*1 v. STATE GRIFFIN Rеcord) Appeals in One (Three Term, 1952.] October [No. *2 November 1952.
Decided rehearing, denied December Motion for filed December rehearing Memorandum on motion December filed 12, 1952. *3 J., argued cause and Markell, was before C.
Delaplaine, and JJ. Henderson, Collins ap- Ingram for the and Malcolm J. Coan
R. Palmer pellant. Hartman, Special Attorney Assistant Gen-
Ambrose T. General, Hammond, Attorney eral, were Hall with whom City Sodaro, Attorney and Baltimore Anselm State’s Attorney, Gehring, on the Edwin A. Assistant State’s brief, appellee. for the J., opinion delivered the of Court.
Delaplaine, brought by appeals were Richard Griffin These three by from convictions the Criminal Court of Baltimore charging on indictments violations statutes three gambling prohibiting on lottеries and races. 15, 1951, shortly noon,
On October before Officer policemen three Thomas McKew and two other noticed men enter the back of appellant’s door home at 1002 North Durham approached Streеt. McKew the house and, by peeping window, a side saw a man sitting standing. at table and several men He also pad slips saw “a of lottery open and a conventional book on According testimony, the table.” to his he had no search warrant but slips he knew that the and the book door, materials. He went to the back just ring about the bell ah unidentified Negro opened the As door. soon as showed badge himself, his and identified he was admitted. He recognized sitting the mаn appellant, at the table to be him, arrested slips. seized book and the He then called the other two officers. the second On slips. floor he seized another book and Some- of were bets on horse races. оbjected
Appellant- gambling the admission of the paraphernalia evidence, objection but the was over- ruled. He claims that the search and seizure were illegal. Act, upon relies, provides The Bouse which he thаt no evidence in the trial misdemeanors shall be deemed pro- admissible where the same Have shall been consequence any illegal cured or search seizure or prohibited by search and seizure the Declaration Rights of 1929, 194, this State. Laws ch. Laws 1947, 752, ch. Laws chs. Code art. sec. 5. Maryland Rights
Article 26 of the Declaration of *4 warrants, affirmation, (1) condemns all without or oath seize, (2) general to to search or all and warrants. arresting In this case the no warrant of had question The for kind. decision is whether gambling paraphernalia introduced in evidence at “illegal procured by trial had or been search seizure.” The Fourth Amendment to the of Constitution States, which United forbids unreasonable searches and seizures, upon powers a limitation is Federal government. originated in That amendment the de- Rights of of the Bill of termination the framers to secure
573 against government safeguards which the Federal those grown up England protect against had in unreason- able searches and made under seizures such as had been general by authority the British warrants issued of government. Boyd States, v. United 116 U. S. 6 Ct. 29 S. L. Ed. 746. provisions, of
Some have constitutional States statutory forbidding provisions, some have unreаsonable People Chiagles, searches and seizures. In 237 N. Y. v. 676, Judge 142 E. 32 N. A. R. Cardozo said: L. express prin- “It is thus of New York the statutes English ciple that law received outcome of the as the * * * prosecutions immunity of Entick. Wilkes and seizure, not is from аll search and from and search but light seizure unreasonable in the tradi- commonlaw accordingly “illegal tions.” We hold that the term search seizure,” Act, or contained in un- the Bouse means according reasonable search or seizure to the standard common law. Wood 185 Md. 2dA. Generally, right police officer no a has into break privacy and a home make a search evidence purpose. without a for that warrant No mere belief sought by that an law enforcement officers article is dwelling justification private concealed furnishes dwelling warrant, for a without search even though probable Accordingly, the facts show cause. passage Act, Appеals after the of the Bouse the Court of held Gorman v. 158 A. officer, suspecting police
where a a violation of the law a certain house because of the number of entering leaving it, persons entered it an opеn warrant door without a and seized books house, pro- found in such articles were by illegal cured search and seizure and were inadmissible against in evidence the householders.
Nevertheless, unquestioned Maryland it is the law of presence committed in if a misdemeanor is or officer, may of a arrest the offender view forth- *5 5.74. State,
with,
Heyward
v.
161 Md..
without
a warrant.
State,
897; Blager
v.
685, 692,
162 Md.
158 A.
State,
298, 301,
v.
Callahan
1;
163
A.
Md.
161
v.
533, 540, 6 A.
Silverstein
856;
176
2d
A.
Md.
v.
135,
We dwelling warrant to enter and sеarch officer without a being from outside that a crime is when he can see States, Agnello v. United 269 S.U. committed inside. States, v. United Johnson 145; 46 L. Ed. S. Ct. 70 L. Ed. 436. Ct. 92 333 U. S. S. table, Appellant that on which claimed lying, feet from slips was about four books and possibly havе window, could not that Therefore, slips. or on the read what was the book earnestly contended, not see viola- the officer did he by looking through window. On the tion law admitting could hand, officer, while other or on the written in the book nоt read what was house, declared he had entered the until after window, two feet from the not more than table *6 and, daylight, as it could was broad he see a conventional lottery slips. book and invading
It officer in the is immaterial thаt the any in case bar could read the the at not of notations entering book or on the before the house. We being the considered reaffirm axiom that a crime is as presence committed in or view of an officеr when the knowledge being of him it is his senses afford 506, State, 496, 505, committed. Bass 182 35 v. Md. knowledge may acquired Thus, A. 2d 155. of a crime be States, through the McBride v. United sense of smell. Cir., 416, denied, 614, 5 261 43 284 F. certiorari U. S. States, 359, 827; 5 Ct. Ed. v. United Cir. S. 67 L. Schulte States, 105; Cir., 4 11 F. 2d v. 34 F. 2d De Pater United 275, instance, Cope A. L. 1413. For in 74 R. 805, 2d
157 7 W. where officers observed Tenn. S. light home, in a the front room of the defendant’s figures light, walking could see near the and there was strong cooking whiskey, a smell from the of mash and and, although drawn, the in kitchen curtains the were oрera- entered house and found in the officers the a still kitchen, tion in the decided that officers the Court the justified making were in their search without a warrant. peace In Wisconsin it has been held that a breach being presenсe in is considered as of an officer where within he hears a disturbance a house while he is outside. Button, 95 Hawkins v. Wis. 70 N. And in W. 483. North Carolina it has been held that where a breach of peace presence officer, committed in is of an it actually could is immaterial that he not at that time see McAfee, on offenders account darkness. State v. 12 10 107 N. C. E. L. 607. S. R. A. course, suspicion
Of a mere of an officer that person committing accused is a misdemeanor in his presence justification for an is no without a war- arrest deciding justified In whether an rant. officer was in making misdemeanor, an arrest without a warrant for a presented the criterion is whether the circumstances justify officer his senses sufficient 576 committing sincere belief that the accused stein v. Silver presence. in 176
misdemeanor his States, Cir., Peru v. United 2d 8 A. 2dF. arresting in this testified that officer case force of Baltimore had been a member years years, during had served five two those gambling special investigator and other charged recognized cases. It with is an duty enforcing gambling view circum laws can light deciding experience Of whether stances his *7 being Walker presence. in the law is violated his 412, 418, 2d 510. hold 73 A. Wе long experience police with the view that officer gives slips operation books and used in the of lotteries readily special him detect them him a skill that enables to gambling paraphernalia. Foreman v. as unlаwful 2d 182 Md. 35 A. watching appellant’s
In officer had this case the been occasion, believing on that it was home more than one gambling pick-up operations. for After he “a station” house, men door of the saw the three entеr the back open glanced through and saw the a side window lying slips in the the on the table. He swore book and experience in that he knew from his Court below being used for cases that book and the were the lottery. judge purpose think the of a We the trial right finding presented the to in that circumstances justify officer were to his sincere belief sufficient being presence. violated in his law was hold that the search and seizure For reasons we these by judge lawfully police. ruled As the were made admitting gambling paraphernalia correctly in judgments evidence, of conviction must be three affirmed. affirmed,
Judgments with costs. Rehearing On For Motion Per Curiam: complains
Defendant the crux of the decision following in this case tois be found in the statements opinion: specifically “We hold that it is lawful for a officer without a warrant to enter and search dwelling when he can see from the outside that a * * * being deciding crime is cоmmitted inside. In justified making whether an officer was an arrest misdemeanor, without a warrant for a criterion is presented whether to officer circumstances justify his to senses sufficient a sincere committing belief that the accused wаs the misdemeanor presence.” complaint in his is that the second sen- quoted by broadening cuts down the tence first right of from for arrest arrest a misdemeanor committed presence in the to officer’s arrest a misdemeanor probable which the had com- cause to believe was purpose mitted. This was not the and is effect not the complained of the sentence of. We did not broaden right warrant, merely to arrest without a but un- explain, in the dertook circumstances instant case, a misdemeanor the evidence sufficient show that presence. committed in the officer’s The event had been *8 conclusively com- that a had been showed misdemeanor рroximity officer. mitted close he saw used for testified that the book lottery. Appellant not purpose of claimed he could blind, completely in- If see this. the officer had been toxicated, unconscious, he could nоt have or otherwise ap- of which seen what he testified to. The sentence merely pellant suggests complains a measure or test may honestly give testimony an officer which circumstances, and this and which the trier of facts may legally fact. accept court and true in sufficient to, from, To we did not but added this extent subtract legal requisites warrant. of an arrest without a