Lane v. Com.
| Citation | 10 A.L.R.3d 308,386 S.W.2d 743 |
| Parties | Cecil LANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 25 November 1964 |
| Court | United States State Supreme Court (Kentucky) |
Claude Asbury, Catlettsburg, for appellant.
Robert F. Matthews, Jr., Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
Appellant, Cecil Lane, was arrested in Boyd County by a state trooper for improper passing in an automobile on a public highway. He had no operator's license. The car was registered in his wife's name. The trooper, after arrest, searched his person and placed him in a police cruiser which was parked close to Lane's car. The officer called police barracks and requested a wrecker. He conversed with Lane for a few minutes and then returned to Lane's car and searched it. He found about seven cases of whiskey in the trunk of the car. All of this occurred in dry local option territory. Appellant was indicted for the offense of transporting alcoholic beverages for the purpose of sale in dry territory, (KRS 242.230).
At the trial appellant moved to suppress all evidence obtained as a result of the search of the automobile on the ground that the search was illegal. The court overruled that motion. Appellant was convicted.
The facts of this case present two questions: (1) Does the arrest for a traffic violation give the officer a right to search the automobile without a search warrant? (2) May only the owner object to a search?
This Court, on many occasions, has examined the facts of particular cases in order to determine whether the search was illegal. The theory expressed in each opinion is not always the same and we believe it necessary to re-examine this doctrine in view of the fact that there appears to be danger in granting an excessively broad scope of search and seizure powers after an arrest for minor, and sometimes innocuous, traffic violations.
In recent years, in order to meet modern conditions, the powers of various police forces to stop motorists on the highway have been extended. At the same time it may necessary to restrict the powers of search and seizure without warrant which have heretofore existed. For instance in Commonwealth v. Mitchell, Ky., 355 S.W.2d 686 (1962), it was held that the action of police officers in setting up a road block for motor vehicles for the purpose of requiring drivers to display operators' licenses is not an unlawful arrest or restraint or an illegal search contrary to the constitution. It is interesting to note, however, that the opinion contains this language:
Our leading case on the subject of search and seizure is Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303 (1920) which contains this statement:
'And this broad protection against unlawful search and seizure applies with equal force to the person, and, subject to the exception that an arresting officer has the right to search the person of a prisoner lawfully arrested and take from his person and hold for the disposition of the court any property connected with the offense for which he is arrested that may be used as evidence against him, or any weapon or thing that might enable the prisoner to escape or do some act of violence, it is as great a violation of the Constitution for an officer to search a person or baggage carried about by him, without a warrant authorizing it, as it is to search his premises.'
We believe no one will deny the logic of the exceptions above noted. Hard reality demands that the person in custody be disarmed in order to protect the officer from harm, to prevent the escape of the arrestee, or the destruction of evidence which pertains to the offense for which he was detained. Let us remember that both the 4th Amendment to the Constitution of the United States, and Sec. 10 of The Kentucky constitution protect only the right of the people to be secure in their persons, houses, papers, and effects from unreasonable search and seizure, and exceptions above noted are based on sound reason.
It is our opinion that when a person is arrested for a traffic or other minor violation, the mere fact of the arrest does not give to the officer absolute right to search the vehicle or the premises indiscriminately. It would be impossible to lay down a rule which would apply to all conditions and all states of facts and this opinion should not be construed to mean that a person in custody may not be searched in order to be disarmed, or to prevent escape or the immediate destruction of evidence for which he was detained.
The case at bar did not offer facts of an extreme emergency. Appellant had been arrested, searched and placed in another car. If the arresting officer was interested in a search of the automobile, he might have obtained, upon proper ground, a search warrant.
Fundamental principles are not difficult to announce or apply in the first cases that appear before a court, but with each succeeding case, as variations and sometimes exceptions are made from the principles, the rules progressively become weakened by their application to diverse states of facts.
We have had this trouble in connection with cases involving the question of whether permission for the search has been given, either actual or implied. In Gilliland v. Commonwealth, 224 Ky. 453, 6 S.W.2d 467 (1928) where a search of the premises was made without an arrest, the facts did not involve strictly a search after an arrest, but this case has often been cited and used as precedent for the proposition that no one may object to a search if he is not the owner of the property searched. In that case the appellants were both adults and lived upon premises owned by their father. About two years before the search the father was stricken with paralysis and from then on the sons were in actual management and control of the farm premises owned by their father. The opinion discusses several theories, but seems to turn upon the fact that consent for the search by the father was not actually given because he was mentally incompetent and the judgment of conviction of the sons was reversed. The whole import of the opinion seems to be that since the sons were in actual management and control of the farm a search...
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