Opinion
[No. 81, October Term, 1949.]
Decided February 10, 1950.
Searches and Seizures — Affidavit and Warrant — Probable Cause for Issuance of Warrant — Facts Sufficient if They Would Permit Prudent and Cautious Man to Believe Offense Committed — Facts Herein Held Sufficient — General Warrant — Warrant Herein Held Not Void as — Search and Seizure without Warrant — Objection Waivable by Owner of Premises — Owner's Telephone Call to Wife Permitted Officer's Removal of Laundry Slips from Residence — New Trial — Trial Court's Denial of Motion in Criminal Case, Not Reviewable by Court of Appeals.
The facts alleged to show the probable cause necessary to the issuance of a search warrant are sufficient if they are such as to warrant a prudent and cautious man in believing that the offense has been committed, and such probable cause must be determined by the judge who issues the warrant. p. 514
Where affidavit of officer applicant for search warrant stated that he had rented a cabin in a tourist court and remained there from 8:50 p.m. to 1:30 a.m. of the next morning, during which time he saw different Maryland-licensed cars, each containing a man and a woman, drive in, each couple being shown to a cabin, where they remained for an hour or two, three of the cabins being occupied twice in succession, and that he saw an attendant change the bed-linen in at least two of the cabins after it was vacated, held, the officer's statements supported an inference that the cabins were being used for immoral purposes with knowledge of the management, and was a showing of probable cause sufficient for issuance of warrant to search motor court to determine whether it was being maintained as a disorderly or bawdy house. pp. 514-515
A search warrant was not a general warrant and void under Declaration of Rights, Article 26, where it directed a search of the premises known as Lord Baltimore Tourist Court and "all of the buildings located on said premises and all persons who may be found on said premises", since a warrant may be directed toward the search of more than one building, and this warrant was directed solely to buildings constituting the Tourist Court. p. 515
An owner of premises may waive his right to object to their search, but the authority granted is not necessarily unlimited and may be exceeded. p. 516
Where defendant telephoned his wife from police station and directed her "to give [the officers] all the registrations for May and the laundry tickets", held, it was within the permission granted for the officers to open a desk drawer in defendant's residence, not covered by previously issued warrant for search of adjoining motor court, and to remove therefrom the laundry tickets. pp. 515-516
The action of the trial court in denying motion for new trial in criminal case is not reviewable by the Court of Appeals. p. 516
In the case at bar, defendants were convicted of maintaining a disorderly house and maintaining a bawdy house. The issues on appeal were failure of trial court to quash search warrant and return seized property and to exclude evidence obtained as a result of search. Applying the above principles, this Court held (1) that there was sufficient probable cause to permit issuance of warrant to search tourist court, and (2) that the telephone call of defendant Lucich, owner of the tourist court in question, to wife telling her to deliver laundry tickets and registration cards to officers waived objection to their removal of tickets from desk drawer in his residence on premises without a warrant to search the residence. pp. 513-516
M.C.P., Jr.
Decided February 10, 1950.
Two appeals in one record from the Circuit Court for Baltimore County (GONTRUM, J.).
Steve Lucich and Joseph Brofa were convicted by a jury on criminal informations charging them with maintaining a disorderly house and maintaining a bawdy house in Baltimore County, and they appeal from judgments of conviction.
Affirmed.
The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.
Michael P. Smith and Lawrence B. Scally, with whom was J. Elmer Weisheit, Jr., on the brief, for the appellants.
Kenneth C. Proctor, Assistant Attorney General, with whom were Hall Hammond, Attorney General and Francis T. Peach, State's Attorney for Baltimore County, on the brief, for the appellee.
The appellants were indicted and convicted by a jury on criminal informations charging them with maintaining a disorderly house and maintaining a bawdy house in Baltimore County. On appeal from the judgments entered they challenge the rulings of the court on motion to quash a search warrant and return property seized thereunder, and on admission of evidence obtained as a result of the search. They also challenge a ruling admitting in evidence certain laundry tickets found by the police at Lucich's home, and the ruling of the court denying a motion for new trial.
Lucich is the owner and operator of a tourist cabin inn with 29 cabins, known as Lord Baltimore Tourist Court, located on Pulaski Highway. Brofa was employed as room clerk. The search warrant was issued by Judge Murray upon the sworn statement of Officer Story, who stated that on information received he went to the premises and rented a cabin under another name on May 31, 1949, where he remained from 8:50 P.M. to 1:30 A.M. of the next morning. His detailed statement may be summarized as follows: During the period of observation, he saw nine different automobiles, each bearing Maryland license tags, and each containing a man and a woman, drive in. Each couple was shown to one of the six adjoining cabins, where they remained for an hour or two and then departed. Three of the cabins were thus occupied twice in succession during the period. In at least two of the cabins he saw an attendant change the bed linen after the cabin was vacated.
Section 306, Article 27 of the Code "authorizing the issuance of a search warrant provides that the probable cause must be determined by the judge who issues it. Wood v. State, 185 Md. 280, 286, 44 A.2d 859. As this court pointed out in Goodman v. State, 178 Md. 1, at page 10, 11 A.2d 635, what acts constitute probable cause seem incapable of definition. It is less than certainty or proof, but more than suspicion or possibility. The facts alleged to show probable cause are sufficient if they are such as to warrant a prudent and cautious man in believing that the offense has been committed. * * *." Smith v. State, 191 Md. 329, 62 A.2d 287, 291, 5 A.L.R.2d 386.
In Wood v. State, 185 Md. 280, 286, 44 A.2d 859, 862, we held, in a case which on the facts was "near the border", that statements that patrons "who entered the restaurant during the morning hours * * * did not stay long enough for a meal", did not show probable cause that a lottery was being conducted on the premises. "For aught that the application shows, restaurants — or this particular restaurant — may sell soft drinks, tobacco, candy or other things." But in Bratburd v. State, 193 Md. 352, 66 A.2d 792, 795, we said that the attempted explanation, that the slips detected might have been samples of wall-paper, was "abstractly imaginable and physically possible, but has too little semblance of real life. * * * to require consideration." In the case at bar we think the statements of the officer support an inference that the occupants of the cabins were not bona fide transients, but were using the cabins for immoral purposes with the knowledge of the management. Cf. Lutz v. State, 167 Md. 12, 16, 172 A. 354. Without laboring the point, we think there was a showing of probable cause.
The appellants also contend that the search warrant was void as being a general warrant within the prohibition of Article 26 of the Declaration of Rights, in that it directed a search of the premises known as Lord Baltimore Tourist Court and "all of the buildings located on said premises and all persons who may be found on said premises." The appellants say there was a private dwelling on the premises, occupied by Mr. and Mrs. Lucich, which was subsequently searched. They do not contend, however, that the warrant could not be directed toward the search of more than one building. Asner v. State, 193 Md. 68, 65 A.2d 881, 885; Allen v. State, 178 Md. 269, 276, 13 A.2d 352. We think the warrant in the case at bar was not a general warrant. It was directed solely to the buildings which constituted the Lord Baltimore Tourist Court, consisting of cabins and an office. No attempt was made to search the Lucich residence under the warrant.
Officer Story testified that after the officers interrogated Lucich about registration cards and laundry tickets, other than those found in the search, Lucich phoned his wife from the Fullerton Police Station and told her to "give [the officers] all the registrations for May and the laundry tickets". Lucich did not testify. Mrs. Lucich testified that she received the call and gave the officers a bundle of registration cards. She was not asked about the laundry tickets, but Officer Story testified they found them in a desk drawer at the residence. The appellants contend the tickets were obtained by unlawful search, and should not have been received in evidence.
The authorities are clear that an owner of premises may waive his right to object to their search. Cornelius, Search and Seizure, (2nd Ed.), p. 80; Zukowski v. State, 167 Md. 549, 555, 175 A. 595; Blager v. State, 162 Md. 664, 161 A. 1; Heyward v. State, 161 Md. 685, 694, 158 A. 897. There may be cases in which the authority granted is exceeded. Johnson v. State, 193 Md. 136, 66 A.2d 504, 506. In the case at bar, even if the officers, and not Mrs. Lucich, opened the drawer, it was within the permission granted. The appellant Brofa, of course, has no standing to complain. Resnick v. State, 183 Md. 15, 18, 36 A.2d 347.
We cannot review the action of the trial court in denying the motion for a new trial. Quesenbury v. State, 183, Md. 570, 572, 39 A.2d 685; O'Donnell v. State, 188 Md. 693, 699, 53 A.2d 688, 54 A.2d 315.
Judgments affirmed, with costs.