Edwards v. State

• Decision Date: 04 February 1947
• Docket Number: A-10652.
• Parties: EDWARDS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

177 P.2d 143

83 Okla.Crim. 340

EDWARDS v. STATE.

No. A-10652.

Court of Criminal Appeals of Oklahoma

February 4, 1947

Appeal from Court of Common Pleas, Tulsa County; William N Randolph, Judge.

Jack Edwards was convicted of the crime of unlawful possession of intoxicating liquor, and he appeals.

Reversed with directions to discharge the defendant.

Syllabus by the Court.

1. The right to search and seize is in derogation of the right to be free from search and seizure, in one's person, home, and property, which includes one's automobile. Held must be strictly construed to afford intended protection against abuse.

2. Where two Federal Officers and two State Officers searching defendant's premises for Marihuana, only, under a valid warrant, upon completing search of premises observed defendant's automobile parked in street, and searched same under claim of waiver of right to demand a search warrant, and found two pints of whiskey, such claim must be supported by clear and convicing evidence. Held, in absence of showing what was said to gain consent, and, nothing more appearing than defendant's statement, 'why, look it over; you won't find anything', and his act of unlocking car, is insufficient to support waiver, and search so made is unreasonable and motion to suppress evidence by such search should be sustained on timely objection.

3. An officer can arrest without a warrant only for an offense committed in his presence.

4. For the discovery of whiskey in an automobile to constitute the commission of a misdemeanor in the presence of an officer, such discovery must be independent of a search without a warrant, and not as an incident to an unlawful search, commenced by Federal and State Officers, looking for Marihuana. Held, evidence does not support an independent discovery of whiskey, but a discovery incident to an unlawful search, which being unlawful from the beginning, is not made lawful by the discovery that an offense has been committed and evidence thus obtained should be suppressed, on timely objection by the defendant.

John L. Ward, of Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

The defendant, Jack Edwards, was charged in the Court of Common Pleas of Tulsa County with the offense of unlawfully having in his possession, certain intoxicating liquor, to wit: 'Two pints of whiskey, with the intent to barter, sell, etc., in violation of the prohibitory laws. The offense is alleged to have occurred on January 25, 1945.

To the information, the defendant filed a motion to suppress the evidence, alleging an unlawful search and seizure. After a hearing on the motion by the court on April 2, 1945, it was overruled. The defendant thereupon waived a jury, the case was tried, and the defendant convicted and sentenced to pay a fine of $100.00 and to serve sixty days in the county jail.

The facts upon which the foregoing was based are as follows: On January 25, 1945, two Federal Narcotic Officers, together with two deputy sheriffs, M. E. Gibson and Grover Wagoner, went to the defendant's residence, under the authority of a search warrant authorizing a search for Marihuana only. The search of the premises was fruitless. As they were coming out of the house, they observed an automobile parked in the street, along the curb, and in front of the house. The record is not clear as to what the Federal Narcotics Officers said to the defendant about searching the automobile. In fact, Mr. Glober, the only witness who testified concerning what was said by the Federal Officers about waiver of consent on the part of the defendant, said: 'I don't know what they told him.'

The Federal Officers were not called as witnesses. The State Officers admitted that they said nothing to the defendant relative to searching the automobile.

The State relies upon the fact that the defendant replied to whatever the Federal Officers said to him in regard to the searching of his automobile: 'Why sure--look it over; you won't find anything in there.' Also that the defendant unlocked the car and the turtleback.

The record is clear that no one saw any whiskey in the car before the search was commenced. It is not clear who opened the doors, though it does show that they were opened and the Federal Officers were searching when Mr. Glover and Mr. Gibson approached the automobile. The officers found no Marihuana but they did find two pints of whiskey. Mr. Gibson testified, in this connection, as follows: 'I walked up to the car. The doors were open and the Federal men were looking through it and there was one bottle of whiskey and I picked it up and reached under the seat and pulled out another one.' His testimony further showed that as he approached the automobile, he could see one pint of whiskey lying on the floor-board of the car. The foregoing statement of the evidence contains all that is pertinent to a decision on the issues herein involved.

Summarized, the contentions of the parties are set forth in the following language:

The defendant contends that the search was made in violation of his constitutional rights, and, that the court should have sustained his motion to suppress.

The State contends that, by his words and his actions, the defendant waived his constitutional rights and gave his consent to the officers to search his automobile without a warrant; and,

That the search was voluntarily consented to, and, when the pint of whiskey was found on the floor-board of the car, a misdemeanor was thereby committed in the officers' presence, and no warrant was needed.

Upon these facts and these issues, the decision of this court must turn.

The right of search and seizure is in derogation of the guaranties of the Constitution of the United States, the State of Oklahoma, and against the invasion of the privacy of the people. This guaranty has long since been extended to include automobiles. Suffice it, to say, that these guaranties were born of the pre-revolution days, when the homes of the people were invaded by the British Red Coats and searched with or without the slightest reason, provocation, or authority of law. It was from such experiences that the constitutional barriers against its wrongful use have been erected. But the necessities of the law and its effective enforcement required that officers of the law be extended the right to search and seize. This right, in proper cases and when properly authorized and executed, was found to be an essential adjunct to proper protection to the public against law violators. It was recognized as an essential instrument in the detection and suppression of crime, and in the disclosure and seizure of contraband and the instruments of crime.

The people recognized that in granting the right to search and seize, they were doing so in derogation of one of their most sacred rights. To prevent abuses, its use was permitted under strict prescriptions of law. The barriers, which the people erected to prevent its misuse, are, the 4th Amendment to the United States Constitution, which reads, in part, as follows: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, * * *.'

Article 2, section 30, of the Bill of Rights of the Constitution of the State of Oklahoma, reads in part, as follows: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches or seizures shall not be violated, * * *.'

These provisions, this court has held, secure the individual in his person, his home, and his property, from invasion through unbridled and unrestrained executive or administrative will. Gore v. State, 24 Okl.Cr. 394, 218 P. 545; Best v. State, 32 Okl.Cr. 89, 240 P. 159; Keith v. State, 30 Okl.Cr. 168, 235 P. 631; State v. Coburn, 68 Okl.Cr. 67, 95 P.2d 670.

Moreover, it has also been held that the protection against unlawful search and seizure extends to all equally, those justly suspected or accused, as well as to the innocent. Wallace v. State, 42 Okl.Cr. 143, 275 P. 354.

The constitutional provisions in the Bill of Rights do not prevent all searches and seizures but only those that are unreasonable and in violation of law. However, it is not permissible under such provisions to whittle away the substantial guaranties, limiting the use of a search warrant, and, thereby, permit an abuse of its use. Abbott v. State, 30 Okl.Cr. 98, 235 P. 550. To prevent the abuse of the right to search and seize, the provisions, under which the right is created, must be strictly construed. However, it is not to be so strictly construed as to thwart the reasonable and proper efforts of officers of the law to detect and prevent crime. These principles apply to searches made with or without a warrant, and to automobiles, as well as private dwellings. Strong v. State, 42 Okl.Cr. 114, 274 P. 890; Perry v. State, 72 Okl.Cr. 149, 114 P. 185.

One suspected of committing crime, under the law has a right to demand that the officers obtain a search warrant before a search is made of either his premises or his automobile. This constitutional immunity, however, is a personal privilege and may be waived. Short v. State, 48 Okl.Cr. 320, 290 P. 934; Cook v. State, 44 Okl.Cr. 226, 280 P. 626; Baker v. State, 35 Okl.Cr. 62, 248 P. 846; Gaines v. State, 28 Okl.Cr. 353, 230 P. 946; Boswell v. State, 26 Okl.Cr. 116, 222 P. 707; Hurst v....