State v. McDaniel

• Decision Date: 30 June 1925
• Citation: 237 P. 373,115 Or. 187
• Parties: STATE v. MCDANIEL.
• Court: Oregon Supreme Court

237 P. 373

115 Or. 187

STATE v. MCDANIEL.

Supreme Court of Oregon

June 30, 1925

In bank.

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

On motion for rehearing. Judgment affirmed.

For former opinion, see 231 P. 965.

Bean and Rand, JJ., dissenting, and Brown, J., dissenting in part.

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.

BELT J.

Defendant was convicted of the crime of having intoxicating liquor in his possession. Timely application was made to the court for return of the whisky taken from him--which in our opinion was equivalent to a motion for suppression of evidence--upon the ground that he was not under lawful arrest, and that the search made was in violation of his constitutional rights. The trial court held that the search and seizure were unlawful, but permitted the state, over the objection and exception of appellant, to introduce evidence to the effect that the flask taken from him contained intoxicating liquor. Did the court thus commit reversible error? It is conceded for which no authorities need be cited, that, if the search and seizure were legal, the evidence thereby obtained would be admissible. If the search and seizure were illegal, the admissibility of the evidence depends upon whether this court elects to follow the rule as announced by the federal courts. Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Amos v. U. S., 255 U.S. 314, 41 S.Ct. 266, 65 L.Ed 654; 5 C.J. 395.

Let us consider first the legality of the search, for if it be determined that the same was legal, then the problem before us is solved. At the time defendant was searched the officers did not have a warrant of search or arrest. Justification for the search therefore must be predicated on the right to arrest defendant for a crime committed, or attempted to be committed, in their presence. If the arrest was unlawful, the search was unlawful. 2 R. C. L. 467. The validity of the search does not, however, depend upon the existence of a warrant. Carroll v. U. S., 45 S.Ct. 280, 69 L.Ed. 543, decided by the United States Supreme Court March 2, 1925; State v. Turner, 302 Mo. 660, 259 S.W. 427. The federal and state Constitutions guarantee protection only against unreasonable search. Amos v. U.S., supra; Gouled v. U.S., supra; People v. Case, 220 Mich. 379, 190 N.W. 289, 27 A. L. R. 691; State v. Turner, supra. A lawful search is reasonable, and an unlawful search is unreasonable. It follows, therefore, that he who would search the person of another must do so pursuant to law; otherwise there is an invasion of his personal liberty and a violation of his constitutional rights. The officers, not having a warrant, would be justified in arresting defendant only for a crime committed, or attempted to be committed, in their presence. If the arrest was lawful, then the right to search and seize the fruits or instrumentalities of the crime exists without question. State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290.

Was a crime, in contemplation of law, committed in the presence of the arresting officers? The facts of this case are lucidly stated by Justice Pipes, speaking for a majority of the court, on the original hearing, as reported in 231 P. 965, and it is not deemed necessary to restate them at length here. Suffice it to say, Robinson testified:

"I observed he was under the influence of liquor.

"Q. How did you observe that? A. By the scent and by the way he acted.

"Q. The scent of what? A. Of booze on his breath. * * * Well, his face was all flushed up--also, he came up with his overcoat all buttoned up here--his overcoat, it was buttoned this way. * * * "Q. What did you observe about his conduct in going to the car? A. He walked to me like a man that is under the influence of liquor."

Plunket testified:

"I observed that he was considerably under the influence of liquor.

"Q. By what means did you arrive at that conclusion? A. By his actions and by his breath.

"Q. What about his breath? A. It was pretty strong with liquor odor.

"Q. What about his face? A. His face showed signs; it was pretty red."

From such observations, did the officers have the right to draw the reasonable inference that the defendant was drunk? There are different degrees of drunkenness, but in a legal sense a person is drunk when he is so far under the influence of intoxicating liquor that he is not entirely himself, and his unusual appearance--flushed face and staggering walk--attracts the attention of others. Elkin v. Buschner, 1 Monaghan (Pa.) 359, 16 A. 102; Bouvier's Law Dict. (3d Ed.) 943. Reasonable cause to believe a person to be intoxicated is sufficient to excuse an arrest without a warrant if such conclusion is based on personal observation. Commonwealth v. Presby, 14 Gray (Mass.) 65; U.S. v. Rembert (D. C.) 284 F. 996. "An offense is considered as taking place within the view of a police officer where his senses afford him knowledge that one is being committed." 2 R. C. L. 448.

In 5 C.J. 416 it is said:

"An offense is committed in the presence or view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the acts constituting it, although at a distance, view of such acts as constitute reasonable grounds for arrest being sufficient."

Blakemore on Prohibition (2d. Ed.) p. 487 says:

"Under the federal as well as the state statutes, to justify search and seizure or arrest without warrant the officer must have direct personal knowledge, through his hearing, sight, or other sense of the commission of the crime by the accused. But it is not necessary that he should actually see the contraband liquor."

Sense of smell is often more unerring than that of sight. Lipton's tea might look ever so much like Scotch whisky and fool many people dependent solely upon sight, but few would be misled through the sense of smell. In McBride v. U.S. (C. C A.) 284 F. 416, federal officers passing along the street smelled the fumes of whisky, and without warrant seized the still located in a building. The court held the crime was committed in their presence, and refused to suppress the evidence. In State v. McAfee, 107 N.C. 812, 12 S.E. 435, 10 L. R. A. 607, it was held that where an assault was so near the officer could hear the conversation and the sound made by the blow, it was a breach of the peace in the presence of the officer, although he could not see the parties on account of darkness. The rule is well stated in Ingle v. Commonwealth, 204 Ky. 518, 264 S.W. 1088:

"When the evidence of such commission reaches him through his senses and is sufficient to render the ultimate fact morally certain and it is augmented by other strongly persuasive facts in his possession, all of which is sufficient to convey virtual knowledge to any normal mind that the offense is then and there being committed, he may act upon such information as being tantamount to actual knowledge that the offense is being committed, and if it turns out that he was correctly convinced the arrest will be upheld as one having been made for an offense committed in the officer's presence."

People v. Esposito, 118 Misc. 867, 194 N.Y.S. 326, is much in point:

"Was the arrest lawful? The defendant was all the while committing the crime of having the revolver in his personal possession without a license. Was the crime committed in the presence of the officer? The defendant was on the street a few paces from the officer; all that intervened between the officer and the physical object, the body of the offense, was a brief space and a bit of cloth. To this mere propinquity were joined visible indications in some degree significant. Defendant's glancing at the officer and retreat as described, when the latter appeared to be about to accost him, might reasonably have been considered flight, with its implication of guilt. Personal presence includes corporeal extension within the sphere of sense perception. Presence is not the same as view. To justify arrest without a warrant by an officer for a misdemeanor, the statute requires that the offense be actually committed or attempted in the officer's presence. There is no definite statement of the necessary extent of the evidence conveyed to the officer's consciousness. The purpose of the permission is promptness, to secure apprehension and identification. In the emergency the officer proceeds or tarries at his peril. If he does not act, he may incur penalty of dereliction. If in arresting he makes mistake of law or fact as to the commission of the offense, no matter how clearly apparent to him may seem the doing of the forbidden act by the person arrested, the officer is a trespasser and liable accordingly. Stearns v. Titus, 193 N.Y. 272, 85 N.E. 1077.

"The officer has no judicial immunity for errors of judgment. He must be right or suffer. Therefore, if he is right by ultimate determination, he ought not to suffer provided only he has acted in good faith. Hence the rule deducible according to the law in this state may be stated thus: If a police officer is in bodily reach of a person then and there actually engaged in the commission of a

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