Dillon v. City of Tulsa

• Decision Date: 07 July 1954
• Docket Number: No. A-11990,A-11990
• Citation: 273 P.2d 145
• Parties: DILLON v. CITY OF TULSA.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 145

273 P.2d 145

DILLON v. CITY OF TULSA.

No. A-11990.

Criminal Court of Appeals of Oklahoma.

July 7, 1954.

Syllabus by the Court.

1. There is no violation of the constitutional provision against search and seizure by the search, without warrant, of an automobile standing on a public street, and seizure of intoxicating liquor in it, evidencing that a crime is being committed.

2. The fact that the Constitution secures the people against 'unreasonable searches and seizures', Art. II, § 30, does not imply that an officer may not make a search and seizure without a warrant, where the person whose property is searched may be known or believed on reasonable grounds to be guilty of an offense.

3. An offense is committed or attempted 'in the presence of an officer', within the meaning of the law, where such officer is apprised by any of his senses that misdemeanor is being committed by the person arrested prior to his arrest.

4. A constitutional provision against unreasonable searches and seizure does not preclude the making of a seizure without a warrant previously procured, where there is no need of a search for intoxicating liquor, because the same is fully disclosed and open to the eye.

5. An ordinance passed by a city acting under charter provisions, which conflicts with the general laws of the State, must give way, and while it may run concurrent with the general laws of the State, it may not run counter thereto.

6. The words 'concealed on or about his person', and 'about his automobile' as used in the statute, Title 21 O.S.1951 § 1271 and Title 19, § 402, Revised Ordinances, City of Tulsa, respectively, were intended to mean and do mean concealed in such proximity to the person as to be convenient of access and within reach.

Frank Leslie, Tulsa, for plaintiff in error.

H. M. Crowe, Jr., City Atty., A. A. Berringer, Asst. City Atty., Tulsa, Mac Q. Williamson, Atty. Gen., for defendant in error.

BRETT, Judge.

The plaintiff in error John G. Dillon, defendant below, was charged by information in the municipal criminal court of the city of Tulsa, Oklahoma, of having on July 6, 1953, violated City Ordinance Title 19, Par. 402 of the Revised Ordinances of the city of Tulsa, within the city limits, to wit, carrying a concealed weapon. The defendant was tried by the court, found guilty and his punishment fixed at a fine of $15 and judgment and sentence was entered accordingly, from which this appeal has been perfected.

A motion to suppress the evidence was made and overruled of which action the defendant complains. The facts on the motion to suppress were briefly these. About 10:00 or 11:00 p.m., on July 6, 1953, Officer Jim Hart discovered the automobile being driven by the defendant parked on the south side of the service station located at Elgin and Archer streets. He testified he saw the defendant talking on the telephone in the filling station. When they approached the automobile Officers Harp, Haus and Bivins without the aid of a flashlight observed 3 or 4 lugs of whiskey in the automobile. He knew, they were packed and wrapped in brown paper, it was whiskey. Moreover some of the lugs he related had written on them the word 'Hill' which he knew signified Hill & Hill brand of whiskey. Some had the letter 'G' and 'gin' written out on the side of the lugs signifying gin. He further testified the officers searched the automobile and found in addition to the liquor therein, a .32 automatic pistol in the glove compartment of the automobile. He testified that when they saw the liquor in the automobile they seized the same (18 or 20 lugs in all) and that thereafter he went into the service station and arrested the defendant. The foregoing facts are undisputed. On this evidence the trial court overruled the motion to suppress. The seizure of the pistol was an incident to the seizure of the whiskey observed in the automobile. The conviction of the possession of the concealed weapon must ultimately stand or fall upon the search in which the liquor was seized. If it was lawful, then the evidence of the pistol and the testimony in relation thereto was admissible.

The following cases bear marked similarity from a factual standpoint to the case at bar. Nott v. State, 70 Okl.Cr. 432, 107 P.2d 366; Arnold v. State, 70 Okl.Cr 203, 105 P.2d 556; Davenport v. State, 71 Okl.Cr. 91, 108 P.2d 549, wherein the officers observed the liquor through the car window and saw the whiskey lugs which were marked 'J. E. P.' for James E. Pepper, 'W. F.' for Waterfill Frazier, etc. The defendant had gone to a restaurant when the seizure was made. In the Nott case the late Judge Doyle gave an extended discussion on the question of the right to search the automobile without a warrant and sustained the search and seizure in that case. In Matthews v. State, 67 Okl.Cr. 203, 93 P.2d 549, 550, 554, intoxicating liquor was observed by the officers at Enid while checking parked cars on the streets to see if those containing valuables were locked. They observed a carton on the floor of the automobile labeled Paul Jones Whiskey. The car was seized, towed to the station, and the search disclosed 4 quarts of liquor. Later the defendant appeared at the station and was arrested. A further search of the car disclosed 5 or 6 bottles of Crab Orchard whiskey. That search and seizure was sustained. Therein this court said:

'There is no violation of the Constitutional provision against search and seizure by the search, without warrant, of an automobile standing on a public street, and seizure of intoxicating liquor in it, evidencing that a crime is being committed.

'The fact that the constitution secures the people against 'unreasonable searches and seizures' does not imply that an officer may not make a search and seizure without a warrant, where the person whose property is searched may be known or believed on reasonable grounds to be guilty of an offense.

'An offense is committed or attempted 'in the presence of an officer,' within the meaning of the law, where such officer is apprised by any of his senses that a misdemeanor is being committed by the person arrested prior to his arrest.

'A constitutional provision against unreasonable searches and seizure, does not preclude the making of a seizure without a warrant previously procured, where there is no need of a search for intoxicating liquor, because the same is fully disclosed and open to the eye.

'Whether search of, and seizure from, an automobile parked on a public street or other public place, without a warrant, is unreasonable, is to be determined as a judicial question in view of all the facts and circumstances under which it is made.'

Likewise the facts in this case present a judicial question. Indisputable facts testified to by the officers was sufficient to warrant the officers in believing an offense was being committed in their presence. In view of the cricumstances of this search and seizure we are of the opinion no violation of the defendant's constitutional rights, O.S.1951 Const. Art. II, § 30, was involved. The pistol as evidence as hereinbefore set forth was not subject to a motion to quash.

Next the defendant complains that he was convicted under city ordinance, Title 19, § 402, Revised Ordinances of the city of Tulsa, reading as follows, to wit:

'It shall be and is hereby declared to be unlawful for any person in the City of Tulsa to carry concealed about his automobile, buggy, wagon, or any other vehicle, or within any saddle or saddle bag, any pistol, revolver, bowie knife, dirk knife, dagger, slungshot, sword,...