Smith v. State., 2.

• Decision Date: 10 November 1948
• Docket Number: No. 2.,2.
• Citation: 62 A.2d 287
• Parties: SMITH et al. v. STATE.
• Court: Maryland Court of Appeals

62 A.2d 287

SMITH et al.

v.STATE.

No. 2.

Court of Appeals of Maryland.

Nov. 10, 1948.

Appeal from Criminal Court of Baltimore City; Herman M. Moser, Judge.

Margaret E. Smith and Ruth Schuchman were convicted of unlawfully making and selling books or pools on horse races, and of keeping house for the purpose of betting and gambling, and they appeal.

Judgments affirmed.

R. Palmer Ingram, of Baltimore (T. Barton Harrington, of Baltimore, on the brief), for appellants.

Harrison L. Winter, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., J. Bernard Wells, State's Atty. Baltimore City and Wm. H. Maynard, Deputy State's Atty. Baltimore City, both of Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS, Judge.

Here are two appeals in one record by Margaret E. Smith and Ruth Schuchman, appellants, from judgments and sentences on conviction of unlawfully making and selling books or pools on horse races and keeping a house for the purpose of betting and gambling. The cases were tried by the trial judge sitting as a jury.

The appellants contend, firstly and thirdly, that there was not sufficient showing of probable cause set forth in the affidavit upon which the search warrant was issued, Code, Article 27, Section 306, and therefore the search warrant should have been quashed and evidence obtained thereby was not admissible. On February 3, 1948, a motion was filed by the appellants to quash the search warrant and suppress the evidence obtained thereunder. On the same day the appellants were arraigned and pleaded not guilty. After the pleas, the trial judge immediately took testimony on the motion to quash the search warrant. The appellants testified and denied and controverted the matters set out in the affidavit and witnesses were produced by the State to sustain the allegations set forth therein. After this hearing on the motion the trial judge made no ruling thereon, but called the case for trial on its merits and suggested that the appellants renew the motion to quash the evidence obtained under the search warrant when that evidence was offered by the State during the trial, which suggestion was followed by the appellants. This motion was over-ruled by the trial judge at the close of the entire case when the appellants were convicted and sentenced.

Code, Article 27, Section 306, supra, provides that ‘at any time, on application to a Judge of the Circuit Court of any County or of the Criminal Court of Baltimore City, it appears that the property taken is not the same as that described in the warrant or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, said judge must cause it to be restored to the person from whom it was taken’. Federal Rule 41, Search and Seizure, Federal Rules of Criminal Procedure, 18 U.S.C.A., now supersedes the Federal Espionage Act of June 15, 1917, c. 30, Title XI, Paragraph 1, 40 Stat. 228, 229, 230, 18 U.S.C.A. beginning at Section 611. Although the Maryland Act, Article 27, Section 306, supra, is modeled after the Espionage Act, supra, there are provisions contained in the Espionage Act and in Federal Rule 41, supra, that are not included in Article 27, Section 306, supra. Federal Rule 41, supra, 18 U.S.C.A. provides that the motion for the return of the property ‘shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.’ Therefore, the usual practice in the Federal courts is to dispose of the motion before trial. Previous to the adoption of Article 27, Section 306, supra, Acts of 1939, Chapter 749, Sec. 259A, it was held that the motion to quash a search warrant should not be heard before trial. Sugarman v. State, 173 Md. 52, 58, 195 A. 324. The usual practice since the passage of that Act has been to hear it during the trial of the case, as pointed out as dictum in the case of Hill v. State, Md. 59 A.2d 630, 633, which quoted the rule laid down in Sugarman v. State, supra, but which we do not now think is mandatory after the passage of Article 27, Section 306, supra. We are of opinion that as this section uses the words ‘at any time,’ the Legislature intended that a hearing on motion to quash the search warrant might be heard either before or during the trial. Goodman v. State, 178 Md. 1, 7, 11 A.2d 635.

We must next decide whether, in the hearing on the motion to quash the search warrant, the matters in the affidavit showing probable cause can be controverted or disputed and the warrant thereby nullified. In the instant cases the affidavit was controverted and disputed. The Federal Espionage Act of June 15, 1917, 18 U.S.C.A. § 625, supra, specifically provided: ‘If the grounds on which the warrant was issued be controverted, the judge or commissioner must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and subscribed by each witness.’ Federal Rule 41, supra, now provides: ‘The judge shall receive evidence on any issue of fact necessary to the decision of the motion.’ Neither of these above quoted provisions are contained in the Maryland Act, Article 27, Section 306, supra.

It is said in Cornelius on Search and Seizure, 1930 Edition, Chapter 7, Paragraph 169(89), and Paragraph 170, in part: ‘Some courts have held that, unless the statute otherwise provides, as for example the federal code, that where an affidavit is filed or testimony taken for the issuance of a search warrant and the affidavit or testimony makes out a prima facie case of probable cause, the same can not be controverted or disputed and the warrant thereby nullified. The cases have even gone so far as to hold that the complainant himself will not be allowed to dispute the truth of the averments he made in the affidavit so as to vitiate a criminal warrant and where a statute required the affidavit to be made by a reputable citizen the defendant will not be permitted to go behind the face of the affidavit and show that it was not so made. Nor will the accused be permitted to question the source or accuracy of affiant's information. So far as federal search warrants are concerned the Espionage Act provides the procedure where it is desired to controvert the question of probable cause for the issuance of the search warrant. * * *’ ‘The defendant at the trial may not dispute or controvert the averments in the affidavit for the search warrant for the purpose of invalidating the search, nor may he cross-examine the person who made the affidavit as to the truth of such averments.'

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. Ray v. State, 1929, 43 Okl.Cr. 1, 276 P. 785; Commonwealth v. Thacker, 1929, 229 Ky. 488, 17 S.W.2d 399; Piper v. State, 1931, 116 Tex.Cr.R. 378, 34 S.W.2d 283; Cornelius on Search and Seizure, Sections 169 and 170, supra. This rule would not, of course, prevent the accused from showing, for instance, that the affiant did not in fact swear to the affidavit as recited therein. Although the Federal rule is not before us here it is doubtful, in spite of the statement in Cornelius on Search and Seizure, supra, that the few Federal cases on the exact point hold that in determining probable cause, the truth of the alleged grounds can be controverted. Specifically, the existence of probable cause cannot be negatived by the mere denial by the accused of the facts sworn to. United States v. Nagle, D.C. 34 F.2d 952. 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.

The affidavit of Captain Alexander L. Emerson of the Department of Police of Baltimore City, upon which the search warrant was issued, made the following allegations. There was probable cause to believe a misdemeanor had been committed in relation to bookmaking in the premises at 430 East 20th Street, a three story brick dwelling house, the telephone number there being Hopkins 4453 listed to Kenneth W. Hughes, second floor. Officer Gerald Dolan was instructed to watch the premises in an effort to obtain evidence pertaining to bookmaking. On January 9th, 1948, Dolan watched in the vicinity of said premises, remaining from 12 o'clock noon to 1 P.M. and again from 5 P.M. to 6 P.M. At about 12:50 P.M. he saw a white man described therein carrying an Armstrong scratch sheet and a daily racing form walking east on 20th Street. When the man reached the premises he hesitated momentarily and acted suspiciously by looking around to ascertain whether he was being watched or followed and then entered the premises. The same man came out of the premises about 5:35 P.M. and hurriedly walked away. The time that this man entered the house was prior to the post time of the first horse race and he left the premises at a time when most betting activities conducted over the telephone had been concluded for the day. The papers carried by him are generally used by bookmakers in their unlawful business. On January 10th, Dolan observed the same activities. On January 11th, a Sunday when races are not conducted, he watched the same premises but did not see the above described man enter or leave.

On January 12th, Officer Dolan, watching the same premises, saw the same man previously seen on January 9th and 10th, enter the premises at the same time as on those previous days and in the same suspicious manner and carrying an Armstrong scratch sheet and...