Wood v. State

• Decision Date: 28 November 1945
• Docket Number: 20.
• Parties: WOOD v. STATE.
• Court: Maryland Court of Appeals

44 A.2d 859

185 Md. 280

WOOD v. STATE.

No. 20.

Court of Appeals of Maryland

November 28, 1945

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

Mike Wood, alias Mike Woods, was convicted of violating the lottery laws, and he appeals.

Reversed and new trial awarded.

Paul Berman, of Baltimore (Eugene A. Alexander, III, and Theodore B. Berman, both of Baltimore, on the brief), for appellant.

J Edgar Harvey, Asst. Atty. Gen. (William Curran, Atty. Gen., and J. Bernard Wells, State's Atty., and Joseph G. Finnerty, Asst. State's Atty., both of Baltimore, for Baltimore City, on the brief), for appellee.

Before DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

MARKELL Judge.

This is an appeal from a judgment upon a verdict of guilty of violation of the lottery laws. Among the violations charged, and covered by the verdict, are unlawful possession of lottery slips, Code, Art. 27, sec. 411, and keeping a room for the purpose of selling lottery tickets, Art. 27, sec. 409.

The only questions presented on this appeal are the validity of a search warrant and of the search and seizure made under it and the admissibility in evidence of the lottery slips seized under the search warrant.

Before the trial the defendant filed a motion to quash the search warrant, alleging that he was in lawful possession as tenant of the premises searched and the the affidavit on which the search warrant was issued contains no sufficient basis for the issuance of it and no facts which show probable cause for issuance. The motion to quash was overruled. At the trial the lottery slips seized were admitted in evidence over objection. Exceptions were taken to the court's rulings on the motion and on the admission of the lottery slips in evidence. It is stipulated between counsel that the lottery slips were so admitted in evidence and the questions presented on appeal are so limited; the defendant's attorney admitting that if the search warrant is valid, the lottery slips were properly admitted in evidence, the State's attorney admitting that if the search warrant is void, the lottery slips were improperly admitted in evidence. Goodman v. State, 178 Md. 1, 4, 11 A.2d 635; Mazer v. State, 179 Md. 293, 295, 18 A.2d 217; Foreman v. State, 182 Md. 415, 416, 417, 35 A.2d 171.

The ultimate question therefore is: Do the facts set forth in the affidavit show probable cause for believing the existence of the grounds on which the warrant was issued? Art. 27, sec. 306.

The affidavit of Sergeant Joyce of the Baltimore Police Department, dated March 27, 1945, presented to Judge Dickerson, alleges that there is probable cause to believe that a misdemeanor is being committed, in that the law in relation to a lottery establishment is being violated in the premises at 830 West Saratoga Street, a lunchroom, listed in the 1942 City Directory as occupied by Charles Wood, restaurant; 'affiant believes, founded upon experience with such violations, that a lottery is being conducted in the said premises'. The search warrant, issued the same day by Judge Dickerson, recites that it appears to the judge, by the written information signed and sworn to by Sergeant Joyce, that the judge has probable cause to believe that the law prohibiting the drawing of a lottery, etc., (citing nine sections) is being violated by the occupants described or referred to or other occupants in the premises at 830 West Saratoga Street, a lunchroom listed in the 1942 City Directory as occupied by Charles Wood, restaurant; and the basis for conclusions as to probable cause is specific in that (setting forth the same facts set forth in the affidavit):

On March 13th, 14th, 15th and 16th, 1945, Officer Hines, on instructions of affiant, went to the vicinity of 830 West Saratoga Street, to observe any activities pertaining to lottery, remaining from 9:40 a. m. to 11:25 a. m. on March 13th, from 8:30 a. m. to 9:30 a. m. on March 14th, from 9:40 a. m. to 10:40 a. m. on March 15th, and from 8:15 a. m. to 9:15 a. m. on March 16th. During these periods of observation he saw, on March 13th, a total of ten colored men and six colored women enter the premises, of whom only a few remained on the premises longer than two or three minutes; on March 14th, fourteen colored men and two colored women, all of whom would enter and remain for two or three minutes, except two or three men who remained about ten minutes; on March 15th, eight colored men and three colored women, only two of whom remained longer than two minutes; on March 16th, fourteen colored men and three colored women, none of whom, except the three women, remained more than two or three minutes. About 10:20 a. m. on March 15th and once the next day, a colored man wearing a white restaurant apron came to the door, looked up and down the street several times and then went back to the lunch room. The lottery known as 'numbers' requires that the play or slips be collected by certain people disignated as renners and writers and then returned to the person conducting the game; and it is the belief of the affiant that the persons described and referred to are runners or writers and are actively engaged in the business of conducting a lottery.

The Bouse Act (Art. 35, sec. 5) makes inadmissible in the trial of misdemeanors evidence procured by 'any illegal search or seizure or * * * any search and seizure prohibited by the Declaration of Rights of this State.' The Act of 1939 (Art. 27, sec. 306) authorizes issuance of a search warrant upon a showing, by sworn application in writing, of 'probable cause' to believe that any misdemeanor or felony is being committed, the 'basis' of the probable cause to be set forth in the application and 'the grounds for such search' to be described in the search warrant. If it appears that 'there is no probable cause for believing the existence of the grounds on which the warrant was issued', the property taken shall be restored. in Maryland, Constitution Declaration of Rights, art. 26, and in other states state constitutional provisions, unlike the Fourth Amendment to the Constitution of the United States, have been held not to make evidence inadmissible because procured by unlawful search or seizure. Resnick v. State, 183 Md. 15, 17, 36 A.2d 347, and cases cited; Bass v. State, 182 Md. 496, 503, 35 A.2d 155. The Bouse Act and the Act of 1939 amount to adoption pro tanto of the Supreme Court decisions under the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790.

For the meaning of 'probable cause' in the Act of 1939 and 'illegal search and seizure' in the Bouse Act, we therefore must hark back to the common law as embodied, by construction, in the Fourth Amendment. As Chief Justice Taft has shown, the concept of 'probable cause' is essentially similar with respect to searches and seizures and in malicious prosecution and false imprisonment cases. Carroll v. United States, supra, 267 U.S. at page 161, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. In all these classes of cases the concept was a familiar one at the time of the adoption of the Constitution. From this wide field have come definitions which have been followed under the Fourth Amendment. Such definitions have already been reviewed and followed by this court. Goodman v. State, 178 Md. 1, 8-10, 11 A.2d...