Opposition Brief — Bratburd v. Maryland

In THE

Supreme Court of the United States

OcTOBER TERM, 1952

EDDIE BRATBURD anpb

RUTH E. BRATBURD,

Petitioners,

vs.

STATE OF MARYLAND,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF MARYLAND

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Hatt HAMMOND,

Attorney General,

KENNETH C. PROCTOR,

Assistant Attorney Gencral,

J

Attorneys for Respondent,

1201 Mathieson Building,

Baltimore 2, Maryland.

The Daily Record Co., Baltimore 3, Md.

wagen oe THIS ©

Nae s

II.

III.

INDEX

TABLE OF CONTENTS

STATEMENT OF THE CASE ooooooooooooooocccceececccees ie

QUESTIONS PRESENTED .................... Rien fine

STATEMENT OF THE FACTS ...............000.ccccccccccccccecccccececeas

ARGUMENT:

I.

Was the Use of the Evidence Obtained by Wire-

tapping a Deprivation of Petitioners’ Rights

Under the 14th Amendment to the Constitution

of the United States? ..

Was the Statute Under Which Petitioners

Were Prosecuted Null and Void, Resulting in a

Deprivation of Petitioners’ Rights Under the

Fourteenth Amendment to the Constitution of

the United States? ..

Was the Search and Seizure Warrant Executed

in this Case Null and Void, Resulting in a De-

privation of Petitioners’ Rights Under the

Fourteenth Amendment to the Constitution of

the United States? 0.00.

CONCLUSION

TABLE OF CITATIONS

Cases

Bratburd, et al. v. Dawson, et al.,... Md... , 88 A. (2)

Bratburd, et al. v. Dawson, et al., 101 F. Supp. 414

Goldman v. United States, 316 U.S. 129, 86 L. Ed. 1322 8,11

RIT, AE ee ann

PAGE

13

17

18

2

2

PAG

Goldstein v. United States, 316 U.S. 114, 86 L. Ed. :

BE cited te ercincslce tanta aihatetnad daacavanictouncatdeobatines sess 8,11

Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 294,

Ss MS I I gd decides inciaiedlamonaiepbachieessviinneees 11, 16, 17

Hitzelberger v. State, 174 Md. 152, 165-169... 10, 11

Leon, et al. v. State, 180 Md. 279, 283, 285 0.00... 10,11

McGuire, et al. v. Amrein, et al., 101 F. Supp. 414 |... 2

Nardone v. United States, 302 U.S. 379, 82 L. Ed. 314 6

Nardone v. United States, 308 U.S. 338, 84 L. Ed. 307 7

Neal v. State, 316 U.S. 680, 86 L. Ed. 1757... 10

Olmstead v. United States (1928), 277 U.S. 438, 464

466, 72 L. Ed. 944, 950-951... ... 5,9, 10, 11

On Lee v. United States, .. U.S. .., 96 L. Ed. (adv.

shts.) 770 .. ; 9

Patterson v. Stanolind & Gas Co., 305 U. S. 376, 379,

83 L. Ed. 231, 233 .. eA

People v. Kelley, 122 P. (2d) (Cal. ) 655, 137 P. (2d)

(Cal.) 1. 10

People v. Kelley, 320 US. ‘115, 88L. Ed. 420; rehearing

den. 321 U.S. 802, 88 L. Ed. 1089... . 10

Rowan v. State, 175 Md. 547, 559... ...... 10, 11

Silverthorne Lumber Co. v. United States, 251 U.S.

I I 7

Stefanelli v. Minard,. U.S... , 96 L. Ed. (adv. shts.)

99, and footnote 12... ee FS

Weiss v. United States, 308 U.S. 321, 4 L. Ed. 298 7

Wolf v. Colorado, 338 U.S. 25, 93 L. Ed. 1782 12

Statutes

Annotated Code of Maryland (1947 Supp.) Article

35, Section 5, as amended by the Laws of 1951,

Chapters 704 and 710 . 11

Annotated Code of Maryland (1939 Ed.), Article 25A,

Section 3(A) (Express Powers Act) 13, 14, 16

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Fi RERRR LEE PDI CBOE I NIN REI I OLE IE EE EO ES

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iii

PAGE

Chapter 483, Laws of General Assembly of sei

alte Dilatte sass cuaninondossiatredociesthaididnadsbadniecssc 14

Constitution of Maryland:

Article 11A | Np MPMisidic isecehdacinteliccsiionsoncse chosaitesces 13

Article 11A, Section 1. iedieenptais sdesdcidsucdicnsacvenebaicascoiee 15

Constitution of United States:

I ic cescaspannsasnocecaccsemcses 5,9

Fourteenth Amendment ......._........... 2,3, 4, 13,17

Declaration of Rights of Maryland... 11

Federal Communications Act of 1934 (47 US.C.A.

SE Rishitls deena ialibiratdomitetiepicnminananseciosancesnes 5, 7, 8,9, 10, 11

Montgomery County Code ( Md. ) (1950 Ed.):

Een 14, 16

Section 50-3 .......... lemons 1, 13, 16

IE TIE sites ssndonsnncicsose iT DORR Me 14, 16

Montgomery County Charter (Md. ):

Article II, Section 4 (Montg. Co. Code, p. xxvii) 15

Article IX, Section 6 (Montg. Co. Code, p. xliv 15

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In THE

Supreme Court of the United States

RNAS LONELY EE ee |

| Ocroser Tero, 1952 ‘

|

EDDIE BRATBURD anp

RUTH E. BRATBURD,

Petitioners,

vs.

STATE OF MARYLAND,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF MARYLAND

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

This is a petition for a writ of certiorari to the Court of

Appeals of Maryland. Petitioners were arrested in Mont-

gomery County, Maryland, under State warrants which

charged them with violation of Section 50-3 of the Mont-

gomery County (Maryland) Code, 1950 Edition; viz. having

in their possession various items of gambling paraphernalia

including “lists, slips and records on numbers drawn in a

lottery” (4-5).* Petitioners filed motions to dismiss the

warrants, assigning several grounds for such motions (2-3).

These motions were overruled by Judge Woodward.

* References are to appendix to Petitioners’ brief.

— oa RE ee A —

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2

Thereupon, Petitioners filed in the United States District

Court for the District of Maryland a bill for an injunction

against Walter A. Dawson, State’s Attorney for Montgom-

ery County, and three police officers of that County. By

that bill, Petitioners sought to enjoin the divulging of the

contents of telephone conversations learned by the defen-

dants in that case by tapping the telephone wires leading to

Petitioners’ home. That bill of complaint was dismissed by

District Judge W. Calvin Chesnut. McGuire, et al. v. Am-

rein, et al. and Bratburd, et al. v. Dawson, et al., 101 F. Supp.

414. See also Stefanelli v. Minard, 96 L. ed. (Adv. Sh.) 99

and footnote 12.

Thereupon, the cases against Petitioners were tried in the

Circuit Court for Montgomery County, Maryland. Each Pe-

titioner was tried separately before Judge Prescott and a

jury. Numerous exhibits were offered in evidence which

had been obtained by the execution of a search and seizure

warrant obtained as a result of the wire-tapping. In each |

case, the jury rendered a verdict of guilty. Each Petitioner

was sentenced to serve six months in the Montgomery

County (Maryland) jail and to pay a fine of $500.00 and

court costs (1).

Appeals were taken from those judgments to the Court

of Appeals of Maryland. The judgments were affirmed by

a unanimous court in an opinion by Judge Delaplaine (78

84),.. Md. , 88 A. (2d) 446.

QUESTIONS PRESENTED

I.

Was the Use of the Evidence Obtained by Wiretapping a

Deprivation of Petitioners’ Rights Under the Fourteenth

Amendment to the Constitution of the United States?

PE REINS ERS NNER O

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II.

Was the Statute Under Which Petitioners Were Prose-

cuted Null and Void, Resulting in a Deprivation of Petition-

ers’ Rights Under the Fourteenth Amendment to the Con-

stitution of the United States?

III.

Was the Search and Seizure Warrant Executed in This

Case Null and Void, Resulting in a Deprivation of Petition-

ers’ Rights Under the Fourteenth Amendment to the Con-

stitution of the United States?

STATEMENT OF THE FACTS

Beginning with June 17, 1951, and extending through

June 22, 1951, members of the Police Department of Mont-

gomery County investigated Petitioners and the premises

8869 Piney Branch Road, Silver Spring, Maryland (a two

story dwelling owned by them.) Petitioners were sus-

pected of violating the gambling laws of Montgomery

County (5-15). During that period, Corporal Kenneth W.

Watkins and Officer Reuben D. Hett tapped the telephone

wires leading to such premises and to the telephone lo-

cated in such premises bearing number Shepard 0925 (a

non-published number listed to Petitioner Eddie Bratburd)

(5, 6-7). Asa result of that wire tap, the police overheard

numerous telephone conversations, to and from the sus-

pected premises, concerned with lottery bets. Such con-

versations were related in considerable detail in the sworn

application for a search and seizure warrant executed by

Corporal Watkins on June 26, 1951 (7-15). The application

was supported by the affidavit of Officer Hett (16-18).

Based upon the facts set forth in the application, Judge

Woodward determined that there was probable cause to be-

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4

lieve that the gambling laws of Montgomery County were

being violated in the premises referred to above and issued

a search and seizure warrant on June 27, 1951, directed to

Corporal Watkins, commanding him to enter the premises

8869 Piney Branch Road, Silver Spring, Maryland and

search for and seize any and all gambling paraphernalia |

prohibited by such laws (18-30). On the same day the |

warrant was executed, a report and return were made to

Judge Woodward showing the seizure of numerous items in-

dicating violation of the gambling laws (30-32).

ARGUMENT

I.

WAS THE USE OF THE EVIDENCE OBTAINED BY WIRETAPPING

A DEPRIVATION OF PETITIONERS’ RIGHTS UNDER THE 14TH

AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES?

Petitioners contend that the use of evidence, secured by

wiretapping, in the obtention of the search and seizure war-

rant issued in this case and in the actual trial of the case

deprived Petitioners of their rights under the Fourteenth

Amendment to the Constitution of the United States. It

is conceded by the State that the search and seizure war-

rant was issued upon a sworn application wherein the facts,

which the trial court found constituted probable cause, had

all been obtained by means of wiretapping. The State de-

nies, however, that any of the testimony adduced by the

State in the trial below was concerned with evidence ob-

tained by means of intercepted telephone communications.

The only testimony of this nature was brought out by the

defense in the trial of the case against Petitioner Eddie

Bratburd (transcript of testimony in that case pages 13-

14). It is true that the State offered, and the trial court

admitted, the application and the search and seizure war-

rant. However, that was merely to prove the legality of

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the entry of the police into Petitioners’ home; there is no in-

dication that either the application or the search and seizure

warrant was read to the jury.

The history of decisions of the courts and legislation re-

garding the use of evidence obtained by means of wire-

tapping is briefly as follows:

In the case of Olmstead v. United States, (1928) 277 U.S.

438, 464-466, 72 L. Ed. 944, 950-951, the Supreme Court of the

United States held that wiretapping “did not amount to a

search and seizure within the meaning of the 4th Amend-

ment”; that, therefore, evidence obtained by means of wire-

tapping was admissible, even though obtained by unethical

or illegal means.

Subsequent to that decision, the Congress of the United

States enacted the Federal Communications Act of 1934

(47 U.S.C.A. 605), which reads as follows:

“No person receiving or assisting in receiving, or

transmitting, or assisting in transmitting, any inter-

state or foreign communication by wire or radio shall

divulge or publish the existence, contents, substance,

purport, effect, or meaning thereof, except through au-

thorized channels of transmission or reception, to any

person other than the addressee, his agent, or attorney,

or to a person employed or authorized to forward such

communication to its destination, or to proper account-

ing or distributing officers of the various communicat-

ing centers over which the communication may be

passed, or to the master of a ship under whom he is

serving, or in response to a subpoena issued by a court

of competent jurisdiction, or on demand of other lawful

authority; and no person not being authorized by the

sender shall intercept any communication and divulge

or publish the existence, contents, substance, purport,

effect, or meaning of such intercepted communication

to any person; and no person not being entitled thereto

shall receive or assist in receiving any interstate or

6

foreign communication by wire or radio and use the

same or any information therein contained for his own

benefit or for the benefit of another not entitled thereto;

and no person having received such intercepted com-

munication or having become acquainted with the con-

tents, substance, purport, effect, or meaning of the

same or any part thereof, knowing that such informa-

tion was so obtained, shall divulge or publish the exis-

tence, contents, substance, purport, effect, or meaning

of the same or any part thereof, or use the same or any

information therein contained for his own benefit or

for the benefit of another not entitled thereto: Pro-

vided, That this section shall not apply to the receiving,

divulging, publishing, or utilizing the contents of any

radio communication broadcast, or transmitted by ama-

teurs or others for the use of the general public, or re-

lating to ships in distress.”

Since the passage of that Act, the Supreme Court of the

United States has decided six cases construing it.

In Nardone v. United States, 302 U. S. 379, 82 L. Ed. 314,

the petitioners had been indicted, tried, convicted and sen-

tenced under charges of smuggling alcohol, possession and

concealment of smuggled alcohol and conspiracy to smuggle

and conceal it. In the trial of the case, Federal agents had

testified, over petitioners’ objection, to the substance of pe-

titioners’ interstate telephone communications which had

been intercepted and overheard by the witnesses. The only

question presented by that appeal was: did the Federal

Communications Act of 1934 apply to the United States of

America and to Federal officers? After considering the

rule of exclusion of the sovereign, this Court held that the

statute did apply on the principle “that the sovereign is

embraced by general words of a statute intended to prevent

injury and wrong”.

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7

Nardone v. United States, 308 U.S. 338, 84 L. Ed. 307. At

the second trial of the case, at which evidence concerning

the telephone messages was excluded, the question pre-

sented was whether the Act did not also make incompetent

testimony which had become accessible by the use of unlaw-

ful wiretapping. Relying upon the decision in the case of

Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64

L. Ed. 319, this Court held that the Act should be so con-

strued; that “If knowledge of them (facts) is gained from

an independent source that may be proved like any others,

but the knowledge gained by the Government’s own wrong

cannot be used by it simply because it is used derivatively”

(italics supplied).

Weiss v. United States, 308 U.S. 321, 84 L. Ed. 298. The

petitioners had been indicted, tried, convicted and sen-

tenced under charges of using the mails to defraud and

conspiracy so to use them. The charge was based upon al-

leged fraudulent insurance claims. Verbatim transcriptions

of intrastate telephone messages, obtained by means of

wiretapping, were used as evidence in the trial. They were

used in the following manner: Certain defendants who had

turned State’s evidence, were put on the stand and handed

transcripts of certain telephone messages. The witness was

asked whether he could repeat the conversations verbatim.

Upon his statement that he could not do so without the use

of the typed transcriptions, he was permitted to read them

to the jury. In addition to this, phonograph records and

typewritten transcripts, which had been identified by such

witnesses, were admitted into evidence. The primary ques-

tion presented by this case was the applicability of the Fed-

eral Communications Act of 1934 to intrastate communi-

cations. This Court held that if the means of communica-

tion tapped by the Government agents are susceptible of

use in intrastate as well as interstate communication, then

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the Act makes it unlawful to divulge such messages, it being

immaterial whether or not the lines cross State boundaries.

Goldstein v. United States, 316 U. S. 114, 86 L. Ed. 1319.

The petitioner was indicted, tried, convicted and sentenced

under charges of using the mails to defraud and conspiracy

so to use the mails. The question presented by this case was

whether the sanction for violation of the Federal Communi-

cations Act of 1934 should be extended so as to make it

available to one who was not a party to the intercepted

communications. This Court held that the rule should not

be so extended and affirmed the decision below, which had

permitted testimony concerning intercepted telephone com-

munications as against the petitioner who was not a party

to such communication. In that case, the parties to the

telephone communications had testified concerning the sub-

stance of such communications. In so holding, this Court

said:

“We are of opinion that even though the use made of

the communications by the prosecuting officers to in-

duce the parties to them to testify were held a violation

of the statute, this would not render the testimony so

procured inadmissible against a person not a party to

the message. This is the settled common law rule.

There was no use at the trial of the intercepted com-

munications, or of any information they contained as

such. If such use as occurred here is a violation of the

Act, the statute itself imposes a sanction.”

Goldman v. United States, 316 U.S. 129, 86 L. Ed. 1322.

The petitioners had been indicted, tried, convicted and sen-

tenced for conspiracy to violate a provision of the Bank-

ruptcy Act “by receiving, or attempting to obtain, money

for acting, or forebearing to act, in a bankruptcy proceed-

ing”. The particulars of the charges were that certain law-

yers had conspired together to rig the sales price of bank-

ruptcy assets. Federal officers had obtained evidence con-

. pert ot

SWART LER LENGE OIE ETM ELS EAE HE TR SE AS OP ps a BE as a

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9

cerning telephone messages by use of a detectaphone, which

had a receiver so delicate that when played against the par-

tition wall between two rooms it could pick up the conver-

sations taking place in the adjoining room. This Court held

that evidence concerning such messages obtained in the

manner stated was properly admitted by the trial court;

that use of the detectaphone was not a violation of the

Fourth Amendment. The Court was unable to distinguish

the question presented from that raised in Olmstead v.

United States, supra.

On Lee v. United States, decided by the Supreme Court

of the United States on June 2, 1952, ... U.S. .., 96 L. Ed.

(Adv. Shts.) 770. The petitioner had been charged with

violation of the narcotics laws. The Government under-

cover agent was “wired for sound”, having a small micro-

phone in his inside overcoat pocket and a small antenna run-

ning along his arm. Conversations between the agent and

petitioner were thus broadcast to another agent located out-

side petitioner’s place of business. That agent was per-

mitted to testify as to the conversations overheard by him

as a result of the broadcast. This decision was affirmed in

an opinion by Mr. Justice Jackson. The Court held that

this did not amount to an unlawful search and seizure such

as is proscribed by the Fourth Amendment and that the

action of the Government agents did not constitute wire-

tapping, and did not, therefore, violate the provisions of the

Federal Communications Act of 1934. The Court said:

“There was no interference with any communications fa-

cility which he (petitioner) possessed or was entitled to

use. He was not sending messages to anybody or using a

system of communications within the Act”.

The Court of Appeals of Maryland has decided three

cases, in addition to the one here under consideration, which

were concerned with the admissibility of evidence obtained

as a result of wiretapping, all of which were subsequent to

the decision of the Supreme Court of the United States in

the case of Olmstead v. United States, supra, and the enact-

ment of the Federal Communications Act of 1934 (47

U.S.C.A. 605). Hitzelberger v. State, 174 Md. 152, 165-169;

Rowan v. State, 175 Md. 547, 559, and Leon, et al. v. State,

180 Md. 279, 283, 285. In Leon, et al. v. State, supra, the

appellant filed with the Supreme Court of the United States

a petition for the writ of certiorari under the title of Neal

v. State, 316 U. S. 680, 86 L. Ed. 1757, which petition was

denied. Likewise, in the case of People v. Kelley, 122 P.

(2d) (Cal.) 655, 137 P. (2d) (Cal.) 1, which was decided

adversely to the contention here made by Petitioners, an

appeal was taken to the Supreme Court of the United States

and was dismissed, 320 U.S. 715, 88 L. Ed. 420. Rehearing

was denied by this Court, 321 U.S. 802, 88 L. Ed. 1089. In

Leon, et al. v. State, supra, the Court of Appeals of Mary-

land, although recognizing that the ban against the inter-

ception and divulgence of telegraph or telephone commun-

ications extended, under the Federal Communications Act

of 1934, to intrastate as well as interstate messages held

that “in view of the decision in the Olmstead case, * * *

evidence procured by wiretapping is not prohibited in the

state courts, either by the Federal Constitution or by the

Federal Communications Act”.

The decisions of the Maryland Court of Appeals referred

to above were based upon the common law rule — in

effect in Maryland — that the admissibility of evidence is

not affected by the illegality of the means by which it is

obtained. This rule, that the admissibility of evidence is

not affected by the unethical or illegal manner by which

it is obtained, was recognized by the Supreme Court of the

United States in the case of Olmstead v. United States,

av <

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supra, and has been followed as recently as the decisions in

Goldstein v. United States, supra, and Goldman v. United

States, supra. The only exception, in Maryland, to this

rule is in the trial of misdemeanors where the evidence,

sought to be introduced, is obtained by an illegal search

and seizure. Annotated Code of Maryland, 1947 Supple-

ment, Article 35, Section 5, as amended by the Laws of

1951, Chapters 704 and 710. This exception does not apply

to the present case for the reason that wiretapping does not

constitute a search and seizure. Olmstead v. United States,

supra; Hitzelberger v. State, supra; Rowan v. State, supra;

Leon, et al. v. State, supra. If evidence obtained by such

means is admissible at the trial, a fortiori it can be used in

applying for a search and seizure warrant.

The cumulative effect of the decisions just discussed is

that the use of intercepted telephone communications in

the trial of criminal cases is not absolutely forbidden under

any and all conceivable circumstances even in the Federal

courts. In any event, where such use is forbidden, the

basis for the decision is the Federal Communications Act

of 1934 — not the Constitution of the United States. Conse-

gently, this petition does not present to this Court a ques-

tion of whether or not Petitioners have been deprived of

any of their rights under the Constitution of the United

States.

Referring to the authorities cited by Petitioners, among

others, they rely upon the Declaration of Rights of the

State of Maryland. Attention is called to the fact that in

the case of Hannis Distilling Co. v. Baltimore, 216 U. S. 285,

294, 54 L. Ed. 482, 486, the Supreme Court of the United

States held as follows:

“* * * Beyond dispute, in the Carstairs Case the

court of last resort of Maryland upheld the act here in

controversy as an exertion of the taxing power of the

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state, and in so doing declared that it but reiterated and

re-expounded rulings by it previously made. It follows

that, as for the purposes of a review by this court of

alleged questions concerning the repugnancy of the

taxing act to the Constitution of the United States, the

decision of the state court, maintaining, under the state

Constitution, the validity of the taxing power which

the act exerted, was binding upon this court, it must

result that contentions to the contrary are so devoid of

merit as to present no substantial Federal question.

Castillo v. McConnico, 168 U. S. 674, 42 L. ed. 622, 18

Sup. Ct. Rep. 229. * * *”

See also Patterson v. Stanolind Oil & Gas Co., 305 U. S. 376,

379, 83 L. Ed. 231, 233. In the recent decision of the Supreme

Court of the United States in Stefanelli v. Minard, U.S.

, 96 L. Ed. (Adv. Shts.) 99, petitioner had sought equi-

table relief from the United States District Court to pre-

vent the use of evidence obtained as a result of an allegedly

unlawful search and seizure in a criminal trial in the New

Jersey courts. In affirming the decision of the trial court,

which dismissed the complaint, this Court, through Mr.

Justice Frankfurter, said (101):

“We hold that the federal courts should refuse to in-

tervene in State criminal proceedings to suppress the

use of evidence even when claimed to have been

secured by unlawful search and seizure.”

Petitioners also rely upon the case of Wolf v. Colorado,

338 U. S. 25, 93 L. Ed. 1782. However, examination of that

case indicates that it is authority for respondent’s conten-

tion rather than for the claims of Petitioners. The Court

reaffirmed previous decisions of the Court to the effect

that “due process of law” is not shorthand for the first eight

Amendments. The Court held that “in a prosecution in a

State court for a State crime the Fourteenth Amendment

does not forbid the admission of evidence obtained by an

unreasonable search and seizure”.

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13

It is respectfully submitted, therefore, that no Federal

question is presented by this petition and that the prayer

of the writ should be denied.

Il.

WAS THE STATUTE UNDER WHICH PETITIONERS WERE PROS-

ECUTED NULL AND VOID, RESULTING IN A DEPRIVATION OF PE-

TITIONERS’ RIGHTS UNDER THE FOURTEENTH AMENDMENT TO

THE CONSTITUTION OF THE UNITER STATES?

Next, Petitioners contend that the Act under which they

were prosecuted was null and void, and that, therefore, they

were deprived of their rights under the Fourteenth Amend-

ment to the Constitution of the United States. The claim

that such Act was null and void is based upon the theory

that, by the adoption of the charter form of government in

Montgomery County, this particular statute was repealed.

This claim was carefully considered by the Court of Appeals

of Maryland (79-81), and it was held that the statute under

which the prosecution was instituted was “still in force”.

In arguing this point, Petitioners assert that, by virtue

of the provisions of the Constitution of Maryland, Article

11A, and of the Express Powers Act (Annotated Code of

Maryland (1939 Edition), Article 25A), Section 50-3 of the

Montgomery County Code (1950 Edition) is no longer in

force and effect. Petitioners argue that the combined effect

of the constitutional provision authorizing the Charter

Form of Government and of the Express Powers Act, en-

acted pursuant to that provision, is that when Montgomery

County adopted a charter form of government Section 50-3

was automatically repealed and, therefore, is no longer in

force and effect. In support of this argument, they refer

to the provisions of the Annotated Code of Maryland (1939

Edition), Article 25A, (Express Powers Act), Section 3(A),

which provides as follows:

LALA MALLET ELIE LOT RE IIT

14

“Local Legislation.

To enact local laws for such county, including the

power to repeal or amend local laws thereof enacted

by the General Assembly upon the matters covered by

the express powers in this Article granted; to provide

for the enforcement of all ordinances, resolutions, by-

laws and regulations adopted under the authority of

this Article by fines, penalties and imprisonment, en-

forceable according to law as may be prescribed, but

no such fine or penalty shall exceed $100.00 for any

offense or imprisonment for more than six months.”

Petitioners also refer to the provisions of Section 50-7

(Mont. Co. Code, 1950), which reads as follows:

“Any person or persons, house, company, association

or body corporate, upon conviction for violation of any

of the provisions of this chapter, shall be subject to a

fine of not exceeding $1,000 or imprisonment in jail for

a period of not more than one year, or both such fine

and imprisonment, in the discretion of the Court.”

Petitioners contend that as Section 50-7 provides for a fine

in excess of $100 and for imprisonment in excess of six

months, it is contrary to the provisions of Article 25A, Sec-

tion 3( A), supra, and is no longer in effect and the sentences

imposed by the trial court in these cases thereunder are

void and of no effect.

Sections 50-1 to 50-8 ( Mont. Co. Code, 1950) were enacted

by the Laws of 1924, Chapter 483. They have not been either

repealed or amended by the General Assembly of Maryland

since that date and are, therefore, in full force and effect,

unless a repealer was effected by the adoption of the charter

form of government in Montgomery County. It is respect-

fully submitted that the adoption of the Charter had no such

effect.

BLEED THROUGH POOR COPY

15

The Constitution of Maryland, Article 11A, Section 1, in

part, provides as follows:

“* * * if qa majority of the votes cast for and against

the adoption of said charter shall be in favor of such

adoption, the said charter from and after the thirtieth

days from the date of such election shall become the

law of said City or County, subject only to the Consti-

tution and Public General Laws of this State and any

public local laws inconsistent with the provisions of

said charter and any former charter of said the City of

Baltimore or County shall be thereby repealed.” (Ital-

ics supplied. )

Petitioners do not contend that there is any inconsistency

between the provisions of the Charter adopted by Mont-

gomery County and the public local law in question. As a

matter of fact, no such contention can successfully be made.

The Charter for Montgomery County, Article II, Section 4,

deals with the specific legislative powers of the County

Council and, in part, provides that such Council is autho-

rized to “Enact public local laws for the County and repeal

or amend local laws for the County heretofore enacted by

the General Assembly upon the matters covered by the Ex-

press Powers Act of 1918 (Article 25A, Annotated Code of

Maryland, Edition 1939) as now in force or hereafter

amended, * * *” Mont. Co. Code, 1950, p. xxvii. Article IX

of the Charter deals with Transitory Provisions. Section 6,

Existing Laws, provides as follows:

“The public local laws of Montgomery County and

all regulations, rules, and ordinances of the County

Commissioners acting in any capacity, in force at the

time this Charter becomes law, are repealed to the

extent that they are clearly inconsistent with provi-

sions of this Charter, but no further, and all other such

public local laws, regulations, rules, and ordinances

shall continue in full force and effect until repealed or

amended.” Mont. Co. Code, 1950, p. xliv.

aap

16

There being nothing inconsistent between the provisions

of the Charter and the provisions of Section 50-1 to 50-8 of

the Montgomery County Code (1950 Edition), the latter re-

mains in full force and effect.

In addition to this, it is to be noted that under the An-

notated Code of Maryland, Article 25A, Section 3(A), re

ferred to above, the power of a County which has adopted a

Charter under the home rule amendment to enact local

laws for such County includes “the power to repeal or amend

local laws thereof enacted by the General Assembly”. This

provision shows quite definitely that, in the absence of an

inconsistency between a public local law and the provisions

of a charter, public local laws are not per se repealed but

remain in effect until and unless repealed by legislation by

the County Council. Then and only then would the limita-

tion on maximum fine and imprisonment apply. Section

3(A) of Article 25A does not in any way provide that public

local laws, which were enacted by the General Assembly

prior to the adoption of a charter form of government and

which have not been repealed by County Council legislation

and which are not inconsistent with the provisions of the

Charter, shall be automatically repealed if the penalty pro-

vided exceeds $100 or if the provision for imprisonment

exceeds six months. It necessarily follows, therefore, that

Sections 50-3 and 50-7 remain in full force and effect. There

is, therefore, no substance to this contention of Petitioners.

Finally, as no Federal question is presented by this pe-

tition, the rule announced in Hannis Distilling Co. v. Balti-

more, supra, and Patterson v. Stanolind Oil and Gas Co.,

supra, applies. See also Stefanelli v. Minard, supra.

17

ITI.

WAS THE SEARCH AND SEIZURE WARRANT EXECUTED IN THIS

CASE NULL AND VOID, RESULTING IN A DEPRIVATION OF PE-

TITIONERS’ RIGHTS UNDER THE FOURTEENTH AMENDMENT TO

THE CONSTITUTION OF THE UNITED STATES?

Finally, Petitioners claim that the search and seizure war-

rant executed by the police in this case was null and void

because issued by a Judge who was not authorized to issue

such a warrant under what Petitioners contend was the

applicable statute; that, therefore, Petitioners were de-

prived of their rights under the Fourteenth Amendment

to the Constitution of the United States.

This point was urged in the argument of the case before

the Court of Appeals of Maryland and was decided ad-

verscly to Petitioners, the Court saying (81):

“Therefore, although the warrant under attack was

issued by the Chief Judge of the Circuit Court to au-

thorize the search for gambling paraphernalia ‘as pro-

hibited by Section 50-3 of the Montgomery County

Code,’ and although Section 50-5 of that Code autho-

rizes only Justices of the Peace and the Clerk of the

Circuit Court to issue search warrants, yet the Chief

Judge had authority to issue the warrant under the

Maryland search warrant statute. It is not essential

to the validity of a search warrant that it shall mention

the particular statute by authority of which it is issued.”

As stated under the previcus point, as no Federal question

is presented by this petition, the rule announced in Hannis

Distilling Co. v. Baltimore, supra, and Patterson v. Stano-

lind Oil and Gas Co., supra, applies. See also Stefanelli v.

Minard, supra.

18

CONCLUSION

It is respectfully submitted that there is no merit to any

of the contentions raised by Petitioners in their petition

and brief and that there is no Federal question presented

for the consideration of this Court, and that, therefore, the

petition should be denied.

Respectfully submitted,

HALL HAMMOND,

Attorney General,

KENNETH C. Proctor,

Assistant Attorney Gencral,

Attorneys for Respondent,

1201 Mathieson Building,

Baltimore 2, Maryland.

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