Gore v. State

• Decision Date: 22 September 1923
• Docket Number: A-4075.
• Citation: 218 P. 545,24 Okla.Crim. 394
• Parties: GORE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

218 P. 545

24 Okla.Crim. 394

GORE v. STATE.

No. A-4075.

Court of Criminal Appeals of Oklahoma

September 22, 1923

Syllabus by the Court.

A search warrant must not be issued except upon a showing of probable cause, supported by oath or affirmation, which must set forth the facts tending to establish probable cause. An affidavit stating mere conclusions, or made on belief without stating the facts, is insufficient, and a search warrant based upon such a showing is void.

A search and seizure forcibly made under color of a void search warrant is an "unreasonable search and seizure," within the meaning of section 30 of our Bill of Rights.

Any articles, papers or property seized by the officers or agents of the court, under color of an unreasonable or unauthorized search and seizure, taken from the home, office, or private premises of one accused of an offense, should not be used as evidence against an accused, where timely objections are made to the introduction of such evidence so illegally obtained.

(a) The same rule will apply to objections made to oral testimony of the officers relating to such illegal search and seizure.

(b) The reception of evidence so obtained is in conflict with sections 21 and 30 of the Bill of Rights, giving one accused of crime immunity from becoming a witness against himself and inhibiting unauthorized searches and seizures.

(c) The holdings of this court hitherto, so far as in conflict with the rule of evidence here announced, are overruled.

A rule of evidence established by the Supreme Court of the United States, relating to evidence illegally obtained by officers or agents of the court, by means of an illegal search and seizure, or against compelling an accused to be a witness against himself, is not binding on state courts in cases relating to like seizures in violation of like provisions in state Constitutions, but will, in the interest of uniformity of decisions, be highly persuasive.

The objections to such illegal evidence, if the purpose to use it is known to the accused, should be made by motion or otherwise before the trial begins; but where it appears that the state's attorney knew of the plan or acquiesced in the plan to introduce such evidence, an objection seasonably made during the trial is sufficient.

Appeal from County Court, Caddo County; C. B. Case, Judge.

F. G Gore was convicted of unlawfully manufacturing whisky, and he appeals. Reversed and remanded.

C. H Carswell, of Anadarko, for plaintiff in error.

The Attorney General and N.W. Gore, Asst. Atty. Gen., for the State.

BESSEY J.

F. G Gore, plaintiff in error, here designated the defendant, was by information filed in the county court of Caddo county, April 27, 1921, charged with having on that day manufactured spirituous liquors by a method of distillation from some unknown substance containing alcohol as a by-product through the operation of an apparatus known as a whisky still. At the trial, June 10, 1921, by a verdict of the jury, the defendant was found guilty as charged, without assessing the punishment. Subsequently the court rendered judgment upon the verdict, fixing the defendant's punishment at a fine of $250 and confinement in the county jail for a period of 90 days. From the judgment so rendered, the defendant appeals to this court.

The defendant says the judgment of the trial court should be reversed because he was convicted upon evidence forcibly and illegally obtained by the officers of the court, evidence seized and obtained by means of two void and illegal search warrants procured from a magistrate upon two affidavits of a deputy sheriff, based on information and belief only, in violation of defendant's rights under the Fourth and Fifth Amendments to the federal Constitution, and in violation of sections 21 and 30 of the Bill of Rights of our state Constitution. and of sections 2876-2880, Comp. Stat. 1921, relating to search warrants.

The Fourth Amendment to the Constitution of the United States reads thus:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fifth federal Amendment, so far as here involved, reads:

"No person * * * shall be compelled in any criminal case to be a witness against himself."

Section 21 of our Bill of Rights, so far as it here applies, reads:

"No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided."

Section 30 of our Bill of Rights is 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; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized."

Section 2877, Comp. Stat. 1921, provides that a search warrant may be issued when the thing sought to be seized is in the possession of any person, with the intent to use it as a means of committing any public offense, or in the possession of another to whom he may have delivered it for the purpose of concealing or preventing its being discovered. Section 2879, idem, provides that a magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.

In this case two affidavits were made by a deputy sheriff, for the purpose of procuring two search warrants, one authorizing him to search the residence and premises belonging to the defendant in town, and the other authorizing him to search certain premises belonging to the defendant, in the country, some distance from town. The written affidavits upon which these two search warrants were procured were in form as follows:

"Now comes W. L. Townsend, and upon oath says that he has probable cause for believing and does believe that intoxicating liquors are being manufactured, sold, bartered and given away and otherwise disposed of, and are being kept for the purpose of selling, bartering, giving away, dividing, distributing, and otherwise furnishing said liquors, in violation of the laws of the state of Oklahoma, by F. G. Gore; that said intoxicating liquors are stored and being kept in the buildings and premises on (here the premises in each instance are particularly described), and that said building is (not) the residence of said F. G. Gore, or any other person, but the same is used as a place of storage of the said intoxicating liquors."

The defendant says these two affidavits are insufficient in form and substance to authorize the issuance of search warrants, and that the two search warrants issued, based upon these affidavits, are therefore void, not being in compliance with the constitutional and statutory regulations relating to search and seizure; that the statement made in the affidavits that the affiant "has probable cause for believing and does believe that intoxicating liquors are being manufactured, etc.," amounts to a complaint made on information and belief only, and does not "set forth the facts tending to establish the grounds of the application or probable cause for believing they exist," as provided in our statutes. This court is of the opinion that this objection is well taken.

In Salter v. State, 2 Okl. Cr. 464, 102 P. 719, 25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935, the question of the issuance of warrants, whether in felony or misdemeanor cases, is ably discussed and analyzed by Judge Doyle, in which opinion the decisions of the United States Supreme Court, touching upon the question, are reviewed from the beginning, as well as the rulings of other courts, all to the effect that a complaint upon information and belief constitutes no grounds upon which a magistrate may issue a warrant. The probable cause must be shown, as distinguished from the mere information and belief of affiant.

In another opinion written by Judge Doyle, Silva v. State, 6 Okl. Cr. 97, 116 P. 199, this court held, among other things, that a search warrant issued upon information and belief is issued without warrant of law and in violation of section 30 of our Bill of Rights.

This rule had its origin in England, before the organization of this government. In an opinion by Chief Justice Marshall rendered in 1806, Ex parte Burford, 3 Cranch, 448, 2 L.Ed. 495, a prisoner was released because there was no sufficient affidavit made as a foundation for the warrant of arrest. There was no preliminary showing made on oath that the petitioner had committed any specific crime. The charge, such as it was, was not supported by the oath of any one having knowledge of the facts. The eminent Chief Justice said:

"If the charge against him was malicious, or grounded on perjury, whom could he sue for the malicious prosecution? or whom could he indict for perjury?"

There are authorities holding that affidavits on information and belief are sufficient grounds for the issuance of search warrants, and are sufficient compliance with federal and state Constitutions, but the holdings of this court and the weight of authority in other courts seem to be to the contrary. 16 Corpus Juris, 292.

If however, there is any doubt that the Constitution requires that an affidavit to obtain a search warrant must show facts to warrant a magistrate to issue such warrant, as distinguished from mere information and belief of...