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

Page 212

201 Md. 212

94 A.2d 280

SALSBURG v. STATE.

No. 49.

Court of Appeals of Maryland.

Feb. 5, 1953.

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.

DELAPLAINE, Judge.

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:

'No evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been procured by, through, or in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Rights of this State * * *. 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.'

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: 'The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society. * * * Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment. But the ways of enforcing such a basic right raise questions of a different order. How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclde the varying solutions which spring from an allowable range of judgment on issues not susceptible of quantitative solution.'

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 are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new consequences would be. The pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious. * * * We do not know whether the public, represented by its juries, is to-day more indifferent to its liberties than it was when the immunity was born. If so, the change of sentiment without more does not work a change of remedy. Other sanctions, penal and disciplinary, supplementing the right to damages, have already been enumerated. No doubt the protection of the statute would be greater from the point of view of the individual whose privacy had been invaded if the government were required to ignore what it had learned through the invasion. The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.'

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,...