Scarborough v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Before MURPHY; ORTH
• Citation: Scarborough v. State, 3 Md.App. 208, 238 A.2d 297 (Md. App. 1968)
• Decision Date: 19 February 1968
• Docket Number: No. 113,113
• Parties: Henry George SCARBOROUGH v. STATE of Maryland.

Page 208

3 Md.App. 208

238 A.2d 297

Henry George SCARBOROUGH v. STATE of Maryland.

No. 113.

Court of Special Appeals of Maryland.

Feb. 19, 1968.

Alan H. Murrell, Baltimore, for appellant.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Bernard J. Dischinger State's Atty. and Asst. State's Atty. for Baltimore City, respectively, Baltimore, on brief, for appellee.

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

ORTH, Judge.

The appellant was charged in indictment No. 1258 with the sale of a lottery ticket (1st count), the keeping of a room at 514 N. Patterson Park Avenue for the purpose of selling lottery tickets (2nd count), permitting the room, of which he was the owner, to be used as a place for selling lottery tickets (3rd count) and possession of lottery slips (4th count). There was an addendum to that indictment warning the appellant that the State had evidence that he had been convicted formerly of violation of the lottery laws and intended to prosecute him for the current offense as a subsequent offender. See Maryland Rules, 713. He was also charged jointly with Emma Elizabeth Scarborough, in indictment No. 1126, containing sixteen counts, with bookmaking and related offenses. The appellant went to trial without a jury in the Criminal Court of Baltimore on both indictments, and, by his election, the issue of whether or not he was a subsequent offender was tried concurrently with indictment No. 1258. He was found guilty under indictment No. 1126 on the 9th count (using the house at 514 N. Patterson Park Avenue for the purpose of betting on the result of a race), and on the 10th count (using the house for the purpose of making books and pools upon the result of a race) ¹ and guilty generally under indictment No. 1258. He was sentenced to imprisonment for a term of 3 years upon the convictions under indictment No. 1258 as being a second time convicted of an offense relating to lotteries, Md.Code, (1967 Repl.Vol.), Art. 27, § 366, and for a term of 1 year upon the convictions under indictment No. 1126, to run concurrently with the 3 year sentence.

On appeal he contends that:

I The search warrant was invalid;

II The evidence was not sufficient to sustain the convictions. ²

I

The application for the search warrant, properly signed and sworn to by Lawrence A. Banks, a 'Patrolman of Police of Baltimore City' before a judge of the Supreme Bench of Baltimore City contained alleged facts within the personal knowledge of the affiant from which it clearly appeared that there was probable cause for the issuance of the search warrant. See Md.Code, supra, Art. 27, § 551. The appellant urges, however, that the facts alleged were actually not facts but fiction, that the allegations of the affiant were false because he did not observe what he swore he observed and that since the basis of the probable cause was 'false and fictitious statements' the warrant was invalid.

It has been firmly established in this State that 'the court's consideration of the showing of probable cause should be confined solely to the affidavit itself'. In Smith v. State, 191 Md. 329, 335, 62 A.2d 287, 289, 5 A.L.R.2d 386, cert. den. 336 U.S. 925, 69 S.Ct. 656, 93 L.Ed. 1087 the Court said:

'The better rule seems to be that the court's consideration of the showing of probable cause should be confined solely to the affidavit itself, and the truth of the alleged grounds stated in the affidavit cannot be controverted, as was done in the instant cases, by receiving the testimony of the accused and other witnesses. * * * We are of opinion that any inquiry as to whether the affidavit, on which the search warrant was based, showed probable cause is confined to the affidavit alone and testimony should not be taken to controvert the truth of the allegations therein'.

In Tucker v. State, 244 Md. 488, 224 A.2d 111, it was urged by the appellant, as in substance the appellant here urges, that however 'legally sound, well intentioned and theoretically perfect' Smith may be, it has become, 'an instrument of oppression and a vehicle of perjury' and that the Court ought to 're-examine' the holding 'in light of developments in the field of Constitutional law' since it was decided in 1948. In answer, after examination of the cases cited by Tucker in support of his views, the Court quoted Tischler v. State, 206 Md. 386, 390-391, 111 A.2d 655, 657.

'Appellant urged that we should abrogate this rule because it encourages police officers to make false statements under oath. But the rule which was adopted by this Court in 1948 was reaffirmed in 1951 in Goss v. State, 198 Md. 350, 354, 84 A.2d 57; again in 1952 in Adams v. State, 200 Md. 133, 139, 88 A.2d 556; and again in 1953 in Harris v. State, 203 Md. 165, 172, 99 A.2d 725. Accordingly we again assert that the rule is so firmly established in Maryland that it should not be changed by a decision of this Court. We also take occasion to say that this rule has been generally followed in other States. (Citing cases.)'

The above language from Tischler was also quoted in Burrell v. State, 207 Md. 278, 280, 113 A.2d 884, the Court saying: 'We are not persuaded that the earlier cases were wrongly decided'. The Court of Appeals was not so persuaded in Tucker and this Court is not now so persuaded. See Clayton v. State, 1 Md.App. 500, 231 A.2d 717.

In any event, however, we do not agree that the evidence before the court in the instant case 'clearly established the falsity of Bank's sworn allegations in the application for the search warrant'. In the application for the search warrant, Banks, assigned to the Rackets Division of the Baltimore City Police Department, stated that on February 21, 1966 about 10:30 A.M. he went to the 500 block of North Patterson Park Avenue to watch for violations of the lottery and bookmaking laws, paying particular attention to Emma's Cafe at 514 North Patterson Park Avenue. He saw two men enter the Cafe and leave after staying a short time. About 11:05 A.M. he entered the Cafe, immediately preceded by a man designated in the application as the First Man. The First Man engaged in a conversation with a woman and Banks heard him say, 'Here's the numbers I got', and handed her some slips of white paper and money. The First Man said, 'Where's Hennie, I got some horse bets for him'. The woman called, 'Hennie', and a man designated in the application as the Second Man came 'from what appeared to be a back room' and met the First Man at the end of the bar. Banks saw the First Man give the Second Man some small slips of white paper and money. Banks left the Cafe at 11:15 A.M. Banks was again in the vicinity of the Cafe on February 22, 1966 from 10:40 A.M. to 11:40 A.M. and although he did not enter the premises, observed activities by the First Man and others indicating that violations of the lottery and gambling laws were being conducted therein. He went back again on February 23, 1966 remaining from 11:05 A.M. to 11:20 A.M. He did not enter the Cafe but through a window of the Cafe saw the woman he had observed on February 21st and the First Man talking to each other. The appellant's allegation that the statements in the application were false is predicated on the testimony of Albert Sharpe, a plainclothes officer assigned to the Eastern District of the Baltimore City Police Department, called as a witness for the State. Sharpe was in the Cafe on February 24, 1966, at the time it was raided by the Rackets Division. He had been detailed to Emma's Cafe for about two weeks to investigate gambling activities. Neither the Rackets Division nor the Eastern District knew that the other had the Cafe under surveillance. It developed on cross-examination that Sharpe had been in the Cafe on February 21st and February 23rd, two of the days covered in the application. Sharpe said he arrived at the Cafe on February 21st between 10:30 to 11:00 A.M. and was in the place 'no more than a half hour, and no less than fifteen minutes'. On February 23rd he entered the Cafe around 11:00 A.M. and stayed 'about a half hour'. On neither of these occasions did he observe any gambling activities on the premises and specifically did not see the appellant 'at any time engage in any gambling activities of any sort'. The pay telephone rang while he was there and it was answered at times by the appellant and at times by the barmaid. He knew Officer Banks by sight but did not see him in the tavern or in its vicinity on February 21st. However, he sat in the back room because he could see 'that phone from there' but 'you can't see out front'. We do not agree that this testimony, even if relevant for the purpose, 'clearly established the falsity' of the statements in the application. It appeared from the evidence that the bar was located in the front room of the premises. There was a back room connected to the front room by a small hallway on a wall of which was a 'public telephone'. Behind the back room was a storage room and rest room. Banks' observations were made while he was outside the tavern and in the front room of the tavern, but Sharpe was in the back room unable to see into the front room. The appellant also attacks the credibility of Banks because of the events during the raid on February 24th. Banks testified that when the police entered the Cafe he and another officer, Marley, on orders of the sergeant, went to the back of the premises. Marley went directly through the back room toward the storage room. When Banks, following Marley, reached the back door he saw the appellant sitting at a table with a piece of paper in his hand. 'He was putting it towards his mouth'. Banks yelled, 'He is trying to get it in his mouth'. There was a struggle, during which Marley rendered assistance, but the appellant succeeded in swallowing the paper. On cross-examination Banks said that another man was seated at the table with the...