Monette v. Toney

• Citation: 119 Miss. 846,81 So. 593
• Decision Date: 26 May 1919
• Docket Number: 20713
• Court: Mississippi Supreme Court
• Parties: MONETTE v. TONEY

81 So. 593

119 Miss. 846

MONETTE v. TONEY

No. 20713

Supreme Court of Mississippi

May 26, 1919

Division A

1. SEARCHES AND SEIZURES. Rights of officers. Constitutional inhibitions.

The constitutional provision against unreasonable seizure and search never intended that the execution of criminal process in the apprehension of persons convicted or charged with crime should thereby be delayed or hindered. Such reasonable search in the due enforcement of the criminal laws of the land is not an invasion of the personal security of the citizen.

2 SAME.

An officer without a search warrant may enter and search any premises wherein he has reasonable cause to believe there is concealed a criminal for whose arrest he holds a warrant, or whom he is legally authorized to arrest without a warrant and an officer is not legally liable to the owner of the premises searched without a warrant where such search is made, in a reasonably necessary manner merely to apprehend such a person.

HON. R. W. HEIDELBERG, Judge.

APPEAL from the circuit court of Lauderdale county, HON. R. W. HEIDELBERG, Judge.

Suit by Mrs. Sarah B. Toney against L. C. Monette and others. From a judgment for plaintiff, defendant, Monette, appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and case remanded.

Amis & Dunn, for appellant.

As we take it, the question presented by this appeal is, what is the true meaning and interpretation of section 1448 of the Code of 1906 in the light of section 23 of the Constitution of 1890.

Before attempting, however, to determine the meaning and effect of section 1448 of the Code of 1906, it becomes necessary to determine what is meant by "unreasonable seizure or search" as used in section 23 of the Constitution of 1890. The only case decided by this court that we have been able to find is, the case of the State of Mississippi v. Marion Marshall reported in 100 Miss. 626, in which it was held that section 23 of the Constitution of 1890 was not violated by chapter 134 of the Laws of 1910, giving to the state or county a suit for the penalty provided therein which may be begun by attachment, since there is no search or seizure within the meaning of the said section.

The case does not go into the question as to what is meant by the term unreasonable search or seizure. The Fourth Amendment to the Constitution of the United States is in these words: "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."

In the case of Boyd v. United States, 116 U.S. 616, the supreme court of the United States discusses at considerable length the meaning of the phrase: "unreasonable search and seizure" as used in the Fourth Amendment to the Constitution of the United States.

In a note to the case of McClurg v. Brenton, in 101 Am. St. Rep. 329, Judge FREEMAN says: "An unreasonable search is an examination or inspection without authority of law of one's premises or person with a view to the discovery of stolen, contraband or illicit property, or for some evidence of guilt to be used in the prosecution of a criminal action. The right of individuals to be exempt from such searches is guaranteed by an amendment (article 4) to the Constitution of the United States, and such amendment is incorporated generally in constitutions of the several states."

In Rawles Third Edition of Bouvier's Law Dictionary at page 3024, the word "search" is defined as follows: "An examination of a man's house, premises or person for the purpose of discovering proof of his guilt in relation to some crime or misdemeanor, of which he is accused." See also the following authorities: Smith v. Maryland, 18 How. 71; Murray's Lessee et al. v. Hoboken Land and Improvement Co., 18 How. 272; Ex Parte Milligan, 4 Wall. 2; Boyd v. U.S. 11. U.S. 616; Spies v. Illinois, 123 U.S. 131; Eilenbecker v. Plymouth County, 134 U.S. 31; Fong Yue Ying v. U.S. 149 U.S. 698; Interstate Com. Comm. v. Brimson, 154 U.S. 447; In re Chapman, 166 U.S. 661; Adams v. New York, 192 U.S. 585; Morris v. Hitchcock, 194 U.S. 384; Public Clearing House v. Coyne, 194 U.S. 497; Interstate Com. Comm. v. Blaird, 194 U.S. 24; Jack v. Kansas, 199 U.S. 372; Hale v. Henkel, 201 U.S. 43; Consolidated Rendering Co. v. Vermong, 207 U.S. 541; American Tobacco Co. v. Werckmeister, 207 U.S. 284; Consolidated Rendering Co. v. Vermont, 207 U.S. 541; Twining v. New Jersey, 211 U.S. 78; Hammond Packing Co. v. Arkansas, 212 U.S. 322; Bagley v. General Fire Extinguishing Co., 212 U.S. 477; Smithsonian Institution v. St. John, 214 U.S. 19; Thodus v. Manning, 217 U.S. 597; Fling v. Stone Tracy Co., 220 U.S. 107; American Lithographic Co. v. Werckmeister, 221 U.S. 603; B. & O. R. R. Co. v. Interstate Com. Comm., 221 U.S. 612; U. S. v. Morgan, 22 U.S. 274.

In the case at bar, no property or person was seized at all, and the gist of the complaint against the defendant in the court below was for an unlawful search of the plaintiff's premises. We submit that the "unreasonable search or seizure" condemned by section 23 of the Constitution of 1890, as well as by the Fourth Amendment to the Constitution of the United States refers only to the search of person or premises for the purpose of discovering and seizing papers, documents or property to be used either in a criminal prosecution against the person whose premises are searched, or to subject such person to a forfeiture of his property. In other words, as so forcibly pointed out by Justice BRADLEY in the Boyd case, supra, the thing that is condemned is the forcibly making the citizen furnish evidence against himself in a criminal proceeding, or in a proceeding against him for the forfeiture of his property. We further submit that the prohibitions contained in section 23 of the Constitution of 1890, as well as the Fourth Amendment to the Constitution of the United States do not prohibit an officer from searching any house or place whatsoever for the purpose of apprehending a person charged with crime, for whom such officer has a lawful warrant.

Section 1449 of the Code of 1906 has been the law of this state since 1857, as will be seen by referring to section 1376 of the Code of 1892, section 3027, Code of 1880, section 2777, Code of 1871, and article 277 at page 618 of the Code of 1857. Whether or not it was the statutory law of Mississippi prior to 1857 we do not know as we do not have the codes of proper date in our office. During all this time from 1857 down to the institution of this suit, the right of an officer to proceed under the terms and provisions of section 1448, seems never to have been questioned so far as the decisions of this court are concerned, and the provisions of section 1448 have been continuously reenacted into law since that time.

If sections 1448 and 1451 are not in conflict with section 23 of the Constitution of 1890, and if these two sections of the Code are to be given effect according as they are written, then we submit that the action of the court below in refusing the instructions requested by the defendant and in granting each and all of the instructions requested by the plaintiff was error, for which this cause ought to be reversed.

The amount of the judgment in this case is small, only forty-five dollars, but the question involved is of paramount importance as well to the plaintiff as to the defendant in his official capacity as a police officer. It is of paramount importance also to the state that every agency of the state entrusted with the enforcement of the criminal law, because the question is brought up squarely as to whether or not an officer having a lawful warrant for the arrest of any person charged with crime, who, having located the person so charged, in the house of another may lawfully proceed to execute the warrant for the arrest of such person even to the extent of entering the house over the protest of the owner, or whether he must leave the criminal to escape while he goes and hunts up a justice of the peace to get a search warrant. To hold that such is the law would seriously hamper and embarrass every law officer in the state charged with the apprehension of persons charged with crime, and would afford to them on numerous occasions an opportunity to make good their escape while the officer was gone to some justice of the peace to get out the necessary search warrant. We submit that the action of the court below was error, and that the cause ought to be reversed and dismissed.

T. G. Fewel, for appellee.

Respectfully submitted in response to the brief of counsel for the appellant, who takes the position that our "search and seizure" constitutional provision is only to be construed to prevent procurement of incriminating evidence to be used in criminal prosecutions, that this court will never reach such a conclusion as long as the world lasts.

Briefly I beg to call the court's attention to the...