

MILLER v. STATE.

No. 9.

Court of Appeals of Maryland

April 21, 1938

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Harry Miller was convicted of maintaining and operating an establishment for gambling on horse races, and he appeals.

Reversed and remanded.

Edward L. Ward and Michael F. Freedman, both of Baltimore, for appellant.

Charles T. LeViness, 3d, Asst. Atty. Gen. (Herbert R. O'Conor Atty. Gen., Hilary W. Gans, Deputy Atty. Gen., and Philemon B. Coulter, Asst. State's Atty., of Baltimore, on the brief), for the State.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL and JOHNSON, JJ.

OFFUTT Judge.

Harry Miller, sometimes otherwise known as Harry Morris, born Philip Amolsky, was convicted in the criminal court of Baltimore City of the crime of maintaining and operating an establishment for gambling on horse races contrary to the form of Code, art. 27, § 247, and from the judgment on that verdict he took this appeal.

In the course of the trial the State over the defendant's objection was permitted to introduce in evidence certain papers called in the argot of the business 'run down sheets,' 'race horse bet slips,' a number of pads of paper, and several telephone sets, which were seized by police officers of Baltimore City in a raid on the establishment. The defendant contends that the raid was trespass, that the seizure was unlawful, and that the material taken was inadmissible as evidence against him of the crime which they were offered to prove.

The raid and seizure were not authorized by any warrant or other legal process, and unless authorized by a valid statute, or made with the defendant's consent, were made under circumstances which conclusively characterized them as unlawful. If the search and seizure were unlawful, then under Code Pub.Gen.Laws Supp.1935, art. 35, § 4A, the evidence thereby obtained was improperly admitted, and since it was vital and material, that conclusion would inevitably lead to a reversal of the judgment; so that the question in the case is, Was the search and seizure unlawful. Before dealing with that question, some reference to the back ground of the case, and the circumstances attending the raid, will be helpful.

Mrs. Charles Lee Forbes owns a property formerly called Forbes Hotel at 307-309 McMechen street in Baltimore City. The structure on these two numbered lots is used and managed as a single property. On April 29, 1937, she leased the entire first floor of that property to Samuel Budlow for a term of two years at a total rent of $1,800. There are two apartments on the second floor and two on the third. One of these she occupies; the others she rents as she can. The defendant occupied one of the third floor apartments for about a year and a half before the trial as a tenant from month to month. Had the two lots been occupied by separate buildings his apartment would have been in No. 309, but access may be had to any of these upper apartments from either No. 307 or No. 309.

On April 23, 1935, Budlow, who was also a tenant of Mrs. Forbes at that time, applied for a license to operate a saloon or tavern to be known as 'the Owl Tavern,' at Nos. 307-309 McMechen street, for the period of one year. Attached to the application was a statement made by the owner of the property assenting to the issuance of the license and authorizing 'The State Comptroller, his duly authorized deputies, inspectors and clerks, the Board of License Commissioners of Baltimore City, its duly authorized agents and employees and any peace officer of Baltimore City to inspect and search, without warrant, the premises upon which the business is to be conducted, and any one all parts of the building in which said business is to be conducted, at any and all hours.'

Code Pub.Gen.Laws Supp.1935, art. 2B, § 5, subsec. (13), provides that every application for a license under that article shall contain such a statement.

Section 31 of the same article, without reference to the consent required by section 5 subsec. (13), provides that: 'The Comptroller, his duly authorized deputies, inspectors and clerks, the Board of License Commissioners of the County or the City in which the place of business is located, its duly authorized agents and employees, and any peace officer of such county or city, or any of them, shall be fully authorized to inspect and search, without warrant, at all hours, any building and premises in which any alcoholic beverages are authorized to be manufactured or sold under the provisions of this Article, and any evidence discovered during any such inspections shall be admissible in any prosecution for the violation of the provisions of this or any other Article, or upon any hearing for a revocation, suspension or restriction of the license of the person who has obtained a license to manufacture or sell alcoholic beverages in such building or premises.'

It is not denied that by virtue of the consent and the statute the officials named therein may, without the authorization of legal process antecedently and lawfully issued, enter the premises of the licensee or the owner in a building in which there is a licensed saloon and search the same and seize any evidence of crime found there, but the question here is whether such officials may without his consent lawfully make such a search and seizure on the premises of a tenant in such a building not connected or related to the licensee's business.

The State contends that in such a case such a search and seizure may lawfully be made, the defendant contends that they cannot be so made, and that is the issue.

The suggestion is made by the State that since the defendant's objection to the admission of the evidence involved in the exceptions raising that issue was general, and not on the specific ground that it was procured by an illegal search and seizure, it cannot be considered in this court.

But when the evidence involved in at least three of the exceptions was introduced, it had been shown that the evidence was procured in the course of a raid in which a squad of police officers, without his permission and without a warrant, entered the defendant's apartment, arrested him, searched his apartment, seized his property, and delivered it to the police department of Baltimore City.

If it be assumed, by analogy to those cases in which the victim of an illegal search and seizure seeks the return of material taken in the course thereof, that the burden was upon the defendant to show the illegality of the seizure, and consequently, in connection with his objection, to offer proof of facts sufficient to condemn the seizure as illegal, nevertheless these facts would be prima facie sufficient to meet that burden, especially since the defendant had made a motion to suppress the evidence before the trial, and the court clearly indicated that he understood that the objection was based upon the ground that the seizure was illegal. The mere fact that the preliminary motion was inconsistent with the established practice in this State did not prevent its indicating the ground of defendant's objection, Sugarman v. State, Md., 195 A. 324, 326. The issue stated will therefore be accepted as sufficiently presented by the exceptions.

The argument in support of appellant's contention that the evidence involved in the exceptions was seized in the course of an illegal search rested upon two grounds: One, that immunity against unlawful search and seizure is personal and may not be waived except by the person whose rights are affected; and two, that it protects not only such person's dwelling, but also any premises lawfully in his possession. Both of these settled principles of constitutional law may be conceded without argument, but neither of them reaches the question in this case, which is not whether Miller waived his immunity, but whether he rented his apartment subject to the paramount right of the officials named in the statute to enter and search it at any and all times.

In other words, the question is not whether he waived an immunity, but whether he had an immunity to waive.

The validity of Code Pub.Gen.Laws Supp.1935, art. 2B, § 5, subsec. (13), and section 34, is not questioned by the appellant, and may therefore, for the purposes of this case, be assumed, 11 Amer. Jur., Constitutional Law, § 125, since every legislative enactment is presumed to be valid until judicially determined to be otherwise, 59 C.J. 621, in some case where the question is formally submitted to the court for determination, Ibid; Franklin v. State, 12 Md. 236; Cooley on Const. Lim., 382; 6 R.C.L., Constitutional Law, §§ 74, 98; R.C.L., Perm.Supp., 1615, 1607.

The question therefore requires an interpretation of the statute, not a determination of its validity.

It is suggested by the appellee that the consent required of the owner of the property, by Code Pub.Gen.Laws Supp.1935, art 2B, § 5, subsec. (13), in which a saloon is licensed to entry, inspection, and search by certain officials extends to parts of the premises not occupied by the licensee or by the owner, but by others having no connection with the saloon and no relation other than that of a tenant to the owner. But there is nothing in the words of the paragraph to support that construction. The natural construction of the language would be that, in so far as the consent of the owner of the property may be necessary to the right of entry and inspection, he is required to give it, not that the owner could or is required to authorize such officials to search the apartments and premises of tenants over which he has no control. During the term of the tenancy, unless permitted by the terms of the lease, a landlord has no more right to...