O'Bean v. State, 43855

• Decision Date: 28 March 1966
• Docket Number: No. 43855,43855
• Citation: 184 So.2d 635
• Parties: Dorothy O'BEAN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 635

184 So.2d 635

Dorothy O'BEAN v. STATE of Mississippi.

No. 43855.

Supreme Court of Mississippi March 28, 1966.

H. T. Carter, Billy J. Jordan, David J. Whitaker, Jr., Columbus, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice.

Appellant was found guilty of possession of intoxicating liquor by the Circuit Court of Lowndes County and sentenced to pay a fine of $100 and the costs of court. She appeals.

The only assignment of error is that the affidavit praying the issuance of the search warrant did not allege any facts or circumstances from which a neutral and detached magistrate could find probable cause for the warrant to issue.

The appellant cites in support of this position a recent decision of the United States Supreme Court, Aguilar v. State of Texas, 378 U.S. 108, 84A S.Ct. 1509, 12 L.Ed.2d 723 (1964), which sets forth the standard by which probable cause shall be determined under the Fourth Amendment to the United States Constitution.

Some years ago the Fourth Amendment standards of the Federal Constitution were not required to be followed by the state courts and were in fact not followed by this Court as illustrated by the case of Nash v. State,171 Miss. 279, 157 So. 365 (1934), wherein we held, in dealing with a similar situation, the following:

But it is said that we should modify or overrule these cases and conform to the decisions of the Supreme Court of the United States upon the same subject, and that the effect of the case of Nathanson v. U.S., supra (290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159), was to overrule the Mississippi cases referred to.

The provisions of the Fourth Amendment to the Federal Constitution against unreasonable searches and seizures have no application to state proceedings. Smith v. Maryland, 18 How.(U.S.) 71, 15 L.Ed. 269; National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S.Ct. 209, 58 L.Ed. 504; Bolen v. Nebraska, 176 U.S. 83, 87, 20 S.Ct. 287, 44 L.Ed. 382; and other cases cited in part 2 USCA, title 'Constitution,' page 461. (171 Miss. at 281, 282, 157 So. at 366.)

However, the former day is gone and we are constrained to follow the decisions of our highest court in regard to the standard that must be applied by the state courts in determining probable cause, as in Ker v. State of California, 374 U.S. 23, 83A S.Ct. 1623, 10 L.Ed.2d 726 (1963), it was held:

We specifically held in Mapp (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)) that this constitutional prohibition is enforceable against the States through the Fourteenth Amendment. This means, as we said in Mapp, that the Fourth Amendment 'is enforceable against them (the states) by the same sanction of exclusion as is used against the Federal Government,' by the application of the same constitutional standard prohibiting 'unreasonable searches and seizures.' 367 U.S., at 655, 81 S.Ct., at 1691, 6 L.Ed.2d 1081. We now face the specific question as to whether Mapp requires the exclusion of evidence in this case which the California District Court of Appeals has held to be lawfully seized. (374 U.S. at 30, 31, 83A S.Ct. at 1628, 10 L.Ed.2d at 736)

We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the 'fundamental criteria' laid down by the Fourth Amendment and in opinions of this Court applying that Amendment. Findings of reasonableness, of course, are respected only insofar as consistent with federal constitutional guarantees. As we have stated above and in other cases involving federal constitutional rights, findings of state courts are by no means insulated against examination here. See, e.g., Spano v. (People of State of) New York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265 (1267) (1959); Thomas v. (State of) Arizona, 356 U.S. 390, 393, 78 S.Ct. 885, 887, 2 L.Ed.2d 863 (866) (1958); Pierre v. (State of) Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538-539, 83 L.Ed. 757 (760) (1939). While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental-i.e., constitutional-criteria established by this Court have been respected. (374 U.S. at 33, 34, 83A S.Ct. at 1630, 10 L.Ed.2d at 738.)

It is our duty, therefore, to make the determination of probable cause in the light of Fourth Amendment standards. The pertinent parts of the affidavit upon which the search warrant was issued are:

This day S. N. Massey, Police Officer, came and personally appeared before the undersigned * * * Ex-officio Justice of the Peace * * * and makes oath that he has reason to believe, and does believe, that intoxicating liquors are being * * * sold * * * and this belief is not feigned or malice against the said occupants but is founded on creditable information in that the affiant has been informed by a creditable person that such is a fact. * * *

The warrant itself contains the following language:

Whereas, S. N. Massey, Police Officer has this day made complaint on oath, before the undersigned in and for said county, that he has reason to believe and dos believe, that intoxicating liquors are being manufactured or possessed, sold, or offered for sale, or given away, in violation of law in the dwelling house * * * used or occupied by Occupants * * * in that he has been informed by a creditable person that such is the case, and the undersigned, after having examined and considered the affidavit, and also after having heard and considered evidence in support thereof, doth find that probable cause for the issuance of a search warrant in the premise does exist. (Emphasis added.)

In considering an affidavit in support of an application for a search warrant, in Aguilar v. State of Texas, 378 U.S. 108, 84A S.Ct. 1509,12 L.Ed.2d 723 (1964), the Court held that an evaluation of the constitutionality of a search warrant should begin with the rule that the informed and deliberate determinations of magistrates empowered to issue warrants are to be...