Com. v. Chaplin
| Decision Date | 27 February 1948 |
| Citation | 211 S.W.2d 841,307 Ky. 630 |
| Parties | COMMONWEALTH v. CHAPLIN. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 25, 1948.
Appeal from Circuit Court, Barren County; L. B. Handley, Judge.
Charlie Chaplin was convicted in county court of unlawfully transporting intoxicating liquor in local option territory. On appeal to the circuit court, defendant was adjudged not guilty, and the Commonwealth appeals for a certification of the law.
Certification of law in accordance with opinion.
Eldon S. Dummit, Atty. Gen., and Richard L. Garnett of Glasgow, for appellant.
W. E Jones, of Glasgow, for appellee.
Charlie Chaplin was convicted in the Barren County Court of the offense of unlawfully transporting intoxicating liquor in local option territory. He appealed to the Barren Circuit Court where a jury was waived, and the law and facts were submitted to the court. The trial judge found that the search of defendant's car on the public highway by the arresting officers without a search warrant was illegal, and that the evidence offered by the Commonwealth as to the whisky found in the car at the time of the arrest should be excluded. The defendant was adjudged not guilty, and the Commonwealth being dissatisfied with the ruling of the court, has appealed for a certification of the law. We adopt the Commonwealth's statement of facts which is substantially the same as the stipulation of facts agreed upon by the parties at the trial, and which the appellee concedes is correct:
The appellee, Charlie Chaplin, was operating a taxicab belonging to Clyde Chaplin in Glasgow, Barren County, Kentucky, on or about the 11th day of September, 1946. The appellee with a passenger by the name of Welby Hurt left Glasgow on the above date and drove to a liquor dispensary in Warren County. Barren County is a local option county and Warren County is not. The field agents for the Alcoholic Control Board of Kentucky had a report on the liquor store where appellee's taxicab had gone, to the effect that it was selling in large quantities to persons doing bootleg business in dry counties. As a result of that report two field agents of the Alcoholic Control Board, Bert Harper and Clell Tarter Jr., were, upon the day in question, secreted along a side road adjacent to this liquor store for the purpose of checking on persons that might be running liquor into the dry territory. While the two control agents were thus secreted, Charlie Chaplin drove up in his taxicab, drove around to the back of the liquor store and parked. He and his passenger, Welby Hurt, went into the back door of the liquor store. Bert Harper remained in the position where he could clearly see the back door and could watch the movements of the persons entering and leaving. Clell Tarter, Jr., went around to the front of the store, entered the store by the front door and bought a one-half pint of liquor. While in the store Tarter could see the appellee and Hurt in the back room and could hear the rattling of bottles and saw Chaplin and Hurt go out the back door. Hurt carried a grip and Chaplin carried a large sack, so full that the top could not be closed. Tarter could not see the contents of either the sack or the grip, except to know they were bottles. Chaplin then came back into the store and got a second sack. Tarter made inquiry from the operator of the liquor store and learned that nothing was kept or sold in the store except liquor and wine, no beer was sold and no soft drinks were sold nor was any other kind of bottled goods sold. Harper, waiting on the outside, saw Chaplin and Hurt come out of the back door of the liquor store, Hurt put a cloth grip in the back seat and Chaplin placed a large sack on the front seat filled to such an extent that the top would not close. Chaplin then went back into the liquor store and got a second sack which was placed on the back seat. Chaplin and Hurt then got into the taxicab, both sitting on the front seat with the large paper bag between them. Harper could not see the contents of the bags, except to see that they were bottles. The taxi drove toward Glasgow into Barren County. Harper and Tarter got into their automobile and followed the taxicab, keeping it in sight at all times. The taxi made no stops after leaving the liquor store. After the taxicab had crossed into the local option territory of Barren County the alcohol agents pulled in front of the taxicab. The taxi stopped, Harper and Tarter started walking back to the cab. When they got within a few feet of the taxicab they could see through the window that the sack on the front seat contained whisky. The sack was so full that the top could not be closed and the liquor was in plain view. The sack on the back seat was closed. The contents of the grip and the sack on the back seat could not be seen through the window except to tell that they did contain bottles. The officers had no search warrant for the taxicab. Other than having knowledge of the transportation of this liquor by what they had seen in the liquor store, and the liquor they saw through the windows of the car as they approached it, the officers knew of no law violation by the appellee. As the two officers approached the cab, Chaplin opened the door. The officers then asked Chaplin who the liquor belonged to. He stated that a part of it belonged to him and a part of it belonged to Hurt. Hurt made no responses. The officers arrested appellee and Hurt and then removed the sack and grip from the back seat and the sack from the front seat and discovered that they contained thirty-six one-half pints of whisky.
It is argued on behalf of the Commonwealth that the trial judge erred in excluding the evidence disclosed by the search for two reasons: (1) There is a distinction between an automobile in reference to search and seizure and premises that are private habitations and the search without warrant of an automobile for contraband articles, if the search is upon probable cause, is not a violation of section 10 of our Constitution which provides that 'the people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure;' and (2) the evidence shows that a misdemeanor was committed in the presence of the officers and they had the right to arrest appellee and make the search without a warrant.
In construing section 10 of our Constitution, this court has held that an automobile may not be stopped on the highway and searched without a warrant unless a misdemeanor is being committed in the presence of the officer or he has probable cause to believe that a felony has been committed. In Settles v. Commonwealth, 294 Ky. 403, 171 S.W.2d 999, 1000, two officers, while attempting to apprehend two deserters from the army, saw Arthur Settles drive to the edge of the highway in his covered truck and park it near a church. The officers knew that Settles' reputation was that of one who illegally sold liquor. They approached the truck to ascertain if the persons sought were in the vehicle, and when they turned their flashlights into the truck they saw a cardboard box with a beer label thereon which excited their suspicion. Without Settles' consent they took possession of the box, opened it, and found it contained fifteen pints of beer. This court held that the evidence was obtained by an unlawful search and should have been excluded. The court said:
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