Brinegar v. State

• Decision Date: 30 September 1953
• Docket Number: No. A-11788,A-11788
• Citation: 97 Okla.Crim. 299,262 P.2d 464
• Parties: BRINEGAR v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 464

262 P.2d 464

97 Okla.Crim. 299

BRINEGAR v. STATE.

No. A-11788.

Criminal Court of Appeals of Oklahoma.

Sept. 30, 1953.

Supplemental Opinion on Rehearing Oct. 30, 1953.

SYLLABUS BY THE COURT.

1. In this jurisdiction, contrary to the Federal rule, officers may not stop and search motorist and his car simply by reason of having probable cause to believe that he may be hauling contraband. A search warrant is necessary. Art II, § 30, Okl. Const.

2. As concerns one's person or motor vehicle, contraband is defined as the possession or transportation of anything prohibited or excluded by law.

3. Where a lawful arrest is made of a motorist while in his car, and where it is necessary to place the motorist in jail to await arraignment, as where the arrest was made in the night time, the car may be lawfully taken by the officers for safekeeping for the prisoner until his arraignment and release on bond.

4. Ordinarily the search of a motor vehicle incidental to a lawful arrest made out on a highway, where the facts would justify the search, must be made contemporaneously with the arrest, and without unnecessary delay.

5. Whether or not in a particular case a delay of a few hours in completing a search of a motor vehicle commenced out on a highway was reasonably necessary, must be determined in each case by its own facts and circumstances.

6. If from the circumstances the right accrued to search the car and search was made of the seats and glove comparment and contraband found, and it was night time and impossible to open the locked turtle-back without serious damage to the car, and the motorist failed or refused to produce the key to unlock the car the officers might wait until business hours after daylight and obtain the aid of a locksmith or mechanic to aid them or they themselves might obtain tools for the purpose, and such delay would not be deemed unnecessary or unreasonable.

7. When motorist violates the law in the presence of an officer, such officer may without a warrant summarily place said motorist under arrest, and may where the offense constitutes a misdemeanor, but limited by the exceptions and exclusions hereinafter stated, and in all cases where the offense constitutes a felony, without a search warrant search such motorist and his entire vehicle.

8. An arresting officer in determining what is to be searched for should consider the nature of the accusation; the search is then limited to evidence to support the crime charged or to be charged. But where contraband is discovered incidental to such search, it would be the duty of the officer to take and hold the same to be disposed of as the court would direct.

9. Officers are not justified after a valid arrest of motorist for minor traffic violation, in searching his person or his immediate presence, such as the seats and glove compartment of his car, excepting in cases where the officers have reasonable grounds for such action, the seats and glove compartment of the car may be searched for firearms, and this only as a precaution for the safety of the arresting officer and to prevent escape, when done in good faith.

10. The cardinal proposition for consideration in the determination of the lawfulness of a search of a motorist, after arrest for a minor traffic violation, such as may be found in some of the provisions of the Uniform Traffic Code, Tit. 47 O.S.1951, §§ 121.1-121.13, or municipal ordinances covering traffic, is was it reasonable? And this is a judicial question to be determined in each case in view of all the facts and circumstances under which the search and seizure was made.

11. The search of a locked turtle-back of an automobile as incident to the arrest of a motorist for a minor traffic violation committed in officers' presence, is, absent additional cause, unreasonable.

12. Where officers do have reasonable grounds for the search of the person of a motorist and his immediate presence for firearms, and in the process discover intoxicating liquor in the glove compartment of his car, they are then justified in searching the entire car for other liquor.

13. The fact that the motorist was not prosecuted for the liquor in the glove compartment could have no bearing by reason of it having been determined that the search for the liquor for the transportation of which he was prosecuted, was legal.

Irvine E. Ungerman, Charles A. Whitebook, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., Edward H. Brady, County Atty., Vinita, for defendant in error.

POWELL, Presiding Judge.

Herein an appeal has been perfected from the County Court of Craig County, by Virgil Thomas Brinegar, by reason of appellant having been found guilty of the crime of transportation of intoxicating liquor, a misdemeanor, and for which he was assessed punishment of 30 days confinement in the county jail, and the payment of a fine of $250.

Prior to trial defendant had filed a motion to suppress the evidence obtained by virtue of the search of the turtle-back of his automobile, alleging that the liquor found and forming the basis for the charge was obtained by an illegal search and seizure and in violation of his constitutional rights. The provisions of the Constitution of Oklahoma involved, Art. II, §§ 30 and 21, reading:

§ 30. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.'

§ 21. No person shall be compelled to give evidence which will tend to incriminate himself, except as in this Constitution specifically provided * * *.'

The above provisions are practically identical with the Fourth and Fifth Amendments to the Constitution of the United States. In Gore v. State, 1923, 24 Okl.Cr. 394, 218 P. 545, and thereafter in Keith v. State, 30 Okl.Cr. 168, 235 P. 631, and many subsequent cases, though this court held that a rule of evidence established by the Supreme Court of the United States relating to evidence illegally obtained by officers or agents of the court, by means of an illegal search, or against compelling an accused to be a witness against himself, was not binding on the state courts in cases relating to like seizures in violation of like provisions in the State Constitution; we further held that, in the interest of uniformity of decision it would be highly persuasive. ¹

Since the Gore case this court has given close study to the interpretation given from time to time by the Supreme Court of the United States to the Fourth and Fifth Amendments to the Federal Constitution, particularly as compelled by situations brought to focus in the trial of persons charged with violation of the liquor laws, and has generally followed such interpretations.

It is true that there is a notable exception, and being in the matter of our refusal to follow the Federal rule developed and applied in such cases as Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 632, and Brinegar v. United States, 10 Cir., 1947, 165 F.2d 512, affirmed 388 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, rehearing denied 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513; (and see 51 A.L.R. annotations at pages 424, 442; 82 A.L.R. 782, 789, and the dissenting opinions in the Carroll, Husty and Brinegar cases) which rule permits and upholds arrests without warrant for misdemeanors, on probable cause. As stated in the Husty case, supra [282 U.S. 694, 51 S.Ct. 241]: 'To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. * * * It is enough if the apparent facts which have come to his attention are sufficient in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched.' ²

An examination of the federal cases generally will disclose, however, that trial courts will examine with care the apparent facts that came to the attention of the officers and that formed the basis for the search, and if the court determines that such information and surrounding circumstances was not sufficient to justify the search, will sustain a motion to suppress.

We first gave consideration to this proposition in Wallace v. State, 1930, 49 Okl.Cr. 281, 294 P. 198 (dissenting opinion by Chappell, J.) and determined that in case of misdemeanors, in order to justify an arrest in the absence of a warrant, that the act charged must have been committed in the presence of the arresting officer, and that where the officer does not know of the act constituting the offense, it is not committed in his presence. And in the later case of Edwards v. State, 83 Okl.Cr. 340, 177 P.2d 143, 144, we said:

'The right to search and seize is in derogation of the right to be free from search and seizure, in one's person, home, and property, which includes one's automobile. Held, must be strictly construed to afford intended protection against abuse.'

So it is that the 'probable cause' rule whereby officers acting upon belief reasonably arising out of the circumstances known to the searching officers may search an automobile without a warrant, though followed in federal courts, and some state courts, is not applicable to prosecutions in the state courts of Oklahoma. State v. Simpson, 1950, 91 Okl.Cr. 418, 219 P.2d 639.

The distinction developed in such cases as Carroll, Husty, Lee and Brinegar, supra, between the search of a fixed place of business or residence and moving vehicles ³ or boats, is important, and makes imperative the keeping in mind of this distinction as we consider the law...