Salmon v. State

• Decision Date: 06 December 1967
• Docket Number: No. 299,299
• Citation: 2 Md.App. 513,235 A.2d 758
• Parties: Mary SALMON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 513

2 Md.App. 513

235 A.2d 758

Mary SALMON v. STATE of Maryland.

No. 299.

Court of Special Appeals of Maryland.

Dec. 6, 1967.

Milton B. Allen, Baltimore, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., and Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and J. E. Dudley, State's Atty., and Asst. State's Atty., for Baltimore City, Baltimore, on the brief, of appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Appellant was convicted of violating the lottery laws on October 13, 1966 by Judge Joseph L. Carter, sitting without a jury in the Criminal Court of Baltimore. She was sentenced to not more than one year in the Maryland State Correctional Institution for Women and fined $1,000.00. Her sole contention on this appeal is that lottery paraphernalia taken from her person at the time of her arrest, and introduced in evidence over objection at her trial, was illegally seized.

The evidence adduced at the trial showed that Baltimore City police officers, having probable cause to believe that the lottery laws were being violated, obtained a search warrant for the basement premises at 666 W. Saratoga Street, known as Mary's Hand Laundry, by which they were commanded:

'* * * (a) to enter and search the said premises, (b) to search the person and clothing of the said previously named or described person(s), (c) to search all other persons who may be participating in said criminal activities and (d) to arrest all persons, including the previously named or described person(s), who may be participating in the said criminal activities; and seize all paraphernalia used in or incident to the operation or conduct of said criminal activities; and seize any evidence that pertains to said criminal activities; * * *.'

George Annis was the only person on the premises when police entered to execute the warrant. He told the officers that he was 'presently in charge of the premises because Miss Salmon (appellant) was out of the premises.' Searching the premises, the officers found a number of nonconventional lottery slips and a lottery cutcard in the handle of an electric iron which was located on a table behind the counter. The officers also found a number of lottery slips in Annis's coat, which was hanging up on a rack in the laundry. A 'hit calendar' was observed on a clothing sorting table behind the store counter, which showed winning numbers covering the period from January 1 to June 3, 1966. As the search progressed, the appellant entered the premises, and asked the officers, all of whom were wearing plainclothes, as to what they were doing 'in her laundry,' stating that she was the owner. When the officers showed appellant the search warrant, she immediately left the premises and walked about five feet along the street before the officers stopped her and asked her to return to the laundry. Although she was hysterical, upset and otherwise 'a little reluctant' to return to the laundry, she nevertheless did so at the urging of the police, and an unidentified friend, at which time the officers searched her pocketbook and therein discovered a lottery tape, representing lottery play in the amount of $237.00. This evidence was seized an introduced at the trial over appellant's objection.

Appellant contends that the seizure of the lottery paraphernalia from her person was unlawful because (1) she was not named or described in the warrant; (2) she was not on the premises, at least voluntarily, when the search of her person was made, and (3) she was not participating in any criminal activity on the premises. She further contends that even if she had committed a misdemeanor in the presence of police, the search of her person was illegal, since it preceded rather than followed her arrest and hence was not incident thereto. During oral argument of the case, appellant's counsel stated that underlying her first three contentions, and implicit therein, was the more basic contention that the search warrant was unconstitutionally invalid as being a general warrant, since it authorized search of persons neither named nor described in the warrant, whether on or off the premises authorized to be searched. We find no merit in any of these arguments.

Article 26 of the Maryland Declaration of Rights provides:

'That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.'

The Fourth Amendment to the Federal Constitution, now applicable to the states through the Fourteenth Amendment (Stanford v. State of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) provides as follows:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

While Article 26 antedates the Fourth Amendment by a number of years, both grew out of the same historical background, having as a part of their common purpose to proscribe unrestricted searches and seizures by general warrant ¹ and thus to safeguard the privacy and security of individuals against unwarranted intrusions and arbitrary invasions by governmental officials. See Camara v. Municipal Court etc., 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930; Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877; Givner v. State, 210 Md. 484, 124 A.2d 764; Bland v. State, 197 Md. 546, 80 A.2d 43.

That the Maryland search warrant statute, Code, Article 27, Section 551, is in full compliance with these constitutional provisions cannot be doubted. The statute provides, in part, for the issuance of search warrants on proper oath or affirmation where probable cause exists 'to believe that any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing * * * or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing'. It is upon the basis of such probable cause that the statute authorizes a search of 'such suspected individual, building, apartment, premises, place or thing,' and a seizure of 'any property found liable to seizure under the criminal laws of this State'. In view of the federal and state constitutional provisions relating to searches and seizures, and prohibiting general or blanket-type warrants, the statute prohibits the issuance of any warrant unless it shall 'name or describe, with reasonable particularity, the individual building apartment, premise, place or thing to be searched,' together with, inter alia, the 'grounds for the search.'

It is thus clear from the provisions of the statute that what it, in effect, authorizes is a search of persons, places or things, as reasonably particularized in the warrant, for specifically designated property, unlawfully obtained or held, or of evidence of the commission of the crime, now including items relating thereto which are purely evidentiary in nature. ² As the search warrant is issued for the basic purpose of making a search, the probable cause necessary to support its issuance requires a proper showing not only that a crime has been or is being committed, but also that the evidence of the crime is upon the person or within the place or thing to be searched. Camara v. Municipal Court etc., supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Gattus v. State, 204 Md. 589, 597, 105 A.2d 661; People v. Montanaro, 34 Misc.2d 624, 229 N.Y.S.2d 677. It is likewise clear that while a search warrant is issued only for the purpose of making a search, and thus does not operate as an arrest warrant, nevertheless that where a directive to make an arrest is included as one of the commands of the warrant, such directive is a conditional one-valid only if the search reveals the commission of an offense, in which event the arrest is for the offense revealed by the search. ³ Henson v. State, 236 Md. 518, at page 525, 204 A.2d 516; Gattus v. State, supra; People v. Perez, 35 Misc.2d 461, 229 N.Y.S.2d 882; Varon, Searches, Seizures and Immunities, Volume 1, at pages 218, 380-381.

It is against this background that we consider the effect of the long standing practice in Baltimore City of including a command in the warrant-as was here done-not only to search the designated premises and persons named or described in the warrant, but also to 'search all other persons who may be participating in said criminal activities,' and 'to arrest all persons * * * who may be participating in the said criminal activities'. It is, in effect, appellant's contention that since the warrant authorized the search and arrest of persons neither specifically named or particularly described therein, no matter where found, that the warrant is a general one and, as such, violative of the state and federal constitutions. The same argument was raised and rejected in Griffin v. State, 232 Md. 389, 194 A.2d 80-a case which involved, as here, a search warrant in a lottery case and contained the identical commands as those now attacked. In that case, the court flatly held that the inclusion of such provisions did not render the warrant objectionable on constitutional grounds, stating at page 393, at page 82 of 194 A.2d:

'* * * The...