Davis v. State

Henderson, J., delivered the opinion of the Court. The appellant was convicted of having lottery tickets in his possession, in a trial by the court sitting without a jury, and sentenced to six months in the House of Correction and a fine of $1,000. It is contended that there was a lack of probable cause for the issuance of a search warrant, and that the verdict was clearly erroneous, taking the evidence as a whole. We find no merit in the contention as to the search warrant.

It was based upon an affidavit detailing the observations of Officer Cheeks on September 8 and 9, 1953. He saw a described man enter a described automobile, look through some papers, throw away a slip of paper, and drive off. The officer retrieved the slip and found thereon a lottery station number and two lottery numbers with the amount of play. On the following day, he saw the same man drive up to a certain tavern and go in.

He followed him, and saw another man hand ⁵⁵⁴ him a small brown envelope, a second man approach him and put something in his pocket. The described man went out to his automobile and then returned to the tavern. The affidavit recited that the lottery known as “numbers” requires that the play be collected by “runners” and “writers” and returned to the person conducting the operation. It stated the belief of the affiant that the person described was such a “runner” or “writer”.

The applicable rules .of law; have been so often stated that it seems only necessary, to cite the most recent case, Dean v. State, 205 Md. 274 , 107 A. 2d 88 , wheré it was pointed out that-the judge passing upon the application may give consideration .to the special knowledge and experience of police officers, and that probable cause is less than certainty or proof. The fact that the described man had in his possession, and threw away, a slip of paper that showed on its face a lottery operation, plus the evidence of a subsequent “pick-up” of an envelope and another object, was a sufficient showing of probable cause under the circumstances. The search warrant combined directions to search the man and the automobile. Nothing was found on the man, but lottery tickets were found in the automobile.

We have held that such directions are separable. Pegram v. State, 203 Md. 567 . Here the affidavit stated facts from which it could reasonably be inferred that the automobile was being used in a lottery operation. The appellant contends that the circumstances surrounding the search of the automobile “compels the conclusion that the package, of lottery tickets, claimed by the State’s witnesses to have been subsequently found therein, was not therein when it was originally searched”.

The inference sought to be drawn is that the package was “planted”. The testimony shows that on October 10, 1953, at about 1:30 P.M. Sergeant Heagherty, in company with Officers Cheeks, Moody and Rose, found the car, a two-door DeSoto convertible, parked on Mosher Street west of Pennsylvania Avenue. Davis was stand ⁵⁵⁵ ing near the car and unlocked it for them. They searched his person and found nothing incriminating.

In a ten-minute search, they found nothing incriminating in the car. Heagherty then said to Davis: “Willie, get in the car, we will drive down to the station house and we will make a more thorough search.” Davis said: “all right, you are not going to find anything in the car, you can search all night, tear it apart, come on, I will go along with you.” Davis drove, Heagherty sat next to him, Officers Moody and Cheeks in the back seat. Officer Rose followed in the police car. The car was parked on Johannsen Street near Brewer Street and searched again.

Officer Rose came up and got in the back of the car. He said: “Sergeant, I think there is something under the front seat.” Heagherty looked under the seat and “meshed in between an umbrella was this flat round package which contained 83 lottery slips”. Davis said: “It is not my