State v. Gulczynski

• Citation: 120 A. 88,32 Del. 120
• Court: Court of General Sessions of Delaware
• Decision Date: 29 September 1922
• Parties: STATE v. LEON GULCZYNSKI

120 A. 88

32 Del. 120

STATE v. LEON GULCZYNSKI

Court of General Sessions of Delaware, New Castle County

September 29, 1922

Court of General Sessions for New Castle County, September Term 1922.

Indictment for illegal possession of spirituous liquors, No. 2, March Term, 1922.

Motion for the return or destruction of liquor illegally seized.

The defendant presented the following petition:

"The petition of Leon Gulczynski, the defendant in the above entitled case, respectfully represents:--

"1. That he is a resident of the City of Wilmington, New Castle County and State of Delaware, and resides in said City at No 6 Sixth Avenue, and has a place of business at No. 600 East Third Street.

"2. That on the Ninth day of February, A. D. 1922, at about 8:15 in the morning, he was proceeding on Fourth Street near French, in the City of Wilmington, when he was approached by an officer of the Police Department of the City of Wilmington, who, without a warrant for the arrest of your petitioner, or without a warrant to search his person, seized and took from the person of the said defendant, your petitioner, two tin containers, alleged to contain alcoholic liquor, the property of your petitioner, and that the said property was delivered by the said officer thus illegally searching your petitioner, to the Police Department of the City of Wilmington, contrary to law, and in violation of the rights guaranteed to your petitioner under Article 1, Section 6 of the Constitution of the State of Delaware, and that the said property is now under the control of the Attorney-General of the State of Delaware.

"Your petitioner, therefore, prays this Honorable Court to make an order upon the Attorney-General of the State of Delaware, to return to your petitioner the property so taken and held."

The defendant testified that on February 9th, last, while walking on Fourth Street in Wilmington, some police officers called him, grabbed him and asked, "What have you got in that package?"; to which he replied, "What do you want to know for?"; that the officer then told him if he did not tell him what he had in the package he would arrest him that after this threat was made he told the officer what he had and was arrested and taken to the police station where he was told to open the package but refused to do so. He further testified that he had the liquor in two containers covered with paper when stopped by the officer. The police officer who made the arrest testified that he had received information that defendant was bringing liquor to his store and accompanied by other officers, he went out and found the defendant and asked him what he had in his package, and he answered, "What do you want to know for?"; that he asked him again, and the defendant said, "You know what I have got"; that he then sent for another officer, and again asked the defendant what he had, and he said, "Liquor, two gallons"; that up to that time he had not placed his hands on the defendant, and did not place him under arrest until he said he had liquor; that the defendant was then taken to the police station and searched; that the defendant did not tell what kind of liquor he had but was arrested as soon as he said he had liquor in his package. Another officer testified that the defendant said, "Liquor", when he was asked what he had, and a third officer testified that the defendant was asked three times what he had in his package, and the first time he said, "Liquor", and the third time, "Whiskey".

Defendant's petition is dismissed.

Aaron Finger and Clarence A. Southerland, Deputy Attorneys-General, for the State.

Philip L. Garrett, J. Frank Ball, George W. Lilly, Ayres J. Stockly and J. Paul Green for defendant.

PENNEWILL, C. J., RICE and RODNEY, J. J., sitting.

OPINION

PENNEWILL, C. J.

There are two questions raised under the testimony:

1. Was the defendant arrested before he admitted he had liquor in his package?

2. Was the officer justified in making the arrest after the admission, without a warrant?

It has been held by this court in some cases that to constitute an arrest, the officer shall place his hand on the accused, or otherwise take possession of his person. But even if this is not necessary, certainly the officer must do or say something from which the accused can reasonably believe that he is under arrest. He must have reasonable ground to believe that he cannot go away, that he is restrained of his liberty. The officer in this case was in uniform, and the accused therefore, knew he was accosted by an officer, and no doubt thought he was bound to stop when approached. But we do not think the mere fact that an officer in uniform walks up to a person on the street and asks him what he has in his package, or on his person, is enough to constitute an arrest. The officer, when he approached the man and questioned him, no doubt suspected he had intoxicating liquor in his package, and the accused may have thought he was under arrest because of his...