Stevens v. State

• Decision Date: 15 April 1953
• Docket Number: No. 107,107
• Citation: 95 A.2d 877,202 Md. 117
• Parties: STEVENS v. STATE.
• Court: Maryland Court of Appeals

Page 117

202 Md. 117

95 A.2d 877

STEVENS v. STATE.

No. 107.

Court of Appeals of Maryland.

April 15, 1953.

R. Palmer Ingram, Baltimore (Malcolm J. Coan, Baltimore, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen., (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty., and Wm. C. Rogers, Jr., Asst. State's Atty., Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal by Clyde N. Stevens from a judgment and sentence for unlawful possession of a hypodermic syringe and a certain instrument and implement adapted for the use of habit forming drugs by hypodermic injections, contrary to Article 27, Section 366, 1951 Code. The offense is a misdemeanor.

On August 9, 1952, Officer Kenneth Vought, of the Narcotic Squad of the Baltimore Police Department, having been given the description of a man suspected of violating the narcotic laws, at 9 p. m. located such a man, the appellant at St. Paul and Center Streets in Baltimore. The trial judge would not permit testimony as to the source of Officer Vought's information. Stevens was placed under arrest and searched by the officer. The search of his person showed a prescription made out to James H. DeLisle, 714 St. Paul Street, for thirty-five one-quarter grain morphine tablets prescribed by Dr. William Pannebaker When asked by Sergeant Joseph Carroll where he had obtained the prescription Stevens stated James DeLisle had given it to him. He also said he had been using drugs off and on for twenty-five years and averaged about one-quarter of a grain a day. An examination of Stevens showed fresh marks on his left arm. After the arrest, Officer Vought went to appellant's apartment at 1415 Linden Avenue and found in a bureau drawer, concealed in the bottom of a jewelry box, one rubber hose, one needle holder, one improvised syringe and two empty vials. These were offered in evidence. Dr. Joe E. Quillan, Chemist in Charge of the Baltimore Laboratory, Bureau of Internal Revenue, testified that he examined the syringe and found it to be an improvised top of a hypodermic syringe, 'that is, the bottom of the tip of the medicine dropper was wrapped with a thread in order to hold the needle, and that the medicine dropper contained traces of derivatives of opium.' Stevens told Sergeant Carroll he used the home made syringe 'to shoot up'. The police officers had no warrant for the arrest of the appellant nor did they have a search and seizure warrant for his apartment.

The appellant specifically contends that the arrest and the search of his person without a warrant and the subsequent search of his home without a search warrant is in violation of the rights guaranteed under Articles 22 and 26 of the Bill of Rights of Maryland and in violation of the guarantees under the Fourth and Fifth Amendments of the Constitution of the United States and in derogation of the Fourteenth Amendment to the Federal Constitution and therefore the evidence obtained as the result of these searches should not have been admitted in evidence over his objection.

Code, Article 27, Section 368, 1951 Code, Subtitle 'Health--Narcotic Drugs', Chapter 59, Section 285U, Acts of 1935, provides: 'It is hereby made the duty of the State Department of Health, its officers, agents, inspectors and representatives, and of all peace officers within the State, and of all State's Attorneys, to enforce all provisions of this sub-title, except those specifically delegated, and to co-operate with all agencies charged with the enforcement of the laws of the United States, of this State and of all other States, relating to narcotic drugs. In all prosecutions under this sub-title, the provisions of Section 5 of Article 35 of the Code of Public General Laws shall not apply.'

Article 35, Section 5, from which the search for narcotics is excepted by Article 27, Section 368, supra, and commonly known as the Bouse Act, provides that 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; nor shall any other evidence in such cases be admissible if procured by, through, or in consequence of a search and seizure, the effect of the admission of which would be to compel one to give evidence against himself in a criminal case. Before the enactment in 1929 of the Bouse Act, supra, this Court has held that where evidence offered in a criminal trial of a misdemeanor 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. See also to the same effect Heyward v. State, 161 Md. 685, 158 A. 897; Baum v. State, 163 Md. 153, 161 A. 244; Salsburg v. State, Md., 94 A.2d 280, 282. We are therefore of the opinion, as prosecutions for narcotics are excepted from the Bouse Act, supra, that the articles here in question were property admitted in evidence.

Appellant strongly relies on the case of Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 207, 96 L.Ed. 183, decided January 2, 1952. In that case the deputy sheriffs of Los Angeles County forced open the door to Rochin's room. They found petitioner sitting partly dressed on the side of the bed upon which his wife was lying. On a stand beside the bed the officers saw two capsules. Rochin seized the capsules and put them in his mouth. A struggle ensued in the course of which the three...