Little v. State

• Decision Date: 11 February 1935
• Docket Number: 31622
• Court: Mississippi Supreme Court
• Parties: LITTLE v. STATE

159 So. 103

171 Miss. 818

LITTLE v. STATE

No. 31622

Supreme Court of Mississippi

February 11, 1935

Division B

1 COURTS.

United States Supreme Court's decisions regarding admissibility in state courts of evidence obtained on illegal search by federal officers do not bind state courts.

2. CRIMINAL LAW.

Broadly speaking, federal officers, being entitled to act in states are also "state officers" and cannot be deemed private individuals in making search violating State Constitution, and hence evidence obtained by such search is inadmissible in state courts (Const. 1890 section 23).

HON. EDG. M. LANE, Judge.

Appeal from the circuit court of Simpson county HON. EDG. M. LANE, Judge.

Jim Little was convicted of possessing a distillery or still, and he appeals. Reversed and remanded.

Reversed and remanded.

Martin & Berry, of Prentiss, for appellant.

We are not concerned with the federal courts' ruling in this instance, but we submit the question to our own Supreme Court as to, whether or not a federal officer, can come into our state courts not burdened with the same rules of evidence and the same law as to searches and seizures as our own state officers are under.

Fourth Amendment to the U. S. Constitution.

We understand that it was held in Weeks v. U.S. 34 S.Ct. 341, that the Fourth Amendment was directed alone to the exercise of federal authority and has no application to state action, but we don't see that this case militates against our view, for the reason in the case at bar, this evidence was brought into a state court and when these officers entered a state court they were under the same rules as to admissibility of evidence as state officers. They were not on the same footing as private citizens.

State v. Messer, 142 Miss. 883, 108 So. 145; U. S. Constitution, 5th Amendment; Constitution of Miss., sec. 14; Smith v. State, 133 Miss. 730, 98 So. 344.

Before proof can be made of facts discovered in a search made by an officer, the state must introduce the affidavit and search warrant or show their loss or destruction unless there has been a waiver of them at the time of the search.

Cuevas v. Gulfport, 134 Miss. 644, 99 So. 503; Nelson v. State, 137 Miss. 170, 102 So. 166; Willis v. State, 135 Miss. 764, 100 So. 674; Thompson v. State, 88 Miss. 257, 40 So. 445; Tucker case, 128 Miss. 211, 90 So. 845.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

An examination of this record shows that the officers testified with reference to what they found at the home of the defendant without any objection on the part of the defendant direct to the contention that the investigators had no search warrant, until the witness started talking about a certain shop close to defendant's home which he said was in the possession of J. D. Weathersby and that J. D. Weathersby had a key to it. In the first place, it is not clear from this record just whose premises appellant was referring to when the objection was made, whether his own or that of Weathersby.

This objection was made after all the testimony was in and even though it is in the form of an objection to testimony, appellant's argument is such as to indicate it to be a motion to exclude all the evidence this witness had given with reference to a search of defendant's premises. Being in the nature of a motion to exclude, it comes too late after the witness has testified to all these things without objection.

Harris v. State, 153 Miss. 1, 120, So. 206.

Section 23 of the Constitution prohibiting unreasonable searches and seizures does not apply here and consequently the testimony relating to what they found is not inadmissible.

Nelson v. State, 137 Miss. 170, 102 So. 166; Cutrer v. State, 161 Miss. 710, 138 So. 343; Hampton v. State, 132. Miss. 154, 96 So. 165.

Nowhere in the record does it ever appear that any objection was ever made to this evidence upon the ground that the affidavit and search warrant had not been produced, or its loss shown.

Pickle v. State, 151 Miss. 549, 118 So. 625; Boyd v. State, 164 Miss. 610, 145 So. 618; Nelson v. State, 137 Miss. 170, 102 So. 166; Cuevas v. Gulfport, 134 Miss. 644, 99 So. 503.

Argued orally by G. L. Martin and Ovie L. Berry, for appellant.

OPINION

Anderson, J.

Appellant was indicted and convicted in the circuit court of Simpson county of the crime of unlawfully possessing a distillery, commonly called a "still," and sentenced to the penitentiary for a term of three years. From that judgment he prosecutes this appeal.

The evidence upon which appellant was convicted was obtained by means of a search of his premises and his home by three investigators from the Federal Bureau of Internal Revenue. The search was made without a search warrant, and there was no evidence of probable cause. This evidence was admitted over appellant's objection. The federal officers seized the still and destroyed it, as was their duty under federal law.

Appellant's contention is that the evidence was obtained in violation of section 23 of the Constitution (the unreasonable search and seizure provision) and was therefore inadmissible. While the state contends that the constitutional provision has no application to federal officers, so far as state authority is concerned they are no more than private individuals.

In Hampton v. State, 132 Miss. 154, 96 So. 165, 166, the court, held that the constitutional provision against unreasonable search and seizure did not apply to unauthorized acts of private individuals.

The question is whether federal officers making an illegal search are to be considered and treated as private individuals in the state courts. If we were to follow the reasoning of the Supreme Court of the United States, we would hold that they should be so considered. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A. L. R. 1159; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Search and Seizure (Cornelius) 2 Ed., p. 61, sec. 17, and case notes. However, in the Byars case the Supreme Court held that the evidence obtained by a joint illegal search by federal and state officers should be suppressed. In other words, in such a case the state officers were not to be treated as private...