State v. Miller

• Decision Date: 17 February 1932
• Docket Number: 31655
• Citation: 46 S.W.2d 541,329 Mo. 855
• Parties: The State v. Ida Miller, Appellant
• Court: Missouri Supreme Court

46 S.W.2d 541

329 Mo. 855

The State v. Ida Miller, Appellant

No. 31655

Supreme Court of Missouri

February 17, 1932

Appeal from Bates Circuit Court; Hon. W. L. P. Burney Judge.

Appeal from a conviction for the unlawful possession of intoxicating liquors.

Judgment reversed and the defendant discharged.

Stratton Shartel, Attorney-General, and C. A. Powell Assistant Attorney-General, for respondent.

Cooley C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

By an information filed in the Circuit Court of Vernon County the defendant, Ida Miller, was charged with unlawful possession of intoxicating liquor. On her application a change of venue was awarded and the cause was sent to the Circuit Court of Bates County where it was tried. Defendant was convicted and after an unavailing motion for new trial was sentenced pursuant to the verdict to thirty days' imprisonment in the county jail and has appealed. The appeal is properly lodged in this court because of constitutional questions timely raised and duly preserved.

The evidence upon which defendant was convicted was obtained by a search of her premises, a restaurant having a rear room not open to the public, made under a search warrant which had been issued by a justice of the peace. Before the trial defendant filed a motion to quash the search warrant for certain reasons alleged, also to suppress the evidence obtained by the search thereunder on the ground that there had been an unreasonable delay in executing the warrant and that the search when made was unauthorized and unreasonable and violative of defendant's rights under Section 11 of Article 2 of the State Constitution.

The court heard evidence upon the motion. The warrant was issued upon the written and verified application of the prosecuting attorney, pursuant to the provisions of Section 4511, Revised Statutes 1929. The application was dated and filed with the justice on April 28, 1930, and the search warrant was on that day issued and delivered to the sheriff to be served. It could have been executed that day. It was not executed or attempted to be executed by the officer until May 10, 1930 twelve days later. The only reason or explanation of the delay in executing the warrant was that given by the sheriff to whom it had been directed, who testified in substance as follows: That after he got the warrant he learned that defendant had been informed that he had such warrant and from the information he received he was convinced that it would be useless to make a search at that time because "they were looking out and had everything cleaned up," and if he had searched defendant's premises then he would have found nothing. He therefore concluded to wait until some later time when he "thought there was some liquor there." He testified: "I used my own judgment on it the next time." He thought conditions on defendant's premises would be changing from time to time, --" one time there would be liquor there and another time there wouldn't be any there." On the evening of May 10th he saw a man who was "pretty drunk" go into defendant's restaurant and later come out, from which he concluded "they were selling that day," and he thereupon entered the building and made the search under the warrant, finding a small quantity of intoxicating liquor in the rear room.

The court overruled defendant's motion to suppress the evidence obtained by the search as well as the motion to quash the warrant and the evidence thus obtained was used at the trial, constituting the only evidence offered tending to sustain the charge against defendant. The conclusion we have reached on the question thus presented renders unnecessary a statement of the facts developed at the trial. The search of defendant's premises under the circumstances was illegal and defendant's motion to suppress the evidence obtained thereby should have been sustained.

This question, so far as we are advised, has not heretofore been considered by this court. A similar question was before the Springfield Court of Appeals in State v. Perkins, 220 Mo.App. 349, 285 S.W. 1021. In that case the prosecuting attorney filed with a justice of the peace his petition for a search warrant to which he was sworn at that time but the justice did not then attach his jurat to the petition. The justice and the constable who was to serve the warrant agreed that the warrant should not issue until the constable informed the justice that he wanted it. That he did seven or eight days later, whereupon the justice attached his jurat to the petition, dating it as of that date, and issued the warrant which was served the same day it was issued. In a well reasoned opinion the Court of Appeals held the search invalid because of such intentional delay in the issuance of the warrant. The same reasoning condemns the search as invalid in the instant case.

In State v. Barr, 20 S.W.2d 599, the St. Louis Court of Appeals held that an unexplained delay of six days in serving a search warrant did not render the search thereunder invalid, distinguishing the case before it from the Perkins case on the ground that there was no showing of connivance between the magistrate who issued the warrant and the officer serving it or of a designed delay in executing the warrant. No mention is made in the opinion of the statute relative to search warrants. The Barr case, however, if correctly decided, a question we need not here determine, is not authority for holding a search invalid when made under circumstances such as appear in the instant case.

The Constitution, Article 2, Section 11, guarantees to all immunity from unreasonable searches and seizures and further provides that "no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched or the person or thing to be seized, as nearly as may be; nor without probable cause, supported by oath or affirmation reduced to writing." The determination of whether or not there is probable cause is a judicial question which cannot be delegated to the officer charged with the duty of executing the warrant. [State v. Lock, 302 Mo. 400, 259 S.W. 116, 128.] The Constitution and the statutes enacted pursuant thereto necessarily contemplate that the facts warranting the conclusion of probable cause must exist at the time of such judicial finding, not that they will or may come into existence thereafter. A search warrant cannot legally be issued upon a showing, not that the law has been or is being violated, but only that it may or probably will be violated at a time, near or remote, in the future. [See Poston v. Commonwealth, 201 Ky. 187, 256 S.W. 25; Cornelius' Search and Seizure (2 Ed.) sec. 168, p. 423.]

The same constitutional and statutory provisions also contemplate that the warrant shall be executed with reasonable promptness and not at the unlimited discretion of the officer who is to execute it. The nature of the process and the danger of its abuse, as well as the command of the statute, so require. Such warrant is a powerful police weapon. The qualities which make it an efficient aid in enforcing the law make it dangerous when abused. It may then become an instrument of oppression, wherefore the constitutional barriers that have been erected against such abuse. Our statute, Section 4511, supra, expressly provides that the officer executing the warrant shall do so forthwith and shall forthwith make his return thereon showing the manner and date of his execution thereof, what, if anything, was seized, etc. No discretion is conferred upon such officer to hold the warrant until such time as he may choose to serve it (People v. Fetsko, 332 Ill. 110, 163 N.E. 359) and certainly none to withhold its execution until such time as in his judgment the execution thereof may produce results more satisfactory either to him or to the State, thus making himself the judge of the existence of probable cause for the search at the time it is made. The warrant itself, in this case, commanded the officer to serve and return it forthwith, following the statute.

Search warrant proceedings, it is generally held, are strictly construed and "every constitutional and statutory requirement must be observed or the search will be illegal." [Cornelius' Search and Seizure, supra Section 184, page 452.] See also same work, Section 230, page 538, et seq., stating that since such proceedings are...