Dade v. State
| Decision Date | 29 April 1941 |
| Docket Number | 29510. |
| Parties | DADE v. STATE. |
| Court | Oklahoma Supreme Court |
As Corrected May 16, 1941.
Syllabus by the Court.
1. In order to establish that a citizen has waived his constitutional guaranty against an unlawful search by consent, it must clearly and convincingly appear that the asserted consent was voluntary, free from coercion, duress or fraud, and was given to invite search rather than to avoid resistance to official authority.
2. An officer's mere suspicion or belief, however honest, that an automobile parked on a public street is being used for the transportation of prohibited liquor, does not justify him in the search of said automobile without a warrant in the absence of facts of sufficient probative force to lead a reasonable man to the same belief.
3. Evidence examined and held insufficient to establish defendant's consent to the search of his automobile without a warrant, or to justify such search on the ground of "probable cause" or the commission of a criminal offense in the presence of the officer making the search.
4. Section 2646, Art. 4, Chap. 16, O.S. 1931, 37 Okl.St.Ann. § 111, does not authorize the admission in proceedings under said act of evidence obtained in a search without a warrant of an automobile used in violation of said chapter out of the presence of an officer having power to serve criminal processes.
5. Where, in such proceedings, the court, after overruling the defendant's motion to suppress such evidence and over the objection of his counsel, allows a defendant to be interrogated concerning the ownership of intoxicating liquor found during an unlawful search of his automobile, and said defendant in response to said interrogation admits ownership of said whiskey, he does not thereby waive his right to predicate error upon the court's ruling upon the motion.
Appeal from County Court, Muskogee County; S.E. Gidney, Judge.
Proceeding by the State of Oklahoma, on the relation of the County Attorney of Muskogee County, to confiscate and forfeit an automobile belonging to Homer Dade because of its illegal use in transporting liquor. Judgment for plaintiff, and defendant appeals.
Reversed with directions.
Earl Boyd Pierce and Ray M. Pierce, both of Muskogee, for plaintiff in error.
Douglas Garrett, Co. Atty., and P. W. Jones, Asst. Co. Atty., both of Muskogee, for defendant in error.
This proceeding was instituted by the State of Oklahoma on the relation of the County Attorney of Muskogee County to confiscate and forfeit an Oldsmobile coupe automobile belonging to plaintiff in error for being used to transport liquor in violation of section 2646, art. 4, chap. 16 O.S.1931, 37 Okl.St.Ann. § 111.
The parties will hereinafter be referred to by their trial court designation of "plaintiff" and "defendant" respectively.
After waiver of a jury, trial by the court, and judgment for plaintiff, defendant appealed.
The alleged error in the trial proceedings presented for review herein is the court's refusal, upon motion of the defendant, to suppress evidence of the finding of liquor in the "turtle-back" or "back-end" of the car when same was unlocked and searched without a warrant by John Baxter, Sheriff of Muskogee County. The basis of defendant's contention that said evidence was inadmissible is that the search during which the liquor was found was unlawful and in violation of section 30, art. 2, of the Oklahoma Constitution, Okl.St.Ann., sec. 13442, O.S.1931.
The undisputed facts concerning the search in question are substantially as hereinafter related.
On March 11, 1939, the sheriff and his deputies conducted a raid for intoxicating liquor upon the defendant's place of business in Muskogee. After arresting the defendant and incarcerating him in the county jail in said city, Baxter and one of his deputies, Brant Fisher, encountered the car in question parked on a street near the scene of the raid. It had been driven there and was occupied at the time by one Pearlie Griffie. Upon finding that the keys Miss Griffie had would not unlock the "turtle-back" of the car Baxter obtained one from Dade at the jail, returned to the car, unlocked the "turtle-back" and found therein several packages, described as "lugs" containing whiskey.
On behalf of the plaintiff it is asserted that no warrant was necessary for the above described search for several reasons, the first being that it was made with the defendant's consent. As establishing Dade's consent to the search of the "turtle-back" of his car without a warrant, plaintiff relies upon the fact that after placing Dade in jail Baxter returned there, asked Dade for the key, and Dade complied with said request or command by taking the key out of his pocket and handing it to Baxter. There is a conflict in the testimony as to whether Dade surrendered the key only after a threat by Baxter to break open the turtle-back if Dade refused to give up the key, or whether the key was surrendered without such a threat. Dade's testimony answered this question in the affirmative, while Baxter denied that he ever made such a threat.
The general rule in regard to the matter before us is that a defendant's consent to an officer's search without a warrant constitutes a waiver of his constitutional immunity from such search, and he cannot thereafter effectively challenge the admissibility of the evidence obtained thereby.
However as said at 56 C.J. 1180, to constitute such a waiver: See also the extensive quotation from United States v. Rembert, D. C., 284 F. 996, in Smith v. State, 34 Okl.Cr. 434, 246 P. 1109. In adhering to the rule that the defendant's submission to an unlawful search must be voluntary, with a desire to invite search, and not given merely to avoid resistance, the courts have gone far in construing conduct which might otherwise indicate consent or acquiescence as not constituting an invitation or consent to an illegal search, but merely a submission to official authority. See, for instance, Maupin v. State, 38 Okl.Cr. 241, 260 P. 92; Whitford v. State, 35 Okl.Cr. 187, 249 P. 430; Hancock v. State, 35 Okl.Cr. 96, 248 P. 1115; Smith v. State, 34 Okl.Cr. 434, 246 P. 1109; Smith v. Commonwealth, 283 Ky. 492, 141 S.W.2d 881, and cases cited in the annotations following 74 A.L.R. 1418, 39 A.L.R. 822, and 27 A.L.R. 709. No useful purpose would be served in attempting a review of any considerable number of the cases referred to. None of them, so far as we have been able to ascertain, involved a situation identical with the present one. In Barnett v. State, Okl.Cr.App., 109 P.2d 243 (not yet reported [in State Reports]), the keys to the defendant's automobile were taken from him in order to search same for the evidence therein declared inadmissible, but it does not appear that the defendant himself had anything to do with transmitting said keys to the officers. There have been many cases, however, in which the defendant's consent was procured by the officer under circumstances which the courts have said amounted to duress or coercion. Such a case was Marple v. State, 51 Okl.Cr. 240, 1 P.2d 836, wherein the officer procured the defendant's permission to search the latter's car, after blocking the road in front of said car and while carrying a gun. Some of the authorities have applied the doctrine of "implied coercion" in situations not materially different from the present one, where there was no affirmative act of coercion on the part of the officer, but by the mere force of the circumstances under which it was obtained, the defendant's consent could not be said to have been wholly free and voluntary. Examples of these are State v. Lock, 302 Mo. 400, 259 S.W. 116; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; State v. Wuest, 190 Wis. 251, 208 N.W. 899; Biggs v. State, 201 Ind. 200, 167 N.E. 129, 64 A.L.R. 1085; United States v. Baldocci, D.C., S.D., Cal., 42 F.2d 567; Ray v. United States, 5 Cir., 84 F.2d 654; Duncan v. Commonwealth, 198 Ky. 841, 250 S.W. 101; State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490; United States v. Hoffenberg, D.C.N.Y., 24 F.Supp. 989. In none of these cases was there any distinct act of physical force or violence on the part of the officers, but the fact that they were in the physical presence of the defendant, in their official capacity, seems to have been the important consideration inducing a finding of implied coercion. We think that in cases where the defendant is physically restrained, as in the custody of the officer or already incarcerated, the doctrine of implied coercion should apply more especially than where the defendant is not so restrained; and the evidence should clearly establish that the defendant not merely acquiesced in the search but that he specifically, unequivocally, and actively consented to it. See Karwicki v. United States, 4 Cir., 55 F.2d 225. As the defendant in the present case was already confined in jail and under physical restraint by Baxter when he complied with the latter's request for the key, we think the situation by nature was "colored" or "tinged" with official coercion. See People...
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