State v. Hum Quock
Decision Date | 29 April 1931 |
Docket Number | 6757. |
Parties | STATE v. HUM QUOCK. |
Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.
Hum Quock was convicted of possessing morphine hydrochloride, and he appeals.
Affirmed.
James H. Baldwin and T. J. Walker, both of Butte, for appellant.
L. A Foot, Atty. Gen., and S. R. Foot, Asst. Atty. Gen., for the State.
Hum Quock has appealed from a judgment convicting him of possessing morphine hydrochloride, a felony, and from an order denying his motion for a new trial.
The only question presented is whether the district court erred in refusing to suppress evidence used upon the trial. Timely motion was made.
The case turns upon the legality of defendant's arrest. If the arrest was lawful the search disclosing the narcotics was lawful, otherwise the search was unlawful and the narcotics should not have been admitted in evidence. Where an arrest is made lawfully the person arresting may take from the possession of the arrestee any articles which may reasonably be of use on the trial. State ex rel. Neville v Mullen, 63 Mont. 50, 207 P. 634, 636; State ex rel Kuhr v. District Court, 82 Mont. 515, 268 P. 501.
The arrest was made on February 22, 1930, by one Kelly without a warrant. Kelly was, and for over a year had been, a special investigator for the county attorney's office. He was not a peace officer, and it is conceded that the arrest was made by a private person, although Kelly was acting under the authority of the county attorney. See State ex rel. Sadler v. District Court, 70 Mont. 378, 225 P. 1000.
About two weeks before the arrest Kelly was informed by one who was addicted to the use of narcotics, but not a Chinaman, that defendant had been transporting "dope" (which to Kelly meant morphine or cocaine) from Butte to Billings about once a month. Defendant, said Kelly's informant, carried a grip or hand bag somewhat like a suitcase. Sometimes he went to the depot in a taxi, and at other times he walked. Kelly had known defendant by sight for perhaps a year. Three or four days before the arrest Kelly received further information, this time from a Chinese whose identity, by consent of all, apparently, was not disclosed. Kelly had known this informant for three months and described him as a business man--"he has got certain business," said Kelly. The second informant told Kelly defendant would probably go to Billings in three or four days. On the morning of February 22, this Chinese business man told Kelly over the telephone, in effect, "that this certain Chinaman was going to the depot with a lot of dope." Upon examination by defendant's counsel as to what the Chinese business man said over the telephone, Kelly answered: ' Upon receipt of this communication Kelly went at once to the street designated, and at a point near the Northern Pacific depot observed defendant walking along the street slowly, carrying his hand bag. Kelly drove his car close to the curb, stopped, and stepped out in front of defendant, who dropped his hand bag and called Kelly by name. Kelly arrested him, asking him what he had in his suitcase, but was unable to understand his answer. Kelly then opened the suitcase and, pushing aside the wearing apparel, observed a false bottom in the hand bag, which, being lifted up, disclosed ten cans of morphine and five packages of cocaine. It is needless to say, perhaps, that prior to the arrest Kelly had no personal knowledge respecting the contents of the hand bag. At the county attorney's office the county attorney and Kelly searched the hand bag and also the defendant. Defendant was not taken before a magistrate, but was placed in jail. Three days later the county attorney lodged an information against him, charging him with the possession of morphine hydrochloride. The defendant through his counsel moved to suppress the evidence, which motion after a hearing before the district judge was denied. A bill of exceptions presented by defendant was settled and allowed.
Section 11751, Revised Codes 1921, provides: Under sections 11753 and 11754, a peace officer, and a private person, alike "may arrest another (1) for a public offense committed or attempted in his presence; (2) when the person arrested has committed a felony, although not in his presence; (3) when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it." These statutes are founded upon common-law rules. Ordinarily they are not difficult of application, but the subject "Arrest without Warrant" has often been attended with great difficulty, especially when private persons have exercised that authority. See article by Professor Horace L. Wilgus in 22 Michigan Law Review, 673; State v. Albright, 144 Mo. 638, 46 S.W. 620; Palmer v. Maine Central R. R. Co., 92 Me. 399, 42 A. 800, 44 L. R. A. 673, 69 Am. St. Rep. 513; Russell on Crimes (7th Ed.) 727, and 9th Ed., 799; 9 Halsbury's Laws of England, §§ 523, 607-617.
Rohan v. Sawin, 5 Cush. (Mass.) 281.
The fear that in the process of administering the law some innocent man may be arrested is not new. In Ledwith v. Catchpole, E. 23 Geo. III, Caldecott's Cases, 291, quoted in McCloughan v. Clayton, 171 Eng. Rep. (Reprint) 313, Lord Mansfield said: In other words, the security of organized society is not to be sacrificed because in the course of the enforcement of the law, an innocent man may occasionally be arrested, if the person arresting acts upon probable cause. It is not to be expected that an innocent man will not be arrested occasionally under any system. Groundless fear that the rights of an innocent person may be impinged has aided many a guilty man to escape. In addition to the safeguards provided to avoid such mistakes, the person arresting is liable in damages, and false imprisonment is punishable civilly and criminally.
Hum Quock, at the time of his arrest, had committed, and was then engaged in committing, a felony. Either an officer or a private person with actual knowledge of the fact had the authority to arrest him without a warrant, and either having reasonable cause for believing that he had committed and was continuing to commit a felony had authority thus to arrest him. Kelly did not have actual knowledge of the fact. Did he have reasonable cause to believe defendant was transporting morphine or cocaine?
In State ex rel. Neville v. Mullen, supra, this court, speaking through Mr. Justice Holloway, said: Mr. Chief Justice Brantly, concurring specially, denounced a rule which would authorize an officer to arrest upon a bare suspicion, not supported by the actual existence of facts and circumstances which in the mind of a reasonable person point to the commission of an offense. He then went on to say: ...
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Rodarte v. City of Riverton
...factor in an evaluation of probable cause. Every arrest of an innocent person is not, per se, unreasonable. See State v. Hum Quock, 89 Mont. 503, 300 P. 220 (1931). Any arrest situation presents a conflict between the rights of an individual and the community's interest in protection of the......