Davids v. State

Delaplaine, J., delivered the opinion of the Court. Alexander Davids has appealed here from his conviction by the Circuit Court for Baltimore County, sitting without a jury, on a criminal information charging him with violating the statute making it unlawful to make or sell a book or pool on the result of any horse race. Code 1951, art. 27, sec. 306. Appellant was placed under arrest on March 2, 1955, in a tavern known as Roadside Inn on South Marlin ³⁸¹ Avenue by Officer Gilbert L. Deyle, Captain of Detectives in the Baltimore County Police Force.

When Captain Deyle and two police sergeants entered the tavern, they saw the bartender behind the bar and several persons sitting in front of the bar. At the end of the barroom there was a partition, and' several feet beyond the partition was the entrance to the kitchen. Just as Captain Deyle was approaching the partition someone shouted “Al,” and appellant appeared in the doorway of the kitchen. Captain Deyle identified himself and held appellant at the doorway while the sergeants went into the kitchen and thence into the living room.

In the living room was a small table on which were a telephone, an Armstrong scratch sheet and race bet slips. Beturning to the doorway where Captain Deyle was standing with appellant, the sergeants displayed the scratch sheet and the slips. The Captain thereupon asked appellant what he was doing in “this sort of business.” His only reply was: “Let me go and everything will be all right.” Instead the Captain placed him under arrest and thereupon searched him. He found in his pants pocket $270 in cash and two race bet slips.

Written on each slip was the name of a horse running on that day. The officers promptly took appellant to the police station and charged him with violation of the bookmaking law. It is conceded that the police officers had no search warrant or warrant of arrest. However, the officers had the right to inspect and search the tavern without a search warrant.

It was stipulated that a beer, wine and liquor license had been issued to Ida Mae Wise, the owner of the tavern. Under the Maryland Alcoholic Beverages Law, any peace officer of any county is authorized to inspect and search, without warrant, at all hours, any building in that county in which any alcoholic beverages are authorized to be kept or sold under a license issued under the provisions of that law. Code Supp., 1955, art. 2B, sec. 179. Under this statute the tavern owner’s assent to inspection and search of the premises is valid, and police officers have the authority to enter the tavern and ³⁸² conduct .a search of the premises without a warrant.

Zukowski v. State, 167 Md. 549, 555 , 175 A. 595 . However, this statute does not authorize officers to search patrons found therein. Mason v. Wrightson, 205 Md. 481 , 109 A. 2d 128 . Appellant’s contention on this appeal is that his arrest was unlawful, and that he was therefore searched unlawfully.

The State, on the other hand, claims that his arrest was not unlawful because he committed a misdemeanor in the presence of the officers. We have repeatedly stated the law, upon which the State is relying, that where a misdemeanor is committed in the presence or view of a police officer, he may arrest the offender forthwith without first having obtained a warrant to do so, and after such arrest he may search the offender and seize the tangible evidence or instrument of the crime, whether on his person or within his use and immediate control or possession. Callahan v. State, 163 Md. 298, 300 , 162 A. 856 ; Fischer v. State, 195 Md. 477 , 74 A. 2d 34 ; Rucker v. State, 196 Md. 334 , 76 A. 2d 572 ; Scarlett v. State, 201 Md. 310, 317 , 93 A. 2d 753 , certiorari denied 345 U. S. 955 , 73 S. Ct. 937 , 97 L. Ed. 1377 ; Agnello v. United States, 269 U. S. 20 , 46 S. Ct. 4 , 70 L. Ed. 145 ; United States v. Rabinowitz, 339 U. S. 56 , 70 S. Ct. 430, 433 , 94 L. Ed. 653 . It is stated in general terms that a crime is committed in the presence of an officer where his senses afford him knowledge that such is the fact.

It is perfectly clear, however, that a crime, although not committed immediately within the vision of an officer, may be committed in his presence if it is committed within his hearing and so near that he cannot be mistaken as to the offender. If, for example, an officer hears uncommon and suspicious noises which he can readily locate, he has the right to investigate, and if it develops that a misdemeanor was actually committed, it may be considered as having been committed in his presence for the purr pose of authorizing him to arrest the offender without a warrant. Accordingly an assault is committed in the ³⁸³ presence of an officer if he is near enough to hear the outcries of the victim and arrives immediately after the disturbance is over. In such a case, the officer, in determining whether or not a crime was committed in his presence, can act upon all the facts and appearances before him.

Where some evidence of the commission of a misdemeanor reaches an officer through his senses, and it is augmented by other strongly persuasive facts in his