Opinion
[H.C. No. 31, October Term, 1952.]
Decided May 13, 1953.
CRIMINAL LAW — Narcotic Laws — Violations of — Evidence Procured By Illegal Search and Seizure, Admissible. In prosecutions for violations of the narcotic laws, the fact that evidence was obtained by an illegal search and seizure does not make it inadmissible. pp. 643-644
HABEAS CORPUS — Evidence — Search and Seizure, Illegal. The legality of a search and seizure by which evidence was obtained cannot be raised on habeas corpus. p. 644
Decided May 13, 1953.
Habeas corpus proceeding by Jerome Barr against Warden of Maryland House of Correction. From a refusal of the writ, petitioner applied for leave to appeal.
Reporter's Note: Petition for certiorari filed July 23, 1953. Certiorari denied October 12, 1953. 346 U.S. 839.
Before SOBELOFF, C.J., DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
This is an application for leave to appeal from a denial of the writ of habeas corpus by Judge Herman Moser, of the Supreme Bench of Baltimore City.
The petitioner was tried and convicted in the Criminal Court of Baltimore on November 11, 1951, on a charge of violation of the narcotic laws, and received a sentence of ten years in the House of Correction.
The petitioner complains that the evidence used against him was secured by an illegal search and seizure and was, therefore, inadmissible. Article 27, § 368 of the Code (1951 Ed.) provides that in prosecutions in violation of narcotic laws, Article 35, § 5 of the Code (1951 Ed.), commonly referred to as the "Bouse" Act, shall not apply. The petitioner seeks to escape the effect of this by claiming that the exception, as applied to him, deprives him of his constitutional rights. This contention has been answered adversely by Salsburg v. State, 201 Md. 212, 94 A.2d 280. See also Stevens v. State, 202 Md. 117, 95 A.2d 877; Clark v. State, 202 Md. 133, 96 A.2d 253; (both decided this Term); and State Ex Rel. Beard v. Warden, Maryland House of Correction, 193 Md. 715, 67 A.2d 236.
Petitioner made application for an appeal from a denial of the writ once before. See Barr v. Warden, Maryland House of Correction, 200 Md. 657, 90 A.2d 216. In that application, he made the contention he now makes as to the inadmissibility of the evidence claimed to have been secured by an illegal search and seizure. The Court held that the legality of a search and seizure may not be raised for the first time on habeas corpus. See Dodson v. Warden, Maryland House of Correction, 201 Md. 655, 92 A.2d 754; and Presley v. Warden, Maryland Penitentiary, 201 Md. 660, 92 A.2d 754. If the question were before us for decision, Stevens v. State, and Clark v. State, supra, would be in point and adverse to the petitioner's contention.
Application denied, with costs.