Moore v. State

• Decision Date: 06 April 1925
• Docket Number: 24764
• Citation: 103 So. 483,138 Miss. 116
• Court: Mississippi Supreme Court
• Parties: MOORE v. STATE. [*]

103 So. 483

138 Miss. 116

MOORE v. STATE. ^[*]

No. 24764

Supreme Court of Mississippi

April 6, 1925

(En Banc.)

1.SEARCHES AND SEIZURES.Constitution held to prohibit only unreasonable searches and seizures.

Section 23 of the Mississippi Constitution, which provides that "The people shall be secure in their persons, houses and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized," does not prohibit all searches and seizures nor require a warrant in all cases therefor.It prohibits only unreasonable searches and seizures.

2.SEARCHES AND SEIZURES.Reasonableness of search or seizure is judicial question for court in each case.

The reasonableness of a search or seizure is a judicial question to be determined by the court in each case, taking into consideration the place searched, the thing seized, the purpose for, and the circumstances under which the search or seizure was made, and the presence or absence of probable cause therefor.

3.SEARCHES AND SEIZURES.Search of automobile or boat for intoxicating liquor without warrant is not unreasonable.

Because of the ease with which vehicles and boats can be moved beyond reach, a search thereof without a warrant, for intoxicating liquor being transported therein, the possession and transportation of which is unlawful, is not unreasonable provided the search is made on probable cause.Consequently such a search or seizure is not prohibited by section 23 of the Mississippi Constitution, andsection 2, chapter 244 Laws of 1924, which provides therefor, is valid.

4.INTOXICATING LIQUORS.Belief, based on information by credible person, that intoxicating liquor is being transported in automobile, is sufficient to justify search without warrant.

Belief by a police officer, based on information given him by a credible person, that intoxicating liquor is being transported in an automobile, is sufficient probable cause to justify a search by him of the automobile without a warrant therefor under section 2, chapter 244, Laws of 1924.

ETHRIDGE and ANDERSON, JJ., dissenting.

ANDERSON, J., concurs in this dissent.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Donovan Moore was convicted of possession of intoxicating liquor, and he appeals.Affirmed.

Judgment affirmed.

G. L. Teat and Geo. S. Hamilton, for appellant.

This case presents squarely to the court for decision two questions: (1) Whether the search and seizure was lawful or unlawful.(2) If unlawful, whether the evidence so obtained was admissible or inadmissible.

I.It is appellant's contention that the search and seizure was in violation of section 23, Constitution of Mississippi, and was, therefore, illegal, because made without a search warrant.To determine whether the search and seizure was lawful or unlawful it is necessary to consider the meaning of the word "unreasonable" as used in the Constitution with reference to search and seizure.To fully appreciate what the common law was, it is necessary to consider to some extent the history of its development.There must have been a very definite idea in the minds of the framers of the Constitution when they used the word "unreasonable" for it is found in most of the Constitutions.

"The history of this amendment is given with particularity in the opinion of Mr. Justice BRADLEY, speaking for the court in Boyd v. United States,116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524.As was there shown, it took its origin in the determination of the framers of the Amendments to the Federal Constitution to provide for that instrument a bill of rights, securing to the American people, among other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, made against them.Such practices had, also, received sanction under warrants and seizures under the so-called writs of assistance, issued in the American colonies.See 2 Watson, Const. 1414 et seq.Resistance to these practices had established the principle which was enacted into the fundamental law in the Fourth Amendment, that a man's house was his castle, and not to be invaded by any general authority to search and seize his goods and papers."See, also, Weeks v. U.S.56 L.Ed. 652, 232 U.S. 383.

At common law no power existed to make a search without a warrant.People v. Case,27 A. L. R. 686;State v. Welch,79 Me. 99, 8 A. 348;Re Swan, 150 U.S. 637, 27 L.Ed. 1207, 14 S.Ct. 225.

It was the determination of the people to confine searches and seizures to special warrants and to prohibit all other searches and seizures.It is the contention of counsel for the state that only unreasonable searches and seizures were prohibited, and that if there is probable cause for search and seizure, then the search and seizure is reasonable.But, how can the existence of "probable cause" alone make the search and seizure reasonable?What becomes of the requirement "supported by oath or affirmation," and the "warrant," and "specially designating" etc?A search within the meaning of the Constitution is unreasonable unless all the requirements set forth in the Constitution are complied with.In this case now before this court, the search and seizure was made by policemen without any warrant of any kind whatever.SeeState v. Kees,27 A. L. R. 681, 114 S.E. (W. Va.) 617.

"In order to fully comprehend the full, true import and meaning of the restriction of the provision in the Constitution, it is necessary to follow the course of history with reference to searches and seizures in England and the American colonies, and the evils practiced and the efforts made to curb unbridled police action until such efforts crystallized in the provisions in American Constitutions limiting power under warrants, or under legislative authority, or assumed police power, to make searches and seizures."WIEST, J., dissenting, People v. Case,27 A. L. R. 686, 220 Mich. 379, 190 N.W. 289;State v. Marxhausen,3 A. L. R. 1505, 171(Mich.)N.W. 557;State v. Peterson, 13 A. L. R. 1284, 194(Wyo.)P. 342.

In this case now before the court the search and seizure cannot be justified on the ground that it was incident to a lawful arrest.None of the grounds for arrest without warrant, set forth in the brief for the state apply here, because this case is not a felony, and not an indictable offense committed, not a breach of the peace threatened in the presence of an officer, within the meaning of the law.The officer did not see or smell the liquor or know it was there by the exercise of his senses.It was only by the illegal search that the offense was discovered.This case is a misdemeanor only.

Counsel for the state attempts to justify the search and seizure on the ground that probable cause existed.If probable cause alone is sufficient to justify search and seizure without warrant, no distinction can be made between the search of an automobile and the search of houses.The same probable cause can exist with reference to one as to the other; there can be no distinction.If automobiles can be searched upon probable cause, without a warrant, then persons and houses can equally be searched.The Constitution makes no distinction.It covers persons, houses and possessions.Falkner v. State,98 So. 691.

Some of the cases cited by counsel for the state seem to indicate that the word "unreasonable" in search and seizure refers to the manner in which the search is made.If the conduct of the officer is making the search is to determine whether the search is reasonable or unreasonable, then the search of persons and houses as well as automobiles can be made whenever his conduct is considered reasonable.

There is and can be no distinction between the search of automobiles on the one hand and of persons and houses on the other, if by reasonable search is meant either the existence of probable cause or the manner in which the search is made.The Constitution applies to all alike.

What then does "unreasonable" mean as used in our Constitution?"It ought not to be necessary to recall the fact that it is the essence of a free government that the individual shall be secure in his person, his home, and his property from unlawful invasion, from unlawful search, from unlawful seizure.The writing of these provisions into the Federal Constitution, into every Constitution of every state in the Union, was not an idle ceremony.With a clearness of vision our forefathers provided for a lawful search and seizure, one supported by oath or affirmation, describing the place to be searched and the person or things to be seized, and in the same section safeguarded the rights of the individual by inhibiting unreasonable and unlawful search.They provided an orderly manner for search and seizure, and prohibited all others."State v. Marxhausen,3 A. L. R. 1507, 171(Mich.)N.W. 557.

II.Assuming that the search and seizure in this case now before the court was unlawful, the other remaining question presented is whether the evidence so obtained was admissible or inadmissible.This question involves the constitutional provision discussed above, section 23, against unreasonable search and seizure, and in addition section 26 of the Constitution against compelling a person to give evidence against himself.These two provisions must be interpreted together.

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