Gorman v. State

Pattison, J., delivered the opinion of the Court. This appeal is from a judgment against Henry Gorman, who was convicted in the criminal court of Baltimore City ■on the charges (1) of keeping a room for the purpose of selling lottery tickets, (2) permitting a room of which he was then and there the owner to be used as a place of selling lottery tickets, and (3) having in his possession a book of lottery tickets; and who was sentenced to pay $500 and be imprisoned in the city jail for thirty days. ⁷⁰² This, the companion case of Ho. 51 of the , October term, 1931, Heyward v. State, 161 Md. 685 , 158 A. 897 , includes many of the questions presented and decided in that case, with additional ones, the chief among them being whether certain slips and other papers, found by Sergeant Hitzelberger of the Baltimore City police in the defendant’s home, Ho. 1716 Brunt Street, Baltimore, kid., were admissible in evidence against the defendant. The decision of this question depends upon the determination of the further question -whether these slips, etc., were “procured by, through, or in consequence- of any illegal search or seizure or of any search and seizure prohibited by the Declaration of Eights of this State”; or “by, through or in consequence of a search and seizure, the effect of the admission of which would be to compel one to give evidence against himself in a criminal case.” Section 4A of article 35 of the Code (Sup-p. 1929). The facts found in the record, upon which depends the determination of the question here presented, are substantially these: Sergeant Hitzelberger, upon information received by him, watched for two successive days the home of Gorman, where lottery violations were suspected.

On each of these days he saw, between the hours of nine and eleven o’clock, fifteen or more colored persons, men and women, enter the house and thereafter leave, carrying papers in the-ir hands. On the third day, some person, unknown to- the sergeant, '"entered the house through the front door, leaving the door ajar, and, as he said, “I pushed it open and walked right in,” following the person back into the kitchen. Hitzelberger had no warrant either to search the house or to arrest Gorman, the defendant. In the kitchen, he found Gorman and two other men.

The two men were standing, while Gorman was seated at a table with slips and money before him, which he was putting in envelopes. There were at the time- three envelopes upon the table, each containing slips and money. Hitzelberger was told by Gorman that he was waiting for the collector to come and get the tickets, and suggested that, if Hitzelberger would wait, he (the collector) would be there ⁷⁰³ in a few minutes. In addition to the slips, money, and envelopes lying upon the table, Hitzelberger saw three books in the drawer of the table, which was partially open.

Upon seeing them, he opened the drawer further and took out the books. The slips upon the table, which Gorman was putting in the envelopes, were, he said, lottery slips. Gorman, in conversation with the officer, said: “I have been going for a good ■while (for two years) and it is the first time I have been caught.” It is upon the above stated facts that we are to decide whether or not the slips, money, and envelopes found upon the table, and the books, taken from the table drawer, were procured “by, through or in consequence of any illegal search or seizure.” In 24 Ruling Case Law, page 717, it is said: “An unreasonable (illegal) search is an examination or an inspection without authority of law of one’s premises or person, with a view to the discovery of stolen, contraband or illicit property, or for some evidence of guilt, to- be used in the prosecution of a criminal action. The right of individuals to be exempt from such searches is guaranteed by the Fourth Amendment to the Constitution of the United States, and such amendment is incorporated generally in the constitutions of the several states.

These provisions apply to all invasions on the part of the government and its. employees of the .sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers that constitute the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private properly, where that right has never been forfeited by his conviction of some, public offense.” See Wicks v. United States, 232 U. S. 383 , 34 S. Ct. 341 , 58 L. Ed. 652 ; Boyd v. United States, 116 U. S. 616 , 6 S. Ct. 524 , 29 L. Ed. 746 . In Agnello v. United States, 269 U. S. 20 , 46 S. Ct. 4, 6 , 70 L. Ed. 145 , decided October 12th, 1925, the court said: “While the question has never been directly decided by this court, it has always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an ⁷⁰⁴ incident to a lawful arrest therein. Boyd v. United States, supra; Weeks v. United States, supra; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 391 , 40 S. Ct. 182 , 64 L. Ed. 319 ; Gouled v. United States, 255 U. S. 298, 308 , 41 S. Ct. 261 , 65 L. Ed 647.

The protection of the Fourth Amendment extends to all equally — to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws.” Involved in this constitutional right of the citizen is the maxim that “every man’s house is his castle”; and in the enjoyment of it he shall not be subjected to unreasonable or illegal searches and seizures. In this case, the home of the defendant, who was suspected of being guilty of a misdemeanor, was- entered by the officer without either a search warrant or a warrant for his arrest. The information he then had was practically no- greater than that which he possessed at the close of the preceding day.

If upon that information he could have procured a warrant to search the defendant’s home, he should have done so- before entering upon the premises of the defendant. If upon such information he- could not have procured a warrant, then he was not upon that information justified in attempting a search of the- house without a warrant, unless he had the consent of the defendant, and his consent cannot be found in the fact that the door through which the officer entered was partially open, nor did the defendant thereby waive the necessity of a warrant. It is true the door was not locked or fastened, but partially open, and he- was not required to burst open the door; but, as already stated in the authorities from which we have quoted, the- bursting open of the door was not the wpssence of the offense; it was the invasion of the- privacy of the defendant’s home. Tinder the facts and circumstances stated, the officer was, we think, a trespasser in entering the house of the defendant.

In People v. Halveksz, 215 Mich. 136 , 183 N. W. 752, 753 , two police officers entered a restaurant without a warrant either for the search of the premises- or for the arrest of ⁷⁰⁵ the defendant, and, from the restaurant, they, without permission, went into' the living rooms in the rear, and there made a search for and found a quantity of whisky. The defendant was placed on trial for having liquor illegally in his possession, and convicted. The Michigan Supreme Court, in reversing this conviction, and in holding the search and seizure illegal, said: “By what authority did the police officers enter the premises and make the search and seizure? The record discloses none.

No1 power exists at common law to make a search and seizure without a warrant.” And in the case of State v. Andrews, 91 W. Va. 720 , 114 S. E. 257 , where the defendant was suspected of having committed an assault, an officer was sent to the home of the defendant to inquire into a report which involved the guilt of the defendant. On reaching defendant’s residence and finding the doors open, including the door of the closet in which he swore he found the whisky, he entered the house without any warrant, either for the defendant or for searching the house for liquor. He found no one in the house and made no arrest of the defendant, hut, finding the liquor in the closet, he seized it and took it into his possession, and delivered it over to his superior officer. It was held that this search was illegal and in violation of the constitutional rights of the defendant.

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