Elliott v. State

• Decision Date: 28 May 1938
• Citation: 116 S.W.2d 1009,173 Tenn. 203
• Parties: ELLIOTT et ux. v. STATE.
• Court: Tennessee Supreme Court

116 S.W.2d 1009

173 Tenn. 203

ELLIOTT et ux. v. STATE.

Supreme Court of Tennessee.

May 28, 1938

Error to Criminal Court, Madison County; Frank L. Johnson, Judge.

Homer Elliott and wife were convicted of transporting and possessing liquor, and they bring error.

Reversed.

Murchison & Manheim and Roger G. Murray, all of Jackson, for plaintiffs in error.

W. F Barry, Jr., Asst. Atty. Gen., for defendant in error.

CHAMBLISS Justice.

Elliott and wife were convicted under an indictment charging transporting and possessing liquor and fined $100 each, and Homer Elliott was sentenced to serve thirty days in the County workhouse. Appealing they complain that (1) their arrest was unlawful, and (2) the search of their car was unauthorized, and that the testimony of the officers as to their discovery of the liquor was, therefore, inadmissible. The facts are thus fairly stated on the brief for the State:

"During the late afternoon of Christmas Eve, 1937, the defendants Homer Elliott and his wife, Mrs. Homer (Lucile) Elliott accompanied by the wife's sister, were driving south on Highway No. 45 in the direction of Jackson, Tennessee. Mrs. Elliott was driving the automobile, which was a Studebaker 6 coupe.

"The highway upon which they were traveling runs south from Fulton, Kentucky, through Martin, Milan, Medina, etc. and ten miles north of Jackson it converges with Highway No. 5, which runs south from Union City, Trenton, Humboldt, etc. At this point, known as Fairview, or Threeway, were Sergeant Townes and patrolman Cook of the Tennessee Highway Patrol. These officers were on duty, examining driver's licenses and also seeing that vehicles were brought to a proper stop on Highway 45 before entering the intersection of the two highways.

"The officers testified that they observed defendant's car as it came up to the intersection of the highways and that a stop was made there as required by law before the car entered the intersection. There was no violation of any traffic law, or rule, or reckless or fast driving to cause them to stop defendants' car. There was no outward appearance of the car which would tend to attract their attention or suspicion, except the possible fact that it did not bear a Madison County number plate.

"Sergeant Townes and Patrolman Cook immediately followed defendants' car in the direction of Jackson and passed it on the way to town. The officers proceeded to the small settlement of Hicksville, which is located on the Jackson corporation line. They there stopped their car at a filling station two or three minutes until defendants' car passed, and it is their testimony that when defendants' car passed them it was running at a rate of forty to forty-five miles per hour through this settlement of Hicksville, which they regarded as a restricted zone under the provisions of Chapter 245 of the Public Acts of 1937, and prima facie evidence of reckless driving on the part of defendant Mrs. Elliott under the terms of said Act.

"The officers followed defendants' car only a short distance and stopped it after it had turned off on Fairmont Avenue a cross-street.

"After stopping the car Patrolman Cook remained in the officers' car and Sergeant Townes went to defendants' car, where he asked to see the driver's license. According to his testimony, he examined Mrs. Elliott's driver's license, found it regular and then asked her why they were driving forty or forty-five miles an hour through the settlement of Hicksville coming into Jackson.

Mrs. Elliott replied that she didn't realize they were driving that fast and Sergeant Townes then said that he would have to place her under arrest for that offense. Having made the arrest he then attempted to open the compartment in the rear of the coupe and found it locked. He asked both Mr. and Mrs. Elliott for the key and both of them said that they did not have it, whereupon he took the key from the ignition, unlocked the rear of the car and there found some ten cases of liquor."

Counsel for plaintiffs-in-error say, first, that the officers apparently suspected, for reasons not appearing, that the car contained liquor and that they stopped their car at the point shown hoping to find some pretext upon which to make an arrest; that this arrest was not bona fide, that the defendants had violated no traffic law or regulation.

Conceding the plausibility of the insistence that the arrest was itself unlawful, we find it unnecessary to determine that question, in view of the conclusion hereinafter announced on the second complaint made on behalf of the plaintiffs-in-error, that the search which disclosed the liquor exceeded proper limitations, even if the arrest for this traffic violation was lawful.

The Attorney General cites the following statement of the general rule:

"When one is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution. Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790.

"The instrumentalities used in the crime may be seized as incident to a lawful arrest. United States v. Chin On (D.C. 1924) 297 F. 531."

The Attorney General also quotes from 56 C.J. 1198, the following:

"It is well settled that a search without a search warrant is justifiable where it is incident to a lawful arrest, and a seizure, on such a search, of evidence related to the crime, as well as the instruments of its commission and of means and implements of escape, are likewise permitted on such a search.

" Search of Person. As an exception to the general rule it has been recognized both in English and American law no search warrant is necessary to search lawfully arrested persons for evidence connected with the crime."

The italics in the foregoing excerpts are ours. The words italicized are significant, as hereinafter shown.

This case presents the question, not heretofore directly dealt with in any reported case in this State, to what extent is a search without a warrant of the person and property of an accused justified by a lawful arrest for an alleged breach of the peace,--here a violation of a traffic law,--committed in the presence of the officer.

We italicize the significant words, "to what extent"...