State v. Owens

• Decision Date: 11 February 1924
• Docket Number: 24186
• Parties: THE STATE v. ALFRED OWENS, Appellant
• Court: Missouri Supreme Court

259 S.W. 100

302 Mo. 348

THE STATE v. ALFRED OWENS, Appellant

No. 24186

Supreme Court of Missouri

February 11, 1924

Appeal from Stone Circuit Court; Hon. Fred Stewart, Judge.

Reversed.

Lyons & Ristine, amici curiae.

(1) Sections 11 and 23 of Article II of the Missouri Constitution are practically identical with the Fourth and Fifth Amendments to United States Constitution, and while United States Constitution is only applicable to acts of Federal agents, the Federal decisions are pertinent in arriving at proper interpretation of our own Constitution. (2) Had defendant made no objection to introduction of liquor illegally seized until offered in evidence at the trial, this court has held the evidence properly admitted. State v Pomeroy, 130 Mo. 489; State v. Sharpless, 212 Mo. 176. (3) In this case timely motion to suppress was made before trial, and the admissibility of the whiskey in evidence depended upon the legality of search and seizure rather than character of article seized, and since the search and seizure herein was unreasonable and illegal, and timely motion to suppress was filed, it should have been sustained and evidence excluded. State v. Pope, 243 S.W. (Mo App.) 253, 256; State v. Allen, 246 S.W. 925; United States v. Folloco and United States v. Ross, 277 F. 75; Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652; Silverthorn Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319; Gouled v. United States, 255 U.S. 298, 65 L.Ed. 647; Amos v. United States, 256 U.S. 313, 65 L.Ed. 654; Burdeau v. McDowell, 256 U.S. 465; Holmes v. United States, 275 F. 49; Dukes v. United States, 275 F. 142; State v. Andrews, 114 S.W. (W. Va.) 260; People v. Case, 190 N.W. 290; Youman v. Commonwealth, 224 S.W. 890; People v. Margelis, 186 N.W. 488; People v. Foreman, 188 N.W. 375; Ash v. Commonwealth, 236 S.W. 1032; Helton v. Commonwealth, 243 S.W. 918; People v. 738 Bottles of Intoxicating Liquor, 190 N.Y.S. 477; People v. Markhausen, 204 Mich. 559; Tucker v. State, 90 So. 845; State v. Sheridan, 121 Iowa 164; Blum v. State, 94 Md. 375; State v. Salmon, 73 Vt. 212; Pitts v. State, 80 So. 510. (4) Unreasonable searches and seizures are oppressive and intolerable, should not be encouraged but discouraged at every opportunity.

Jesse W. Barrett, Attorney-General, and Geo. W. Crowder, Special Assistant Attorney-General, for respondent.

(1) A search and seizure without a search warrant is not ipso facto unreasonable or unlawful. United States v. Snyder, 278 F. 658; O'Connor v. United States, 281 F. 396; United States v. Rembert, 284 F. 996; United States v. Borkawski, 268 F. 412; Elrod v. Moss, 278 F. 123; In re Mobile, 278 F. 949; Lambert v. United States, 282 F. 413. (2) No right of property exists in intoxicating liquor. It is declared by law to be contraband. Sec. 6601, R. S. 1919; National Prohibition Act, 41 U.S. Stat. 315; United States v. Fenton, 268 F. 221. (3) Contraband articles, or things having no status as property and not susceptible of ownership, cannot be said to be within the protection of the Constitution against unreasonable searches and seizures, nor within the protection of Section 23 of Article 2 of the Constitution of Missouri providing that no person shall be compelled to testify against himself in a criminal case. Art. 4, Const. United States; United States v. Fenton, 268 Fed. (D. C.) 221; City of Sioux Falls v. Wasler, 187 N.W. (S. D.) 821; State v. Flynn, 36 N.H. 64; State v. Banks, 93 So. 293; O'Connor v. United States, 281 Fed. (D. C.) 396; State v. Simmons, 110 S.E. 591; Brent v. Com., 240 S.W. 45. (4) The whiskey seized by the sheriff in this case, being contraband, was admissible in evidence even though obtained by an unlawful or an unreasonable search, and this notwithstanding a timely motion to suppress the evidence was filed. The court did not err in denying the motion. United States v. Fenton, 268 Fed. (D. C.) 221; City of Sioux Falls v. Wasler, 187 N.W. (S. D.) 821; Brent v. Com., 240 S.W. 45; People v. Mayen, 205 P. 435; State v. Magano, 117 A. 550; Pasch v. People, 209 P. 639; United States v. Hilsinger, 284 F. 585; United States v. Camoratta, 278 F. 385; United States v. Bateman, 278 F. 231. (a) The whiskey seized by the sheriff was the corpus delicti of the crime and being contraband, the State alone had a right to its possession and could take it where and when found. United States v. Herine, 276 F. 806; United States v. Fenton, 268 Fed. (D. C.) 221; City of Sioux Falls v. Wasler, 187 N.W. 821. (b) The seizure was not the seizure of the property or effects of the defendant. United States v. Fenton, supra. (c) Nor was its seizure any violation of the defendant's constitutional rights. United States v. Fenton, supra. (d) The whiskey stood as a forfeited thing before it was seized by the officer, and the defendant must be said to have become the willing source of evidence against himself when he willingly became the possessor of the forfeited article. United States v. Fenton, supra. (5) Appellant was committing a misdemeanor in the presence of the officer. This gave the officer the right of arrest without a warrant. State v. McNalley, 87 Mo. 44; State v. Flynn, 119 Mo.App. 712; State v. Dierker, 101 Mo.App. 636; Wehmeyer v. Mulvihill, 150 Mo.App. 197. (a) It was not necessary that the sheriff actually see the whiskey before he acted. There was probable cause for his act, arising out of the circumstances under his observation. This was sufficient. United States v. Snyder, 278 F. 658; Boeger v. Langenburg, 97 Mo. 396; In re Mobile, 278 F. 949; Elrod v. Moss, 28 F. 123; Ex parte Morrill, 35 F. 261.

White, J. Woodson, C. J., and Graves and Ragland, JJ., concur; James T. Blair, J., concurs, but thinks case should be remanded; David E. Blair, J., dissents in a separate opinion, in which Walker, J., concurs.

OPINION

WHITE

The appellant was convicted in the Circuit Court of Stone County on the charge of having in his possession a pint of whiskey, in violation of Section 6588, Revised Statutes 1919, as amended by the Act of 1921 (Laws 1921, p. 413).

The Attorney-General thus states the case:

"The evidence is short and shows that the defendant, Alfred Owens on or about January 13, 1922, was detained by the Sheriff of Stone County and searched without any warrant or process of any kind, and that a quantity of whiskey was taken from his pocket."

Defendant filed a motion to suppress the evidence discovered by the sheriff in that illegal search, because in violation of the provisions of the United States Constitution and the State Constitution relating to unreasonable search and self-incrimination. The motion was overruled, and the defendant was convicted upon evidence of the sheriff and his deputy. The sheriff testified that Owens was not doing anything at the time; he did not know whether he was drunk or sober; did not arrest him for drunkenness; did not place him under arrest at the time he searched him. The charge which was made against him was after the sheriff had searched him and found the whiskey. The sheriff did not see nor smell any whiskey; he had no knowledge of it. His deputy came to his house and told him "there was a man full of booze." The deputy did not designate the defendant, nor anybody, and gave no further information. The sheriff first called up the prosecuting attorney and wanted to know if he had a right to search a car without a search warrant. Mr. Renfro, the prosecuting attorney, told him he did. The sheriff interpreted this instruction with the utmost liberality, and applied it to persons as well as cars. He took a chance when he saw Owens coming out of a restaurant, seized him and took a pint bottle of whiskey out of Owen's hip pocket. The sheriff, according to his own account of the matter, tempered this violence with a gentle touch, for Owen "never hollered nor made no big noise" in protest of the unconventional proceeding.

I. The principal question for determination in this case is whether evidence obtained by an illegal search of the defendant's person was admissible in evidence against him. Several cases are pending in this court in which that question arises under varying states of fact, and it is important to consider certain general principles which may be applicable to all.

We are not now considering the right of an officer to search a person lawfully arrested, and take from him, to be used in evidence against him and to assist in procuring his conviction, any article which may connect him with the commission of a crime. The right is recognized by authorities generally. [Holker v. Hennessey, 141 Mo. 527, l. c. 539; State v. Jeffries, 210 Mo. 302, l. c. 325; State v. McIntosh, 94 S.C. 439.] Nor is this a case which brings into question the right of an officer to arrest, without a warrant, a person whom he has reason to suspect has committed a felony. This is a misdemeanor case. [State v. Cushenberry, 157 Mo. 168, l. c. 181; State v. Moore, 235 S.W. l. c. 1058; State v. Peters, 242 S.W. 894, l. c. 896.] Likewise it is not a case where a misdemeanor is committed in the presence of the officer who makes the arrest, because it is admitted that the defendant was within the peace of the State so far as conduct was concerned and it was only by the illegal search that his offense was discovered.

II. The guaranty against unreasonable search and seizure provided in the Fourth Amendment to the Constitution of the United States, and the provision in the Fifth Amendment that a defendant shall not be compelled to furnish evidence against himself, refer only to Federal officers and agents and have no effect upon the operation of State officials and other persons not clothed with Federal authority. [Weeks v United States, 232...