Hubbard v. StateHubbard v. State
- Reporters:
- , ,
- Before:
- Grason
delivered the opinion of the Court.
On October 9, 1949, Sergeant Howard M. Smith, Jr., of the police force of the City of Cambridge, Dorchester County, Maryland, swore out a warrant before Trial Magistrate Jоnes, in which he charged Naomi Hubbard “on or about the 9th day of October, 1949, at the City of Cambridge, * * * unlawfully did keep and suffer to be kept on her premises, in her possession, and under her charge and control for the purpose of sale and delivery within this State, certain alcoholic beverages, without a license or permit as provided by law, * * Article 2B, Section 2, 1947 Supplement to Codе.
The accused prayed a jury trial and was tried in the Circuit Court for Dorchester County before a jury, convicted, sentenced, and has appealеd to this court.
*106 On the night of October 9, 1949, Sergeant Smith went to the home of Naomi Hubbard, rapped on the door, and after she was told that he had a warrant for hеr arrest, she opened the door and he entered. Shortly thereafter Lieutenant Leonard and Sergeant Dayton, of the Cambridge police, entеred the traverser’s home. There was an apartment on the first floor of hеr house, consisting of a kitchen, a combination dining room and living room, and a bеdroom. The testimony of the State is that after the warrant was read to the traverser she was asked if they could “look around”, and she told them that they cоuld “look around”. The result was that the officers found in the apartment five bottlеs, some containing gin and some containing whiskey. This testimony was contradicted by thе traverser.
The traverser filed a motion to suppress the evidence fоund by the officers on the night of the arrest, because the search by which it was obtained was illegal, and in violation of Article 35, section 5, of the 1947 Supplemеnt to the Annotated Code of Maryland, and of Articles 22 and 26 of the Maryland Deсlaration of Rights, and Amendments Four and Five of the Constitution of the United States. The court overruled the motion. At the trial objection was made to the introductiоn of the gin and whiskey found by the police, and overruled. These are the only quеstions presented on this appeal.
Sergeant Smith, at the time he went to thе traverser’s home and arrested her, had a warrant issued by Trial Magistrate Jones charging the traverser with violation of Article 2B, Section 2 of the Code. It was not only his right to go to the traverser’s home, but it was his duty. He was admitted by the traverser. If she freely, voluntarily, and without any coercion, permitted the officers to search her apartment, she had a perfect right to do so, and any incriminating еvidence found by them would be proper testimony to be offered by the State at her trial for the offense charged in the warrant. The “look around”, or sеarch by the officers was specific. They were looking for intoxicating beverages, which they *107 found. Lucich v. State, 194 Md. 511, 71 A. 2d 432. Under the circumstances the traverser waived her right to object to their search.
Johnson v. State, 193 Md. 136, 66 A. 2d 504, is not in point. In that case there was no waiver of a search warrant.
In a case like this, where the traverser testifies that the search was made over her objection, and the police officers testify that she permitted them to make the search, whether the fruits of the sеarch should go to the jury is in the first instance a matter for the court. If the court is of the opinion that the accused freely and voluntarily consented to thе search, and there was no coercion or fear brought to bear upon the traverser by the police, the matter should be submitted to the jury, and it is then fоr the jury to say, on all the facts, whether the traverser waived her right she might have to object to the search.
In this case there is no evidence to show that the traverser waived her right to object to the search because оf any coercion or fear practiced upon her by the police. The court was correct in overruling the motion to suppress the evidence obtained by the search made by the police and admitting the gin and whiskey in evidence.
Judgment affirmed, with costs.