Gaines v. State
| Decision Date | 10 December 1924 |
| Docket Number | A-4985. |
| Citation | 230 P. 946,28 Okla.Crim. 353 |
| Parties | GAINES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Peace officers often lose sight of the distinction between the right to make arrests without a warrant in felony and misdemeanor cases. If the misdemeanor is not committed in the presence of the officer, the officer should procure a warrant before making the arrest; but a different rule applies where a felony has been committed, though not in the presence of the officer, and there is reasonable cause to believe that the person about to be arrested has committed such felony. Under such circumstances the felon, or suspected felon, may be arrested without a warrant.
The right to immunity from a search and seizure without a search warrant may be waived.
The right to protection and immunity against searches and seizures applies only to unreasonable and illegal searches and seizures.
One legally arrested may be searched for property connected with the offense which may be used as evidence against him, or for weapons or things which might facilitate his escape. This would apply to a search for a package of narcotic drugs thrown away by the person at the time of his arrest.
Appeal from District Court, Logan County; C. C. Smith, Judge.
Marion Gaines was convicted of the illegal possession of narcotic drugs, and he appeals. Affirmed.
George W. Carry, of Guthrie, for plaintiff in error.
The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
Marion Gaines, plaintiff in error, here referred to as the defendant, was on the 22d day of September, 1923, in the district court of Logan county, convicted of the unlawful possession of narcotic drugs, and by the verdict of the jury his punishment was fixed at confinement in the penitentiary for a term of five years and to pay a fine of $1,000.
The evidence shows that Tom Boggess, sheriff. Herb Spencer, chief of police of the city of Guthrie, C. E. James, a policeman and W. M. Murphy, acting upon information received by them were making a search for the defendant on the streets of Guthrie and, not being able to find him at the place designated, went to the residence of the defendant. The defendant was sitting on the porch, and as the sheriff approached he hastily arose and removed from his vest pocket a small package, and started for the door. The sheriff sought to detain him, but he passed into the house through the screen door, and threw this package into another room, or closet. The officers later recovered the package, which contained a large number of tablets and capsules of morphine and cocaine. The defendant was placed under arrest and taken to the police station. A search warrant was procured to search the premises for intoxicating liquors and narcotic drugs, which was accordingly done, but no drugs or liquor was found in the search subsequently made. It seems that the sheriff, at the time he and the other officers were endeavoring to find the defendant on the streets of Guthrie had a search warrant, or a copy of a search warrant, but the record does not disclose its terms or import.
The defendant earnestly contends that the narcotic drugs seized at his residence were procured by an unreasonable and illegal search and seizure, and that the court erred in permitting this evidence to be introduced over the timely objections of the defendant.
The state contends that the arrest and seizure were authorized because the defendant was apprehended and arrested for the commission of an offense in the presence of the officers, and that the arrest and seizure were further justified upon the ground that a felony had been committed and the arresting officers had reasonable grounds for believing that the defendant was the perpetrator.
Section 2471, Comp. St. 1921, provides that an officer may arrest a person without a warrant for a public offense committed or attempted in his presence. This applies to both misdemeanors and felonies. This section also provides that a person may be arrested without a warrant where a felony has in fact been committed and the officer has reasonable cause for believing the person about to be arrested committed it.
Peace officers often lose sight of the distinction between the right to make arrests without a warrant in felony and in misdemeanor cases. If the misdemeanor is not committed in the presence of the officer, the officer should procure a...
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