House search ruled legal

Appeal of seizure of sports-betting evidence fails, 5-2

Conviction stands

Court finds police first let in by burglar acted within bounds

April 17, 2001|By Laura Cadiz | Laura Cadiz,SUN STAFF

The Maryland Court of Appeals upheld the conviction of a Brooklyn Park man on gaming charges yesterday in a divided opinion on the prosecution's use of evidence found by police searching his house for burglars.

The evidence in George Wengert's home, including papers and $42,000 in cash, were legally seized because police - after catching a burglary suspect there - observed them in plain view while checking the house for other intruders or victims, the state's highest court held on a 5-2 vote.

"It was reasonable for the officers to enter the house for the safety of the residents and to investigate whether there were additional suspects or victims in the house," Judge Irma S. Raker wrote for the majority. The 20-page decision upheld the October 1999 Anne Arundel Circuit Court convictions of Wengert and his son Joshua for running an illegal sports betting operation.

Cynthia E. Young, Wengert's lawyer, said she views the court's ruling as contrary to the Fourth Amendment, which protects private homes from unreasonable search and seizure. "The Court of Appeals seemed to indicate that once the officers are in the premises, their right to be in the premises doesn't seem to expire," she said.

Young had argued that the items taken by police after the October 1998 burglary in the 300 block of Edison St. were the result of an illegal search. It was the burglary suspect who had let police inside the home - and claimed it was his grandmother's house.

As one police officer questioned the suspect - Bryan J. Meyers of Baltimore, later convicted of burglary - two other officers checked the house and found in the basement a stack of money on a television set, a pick sheet, a fax machine and a sports pager, according to the ruling. The officer questioning the suspect also noticed a paper on the coffee table that appeared to be a tally sheet for recordkeeping of drugs or gambling.

The officers, believing the items to be evidence of gambling, called in the Police Department's vice squad. After Wengert arrived home, a vice detective told him that he suspected a gambling operation was being conducted there and the owner consented to a search. The police then seized $42,000 in cash, which was on top of the television and in a closet, and other items.

The high court ruled that the officers who discovered the evidence did not need a warrant to call in the vice detective because they could have initially seized the evidence.

Young had maintained that Wengert's consent to the search was tainted because the initial search was illegal, and the evidence should have been suppressed because the police officers' entrance into the house was illegal.

"Obviously they had the right to search the rooms," Young said. "Once you have secured the house from that standpoint, there's no longer exigent circumstances. The clock stops, and once the clock stops, you can't restart it without a warrant."

Gary E. Bair, an assistant Maryland attorney general, had argued that police satisfied the Fourth Amendment requirements because they were investigating a crime in progress and saw in plain view the evidence of the gambling operation.

He said yesterday the court's ruling confirms "that if the police are lawfully in a home, regardless of why they're there, they can look around and if they see evidence of a crime, they can act on it."

In the dissenting opinion, Chief Judge Robert M. Bell, joined by Judge John C. Eldridge, wrote that Wengert was twice victimized during the situation - by the burglar and the police. He wrote that leaving money on top of a television in a room with a fax machine may be unusual but is not evidence of illegal activity and does not make it apparent that the homeowner is involved in gambling.

Bell concluded that the search was illegal and Wengert's consent thereby tainted.

"I am far from convinced," he wrote, "that what the officers observed in that sweep provided probable cause that [Wengert] was violating the law."

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