Lucarini v. State

• Decision Date: 19 July 1929
• Citation: 19 S.W.2d 239
• Parties: LUCARINI v. STATE.
• Court: Tennessee Supreme Court

19 S.W.2d 239

LUCARINI v. STATE.

Supreme Court of Tennessee.

July 19, 1929.

Error to Criminal Court, Davidson County; C. G. Blackard, Judge.

Joe Lucarini was convicted of the unlawful possession of intoxicating liquor, and he brings error. Reversed and remanded.

John T. McCall, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

McKINNEY, J.

Joe Lucarini was convicted of the unlawful possession of intoxicating liquor, and has appealed to this court. A reversal is asked upon the ground that the evidence was obtained by an illegal search.

Lucarini operates a restaurant in the front end of a building on Crawford street in the city of Nashville, and occupies the back end as a residence. On the night in question, he closed his restaurant about 9 o'clock, and, joined by some friends, retired to the kitchen.

A little later a squad of officers, in passing the building, heard some loud talking. They left the street and walked over Lucarini's private premises to the kitchen door, where they peeped through a crack in the door and saw Lucarini and his friends pouring something from a bottle and drinking it. They returned to the front door, which they entered as two parties on the inside were leaving. Upon entering the kitchen, they saw glasses and smelled whisky. A search was instituted, and a half pint of whisky was found in Lucarini's bedroom.

The state does not insist that any breach of peace was committed or threatened in the presence or hearing of the officers that justified them in trespassing upon Lucarini's property. In fact, the officers admitted that they did not understand a word that was said, and they did not testify that any of the inmates were intoxicated or disorderly, and it is quite evident that their purpose in peeping through the kitchen door was to discover what they actually found. The officers had no search warrant.

The state relies upon Cohn v. State, 120 Tenn. 61, 109 S. W. 1149, 17 L. R. A. (N. S.) 451, 15 Ann. Cas. 1201, in which it was held that the unreasonable search and seizure against which the constitutional provision was designed to operate did not apply to petty officers of the law. That case has not been followed since the decisions in Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647, and Amos v. United States, 255 U. S. 314, 41 S. Ct. 266, 65 L. Ed. 654. The effect of the decision in Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639, was to overrule that part of the opinion in Cohn v. State.

In an unreported case from Rutherford county, this court held that, where officers, without a search warrant, entered private premises, and, looking through a window in the residence, discovered parties engaged in gambling, the evidence thus obtained was illegal.

There are numerous decisions to the same effect by other state courts.

The latest utterance upon the question by the Supreme Court of the United States is that contained in Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409. Officers, looking through a window of the residence of Alba, witnessed a sale of cocaine; the money being paid to Alba. The officers rushed in and arrested the parties. They had no search warrant. The court held the evidence thus obtained illegal and incompetent as to Alba. The court, speaking through Mr. Justice Butler, said:

"While the question has never been directly decided by this court, it has always been assumed that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein." (Citing authorities.) "The protection of the Fourth Amendment extends to all equally, — to those justly suspected or accused, as well as to...