Bratburd v. State

Markell, J., delivered the opinion of the Court. This is an appeal from a judgment on conviction of unlawful possession of lottery slips. Code, Art. 27, sec. 411. The only question really presented is the validity of a search warrant and the admissibility in evidence of the lottery slips seized under it, i. e., whether the facts set forth in the search warrant and the applica ³⁵⁴ tion for it show probable cause for believing the existence of the grounds on which the warrant was issued.

Art. 27, sec. 306. Before the trial defendant filed a motion to quash the search warrant, which was overruled. At the trial the lottery slips seized were admitted in evidence over defendant’s objections. The sworn application of Sergeant Whalen of the Montgomery County Police Department, dated July 7, 1948, alleges that there is probable cause to believe, and he does believe, that a misdemeanor is being committed by defendant in Montgomery County in a 1947 Packard sedan, dark blue in color, bearing Maryland tag number 761-333, owned and occupied by defendant, in unlawfully having in his possession, both upon his person and in the automobile, lottery slips and money received from and for the sale of such lottery slips in violation of Art. 27, sec. 411 of the Code.

The search warrant, issued the same day by Judge Prescott, recites that it appears to him, by written application signed and sworn to by Sergeant Whalen, and the judge finds, that there is probable cause to believe that a certain misdemeanor (describing it in the same way as in the application) is being committed by defendant in the automobile and upon his person. The grounds for probable cause, “as also set forth” in the application, are that (setting forth facts stated by Sergeant Whalen in the application “as the basis for his belief”) : Sergeant Whalen was informed by Officer Willey that defendant visited no. 202 Geneva Avenue regularly at approximately 3:00 P. M. for the purpose of accepting lottery bets. Whalen secluded himself in a building across the street from no. 202. On July 2, 1948, at 3:30 P. M., he observed the described automobile pull up to the curb in front of no. 202, defendant entered the house at no. 202, stayed there about two minutes, came out, in his left hand was paper money, his “right hand pants pocket” was “bulging” with what Whalen believed to be paper money and silver coins, “together with policy lottery slips,” he entered the automobile and ³⁵⁵ drove away.

Only July 3d, at 2:30 P. M., Whalen, in company with Corporal Miller, while so secluded, observed a colored woman, carrying a wallet in her hand, enter the house; at 3:15 P. M. they observed the automobile pull up to the curb, defendant got out and entered the house for five minutes, he and the colored woman then came out, she had in her hand paper money which she was placing into the wallet, defendant got into the automobile and drove away. On July 5th, at 3:00 P. M., Whalen and Miller observed the automobile pull up to the curb, defendant got out, his “right hand pants pocket” was “bulging with what they believed to be” paper money and silver coins, “together with policy lottery slips,” and was so heavy that they observed him “place his right hand on the outside of the pocket” and support the weight of the pocket as he ascended the steps of no. 202, he came out five minutes later, in his right hand “they observed a quantity of slips of paper about the same size and color as is used in the operation of a lottery,” and he drove away in his car as previously. On July 6th, at 3:00 P. M., Whalen and Miller observed a colored woman drive up to the curb at no. 202 in a 1941 Dodge sedan and get out of her car “with a yéllow slip of paper in her right hand,” which “appeared to be of the same size and color used in the operation of a lottery,” she walked up the steps to the front yard of no. 202, where she was met by another colored woman wearing pink slacks, the first woman handed the second the yellow slip and got back into the Dodge and drove away and the other woman went back into no. 202; at 3:15 P. M. the Packard pulled up to the curb, defendant got out, the same pocket was “bulging” in the same way, he went into the house, stayed about two minutes, then came out, “with his right hand in his right hand pants pocket,” walked to the left side of his car, opened the door with his left hand, pulled his right hand out of his pocket, “in his right hand was a package of slips of paper about the same size as are used in the operation of a lottery,” he placed these papers on the front seat of the car beside ³⁵⁶ him, and then drove away. From the Department of Motor Vehicles Whalen has determined that the Packard is listed to defendant.

From his observations he has determined that the house at no. 202 is occupied by colored people, and on three separate occasions has observed a large gathering of colored people at this house. The warrant directs search of the automobile and of defendant for lottery slips and money received from and for the sale of such lottery slips. Upon search under the warrant, 14 slips and $25.37 in cash were seized from one of his pockets, $27.86 in cash from another and