Salsburg v. State
Decision Date | 05 February 1953 |
Docket Number | No. 49,49 |
Citation | 201 Md. 212,94 A.2d 280 |
Parties | SALSBURG v. STATE. |
Court | Maryland Court of Appeals |
Herbert Myerberg, Baltimore (Joseph Leiter, Baltimore, and Louis M. Strauss, Annapolis, on the brief), for appellant.
Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Albert J. Goodman, State's Atty., Anne Arundel County, and C. Osborne Duvall, Asst. State's Atty., Anne Arundel County, both of Annapolis, on the brief), for appellee.
Before SOBELOFF, C. J., and DELAPLAINE, COLLINS and HENDERSON, JJ.
Julius Salsburg, who was convicted by the Circuit Court for Anne Arundel County of bookmaking on horse races, is challenging here the constitutionality of Chapter 704 of the Laws of 1951, which amends the statutory rule of evidence known as the Bouse Act, Laws 1929, ch. 194, by adding a proviso that the Act shall not prohibit the admission of illegally procured evidence in Anne Arundel County in prosecutions for violations of the State gambling laws.
The Act was also amended by Chapter 710 of the Laws of 1951, which provides that the Act shall not prohibit the admission of such evidence in Wicomico and Prince George's Counties. Thus the Act, as codified in Code 1951, art. 35, sec. 5, provides as follows:
Salsburg and two other men, Joseph John Rizzo and William Raynard Nicholson, were arrested by five officers of the Anne Arundel County Police Department on May 21, 1952, in a two-room building in the rear of a garage along the Governor Ritchie Highway at Brooklyn. When the police officers appeared on the scene, the front door was open but the door to the rear room was locked. They rapped on the door to the rear room, but, as no one answered, they broke the door open with an ax. Upon entering the room they arrested defendants and seized three telephones, two adding machines, racing forms and other paraphernalia. While the officers were in the building many telephone calls came from persons wanting to make bets.
Before the trial defendants filed motions to suppress the evidence and dismiss the proceedings. It was conceded that the police officers raided the building without a search warrant and that they seized the gambling paraphernalia illegally. Defendants contended that the 1951 amendment of the Bouse Act violates the Fourteenth Amendment of the Constitution of the United States, and that the paraphernalia were inadmissible under the Bouse Act as it stood before the amendment. The Court overruled the motions and admitted the paraphernalia in evidence. The Court thereupon found each defendant guilty and sentenced each to the Maryland House of Correction for six months and to pay a fine of $1,000.
On December 12, 1952, the Court of Appeals held, in an opinion by Chief Judge Markell, that Rizzo and Nicholson could not complain of the illegality of the search and seizure, because they had no interest in the raided premises. Salsburg, on the other hand, testified that he was lessee of the building at the time of the raid. Therefore, the paraphernalia would be admissible as to him only in case the 1951 statute is valid. We ordered a reargument of his appeal on the question of the constitutionality of the statute. Rizzo v. State, Md., 93 A.2d 280.
Prior to the enactment of the Bouse Act in 1929, this Court held that where evidence offered in a criminal trial is otherwise admissible, it will not be rejected because it was obtained illegally. Meisinger v. State, 155 Md. 195, 141 A. 536, 142 A. 190; Heyward v. State, 161 Md. 685, 158 A. 897; Baum v. State, 163 Md. 153, 161 A. 244. This is still the rule is prosecutions for felonies in this State. Marshall v. State, 182 Md. 379, 35 A.2d 115; Delnegro v. State, Md., 81 A.2d 241, 244. The Bouse Act changed the rule only in trials for misdemeanors.
We find no reason to hold that the 1951 statute, making illegally procured evidence admissible in certain trials in Anne Arundel County, is in conflict with the Due Process Clause of the Fourteenth Amendment of the Federal Constitution or Article 23 of the Maryland Declaration of Rights. It is true that in Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, the United States Supreme Court held that evidence obtained in violation of the Fourth Amendment is inadmissible in the Federal courts. But in Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, the Court explicitly stated that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.
In explanation of the rule, Justice Frankfurter made the following comment:
Appellant vigorously protested that the statute, partially exempting Anne Arundel County from the operation of the Bouse Act, will tend to give encouragement to the county police to violate the law by invading private homes to make searches and seizures without a warrant. A similar protest was made by the defendant in People v. Defore, 1926, 242 N.Y. 13, 150 N.E. 585, 588, 589, but the Court of Appeals of New York announced that it preferred the State rule to the Federal rule. In that case Judge Cardozo said in the opinion of the Court:
We now pass to the important question whether appellant was denied the equal protection of the laws when the Circuit Court for Anne Arundel County, in accordance with the 1951 statute, admitted illegally procured evidence against him at his trial for gambling, while the law makes illegally procured evidence inadmissible in trials for the same offense in twenty counties and the city of Baltimore.
Ever since the beginning of our government, American political philosophy has been based upon principles of equality. Protection from unequal operation of the laws entitling a person to like privileges and burdens accorded to other persons in like circumstances is a basic American concept. It was thus natural that this concept was expressed in the guaranty of protection from arbitrary and unjust disparity of treatment contained in Federal and State Constitutions. The constitutional guaranty of equality is construed, however, to give full play to the powers of government so long as the exercise of those powers is clearly not an infringement of the rights of citizens.
The principal guaranty of equality in American Constitutions is the clause in the Fourteenth Amendment to the Federal Constitution which provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.' This amendment was proclaimed to be in force July 28, 1868. It was nearly five years afterwards when the Supreme Court construed the Amendment in the Slaughter-House Cases, 1873, 16 Wall. 36, 81, 21 L.Ed. 394, 410. The Amendment had been submitted to the people to give protection to the Negroes, who had been recently emancipated, but those cases raised questions of the extent of the police power of the State and the granting of a monopoly. The Legislature of Louisiana had granted a monopoly of the slaughter-house business in New Orleans in favor of one corporation, thereby depriving many citizens of the right to engage in that business. The Court held that the statute did not violate any provision of the Fourteenth Amendment and that the subject of local monopoly was for the States, not for the Federal Government, to deal with. In referring to the Equal Protection Clause,...
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