Rizzo v. State

• Decision Date: 12 December 1952
• Docket Number: No. 49,49
• Citation: 93 A.2d 280,201 Md. 206
• Parties: RIZZO et al. v. STATE.
• Court: Maryland Court of Appeals

Page 206

201 Md. 206

93 A.2d 280

RIZZO et al. v. STATE.

No. 49.

Court of Appeals of Maryland.

Dec. 12, 1952.

Herbert Myerberg, Baltimore (Joseph Leiter, Baltimore and Louis M. Strauss, Annapolis, on the brief), for appellants.

Ambrose T. Hartman, Asst. Atty. Gen. (J. Edgar Harvey, Acting Atty. Gen., Albert J. Goodman, State's Atty., Anne Arundel Co., and C. Osborne Duvall, Asst. State's Atty., Anne Arundel Co., both of Annapolis, on the brief), for appellee.

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

MARKELL, Chief Judge.

These are appeals from judgments and sentences on conviction of bookmaking. Defendants were arrested on warrants charging bookmaking. Before the magistrate the State's Attorney prayed jury trial. In the circuit court the case was tried without a jury. Code of 1951, Art. 52, § 14. Wilson v. State, Md., 88 A.2d 564.

Before issuance of the warrants for arrest, and without a search warrant or any warrant at all, members of the Anne Arundel County police force, 'upon the advice of the State's Attorney', entered by the use of an axe the rear room of a small two-room building in the rear of Roland Terrace Garage, at the intersection of Third Street and Governor Ritchie Highway. There the officers arrested defendants and seized 'incriminating evidence' [appellants' brief], the nature of which is not specified in either brief or appendix. There were three telephones there, and three telephone wires leading in. Motions of each defendant that 'the articles, items and property enumerated in the return of the police as taken from the premises of your defendant, and all other property of the defendant in custody of the State taken from this defendant * * * be returned to your petitioner' were overruled. Presumably (it does not affirmatively appear) the articles seized were admitted in evidence.

As amended by Chapters 704 and 710 of the Acts of 1951 [approved May 7, 1951, effective June 1, 1951], the Bouse Act, Code of 1951, Art. 35, § 5, contains a proviso, 'Provided, further, that nothing in this section shall prohibit the use of such evidence in Anne Arundel, Wicomico and Prince George's Counties in the prosecution of any person for a violation of the gambling laws as contained in Sections 303-329, inclusive, of Article 27, sub-title 'Gaming', or in any laws amending or supplementing said sub-title.' As to Anne Arundel County this proviso was added by Chapter 704, as to Wicomico and Prince George's by Chapter 710. Defendants contend that Chapter 704 denies them the equal protection of the laws and is unconstitutional. The State contends that the act is constitutional, and also that defendants had no title or interest in or to the premises searched and therefore no right to complain of the search and seizure as illegal.

There is no evidence--and no allegation other than any implication in mention of 'the premises of your defendant' in the unsworn petitions for return of property seized--that defendants Rizzo and Nicholson had any interest in the premises. Defendants say it is sufficient that they claim the property seized. They cite United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, and the often repeated statement of this court that '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.' [Italics supplied.] Baum v. State, 163 Md. 153, 157, 161 A 244, 245. Although this statement in the Baum case was believed to be supported by many cited state and federal cases, including one Supreme Court case, it appears that recent Supreme Court cases recognize a broader right to complain. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, citing McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153. In the Jeffers case narcotics seized without a search warrant in a hotel room of defendant's aunts, in the absence of defendant and his aunts, were ordered suppressed as evidence, though not returned to defendant because they by law were contraband. The decision was not based on the ground that the seizure was illegal, though the search was not (as to the defendant), but on the ground that 'The search and seizure' [342 U.S. 48, 72 S.Ct. 95] were 'incapable of being untied', and therefore were an invasion of the defendant's rights, though he had no interest in the premises. We need not further pursue the ratio decidendi in the Jeffers case. If it supports defendants' contention in the instant case, it is contrary to the often repeated statement of this court in the Baum case.

We are not infrequently reminded by counsel of our statement in Wood v. State, 185 Md. 280, 285, 44 A.2d 859, 861, that 'The Bouse Act and the Act of 1939 amount to adoption pro tanto of the Supreme Court decisions under the Fourth Amendment.' The context shows that the extent of pro tanto was the meaning of 'illegal search and seizure' as dependent upon want of 'probable cause'.

In the instant case defendants were convicted on a charge of 'making or selling a book or pool on the result of a running race of horses'. 'Incriminating evidence' to support that...