*1 LE FAIVRE v. STATE Term, [No. 1954] October *2 July 27, 1955. Decided August 22, rehearing granted
Motion filed 4, 1955. October 5, 1955.
Per December curiam filed *3 argued J., before and Bruñe, The cause was Dela- C. and Hammond, JJ. plaine, Collins, Henderson -, Murrell, appellant. for Alan H. Kauffman, Attorney General, Assistant David Attorney' General, Sybert, whom were Ferdinand C. Attorney City, Sodaro, for and Baltimore State’s Anselm Attorney. Gehring, Assistant State’s Edwin A. J., opinion
Bruñe, of the Court. delivered the C. lottery tried on and and convicted charges aggregat- bookmaking and to fines was sentenced year. He costs, for $1100, imprisonment and and validity principal question is the appeals. at issue arrest, legality person of the search of his since the produced upon was convicted the evidence which he depends legality upon arrest. P.M., January 9, 1954, shortly Detec- 8:30
On before City Morsberger Kemple Baltimore Po- tives Department appellant’s place lice went to the of business investigation “pick up” him on in Baltimore to ac- January burglary which on 4th. count of a had occurred They police no warrant for his arrest. The officers had premises entered the went the door of the tra- way, open verser’s office. The door was a little Sergeant Kemple testified that he saw the traverser sit- working ting papers, desk and at a some the nature Sergeant Kemple of which the did not then know. called traverser, recognized him; reply who and in minute, Kemple’s statement to see him that he wanted Kemple on in.” the traverser said “Come and Mors- berger Kemple then entered the office with in the lead. Kemple up alongside further testified that as he walked desk, papers noticed some he on it and that he “noticed ‘Tip-off’, then a dash and 2 dash DD” name and that experience from a former member of the Vice Squad part daily knew he this notation “was of a racing bet.” double horse When the traverser saw the looking papers picked up officer at these them *4 put pocket. and them his The second officer testified papers that he was not to see what written able on the put pocket. which the traverser in his While there are minor differences in some of the two officers, discrepancy. we no principal find serious officer, who difference is entered behind the sergeant, naturally could see so much. police
The two officers took the police to a register where he was booked on station the arrest as investigation. Charge, Burglary.” “Held There was any charge. no notation at that time of other 56 papers containing was then searched and numerous
lant lottery horse and were notations race bets numbers person police. In found on his seized documentary wholly unexplained manner this evi- some disappeared, produced of it dence and none at trial, though officers testified to the nature of several papers. if is
The rule is well established that a misdemeanor being presence police committed in the or view of a officer warrant, may the offender without forthwith arrest presence offense is committed or view and that an senses, through knowledge if, he has of facts or cir justify sufficient to a sincere belief that cumstances committing presence. the misdemeanor is accused 569, 748; State, 200 Md. 92 A. 2d Kershaw v. v. Griffin 135, 783; State, State, 2d 199 Md. 85 A. Bass v. 182 Md. lawful, 496, If 2d the arrest was search 35 A. 155. police proper. station was Robinson seizure at the State, A. 2d 88 310. Evidence obtained v. Md. search and seizure incident to a lawful result of a as a State, supra; Kershaw v. Robinson is admissible. State, supra; 298, 162 A. State, v. 163 Md. Callahan v. hand, if no misdemeanor was com the other 856. On officer, presence of the the arrest would be mitted unlawful, upon such an arrest based would be search thereby posses discovered in the evidence unlawful and would be accused inadmissible. Walker v. sion dispute A. 2d 508. There is no 195 Md. authority law, citation of further would be to the only cumulative. however, dispute is, a serious as to the essential
There legality depends. of the arrest That upon which fact being or not a misdemeanor committed whether arresting officers, either of in the traverser was when the taken into cus- time them, at duly objected The traverser business. place of tody at later evidence obtained at the admission person ground through search of his station *5 illegal. His were hence the search arrest and admitted. objections were overruled and the evidence or not the trial question is whether before us The chief ruling ruling; and since in error on this court was question fact, question ultimate upon was based not this whether or confronted is with which we are clearly finding erroneous. of fact was papers some on the that there were The evidence testimony Sergeant Kemple clear. The lant’s desk is appellant’s to the door of the effect that as he came working on some looked in saw the office writing, starting just to write or finish- papers and either ing writing something is also clear. So is his says regard which he that he saw to the notation interpreta- papers. He based his written on one meaning expert knowl- tion of of this notation on his edge bookmaking acquired during operations his serv- Squad, qualifications ice as member of the Vice and his may expert expert knowledge an were admitted. Such viewing upon relied him in circumstances before be being him to decide whether law is violated State, supra; supra. presence. v. v. Walker Griffin among (1951), provides, Article Section Code things, receive, “to other that it is an offense become * * * of, register any money, depository or bet record bet, thing value, wager, consideration of be [or] * * * wagered any upon gambled the result manner * * race, contingency any (Emphasis contest or Sergeant Kemple supplied.) What testified that he saw doing he testified he saw the defendant and what appellant, considered written front meaning, light knowledge expert of his of its in the sufficient, true, if to show a violation of italicized provisions of 306 and the arrest Section hence make matter, lawful. In this view of the the fact bet, possession the mere of a notation unlike mere offense, lottery possession slip, not constitute of a does an unimportant. *6 question Thus the ultimate credibility is one of the of a witness. experienced The learned judge trial saw testify witness heard him and stated that he regard testimony did not as “unbelievable.” Evi- dently, judge accepted true, the trial it as and on the basis of that legal. he held the arrest The absence any charge violating of of gambling laws when the appellant custody taken into and when he was booked certainly at the station lends force to the lant’s contention that any officers did not observe being misdemeanor committed in their when they appellant’s were However, at the office. though even we, only printed us, with might record possibly before arrive at a different conclusion from that of the trial judge, yet opportunity of view to see and hear appraise and to truthfulness, witness we cannot say clearly that reaching he was erroneous in the con- clusion that a misdemeanor pres- was committed in the of ence the officer. urges also it was error on the
part of the trial court to exclude evidence which the sought arresting to offer to show that offi- suspect no reasonable cause to had com- cers had they burglary investigating. mitted which Since any attempt uphold abandoned the arrest the State they ground on the had reasonable cause to sus- guilty felony, pect defendant of a this or believe the testi- only mony properly as irrelevant to the excluded validity remaining regard in the case issue appellant. of the arrest expressed, with the views above
In accordance judgment is affirmed. affirmed,
Judgment with costs. following dissenting opinion: J., filed Hammond, clarity Holmes, percep- usual with his Mr. Justice unconsciously “Consciously tion, we all strive said that surprising we like”. It is not make the kind of world policemen, person who have discovered on then that prisoner will convict him break- evidence which breaking, long suspected he was have a law in which that evidence the kind world will strive for the arrest at the trial because excluded will not be custody unlawful. On prisoner put world hand, helps kind of to make a court the other right the individual not protects when it likes doing, though unlawfully arrested, its so even to be view an elastic goes If a court takes free. law violator *7 of one upholding the conviction in the law of the facts and furnishing by the community clearly guilty, the it hurts psychological en- law of bad police ammunition the “So a innocent. hurt the couragement will later which regarded as a Brinegar’s car must be against search Brinegar Everyman.” v. United car of of the search (Mr. Jackson Justice States, 93 Ed. 1879 L. 338 U. S. dissenting). judge findings record, trial the the
As I read law, approved, this Court as to the on the facts and illegal. clearly erroneous, and the by testimony sergeant, the State relied The of pres- in committed that misdemeanor was to show im- ence, and inherent of its own inconsistencies falls Beyond this, testimony probabilities. of others force, by no in police leaves doubt called sergeant’s my he saw that the what mind recollection in was committed is error that no misdemeanor testimony strength given presence. Added sequestered dur- of the others because witnesses were background trial. The conclusion of this is this: business, place appellant was The arrested at his Baltimore, pinball company office of a machine East building one-story eighteen by approximately which is a thirty-five up A feet. store front window takes all by occupied door, except front which is also of Contrary glass. assumption to the relied on the ma- .60
jority opinion, premises only room consist one police building proceed and the did not enter the and then separate sergeant to a office. As the and the approached building, appellant detective saw the thirty seated at his desk at the rear of the feet facing room— from the desk, door. As he sat behind the he was the door so that the officerslooked at him and looked he they approached them, at the door and He entered. wearing according and, an overcoat to the sergeant, partially open the front door was on this January night. standing Another man was at the left appellant. of the desk in conversation with There were papers having pinball desk, on the to with do busi- according sergeant, papers directly and, ness other appellant. in front of the The entered a foot says or two ahead of the detective. The latter that when eight he was geant desk, seven feet from the and the ser- three or desk, was up four feet from the put papers directly stood which had been pocket. sergeant says front of him in his that it got alongside until of the desk and writ- saw slips “Tip-off— ten on one of the the words recognized daily 2-dd”, bet, which he as a double did the put papers pocket. majority *8 opinion says sergeant that because the testified that he appellant writing, starting write, saw the “either or just finishing writing”, piece that what he saw on the appellant doing enough of and what he saw the was recording appellant registering to show that was committing pres- bet and so was a misdemeanor in the legal officers, ence of the which made his arrest and the evidence found on him It admissible. is to be noted that original description sergeant occurred, in his of what nothing seeing appellant whatever of said have a any pencil this, or write. mention Before was made of sergeant’s testimony twenty-six pages had covered of sergeant transcript. It was first mentioned when the telling adding slips up police station, bet in was objected arrest, includ- appellant hours after the and bets, summary as additional ing on a sheet notations merely on they of the bets the small summaries when sergeant paper. “In other then testified: slips of scraps copying the off of these small bets words he was when I came for himself paper onto master sheet least, I assumed he was At that what into the office. sergeant he doing.” then whether The court asked the quoted writing was appellant and the answer saw appellant was couldn’t recall whether above—that he just write, starting writing, in had course of cross-examination, writing. when the ser- finished On pencil appellant had geant whether the was asked hand, “I did.” His col- he his was: believe his answer nothing detective, testi- league, whatever said prosecutor mony writing; when the appellant about the leading question appellant whether as to him asked hand, “I pencil do not re- answer had a officers is member”. The both sergeant down- appellant was wanted told the he got why questioning he would learn when and town there, they place or the not search the did with the second themselves did not concern and that told, happened but he was What to him is not man. custody, questioned or searched. not taken into immediately to appellant was taken the Central burglary. suspicion No Police Station and booked bookmaking. lottery or whatever was made as to notation Capt. Kenealy in the then searched He was him. detective who had arrested just Kenealy says Capt. came as leaving night back to for the and he came the book- happened when desk. asked what When turnkey, various he said that lant searched pockets, from his wallet articles were taken such keys, top laid on a board across and were captain booking railing desk where the is. The con- *9 up “As were there I watched tinued: the articles laid turnkey, amongst and in was, the articles I would call, envelope. manila or buff-colored It was a small envelope, say I maybe would long by about 3 inches 1% * * * inches, maybe inches, wide. When he laid that picked down I up. unsealed, it, it opened It was I slips and in it paper, slips were some paper small such as taken pad,” from a scratch cap- which the recognized tain as race horse bets. When asked what did, captain Sergeant “I first said: turned to Kemple had, him and showed what I and then I turned * * * to Mr. Funk and I showed it to him. I turned put around then and envelope back and handed Sergeant Kemple. yours. it back to I said ‘That is You know ‘Yes, what to do with it.’ And he said Sir’.”
Among many reasons lead me to believe that police saw no pres- misdemeanor committed in their ence are these: setting
1—The hardly the arrest scene was one to suggest bookmaking being engaged in. The eight-thirty January time was night, on a and the races day of that had been over three or four hours and the following day races of the eighteen were seventeen or place hours off. The was a business establishment and leading sitting man in the drama was at a desk might pass overcoat on in full view all outside who open glass the store front window and the front door. experienced (and 2—It is incredible that an bookmaker police was described as known be- “big bookmaker”), inviting fore the be a after in, police put incriminating would wait evidence pocket until arrived at his desk and evidence, opportunity looked at the when he had the crossing so space thirty do while feet. 3—It is difficult to see how the writ- read the slip facing in front of the man him desk; words, in other across the how he could read the writing upside down. *10 daily up bet— double
4—It two horses to make takes that the in the second. All in first race and one one slip “Tip-off sergeant says was that he saw on the —2-dd”. was says that the bet it was discovered later He Flying in the second Tip-off in race and Weather the first day Tropical Park afternoon race at given appellant particulars In the arrest. sergeant says slip he saw is described as following:
having on it the
Tip-off
Flying 2-dd Weather Flying opposite “2-dd” the name notation opposite Tip-off. not name Weather and recognized slip sergeant 5—The testified long experi- of his paper as a race horse bet because accepted that an squad. It not to be on the vice is ence arrest, making squad officer, after an experienced vice duty only right forego search but would premises. It not to be believed arrestee and the put suspect the evidence even let the officers would they Yet, did not pocket. the officers admit Signifi- appellant or room. nor search prevent this they betting slips cantly, at had found the after station, they premises returned and searched the police thoroughly. bookmaking engaged in appellant If in
6— the doing company police, so in he was talking the unidentified who to him desk. man at the individual, inquiries Yet the addressed no to this officers did not him nor him. search If officers for a misde-
7— the had arrested they certainly presence, would meanor committed their charge him at the on the have booked station they him, if of two even it were one arrested only Instead, they suspicion charges. booked him on the they up for burglary, pick went to him which is what up and, my pick did him opinion, all for.
8—Both the and the detective said that appellant picked up pieces various small put pocket. them in example, For says the detective it took gather two or three seconds to together. “They them His was this: weren’t exactly pile. all He pick up one had to them in sort * * * groups. I put did pocket.” see him them in a Captain Kenealy’s testimony is that there was taken *11 pocket from appellant the of the when he was searched at police station, the envelope, a buff manila which contained betting slips. any all Neither of the officers made papers being put envelope mention of the in an or that they any Rather, they envelope. saw papers said the put pocket. Obviously, loose in a in when he was custody, riding police, downtown with the no he had opportunity papers envelope. to transfer the to an sergeant’s language
9—The choice in his gambling operations indicates that evidence of was first police says, discovered at the example: station. He for Station, “We took him to the Central Police where he investigation may burglary, was booked for be [of * * * Upon being by turnkey searched noted]. lottery slips, plus racing bets, the horse were found on person.” says He later: “When we first searched property him”, Funk Mr. and this he ob- found envelope put tained the manila evidence it. says again: Funk, He “When the bets were on Mr. found Kenealy Capt. immediately Capt. to his left. Kenealy picked up through the bets and looked them.” of, describe, being One does not think or as “found” on individual, papers individual, an which he saw that who custody, put has since been in pocket few minutes before. Highly significant
10— only is it that not did the ser- geant finding speak slips station, the bet at Kenealy Capt. spotted betting but that first slips sergeant great discovery.- showed them to the as a If appellant brought had been in' violation of the sergeant gambling laws, surely would have so told happily captain would been so sur- and neither have finding evidence, apparently prised at the as were. Turning case, much for the facts. to the law the
So
sergeant’s
accept
version of what occurred
if we
legal
par,
tender
still
crime was committed in his
at
no
presence.
It
there was no reasonable
is conceded that
felony,
ground
appellant
had committed a
believe
unless misdemeanor
so
was committed
sergeant
legal,
arrest was
evidence
which led to the conviction of
was inadmissible.
Code,
Art.
v.
opinion may to accepted sustain the rule that an arrest be for presence made a committed in misdemeanor State, 185, a In officer. 199 Md. Kershaw v. freely police were admitted to a house and in a middle sheet, Racing Form, room saw a scratch a as well as a telephone pads nearby horse race bets on a table. The accused said to officers that all of articles these “making were his that he had been book” premises admissions, for two weeks. After these he was 496, State, In Md. arrested. Bass v. 182 officers showing of watched an obscene for seven or movie eight making the minutes before arrest. In v. Griffin State, 569, officers, peering through window, 200 Md. possession saw the accused in conven unmistakable lottery lottery possession tional tickets. Mere tickets Code, 429; Art. is a misdemeanor. Ford v. Sec merely possess 465. It a crime to Md. is not bet, majority opinion a horse race as the notation of recognizes. case, In Court said: “Of Griffin course, suspicion of an officer mere the accused committing person presence a misdemeanor is * * * justification an without a warrant. no circumstances, presented criterion is whether senses, justify through were sufficient to the officer committing a mis was a sincere belief accused presence.” (Emp. sup.) There was demeanor in his rehearing urged which it motion for right of quoted arrest from arrest sentence broadened the committed an officer’s for a misdemeanor prob which the had misdemeanor officer arrest for a an page committed. At 577 of able cause believe contention, Md., motion answered the the Court the effect saying: purpose and is not “This did not complained We broaden of. of the sentence *13 merely warrant, but under right without a arrest case, of the instant explain, in the circumstances took that a misdemeanor to show had sufficient the evidence * * * 'To presence. committed this in the officer’s been to, legal from, we did not extent subtract but added requisites of an without warrant.” This makes arrest a plain
it
officer
can make a
that an
without a warrant
legal
only
actually
which is
a misdemeanor
presence.
test,
the facts
committed
his
Under this
justifying
here fall far short of
the arrest. See Walker
State,
State,
412;
289;
v.
195 Md.
195 Md.
Turner v.
State,
163;
Frantom v.
195 Md.
and Gorman v.
When the entered the may justified, well have had sincere and shared a belief — by many colleagues of his a book —that maker, previously that he had committed that misde meanor, probably would in the future. Yet that belief, sincere, justified no would matter how not have Giving weight sergeant’s testimony, arrest. an full nothing through that he saw or otherwise learned during visit, anything senses added to that belief right supposition to act on it. Either of belief suspicion”. amounted to no more In than a “mere Fran State, supra, tom v. was held that the affidavit of a gamblers chief that several known had been seen poolroom days, to enter a on a number of successive did justify the issuance of a warrant to search the estab gambling lottery lishment the belief that were be premises. committed on the If those facts did not probable amount gambling cause to believe that being committed, observing there I cannot see how betting known slip bookmaker with possession anything amounts to evidence of more than that a mis previously Any demeanor has been committed. belief seeing the officer had as slip, a result of added up to no more than the same belief he had before he saw namely, slip, had committed book making past. in the Neither belief was based facts showing present violation of the law.
It seems evident that the trial court pos- treated the session of the notation of a bet as a violation of the book-
68 that, disavowal, making despite statute and its this During premises. in effect Court acted on same trial, jury: “The the lower court said to the course * ** is, problem case, defendant, in this he did this was lottery engaged lottery possession of or did he have records, etc., charge jury, In bets?” “* * * questions fact, I court are and said: there two saying will summarize those that these. are lottery First, possession slip ? did defendant have of a Second, possession did he records of horse race have did, you guilty.” Again, he bets? If he should find him you is said: “Here have a case in which defendant charged having lottery slips possession had in his * * you *. and race horse bets If believe that those defendant, papers possession were in the case, lottery slips in one and records bets in the other necessary case, you papers it is see then not that Finally, ques- court said: “Now themselves.” legal, you it is is whether the arrest tion for possession lot- defendant had this: whether tery 275, races in 276 in case and bets on the case slips ** beyond you a convinced in either case If are *. you papers, should did have such doubt that he reasonable guilty.” find him bookmaking pressed were which the State
The counts wager One, upon appellant did bet and that three. race; two, appellant did become the de- of a result money in a manner certain pository of certain be bet and, finally, race; upon result of certain wager. register are These bet lant did record 306, 1951, 27, Code, prohibits— Art Sec. the crimes of a bet. Certain possession of the record mere not the (Conn.), A. 2d 102 v. Johnson do this —see State statutes (Mich.), N. W. Bartlett Parkes v. and cf. trial con- me court’s Yet, apparent 492. of race possession with the mere preoccupation tinued decisive, effective, in his decision indeed horse bets accepted legal. It would seem that the arrest ap- that he saw the pellant possession of the record of race horse bet held that this was the observation of a misdemeanor being charge, whole, committed. The as a in effect *15 jury required guilty merely the to find the defendant if he bet, possession of of not had a notation a which is the law. opinion majority give effect of The the of the is to the blessing of this Court to these results. jury excep-
This was a trial. One matter to which no below, argued was taken tion was neither nor opinion majority, with in of dealt the the seems to me important. court, charge to be trial in to the jury, said this: “I ruled of have the arrest the de- legal, you may disregard any question fendant was legality with of arrest, my connected since it is responsibility to determine whether or not arrest was legal.” charge, Later in the the court “Now said: question you for legal is not whether the arrest was * * Undoubtedly, *.” it was for the in court the first legal, to instance rule whether the arrest was because governed admissibility that determination of vital Maryland, XV, evidence. The of Constitution Art. Sec. 5, provides cases, still that in the trial of all criminal jury judges shall be of the law as well as the facts. jury may precluded be Whether from consideration legality arrest, dependent usually is, of the it as here, question upon credibility, and was of a of fact or charge to me far from clear and of seems the court may “plain rights well error have been material accused”, which, (g) under Rule 6 Criminal Procedure, Appeals Practice Rules the Court cognizance may own “of its motion take of and correct”. confession, In case the court must determine freely or not the first instance whether it is and volun- tarily made, question and so is admissible. The ultimate jury. State, In is for the Linkins Md. v. 212, 202 course, question Court said: “Of as to whether a confession admissible evidence is the court alone. 70
* * *- signify evidence Admissibility does not proved the fact to be demonstrated admitted has by merely the tribunal is received proved, but being weighed purpose with other evidence.’ for the Admissibility proof. The rule law short of falls merely judge, declares what is sufficient uttered * ** go jury. in three This court has held although question that, as to whether the recent cases court, trial is for the is admissible evidence confession freely and volun- as to whether it the ultimate facts jury.” tarilymade is for the in the case of a waiver of statu is the same rule Payne tory right In be searched. constitutional 93, quoted ap State, 51, A. 2d we 113 v. Md. language Md. proval the of Hubbard v. this, the traverser follows: “In case like where objection, her search was made over testifies that *16 testify permitted them that she the officers and search, of the whether fruits search the to make the jury go the a matter the is in first instance should to opinion the for If court is of the the court. search, freely voluntarily to the consented accused and brought upon coercion or fear to there was no bear and by police, sub the matter should be the traverser say, jury, jury to and it then for the to the is mitted right facts, waived her she whether the traverser all the object might to to the search.” have principle be difference in be- would seem to no There right jury an to have the decide accused tween the freely ultimately volun- confession and whether a freely voluntarily given, tarily or waiver and made saw right it decide whether officers to have and presence. being in their committed a crime or, least, should be reversed at the I think the case reargument to whether be set down should legal charge and as whether the court’s plain (and jury contain errors material did not to) rights appellant. prejudicial
PER CURIAM (Filed 5, 1955.) December reargument opinion On of the Court is activity arresting in the officer was not sufficient to amount commission to the assuming presence, a misdemeanor all of his original pointed to be true. As out in the majority dissenting opinions, there was no evidence any lottery slip was in view of the officers. With regard bookmaking charge, evidence falls establishing engaged short of any by (Code of the activities denounced the statute (1951), 27, 306) specifically, receiving Article Section — recording being or any depository wager— bet or by proof by either direct reasonably inferences to be drawn from the facts observed. There were no admis- by appellant prior sions to his arrest. There was proper thus no basis shown for the arrest of the lant and the subsequent evidence obtained search person of his against was not admissible him. Code (1951), Article 5; Section Davids v. 208 Md. —, infra, 636, just decided, 118 A. 2d No. October Term, 1955, and cases therein cited.
In view of question the decision of the above unnecessary any to reconsider of the other matters dealt majority in the dissenting opinions heretofore filed reargument of the case. present
Because of the conclusion that the arrest of defendant, warrant, without charge on the of book- making, justified, judgment was not of conviction is *17 reversed and the case is trial, remanded for a new paid by costs to Mayor be City Council of Balti- more.
Judgment reversed and ease remanded for trial;
a new paid the costs to be Mayor City Council Baltimore.