Mitchell v. State

• Decision Date: 10 June 1942
• Docket Number: A-9996.
• Parties: MITCHELL v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

127 P.2d 211

74 Okla.Crim. 416

MITCHELL v. STATE.

No. A-9996.

Court of Criminal Appeals of Oklahoma

June 10, 1942

Syllabus by the Court.

1. A search warrant is process within the meaning of Const article 7, § 19, and Title 12, § 51, O.S.1941, and must run in the name of the State of Oklahoma, and under the provisions of Title 37, § 84, the warrant must be directed to a peace officer in the county in which it is issued for service.

2. Under Title 74, § 149, O.S.1941, the officers and members of the State Highway Patrol and such other officers and investigators as the Commissioner of Public Safety shall designate shall have the authority of other peace officers including the right and power of search and seizure, but excluding the service of civil process.

3. In order for an investigator appointed by the Commissioner of Public Safety to make a lawful search under the above statute, there must be a specific designation in the search warrant directing him to serve the same or if the warrant is specifically directed to a named officer in a certain county he may assist such officer if the officer is present and requires his aid.

4. Where a search warrant is directed "to the sheriff marshal, policeman or any peace officer in P County" the same is insufficient to authorize the execution of said search warrant by highway patrolmen or investigators from the Department of Public Safety where there are no county officers of P County present at the time the search is made.

5. Record examined and held: Court erred in overruling a motion to suppress evidence for reason that search warrant was not served by officer to whom same was directed.

Appeal from County Court, Pontotoc County; Hoyt Driskill, Judge.

Steve Mitchell was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed with instructions.

W. V. Stanfield, of Ada, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.

JONES Judge.

The defendant, Steve Mitchell, was charged in the County Court of Pontotoc County with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve thirty days in the county jail, pay a fine of $200 and has appealed.

It is only necessary in the disposition of this case to discuss but one of the many assignments of error presented in the defendant's brief.

It is insisted that the court erred in overruling the motion to suppress evidence presented by defendant prior to the commencement of the trial for the reason that the search warrant was not served by an officer to whom it was directed.

The search warrant was directed, "To any sheriff, constable, marshal or policeman in the County of Pontotoc, and any peace officer in Pontotoc County, Oklahoma, Greeting:"

It was agreed at the hearing on the motion to suppress that the warrant was delivered to Milo Beck and served by him together with Buck Seran and Cliff Goldsmith. That none of these three men were officers of Pontotoc County but all three were employed by the Division of Criminal Investigation in the Department of Public Safety at the State Capitol. No officer of Pontotoc County was present at the time the raid was conducted and the liquor in question seized by said investigators.

This court has never had occasion to specifically pass upon the question here presented. It requires an examination of the decisions of this court involving an interpretation of the statutes relating to the issuance and execution of search warrants together with a later statute not heretofore discussed, passed by the Oklahoma Legislature in 1939 vesting in the highway patrol and officers of the Department of Public Safety the right and power of search and seizure.

This court has many times held that a search warrant is process within the meaning of Article 7, Section 19, of the Constitution and that the search warrant must be directed and can only be served by a peace officer in the county in which it is issued for service. Bishop v. State, 47 Okl.Cr. 249, 288 P. 363; Eslick v. State, 70 Okl.Cr. 196, 105 P.2d 554; Denton v. State, 62 Okl.Cr. 8, 70 P.2d 135, 144.

The above decisions were based upon the statutes in effect at the time the decisions were rendered. Title 22, §§ 1226 and 1227, O.S. 1941, §§ 3226 and 3227, O.S. 1931; Title 37, § 84, O.S. 1941, § 2635, O.S. 1931.

The Legislature of 1939 passed an Act specifically vesting in the officers of the Department of Public Safety the right and power of search and seizure. This statute provides: "The officers and members of the State Highway Patrol and such other officers and investigators as the...