Allen v. State

Parke, J., delivered the opinion of the Court. There are two appeals on this record from two judgments of the Criminal Court of Baltimore City entered upon verdicts of guilty, under one indictment for taking bets on horse races, and under another for conducting a lottery. There were five traversers indicted. One of the five was acquitted of taking bets on horse races, and the other four were convicted of this crime.

Three of the five were acquitted of conducting a lottery and two were convicted. The two convicted under each indictment have appealed. The trials were had together before the court, sitting as a jury, and the errors assigned are common to both proceedings. The State and the traversers have agreed that both appeals shall be brought up by one record, as the difference in the crimes charged makes no distinction in the rulings.

After the indictments and before pleading, the traversers filed in each case a motion to quash a search warrant which had been issued and executed, and to have returned to the traversers “all papers, documents, memorandums, books and other property seized” by police officers pursuant to the terms of the search warrant. The motion having come on for hearing, the State offered certain testimony and closed, whereupon the court stated that he considered it best for a ruling on the motion to be deferred, and the cases proceed to trial. The traversers were then arraigned, and entered pleas of not guilty and elected to be tried by the court. The ²⁷² traversers gave testimony on their part on the motion to quash the writ and to exclude the physical testimony seized, and the court refused to grant the motion.

To this action of the court and its rulings on the admissibility of certain testimony the traversers excepted, and the questions raised are presented by nine bills of exceptions. As the propriety of the rulings of the court on the last eight bills of exceptions depends on the validity of the search warrant, the decision on that point will determine the appeal. So, there is no occasion to consider any other than the first bill of exceptions. Code (1935 Supp.) art. 35, sec. 4A; Gorman v. State, 161 Md. 700 , 158 A. 903 ; Sugarman v. State, 173 Md. 52, 53 , 195 A. 324 .

The search warrant was issued under the provisions of section 259A of article 27 of the Code, as enacted by chapter 749 of the Acts of 1939. The Act authorizes any judge of the Supreme Bench of Baltimore City, or any judge of the Circuit Court in the counties of the state, or any justice of the peace in the state, to whom it may be made to appear by a writing signed and sworn to by the applicant that there is probable cause, the basis of which shall be set forth in the writing, to believe that any misdemeanor or felony is being committed by any individual, or in any building, apartment, premises, place or thing within the territorial jurisdiction of such judge or justice of the peace, or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing, then such judge or justice of the peace may forthwith issue a search warrant directed to any duly constituted policeman, constable or police officer, authorizing him to search such suspected individual building, apartment, premises, place or thing, and to seize any property found liable to seizure under the criminal laws of this State, provided that any such search warrant shall name or describe, with reasonable particularity, the individual, building, apartment, premise, place or thing to be ²⁷³ searched, the grounds for such search and the name of the applicant on whose written application as aforesaid the warrant was issued. Section 259A, p. 1607. The Act declares that the statute with reference to perjury and the subornation of perjury (section 449-452 of article 27) shall apply to all persons who make oath or affirmation, or procure the samei, under the Act.

Section 259B, p. 1607. The statute further enacts that if, at any time, on application to a judge of the Circuit Court of any county or of the Criminal Court of Baltimore City, it appears that the property taken is not the same as that described in the warrant or that there is no probable cause for the existence of the grounds on which the warrant was issued, said judge must cause such property to be restored to the person from whom it was taken; but if it appears that the property taken is the same as that described in the warrant and that there was probable cause for believing the existence of the grounds on which the warrant was issued, then said judge shall order the property retained in the custody of the person seizing it or to be otherwise disposed of according to law. Section 259A, p. 1607. It will be observed that the Act prescribes: (first) the fulfillment of certain requisites before the designated official may find there is probable cause to believe that a misdemeanor or felony is being committed (a) by any individual or (b) in any building, apartment, premises, place or thing within his territorial jurisdiction, or (c) that any property subject to seizure under the criminal law’s of the state is situated or located in or on any such building, apartment, premises, place or thing; and (second) the content of search warrant in that it shall name or describe, with reasonable certainty, the individual, building, apartment, premise, place or thing to be searched, the grounds for such search, and the name of the applicant on whose written application the writ was issued; and (third) an application to determine whether the property taken should be retained, if it should ap ²⁷⁴ pear that the property taken is the same as that described in the warrant and that there is probable cause for believing the existence of the grounds on which the warrant was issued or should be restored if either or both of these two conditions should not appear to exist.

The search warrant is said to be invalid on several grounds. The first is that the warrant does not set forth that it was issued upon a writing signed ánd sworn to by the applicant. The recital is that: “it appears to me, the subscriber, an Associate Judge of the Supreme Bench of Baltimore City, in and for the City aforesaid, by the information and oath of Sergeant Ralph Amrein of the City aforesaid, that there is probable cause to believe that a misdemeanor” is being committed in certain premises. The contention of the traversers is unfounded.

There is no requirement made by the Act that it should affirmatively appear in specific terms in the writ that the application submitted was in writing and signed and sworn to by the applicant. The contrary is inferable from the fact that the form and sufficiency of the written application is, primarily, for the official to whom it is addressed; and, when that official determines that the writ should issue, the statute specifies what it shall set forth. If these requirements are met, more are not imposed. Among these prescribed statements is “the name of the applicant on whose written application as aforesaid the warrant was issued.” This provision was complied with when the writ affirms that it is issued on the probable cause shown “by the information and oath of Sergeant Ralph Amrein of the City aforesaid.” Indeed, as a matter of long established practice, the phrase “information and oath” is the customary term in the writ of search and seizure, as issued in Maryland, to express the basic procedure upon which the writ is granted.

The usage is indicated by ancient precedent, and the technical meaning of “information and oath” is the written statement of fact by the informer over his signature, and verified by his oath. Thus in Latrobe’s ²⁷⁵ Justice, section 1755, the form is that it appears “by the information and oath of Israel Informer”; and, at section 1409, in speaking, generally, of the information upon which warrants for crime issue, the author says: “This paper is then read to the parties who have given evidence, and if they adhere to the statement, they confirm it by their signature, upon this the justice usually issues his warrant or summons, according to the magnitude of the charge or the apparent weight of the evidence by which it is supported.” Thomas’ Procedure in Justice’s Cases, sec. 460, p. 388; Goodman v. State, 178 Md. 1 , 11 A. 2nd 635; 16 Ency. of Forms of Pleading and Practice, Form No. 18318, p. 974; 1 Chitty’s Crim. Law, 31; Sandford v. Nichols, 13 Mass. 286, 289 ; Comm. v. Dana, 2 Metc. (Mass.) 329, 330.

The second objection to the validity of the warrant is that the facts set forth in the warrant as the grounds for its issuance appear from the warrant not to be facts within the personal knowledge of the applicant, but facts verified by his oath on information and belief. Nevertheless, the facts, together with the responsible official source from which the facts were derived, were set forth in the warrant as the basis of the belief of the affiant, and this is all that is necessary, if such facts are sufficient to constitute probable cause. Cornelius on Search and Seizure, (2nd Ed.), sec. 165 (85). It is objected as a third reason that the facts so stated would not, under the circumstances, be adequate to justify a man of prudence and caution in believing that the places sought to be searched contained property of the character for which a search and seizure under a warrant could lawfully be made because of its use in a misdemeanor, if the charge made by the applicant is true.

Carroll v. United States, 267 U. S. 132, 161 , 45 S. Ct. 280 , 69 L. Ed. 543 ; Steele v. United States, 267