Keith v. State
| Decision Date | 25 April 1925 |
| Docket Number | A-4358. |
| Citation | 235 P. 631,30 Okla.Crim. 168 |
| Parties | KEITH v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Constitutional provisions against unreasonable searches and seizures, and against compelling one to be a witness against himself secure the individual in his person, his home, and his property from invasion through unbridled and unrestrained executive or administrative will.
It is unlawful under section 30, art. 2, of the Constitution of this state, forbidding unreasonable searches and seizures for an officer, without a warrant authorizing it, to search a person, except that one legally arrested may be searched for property connected with the offense that may be used as evidence against him, or for weapons or things that may assist escape or acts of violence.
All unlawful searches and seizures are unreasonable within the meaning of the constitutional provision forbidding unreasonable searches and seizures.
Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.
Where the officer does not know of the act constituting the offense, it is not committed in his "presence."
No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest or shall be lawfully arrested without a warrant as authorized by law.
Where a bottle, later found to contain intoxicating liquor, was taken from the person of defendant forcibly and against his will and without a search warrant for his person, or a warrant for his arrest, this constituted an unlawful and therefore an unreasonable search and seizure under section 30, art. 2, of the state Constitution.
In a prosecution for unlawfully transporting intoxicating liquor defendant cannot be convicted upon evidence obtained by an unlawful search of his person, without a warrant for his arrest, and neither the liquor so seized, or the evidence of the possession thereof so acquired, is admissible against him.
Appeal from County Court, Canadian County; W. M. Wallace, Judge.
Charles Keith was convicted of the unlawful transportation of intoxicating liquor, and he appeals. Reversed and remanded, with directions.
Babcock & Trevathan and J. N. Roberson, all of El Reno, for plaintiff in error.
George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
Appellant, Charles Keith, was convicted under an information charging that he unlawfully transported and conveyed intoxicating liquor from some point within Canadian county unknown to the lobby of the Southern Hotel, in the city of El Reno, and his punishment fixed at confinement in the county jail for 30 days and a fine of $100. To reverse the judgment rendered on the verdict, he appeals and alleges that the trial court erred in overruling his motions to suppress and to exclude from the consideration of the jury certain evidence obtained by an unlawful search of his person.
The undisputed facts are that about 10 o'clock in the evening of the day alleged, two policemen entered the lobby of the Southern Hotel; approaching the defendant who was sitting in a chair, one seized his hands and held him while the other searched him, taking from his person a bottle of whisky. He was arrested, and this prosecution followed:
Before the commencement of the trial, counsel made a motion to suppress all of the evidence which the state seeks to use, on the grounds that it had been obtained by means of an unlawful search of the person of the defendant, and was an unreasonable search and seizure, made in violation of the constitutional rights of the defendant. The prosecution admitted that the search was made without a search warrant and without a warrant for the arrest of the defendant. The motion was overruled. During the trial the question was saved for review by timely objections and exceptions.
F. V. Pierce testified that he saw the defendant on the street near the Southern Hotel, and about 30 minutes later saw him from the outside sitting in a chair in the lobby of the hotel, then he called Officer Culp, and they entered the lobby, and while he held the defendant's hands Officer Culp took a bottle of whisky from his person.
A. W. Culp testified that the defendant was sitting in a chair talking to Mr. Howard, and he could see the print of a bottle in his pocket; when Officer Pierce grabbed his hands he took the bottle out of the defendant's coat pocket, and it contained whisky. The bottle and its contents was introduced in evidence.
O. R. Howard testified that he was a merchant and had been sitting in a chair talking to the defendant for about 15 minutes when Officer Pierce came in and grabbed his hands, saying, "I am going to search you." That he had not seen any whisky on the defendant.
At the close of the state's evidence the defendant made a motion to strike all the evidence, whether by way of exhibit or by testimony, obtained by reason of the search and to withdraw the same from the consideration of the jury, on the ground that the search was made in violation of his constitutional rights. The motion was overruled. He then moved for a directed verdict on the ground that the state had failed to establish facts sufficient to constitute a public offense. This was also overruled.
The constitutional provisions particularly relied upon by defendant are as follows:
Section 21 corresponds in substance with article 5, and section 30 is identical with article 4, respectively, of the amendments to the Constitution of the United States.
It is well settled that the Fourth and the Fifth Amendments to the Constitution of the United States apply only to the United States, and can only be invoked as against the activities of the agencies of the federal government.
The federal courts hold that evidence, unlawfully obtained by the representatives of the government from the person, or the home, or the office of one suspected of crime, though obtained without force and coercion, is in violation of the Fourth Amendment of the federal Constitution, and that the admission of such evidence over objection would be in violation of the Fifth Amendment, thus compelling the accused in effect to testify against himself. Boyd v. U. S., 116 U.S. 619, 6 S.Ct. 524, 29 L.Ed. 746; Amos v. U. S., 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; McKnight v. U. S., 115 F. 972, 54 C. C. A. 358.
Provisions substantially the same as the quoted provisions of our Constitution are found in the Constitutions of all the states. The state courts, generally, construe the provisions of section 30 as forbidding a search without a warrant, except when made as an incident to a lawful arrest. A person lawfully arrested may as an incident thereto be searched and articles found in his possession which are the subject of crime, or the means of committing it, or which may be of use as evidence at the trial, or which may be used in committing violence or in effecting an escape, may be seized. 2 R. C. L. 467; 5 C.J. 434.
In the cases in which a person may be lawfully arrested without a warrant, he may also be lawfully searched without a warrant.
The statute provides:
The offense charged against the defendant is punishable only by a fine and imprisonment in the county jail, and therefore is not a felony under our statute. Section 1503. Consequently the officers could not lawfully arrest him therefor without a warrant, unless the offense was committed or attempted in their presence.
It cannot be said that the criminal offense is committed in the presence of an officer, unless the acts constituting the offense become known to him at the time they are committed through his sense of sight or through other senses; although a person may actually be committing a criminal offense, it is not committed in the presence of an officer within the meaning of the statute, if the officer does not know it. And where the officer could not observe and become cognizant of the act constituting the offense by the use of his senses, it could not be committed in his presence so as to authorize an arrest without a warrant. State v. Wills, 91 W.Va. 659, 144 S.E. 261, 24 A. L. R. 1398; State v. Pluth, ...
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