One 1948 Ford Tudor Auto. v. State ex rel. Field, 34791

• Decision Date: 23 September 1952
• Docket Number: No. 34791,34791
• Citation: 248 P.2d 593,207 Okla. 148
• Parties: ONE 1948 FORD TUDOR AUTOMOBILE et al. v. STATE ex rel. FIELD.
• Court: Oklahoma Supreme Court

Page 593

248 P.2d 593

207 Okla. 148

ONE 1948 FORD TUDOR AUTOMOBILE et al. v. STATE ex rel. FIELD.

No. 34791.

Supreme Court of Oklahoma.

Sept. 23, 1952.

Syllabus by the Court.

1. A peace officer may arrest without a warrant for a misdemeanor only where the misdemeanor is committed or attempted in his 'presence', and if the officer is unaware of the act constituting the offense it is not committed in his 'presence'.

2. A search of an automobile without a search warrant and not as an incident of a lawful arrest, and not upon any probable cause of the commission of a felony, but upon a mere suspicion, is in violation of the Bill of Rights, Sec. 30, and evidence obtained by such a search is inadmissible. Const. art. II, Sec. 30, O.S.1951

Hugh Conway, Enid, for plaintiffs in error.

Earl B. Mitchell, Jr., County Atty., Joe H. Glasser, Asst. County Atty., Garfield County, Enid, for defendant in error.

HALLEY, Vice Chief Justice.

On February 8, 1950, the County Court of Garfield County, Oklahoma, entered a judgment that one 1948 Ford two-door automobile, Motor No. 399A2355310, be forfeited to the State of Oklahoma, on the ground that it was being used illegally for the transportation of intoxicating liquor, after finding that such car was owned by Boyd Green and being driven, while being so used, by John Ross Bayless, both of whom were defendants in this action. They have appealed, and will be referred to by name or as 'defendants.'

There is little conflict in the evidence. Highway Patrol Officers Abla and Venamon and Lelon Coyle, Sheriff of Garfield County, testified for the State, while John Ross Bayless was the only witness for the defendants.

At about 8 p. m., November 9, 1949, Officers Abla and Venamon were on duty and were driving a patrol car en route to the home of Officer Abla at 3209 North Fifth Street in the city of Enid, Oklahoma. While driving north on Grand Street, the normal route to Officer Abla's home, the Ford car involved pulled in front of the patrol car. The Ford car was being driven at about 15 or 20 miles per hour by John Ross Bayless, who failed to signal the turn into North Grand Street. The Ford car proceeded ahead of the patrol car and turned right (east) on the street toward Abla's home. It slowed down to about 10 or 12 miles per hour along the center of the dirt street. The Ford then turned left (north) on Fifth Street, again without signaling a turn, and reduced its speed to about five miles per hour. Officer Venamon then turned the spotlight on the Ford, which turned left (west) into the driveway of Officer Abla's home, again without giving a signal.

Officer Abla stepped out of the patrol car and approached the Ford. Bayless got out of the Ford and told Abla that he knew the person in whose driveway he was parked, that 'a fellow lives here', and that he had not been drinking. After examining Bayless' driver's license, Officer Abla projected the beam of his flashlight into the interior of the Ford. The beam of light disclosed three boxes marked 'Kentucky Tavern' and a part of a case of bottles in which the sealed necks of the bottles were visible, being partly under a blanket.

The officer said to Bayless, 'You have a load of whisky', and Bayless replied, 'Yes, sir.' Officer Abla called to Officer Venamon, who also approached the Ford, and told the facts to him, and advised Bayless he was under arrest, and then opened the door of the Ford and found the whisky mentioned and two bottles on the front floorboard and a case in the trunk of the car. On cross-examination, Officer Abla admitted that the Ford's slow speed in the center of the street, and the failure of the driver to signal turns, led him to suspect that the driver was under the influence of intoxicating liquor, but that this proved not to be true.

Upon questioning by the court, Officer Abla stated that he would have followed the Ford had it not stopped in his driveway. He also admitted that upon flashing his light into the Ford after it had stopped, he could not see the word 'Whisky' on the bottles, of which only the sealed tops were visible; but no charges were filed against Bayless other than those of possession and transportation of whisky. Officer Venamon testified, on being recalled, that he believed that Officer Abla arrested Bayless before he opened the door of the Ford and made a complete search.

The testimony of Bayless was generally in accord with that of the officers, but he did testify that after he turned onto Fifth Street he traveled on the right side of the street and left plenty of room for the officers' car to pass, but that they remained behind and kept their spotlight on his car; that when Officer Abla approached him after they stopped, he was asked what he had in his car, and told the officer he had 'nothing', and the officer then opened the car door and 'kicks the blanket up'. That the whisky in the Ford was covered by an Army blanket; that the officer used the flashlight to look under the blanket, and jerked it up and said, 'You haven't got much in here, have you?' That it was after the officer found the whisky that he was arrested; that the whisky could not be seen unless the blanket were first removed.

The only legal question is whether or not the arrest, search and seizure were illegal, being made without warrant. Under the ruling in Worley v. State, 77 Okl.Cr. 154, 140 P.2d 246, 247, it is distinctly stated that when an arrest without warrant may be made without violating constitutional provisions prohibiting unreasonable searches and seizures 'is to be determined as a judicial question in...