Malmin v. State

• Citation: 30 Ariz. 258,246 P. 548
• Decision Date: 02 June 1926
• Docket Number: Criminal 619
• Parties: GORMAN MALMIN, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

246 P. 548

30 Ariz. 258

GORMAN MALMIN, Appellant, v. STATE, Respondent

Criminal No. 619

Supreme Court of Arizona

June 2, 1926

APPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweeney, Judge.

Affirmed.

Mr James Loy, for Appellant.

Mr John W. Murphy, Attorney General, and Mr. Earl Anderson and Mr. Frank J. Duffy, Assistant Attorneys General, for the State.

Lockwood J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood, J.

In the evening of January 21st, 1925, Gorman Malmin, hereinafter called appellant, and one G. A. Lindsay were driving a Chevrolet motor-car along the Thumb Butte road in Yavapai county. Somewhere between Thumb Butte and Prescott they were stopped by Deputy Sheriffs Poulson and Denny of Yavapai county. These officers had, a short time before, received information that appellant was coming into Prescott along this road with a load of intoxicating liquor, and, there being no time to file a complaint or obtain a search-warrant before appellant was expected to arrive, they immediately posted themselves on the road, and, as appellant and Lindsay came, stopped them. The car was examined and about ten gallons of alcoholic liquor found. Thereupon the officers arrested appellant and Lindsay, and in due time an information was filed against them charging them with the illegal transportation of intoxicating liquor contrary to the provisions of chapter 63, Session Laws of 1917. A severance was granted, and upon trial before a jury appellant was found guilty, and was sentenced to serve eight months in jail and to pay a fine of $ 300, from which judgment he prosecutes this appeal.

Before the trial, appellant moved to suppress as evidence any intoxicating liquor found in the car when he was arrested, on the ground that its use was in violation of the Fourth Amendment to the United States Constitution, and also of sections 8 and 10 of article 2 of the Constitution of the state of Arizona. This motion was by the court denied. At the trial appellant also objected to the liquor being offered in evidence against him, or any reference being made thereto for the same reasons.

There are two assignments of error which raise in effect two points: First, that the liquor seized in the car was illegally admitted in evidence; and, second, that the state had failed to prove the aforesaid liquor was not denatured alcohol. We will consider these objections in their order.

The Fourth Amendment to the federal Constitution reads as follows:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Sections 8 and 10 of article 2 of the state Constitution read as follows:

"Section 8. No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

"Section 10. No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense."

Briefly stated, appellant's position is this: That, under the state and federal Constitutions, it is unlawful for officers of the law to search an automobile for intoxicating liquor, unless they have either a search-warrant or a warrant of arrest for the driver of the car, except when an arrest is made for a felony under the provisions of our statute, and that, if any intoxicating liquor be found in an automobile when such unlawful search is made, any liquor found may not be used in evidence against the driver. It has, of course been held times without number by the Supreme Court of the United States that the first ten amendments to the Constitution limit only federal, and not state, action. So we need not consider appellant's contention that his rights under the Fourth Amendment were violated, as the arrest was made by state officers acting under the state law. Section 8, article 2, of the state Constitution, however, although different in its language, is of the same general effect and purpose as the Fourth Amendment, and, for that reason, decisions on the right of search under the latter are well in point on section 8, supra.

There is a diversity of opinion among the courts as to whether articles obtained by a violation of the Fourth Amendment, or provisions of state Constitutions similar thereto, may or may not be used in evidence against the person from whose possession they were taken. It is not necessary for us however, at the present time to determine this general question, and we limit the effect of this decision expressly to cases when contraband goods, such as intoxicating liquor, are taken from an automobile or other vehicle used in transportation of the same, contrary to the provisions of the statute. The Supreme Court of the United States, in a very recent and well-reasoned case, has fully discussed this question, and differentiated between the...