McCormick v. State, A-13362
| Decision Date | 15 January 1964 |
| Docket Number | No. A-13362,A-13362 |
| Citation | 388 P.2d 873 |
| Parties | Jack McCORMICK, 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 |
Syllabus by the Court
1. A search warrant for search of certain premises must describe the place to be searched with particularity so that no discretion is left to officer executing warrant. 22 O.S.A. § 1223, Okl.Const. Art. II, § 30.
2. Where timely motion to suppress evidence on ground of unlawful search and seizure has been filed, and uncontradicted proof in support of such motion discloses that search was under authority of affidavit specifying southeast quarter of section 26, township 6 south, range 20 east as property to be searched and so described in the search warrant, was insufficient to designate premises located in southeast quarter of section 23, township 6 south, range 20 east in said county; and therefore evidence should have been suppressed.
3. A search warrant is limited to the premises described in the affidavit and the search warrant, and may not include additional or different places to be searched than those described.
Appeal from the County Court of Choctaw County; Eugene D. Ellis, Judge.
Jack McCormick was convicted of the offense of possession of eleven half-gallons of wild-cat whiskey, and appeals. Reversed.
Hal Welch, Hugo, for plaintiff in error.
Charles Nesbitt, Atty. Gen., Charles L. Owens, Asst. Atty. Gen., for defendant in error.
Jack McCormick, hereinafter referred to as the defendant, was convicted in the county court of Choctaw County on a charge of unlawful possession of intoxicating liquor, to-wit: 11 half-gallons of wildcat whiskey, and sentenced to pay a fine of $500 and serve thirty days in the county jail.
While three specifications of error are argued, the sole question necessary to consider in the disposition of this appeal is whether the trial court erred in overruling the timely motion of the defendant to suppress the evidence of the State.
The defendant in support of his motion to suppress introduced the affidavit for and the search warrant involved. The warrant commands the search of 'a small dwelling, used as a place of public resort and a store building, known as Shady Nook, located about 6 miles east of Ft. Towson, Choctaw County, Oklahoma, on a part of the SE 1/4 of Sec. 26-6-20, and on Highway 70; operated by Jack and Sis McCormick', etc.
The defendant testified on the hearing on the motion to suppress, and stated that on the date of the execution of the search warrant he lived on the southeast quarter of section 23, township 6 south, range 20 east, in said county. That at the time the search warrant was served there was no name or sign on the small building, and that the name 'Shady Nook' had not been thereon for about two years.
The evidence developed that no November 11, 1959 a beer license was issued to Velma 'Sis' McCormick, the wife of the defendant, to operate a place of business known as 'Shady Nook six miles east of Ft. Towson, on a part of the SE 1/4 of Sec. 23, Twp. 6 S., R.20 E., in Choctaw County.' That on November 7, 1960 a beverage license was denied to Velma 'Sis' McCormick to operate the Shady Nook, located 6 miles east of Ft. Towson on a part of the SE 1/4 Sec. 23-6S-20E.
On December 28, 1960 a beverage license was issued to 'Melvin Deaton, dba Melvin's Place, 3 1/2 Miles E. of Ft. Towson, Sec. 23-6S, R20E, containing 2 acres', and on February 28, 1962 Melvin Deaton's beverage license was revoked. The sign 'Melvin's Place' was on the small building during the time that his license was in force, and was removed after the license was revoked.
The trial court overruled the motion of the defendant to suppress, and permitted the case to go to trial, with the above mentioned result.
Tit. 37 O.S.A. § 87 provides:
'No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.'
Tit. 22 O.S.A. § 1223 reads:
'A search warrant shall not be issued except upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.'
And Art. II,...
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Brooks v. Taylor Tobacco Enterprises, Inc.
...States, 109 U.S.App.D.C. 272, 287 F.2d 126 (1960); Empire Steel Mfg. Co. v. Marshall, 437 F.Supp. 873 (D.Mont.1977); McCormick v. State, 388 P.2d 873 (Okl.Cr.App.1964). A search warrant must particularly describe the place to be searched, Steele v. United States, 267 U.S. 498, 45 S.Ct. 414,......
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Beeler v. State
...search warrants are to be strictly construed, and the "place" to be searched is limited to the "place" described therein. McCormick v. State, 388 P.2d 873 (Okl.Cr.1964). The command in the instant warrant "to make search of said person" clearly relates to the earlier description of persons ......
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Daffinrud v. State, F-80-537
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