Simmons v. State, A-12060

• Decision Date: 24 November 1954
• Docket Number: No. A-12060,A-12060
• Parties: Buddy SIMMONS, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 196

277 P.2d 196

Buddy SIMMONS, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12060.

Criminal Court of Appeals of Oklahoma.

Nov. 24, 1954.

Syllabus by the Court.

1. 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 Bill of Rights, sec. 30, and evidence obtained by such a search is inadmissible. Okla, Const. art. 2, sec. 30.

2. A search and seizure illegal in its inception cannot become legalized by what it brings to light; its legality must be determined by the situation as disclosed before the search was made.

3. Evidence which is inadmissible because obtained by an illegal search and seizure means that such evidence may not only not be used in the trial of a case, but shall not be used at all. Evidence obtained solely by reason of leads developed from an illegal search is also inadmissible.

4. An instruction mentioning the failure of the defendant to testify constituted reversible error. 22 O.S.1951 § 701.

King & Wadlington, Ada, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES, Judge.

The defendant, Buddy Simmons, was charged by an information filed in the County Court of Pontotoc County with the illegal possession of intoxicating liquors; was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $100.

Several assignments of error are presented on appeal, but in our view of the case, it only becomes necessary to discuss one of them. Prior to the commencement of the trial, a hearing was held on a motion to suppress evidence and at the conclusion of the hearing, the motion was overruled. The action of the court is assigned as error.

The evidence disclosed that on March 5, 1953, two deputy sheriffs of Pontotoc County went to a farm occupied by the father of defendant and his sister. That shortly after they arrived at the farmhouse, defendant and another man drove up to the farmhouse in defendant's automobile. They came from the pasture on the farm where defendant testified he had some cattle grazing. The officers had no warrant of arrest for the defendant and no search warrant to search either the farm or the automobile of defendant. However, they proceeded to search the defendant's automobile and found 6 pints of whiskey. Because 'they thought there was more,' the officers followed the car tracks about 250 feet to where they led to a boat which they noticed had been recently moved. They raised up the boat and found 28 pints of whiskey.

In Hoppes v. State, 70 Okl.Cr. 179, 105 P.2d 433, 434, this court held:

'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 Bill of Rights, Sec. 30, and evidence obtained by such a search is inadmissible. Const. Art. 2, Sec. 30, Okl.St.Ann.'

There was no contention that the search of the automobile was valid and no charges were filed based upon the 6 pints of whiskey found in the automobile. The possession charge out of which this conviction arose was in connection with the seizure of the 28 pints of whiskey found under the overturned boat. Defendant contends that the search, being illegal and void in its inception, could not ripen into a valid search irrespective of anything else that might have occurred, and that the search of the automobile was only the beginning of a search which lasted until the discovery of the contraband under the boat. The State contends that the liquors were not found within the curtilage of the dwelling house on the premises; that the premises were owned and possessed by defendant's father and sister and accordingly no warrant was necessary to make a search of the pasture outside of the curtilage of the farmhouse and secondly, the defendant could not complain of the illegality of the search of the pasture.

In so far as defendant's contention is concerned, it is apparently the first time the exact question here presented has been before this court as neither the State nor defendant have been able to cite any authority from this state upon this proposition. We are convinced that if the officers had gone into the pasture without a warrant of arrest or search warrant and made a search of the woodland area outside of the curtilage of the dwelling house, the search would have been valid under many authorities from this jurisdiction. Taylor v. State, Okl.Cr., 240 P.2d 803; Mitchell v. State, 38 Okl.Cr. 167, 259 P. 661. However, the officers did not do that. They first made an illegal search of defendant's automobile and acting on the basis of the leads thus obtained and because of the suspicion developed from the illegal seizure of whiskey in the automobile, they followed the car tracks back to where defendant apparently kept his whiskey cache. We are convinced that the search was void ab initio and that all of the steps taken by the officers constituted one continuous search.

In Edwards v. State, 83 Okl.Cr. 340, 177 P.2d 143, this court held that a search and seizure illegal at its inception...