Denton v. State

• Decision Date: 18 June 1937
• Docket Number: A-9169.
• Citation: 70 P.2d 135,62 Okla.Crim. 8
• Parties: DENTON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

70 P.2d 135

62 Okla.Crim. 8

DENTON v. STATE.

No. A-9169.

Court of Criminal Appeals of Oklahoma

June 18, 1937

Syllabus by the Court.

1. Search warrants are issued after the filing of an affidavit before a magistrate which should be positive and not upon information and belief. The affidavit should state the facts upon which the knowledge is based.

2. A waiver of one's constitutional right for his premises to be searched without the aid of a search warrant should be freely and voluntary upon his part.

3. The statutes of this state require the officer in executing a search warrant to serve a copy of the same on the party whose premises are searched. If he is not present, it requires that a copy shall be posted. These requirements of the statute should be complied with.

4. A search warrant is process under the law. It should be directed to an officer in the county where the search is to be made.

5. Under the statute a search warrant should be served in the daytime. But if the affidavit upon which the search warrant is based is positive, then the magistrate may direct that it be served in the day or nighttime. There should be a direction in the warrant as to whether it should be served "in the day," or "in the day or nighttime."

Appeal from County Court, Ottawa County; John H. Venable, Judge.

Ray Denton was convicted of the crime of having unlawful possession of intoxicating liquors, and he appeals.

Reversed.

Wilson & Porter, of Miami, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and A. Clark, Co. Atty., of Picher for the State.

BAREFOOT Judge (after stating the facts as above).

In this case a motion was made by defendant, before the trial, to suppress the evidence obtained by reason of the search warrant. This motion was presented and evidence offered thereon prior to the trial. The same was overruled and defendant excepted to the ruling of the court. It is contended by defendant: (1) That the affidavit was insufficient upon which to base the issuance of the search warrant, and, the defendant having not waived his right to search his premises without a search warrant, that the search was illegal and void; (2) that the search warrant was not served on the defendant as required by the statute; (3) that the search warrant was not addressed to an officer of Ottawa county as required by law; (4) that the search warrant was attempted to be executed in the nighttime and that the search warrant did not direct that it be so executed.

An examination of the opinions from this court, the federal courts, and the Supreme Courts of many states, reveals many seemingly conflicting opinions upon the issuance, service, and return of search warrants. Many of them are conflicting upon the very questions involved in this case.

It is our desire, in this opinion, to discuss the issuance and execution of search warrants so that hereafter it may be possible for the officers in this State to know just what is necessary in the securing and execution of a search warrant. The cases from this and other States have many times called attention to the fact that the issuance and execution of a search warrant is far more sacred to the citizens of this state than the arrest and conviction of some one individual. This is especially true where the warrant is executed for the search of the home of the citizens of this State.

With the enactment of the prohibition laws the state and federal governments have gone a long way by special statutory enactment in giving to officers the right of search and seizure, and have extended the same so that the home of the individual may be entered and searched. There were many years after the enactment of the Federal Constitution that no such legislation could have passed the federal Congress, nor could it have been enacted by the Legislatures of the several States. The people knew of the uncalled for searches and seizures of the British government against the citizens of this country, hence the enactment of the Fourth Amendment to the Constitution of the United States. But with the passing of time a few of our citizens seem to forget the sacredness of their home and fireside and, in their eagerness to make money and in an effort to defeat the law, they have degraded their homes by bringing liquor and other instruments of crime therein for the purpose of using them in violation of the laws of this country, thereby hoping to receive protection through the sacred right of forbidding their homes to be searched, under the terms of the Constitution. Recognizing this evil on the part of the few, our governments, both State and Federal, have, as we stated before, gone a long way in permitting even the home to be searched, and especially where it is being used as a place of public resort, and for the storing of intoxicating liquor to be used for unlawful purposes. The rights of the many have been made to suffer for the sins of the few. The courts of our country, although they have ever been the guardian of the personal rights of the individual, have upheld these laws. They have also gone a long ways in holding constitutional these laws to the end that the criminal minded of this country might not go unpunished. But these same courts, not only in this State, but in the nation, have uniformly held that the law which took away these sacred rights should be strictly construed, and that the officer who was given the power to issue the search warrant and to him who executed it should do so only in the manner and form as provided by the statute. We think this is entirely proper, yet enthusiasts often criticize the court for doing the very thing that protects them in the most sacred principle vouched for in the Federal and State Constitutions.

The law should not be so interpreted that an individual might be punished, yet by the same principle many innocent and law-abiding citizens suffer the humiliation and inconvenience of illegal search and seizure. The laws of this State and the decisions of the courts have afforded ample opportunity for the detection and punishment of those who violate the prohibition liquor laws. But at the same time these courts have ever kept in mind that certain inalienable rights of the individual citizen are to be regarded as the very essence of constitutional liberty and these fundamental rights are as imperative in this country as are the right to trial by jury, the writ of habeas corpus, and due process of law. Especially are these rights due the citizens of this State in the protection of their homes and automobiles. There will be times when certain of our citizens will violate the law through this protection, and some may go unpunished, but it is better this than that a principle be established where many of our citizens may suffer the humiliation and hardship of having their home and automobile illegally searched by an overzealous officer. We do not mean to criticize the zealous officer in the enforcement of this law. He is to be commended. He will follow the law. He will see that his search warrant is properly secured and properly executed, and there will be no desire on his part to turn this warrant, which is his protection, into an instrument to destroy the liberty of the law-abiding citizen which is guaranteed him by the State and Federal Constitution.

The officers of this State ought to be the first to uphold the courts in the enforcement of these fundamental rights. The procuring of a search warrant is an easy matter. It ought not to be secured in a haphazard way and served in a reckless disregard of the rights of the individual citizen. No more power or force should be used than is necessary to properly execute the warrant. Yet, if there is resistance, the officer should use such force as is necessary to carry out his mandate, and in doing this he is fully protected by his warrant if it is properly issued. It is, therefore, to his protection that the warrant be in proper form.

The county attorneys of this State, and no doubt many of them have already done so, should bring before them the sheriff and his deputies and also other peace officers of their county and explain to them in detail the necessity of a search warrant, the proper manner for the issuance, and the manner in which it should be executed and returned. The terms of the statute should be followed. This practice would cause many cases to be affirmed instead of reversed and would save their counties additional costs and would at the same time protect the officer and the individual citizen in their respective rights.

The first question for consideration under the first assignment of error is: Was the affidavit sufficient to sustain the court in issuing the search warrant? It will be noted that the affidavit in this case is positive in its terms "that said building is a place of public resort, and said residence is used as a place for storing intoxicating liquors." This court has heretofore held in several cases that, where the affidavit is positive in its terms, this is sufficient to give the court jurisdiction and that the defendant will not be permitted on a motion to suppress the evidence to go behind the positive statement contained in the affidavit and prove that the person making the affidavit had no personal knowledge of the facts alleged therein but was acting on information and belief. Phillips v. State, 34 Okl.Cr. 52, 244 P. 451; Ray v. State, 43 Okl.Cr. 1, 276 P. 785; Drummonds v. State, 45 Okl.Cr. 278, 283 P. 263; Bowen v. Commonwealth, 199 Ky. 400, 251 S.W. 625; Alvey v. Commonwealth, 199 Ky. 655, 251 S.W. 856; State v. English, 71 Mont. 343, 229 P. 727; People v. Haas, 79 Mich. 449, 44 N.W. 928; Potter v. Barry Circuit Judge, 156 Mich. 183, 120 N.W. 586.

We are therefore of the opinion that the...