Nott v. State

• Citation: 107 P.2d 366,70 Okla.Crim. 432
• Decision Date: 13 November 1940
• Docket Number: A-9720.
• Parties: NOTT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

107 P.2d 366

70 Okla.Crim. 432

NOTT v. STATE.

No. A-9720.

Court of Criminal Appeals of Oklahoma

November 13, 1940

Syllabus by the Court.

1. Whether search of, and seizure from, an automobile upon a public street without a search warrant, is reasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made.

2. The constitutional provision against unreasonable searches and seizures does not preclude the making of a seizure, without a warrant previously procured, of intoxicating liquor, where there is no need of a search for the liquor because the liquor is fully disclosed to the eye.

3. An offense is committed or attempted "in the presence of an officer", within meaning of the statute providing that a peace officer may, without a warrant, arrest a person for a public offense, committed or attempted in his presence, where such officer is apprised by any of his senses that a misdemeanor is being committed by the person arrested prior to the arrest.

4. Where an officer of the law approaches an automobile in which defendant is seated and sees wrapped packages of whiskey lying upon the floor of said car, and defendant informs him he had "Something over a case", the officer has the right to arrest defendant for a crime committed in his presence and has the right to search the automobile without the necessity of securing a search warrant.

Appeal from Court of Common Pleas, Oklahoma County; Carl Traub Judge.

Hubert Nott was convicted of the unlawful possession of intoxicating liquor, and he appeals.

Judgment affirmed.

Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Phil E. Daugherty, Asst. Co. Atty., of Oklahoma City, for the State.

Glen O. Morris, of Oklahoma City, for defendant.

BAREFOOT Judge.

Defendant was charged in the Court of Common Pleas of Oklahoma County with the crime of unlawful possession of 54 pints of tax paid whiskey; was tried, convicted and sentenced to pay a fine of $75 and serve 45 days in jail, and has appealed.

But one question is presented by this appeal, and that is that the court erred in overruling defendant's motion to quash and suppress the evidence as set forth in said motion, to wit:

"1. That said evidence is inadmissible for the reason there was no search warrant for the obtaining of said evidence, as in such cases made and provided by law.

2. That said search and seizure violates the defendant's constitutional rights.

3. That said evidence is inadmissible as against this defendant because said search and seizure of said evidence was illegal, void and without authority of law."

A jury was waived by defendant and the case was tried by the court. The evidence revealed that three police officers, J. M. Swofford, J. M. Mabee and J. G. McGuffin, were in the vicinity of the "Katy" depot in Oklahoma City on the night of December 9, 1938, about eight o'clock, and they saw an automobile in which defendant was seated parked near the depot; that officer Swofford approached the car and the other officers started in pursuit of some unknown person who escaped. Officer Swofford, on walking up to the car where defendant was parked, engaged him in conversation and saw upon the floor 54 pint packages of intoxicating liquor lying on the floor of defendant's car. It was wrapped in brown paper such as is often used in the wrapping of intoxicating liquor. He asked the defendant how much there was of it, and he replied, "Something over a case." He immediately arrested defendant and he was taken to jail, and the charges in this case were the outgrowth of this arrest.

On cross examination the officer testified he did not have a search warrant at the time the liquor was found and defendant was arrested; that he was acquainted with defendant and that they had a "pickup" for him "concerning some stolen cars" in Kansas, but that he did not talk to him about the Kansas matter until he was booked at the jail. He did, however, testify that this was his reason for starting toward the car of defendant. He also testified that the 54 pints of whiskey were wrapped in packages when he saw them on the floor.

Deputy Sheriff Ross Pierce testified as to the police officers turning over to the sheriff's office 54 pints of tax paid liquor, and it was identified as the liquor found in the possession of defendant, and the same was introduced in evidence for the inspection of the court.

Defendant took the witness stand in his own behalf and admitted he was parked in the car at the "Katy" depot as stated by the officers and that it was his car and was his whiskey. He testified that the officer opened the door of the car and "looked down at some packages I had on the floor boards and said, 'well, I guess I will take you on down"'; that he did not give him permission to open the car door and that he did not tell the officer he had whiskey in the car and that he was not served with a search warrant. On cross examination defendant testified that he was in the whiskey business and named the different brands that he sold; that he had personally wrapped the packages that were in his car, and that he had stuck it with gummed tape and had written certain identification marks on the packages so he could distinguish the kind of liquor it contained by the brand thereon.

It will at once be observed that there is a conflict in the evidence of the officer and that of the defendant as to whether the door of the car was opened prior to the seeing of the whiskey, and to the statement made by defendant as to there being whiskey in the car at the time the officer approached the same. There being a conflict in this evidence, it was a question of fact for the court to decide, a jury having been waived, as to who spoke the truth. This court under many decisions heretofore rendered has announced the rule that it will not set aside a judgment and sentence where there is a conflict in the evidence and the judgment and sentence is sustained by the evidence of the State.

It is contended by defendant in his brief that, "Your writer contends that the officer violated defendant's constitutional rights when he first started toward defendant's car with the intention of searching said automobile and obtaining evidence from the defendant without first knowing that a misdemeanor was being committed by the defendant."

Many decisions have been rendered by this court upon the question of the right to search without the necessity of a search warrant, and especially with reference to the right to search an automobile. It is also true that an examination of these cases reveals that certain isolated statements made therein are in conflict with each other, and for this reason we deem it advisable at this time to review some of these decisions so that it may be known what the view of the court as it is now constituted is, upon this question.

This court has always been zealous to guard the constitutional rights of the citizens of this State in the protection of their homes and property from unreasonable search and seizure. This right is guaranteed by the Bill of Rights and Constitution of this State, Okl.St.Ann. art. 2, § 30, and the United States, Const. Amend. 4.

The following citations are a few of the decisions of this court exemplifying this position: Gore v. State, 24 Okl.Cr. 394, 218 P. 545; Denton v. State, 62 Okl.Cr. 8, 70 P.2d 135; McHenry v. State, 61 Okl.Cr. 450, 69 P.2d 90; Skelton v. State, Okl.Cr.App., 93 P.2d 543. But at the same time we do not believe that a narrow, technical construction should be placed upon these sacred provisions of the Constitution which were adopted to protect the rights of the good citizens of this State, so as to shield the citizen who has so far forgot his citizenship to attempt to use his home or his property for the purpose of using it to violate the laws of his country. Handley v. State, 65 Okl.Cr. 268, 85 P.2d 436; Willard v. State, 66 Okl.Cr. 344, 92 P.2d 600; Denton v. State, 62 Okl.Cr. 8, 70 P.2d 135; Newton v. State, 61 Okl.Cr. 237, 71 P.2d 122; Rickman v. State, Okl.Cr.App., 106 P.2d 280, decided October 9, 1940, not yet reported [in State Reports].

We desire to refer to some of the later decisions of this court which have given special attention to the search of automobiles, and especially with reference to the right of search by officers where a crime has been committed in their presence, and the right to arrest or search without the necessity of a search warrant. We call attention to the case of Barfield v. State, Okl.Cr.App., 99 P.2d 544, 546. The facts in this case were very similar to the case at bar. Two state highway patrolmen were traveling along highway No. 33 in Tulsa County. They passed defendant who was out of his car fixing a tire. They stopped and asked what the trouble was. Defendant informed them he had a flat and was fixing a tire. They noticed a cardboard carton beside the car that was labeled "John Paul Jones Whisky". They asked the defendant whose whiskey it was, and he said it was his. They asked him if that was all he had, and he said he had another carton up in front. The officers looked in the back of the car and saw several cases of whiskey there. Defendant was arrested and charges filed. Defendant raised the question that the evidence was insufficient to convict and that the court erred in refusing motion to suppress evidence by reason of the fact that officers did not have a search warrant. The court held there was no error by the court, stating:

"Whether search of, and seizure from, an automobile upon a highway or other public place, without a search warrant, is reasonable is in its final analysis to be determined as a judicial question, in view of all the circumstances under which it is

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