Burns v. State, A-11187
| Citation | 92 Okla.Crim. 24,220 P.2d 473 |
| Decision Date | 30 June 1950 |
| Docket Number | No. A-11187,A-11187 |
| Parties | BURNS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The description contained in search warrant must conform in all material respects to that contained in the affidavit otherwise the search warrant is void and the place named therein cannot be lawfully searched and contraband seized.
2. Under the strict construction which the courts have applied to search warrant proceedings, any material variance between the averment in the affidavit with respect to a description of the property sought to be searched and the warrant itself, will render the search warrant proceedings void, and will render any search made thereunder illegal.
3. The search warrant must so particularly describe the place to be searched that the officer can find the place without the aid of any other information save that contained in the warrant.
4. True test of sufficiency of complaint or affidavit to warrant issuance of search warrant is whether it has been drawn in such a manner that perjury could be charged thereon if any material allegation contained therein is false.
5. An affidavit for search warrant sworn to by W. E. Page cannot lawfully form the basis for issuance of a valid search warrant which named one Bird Collins as affiant.
6. Search warrants should ordinarily be issued 'To any sheriff, constable, marshal or policeman in the county of * * *'. Title 22, § 1226, O.S. 1941.
7. A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution. Title 22, § 1227, O.S. 1941.
8. Under the provisions of Title 19, § 514, O.S.A. 1941, the sheriff in person, or by his under-sheriff or deputy, shall serve and execute, according to law, all process, writs, etc., issued or made by lawful authorities, and to him directed, etc.
9. Title 22, § 1227 and Title 19, § 514, O.S.A. 1941, must be construed together, and when so construed do not require that the sheriff shall personally serve or shall personally be present at the service of a search warrant directed to the sheriff. Such search warrant may be served by a deputy sheriff, as the agent of his principal. His act is the act and presence of the sheriff.
Robt. H. Warren, Hugo, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
The plaintiff in error Lawrence Burns, defendant below, was charged by information with the unlawful possession of intoxicating liquor in the county court of Choctaw county, Oklahoma, tried by a jury and found guilty, his punishment fixed at a $100 fine and 30 days in jail, judgment and sentence was entered accordingly from which this appeal has been perfected.
As grounds for reversal herein the defendant contends first, that the court erred in not sustaining his motion to suppress the evidence, that there was a variance in the affidavit and the warrant in that the description of the premises to be searched contained in the warrant does not conform to that set forth in the affidavit for search warrant, and that said warrant is otherwise uncertain and vague. The affidavit describes the premises as 'a frame building looking like a filling station with tourist courts to the West of said building, on the North side of Highway 70 about 1/2 mile West of McCurtain County Line used as such and also used as a storage for liquor; also barns, caves, garages and all outbuildings located on the SW Quarter of Section 24, Township 6 South, Range _____ of the I. M., Choctaw County, Oklahoma,'. The description contained in the search warrant itself contains in addition to the description contained in the affidavit the words and figures '20 East'. It is therefore apparent that in the search warrant there was an attempt to supply the deficiency in the affidavit by adding the said words '20 East'. It is well settled by numerous prior decisions of this court that the description contained in the search warrant must conform in all material respects to that contained in the affidavit otherwise the search warrant is void and the place named therein cannot be lawfully searched and contrabrand seized. Alkire v. State, 51 Okl.Cr. 410, 2 P.2d 98, wherein it was said in the body of the opinion:
In Seick v. State, 57 Okl.Cr. 364, 48 P.2d 355, 356, a case clearly in point, in the body of the opinion it was said: 'The search warrant does not follow the description of the affidavit, but adds to it a further description of 'section 15' and omits the designation of 'west' in the description of the range. Ordinarily, this east or west range description would not be of any consequence, but since Cleveland county is in both range east and west it becomes material. The authority for a search warrant is an affidavit showing probable cause. The warrant must in all material respects conform to the affidavit. The officer issuing it may not materially change, enlarge, or vary the description in the affidavit. Thomas v. State, 38 Okl.Cr. 284, 287, 260 P. 515; Alkire v. State, 51 Okl.Cr. 410, 2 P.2d 98; Wingo v. State, 54 Okl.Cr. 321, 20 P.2d 586. In Cornelius on Search and Seizure, § 131, it is said: 'Under the strict construction which the courts have applied to search warrant proceedings, any material variance between the averment in the affidavit with respect to a description of the property sought to be searched and the warrant itself, will render the search warrant proceedings void, and will render any search made thereunder illegal.''
The foregoing defect standing alone in this instance is not fatal, as pointed out in Seick v. State, supra, but the description of the place to be searched is vague and uncertain in that Highway 70, it is contended without contradiction, crosses the McCurtain county line on the east side of Choctaw county at several different places. It has been repeatedly held that the search warrant must so particularly describe the place to be searched that the officer can find the place without the aid of any other information save that contained in the warrant. Dawson v. State, Okl.Cr.App., 210 P.2d 209, (not yet reported in State reports), and cases therein cited. The uncertainty of such a description as in the case at bar, is wholly apparent without necessity of further comment. The defendant's first...
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...City, Idaho, * * *.' The description of the premises in the warrant should conform to the description in the affidavit. Burns v. State, 92 Okl.Cr. 24, 220 P.2d 473. If the description in the warrant be restricted, but is included in the description in the affidavit, the warrant is less subj......
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Hale v. State, A-12607
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