Wright v. State

Delaplaine, J., delivered the opinion of the Court. The appellants were indicted separately, but were tried together, and were convicted and sentenced in the Circuit Court for Anne Arundel County for selling a lottery ticket and possessing lottery tickets in violation of statute. Code, art. 27, secs. 336, 342. On February 10th, 1939, the liquor store of Howard Wright, appellant, in Annapolis, was searched by police officers for evidence of a lottery.

The officers did not see any violation of law in the store; but, finding a locked box under the counter, they arrested Wright under a “warrant of investigation” and brought the box along to police headquarters. On searching the accused, Police Commissioner Thomas G. Basil found some money and two lottery slips used in the game of “numbers.” The police commissioner also opened the box and found in it some slips and other articles. There was no evidence that Wright had made any resistance to search and seizure. Two warrants were subsequently issued, charging him with violating the statute. - On February 17th, James Watkins, appellant,' an emT ployee at the store, suspected of being the owner of contents of the box, was arrested under a “warrant of investigation.” He was locked in a cell in the jail at 8 P. M., and his attorney was denied the privilege of see ²³³ ing him or obtaining bail for him until the so called investigation was completed.

About 4 P. M. on the following day, the prisoner was brought from his cell into the office to be grilled. At first he denied possession of any lottery slips, but later he made what the officers claimed to be a voluntary confession. At the trial of the cases before the court without a jury, the attorney for the appellants objected to admission of the money and slips and the box and its contents into evidence on the theory that they were obtained by unlawful search. But the search of the liquor store was lawful, because the officers were authorized by the Alcoholic Beverage Act of 1983, and the consent of applicants for liquor licenses thereunder, “to inspect and search, without warrant, at all hours, any building aiid premises in which any alcoholic beverages are authorized to be manufactured or sold.” Code (Supp. 1935), art. 2B, secs. 5, 34.

Since the Alcoholic Beverages Act repealed all laws inconsistent with its provisions, it is impossible to invoke the Bouse Act of 1929 (Code [Supp. 1935], art. 35, sec. 4A) to suppress evidence obtained on licensed premises without a warrant. Zukowski v. State, 167 Md. 549 , 175 A. 595 . It is a general rule that whenever officers have authority to conduct a search, their search can extend to portable effects, such as the contents of baggage, box, or bundle. 56 C. J. 1200. In Alabama, where an accused was arrested without a warrant, and his suitcase was seized and found to contain whiskey, it was held that his rights under the constitutional provision against unlawful search and seizure had not been violated.

Jones v. State, 19 Ala. App. 232 , 96 So. 721 . Likewise, in Maryland, where an officer noticed a package in a suspected man’s overcoat and on demanding it found that it contained lottery tickets, our court decided that the arrest was lawful without a warrant, and that the tickets were admissible in evidence because they were considered voluntarily surrendered. Blager v. State, 162 Md. 664 , 161 A. 1 .

This court has also held that, since a police officer may arrest an offender with ²³⁴ out a warrant when a misdemeanor is committed in his presence or view, evidence obtained at the time of arrest, including lottery tickets found on the floor or in the pockets of a coat, was not obtained by unlawful search and seizure. Silverstein v. State, 176 Md. 533 , 6 A. 2nd 465. In New York it has been held that a person unlawfully in custody, following arrest without a warrant, can lawfully be arrested under a valid warrant. People v. Bradley, 58 Misc. 507 , 111 N. Y. Supp. 625 ; 6 C. J. S., Arrest, sec. 4.

At the trial of the present cases, the court admitted the monéy and the slips and also the box and its contents; eight days later, before announcing the verdicts, the court excluded the box and its contents from the evidence. But as there was no reversible error in the trial of Howard Wright, the judgment against him must be affirmed. In the case of James Watkins, the court was asked to allow the accused to testify for the sole purpose of explaining the circumstances under which the confession was made. The court ruled that if he took the stand, even though for the sole purpose of explaining the manner in which the confession was obtained, he would nevertheless be subjected to cross-examination “as to any facts pertaining to the charge in the indictment that may be brought out by his counsel on direct examination.” That ruling of the court was improper.

Inasmuch as the admissibility of a confession is dependent upon its voluntary character, the question of whether or not it is voluntary must be decided in the first instance, when the offer to introduce the testimony is made. The sole question to be determined by the trial judge at that time is whether the confession is admissible because voluntary, or inadmissible because involuntary. 2 Wharton’s Evidence in Criminal Cases, sec. 594; Rosin v. State, 153 Md. 431 , 138 A. 338 . In describing the manner in which the confession was obtained,- Watkins testified that Police Commissioner Basil