Hoppes v. State

• Decision Date: 04 September 1940
• Docket Number: A-9686.
• Parties: HOPPES v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

105 P.2d 433

70 Okla.Crim. 179

HOPPES v. STATE.

No. A-9686.

Court of Criminal Appeals of Oklahoma

September 4, 1940

Syllabus by the Court.

1. Where an offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted to be committed in officer's presence.

2. A peace officer may arrest without a warrant in the case of a misdemeanor only where it is committed or attempted in his presence. And where the officer does not know of the act constituting the offense, it is not committed in his presence.

3. Whether a search of or seizure from an automobile, parked on a public street, without a warrant, is or is not unreasonable within the meaning of the constitutional provision forbidding unreasonable searches and seizures, is a judicial question to be determined in each case in view of all the facts and circumstances under which the search or seizure is made.

4. A search of an automobile without a search warrant and not as an incident of a lawful arrest, and not upon any probable cause of the commission of a felony, but upon a mere suspicion, is in violation of Bill of Rights, Sec. 30, and evidence obtained by such a search is inadmissible. Const Art. 2, Sec. 30, Okl.St.Ann.

5. Where an officer, after lawfully stopping or restraining a person, becomes aware that an offense is being committed or is about to be committed in his presence, he may lawfully arrest the offender without a warrant, but where the officer becomes aware of the facts constituting the offense after making an unlawful arrest, the arrest cannot be justified as being for an offense committed in his presence.

6. Officers without warrant stopping and searching an automobile on public highway must possess knowledge or information of facts constituting probable cause for reasonable belief that automobile contains illegal liquor.

7. Manual custody or restraint is not essential to the effectuation of an arrest, if the person claiming to have been arrested submits to a manifestation or claim of authority to make the arrest, and an expression of intent to execute such authority.

8. An unlawful arrest may be effected without manual seizure or touching of the subject of the arrest, such words and conduct by a known officer as given reasonable ground for belief on the part of the subject that the officer has present intention to make the arrest, and submission on the part of the subject in good faith, and under the belief that she has been arrested or will be arrested immediately, is sufficient.

9. Search implies an invasion and quest, with some sort of force, either actual or constructive.

10. A "search," within constitutional immunity from unreasonable search and seizure, implies a quest by an officer of the law acting on the things themselves, which quest may be secret, intrusive, or accomplished by force.

11. The search of defendant's automobile without a warrant of arrest, or search warrant, or knowledge of the officers that it contained intoxicating liquor, following her unlawful arrest, held to be an unlawful and unreasonable search, requiring exclusion of evidence obtained thereon in prosecution of defendant for unlawfully transporting intoxicating liquor.

Appeal from County Court, Pontotoc County; Hoyt Driskill, Judge.

Sue Hoppes was convicted of the unlawful transportation of intoxicating liquor, and she appeals.

Judgment reversed, and case remanded, with direction to dismiss.

BAREFOOT J., dissenting.

W. V. Stanfield and W. B. Grigsby, both of Ada, and Wayne Wheeling, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Carloss Wadlington, Co. Atty., and J. W. Dean, Asst. Co. Atty., both of Ada, for the State.

DOYLE Presiding Judge.

Plaintiff in error, Sue Hoppes, was convicted of the offense of unlawfully transporting intoxicating liquor, and in accordance with the verdict of the jury was sentenced to confinement in the county jail for thirty days and to pay a fine of $50.

The information in substance charged that Sue Hoppes, in Pontotoc county on the 19th day of January, 1939, did unlawfully transport 53 pints of whisky from a point unknown to the intersection of Fifth Street and Ash Avenue in the city of Ada. To reverse the judgment she appeals.

The first assignment of error relied upon for a reversal of the judgment is that the court erred in overruling the motion of defendant to suppress the evidence offered on the part of the state.

Before the commencement of the trial, counsel made a motion to suppress all of the evidence which the state seeks to use on the ground that it had been illegally obtained by an unlawful search without a search warrant, and that no offense known to the law had been committed in the presence of the officers before they arrested the defendant.

It was also stipulated that this motion be considered as filed in the civil forfeiture case, State of Oklahoma v. One Chevrolet Automobile, and the evidence introduced in support of this motion will be applicable in the forfeiture case.

In support of the motion to suppress, Sue Hoppes as a witness in her own behalf testified that she lives at 331 West Fourteenth Street, and had lived in Ada for the past twenty years; that on January 19th, she was arrested in the 600 block on West Fifth, that she was driving her automobile on the streets of Ada, had observed a car following her a short way back and as she approached Fifth Street the siren sounded and knowing that officers' cars are equipped with sirens she thought when they blew the siren that meant she was under arrest and she pulled to the curbing and stopped her car. The car following her stopped in front of her car, Joe Porter came back and opened the door of her car, raised up a piece of canvas between the seats and uncovered a quantity of whisky on the floor of her car, and said: "I will drive this car", and told her to get in the back seat. That the bottles were all wrapped in heavy brown paper. He hollered to Jim Rogers who was standing by their car and said, "Jim, drive my car down to the office", and she rode in the back seat of her car to the court house, and was kept in custody until she posted bond for the crime of unlawfully transporting intoxicating liquor. Ruby Jean Simmons was with her in her car. They took Ruby home and took her car to the Chevrolet garage, that no search warrant or warrant of arrest was served upon her.

On cross-examination she stated: "I had been to the grocery store and drove up to my place of business, my victrola was playing and I drove on because I had intended to get some victrola needles and forgot them, I said, Ruby Jean, I forgot to get those needles. We went North on 6th Street to Daggs' house, turned east on 6th Street to go to Paul Carter's in the Six Hundred Block West 4th Street to get some needles for my victrola. The first time I noticed the officers' car was when they blew the siren." Asked, "Did you tell Joe Porter you had a load of liquor, or something to that effect? A. No, sir, I did not."

Ruby Jean Simmons testified that she lives at 105 South Oak, and was with Sue Hoppes when an officer stopped her at Fifth and Oak; that she got in the car at Butler and Hisle's Grocery, on Tenth Street, and they drove to Sue's place, then drove on to get some victrola needles. When they heard the siren Sue stopped the car. The officer's car stopped and officer Porter came back to the car, asked Sue why she was driving so fast, and opened the door, searched the car and found groceries and whisky, that she did not know the whisky was in the car, that it was after dark, the head lights were turned on.

Cross-examination:

"Q. You say the deputy sheriff opened the door on the car? A. I did.

Q. Before he did that, did he ask Sue what her hurry was? A. He asked her why she was driving so fast.

Q. Before he opened the door? A. I believe it was. Q. What did she say to him when he asked her that? A. She said she did not realize she was driving fast.

Q. She didn't say 'I have got a load of liquor?' A. She didn't, I did not hear her say that."

Asked: "Did Sue leave anything at her place?", answered, "No". Asked, "Why did she go on." Answered: "She said, Ruby Jean, we have to go and get those victrola needles", the victrola was playing and she started back north, going to Paul Carter's on Fourth Street, where she always gets needles.

She further stated that Sue did not tell the officer, "I have got a load of liquor."

Joe Porter, deputy sheriff, testified on the motion to suppress that he was with Jim Rogers at the Wilfong Service Station on West Main Street, Ada, when he observed the defendant driving a Chevrolet automobile, coming from the south and she turned west on State Highway 19, towards her place of business, and they immediately started in pursuit; that she drove on by her place, going north. They followed her, driving as fast as he could get his car to run, that when three or four hundred yards behind he turned his siren on. She stopped her car and he pulled up beside her, that he got out of his car, walked back to her car and asked what her hurry was, she said she had a load of liquor and was trying to get away, to out run me, that he did not remember the exact words, and did not remember whether she or he opened the door of the car, that he saw whisky in the car, but did not know whether it was before or after the door was opened. That he did not search the car, but just got in and drove it to the sheriff's office, that he had no warrant for the defendant's arrest, nor a search warrant for her car or person.

On cross-examination he testified:

"Q. Joe, why did you follow the defendant when you saw her pass Wilfong's filling station? A. I wanted to

...