Fitez v. State

Thompson, J., delivered the opinion of the Court. Harry Richard Fitez, the appellant, was convicted of violating the lottery and gambling laws in a court trial before Judge E. Mackall Childs in the Circuit Court for Anne Arundel County. He was sentenced to one year and fined $1,000. On appeal Fitez contends that as a result of a violation of Maryland Rule 707 all evidence taken under the improperly executed search warrant should be excluded. ¹³⁹ The evidence showed that on February 2, 1968, Corporal Frank Mazzone, of the Maryland State Police Intelligence Unit, executed a search warrant on certain premises in Anne Arundel County.

After entering the premises, Corporal Mazzone informed the appellant of the search and seizure warrant, read the warrant to the appellant, and gave him his Miranda warnings. The search of the premises yielded the following items: a paper with 65 code names and numbers, corresponding to another slip containing horse and lottery slips; two yellow sheets with 346 wagers on horses running on that day representing $1,044. in bets; three unconventional lottery slips containing 271 wagers representing bets of $197.75; one tally sheet, a National Armstrong Daily newspaper; a telephone; and an envelope with race track tickets in it. Before leaving the premises, Corporal Mazzone made a handwritten inventory of the articles seized in the presence of the appellant and gave him a copy of the inventory signed by both Mazzone and appellant. The handwritten inventory said simply, “several sheets of paper on which appear various lottery wagers and horse wagers.” In court, a typed inventory listed the items in greater detail, specifically the number of wagers and the total amount of money involved.

Mazzone testified that it took several hours to compile this information; however, the betting sheets described were the same ones as. seized. Mazzone testified there was no opportunity to make the tallies at the time of the seizure. Ultimately, both the general and the specific inventories were entered in evidence. By timely motion and objection, appellant preserved the contention that the typed inventory was objectionable alleging the detailed inventory differed materially from the handwritten inventory given appellant at the time of the seizure.

Maryland Rule 707 (effective September 1, 1967) has not been previously interpreted by any Maryland decision. In its relevant parts, Rule 707 a and b say: ¹⁴⁰ “Search Warrants “a. Inventory “An officer taking property under a search warrant shall make a written inventory of the property taken. The inventory shall be signed by the officer executing the search warrant and shall be made in the presence of the person from whom the property was taken if such person is present at the time the search warrant is executed; if such person is not present, the inventory shall be made in the presence of the person apparently in charge of the premises from which the property was taken, if such a person is present. “b. ■ Service of Copy. “An officer taking property under a search warrant shall leave a copy of the inventory and a copy of the warrant with the person from whom the property was taken, if such person is present at the time the search warrant is executed.

If such person is not present, the officer shall leave a copy of the inventory and a copy of the search warrant with the person apparently in charge of the premises from which the property was taken. If neither of such persons are present at the time the search warrant is executed, the officer shall leave a copy of the inventory and a copy of the search warrant in a conspicuous place at the premises from which the property was taken.” Maryland Rule 707 is similar to Rule 41 (d) of The Federal Rules of Criminal Procedure, which has been previously interpreted by federal courts. In its relevant parts, Rule 41 (d) says: “Rule 41 “Search and Seizure “(d)