Leslie v. State, A-12264

• Citation: 294 P.2d 854
• Decision Date: 01 February 1956
• Docket Number: No. A-12264,A-12264
• Parties: David C. LESLIE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 854

294 P.2d 854

David C. LESLIE, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12264.

Criminal Court of Appeals of Oklahoma.

Feb. 1, 1956.

Rehearing Denied March 21, 1956.

Syllabus by the Court.

A search warrant, directed to search specific described property, 'together with the curtilage and the appurtenances thereunto belonging,' was sufficient to cover the automobile of the defendant standing on the driveway adjacent to the house and within the curtilage of the described property.

Appeal from the Court of Common Pleas of Tulsa County; Lloyd H. McGuire, Judge.

The plaintiff in error, David C. Leslie, was charged by information in the County of Common Pleas, Tulsa County, Oklahoma, with the unlawful possession of tax paid liquor in violation of 37 O.S.1951 § 51; sentenced to a term of thirty days in jail and a fine of one hundred dollars, and he appeals. Affirmed.

Ungerman, Whitebook, Grabel & Ungerman, William Leiter, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Plaintiff in error, David C. Leslie, was charged by information in the Court of Common Pleas, Tulsa County, Oklahoma with the offense of unlawful possession of fifteen fifths and six pints of assorted federal tax paid whiskies in violation of 37 O.S.1951 § 51. Jury was waived, case tried by the Court, defendant found guilty, and his sentence fixed at thirty days in jail and a fine of one hundred dollars; from which judgment and sentence this appeal has been perfected.

There is but one question in this appeal, the validity of the search and seizure. The affidavit for search warrant and the search warrant, which was a John Doe warrant, described the property to be searched as follows:

'A certain one story dwelling located at 4015 South Urbana said dwelling being partially made of red brick and the rest of red wood. 4015 South Urbana being a street in the City of Tulsa, Tulsa County, Oklahoma, together with the curtilage thereof and the appurtenances thereunto belonging.'

It appears that the dwelling house was searched and no whiskey was found. It was stipulated that an automobile, not described in the search warrant but owned by David C. Leslie, sitting on the driveway and within the curtilage of the described premises, was searched and whiskey, not obvious before the search, was found within the automobile. Under these facts, the defendant contends the search of the automobile was neither incident to a lawful arrest, nor pursuant to a legal search warrant for the automobile and therefore was illegal.

Neither counsel for the state nor defendant cite any case directly in point and counsel for the defendant asserted in the oral argument that this was a case of first impression. Our research, however, disclosed that this court heretofore passed squarely upon this question, and it has likewise been passed on by other jurisdictions. In Lee v. State, 78 Okl.Cr. 441, 150 P.2d 766, it was held:

'A search warrant, directed to search specific described home and farm property, * * * was sufficient to cover the automobile of defendant, standing on the premises described, and within 10 to 15 feet of defendant's home.'

See also Boardwine v. State, 64 Okl.Cr. 49, 76 P.2d 1081. In Bowdry v. State, 82 Okl.Cr. 119, 166 P.2d 1018, the search warrant described a one story frame yellow dwelling house and out buildings approximately 1/2 mile north of N.W. 23 and Meridian street and being the first house north on east side of Meridian from...