Jurisdictional Statement — Frank v. Maryland

Ne ier LoARY

‘In THE.

~ Supreme cots of the United States, Ss

ra : . ’ :

‘Goole TERM, a

eh re i No. -2¢8 | a Bs

*- NS 3 AARON D-PRANK, <9.

PCS tie aS

t

_ VS.

7. STATE OF MARYLAND, ,

— a

Appellee.

. ‘On APPEAL FROM THE CRIMINAL Court OF BALTIMORE

~

<~ JURISDICTIONAL STATEMENT

nN BENJAMIN LIPSITZ,

1525 Mathieson Building, ~

Baltimore 2, Maryland,

Counsél for Appellant.

The Daily Record Co., Baltimore 3, Md. ne

“Wo CENDEX.

. 7 ,

| TABLE oF CONTENTS

ei te ore ee : PAGE.

SE PFN 655. oa bliertnaneine ‘Boriaics ohare Pa Pees

JURISDICTION -......... use rela anion ieee: eeu ric sltetiancn 2

STATUTES INVOLVED es oe eee Dat evr | 3

QUESTIONS oui Spt does tics eat da igs teal a cated ee Natok 4

I a ae Samco Aaa

- How the federal questions are presented seae cars Oe

THE Questions ARE § SUBSTANTIAL o..0..0.-cccescecccece’ 1018

AppENDIx —- The Judgment below ......... Ay Serres tens “a

CITATIONS ;

| _ Cases emer ny

‘ Adamson v. California, 332 U.S. 46.....00...0... ee:

Agnello v. United States, 269 U. S. 20 ..... oe eee ‘11n, 17 ©

Brack v. State, 187 Md. 548 «2.0.0.0... ape oer? 180 a Te

Christie v. Leachinsky, 1 All E. R. | ATES EeeeeeeeES 18n

. Davis v. United States, 328 U.S. ti are ie See

. District of Columbia v. Little, 85 App. D. C..i,38, 13n, 16, 17n

District of Columbia v. Little, 339 U.S.1....... (13, 14, 14n-15n

" Givner ¥. State of Maryland, 210 Md. 484 ......15, 15n, 16, 16n,

yo | 17, 17n, 18

Harris v. ‘United States, 331 U. S. 145 ............... Lan 17, 18

_ Johnson v. United States, 333 U. S. 10 Pte a eee 17

Jones-v. United States, ...... eee , 2 L. ed. 1514,

i | Oe RM ESOT aS td be oe ee 17

Little v. District of Columbia, GZ A. 20 S14 -...-... os ~ ‘13n

McDonald v. United States, 335 U.S. 45 0.00... 17

Miller v. United States, ..:... U.S. ..... » 78 S. Ct. 1189,

21. ed. 2d 1332 .............. Manis | Seba tied | vores Hk 11,17

. PAGE |

Palko v tate i be 302 U. S. oer _2,12n

_ Poulos v. New Hampshire, 345 U. S. 395 ...:... 2, 2n, 10n, 15n

"Twining v. State of New Jersey, 211 U.S. 78... 2,12

: as — of State * Colorado, 338 U. a > ee

14, 15,17 ©

‘Constitutional Amendments, ‘Statutes, Ofdinances

Amendments to the Constitution of the United States,

. Article IV; 1 United States Code, 1952 Edition,

> IRR te ese ere emer ey cat) Sy ca Rg Re

~ Amendments to the Constitution of the United States,

' - Article XIV, 1 United States Code, 1952 Edition, %

SERRA Manas « Re Als Shee epee sme Pre £2) Canteen Cee 3

; Annotated Code of Maryland (1951), Article 5, Sec- }

aes Raa SU, Spe OF tee Sear een ene enh been END —-:9n

ROARING err yee Pct dents CRE iS RMN A ae Php eR Dade” Ea, ted

TE Rte at As erase etieen ee Reine me slep Heald RMR ke al ~ 10% -.

- Baltimore City Code (1950 Edition), Article 12, See: |

RRS Me Ri ateerielsaicone eek Rita oer ON ese OPM i a OI Nre a

Charter of Public Local Laws of Baltimore City |

(1949 Edition), Section 6 (5), (11),'(24) ............ 4-5n f

' Charter of Public Local Laws. of. Baltimore’ City

(1949 Edition), Section 411.....:.....:...02..005..065...

Laws of Maryland, 1953, Chapter 676. 2..0...00..00..000.... |

Laws of Maryland, 1957, Chapter 399, ‘Section 4 ........

‘United States Code, Title 28, Section 1257(2) ............

Miscellaneous

40 Hisieek a Official Opinions of the Attorney Gen- |

eral of ta daca (1953) 641 . ses Ate Re MORE Rn

S:

Supreme Court of the United States

Octoser TERM, 1958 .

SN gees =

AARON D. FRANK, 3

——— ~ Appellant

VS.

STATE OF MARYLAND, |

Nats ¥.3 '- Appellee.

. & ‘

ON APPEAL FROM THE CRIMINAL Court oF BALTIMORE

#-

J URISDICTION AL STATEMENT

Appellant appeals from. the final judgment of the Crim-

‘ inal Court of Baltimore (Part II), entered on March 17,

_ 1958, convicting him of the crime’ of violating one of the

health ordinances of Baltimore City and sentencing him

to pay a fine of $20. 00 and costs. ‘He submits this Statement

_ to show that the Supreme Court of the United States has 22

jurisdiction of .the appeal and that nee questions

are presented.

¥e.

| OPINION BELOW.

~ No opinion was delivered in any of the courts below.

oC

oe : ee

JURISDICTION |

This os pienmediaees’ was brought by the State of Maryland

for violation by appellant of the provisions of Baltimore

~~ City Code: (1950 Edition), Article 12, Section 120, in that a»

nuisance was suspected in appellant’s dwelling house and

he refused entry therein to a Health Department sanitarian,

who sought to inspect the interior of the dwelling ‘without \

a search warrant. The judgment of the Criminal Court of

. Baltimore (Part II) was entered on March 17, 1958. Ap-

Pe pellant’ S timely petition | for certiorari to review that judg-_'

ment was denied by the Court of Appeals of Maryland ©

on April 25, 1958. Throughout .the’ proceedings below, ap-

\ pellant challenged the validity of the ordinance on the

- ground of its repugnance to the Constitution of. the United

States. :

7 Notice of sonia to the Stpiens Court was filed in the

. Criminal Court of Baltimore on June 16, 1958. The juris-

. diction of the Supreme Court to review the decision of the

Criminal Court of Baltimore i is conferred by Title 28, United

: States Code, Section 1257(2), since the validity of a.state

" stdtute’ on grounds of repugnancy to the Constitution of

‘the United States is drawn in question and the. decision "

of the court below is in favor of its validity. The following

decisions sustain the jurisdiction of the Supreme Court to

review the judgment on appeal in this case: Wolf v. People

of State’ of Colorado, 338 U. S: 25; Palko v. State. of Con-

necticut, 302 U. S. 319; Twining v- State of New Jersey, 211

U. S. 78; Poulos v. New Hampshire, 345 U.S. 395. ;

ne In, this instance, a municipal ordinance; See Poulos v. New

Renner 345. U. S. 395, 402. " 3

NS

.

if ri th

°

STATUTES INVOLVED

Baltimore City Code (1950 Edition), Article 12, Section _

——-420; provided as of the dates involved in this case (and

now provides) ; av ee 3 4

“Whenever the Commissioner of Health shall have

cause to suspect that a nuisance exists in any house,

. cellar or enclosure, he may demand entry therein in —

the day time, and if the owner or occupier shall refuse

' or delay to open the same and admit-a-free examina-

tion, he shall forfeit and pay for every such refusal the

‘sum of Twenty Dollars.’ fi 7 !

Amendments To The Constitution Of The United States,

'” Article IV, provides (1 United States Code, 1952 Edition, °

.“The right of the people to be secure in their per-

sons, houses, papers and effects, ‘against unreasonable

searches and seizures, shall-not be violated, and no

_ Warrants shall: issue, but upon probable cause, sup-

_ ported by Oath or affirmation, and particularly describ-

ing the place to be searched, and the person or things

to be seized.”

_. Amendments. To The Constitution Of The United States,

—- Article XIV, provides, in. part (1 United States Code, 1952

Edition, XLV):

. “Seétion 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State where-

in they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State de- —

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of. the laws.”

eae

° 4 :

~ QUESTIONS PRESENTED :

n a health officer of Baltiinore City _ a pri-

5

.

+ d the Cte Cunt of iia (Part II) err in,

' sustaining the validity of BaltimofeCity Code (1950 Edi-. -

_ “tion), Article 12, Section 120, and of the proposed inspec- _

tion of appellant’s private dwelling house for ah alleged

’ nuisance, consisting of alleged rat infestation, undue trash

and debris, sought to be made thereunder in the day time

without.a-search warrant by a sanitarian of the Baltimore

City Health Department, against ‘appellant’ S objection that

said section was repugnant to the Fourth and Fourteenth *

Amendments to the Constitution of the United States and

‘ subjected him to, and the proposed inspection constituted,

an unreasonable and illegal search of his hou: se, a wrongful

trespass upon his pr perty and a wrongful | taking thereof

cupie objects? - — = se 9

sd oo

_. without due process of, law, all in violation of his consti- .

tutional rights under the Fourth and; Fourteenth Amend-

ments to the Constitution of the United States?

. 8. Did the Criminal Court of Baltimore (Par II) err in

denying appellant’s “Motion To Dismiss” and fs s “Motion:

for a Verdict of ‘Not Guilty’ ’, and in convictin appellant

of violating said Section 1202

>

STATEMENT

The Mave: and City Council ‘of Baltimore, exercising ‘

within the limits of that city all of the police power of the

| State. of - -Maryland,? enacted an ordinance empowering

cy The Charter and Public Local Laws of Baltimore City ( Flack’s.

~~ 4949 Edition), Section 6, states, in part: “6..The Mayor and City

_ Council of Baleamore shall have full A power. and authority to exercise

5.

3

; health oliicel’s ie shall have cause to iiteiaka a nuisance

- exists in any house to demand. entry therein in the -day

-. time and. providing that an owner or occupier who shall

refuse to open his house and admit a free examination: shall -

_. forfeit and pay for every such refusal the sum of twenty

dollars. Appellant refused to open. his house and admit ari’

. examination by a Health Department ‘sanitarian who de-

manded ent#y, without a warrant, to inspect for a suspected .

nuisance. Appellant was convicted of Violating the ordi-

**nance and he, appeals, urging, as he did below, that his

conviction regulted from his rightful refusal to submit to —

~ an unreasonable and illegal search of his home, sought to, -

be made. under the ordinance in violation of the Fourth

Amendment, and’ without that due process of law assured

’ him by the Fourteenth Amendment, to the Constitution of ‘

the United States- sy ey,

On February 27, 1958, in ‘the day’ time, Senitanan Gentry

of the Baltimore City Health Sepaylnnn, ung on’ a |

all “of the’ powers ‘Aivetclove or héreafter: granted ‘to it by the’ Sauk

stitution of Maryland or by any Public General or Public Local Laws’

of the State of Maryland; and in particular, without limitation ton

_ the foregoing, shall. have power by ordinarice, or such other method

as may be provided for in its RAUREORE.. ce n't ees

i, sees gees ES

“(5) ENTRY ON PRIVATE PROPERTY -

“To enter, by its officers or agents, the land or possessions of any

person for, the purpose of carrying out t the hi ers enumerated i in this

Section 6.

* * . Es * *

“(11) HeaLTH AND NursaNces

“To provide for the preservation of tle health of all persons within

the on | to prevent the introduction of contagious diseases within

the city ....; 3 and to preveat and remove nuisances. "

j * * es *

-“(24) Porice POWER

“Ty have and exercise within the. limits of Baltimore City all the |

power commonly known as the Police Power to the sameé extent as

the State nag or could exercise said pow er within said limit ; “

o—

2 - pellant’s house, but did not find anyone at home. He in-

/ C . |

* complaint of rats ini the neighborhood, went to appellant's

, private dwelling house in Baltimore City to make an in-,

spection of the premises. The Sanitarian did not have a

search warrant. After inepécting the yard and the ex-. —.

‘terior of the house, the sanitarian felt he had.cause to sus-

pect the existence of a nuisance, consisting of rat infesta-

- tion, trash and undue debris, inside appellant’s house. He

‘did not see any rats on the premises. He did not observe

the interior of the house. Appellant emerged from the

house and spoke with the health officer in’ the yard. The

sanitarian identified himself, informed appellant of. his

_ suspicions and demanded entry to the house to inspect the |

basement area for rats. Appellant refused.to admit the’

sanitarian without a search warrant. The sanitarian did

- not enter the house: 2 eae /,

On February 28, 1958, Sanitarian Gentry returned to -

spected the outside of the premises again. He did not ob:

serve the interior of the house? He then appeared before .

Magistrate Levin, one of the police magistrates of Balti-.

-more City, and swore out a‘ warrant for appellant’s arrest.

_ for violation of Baltimore City Code (1950 Edition), Article

- 12, Section 120, in that a nuisance, consisting of rat-in-. .

_festation, undue trash: and debris, was suspected in appel-

_ Jant’s house.and appellant: refused him entry thereto. On

- March 5, 1958, while seated in his automobile parked on

; the street, appellant was arrested bya police. officer, taken

to the station house, where he posted collateral, then re- -

leased pending trial. ~ .

On March 6,-1958, appellant was brought to trial, on the

charge laid in the wartant, before; Magistrate Rogers, one

of the Station House Magistrates of Baltimore City, in °

Northern District Police Station. Appellant, who had coun-

‘i

sel, waived a jury trial and freely elécted to be ttied by the

' magistrate. Appellant offered no evidence in his defense,

but 4ttacked the validity of the ordinance on constitutional are

- grounds. The, magistrate found: appellant guilty and im-

. posed a fine of $20.00 and costs. Appellant forthwith en-

’ tered‘an appeal.

4 On March 17, 1958, appellant emai in the Criminal”

- Court of’ Baltimore (Part II) (Oppenheimer, J.) for trial ©

_ de novo on his appeal, ‘in accordance with the local prac-

_ tice.* At the trial, appellant again attacked the ordinance

_ as being repugnant to the ConStitution of the United States _

and hence invalid. The court rejected his contentions, con-

victed him and sentenced him to pay a fine of $20.00 and

costs. The court delivered no opinion. ;

On June 16, 1958, appellant filed in the Court of Appeals

of Maryland a timely-petition for certiorari to the Criminal

Court of Baltimore to review his conviction. In the: petition

he again assailed the ordinance on constitutional ‘grounds. _.

On April 25,1958, the Court of Appeals denied his _—

The court did“not file an Lua mar oe ;

How the federal questions are presented.

At every stage of the cause, appellant’ vigorously attacked

Baltimore City Code (1950 Edition), Article 12, Section

. 120, the ordinance on which the prosecution is based, on

' ‘the grounds that the ordinance subjected him’ to an un-

reasonable and illegal search of his house, a wrongful tres-

pass upon his property and a wrongful taking thereof with-

_ out due process of law, all in violation of his constitutional

rights under the Fourth and Fourteenth Amendments to /

~—the-Constitution of thé United States, and was repugnant fia

& Infra, note 5.

to each of the Amendinents ‘and hence invalid ~R. 1, 9, 28, :

40, 44-46, 158, 159, 165-171). —

In the magistrate’s court, the court of fiat instance, the

attack was made by megns of an oral motion to dismiss - :

and an oral motion for a verdict of: “not-guilty.” Each was

denied by. the’ magisttate. ‘These motions and the. magis-

trate’s action thereon do not appéar of record, since, as is.

the ordinary practice in Baltimore City, the proceedings

_ of the magistrate were not recorded by a reporter. How-

ever, the magistrate’s. verdict of “guilty”, incorporating of .

necessity rejection of appellant’s motions and a finding in __

. favor of the validity.of the ordinance, appears of record in

this. cause in the docket. entries in the Criminal Court ‘of

Baltimore ( R. 1; 170). :

In the Criminal Court of ehencial. which sat as an ap-

pellate court in the instant cause,*:the validity. of the ordi- ~

nance was first drawn in question by appellant’s motion to _

dismiss, made orally in opén court and filed at the same ,°

‘time in writing, interposed’by appellant before pleading

to the charge (R. 9, 45, 46). The court deferred ruling:-on ©

the motion untii he had heard. testimony (R. 9):° At the

Close of the State’s evidence, appellant again raised the

question of the validity of the ordinance, now by means of |

. a motion for a verdict of “not guilty’, also made orally in’.

- open court (R. 39,40) and filed simultaneously in writing ©

. (R: 158, 159). The court then ‘denied both the motion to.

dismiss;. filed earlier, and the motion for a verdict of “not

guilty” (R.-1, 40). At the close of the entire case, .appel- ~

lant renewed both motions, but both were: again denied

by the court. (R. 44). Each of the court's ruling on ap-

- pellant’s several motions necessarily sustained the validity .

ns

4 Infra, note 5.

} cos et ae

: ° . . . ee hg 2

a oa %

> 2 s ¢ 7 ¥

of the ordinance“ag against appellant's objections on federal ec

constitutional grounds. — res ;

Thereafter, appellant again attacked the: = validity of thie

ordinance and again asserted ifs repugnancy to the Fourth

and Fourteenth Amendment in: his petition. for a ,

filed in the Court of Appeals of Maryland (R. 165-171).

Court of Appeals denied the petition, by sa ie

‘ereon (R. 170), without: an opinion, ati upholding 3

the validity f the ordinance.

‘Thus, throughout the proceeding, appellant claarty raised

the federal. questions which should have controlled. the

deterrhinations made by the several courts below. He con-

tended that proper decision of the issues so raised required

a finding ‘that the ordinance under -which. appellant was.

prosecuted was repugnant to at least one (the ‘Fourteenth )

of the federal constitutional ‘amendments relied. on ty ap-

pellant and hence invalid, necessitating a verdict favorable -

to appellant. But on évery, occasion. the rulings of the

courts below were in Sy al | the berngid of the ordinance.

Under the practice. in ‘ Baltimore ‘City, appellant, defen-

: dant i in a criminal cause originating before one of the sta-

tion house magistrates of the City, had no further appeal

. from. his conviction by the Criminal Court of Baltimore,

-~- which liSually functions as.a nisi prius: eourt,-but which

sat in this cause in the exercise of its special, appellate

jurisdiction.’ Upon denial by the Court:of Appeals of

Maryland, the ‘State’s court of last resort, of appellant's

5 Charter and Public Local Laws of Baltimore’ City ( 1949 Edition ),.

_ Section 411; Laws of Maryland, tQ53, Chapter 676; Annotated Code°

of Mary land (1951 Edition), Article 5, Section 94;40 Opinions of

the Attorney General of Maryland (1955) 641 >~Laws : of Mary-

‘land, 1957, Chapter 399, Section 4;° Annotated Code of Mary-

land (1957 Supplement), Article 5, Section 30; Brack v. State, 187 :

oe

Md. 542. | ee

. petition. for certiorari, addressed to»that court’s discretion- - e

af ary jurisdiction, é ‘the judgment and sentence. of the Crim- ia

ree ip the cause, rendered by. the highest court of Maryjand in

| which a décision: could-be had. From that peiguent and _

Ad sentence this appeal is brought here. =

THE QUESTION Ss ARE SUBSTANTIAL 4

Ap llant, defendant in-a criminal prosecution in the

* state courts of Maryland for violation of one of the health © |

ordinances of Baltimore City, urged that the ordinance was’ |

‘ invalid because repugnant to the Federal Constitution in’

that. it. subjected him to an unreasonable and unlawful |

- esearch of his residence in ‘violation of the Fourth Amerid- |

' .ment and without the due process ofglaw secured to him - |

by the Fourteenth Amendment. The: court below, in its |

an * verdict of “guilty”, without opinion, upheld the ordinance, "

' bringing the case within the purview of Title 28; United _

. States Code, Section 1257(2), the jurisdictional provision

relied on by appellant.

The causé presents portentous and pervasive issues aris- -

_ ing: from impingement of an attempted éxercise of the

. police powers of the Stafe, respecting protection of the.

public health, upon one of the fundamental tenets of indi-

vidual liberty basic to our free society, the individual’s —

right to be'secure in the privacy of his home from arbitrary

- intrusion by government officials without a search or other -

‘proper warrant. The. proposed search (inspection) consti- |

tuted just such an arbitrary, ui arranted and moewtul,

pe “invasion of: privacy,

omeren . o 4

ee ge ee ee ee ee. ee ee Se Le

—_—

a

6 knees Code of: Maryland (1987 Su aici Article 5, Sec:’

, OSS... .

ee Poulos 12 New Hasupshive, supra page 2, seems strikingly

o <* similar with regard to. the.steps taken below to attack the ordinance

Sot ae and-their efficaciotisness. in supporting jurisdiction . in this Court. :

a oil

+

é

ee u

This Court has said that: rye % @

_ “While the question has never. be een divectty decided

-by this court, it has always been’ assumed that one’s. |

house cannot lawfully be searched without a search es Se

- warrant a as afi incident to a lawful arrest there-.

ee iar . | sy

- “The search of.a private dwelling without a warrant |

is. in itself unreasonable -and abhorrent to our laws.’’® .

o>

‘As recently as Miller v. United States, is U S: ......, 78

S. Ct. 1189, 1195; 2 L. ed. 2d 1332,,.1337: (decided June 23;

. °1958), this Court saw fit to emphasize the sanctity. ‘of “the —

precious interest of privacy summed ‘up in th® ancient

adage that a. man’s house is his castle”, quoting the ree

marks’ ‘on that principle attributed to the Earl of Chatham: 4

“The poorest man may. in his cottage bid defiance to

“,all the forces of the srown. “It may be frail; its roof

- may. shake the wind ay blow through it; the storm.

‘ may. enter; the rain 1 may enter; but the King of Eng-

land cannot enter . All his force dares not cross the

threshold of the ruined: tenement!”

ie Aside fromthe question whether the Fourth Arsedicent

should be.given effect against the State in the. circum- —

stances of the instant cause,® it now seems settled that. —

-

&. Agnello v. United States, 269. U.S. 20, pA ae ae oe r

Id., at. page 32. cs

ib Appellant. expects,. if ‘granted a heating on the: merits of this ap-

peal, to present and to argue this- important question alsg for, while ~

. the ‘issue may be considered by many to be closed’ (4 ‘olf v. Colorado,

supra), respectable opinion to the contrary : seems to exist. (See dis-

Be opinion of Mr. Justice Black in Adamsen v.- California, Soe.

U. S. 46, 68, and opinions. in Wolf v..Colorddo, supra, of Mr. Justice

Black (338 U. S. 25, 40), concurring, and Mr. dpcsaite Rutledge (338

U. S- 25, 47), dissenting, ) | :

12 | | | & |

_ protection of the security of one’s privacy against arbitrary.

__ intrusion by ‘goverrment officers is among those guaranties

~_ basic to our free soviety, implicit in “the concep of ordere

' liberty”,,enforceable against the states through the Due

‘Process: Clause. Wolf v. Colorado, supra; Palko. v. Con-

necticut, supra; Twining v. New Jersey, supra. °

ae Wolf v. Colorado, 338 U. S. 25; 27, 28 (1949), in, deat

' ing with the question ‘whether a conviction in a State

court violated the Due Process Clause because evidence °

admitted at the tial would have gen excluded in a federal

prosecution because obtained in a manner offending the .

Fourth « ‘Amendment, this Court said: . ‘

“The security. of one’s privacy. against ‘arbitrary. in-.

". trusion by, the police — which is at the core of the

Fourth Amendment — is basic to a free. society. It is

. .., therefore implicit in ‘the concept of ordered liberty’ :

-. and as such enforceable against the States through the

Due Process Clause.’ The. knock at the door, whether

_ by day or night,-as a prelude to d search, without au-

thority of law but solely on the authority of the police, ,

did not need the commentary of- recent history to be

condemned. as inconsistent with the conception of

human rights enshrined in the history and basic’.eon-

stitutional docunients of English-speaking People.

. Accordingly, we have no hesitation in saying that

were a State affirmatively to sanction such police in-

cursion into rivacy,it would run counter to,the guar- .

o anty of the ourtednth “Amendment.” — :

If one were to read “health officers” in the place of “police”,

_.the Court’s statement would seem to apply with no less =

vigor to the instant case. Certainly the search here was

sought to be made solely on ‘the authority and convenience |

of the sanitarian and was affirmatively sanctioned, by the.

State | in the ordinances ==. /

ae . : é : 3 be :

: Bee

“Appellant was. well within his constitutional rights in +

refusing admittance to his home to the health officer who

had no warrant. He ‘ightfully refused to comply with an™

ordinance purporting to authorize an unlawful search of

- his house without a warrant, District of Columbia v. Little;

85 U.S. App. D. C242. The instant case involves problems _

quite similar to those sought to be presented to this Court —

> in that- ‘case. District of Columbia. v. Little, 339 U. S. 1.

There the defendant-reepondent was convicted in the:

trial court of interfering with a District of Columbia health

officer by locking the door to her home, segs the officer

admittance and protesting her constitutional right to be

secure from his search or inspection in the absence of a

Warrant. Two intermediate reviewing courts’ found that

the conviction was erroneous, on constitutional grounds,

and the District petitioned this Court for certiorari.

There the obverse side, i.e. “important questions con-

Neerning legal provisigns for protecting the health of the

people by special said peviodiic inspection and elimination ©

of potential sources of disease” (339 U. S., at pages 1, 2-3),

of the very same questions here involved was: apparently’

_ thought to be of sufficient importance to warrant this

_ Court’s granting certiorari on application of the govern--

ment. That the’ questions are now brought hereon the

appeal of the citizen, and-from the other side of the case,

‘would. not seem to lessen their weight and importance.

Indeed, since appellant claims ‘to seek, in his defensé, no

more than enforcement of one. of the fundamental guaran-

. ties of. individual liberty a to our system of paisa

Wie, TL. ittle. aye Disteiet of Colunibia, Municipal ‘Court .of Appeals ‘for

the bistrict of Columbia, 62 A. 2d 874. District of Columbia v. kittle,

United. States Court of Appeals for the District of Columbia Circuit, |

supra. ee .

; t

. 14

| ment, considerations. even - - graver than protection of the

public health would now seem-to militate in. favor of this

Coyts entertaining the issues. in the ‘instant case. .

_ Little appears. to be the only case heretofore brought to.

‘this Court directly ‘presenting, or approaching, the par-

ticular .coriflict here involved between the essential safe-

guards against unreasonable searches afforded the indi-

_ vidual under federal constitutional guaranties and the

~ necessaty exercise by the government (of. the state or

other political subdivision) of its police. power to protect |

the-public héalth. Jurisdiction would:seem to be sustained .

(as to the substayitive questions) and plenary consideration

warranted in the instant case by Little alone. While that

‘case arose directly under the Fourth Amendment, that dis-

similarity in the two-cases would seem. to be obviated. by

the holding in Wolf v. Colorado that the Fourth Amend-

mer®’s prohibition ‘against unreasonable searches ds en-

; forceable’ against the States. ;

$f course, in Little, this Court declivied: ‘6 ‘Serie the ;

constitutional questions, applying instead its policy to dis? “,

pose’ of a cause’ on non-constitutional grounds where the >

‘record permits, ‘and this despité that ‘such disposition

(which was favorable to defendant-respondent) there

rested on’ determination by this Court of an interpretative

question ° (whether tyespondent’ s statements and actions

constituted | “Interference” with the. health officer within —

the meaning of the pertinent statutes and regulations of |

the District) which the lower courts had not decided.”

tis / “@ f 7

11 District-of Columbia v./Little, 339 U. S. 1. Two justices dis- ’

sented and advanced the dictum that “. . . the duties wHich' the in-

. spector was seeking to perform, under the authority of the District,

were. of such a reasonable, general, routine, accepted and important

chagacter, in the protection of the public health and safety, that they

were being performed lawfully without such a search w arrant as is

150

In the instant case, thiewvalidity of the search authorized

by the ordinance, which appellant asSails on constitutional

~~ grounds, is squarely in issue and was clearly and neces-

~ sarily ruled on by the lower courts. Indeed, the claimed -

invalidity of the ordinance constituted appellant’s chief,

© and almost-sole, defense. While no opinions were delivered

below, it is noteworthy that the Court of Appeals of Mary-.

land, the state’s highest tribunal, had, in another quite

similar earlier case, carefully considered the specific ques- -

tions here involved, i.e. the validity of Section 120 and the

legality of an inspection sought to be made thereunder by

a Health Department officer without a warrant as against

the Fourth and Fourteenth Amendments, and had fully

expressed itself in support of the validity and constitution-

ality of the ordinance. Givner v. State of Maryland, 210 .

. Md. 484." The rule of Givner was of course binding on

Pe the trial magistrate and on the Criminal Court of Baltimore.

°

- The determinations of federal constitutional principles

‘made in Givner collide head-on with exactly contrary

,. holdings on essentially the same ‘(in view of Wolf v. Colo- -

rado, supra) issues made by the United States;Court of

- required by the Fourth Amendment to protect the right of the people .

to bé secure in their persons, houses, papers;‘and effects against un-

reasonable searches and seizures.” 339 U.'S., at pages 1,.8-9. The

existence and tenor of the dissent’ would seem to point up the. im-

portance of the problem. — a | -

12 In Givner, representatives of the Commissioner of Health, the ..

Building Inspection Engineer arid the Fire Department, an Electrical -

Inspector an a uniformed policeman requésted permission to enter °

defendant-appellant’s apartment,to make inspections and were refused

entry. Defendant was then indicted and convicted for violating three

provisions of the Baltimore City Code. The -first count charged viola-

tion of Article. 12, Section 120 of that Code.

And compare Powtos v. New Hampshire, supra, in which this Court,

_ took into consideration an interpretation of the ordinance there at?

_ tacked made by the state court in a ease other than the principal

} oe one_(345 U. S. 395, 402). ,

a

\

"@

16.

pene for the District of Columbia Circuit in.District of

Columbia »v. Little, supra, where it was held by the ‘ma-

ae _jority. that-under-the Fourth Amendment against unreason-

_ able searches, the defendant-respondent was within her

constitutional rights in refusing admittance to her home >

‘to a health inspector without a warrant. The chief basis

of the decision in Givner seems to have. been the Maryland

court’s: feeling that the proposed inspection there was not

“a search for evidence to prove guilt of a crime” (210 Md...

484, 504), which would admittedly have been abhorrent /

—uander either the Fourteenth Amendment or Maryland law, >

and that the inspection was hence. beyond the pale of the

protective Amendment. a Similar reasoning, i.e. that’ the

Fourth Amendment relates only to searches in connection

with criminal prosecutions or enforcement of penalties, “

- and does not affect matters such as health department in-

spections, which are said to be civil, rather than criminal,

_ in nature, seems to have motivated. the dissenting opinion

_in the United States Court of Appeals in Little, supra. A

ready answer to this proposition, as well as to other argu-

ments in support of the Givner rule, is advanced in the com-

prehensive and well-reasoned majority opinion in Little in.

the United States Court of Appeals: S

“It is said to us that therefore there is no orohibition j

‘ against ‘searches of private houses by government .

officers, unless they are searching for evidence of crime;

_. that if they’are searching for evidence of crime, they -

_ must get.a search warrant, but that if they are search-

ing for something else or are just searching, they need

not get.a search warrant; for searchers of the latter

sort, we are told, home owners must open their front —

doors upon demand of. an. officer without a, warrant.

* The Maryland court seemed to have been impressed by the fact

that this Court avoided deciding the COTRHOTIORTE question in Little

(210 Md. -484, 499, 500). e

6 | | 17

The argument is wholly without merit, preposterous

in fact. The basic premise of the prohibition against -_

searches’ was the common-law right-of a man

:

soiviine te his newcn: & TEE t which is one of the indis-

— ultimate essentials of our concept of civiliza-

tion. . . . It was not related to crime or to suspicion of

_ crime. ‘It belonged to all men, not merely to criminals, .

"real or suspected. -.. . To say that a man suspected of |

- crime has a right to protection against search of his

home without a warrant, but that a man not suspected

of -crime has -no such pemrection, is a fantastic ab-

-_surdity:”"*

: And there is-no lack of opinion. in this Court Gateinaiig

the invasion of private dwellings by government. officials

without the intervention of a magistrate or other judicial

officer. Agnello v. United States, supra; Harris v. United

. States, 331 U.S. 145; Davis v. United States, 328 U. S. 582;

Johnson v. United States, 333 U. S. 10; McDonald v. United 3

States, 335- U. S. 453; Wolf v. Colorado, supra; Miller v.

"United States, supra; Jones v. United States, ..... Uv: S..

78 S. Ct. 1253, 2 L. ed. 2d 1514.

+ The constitutional questions herein discussed were fairly.

raised below, are substantial and important. Their deter-

mination will affect large numbers of property owners and

‘others in Baltimore City and elsewhere in municipalities _

and political subdivisions having comparable health regu-

lations. The only two reported cases in the country which

have treated the constitutional problem, Givner and Little, -

~ appear to be directly ‘opposed. It is submitted that the con-'

clusions reached: in Little by the United States Court of

Appeals are supported by the better reason and authorities

and that, in part for the same reasons as are therein stated,

the Criminal Court of swans which obviously and-

- 85 U. ‘Ss. “App. 2s. 242, 245- 246.

18

necessarily followed _Givner, erred in denying. appellant's

several motions which sought to resolve the issues in his

- Appel-

; lant believes that the problems presented by this appeal

— including that of “the appropriate balancing of the lib-

erty of the (people) and the convenience of the (health —

officers)’ — are substantial, are of public importance and.

merit pany consideration by this Court. y

Respectfully submitted, .

BENJAMIN Liesrrz,

+ 1525 Mathieson Building,

_ Baltimore 2, Maryland,.

Counsel al Appellant.

ad raping Lord Simian. | in Christie v. Lncihinas 1 All

E. R. 567, 576,:as quoted in the dissent of Mr. Justice Frankfurter.

in Harris v. United States, 331 U. S. 145, 170, in regard to the prob- _

. lem of “the appropriate balancing in the words of Lord Simmonds, of

‘the libert}? of the subject and the convenience of: the police’.” Words

_ .in brackets in the text above are, of course, supplied.

Wee ey

‘APPENDIX -

The judgment below (from. the docket entries in‘ the

Criminal Court of Baltimore) : tei ESA Si

Appeal Docket 1958. |

“January Term.

Number 103. i . :

March, 6, 1958—Appeal Certificate from thé Northern.

_ Distriet of Baltimore City — filed. Traverser tried and |

- found Guilty by Magistrate Henry, L. Rogers, on March

6th, 1958 and fined $20.00 and costs $1.70.

Charge—Violation of Section 120 of Article 12 of Balti- +

more City Code in that a nuisance‘is suspected at premises

4335 Reisterstown Road, owned by Aaron Frank, consisted +

of rat infestation, undue trash and debris and said Aaron

Frank has refused entry to said premises to said W. H.

Gentry. - 6 \ ee

; “* * a a “* * ad

March 17, 1958—Verdict: Guilty. |

March 17, 1958—Fined $20.00 and costs — Oppenheimer,

Judge ($20.00 paid in Northern District).’ :

* See * * *-

OY ee em :