Goss v. State

³⁵² Markell, J., delivered the opinion of the Court. This is an appeal from a judgment on conviction of keeping a gambling house. The case was tried without a jury. The only question presented is whether a motion to quash a search warrant was properly overruled and evidence obtained by search under the warrant was properly admitted.

The sufficiency of the evidence (if admissible) is not questioned. The question is, whether the facts stated in the affidavit and request for the search warrant are sufficient to show probable cause. The affidavit, of a Cumberland Lieutenant of Police, dated March 16, 1951, states that: The premises in question are the second floor rear apartment of a three-story building, rented by one Schwab and occupied by defendant, the proprietor of the Potomac News Company. The first floor is occupied by a candy shop, and has a separate entrance.

Another entrance leads to the second and third floors. The second floor front apartment is vacant and the third floor consists of apartments occupied by private families, who maintain living quarters there, who are known and whose activities have not been suspicious. The second floor rear apartment is listed in the Cumberland telephone directory as the Potomac News Company and is equipped with a telephone. Affiant has watched the entranceway, to observe any activity pertaining to bookmaking, on five named days for periods of from two and one-half to four and one-half named hours, all between 10:30 A. M. and 5:05 P. M. On each of four days he saw from eight to fifteen men enter and leave the building, some several, one six times in one day.

On four of the five days defendant was one of the men seen to enter and leave. On March 10, 1951 affiant saw a man, described but not named, “carrying a large bundle of papers which appeared to be racing forms,” enter at 11:23 and leave at 11:24 without the bundle. On March 14, 1951 he saw a man, described but not named, enter at 1:13, “carrying an empty cardboard container about four feet in height and about three feet square,” and leave at ³⁵³ 1:17, “carrying a cardboard container on his shoulder, which was filled with papers on top of which container the