Butler v. State, 44914
| Decision Date | 08 July 1968 |
| Docket Number | No. 44914,44914 |
| Citation | 212 So.2d 573 |
| Parties | William Edward BUTLER, alias Peck Butler v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Lawrence D. Arrington, Hattiesburg, for appellant.
Joe T. Patterson, Atty. Gen., by, Guy N. Rogers, Asst. Atty. Gen. and Laurence Y. Mellen, Special Asst. Atty. Gen., Jackson, for appellee.
This case comes from the Circuit Court of Forrest County, in which appellant was convicted of carrying a concealed weapon. Having previously been convicted of a felony, he was sentenced to a term of three years in the penitentiary.
Mr. James E. Owen was a police officer with the Hattiesburg Police Department. On May 2, 1967, about 6:20 a.m., the appellant was alone, driving a 1967 yellow Lincoln sedan in the City of Hattiesburg. Mr. Owen testified that he participated in the arrest of appellant and as an incident to the arrest, searched the defendant's automobile, in the glove compartment of which he found a Smith and Wesson .32 caliber revolver. The following objection by the defense counsel was made to further questioning regarding the pistol:
We will object, if the Court please, to any introduction or any comment on any weapon obtained by an illegal search in the arrest of the Defendant.
BY THE COURT: Overruled.
The district attorney then examined Mr. Owen further:
Q. (D)id you have a warrant for the arrest of this Defendant?
A. There was a warrant on file at the police station-
Q. All right.
A. * * * and I had knowledge of the warrant, and-
Q. All right, just answer my questions. You had a warrant, did you?
A. Yes, Sir.
Officer Owen also testified that there were some cartridges in the glove compartment, and further said, 'This is the revolver, those are the cartridges taken from the revolver, yes, Sir.' At this point the district attorney offered for identification the revolver, one empty shell and five cartridges. The attorney for the defendant stated:
If the Court please, we would object to the marking of this evidence-
Let them be marked for identification only at this time.
On cross-examination the witness was asked:
Q. Mr. Owen, when you arrested the Defendant, Mr. Butler, did you have a warrant in your possession? I misunderstood A. There was a warrant on file at the police station.
what you said. A warrant for his arrest.
A. They have a clip board, and they advised me by radio.
Q. Do you know exactly what that warrant was? What was the man charged with?
A. Assault and battery.
Q. Where was he sitting in the car when you drove up to him, or when you approached him?
A. The car was in motion. He was behind the wheel of the car. It was in motion.
Q. Did you pull up beside him and say pull over?
A. I pulled up behind him and turned on the red light and the siren.
Q. Did he then stop immediately?
A. Yes, Sir.
Q. Then what happened?
A. I asked him to get out of the car and asked him if he was Peck Butler, and he advised me that he was and I advised him that he was under arrest for assault and battery.
Q. Did he get out of the car when you asked him to?
A. Yes, Sir, he did.
He was also asked on cross-examination:
Q. Did you have a search warrant upon you at the time you searched the vehicle?
BY HON. JAMES FINCH:
Object. He didn't need one, Your Honor.
Well he can answer the question.
A. No, Sir, I didn't.
Mr. Owen also was asked on cross-examination:
Q. When you told Mr. Butler he was under arrest, did you take him and then put him in your car, in your patrol car?
A. After I had finished, completed the search of his car, yes, I did.
The witness said after the arrest the car was impounded and appellant was carried to the police station, where he was booked on an assault and battery charge and with carrying a concealed weapon. This was the first time any charge was made for carrying a concealed weapon. At the police station, the pistol was delivered to Detective Creel.
The other officer participating in the arrest, Mr. Hopstein, testified, and there was no discrepancy between his testimony and that of Mr. Owen. The district attorney handed him the pistol and asked him to examine it. Thereupon attorney for the appellant again objected:
We would object to any testimony and the witness looking at the evidence as having been illegally obtained by illegal search and seizure.
This objection was overruled by the court.
Mr. Hopstein said that the arrest warrant for assault and battery was on file at the police station, and that neither he nor Mr. Owen had a warrant with them. He further testified that when they stopped appellant or started in pursuit, he was committing no crime of any sort. This witness also admitted they had no search warrant.
Mr. Creel, the detective, was introduced. In response to a question, he stated: 'I received a thirty-two caliber-' and at this point another objection was made by attorney for appellant on the ground that it had been illegally obtained. The objection was overruled. After the detective had identified the pistol, it was offered into evidence The defendant respectfully moves the Court to exclude the evidence and testimony of the State and to direct a verdict for the defendant for the following:
by the district attorney, and its introduction was objected to by attorney for appellant. The objection was overruled. When the State rested, the following motion was made by appellant:
The gun in question was illegally obtained from the defendant without a search warrant. * * * Number three, the arrest of the defendant without a warrant is illegal when no crime has been committed in the presence of the arresting officer.
Overruled. * * *
This proof is uncontradicted and there is immediately presented the issue as to whether such evidence brings this case, as to arrest, without the purview of Smith v. State, hereafter discussed. We hold it does not.
The authority of an officer to arrest in Mississippi is fixed by Mississippi Code 1942 Annotated section 2470 (1956), as follows:
An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.
The first clause applies to a misdemeanor, and an officer cannot arrest a person for a misdemeanor not committed in his presence except with a warrant. See Pettis v. State, 209 Miss. 726, 48 So.2d 355 (1950), and the authorities therein cited.
In the recent case of Smith v. State, 208 So.2d 746 (Miss.1968), this Court held that, under our statute and under the overwhelming weight of authority, an officer making an arrest for a misdemeanor not committed in his presence must have the warrant for such arrest in his actual possession if the arrest is to be lawful. An officer without a warrant cannot arrest a person for a mere misdemeanor not committed in his presence. Orick v. State, 140 Miss. 184, 105 So. 465, 41 A.L.R. 1129 (1925).
Every search and seizure is unreasonable where it is not made according to law. Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947). This Court has held many times that a search incident to an unlawful arrest is a violation of the constitutional provision against unreasonable searches and seizures. Terry v. State, 252 Miss. 479, 173 So.2d 889 (1965); Pettis v. State, supra. A search incident to a lawful arrest is not unreasonable. Bird v. State, 154 Miss. 493, 122 So. 539 (1929).
Evidence obtained by an unlawful search was first declared inadmissible in evidence in this state in Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377 (1922), which has been followed constantly since.
Who has the burden of proof to establish a lawful arrest? Of course, if an officer has in his possession a valid warrant and serves it properly, there is no question. However, an officer undertaking to search without a warrant is not the final judge of the probable cause or the sufficiency of the information, but the trial court determines that issue, regardless of the good faith of the officer. Brown v. State, 149 Miss. 219, 115 So. 436 (1928); McNutt v. State, 143 Miss. 347, 108 So. 721 (1926).
In the recent case of Clay v. State, 184 So.2d 403 (Miss.1966), the appellant there was indicated for larceny of some seven hundred dollars obtained by means of a confidence game known as 'pigeon dropping.' Weeks after the alleged crime, he was in an automobile owned and driven by another. A policeman stopped the car and ordered the occupants to follow him to the city hall. It was claimed that his arrest was illegal. There was no showing that the policement had a warrant, and the testimony of the appellant that he was not informed of the object and cause of the arrest, as required by the last sentence of section 2470, supra, was not denied. This Court held there was a prima facie case of illegal arrest and thereupon the burden was on the State to prove a legal arrest. The State failed to meet this burden, and evidence obtained as a result of said arrest was held inadmissible.
6 C.J.S. Arrest § 5a, at 580 (1937) states the rule:
In the arrest of a person without a warrant, the burden of proof is with the person arresting or causing the arrest to show that the arrest was lawful.
Under this statement cases are cited from federal district courts in Hawaii, New York, and the District of Columbia, and also from the state courts of Iowa, New York, and Oklahoma. No cases to the contrary are cited.
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