Brown v. State

• Citation: 42 Ala.App. 429,167 So.2d 281
• Decision Date: 07 April 1964
• Docket Number: 7 Div. 739
• Parties: Ruth BROWN v. STATE.
• Court: Alabama Court of Appeals

Page 281

167 So.2d 281

42 Ala.App. 429

Ruth BROWN v. STATE.

7 Div. 739.

Court of Appeals of Alabama.

April 7, 1964.

Rehearing Denied April 29, 1964.

Loma B. Beaty, Fort Payne, for appellant.

Richmond M. Flowers, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.

CATES, Judge.

One of the judges having so moved, this cause is restored to the docket, the original opinion is vacated and the cause stands now as newly submitted.

On further consideration, the opinion of the court is as follows:

Mrs. Brown appeals from a conviction of possessing a prohibited alcoholic beverage. Code 1940, T. 29, § 98. The punishment was a fine of $50.00.

Virgil H. Brown and M. G. Richards, deputies of the sheriff of DeKalb County, went to Mrs. Brown's home. This was about a fourth of a mile 'from Fisher's Crossroads Store on Lookout Mountain.'

There these officers found 'one-half pint of untaxed whiskey in the kitchen cabinet' cached in an empty flour bin.

Mr. Richards, on cross-examination, testified in part:

'Q. Was there anyone else in this house?

'A. Yes sir, Winford Bailey.

'Q. What was his condition?

'A. He stayed on the couch.

'Q. What was his condition?

'A. He had alcoholic beverages on his breath.

'Q. What was Mrs. Brown's condition?

'A. I didn't notice.

'Q. She didn't have anything to drink?

'A. I don't think so.

'Q. Was this bottle full that you allegedly found?

'A. No sir.

'Q. Some had been used out of it?

'A. Yes sir.

'Q. And you didn't find any evidence that this lady had been drinking?

'A. No sir.

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'Q. Did you charge the person with violating the prohibition law?

'A. Neither of them would claim it so we had to charge it to one of them.

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'Q. Was Winford Bailey the person you arrested on this day for intoxication?

'A. Yes sir.

'Q. Did you find the bottle that Mr. Bailey had been drinking out of?

'A. No sir.

'Q. So far as you know this bottle was the one Mr. Bailey had been drinking out of? This bottle that you allegedly found?

'A. I wouldn't say.

'Q. But there had been some gone out of it?

'A. Yes sir.

'Q. How did you search this house? Did Mr. Butler search any of the house?

'A. Front room and kitchen. He found that while I was in the other room.

'Q. And you don't know how many trips he made in conducting this search?

'A. No sir, I don't know.'

The two deputies searched Mrs. Brown's home, purporting to be armed with a warrant. This warrant is based on the form in Code 1940, T. 15, § 105. Code 1940, T. 29, §§ 210-214 and 220 also provide for search warrants in liquor cases.

Section 212, supra (of the liquor laws), provides:

' § 212.--Said warrants many be issued only on probable cause supported by affidavit naming or describing the person or other party whose premises are to be searched, if known, and describing as near as possible the liquors and beverages to be searched for and the place to be searched, but the liquors or beverages may be described as prohibited liquors and beverages or spirituous, vinous, or malt liquors if more specific description be not obtainable, and the affidavit may show that more specific description is not obtainable.'

Code 1940, T. 15, § 102, provides:

' § 102.--A search warrant can only be issued on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched.'

The affidavit is in conclusory form and asserts the positive personal knowledge of the affiant both as to the possession and its purpose:

'Before me, W. J. Chitwood, Judge of the DeKalb County Inferior Court of said County and State, personally appeared M. G. Richards who, being by me duly sworn, deposed and says that Ruth Brown has spiritous, vinous or malt liquors or other prohibited liquors upon his [sic] person, in his [sic] house, barn or premises which are stored for sale, delivery or other purposes contrary to law.

/s/ M. G. Rchards

'Sworn to and subscribed to before me, this 25 day of Jan., 1963

/s/ W. J. Chitwood

Judge of the DeKalb

County Inferior Court.'

Mr. Butler testified, on cross, as to the circumstances of origin of the warrant, in part:

'Q. Did you and any other Deputy obtain these warrants based on your own information?

'A. Only on information we had received.

'Q. What kind of information?

'A. We had received several phone calls. Anonymous calls.

'Q. You obtained these warrants on anonymous phone calls?

'A. Yes, some people who identified themselves as residents.

'Q. Did you recognize these voices.

'A. No sir.

'Q. Were any of them male voices? Do you know Luke Thompson?

'A. No sir.

'Q. Do you know if any of these calls were from Luke Thompson?

'A. No sir.

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'Q. I asked you, Mr. Butler, if this anonymous caller stated that there would be whiskey at the residence if you went there?

'A. Yes, and a wild party.

'Q. What kind of statement?

'A. They said that they had whiskey at Ruth Brown's place and that they were drinking and carousing at her house.

'Q. But you didn't know who made the call?

'A. No sir.'

Taken on voir dire, Mr. Richards also testified:

'Q. What basis did you obtain this warrant on?

'A. You mean the reason I got it?

'Q. Yes sir.

'A. We have been having several complaints.

'Q. Who from?

'A. I couldn't tell you that?

'Q. You couldn't testify who you received these complaints from?

'A. No sir.

'Q. No one who complained to you gave their name?

'A. No sir.

'Q. And no one had complained to you giving you specific basis to get this warrant?

'A. No sir.

'Q. And you hadn't previously talked with anyone about this warrant?

'A. Not particularly.

'Q. While testifying about the warrant dated January 25, 1963, did you go before Judge Chitwood and swear to him that you had proper information to obtain this warrant?

'A. Yes sir.

'Q. What information did you give?

'A. I said we had some complaints.

'Q. And you didn't give him any written testimony to support this warrant? And the fact is you just told him you wanted him to give you this search warrant and away you went?

'Q. He filled it out.

'Q. Did anything other than that happen?

'A. No sir.

'Q. You told him and he just filled it in?

'A. No, I told him we had complaints.

'Q. And then he filled it out and then what happened?

'A. I signed it and we served it.

'Q. He turned it over to you and he put his name on it before you signed it?

'A. I don't recall.'

The affidavit and search warrant fail to disclose, under the most minute scrutiny, that the proceedings before the issuing magistrate were supported by other than hearsay.

This controversy is not new. Cardozo, J., posed it as whether the prosecution should suffer for the constable's blunder.

In June, 1921, Bricken, P. J., wrote for the court in Banks v. State, 18 Ala.App. 376, 93 So. 293, 24 A.L.R. 1359, saying, with reference to Constitution 1901, § 5:

'* * * The right sought to be maintained, preserved, and enforced by this constitutional guaranty is one that relates to a fundamental principle of government, for the supreme purpose actuating mankind in the organization of society was the preservation of life, liberty and property. The end sought to be obtained by this constitutional provision was to prevent all unlawful invasions of the sanctity of the home and the privacies of life. The right protected is the indefeasible right of personal security and personal liberty, and traces its existence to that concession of Magna Charta obtained on the battlefield of Runnymede by English freemen from John, their king, on the 15th day of June, 1215, and which guaranteed:

"No freeman may be taken, or imprisoned, or detained, or outlawed, or banished, or in any way destroyed, nor will we go against him, or send against him, except by the lawful judgment of his peers, or by the law of the land. To none will we sell or deny or delay right or justice.'

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'Concisely stated, the conclusion reached in the Shields Case [104 Ala. 35, 16 So. 85] is that evidence obtained through and by means of a plaintiff violation of a constitutional prohibition is admissible, if said evidence is relevant to the issue of the case on trial. In other words, a rule of evidence, or of procedure, is declared by the Shields Case to be paramount to the Constitution itself. * * *

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'The principle, therefore, that prevents the introduction of testimony obtained through a violation of the Constitution is that the Constitution itself prohibits the obtaining of evidence in this manner. There can be no higher authority for the exclusion of such evidence than the Constitution. The Constitution of Alabama is the supreme law of this state. To it all statutes, rules of evidence, rules of procedure, courts in the exercise of their power and authority, officials acting under the color of their office, as well as individuals, must pay their respect and obedience. It is the supreme law, and to it all rules of evidence, procedure, and expediency, in conflict with its mandates and prohibitions, must yield. * * *

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'* * * To say that a sheriff of this state may invade the privacy of the home of one of its citizens, without search warrant or other legal process, and thus procure testimony that may be used to secure the conviction to such citizen of a criminal offense, would be to affirm and sanction, by judicial decision, an open defiance of the prohibitions of the Constitution designed and promulgated for the protection of each and every citizen of the state against such unauthorized, illegal, and outrageous action. If one constitutional provision may be nullified in this manner, then why not all? To indorse, countenance, and sanction the invasion of the home of a citizen of this state by a sheriff of this state without proper process is in its last analysis to indorse anarchy and revolution.

'For the reasons set forth, it is the unanimous opinion of the Court of Appeals that the case of Shields v. State, 104 Ala. 35, 16 South. 85, 53 Am.St.Rep. 17, and all cases...