State v. McDaniel

• Decision Date: 02 January 1925
• Citation: 115 Or. 187,231 P. 965
• Parties: STATE v. MCDANIEL.
• Court: Oregon Supreme Court

231 P. 965

115 Or. 187

STATE v. MCDANIEL.

Supreme Court of Oregon

January 2, 1925

In Banc.

Appeal from Circuit Court, Benton County; G. F. Skipworth, Judge.

F. A McDaniel was convicted for having intoxicating liquor in his possession, and appeals. Reversed and remanded.

Coshow J., McBride, C.J., and Burnett, J., dissenting.

A. D. Leedy, of Portland, for appellant.

Arthur Clarke, of Corvallis (Fred McHenry, Dist. Atty., and G. W Denman, both of Corvallis, on the brief), for the State.

PIPES J.

A criminal complaint was filed against the defendant on December 22, 1922, charging him with the crime of having intoxicating liquor in his possession, and he was tried in the justice's court for Benton county, Or., on January 5, 1923. He was there convicted, and appealed to the circuit court, where he was again convicted.

It appears that two deputy sheriffs, Robinson and Plunkett, had seized the defendant and searched his person for intoxicating liquor and, a pint flask of liquor being found on his person, he was arrested for the crime. Prior to the trial the defendant filed a timely application in the justice's court for a return of the liquor to him, alleging that it had been illegally seized in a search of his person. This application having been denied, it was renewed in the circuit court before the trial in that court. The circuit court heard the evidence concerning the search and seizure, and decided that the search was unlawful, and that the whisky obtained thereby was illegally obtained. Notwithstanding that decision, upon the trial the court admitted evidence, over the objection and exception of the defendant, of the two officers to the effect that the flask so seized by them was three-fourths full of whisky. The whisky had been submitted for a chemical examination to a professor of chemistry at the Agricultural College, who testified, over the objection and exception of defendant, that a part of the contents of the bottle contained 34 per cent. of alcohol. The circumstances of the search and seizure were related in their testimony by the officers. As they will be particularly referred to in the opinion, we will not recite them in this statement. The defendant was convicted, and from a judgment of conviction brings his case here by appeal.

The sole question to be determined is whether the court erred in admitting the testimony of the officers and of the chemist derived from an examination of the whisky. If the search here was legal, the evidence obtained thereby was admissible at the trial, and the court committed no error in overruling the objections to it. If the search was not legal, the evidence was illegally obtained. Whether, notwithstanding this fact, it was admissible depends upon another question, which we will meet in its proper place. The question of the legality of this search of defendant's person, then, meets us at the threshold of the case, and must be decided.

An officer has authority to search the person of a man when he holds a search warrant issued to him by a magistrate, in pursuance of a provision of the Constitution of this state, and the law passed in pursuance thereof, which are as follows:

"No law shall violate the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." Article 1, § 9, Constitution of Oregon.

"The magistrate must, before issuing the warrant, examine, on oath, the complainant and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them." Section 1855, Or. L.

"Thereupon, if the magistrate be satisfied that there is probable cause to believe in the existence of the grounds of the application, he must issue the warrant. * * *" Section 1856, Or. L.

Or he may search a man who is in his custody by virtue of a legal arrest to answer some criminal charge pending or in contemplation.

These two authorities differ from each other in purpose and procedure. In the cases covered by the constitutional provision, the search, if under a search warrant, is authorized where the public has an interest in the discovery, as of stolen goods, concealed weapons, unlawful possession of intoxicating liquors, etc. But the constitutional provision is at once permissive and prohibitive. It confers authority and limits its exercise within the limits defined by the provision. This search can only be made upon probable cause, appearing by oath or affirmation, and judicially determined. Otherwise, the search is not only not authorized; it is prohibited.

Under the second authority, the search is an incident of an arrest for some crime. The man searched must at the time be in the legal custody of the officer. He must be lawfully a prisoner.

It is admitted here that the officers had no search warrant. If the search was legal, it must come within the authority of the officers to search the prisoner in their legal custody to answer for some crime. If it does not come within that rule, then it comes within the prohibition of the Constitution against illegal searches.

The cases are not in conflict on these propositions. They are recognized everywhere, and are established by this court. Upon the right to search a person under arrest, see State v. McDaniel, 39 Or. 161, 65 P. 520; State v. Wilkins, 72 Or. 77, 80, 142 P. 589; State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290.

The constitutional provision and the procedure thereunder provided by statute are to be strictly construed in favor of the complainant, and, if not followed, the search and seizure are void. The provisions are mandatory. Smith v. McDuffee, 72 Or. 276, 284, 142 P. 558, 143 P. 929, Ann. Cas. 1916D, 947; Nally v. Richmond, 105 Or. 462, 468, 209 P. 871.

An officer may arrest a person for a crime committed in his presence. Section 1763, Or. L.; State v. Laundy, supra. And if he arrests him and has him in custody he may search him. But if he does not arrest him for some crime known to the laws, he cannot search him without a search warrant, although he may believe, and in fact may have probable cause to believe, that the person has on his person instrumentalities of crime. He cannot himself decide that probable cause exists for the search, nor act upon such decision. The determination of the existence of probable cause for the search is a judicial function, and is not confided to the executive officer. Sections 1855, 1856, Or. L., supra.

If the officer, therefore, did not have the defendant in custody on some criminal charge, at the time of the search, however strongly his breath, walk, and conduct might indicate that he had intoxicating liquor on his person, the officer had no legal authority to search him for it. The officer had two courses to pursue: To arrest defendant for the crime committed in his presence, if he was there committing a crime, and then search his prisoner for the whisky, or, if not that, obtain a search warrant and search him, under the authority of his warrant.

The differences of opinion that exist on this record do not arise from conflict in the law concerning search and seizure, but on the different interpretations of the evidence. The question is whether the evidence proves an arrest and a search, or a search and arrest. In the former case, the search was legal. In the latter case, it was illegal.

It should be premised that every unlawful search of a person in invitum involves a restraint of his liberty during the time of the search, and therefore, in a sense, is an arrest. This may not be physical force, but may be compulsion by legislative or judicial authority or duress by the officer under color of his office. Boyd v. U. S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652. But that restraint is not an arrest to answer a crime, but the means of making the search. When the Constitution prohibits a search without a warrant, it prohibits the force necessary to accomplish it.

It is contended by respondent, in support of the legality of the search, that the defendant was drunk in a public place, and was therefore guilty of a crime committed in the presence of the officers. Section 2144--1, Or. L., provides:

"* * * It shall be unlawful for any person to be drunk in any highway, street, or in any public place or building. * * *"

Assuming, without deciding, that the evidence tended to show that defendant was drunk in a public place, and in the presence of the officers, that would have justified his arrest for that crime. But the fact of his drunkenness in their presence, without an arrest, would not justify a search, without a warrant, for the instruments of the crime on his person. That is the very thing that the Constitution and the law passed in pursuance thereof forbid.

We go to the evidence to discover whether the officers arrested the defendant for being drunk in a public place. Neither officer notified the defendant that they were arresting him for drunkenness in a public place. It is said that that is not necessary to establish a lawful arrest for a crime committed in the officer's presence. That is true. But what was said or not said at the time is relevant on the question of whether there was any arrest at all. Neither officer testified in court that he arrested the defendant for being drunk, or had any intention to do so. But the question is concluded by the fact that no charge of that crime was lodged in any court. The statute provides what an arrest is. Section 1753, Or. L., provides:

"Arrest is the taking of a person into

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