Payne v. State

Hammond, J., delivered the opinion of the Court. This appeal is from judgment and sentence which followed conviction for violation of the lottery laws by the court sitting without a jury in the Criminal Court of Baltimore. It is said that the court erred in admitting lottery tickets taken from the appellant in a search of his person because the arrest was illegal and the search unauthorized. ⁵³ Vice squad officers saw the appellant leave an automobile, go into a rear yard and shortly thereafter, emerge from the front door of the premises. They stopped appellant to question him about lottery.

He claims, and they deny, that they then searched him. They asked him to go with them to the house from which he had come and questioned him in the presence of the woman who lived there. She corroborated his statement that he had come for the purpose of giving an estimate of the cost of painting her kitchen. The appellant was then released and the officers went to the rear of the property and watched through a hole in the fence.

In a short time, the lady of the house came out, bearing lottery slips which she put in the garbage can. She took the garbage can to another yard. The officers retrieved it and went back to talk to her. One of them then went to seek appellant, who was found three or four blocks away getting into a taxi-cab.

The officer demanded that he return with him to the house. In his presence, the lady of the house said that she had been writing numbers for several months and that appellant picked up her numbers. He had picked them up that day and had put them in a cloth bag which was attached to his pants between his legs. One of the officers testified that at that point he asked appellant if he could search him and that the reply was: “Yes, go ahead.” The search revealed the lottery tickets which the court admitted in evidence over objection.

Appellant contends that he was illegally arrested and that under those circumstances, the consent he gave to the search was not actually consent but rather submission to apparent authority. We may assume, as did the trial court, that the arrest of appellant occurred when the demand was made that he go with the officer back to the house and that the arrest was illegal. The record does not show that the police had reason to believe that a misdemeanor was being committed in their presence with the precision demanded by the cases. It does not folloAV that the search of the appellant was unlawful. ⁵⁴ Appellant relies on cases in the Federal Courts and the courts of other States which hold, in effect, that one who denies his guilt but acquiesces in a search does not, by the words or signs of acquiescence, show consent but that there is presumption .of coercion, either physical or psychological or both, which makes the appellant’s apparent consent mere submission.

It is recognized, even in the authorities he cites, that there may be in fact a voluntary consent which will waive a constitutional or a statutory right. See, for example, United States v. Waller, 108 F. Supp. 450, 453 ; and