The question presented on this appeal is whether the lottery slips admitted in evidence — and the evidence of habitual violation of the liquor laws — were lawfully obtained by a search of defendant's residence incident to lawful arrest under a warrant charging her with operating a disorderly house at her residence. This court has repeatedly held that, after and as an incident of a lawful arrest, made with or without a warrant, an officer may contemporaneously search the person of the offender, and search for and seize the tangible evidence or instrument of the crime, whether upon his person or within his use and immediate control or within his use and immediate control or possession. "The room of the traverser in which the commission of the crime was observed would be within the rule with respect to the instruments and evidence of the crime." Silverstein v.State, 176 Md. 533, 540-541, 6 A.2d 465, 468. Cf. Lawrence v.State, 103 Md. 17, 37, 63 A. 96; Bass v. State, 182 Md. 496, 506, 35 A.2d 155; Hill v. State, 190 Md. 698, 702, 59 A.2d 630, 631, citing Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399. If defendant had been arrested for engaging in a fist *Page 158 fight on the street in Rockville — or Baltimore — the nature of the charge would have furnished no occasion for a search of her residence incident to arrest. But, as is stated in the opinion of the court, the use of a house as a place where infractions of the law such as illegal sales of liquor or gambling or illegal betting are habitually carried on constitutes a disorderly house.State v. Williams, 30 N.J.L. 102, 111; Meyer v. State,41 N.J.L. 6; Court of Errors and Appeals, 42 N.J.L. 145. As the opinion shows, when the warrant was issued there was ample reason to believe that illegal (i.e., unlicensed) sales of liquor were habitually made in the house. A search, incident to the arrest, for unopened, opened and empty beer and whiskey bottles, which were evidence and instruments of the unlawful business that made the house a disorderly house, was therefore a right and a duty of the police who made the arrest. Whatever the exact shape, size or location of the pasteboard box or wastebasket, the search for bottles, glasses and other instruments of illegal sales of liquor was not an unreasonable search and was sufficient to disclose these lottery slips. There seems to be no reason or authority for restricting the search to the particular room of the alleged disorderly house in which the arrest was made. Harris v. UnitedStates, supra, 331 U.S. at page 152, 67 S. Ct. 1098, 91 L. Ed. 1399 and cases cited. In a sense it may seem peculiarly artificial to distinguish between one room and another in a four-room bungalow. But there is no more reason for restricting the search of a thirty-room "speakeasy" upon arrest of the proprietor for operating it.
In the instant case the greater part of the opinion of the court is devoted to discussion of Supreme Court cases under the Fourth and Fifth Amendment, especially the four latest cases,Harris v. United States, supra; Johnson v. United States, 1948,333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436; Trupiano v. UnitedStates, 1948, 334 U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663, andMcDonald v. United States, 1948, 335 U.S. 451, 69 S. Ct. 191. It is said that the rule in Maryland, under the Bouse Act, *Page 159 excluding evidence procured by an illegal search, is the same as the rule in the federal courts, under the Fourth and Fifth Amendments, and therefore the decisions in the federal courts are precedents in this state, "but this court is not bound to follow all federal cases as precedents." The opinion does not say which of the Supreme Court cases cited are to be followed or how far they are to be followed. It is impossible to reconcile all the Supreme Court cases and the cases in this court discussed or cited in the opinion. The Supreme Court, in its three latest search and seizure cases, has apparently held to be inherent in the Fourth Amendment a rule that a search or seizure, even when incident to a lawful arrest, is not lawful when made without a search warrant, except in an "emergency" when there is not sufficient time to obtain a search warrant. In the Harris case,supra, the accused was arrested in his apartment under a warrant charging violation of the mail fraud statute. His apartment was thoroughly searched for two canceled checks and any other means by which the crime charged might have been committed. In this search draft cards, property of the United States, possession of which was a federal offense, were discovered. Upon this evidence the accused was convicted of violation of the selective service act. It was held that this evidence was not obtained in violation of the Fourth Amendment and use of it was not a violation of the Fifth Amendment. The court said: "The Fourth Amendment has never been held to require that every valid search and seizure be effected under the authority of a search warrant. Search and seizure incident to lawful arrest is a practice of ancient origin and has long been an integral part of the law-enforcement procedures of the United States and of the individual states. The opinions of this Court have clearly recognized that the search incident to arrest may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate control. Thus in Agnello v. United States, supra, 269 U.S. [20] at page 30, 46 S.Ct. [4], at page *Page 160 5, 70 L. Ed. 145, it was said: `The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.' It is equally clear that a search incident to arrest, which is otherwise reasonable, is not automatically rendered invalid by the fact that a dwelling place, as contrasted to a business premises, is subjected to search. Nor can support be found for the suggestion that the search could not validly extend beyond the room in which petitioner was arrested. Petitioner was in exclusive possession of a four room apartment. His control extended quite as much to the bedroom in which the draft cards were found as to the living room in which he was arrested. The cancelled checks and other instrumentalities of the crimes charged in the warrants could easily have been concealed in any of the four rooms of the apartment. Other situations may arise in which the nature and size of the object sought or the lack of effective control over the premises on the part of the persons arrested may require that the searches be less extensive. But the area which reasonably may be subjected to search is not to be determined by the fortuitous circumstance that the arrest took place in the living room as contrasted to some other room of the apartment." [Footnotes omitted.] Harris v. United States,331 U.S. 145, 150-152, 67 S. Ct. 1098, 1101, 91 L. Ed. 1399. Four justices dissented. Nine months later the Johnson case,supra, and four months thereafter the Trupiano case, supra, were decided by the vote of one justice who had concurred and the four who had dissented in the Harris case, the other four who had concurred in the Harris case dissenting. The decision in the Trupiano case is concisely summarized in Chief Justice Vinson's dissenting opinion: "Federal officers, following a lawful arrest, seized contraband materials which *Page 161 were being employed in open view in violation and defiance of the laws of the land. Today the Court for the first time has branded such a seizure illegal. Nothing in the explicit language of the Fourth Amendment dictates that result. Nor is that holding supported by any decision of this Court." 334 U.S. 710-711, 68 S. Ct. 1229, 1235, 92 L. Ed. 1663. The opinion of the court, in a paragraph partly quoted in the opinion of this court, all but in terms overruled the Harris case, "leaving it to another day" to declare expressly that the Harris case was overruled "by the rule that search warrants are to be obtained and used whenever reasonable practicable".
It is no proper concern of this court to approve, disapprove or predict the consequences of a decision of the Supreme Court. It is, however, appropriate to point out, when no federal question is before us, that a particular Supreme Court case or cases cannot be followed by us without overruling our own decisions (which we claim no right or power to do) and that, if followed, such cases would make a greater departure in Maryland law than in federal law. Without repeating the oft-told tale of the origin of federal and state constitutional provisions regarding searches and seizures, it is pertinent to note that before the Revolution the colonies were aggrieved, not by searches without a search warrant, but by searches made under search warrants authorized and issued under Acts of Parliament which did not adequately safeguard the issuance or the scope of such warrants. The question in Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746, was the constitutionality of an Act of Congress. Many other Supreme Court cases have involved the construction of Acts of Congress and the constitutionality of such acts, as construed. One statute authorizing issuance of search warrants was passed in 1789, 1 Stat. 29, before the Fourth Amendment was proposed by Congress, and two more in 1790, 1 Stat. 145, and 1791, 1 Stat. 199, before the amendment was ratified. Up to three years ago 37 such statutes had been passed. [See list in appendix to dissenting opinion *Page 162 of Mr. Justice Frankfurter in Davis v. United States, 328 U.S. at pages 616-623, 66 S. Ct. 1256, 90 L. Ed. 1453.] The Volstead Act broadly imposed duties, and conferred powers, to seize, with or without a warrant, liquors illegally transported or possessed and the automobile, boat or other vehicle in which they were found. A supplemental act, 42 Stat. 223, § 6, qualified these powers by making it a misdemeanor to "search any private dwelling * * * without a warrant directing the search" or "without a search warrant maliciously and without reasonable cause [to] search any other building or property." These statutes were construed (and, so construed, held constitutional) as authorizing, without a warrant, search of an automobile on a highway, seizure of liquor therein, and arrest, the court saying, "In cases where the securing of a warrant is reasonably practicable, it must be used, and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause." Carroll v. UnitedStates, 267 U.S. 132, 156, 45 S. Ct. 280, 286, 69 L. Ed. 543, 39 A.L.R. 790. It may be that other statutes couple authority to search with a requirement, absolute or conditional, of a search warrant.
In Maryland there is no such maze of statutes. At common law the scope of search warrants was very limited. The Act of 1939, ch. 749, Code, Art. 27, secs. 306, 307, seems to be the only statute on the subject. The statute is general in terms, but apparently was passed because of the decision of this court, inSugerman v. State, 173 Md. 52, 59-60, 195 A. 324, that there was no statutory authority for a search warrant to search an automobile. Cf. Asner v. State, 193 Md. 68, 65 A.2d 881. No statute requires a search warrant in any case or in any way narrows the common law right of search incident to a lawful arrest. For this court to hold that this right no longer exists, or no longer can *Page 163 be exercised without obtaining a search warrant "wherever reasonably practicable," would be sheer judicial legislation.
To follow the McDonald case, supra, it would be necessary for this court to overrule its own repeated decisions that only those whose property is invaded by an unlawful search or seizure may object to the admission of evidence so obtained. Resnick v.State, 183 Md. 15, 36 A.2d 347; Frank v. State, 189 Md. 591,56 A.2d 810. In the McDonald case (for reasons not clear from the four different views of the six justices who concurred in the decision) an unlawful entry into the room of the keeper of a rooming house was held to make evidence obtained elsewhere in the house inadmissible as against one of her tenants and also as against a "guest" of his, i.e., a partner in crime.
Judge HENDERSON authorizes me to say that he concurs in this opinion. *Page 164