Benge v. Com.

• Decision Date: 20 February 1959
• Citation: 321 S.W.2d 247
• Parties: Ernest BENGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 247

321 S.W.2d 247

Ernest BENGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 20, 1959.

William J. Weaver, Lewis & Weaver, London, for appellant.

Jo M. Ferguson, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., J. Milton Luker, Commonwealth's Atty., London, for appellee.

STEWART, Judge.

Ernest Benge was convicted of the offense of having in his possession intoxicating beverages for the purpose of sale in local option territory, and was adjudged to pay a fine of $50 and serve 30 days in jail. Additionally, the judgment entered required him to execute a peace bond in the penal sum of $1,000. He has moved for an appeal, urging several grounds for reversal.

One of the main issues raised determinative of this appeal is whether Benge's motion should have been sustained to quash the evidence of his alleged crime obtained as a result of the search of his residence. The accused's conviction will stand or fall, dependent upon the legality or illegality of this search. Since we have concluded the evidence in question was procured in an unlawful manner, and, therefore, the above motion should have been sustained, it becomes unnecessary to pass upon any of the other contentions advanced for reversal.

These are pertinent facts in this case. At the October 1957 term of the grand jury of the Laurel Circuit Court indictments were returned against Benge, his wife Helen and one Virgil Bowling, who boarded with the Benges, charging them with selling alcoholic beverages in local option territory. Subsequently bench warrants issued ordering the arrest of these three persons which were placed in the hands of the sheriff.

The last part of October, 1957, two deputy sheriffs and a constable went to the Benge residence and, finding no one at home except Helen, his wife, a bench warrant was served on her and she was taken into custody. The house was then thoroughly searched and six half-pints of gin and eight cases of beer were found. Some of the gin and beer was located in a closet in one of the back rooms and the remaining portion in the refrigerator and under the stove in the kitchen. The record does not disclose the attitude of Benge's wife toward the search, as she did not testify. From the testimony of the officers who made the search, we gather that she did not consent to it.

Benge's wife was lodged in jail in London and from this place she telephoned her husband on long distance at Dayton Ohio, where he was then working, to come to her aid and effectuate bail for her release. He returned to London and upon his arrival a bench warrant was served upon him similar to the one on which his wife had been arrested. Benge and his wife Helen were again indicted at the February 1958 term of the Laurel Circuit Court on the same charge as the one for which his wife, first, and he, next, had been arrested. This accusation was a joint one and has an evidentiary basis on the alcoholic beverages found in their home on the day Benge's wife Helen was arrested. Benge's conviction rests on this last indictment. He and his wife had become divorced by the time he was tried and she had departed from the state of Kentucky leaving behind the charge against her still pending.

It is admitted the officers had no search warrant when they arrested Helen Benge and afterwards proceeded to search the Benge home. As has been noted, the incriminating fruits from this search became the proof that resulted in Ernest Benge's indictment and conviction. He made timely motion to suppress this evidence which was overruled. For the purposes of this opinion, we are assuming if the search was lawful as to Helen Benge it would be lawful as to the accused, her husband.

The issue before us is whether the peace officers in making a lawful arrest of Helen Benge could, without a search warrant and in the absence of proof of consent, search the house where the arrest was made and, in case illegal or contraband goods were uncovered, these could be seized and introduced as competent evidence against her and her husband, Ernest Benge. A diligent investigation has failed to bring to light a case in this jurisdiction that has squared up to this precise question and passed on it.

Two of the most recent cases of the Supreme Court of the United States on the point held that search and seizure of incriminating personal belongings incident to a lawful arrest were permitted in the face of the Fourth Amendment to the Federal Constitution without a search warrant. These cases are Harris v. United States, 1946, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 and United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. The Harris case, with four justices dissenting, allowed an entire apartment to be searched. The later Rabinowitz case, with three justices dissenting, upheld a search of a one-room business establishment wherein a valid arrest was made on the theory that such premises were under the immediate physical control of the arrested person.

It seems to us, after reading each of the majority opinions of the Harris and Rabinowitz cases, that no justification other than the bare fact of making a lawful arrest on the premises...