Johnson v. State, A-11156

• Decision Date: 12 July 1950
• Docket Number: No. A-11156,A-11156
• Citation: 220 P.2d 469,92 Okla.Crim. 63
• Parties: JOHNSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 469

220 P.2d 469

92 Okla.Crim. 63

JOHNSON v. STATE.

No. A-11156.

Criminal Court of Appeals of Oklahoma.

July 12, 1950.

Syllabus by the Court.

1. A search of an automobile without a search warrant and not as an incident of a lawful arrest, and not on any probable cause of the commission of a felony, but on mere suspicion, violates the constitutional provision forbidding unreasonable searches or seizures, and evidence obtained by such a search is inadmissible.

2. 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 the officer's 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 the officer's 'presence'.

3. The search of motorist's automobile without warrant of arrest, or search warrant, or knowledge that automobile contained intoxicating liquor, after motorist was unlawfully arrested, was an 'unreasonable search' within meaning of the Constitution giving the right to be secure against 'unreasonable searches,' and evidence obtained from the motorist should have been excluded in prosecution for the unlawful possession of intoxicating liquor.

4. Where highway patrolmen follow automobile of known bootlegger for several miles and then stop him for allegedly driving eighteen inches across the center line of the road and search defendant and his automobile but no charge is filed for alleged reckless driving the court will treat the action of the officers as an unlawful violation of the defendant's constitutional right to immunity from an unlawful search, and upon timely motion to suppress, the evidence obtained by the illegal search should have been excluded.

Ryan Kerr, Altus, for plaintiff in error.

Mac Q. Williamson, Atty. Gen. and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

JONES, Presiding Judge.

The defendant, Melvin Johnson, was convicted in the district court of Jackson County for the illegal transportation of whiskey, a fourth offense, and has appealed.

It is contended that the trial court erred in overruling the motion to suppress the evidence presented by the defendant.

There is very little dispute in the testimony of the defendant and the two highway patrolmen as to the facts surrounding the search and seizure of the whiskey in question.

Defendant was a known whiskey peddler. A few nights before the night in question the highway patrolmen had, to quote from the testimony of the patrolmen, 'quite a chase with him', and charges had been filed based on the evidence obtained in that chase. The defendant, his car and the license number of his automobile were all known to the highway patrolmen.

On the night of May 8, 1947 the highway patrolmen were at the nine mile corner south of Altus on highway 283. The defendant turned onto the highway at that point in his automobile and started on the road toward Altus. The patrolmen started following defendant and followed him for about six miles. One of the patrolmen testified: 'As the car went on up the highway it got across the center line a couple of times, and we got to wondering and decided to see if something was wrong; if something was the matter with him. We pulled up and stopped him and Melvin got out of the car and walked back to our car. I asked him what was the matter, and he said there wasn't anything, and we asked why he was driving back and forth across the road and he said he hadn't noticed himself doing that. We talked to him a minute or two and I asked him for his driver's license and he gave me his driver's license. I wrote him a warning up. I could say a warning is issued for minor violations. In the meantime I got out of the patrol car and walked back to Melvin's car with him.'

The patrolman testified that after he had walked back to the defendant's car he looked over into the car by the lights of the patrol car and saw a box setting in the back seat with some bottles in it with whiskey seals on the top of the bottles. That he then arrested the defendant, searched him, and seized the box of bottles which contained whiskey.

The chief discrepancy between the testimony of the defendant and that of the highway patrolman is whether the patrolman saw the box by the lights of the patrol car of whether, as testified by the defendant, the officer flashed a light into defendant's car and saw the box setting on the floor. The officer said the box was setting on the back seat with the top raised so that the bottles could be seen. The defendant said the box was setting on the floor between the front and back seats with the top down and that the officer turned his flashlight on and looked into the car and into the box before he could see the whiskey.

This discrepancy as to whether the whiskey was setting on the seat or on the floor and whether it was seen by the officer using his flashlight or by reason of the light from the officer's automobile is immaterial as we view the law.

The only attempted justification for the action of the officers in forcing the defendant to stop his automobile was because he allegedly drove across the center of the line in the highway. He was not driving at a fast rate of speed and he had not been drinking intoxicating liquor. The defendant stopped his automobile because of the restraint placed upon him by the officers. No attempt was made by the officers to arrest the defendant for reckless driving. The defendant, after his car was stopped, walked from his car back to the car of the patrolmen. Patrolman Bowers then gave the defendant a lecture on driving across the center line. He was not arrested, but according to the officers he was warned to not repeat the offense. When defendant started back to his automobile to leave, one of the patrolmen got out of the patrol car and walked back to defendant's car with defendant. At that time there had been no crime committed in the presence of the officer but the defendant was under restraint. He had been forcibly stopped and the officer...