Givner v. State

Brune, C. J., delivered the opinion of the Court. The appellant was tried in the Criminal Court of Baltimore by the Court, sitting without a jury, and was found guilty of violating three provisions of the Baltimore City Code relating to inspections of buildings. He was fined $50.00 and costs, but the sentence was suspended (in accordance with the recommendation of the prosecuting attorney). Notwithstanding the suspension of sentence, this appeal is authorized.

Code (1951), Article 27, Section 725; Hite v. State, 198 Md. 602 , 84 A. 2d 899 . The first count of the indictment charged violation of Article 12, Section 120 of the Baltimore City Code, 1950 Edition (referred to below as the “City Code”). This Article is entitled “Health.” The sub-title under which Section 120 is codified is “Nuisances and the Prevention of Disease,” and Section 120 itself is under the sub-heading “Removal of Nuisance.” This Section reads as follows: “120. Whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar or enclosure, he may demand entry therein in the day time, and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of Twenty Dollars.” The second count alleged violation of Article 5, Section 120, Chapter 12, Paragraph 1202 of the City Code.

This provision is contained in that portion of the City Code which is known as the Building Code. It reads as follows (the Commissioner therein referred to being the Building Inspection Engineer) : “1202. The Commissioner or his authorized representative, upon exhibiting the proper credentials or proof of identity, if necessary, shall have the right to enter any building, structure or premises at any time during daylight hours, or at such other times as may ⁴⁸⁸ be necessary in an emergency resulting from or arising out of any cause that endangers or tends to endanger the public health or safety, for the purpose of performing his duties under this Code or enforcing the provisions of this Code.” The third count charges violation of Article 9, Section 26C of the City Code. That Section constitutes a part of the Fire Prevention Code.

It reads as follows: “C. Right of Entry. The Chief Engineer of the Fire Department or his authorized representatives when in uniform and upon exhibiting the proper credentials or proof of identity, if necessary, shall have the right to enter any building, structure or premises, except private residences, at any time during business or operating hours, or at such other times as may be necessary in an emergency resulting from or arising out of any causes that endanger or tend to endanger the public health or safety, for the purpose of performing his duties under this Fire Prevention Code, or enforcing the provisions of this Fire Prevention Code.” On the morning of February 1, 1955, representatives of the Commissioner of Health, of the Building Inspection Engineer and of the Chief Engineer of the Fire Department, accompanied by an Electrical Inspector and by a uniformed member of the Police Department assigned to work with the Health Department, visited the premises known as No. 1735 Linden Avenue for the purpose of making inspections in accordance with provisions of the Health laws, the Building Code and the Fire Prevention Code. The premises are owned by the appellant. The building consists of three floors and a basement.

There are apartments on the second and third floors, which were then rented to and occupied by tenants of Givner, and the first floor and basement were occupied by Givner and his wife as their residence. The inspectors were permitted by the tenants to examine the second floor apartment, where some defective electrical fixtures were observed; and they also found the wooden porch on that floor, which is said to serve as a fire ⁴⁸⁹ escape, to be in need of some minor repairs. It seems that on this occasion the inspectors did not examine the third floor because the tenants were not at home. The inspectors rang the door bell of the first floor apartment, and the door was opened by Mrs. Givner.

They requested permission to enter, and she referred them to her husband, who was not then on the premises. The police officer had worked in the neighborhood for a year and was acquainted with the Givners. He then went to Mr. Givner’s office and asked him to come to the Linden Avenue property to talk with the inspectors, and Mr. Givner did so (“gladly”, the police officer says). The conversation between Mr. Givner and the inspectors took place on the sidewalk outside of No. 1735.

Each of the inspectors asked permission to enter the first floor and basement, and Mr. Givner refused each request. He gave no reason for his refusal. These proceedings were initiated promptly thereafter. At the trial in the Criminal Court Givner testified that his refusal was based upon the then pendency of a suit for a declaratory judgment which he had filed.

In it he sought a determination as to what municipal personnel, if any, might go upon his premises for purposes of inspection, the circumstances under which they might enter, and whether or not he could be required to accompany the inspectors and to open any locked rooms. He also sought an injunction, both pendente lite and permanent, against the Building Inspection Engineer and the City of Baltimore, and their agents, from entering the three buildings mentioned in the suit without the consent of the occupants. He contended that the proposed or threatened inspections, without either permission or a search warrant, and without any cause or reason for such inspections being shown, constituted a violation of his constitutional rights against “unlawful” searches and seizures and also constituted a trespass and a wrongful taking of his property. The trial court dismissed the bill on the merits, holding in a memorandum opinion that there was nothing in the record to show any unreasonable search of property occupied by the complainant in violation of his constitutional rights and that the inspections complained of were necessary for the protection of the public health.

See ⁴⁹⁰ Givner v. Cohen, 208 Md. 23 , 116 A. 2d 357 . The appellant undertook in this court (and we may suppose in the trial court also) to attack the same three municipal ordinances which he attacks in the present case. He did not, however, mention any one of them in his bill, nor did he make any of them a part of the record. The defendants cited one of them in their answer (as well as some other ordinances) ; but two of the three under attack were not properly brought before us and, furthermore, the complainant did not follow the prescribed declaratory judgment procedure with regard to notifying the Attorney General of an attack on the constitutionality of any of the ordinances.

In addition, the facts of the case were very scanty, since the complainant elected to set the case for hearing on bill and answer. Because of the above deficiencies and the paucity of the facts and because of a reluctance to decide constitutional questions in the abstract, we thought the case was not ripe for a declaratory decree and affirmed the decree dismissing the bill. In the instant case the appellant again assails the same three ordinances. By stipulation, Articles 5, 9 and 12 of the City Code and all ordinances contained therein are made a part of the record.

These Articles include the ordinances under attack, which are those which we have quoted. The appellant expressly waives all defenses on technical grounds which might be available to him. We take it that this waiver includes any objection to the third count of the indictment on the ground that the authority to inspect conferred under the Fire Prevention Code (Article 9, Section 26C) expressly excepts inspections of private residences. In connection with the construction of this ordinance we note that because of the definition of a private residence contained in Section 36 of that Article, which reads as follows: “ ‘Private residence’ is a dwelling containing not more than one apartment, and which is occupied or intended to be occupied exclusively by one family and household help.” The appellant’s property at 1735 Linden Avenue falls within the definition of a “multiple dwelling” which is contained in the same Section.

The Building Code (Article 5, Section 201) contains a definition of a private residence which is similar to that of the Fire Preven ⁴⁹¹ tion Code, except that it applies to a dwelling containing not more than two apartments, instead of only one. The appellant raised below the question as to whether or not his refusal of permission to enter the premises constituted a violation of the Sections of the Building Code and of the Fire Prevention Code involved in the second and third counts of the indictment. Since he is and was quite familiar with District of Columbia v. Little, 339 U. S. 1 , his waiver of this question in this Court is evidently made with full understanding and deliberation. We read the Sections of those Codes which are alleged to have been violated in conjunction with the definitions of violations contained respectively, in Section 190, Chapter 19, Paragraph 1901 of the Building Code and in Section 33, paragraph A of the Fire Prevention Code.

These include in substantially identical terms any act or actions which are contrary to any provision or requirement of, and any and all failures to comply with, any provision or requirement of the pertinent code. So reading these provisions, we think that the appellant’s refusal of permission to enter and inspect the first floor and basement of his building may properly be considered as a violation of the ordinances referred to in these counts. It is entirely clear, we may add, that his refusal constitutes a violation of the terms of Section 120 of Article 12 of the City Code, unless, as the appellant contended below, only the Commissioner of Health himself is authorized to make an inspection under that Section. We find no merit in that contention, and the appellant has waived it in this Court.

Before passing to other matters we may add that no question has been raised as to the power of the municipality to adopt any of the ordinances here involved, other than the claim that they authorize unlawful searches. We think that there is no doubt that these ordinances fall within the general scope of the powers granted to the City of Baltimore under its Charter. See Section 6 of the Charter (Flack’s 1949 Edition) and the specific Paragraphs thereof referred to below, as well as in our opinion in Givner v. Cohen, supra. These include authorizations: by Paragraph (1) to regulate the use, operation and maintenance of buildings; by Paragraph (7) to-provide for ⁴⁹² protection against fires; by Paragraph (11) to provide for the preservation of the health of all persons within the City and to prevent and remove nuisances; by Paragraph (5) to enter, by its officers or agents, upon the lands or possessions of any person for the purpose of carrying out the powers enumerated in Section 6; and by Paragraph (24), subject to a proviso not here pertinent, to exercise within the limits of the City all of the police power which the State could there exercise.

The issue in this case is whether or not the three municipal inspectors acting under the Health, Building and Fire Prevention Articles of the City Code were or were not lawfully entitled to enter and inspect the plaintiff’s residence. The answer depends upon whether or not the proposed inspections would infringe any constitutional right of the appellant under either the Federal or the State Constitution — specifically the Due Process Clause of the Fourteenth Amendment to the Federal Constitution or Article 26 of the Declaration of Rights of the Maryland Constitution. Article 26 of the Maryland Declaration of Rights states “That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.” It has been said by this Court in a number of cases that this Article is in pari materia with the Fourth Amendment to the Constitution of the United States. See, for example, Blum v. State, 94 Md. 375 , 51 A. 26 ; Bass v. State, 182 Md. 496 , 35 A. 2d 155 ; Johnson v. State, 193 Md. 136 , 66 A. 2d 504 .

Our present Article 26 is derived verbatim (with the exception of very minor changes in punctuation) from Article 23 of our original Declaration of Rights which was embodied in our Constitution of 1776. Though it antedates the Fourth Amendment by some years both grew out of the same historical background, which has been traced many times. See, for example, Boyd v. United States, 116 U. S. 616 ; Weeks v. United States, 232 U. S. 383 ; dissenting opinion of Mr. Justice Frankfurter in Harris v. United States, 331 U. S. 145 : Miller v. State. 174 Md. 362 , 198 A. 710 : Bass ⁴⁹³ v. State, supra; Asner v. State, 193 Md. 68 , 65 A. 2d 881 ; Cornelius on Searches and Seizures, 2nd Ed., Section 35. Our Article 26 does not, as does the Fourth Amendment, the text of which was derived from a Massachusetts constitutional provision (See Mr. Justice Frankfurter’s opinion in the Harris Case, supra, at p. 158), contain an express declaration of the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.

Flowever, Article 26 has been construed as a limitation upon the power of the Legislature to pass any law, or of the courts to issue any process, which would violate that Article. Johnson v. State, 193 Md. 136 , 66 A. 2d 504 . Such a construction accords in practical effect with the rule stated by the Supreme Court in Wolf v. Colorado, 338 U. S. 25 (and referred to in Salsburg v. Maryland, 346 U. S. 545 ) that a State may not affirmatively authorize an unlawful search and seizure without violating the Due Process Clause of the Fourteenth Amendment. In Miller v. State, supra, at page 373 of 174 Md., page 716 of 198 A., the court said: “If a general search warrant is condemned, how much more obnoxious must be an authorization to conduct a general and indiscriminate search of persons and property without any warrant.” See also Mason v. Wrightson, 205 Md. 481 , 109 A. 2d 128 , in which this passage from Miller v. State was quoted in holding the “frisking” of a patron of a night club in the course of a general search for concealed weapons to be unlawful.

Prior to the enactment of the “Bouse Act” in 1929, now (as amended) constituting Code (1951), Article 35, Section 5, evidence obtained by an unlawful search or seizure was admissible in evidence in the trial of both misdemeanors and felonies. Since the passage of that Act, such evidence is generally not admissible in misdemeanor cases, but it continues to be admissible in felony cases. (Marshall v. State, 182 Md. 379 , 35 A. 2d 115 ; Delnegro v. State, 198 Md. 80 , 81 A. 2d 241 ), and in some misdemeanor cases (Salsburg v. State, 201 Md. 212 , 94 A. 2d 280 , affd., Salsburg v. Maryland, 346 U. S. 545 ). Under the rule prevailing in the Federal courts and in a number of States, evidence illegally obtained is not admis ⁴⁹⁴ sible at all in a criminal case.

The Fourth Amendment is not applicable to the States (Wolf v. Colorado, 338 U. S. 25 ), though there have been and continue to be vigorous dissents from this view. In the instant case we have problems under both the Maryland and the Federal Constitutions. In our view the problems under each narrow down to the same issue — Were the intended searches unlawful ? Wolf v. Colorado, supra, poses the question in terms of the Due Process Clause of the Fourteenth Amendment.

In that case the Supreme Court adhered to the doctrine of Twining v. New Jersey, 211 U. S. 78 , Palko v. Connecticut, 302 U. S. 319 , and Adamson v. California, 332 U. S. 46, that the Fourteenth Amendment is not “shorthand for the first eight amendments of the Constitution” and does not thereby incorporate them. The opinion of the Court, written by Mr. Justice Frankfurter, also reaffirmed the doctrine of the Palko Case that “This [the Due Process] Clause exacts from the States for the lowliest and the most outcast all that is implicit in the concept of ordered liberty’.” It went on to say: “The security of one’s privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society. It is therefore implicit in 'the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples. “Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.” It is clear that prohibitions against unreasonable searches ⁴⁹⁵ and seizures do not prohibit reasonable searches and seizures.

U. S. v. Rabinowitz, 339 U. S. 56 . As Cornelius on Searches and Seizures, 2nd Ed., Section 35, states, “The constitutional provision in question, while primarily designed to protect the individual in the sanctity of his home and in the privacy of bis books, papers and property, does not apply to reasonable rules and regulations adopted in the exercise of the police power for the protection of the public health, morals and welfare.” He then cites as examples of such reasonable inspection laws those applicable to the books and records of pawnbrokers and requiring dealers to furnish samples of food. The inspection of inns or hotels and of institutions is upheld. Hubbell v. Higgins, 148 Ia. 36 , 126 N. W. 914 ; Sister Felicitas v. Hartridge, 148 Ga. 832 , 98 S. E. 538 .

A statute giving tax officials the right to examine the books and papers of taxpayers for the purpose of listing assessable property for taxation has been upheld. Co-operative Building & Loan Ass’n v. State, 156 Ind. 463 , 60 N. E. 146 . Since the passage of the Bouse Act this Court has been called upon in numerous cases involving misdemeanors to determine whether or not a search is unlawful. None of the cases prior to the present case, except Givner v. Cohen, supra, have raised or sought to raise the question here presented.

The appellant relies principally upon the case of Little v. District of Columbia, 62 A. 2d 874 (Ct. of Mun. App., D. C.), affirmed 178 F. 2d 13 , 85 U. S. App., D. C. 242 (Ct. of App., D. C. Circ.), affirmed 339 U. S. 1 . The Municipal Court of Appeals reversed on constitutional grounds the conviction of Little on a charge that she had interfered with a health officer of the District of Columbia in the discharge of his duties. In brief, the facts were that a health officer, in response to a complaint that there was an accumulation of loose and uncovered garbage and trash in the halls of the defendant’s home and that certain of the persons residing therein had failed to avail themselves of the toilet facilities, went to the defendant’s house to investigate the matter.

She was away and the door was locked. The officer had no search warrant. While he was standing outside the door, the defendant returned. She protested his right to enter her home, saying that it would violate her constitutional ⁴⁹⁶ rights, and refused to unlock the door for him.

She neither used nor threatened force of any kind. The Court of Appeals for the District of Columbia affirmed the judgment of the Court of Municipal Appeals by a 2-1 decision, in which both the majority and the minority proceeded entirely on constitutional grounds. In reviewing the case on certiorari, a majority of the Supreme Court, in an opinion by Mr. Justice Black, affirmed the judgment of the Court of Appeals on the ground that her “mere refusal to unlock the door accompanied by remonstrances on substantial constitutional grounds was” not “the kind of interference prohibited by the [District of Columbia health] regulation” upon which the prosecution was based. The majority found it unnecessary to decide the constitutional question of whether or not the Fourth Amendment prohibited the