State v. McBride
| Decision Date | 25 March 1931 |
| Docket Number | 30959 |
| Parties | The State v. Roy McBride, Appellant |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court; Hon. D. D. Reeves Judge.
Reversed and defendant discharged.
Stratton Shartel, Attorney-General, and Silas Garner, Special Assistant Attorney-General, for respondent.
(1) Where an officer of the law has reasonable grounds to believe a person has violated the law or is in the act of violating the law, such officer may arrest such person without a warrant, and thereafter search such person and if proof of such violation is found the same may be used as evidence at the trial if such person be charged with such violation. State v. Loftis, 292 S.W. 29; State v. Hall (Mo Sup.), 278 S.W. 1028; State v. Pigg, 312 Mo 212, 278 S.W. 1030; United States v. Snyder (D. C.), 278 F. 650; State v. Williams, 14 S.W.2d 434. (2) Where the motion to suppress is filed in the trial court alleging violation of certain constitutional rights of the defendant, and the issue is joined and testimony heard by the court, if there is any substantial evidence to justify the finding of the trial court, that finding is binding on the appellate court. State v. Hall (Mo. Sup.), 278 S.W. 1028; State v. Loftis, 292 S.W. 29. (3) There are many points raised in the motion for a new trial as to the admissibility of certain testimony of the sheriff and the chemist, but the reason advanced for its incompetency is the alleged unlawful arrest and search of the defendant. Therefore, the only question before this court for disposition is: Was the evidence upon which defendant was convicted proper for the consideration of the jury. In other words, was it incompetent because illegally obtained. State v. Pigg, 278 S.W. 1030; United States v. Snyder (D. C.), 278 F. 650.
Cooley, C. Davis and Henwood, CC., concur.
In the Circuit Court of Atchison County appellant was charged with and convicted of possession of intoxicating liquor and sentenced to pay a fine of $ 750 and to one year's imprisonment in jail. Upon his appeal from the judgment the cause was sent to the Kansas City Court of Appeals, the offense being a misdemeanor. The court of appeals transferred the cause to this court because it deemed the construction of certain sections of the State Constitution to be involved, a conclusion with which we agree. The constitutional question was timely raised in the trial court and well preserved. Appellate jurisdiction of the cause is therefore in this court.
The evidence upon which defendant was convicted and the only evidence tending to show him guilty was obtained by the sheriff by a search of defendant's person. Before trial defendant filed a motion to suppress the evidence so obtained, alleging in substance that the liquor in question was taken from the possession and from the person of defendant by officers of the State before defendant's arrest; that at the time of such search and seizure said officers had no warrant for the arrest of defendant and no authority to search his person; and that said search and seizure were unreasonable, illegal and violative of Sections 11 and 23 of Article II of the State Constitution, in that same were not warranted by law and by "said Constitution" and that to permit the use of said evidence against defendant at the trial "would be compelling the defendant to testify against himself."
The court heard evidence upon the motion to suppress, consisting of the testimony of the sheriff who made the search and seizure, which showed the following:
Defendant resided at Tarkio. The sheriff and a deputy went to his residence armed with a search warrant authorizing a search of defendant's premises only. The officers had no warrant for the arrest of defendant. Defendant was found sitting in his automobile in front of his house. The sheriff testified: "I told him I had a search warrant for his premises and put him under arrest." On further examination it developed that he did not, before the search, inform defendant that he was arresting him; that what he said to defendant was that he, the sheriff, had a search warrant for defendant's premises and that he told him to get out of the car, that he "wanted to shake him down," whereupon defendant got out of the car and the sheriff searched him, finding upon his person two half-pint bottles of moonshine liquor. At the trial the sheriff testified to finding but one bottle. Whether one or two, they were in defendant's pockets and concealed so that the sheriff did not discover and could not have discovered them until he searched defendant's person. The sheriff further testified, when asked for what he had arrested defendant: "I don't know what I might have arrested him for at the time;" that it was just a wild guess; that he "had plenty of suspicion;" that he did not know at the time that defendant had liquor on his person. There was nothing in defendant's conduct or appearance to justify a suspicion that he was then violating the law. On cross-examination by the State the sheriff said he had previously been informed that defendant had been selling moonshine liquor, but it is clear from his testimony that he was not arresting defendant for such supposed sale or sales, nor for any prior offense believed to have been committed by defendant. No effort was made to show that any prior offense for which defendant might have been arrested had in fact been committed. It is clear that the only ground upon which the sheriff acted was his suspicion that defendant might then have liquor upon his person. He subsequently searched defendant's premises, finding nothing incriminating.
Defendant's motion to suppress was overruled, the case proceeded to trial, and defendant was convicted by the use of the evidence so obtained by the search and seizure. There was no other evidence to authorize conviction.
In State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A. L. R. 383, it was held by this Court en Banc that evidence obtained by an illegal search of the defendant's person cannot be used against him where, as in this case, he has filed a timely motion to suppress same because of the illegality of the search. That case, as this, was a prosecution for unlawful possession of intoxicating liquor. In that case the question was thoroughly considered and the authorities reviewed. But for a distinction in the facts which the State seeks to draw in the instant case, the Owens case would be exactly in point and decisive of this one.
As the facts are stated in the Owens case it is difficult to see any distinction between what the sheriff there did in making his search and what was done by the officer in this case. But it is not stated in the Owens opinion that the officer arrested defendant before ...
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