State v. Bonolo

• Decision Date: 16 October 1928
• Docket Number: 1490
• Citation: 270 P. 1065,39 Wyo. 299
• Parties: STATE v. BONOLO [*]
• Court: Wyoming Supreme Court

270 P. 1065

39 Wyo. 299

STATE v. BONOLO ^[*]

No. 1490

Supreme Court of Wyoming

October 16, 1928

APPEAL from District Court, Fremont County; EDGAR H. FOURT, Judge.

John Bonolo was convicted of possessing a still for the manufacture of intoxicating liquor, and he appeals.

Reversed and Remanded.

M. C Burk, for appellant.

The Court erred in denying motions of defendant to suppress evidence obtained under an illegal search warrant. The Court also erred in refusing to direct a verdict in favor of defendant. The State is bound by what is shown by the officers return in the search warrant. U.S. v Meresca, 266 F. 713. The prosecution first relied on the search warrant, and when it was attacked as invalid, the prosecution contended that the warrant was unnecessary; that the search was made by consent, or upon view of an open violation of law. An unlawful search is not made lawful by the result obtained. Tobin v. State, 255 P. 788; Amos v. U.S., 255 U.S. 313, 65 L.Ed. 654; Veeder v. U.S., 252 F. 414; Lydecker v. U.S., 275 F 976. The alleged consent of the wife to make the search was not proven. Byars v. U.S., 47 S.Ct. 248. A search without warrant, on the ground of commission of crime in presence of officer must be based upon evidence constituting probable cause for a search warrant. Wiggin v. State, 28 Wyo. 480; State v. George, 32 Wyo. 223; State v. Crump, 246 P. 243; State v. Peterson, 27 Wyo. 185; U.S. v. Moore, 4 Fed. (2nd) 600; U.S. v. Mitchell, 274 F. 128. A search unlawful in the beginning, could not be made lawful by what it revealed. U.S. v. Slusser, 270 F. 878. The Court further erred in receiving evidence of conversations between defendant and the officers making the arrest which was apparently offered on the theory of confession. The Court erred in refusing defendants instruction No. 12 on the subject of search and seizure. The court erred in denying defendant's motion to suppress the evidence which was obtained in flagrant violation of the rights of defendant.

W. O. Wilson, Attorney General, John Dillon, Special Assistant Attorney General, for respondent.

Officers went to defendant's home with a search warrant and asked permission to search the house; defendant's wife told them to "go ahead, that she couldn't help it." They searched the premises and found a still, some mash and whiskey. The defendant returning home shortly afterward was arrested. He gave bond and at the time set for trial moved to suppress the evidence. The prosecuting attorney filed answer, admitting that the officers were not in possession of a search warrant, authorizing a search at the time said search was made, but that said search was made after defendant's wife had given the officers permission to make it. It is contended that the affidavits upon which the search warrant was made, were insufficient in law, nevertheless an officer may arrest without a search warrant where he has reasonable grounds to suspect the commission of a felony. State v. George, 32 Wyo. 245. The officer found a large number of empty sugar sacks hanging on a fence and some copper containers outside the house; this was sufficient evidence to constitute reasonable grounds for belief that the law was being violated; the search was not unreasonable; defendant admitted the ownership of the still and mash. He attempted to bribe the officer. Defendant made voluntary admissions inasmuch as the crime was a felony the officers had reasonable grounds to suspect and believe that the occupants of the premises were engaged in the commission of a crime and they had a right to search and arrest without a warrant.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

John Bonolo, the defendant, was convicted of having in his possession a still for the manufacture of intoxicating liquor and was sentenced by the court, and from this conviction and sentence he has appealed to this court.

On May 24, 1927, one J. W. Thompson filed an affidavit before E. H. Fourt, Judge of the District Court, to the effect that one Rudolph Visco was the occupant of the Bonolo ranch, described as the W 1/ 2 N.E. 1/4, NW 1/ 4 S.E. 1/4, NW 1/ 4 S.E. 1/4, Sec. 34, Twp. 1, Range 3, East W. R. M., in Fremont County, Wyoming; that on May 17, 1927, a person known to affiant as a person engaged in the liquor traffic, and who had had trouble with Rudolph Visco and other persons, and in whom affiant had confidence as to his truth and veracity, told affiant that a still for the manufacture of intoxicating liquor was being operated on the foregoing premises by Rudolph Visco, and affiant asked that a search warrant be issued for the search of the premises. Such warrant was thereupon issued and delivered to a deputy sheriff, who, together with Ray Ivester, a Federal prohibition officer, proceeded to the Bonolo ranch. When close to the residence on that place, they noticed at one corner of the house some twenty to twenty-five sugar sacks and two copper boilers, one an ordinary one frequently used for washing, and another round boiler, usable, perhaps, for various purposes. Ivester further testified that he smelled the odor of some mash. His testimony, however, is somewhat uncertain as to whether he noticed this odor previous to the time of entering upon the Bonolo premises or subsequent thereto. He was not corroborated in that regard by the deputy sheriff, who testified that he noticed no odor till they went onto the Bonolo place. Armed with the search warrant above mentioned, without, however, using or disclosing it, they went to the house on the ranch, where the defendant, together with his wife and children, were living. The defendant was not there, and the officers found only the defendant's wife and daughter at home, who were apparently outside of the house. The deputy sheriff asked for Rudolph Visco, but was told that he was not there, but had left. Ivester testified that he informed Mrs. Bonolo that he was an officer and asked her if she had any objection to a search of the premises, to which she responded something like this: "No, go ahead, I can't help it." This statement of Mrs. Bonolo is not corroborated by the deputy sheriff, and is denied by the daughter. In any event, the two men searched the basement of the house and a cellar close by, and found some mash and a still. About an hour later, when defendant returned home, he was placed under arrest, and was subsequently charged with the possession of a still. Before the case came on for trial, the defendant made a motion to suppress the evidence obtained in connection with the search. The court overruled the motion, and upon the trial of the case, admitted such evidence over the objection of the defendant. These rulings of the court are assigned as error here. The jury apparently hesitated to convict the defendant, for while deliberating, they asked the court the following question: "Is it essential for the officers to produce a search warrant or obtain permission to search, and from whom?" Thereupon the court gave the following instruction, numbered 12:

"The Court instructs the jury that it is not essential for the officers to produce a search warrant if they see evidence which leads them to believe that a felony is being committed and if any other of their natural senses, such as the sense of smell, conveys such information to the officers, they may arrest without a warrant and make a search of the premises where they know the offense is being committed. The jury are further instructed that any person who owns or has control of a house or landed estate may consent to a search thereof, and when such consent is given the officers are at liberty to go ahead and make such search as they may deem proper."

1. To the motion to suppress the evidence the county attorney filed an answer admitting, among other things, that the deputy sheriff and Ray Ivester, when searching the Bonolo ranch as above set forth, were not in possession of a search warrant authorizing the search at the time it was made. The motion to suppress and the main case seem to have been heard and tried by the State upon the theory that while the search warrant issued in the case was invalid, the search was authorized to be made without reference to the possession of a search warrant. The state makes no contention in this court that the search warrant was sufficient, and we may therefore, for the purposes of this opinion, assume the invalidity thereof. See, in this connection, State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A. L. R. 1284, which contains a thorough discussion on the subject. See also Jackson v. State, 153 Tenn. 431, 284 S.W. 356; Coleman v. Commonwealth, 219 Ky. 139, 292 S.W. 771; Hammond v. Commonwealth, 218 Ky. 791, 292 S.W. 316; Derefield v. Commonwealth, 221 Ky. 173, 298 S.W. 382; Taylor v. Commonwealth, 221 Ky. 216, 298 S.W. 685; Matlock v. State, 155 Tenn. 624, 299 S.W. 796; Cole v. State, (Ok. Cr.) 38 Okla. Crim. 396, 262 P. 712; Cornelius on Search and Seizure, Sec. 85.

2. The state makes no contention in this court that any valid consent was given to the search above mentioned by Mrs Bonolo, and seems to have abandoned the position that apparently was taken, at least by the trial judge. Inasmuch, however, as the point might arise again in the further disposition of this case, it is, perhaps, proper to mention it briefly. We need not decide as to whether a wife can ever waive the constitutional rights of her husband in this respect, though the Kentucky cases hereafter cited seem to decide in the negative. We do not believe that any valid consent was given, and that the testimony at most shows acquiescence in and non-resistance to the action of officers of the law. The subject was discussed at length in the case of Tobin v. State, 36...