Lietz v. State
| Decision Date | 07 June 1973 |
| Citation | 291 Ala. 133,279 So.2d 116 |
| Parties | Edwin LIETZ v. STATE of Alabama. SC 350. |
| Court | Alabama Supreme Court |
Thomas M. Haas, and Y. D. Lott, Jr., Mobile, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and P. B. McLauchlin, Jr., Sp. Asst. Atty. Gen., Ozark, for the State.
Edwin Lietz was convicted in Baldwin County of possessing marijuana for personal use (Code, Title 22, § 258(47)). He was fined $500, sentenced to six months in jail, sentence suspended, placed on two years probation, and taxed with costs. He appealed to the Alabama Court of Criminal Appeals, and the cause was thereafter transferred to this Court. Code, Title 13, § 111(11a).
Appellant complains of numerous purported errors below. It is necessary to reach only one of these to decide this appeal.
Deputy Sheriff Walter Crook said he had a pickup order for a child who was the son of the defendant's brother. In Crook's words:
'He advised me that I could not go into the house * * *.
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The son of the defendant's brother was not to be found in defendant's house, but a great deal of marijuana was.
Prior to trial defendant moved to suppress the evidence on the grounds of illegal search and seizure. The motion was denied. We think the trial judge erred in his ruling.
Since there was no contention the officer had a search warrant, the search of defendant's home is justified by the State on the basis of alleged consent.
Consent to an otherwise illegal search must be clearly, unequivocally and convincingly proven. The courts will not lightly presume waiver of fundamental constitutional rights. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965). Knox v. State, 42 Ala.App. 578, 172 So.2d 787 (1964). The record in the instant case not only fails to affirmatively establish consent, but clearly shows that the search was against the will of the defendant.
Unless we enforce the restrictions of the Fourth Amendment and Article 1, § 5 of the Alabama Constitution on searches and seizures, an old saying will have to be revised. A man's home will no longer be his 'castle', but, his 'open house' for everyone with a shred of governmental authority who wants to come inside. This cannot be permitted.
The judgment of conviction is reversed.
Reversed and remanded.
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Lunceford v. City of Northport, 6 Div. 664
...L.Ed.2d 780 (1987). "Consent to an otherwise illegal search must be clearly, unequivocally and convincingly proven." Lietz v. State, 291 Ala. 133, 135, 279 So.2d 116 (1973). "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Bumper v. Nor......
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Reid v. State
...supra. Furthermore, consent to an otherwise illegal search must be clearly, unequivocally and convincingly proven. Lietz v. State, 291 Ala. 133, 279 So.2d 116 (1973). This burden rests on the prosecution. United States v. Smith, 543 F.2d 1141 (5th Cir. 1976). Moreover, the law will not pres......
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State v. Teague, 3 Div. 28
...the warrant to be constitutionally deficient. Though construing a search without a warrant, Mr. Justice Faulkner in Lietz v. State, 291 Ala. 133, 279 So.2d 116 (1973), "Unless we enforce the restrictions of the Fourth Amendment and Article 1, § 5 of the Alabama Constitution on searches and ......
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Herriott v. State
...to which he is constitutionally entitled. . . .' Similarly, Mr. Justice Faulkner, speaking for our Supreme Court in Lietz v. State, 291 Ala. 133, 279 So.2d 116, stated: 'Unless we enforce the restrictions of the Fourth Amendment and Article 1, § 5 of the Alabama Constitution on searches and......