Shrout v. State

Decision Date30 March 1965
Docket NumberNo. 212,212
Citation238 Md. 170,208 A.2d 585
PartiesRobert E. SHROUT, Jr. v. STATE of Maryland.
CourtMaryland Court of Appeals

William L. Wilson, Cumberland (Edward J. Ryan, Cumberland, on the brief), for appellant.

Robert F. Sweeney, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, James S. Getty and Donald W. Mason, State's Atty. and Deputy State's Atty., respectively, for Allegany County, Cumberland, on the brief), for appellee.

Before PRESCOTT, C. J., and HORNEY, SYBERT, OPPENHEIMER and BARNES, JJ.

OPPENHEIMER, Judge.

The appellant appeals from his convictions in the Circuit Court for Allegany County on gambling charges on the sole grounds that the facts set forth in the affidavit and application for the search warrant were not sufficient to show probable cause for the issuance of the warrant and that the evidence obtained therefrom was therefore improperly admitted. The State contends the facts alleged were sufficient to show probable cause and that, in any event, the appellant waived any right to object to the issuance of the warrant and the evidence secured thereunder because he did not file a motion to quash the warrant before trial under Maryland Rule 725 a and b.

While the appellant did not file a motion before the trial, at the trial he moved to quash the search warrant and to suppress any evidence discovered thereby. He objected to the evidence in connection with the issuance of the warrant and renewed his motion at the conclusion of the testimony. The court below denied the motions and overruled the objections.

Maryland Rule 725 b reads as follows:

'Defenses and objections based on defects in the institution of the prosecution or in the indictment, other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion before trial. Such motion shall include all such defenses and objections then available to the accused. Failure to present any such defense or objection as herein provided shall constitute a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment to charge an offense shall be noticed by the court at any time during the proceeding. Any defense or objection capable of determination without the trial of the general issue may be raised before trial by motion.' (Emphasis supplied.)

It is to be noted that under the Rule, while defenses and objections based on defects in the institution of the prosecution or in the indictments (other than jurisdictional defects) must be raised by motion before trial to prevent waiver, other defenses and objections may be raised before trial by motion. The distinction between the compulsive 'shall' and the permissive 'may' is not inadvertent. In Sugarman v. State, 173 Md. 52, 57-58, 195 A. 324 (1937), we held that a motion before trial to declare a search warrant null and void and to suppress use of the articles seized as evidence was not authorized by statute or precedent. In Rizzo v. State, 201 Md. 206, 211, 93 A.2d 280 (1952) we noted that such a motion to quash a search warrant had been authorized by statute, which is now Code (1957), Article 27, Section 551. The matter, at this time, is covered by our Rule. Neither the Rule nor its history, however, supports the State's contention that if a defendant does not move to quash the warrant before the trial, he is thereafter barred from objecting to the evidence seized as a result of its issuance. See Baum v. State, 163 Md. 153, 157, 161 A. 244 (1932).

This Court has steadfastly recognized that protection against unlawful searches and seizures is one of the bulwarks of individual liberty, recognized in the Maryland and Federal Constitutions. E. g. Asner v. State, 193 Md. 68, 75, 65 A.2d 881 (1949); Wood v. State, 185 Md. 280, 44 A.2d 859 (1945). See also Givner v. State, 210 Md. 484, 492-494, 124 A.2d 764 (1956). As was held in Asner, 193 Md. at p. 73, 65 A.2d 881, timely objections must be made at the trial to the issuance of the warrant and the evidence seized, and there can be a waiver of objections to the admissibility of the evidence. See also Martelly v. State, 230 Md. 341, 346-348, 187 A.2d 105 (1963). In Farrow v. State, 233 Md. 526, 532-533, 197 A.2d 434 (1964), we stated that the admissibility of evidence which is dependent upon the lawfulness of an arrest should be ruled upon by the trial judge as a preliminary matter, and referred to Maryland Rule 725 b and c. In our reference to the Rule, however, we were careful to point out that such a question 'may' be raised by motion before trial. If a defendant raises the question by preliminary motion and prevails, and if the evidence suppressed is vital to the State's case, the defendant may not be put to the hazard of a trial on his guilt or innocence. But there is nothing in the Rule or in our decisions to support the State's contention that, if the defendant does not make such a preliminary motion, his objections to the issuance of the warrant and the evidence seized thereunder are thereafter without avail. In this case, the appellant's motion to suppress the evidence and objection to its introduction at the trial preserved his basic constitutional right.

The affidavit upon which the search warrant was issued was made by two police officers and involved the activities of two men, Orland James Harbell (Harbell), who was charged and tried separately, and the appellant. The salient facts set out in the affidavit are as follows: A special tax stamp (wagering) had been issued by the United States Internal Revenue Service to Harbell, 109 North Centre Street, Cumberland, Maryland, about five months before the date of the affidavit. Harbell had been convicted on a charge of bookmaking in the Circuit Court for Allegany County in 1953. One of the officers had been informed by a confidential informant that Harbell, alias 'Chick' Orbello, had been an active bookmaker in Cumberland for many years. The informant stated that he had never personally placed a wager with Orbello, but knew several persons who placed such wagers regularly. The informant had previously provided the officer with information regarding gambling that proved to be reliable. Another confidential informant stated that Harbell 'is generally known to be actively engaged in bookmaking and closely associated in said operation' with the appellant, who has also been convicted of bookmaking in Allegany County. The officers put both Harbell and the appellant under surveillance for four consecutive days. The appellant apparently lived on Greene Street in Cumberland but frequented an apartment to which he had a key in a house on Bedford Street, next door to but not physically connected with the Centre Street house in which Harbell had an apartment. The two premises, however were connected by a telephone wire which was 'not the type connection ordinarily made by the telephone company installers.' Harbell was seen on several occasions entering the Bedford Street premises. He was observed visiting various taverns and other Cumberland business establishments for brief periods, and heard reading racing results and the pay-off price over a public telephone before foe one of his visits to the Bedford Street apartment. The...

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20 cases
  • Silbert v. United States
    • United States
    • U.S. District Court — District of Maryland
    • March 19, 1968
    ...v. United States, 246 F.2d 298, 304 (5th Cir. 1957), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); Shrout v. State, 238 Md. 170, 175, 208 A.2d 585, 588 (1964). This Court concludes that the references to alleged federal wagering tax law violations in the Silbert and Bondroff......
  • Malcolm v. State
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    • Maryland Court of Appeals
    • September 1, 1987
    ...also Herod v. State, 311 Md. 288, 295-96, 534 A.2d 362, 365-66 (1987) (discussing corroboration of informant's tip); Shrout v. State, 238 Md. 170, 208 A.2d 585 (1965) (upholding search warrant based on tip of informant and police surveillance corroborating tip). For example, the informant i......
  • State v. Amerman
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1990
    ...the person observed is one of the elements to be considered in determining whether there is probable cause." See also Shrout v. State, 238 Md. 170, 174, 208 A.2d 585 (1965); Peterson v. State, 281 Md. 309, 320, 379 A.2d 164 (1977), cert. denied, 435 U.S. 945, 98 S.Ct. 1528, 55 L.Ed.2d 542 (......
  • Dawson v. State
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    • Court of Special Appeals of Maryland
    • April 30, 1971
    ...reach one of four conclusions: (1) That the direct observation is adequate unto itself to establish probable cause; see Shrout v. State, 238 Md. 170, 208 A.2d 585; Gatewood v. State, supra; Nutt v. State, 9 Md.App. 501, 505, 267 A.2d (2) That the hearsay information is adequate unto itself ......
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