Graham v. State

• Decision Date: 05 November 1947
• Docket Number: A-10774.
• Citation: 184 P.2d 984,86 Okla.Crim. 9
• Parties: GRAHAM v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

184 P.2d 984

86 Okla.Crim. 9

GRAHAM v. STATE.

No. A-10774.

Court of Criminal Appeals of Oklahoma

November 5, 1947

Appealed from Superior Court, Creek County, Drumright Division Herbert L. Arthurs, Judge.

Edward Marion Graham was convicted of unlawful possession of intoxicating liquor, and he appeals.

Reversed and remanded with directions to discharge defendants.

Syllabus by the Court

1. 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.

2. It is fundamental that proof of a waiver must be clear and convincing that the waiver was a free and voluntary act.

3. Where a highway patrolman inquires of a driver of an automobile bearing a commercial license as to ownership and certificate of registration and finds the driver cannot produce said certificate, as required by law, but makes no arrest for that or any other reason, and then asks permission to search the automobile without a warrant, which permission is refused, and then threatens to impound said automobile for seventy-two hours and permission is then granted because of such threat--and the officer makes a search under permission thus obtained--said consent does not constitute waiver as free and voluntary act.

4. Held, under the circumstances in this case, it was reversible error for trial court to overrule defendant's motion to suppress.

Tillman & Tillman, of Pawhuska, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for defendant in error.

BRETT Justice.

The defendant, Edward Marion Graham, was charged with being in unlawful possession of 48 1/3 pints, 12 quarts, and 12 4/5 quarts of whiskey. He was tried, convicted, and sentenced to 60 days at hard labor in the county jail and assessed a fine of $200 and costs.

There are several assignments of error, the first of which is that the court erred in not sustaining the defendant's motion to suppress evidence. This proposition is based upon the contention that the search was unlawful, as it was not made with a search warrant nor incident to a lawful arrest. The facts and evidence in relation thereto are substantially as follows: The defendant's car was parked in front of Roscoe's Tavern, west of Drumright on the night of January 15, 1946. A Highway Patrol car, occupied by officers Mansfield and Mount, drove up alongside the defendant's automobile just before the defendant and his two companions came out of the tavern. The highway patrol had theretofore observed that the defendant's car bore a commercial car license plate. As the defendant and his companions were about to get into the automobile, officer Mansfield approached him and asked him to whom the car belonged and asked him if he had a certificate of registration. The defendant said he owned it but that his wife had the title. For the remainder of the facts and evidence in relation to the search, we quote from the record. Edward Marion Graham, the defendant, testified in his motion to suppress, as follows, to wit:

'Q. Now, when did you first learn that there were any officers in the immediate vicinity of your car? A. I just came out of the night club and they were parked by it.

'Q. In the highway patrol car? A. Yes sir. * * *

'Q. Now what was the first thing said by either of these officers to you? A. They asked me if the car was mine.

'Q. What did you tell them? A. I told them 'yes', and then they asked me to look into the trunk, and what I had in the trunk of my car, and I told them nothing, and they asked me to see, and I lifted the trunk lid and showed them, and there was nothing there.

'Q. What was done or said then? A. He asked me how about looking in my car and I told him I didn't see that he had any right to, and he said he could impound my car for seventy-two hours for investigation. He said, which did I want him to do, impound my car for seventy-two hours or search it, and I told him it looked like they were running things and he went on and searched it.

'Q. Had he ever placed you under arrest? A. No.

'Q. Had he seen you violate a law? A. No.'

On cross-examination, after testifying that his wife had the title to the car, the defendant gave further evidence as follows, to wit:

'Q. Did you tell him you supposed that you knew what he was looking for and you walked around the car and took a half pint of whiskey out of the glove compartment of your car and handed it to him? A. No.

'Q. Did that happen? A. No.

'Q. That didn't happen? A. No. * * *

'Q. And then what happened after they opened the door? A. He jerked the seat out of the car--the back part of the seat.

'Q. Now, let's get that pint of whiskey straightened out. Was there in evidence there a pint of whiskey? A. The pint was in my glove compartment.

'Q. Who took it out of the glove compartment? A. Mr. Mansfield, as far as I know.

'Q. You didn't do it? A. No.

'Q. You didn't hand it to him? A. No

'Q. You didn't tell him, 'If this is what you are looking for, here it is?' A. No.

'Q. That didn't happen at all? A. No.

'Q. Well, did Mr. Mansfield ask your permission to open that door? A. No. He asked but I told him that I didn't see that he had any right to.

'Q. He asked to? A. Yes, and I told him he didn't have any right to and then was when he told me he could impound the car for seventy-two hours or search it, and then I told him it looked like he was running things and then he opened it without my permission.

'Q. You told him it looked like he was running things? A. That is right.

'Q. And he opened the door? A. Yes.'

Officer Mansfield, after testifying that he approached Graham and his companions with the inquiry as to whom the automobile belonged, gave further evidence as follows, to wit:

'* * * Mr. Graham said it was his, and I asked him then if he had his title with him, and he said 'No,' and I asked him who had his title and he said his wife had his title and his used car dealer certificate, that he was a used car dealer. I got out then and came around behind the car and I asked if he had anything in the back and he said 'No,' and he opened the turtle and threw it up and it was empty with exception of a tire and jack and maybe some tire tools. We went around on the other side and these other two boys had gotten out of the car and the door was open on the other side, and he opened the glove compartment and took out a half a pint of whiskey and said 'If that is what you are looking for, here it is,' and I asked him about searching the car and he said he didn't know why I should, and I told him that when he didn't have the title and no proof of ownership the car could be impounded until proper title was brought up to show who owned it and during that time he would get a warrant to search it if necessary, and he said if that was necessary to go ahead and search, and I pulled up this seat and dropped it back (here the whiskey was found) and told him he was under arrest. * * *' (Parenthesis our own.)

On cross-examination, officer Mansfield testified as follows:

'Q. Did you arrest him when he handed you that third pint? A. No, sir.

'Q. You didn't place him under arrest? A. No, sir.

'Or give him any indication that he was under arrest at that time? A. Not so far as telling him, no. * * *

'Q. Now, you had no permission to go in that automobile? A. Any other than his.

'Q. What permission did he give you? A. When we discussed this title and the impounding of the car and I told him what could happen, he says, 'In that case, why you are allowed to search the car.''

It is pertinent to add, in this regard, that subsequent investigation disclosed that the tag on the defendant's automobile was a proper license and the fact of ownership was as he disclosed to the officers on the occasion in question.

Officer Mount's testimony is to the effect that he remained in the patrol car until after Mr. Graham was placed under arrest. His testimony is inconsistent and in conflict with that given by officer Mansfield and is therefore of little value under the circumstances, except that no arrest was made until after the search.

Based upon the foregoing evidence, the defendant contends that the search and seizure was unlawful and in violation of his Constitutional rights under the Fourth 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, * * *.'

And, also in violation of the Constitution of Oklahoma, Art. 2, § 30, of the Bill of Rights, which 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 in numerous decisions, protect the individual in his person, his home, and his property, from invasion through unbridled and unrestrained executive or administrative will. Edwards v. State, Okl.Cr., 177 P.2d 143; 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. Likewise, in Edwards v. State, supra, this court said :

'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.'

This constitutional inhibition does not prevent all searches and seizures but only those that are unreasonable and...