Knox v. State

• Decision Date: 15 December 1964
• Docket Number: 8 Div. 964
• Citation: 172 So.2d 787,42 Ala.App. 578
• Parties: Grady KNOX v. STATE.
• Court: Alabama Court of Appeals

Page 787

172 So.2d 787

42 Ala.App. 578

Grady KNOX v. STATE.

8 Div. 964.

Court of Appeals of Alabama.

Dec. 15, 1964.

Rehearing Denied Jan. 12, 1965.

Ralph E. Slate, Decatur, for appellant.

Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.

PER CURIAM.

The appellant, Grady Knox, was indicted for the offense of burglary in the second degree. He entered a plea of not guilty and was tried in the Circuit Court of Morgan County, Alabama. The jury found the appellant guilty as charged in the indictment and he was adjudged guilty by the Court and sentenced to eighteen months in the State Penitentiary. His motion for a new trial was denied on March 16, 1964; hence, this appeal.

The facts of the case are as follows: On Monday morning, September 10, 1963, shortly after daybreak, employees of a dry goods store in Decatur, Alabama, known as David Lee's, discovered that the store had been burglarized. A safe had been broken open and money bags, checks, and currency were missing therefrom. Two holes large enough for a man to pass through had been cut in the ceiling of the store, and, since there were footprings on clothing on counters directly under the holes, it seemed apparent that a burglar or burglars entered the building by descending through the holes onto the counters. Pieces of paper with writing on them were found in the store which had some tendency to indicate that they belonged to or had been in the possession of one Raymond Aday.

Officer E. C. Bowman and two other officers of the Decatur Police Department went to a trailer court where Aday lived in a trailer house. The officers found Aday in front of another trailer in which the appellant lived, talking to two women. Aday was arrested by the officers and then Officer Bowman entered the appellant's trailer without a warrant for the appellant's arrest or a warrant to search the trailer, and, after seeing a coil of rope in open view on a table in the trailer, he arrested the appellant for 'suspicion of burglary', and confiscated the rope. The appellant was taken to the city jail where he was held until the following day without being charge with a crime.

After testifying that he had no warrant to arrest the appellant, Officer Bowman testified in part:

'Q. All right, sir, so you had no warrant for his arrest. Had he committed any crime in your presence?

'MR. Hundley: We object; calls for a conclusion, legal conclusion at that.

'THE COURT: Overruled.

'Q. The judge said you can answer.

'A. No, sir.

* * *

* * *

'Q. Could you have seen the rope or did you see the rope before you got into the house?

'A. No, sir.

* * *

* * *

'Q. Just tell the Court what you did when you went out to Knox' trailer there, Lieutenant Bowman.

'A. There was two other officers with me. Raymond Aday was outside the trailer along with two women, I believe their names are Zeta May Shelton and Pauline Shelton. We took Raymond into custody and told him that we wanted to question him down at the Police Station. At least one of the officers remained with Raymond, and I was the first officer to the door, the door was open, I don't recall if I knocked. I could see Mr. Knox inside the the trailer. I stepped up in the trailer and asked him if he was Grady Knox.

* * *

* * *

'Q. Did he either prior or after the the time you asked him whether or not he was Grady Knox, did he offer you any resistance or opposition or ask you to leave the trailer or request that you leave or demand that you leave or in anyway suggest that you leave?

'A. No, sir.'

The morning after the appellant's arrest, while he was held in jail without being charged with any crime and denying any knowledge of the burglary, Officer Bowman obtained a warrant from the Recorder of the City of Decatur to search the appellant's trailer house for prohibited liquors, and went with two other officers to the trailer. Bowman testified that he searched the trailer under this warrant for articles missing from the safe in David Lee's store as well as for liquors. The officers found no liquor in the trailer but they did find currency, money bags, and checks which they confiscated, and part of which were identified at the trial as articles missing from the safe in David Lee's store. The appellant was formally charged with burglary after this evidence was procured.

The rope seized at the time of the appellant's arrest without a warrant in his trailer house, which is referred to as the 'first search,' and the articles seized during the search conducted under the search under the prohibited liquor warrant, which is referred to as the 'second search,' were introduced in evidence over the appellant's objections, in effect, that they were the fruits of illegal searches and seizures.

The court below found:

'* * * First, as to the so called 'first search' the entering of the Knox trailer was, in this Court's view by 'implied' invitation. Secondly, the 'taking' of the rope was not an illegal search and seizure for there was no search it being in 'plain view.' Kelley v. State, 39 Ala.App. 572, 105 So.2d 687. Thirdly, the arrest being legal, there was a 'derivative right of search and seizure.' Phillips v. State, 152 So.2d 148, Ala.App. . As to the so called 'second search' the articles taken were seized under warrant for prohibited liquors. It is not grounds for objection that evidence of a crime discovered while making a search under warrant to search for another purpose are found. C.J.S. Searches and Seizures, Sec. 83, Page 904. The Court might here point out that the Court could have overruled the objection of the admission of this evidence because a motion to suppress was not filed before the case was tried.'

The prohibition of the Fourth Amendment of the United States Constitution against unreasonable searches and seizures, which forbids the Federal Government to convict a man of a crime by using evidence obtained from him by unreasonable search and seizure, is enforceable against the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

In Kelley v. State, 39 Ala.App. 572, 105 So.2d 687, this Court held that '[a] mere observation of that which is in full view is not a search.' In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, the court stated, in effect, that the doctrine of the Fourth and Fifth Amendments 'apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property * * *.' Thus, we are of the opinion that 'in plain view' as used in the Kelley case, supra, cannot be construed to mean in plain view of a police officer within a private residence only after the officer's entry therein without legal authority--i. e., as a trespasser. Where a police officer enters a private residence without legal authority, any incriminating evidence discovered and seized therein after the entry is the fruit of an unreasonable search and seizure, and, further an arrest based on such evidence is illegal and no derivative right of search and seizure attaches thereto. See Weldon v. State, 39 Ala.App. 286, 97 So.2d 825.

A search of a private residence without a search warrant is unreasonable and not incidental to an arrest when the arrest follows the search and could not have been lawfully made before the search. 89 A.L.R.2d 757.

In the present case Officer Bowman testified that in the 'first search' he did not see the rope until after his entry into the appellant's trailer home; that he entered the trailer without a warrant to arrest the appellant or without a search warrant; and that he arrested the appellant after discovering the rope. Thus, it follows that the rope is the product of an unreasonable search and seizure unless Officer Bowman entered the appellant's trailer by invitation, permission, or consent, or for the purpose of making an arrest without a warrant as authorized by Section 154, Title 15, Code of Alabama, 1940.

We indulge every presumption against the waiver by an accused of his constitutional right against unreasonable searches and seizures. See Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680. To justify the introduction of evidence seized by a police officer within a private residence on the ground that the officer's entry was made by invitation, permission, or consent, there must be evidence of a statement or some overt act by the occupant of such residence sufficient to indicate his intent to waive his rights to the security and privacy of his home and freedom from unwarranted intrusions therein. An open door is not a waiver of such rights. A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. 79 C.J.S. Searches and Seizures § 62, Page 821. We find nothing in the record to support a conclusion that Officer Bowman entered the appellant's trailer by invitation, permission, or consent.

When a police officer arrests without a warrant, and the defendant objects to the introduction of evidence claimed to be incident to such an arrest, the burden is on the State to show that the arrest was lawful. See People v. Cassone, 35 Misc.2d 699, 230 N.Y.S.2d 822. If the arrest without a warrant is unlawful, evidence seized incident thereto is inadmissible.

Officer Bowman testified that the appellant committed no crime in his presence and, therefore, the arrest of the appellant at the time of the 'first search' cannot be justified as an 'on view' arrest. There is nothing in the record from which it can be said that Officer Bowman, before entering the trailer, had reasonable cause to believe that the appellant had committed a...