Scott v. State, 46815

• Decision Date: 03 July 1972
• Docket Number: No. 46815,46815
• Citation: 266 So.2d 567
• Parties: Ronald SCOTT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 567

266 So.2d 567

Ronald SCOTT v. STATE of Mississippi.

No. 46815.

Supreme Court of Mississippi.

July 3, 1972.

Rehearing Denied Oct. 2, 1972.

Clinton E. Lockard, Karl Wiesenburg, Pascagoula, for appellant.

A. F. Summer, Atty. Gen. by Timmie Hancock, Sp. Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice:

Appellant Ronald Scott was convicted for the unlawful possession of marijuana in the Circuit Court of Jackson County and has appealed to this Court, contending among other grounds for reversal, that the search and seizure of the marijuana was illegal and the evidence obtained by the search was not admissible into evidence. We are of the opinion that this contention is well taken and that this case should be reversed and appellant discharged.

The record reflects that on September 8, 1970, a search warrant was issued authorizing the search of Apartment 6-C, Brentstone Apartments, in the City of Pascagoula. The affidavit for the search warrant alleged that the apartment was occupied and controlled by Joseph Acquisto. The statement of the underlying facts and circumstances tending to establish the grounds for the issuance of the search warrant was based upon information furnished by an informer, said to be a credible person, who claimed to have purchased marijuana from Acquisto at the apartment some six days prior to the date of the affidavit. Upon the information furnished, the magistrate found that probable cause existed to issue the search warrant. The officers proceeded to the apartment and entered with a key furnished by the landlord. They found Acquisto asleep in one of the bedrooms and gave him a copy of the search warrant. During the course of the search the officers found the door to one of the bedrooms locked. When the officers requested Acquisto to unlock the door, he informed them that the room was occupied by appellant, and he did not have the key to it. The officers obtained a screw driver and managed to unlock the door. They proceeded to search the room, and in a sea bag with appellant's name stenciled thereon, a plastic bag was found containing a substance which was later determined to be marijuana. About the time the search was completed, appellant came into the apartment and inquired of the officers as to what was going on and informed them that the room belonged to him. Thereupon the officers arrested appellant and charged him with possession of marijuana. Prior to trial appellant made a motion to suppress the evidence obtained as a result of the search of his possessions. The trial judge held that the search of appellant's room was valid and that the evidence was admissible. There is no question that insofar as Acquisto was concerned, the officers had a right to search the apartment and any evidence obtained as a result of the search would be admissible against him. The question here is whether the officers had a right to search the room admittedly occupied by appellant without a search warrant for that purpose and to use the evidence obtained thereby against the appellant.

The state does not contend that the officers had probable cause to search the room and the sea bag belonging to appellant, but contend that since the apartment was leased by Acquisto and the officers had a valid warrant to search the entire apartment, they had a right to search the entire apartment, including the possessions of the appellant, and that the evidence obtained as a result of the search was admissible against appellant.

On the other hand appellant contends that Article III, Section 23, Mississippi Constitution (1890), protects him against unreasonable searches and seizures and that the search of his possessions without probable cause and without a warrant violated his constitutionally protected rights.

There is no question from the record in this case that appellant was in possession of and exercised control over the room which he occupied in the apartment searched. The officers were forewarned that the room was occupied by appellant and knew appellant's name was stenciled on the sea bag that they searched. It is not contended that there was any probable cause to search the possessions of the appellant, but the officers relied entirely upon the search warrant issued to search the entire apartment.

We are of the opinion that the question raised in this case was settled by this Court many years ago in the case of Brewer v. State,142 Miss. 100, 107 So. 376 (1926), wherein Olivia Brewer and Nancy Tullos were convicted on a charge of having possession of a still. The search of the premises was made by virtue of a 'John Doe' warrant which was held to be invalid. The evidence was conflicting as to whether Nancy Tullos was a guest in the house, or whether she rented and occupied a part of the house. This Court stated:

As to the other appellant, Nancy Tullos, the testimony offered by the state shows that she was occupying as a residence a part of the house, and that the search of her part of the house was made under the authority of the 'John Doe' warrant. Nancy did not testify at all, but objected to the testimony obtained by the unlawful search.

The warrant was void, and the search of that part of the premises occupied and possessed by the appellant Nancy was unlawful, and the lower court should have sustained the objection to the testimony. Certainly the part of the house occupied by Nancy was her private possession, it was her home, and could not be searched without a lawful warrant for that purpose.

Nancy offered no testimony at the trial. Olivia said that Nancy was a mere visitor for the night, and knew nothing about the still. If this testimony was true, then Nancy should have been acquitted; but, if the testimony offered by the state was true-that is, that Nancy rented and occupied the part of the house in which they found her-then the testimony of the officers was incompetent as to Nancy, because it was secured without a search warrant to search her premises, and therefore, in either case, Nancy should have been discharged.

(Emphasis added.) (142 Miss. at 103-104, 107 So. at 376).

In Cox v. State, 201 Miss. 568, 29 So.2d 661 (1947), we said:

Section 23 of the Constitution of Mississippi reads: '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.'

Under this constitutional right the privacy of the home has been considered sacred in this State, not to be invaded except by clear authority. In Brewer v. State, 142 Miss. 100, 107 So. 376, the affidavit and warrant recited that intoxicating liquors were 'being made, possessed, kept or sold on the premises of John Doe * * *', and that suspicion rested upon John Doe. The proof showed that Olivia Brewer and her husband Oliver Brewer lived in that residence as lessees. While the Court held the warrant void, it announced the rule that even though Nancy Tullos was renting from the Brewers a room in that house, as the State contended, this warrant gave no authority to the officer to search the Tullos room.

(Emphasis added.) (201 Miss. at 571, 29 so.2d at 662).

These cases establish the rule in this state that where the proof shows that a person is renting a room or is in possession of a room in a house or an apartment under such circumstances as to make such person the owner thereof for the time being, such person is entitled to the protection afforded by Section 23 of the Constitution. Therefore, we hold that under the facts and circumstances of this case, the search of the room and possessions of appellant, without probable cause and without a warrant to search his property, was unlawful. We are aware that some courts of other jurisdictions have held to the contrary under similar circumstances, but this Court has heretofore followed the rule that the protection afforded by Section 23 of our Constitution should be liberally construed in favor of our citizens and strictly construed against the state. We think this is the better rule, and we are content to continue to adhere to it.

For the reasons stated, this case must be reversed, and since the only evidence upon which appellant was convicted was obtained by an illegal search, appellant must be discharged.

Reversed and rendered.

RODGERS, P.J., and JONES, BRADY, PATTERSON and SMITH, JJ., concur.

GILLESPIE, C.J., and ROBERTSON and SUGG, JJ., dissent.

SUGG, Justice (dissenting):

I dissent from the majority opinion which holds that probable cause did not exist to search the room and sea bag of appellant. The officers were not aware of the fact that appellant occupied a part of the premises when the search warrant was secured, but obtained a warrant specifically describing the apartment to be searched. Before the search warrant was issued, the officers ascertained that Joseph Acquisto was the tenant who had leased the apartment in question from the owners. The appellant did not lease the apartment from the owners, but moved in shortly before the search. The first notice that the officers had that appellant was occupying a part of the apartment was at the time of the service of the search warrant.

As stated in the dissenting opinion in Copertino, infra, 'Our approach to problems involving the detection and prosecution of crimes should be on the basis of common sense, not super technicality.' We should never lose sight of the fact that all searches are not constitutionally prohibited, but only unreasonable searches. In my opinion the search was reasonable when measured by decisions of this Court and the Supreme Court of the United States.

Drugs were recovered not only in that part of the apartment occupied by Acquisto, who was named in the affidavit and search warrant, but also from the sea bag of appellant which was located in one of the bedrooms in the apartment...