State v. Owens, No. 24186.

CourtMissouri Supreme Court
Writing for the CourtWhite
Citation302 Mo. 348,259 S.W. 100
Docket NumberNo. 24186.
Decision Date11 February 1924
PartiesSTATE v. OWENS.
259 S.W. 100
302 Mo. 348
STATE
v.
OWENS.
No. 24186.
Supreme Court of Missouri, in Banc.
February 11, 1924.

Appeal from Circuit Court, Stone County; Fred Stewart, Judge.

Alfred Owens was convicted of having a pint of whisky in his possession, and appeals. Reversed, and defendant discharged.

O. F. Douglas, of Crane, and Moore, Barrett & Moore, of Ozark, for appellant.

Jesse W. Barrett, Atty. Gen., and Allen May, Sp. Asst. Atty. Gen., for the State.

Lyons & Ristine, of Lexington, amici curiæ.

WHITE, J.


The appellant was convicted in the circuit court of Stone county on the charge of having in his possession a pint of whisky, in violation of section 6588, R. S. 1919, as amended by the act of 1921 (Laws of 1921, p. 413).

The Attorney General thus states the case:

"The evidence is short and shows that the defendant, Alfred Owens, on or about January 13, 1922, was detained by the sheriff of Stone county and searched without any warrant or process of any kind, and that a quantity of whisky was taken from his pocket."

Defendant filed a motion to suppress the evidence discovered by the sheriff in that illegal search, because in violation of the provisions of the United States Constitution and the state Constitution relating to unreasonable search and self-incrimination. The motion was overruled and the defendant convicted upon evidence of the sheriff and his deputy. The sheriff testified that Owens was not doing anything at the time; he did not know whether he was drunk or sober; did not arrest him for drunkenness; did not place him under arrest at the time he searched him. The charge which was made against him was after the sheriff had searched him and found the whisky. The sheriff did not see nor smell any whisky; he had no knowledge of it. His deputy came to his house and told him "there was a man full

259 S.W. 101

of booze." The deputy did not designate the defendant, nor anybody, and gave no further information. The sheriff first called up the prosecuting attorney and wanted to know if he had a right to search a car without a search warrant. Mr. Renfro, the prosecuting attorney, told him he did. The sheriff interpreted this instruction with the utmost liberality and applied it to persons as well as cars. He took a chance when he saw Owens coming out of a restaurant, seized him, and took a pint bottle of whisky out of Owens' hip pocket. The sheriff, according to his own account of the matter, tempered this violence with a gentle touch, for Owen "never hollered nor made no big noise," in protest of the unconventional proceeding.

I. The principal question for determination in this case is whether evidence obtained by an illegal search of the defendant's person was admissible in evidence against him. Several cases are pending in this court hi which that question arises under varying states of fact, and it is important to consider certain general principles which may be applicable to all.

We are not now considering the right of an officer to search a person lawfully arrested, and take from him, to be used in evidence against him and to assist in procuring his conviction, any article which may connect him with the commission of a crime. The right is recognized by authorities generally. Holker v. Hennessey, 141 Mo. 527, loc. cit. 539, 42 S. W. 1090, 39 L. R. A. 165, 64 Am. St. Rep. 524; State v. Jeffries, 210 Mo. 302, loc. cit. 325, 109 S. W. 614; State v. McIntosh, 94 S. C. 439, 78 S. E. 327. Nor is this a case which brings into question the right of an officer to arrest without a warrant a person who he has reason to suspect has committed a felony. This is a misdemeanor case. State v. Cushenberry, 157 Mo. 168, loc. cit. 181, 56 S. W. 737; State v. Moore (Mo. Sup.) 235 S. W. loc. cit. 1058; State v. Peters (Mo. Sup.) 242 S. W. 894, loc. cit. 896. Likewise it is not a case where a misdemeanor is committed in the presence of the officer who makes the arrest, because it is admitted that the defendant was within the peace of the state so far as conduct was concerned and it was only by the illegal search that his, offense was discovered.

II. The guaranty against unreasonable search and seizure provided in the Fourth Amendment of the Constitution of the United States, and the provision in the Fifth Amendment that a defendant shall not be compelled to furnish evidence against himself, refer only to federal officers and agents and have no effect upon the operation of state officials and other' persons not clothed with federal authority. Weeks. v. United States, 232 U. S. 383, loc. cit. 398, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; .Adams v. New York, 192 U. S. loc. cit. 595, 24 Sup. Ct. 372, 48 L. Ed. 575; Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159; Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97.

This means that evidence obtained illegally, by criminal methods, or however extorted, by a state officer or by any person not an officer or agent of the federal government, may be produced in evidence without contravention of the Fourth or the Fifth Amendment to the federal Constitution. So, whatever objection the appellant may urge to the introduction of evidence, the federal Constitution prohibiting unreasonable search falls out of the case.

The several states have followed the doctrine just mentioned as applicable to state officials. Kennemer v. State, 154 Ga. 139, 113 S. E. 551; McGrew v. United States (C. C. A.) 281 Fed. 809; People v. Mandel, 90 Misc. Rep. 170, 154 N. Y. Supp. 231, loc. cit. 233; City of Sioux Falls v. Walser, 45 S. D. 417, 187 N. W. 823; People v. Adams, 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675; State v. Magnano, 97 Conn. 543, 117 Atl. 550. The doctrine will appear in many of the cases cited below, stating that the state courts have construed these guaranties of the Constitution in a way to protect citizens from the overzealous activity of state officers, and does not protect a person charged with a crime against the treachery of associatees or criminality of persons other than state agents.

While the Fourth and Fifth Amendments to the federal Constitution are not involved here, sections 11 and 23, art. 2, of the Constitution of Missouri, are almost identical in purport and in language with those amendments, and the construction of them by the United States courts is important authority for us in construing the like sections of our state Constitution. Many cases of prosecutions for the violation of prohibition laws lately have received consideration by courts of various states with reference to the production of evidence obtained by illegal search of the person or the premises of the defendant, and these will be noticed.

III. Whether a search is legal or illegal is not always determined by the presence or absence of a search warrant. The Constitution protects against an unreasonable search. A search may be unreasonable when made by an officer with a valid search warrant in his hands, or a search may be reasonable and entirely within the rights of an officer when he has no search warrant. Whether or not a search is reasonable is a judicial question. It is not within the power of the Legislature to enact a statute which will permit an unreasonable search. People v. Milone, 119 Misc. Rep. 22, 195 N. Y. Supp. 488; People v. Case, 220 Mich. 379, 190 N. W. 289; United States v. Rembert (D. C.) 284 Fed. 996; Lowry v. Rainwater, 70 Mo. 152, loc. cit. 158, 159, 35 Am. Rep. 420. In this

259 S.W. 102

connection several cases turn upon the alleged consent of the party to be searched. We think such cases usually strain a point to justify the search. If an officer appears at a person's home, and in his official character demands the privilege of searching the premises, the owner of the premises who yields peaceably and silently to the official demand is as much under constraint as if he had forcibly resisted official interference.

IV. In the various federal District and Circuit Courts, and in the appellate courts of the several states, there is a wealth of recent precedent upon the subject, and of necessity some confusion in the solution of the constitutional questions, but not so much as some amici curie claim to be present. These may be classified as follows:

(a) Cases where objection is made for the first time when evidence is offered on the ground that it was obtained by means of illegal search.

(b) Where a timely motion or other preliminary proceeding is presented, seeking before the trial to suppress evidence obtained by illegal search.

(c) Where such motion seeks a return of property taken by means of an illegal search, and in that connection cases are affected by (1) whether the property has evidential value only, or (2) is the means or instrument for the commission of a crime, or (3) property which is contraband to which the defendant has no legal right under any circumstance.

When evidence is offered and objection that it was obtained by illegal means is then made for the first time, the court will determine only whether the evidence is relevant and competent. It will not pause to determine the collateral question as to how the evidence was obtained (Adams v. New York, 192 U. S. 585, loc. cit. 594, 595, 24 Sup. Ct. 372, 48 L. Ed. 575), and that is the doctrine in this state (State v. Pomeroy, 130 Mo. 489, loc. cit. 498, 499, 32 S. W. 1002; State v. Sharpless, 212 Mo. 176, loc. cit. 197, 198, 199, 111 S. W. 69).

V. The rule is general that private papers, or property possessing evidential value only, obtained by government officers by means of illegal search, are not admissible in evidence against the person affected, whose premises were searched. This is the rule of the United States Supreme Court and is followed almost universally by the inferior federal courts and state appellate courts. This rule applies whether the evidence is procured by compelling...

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  • Orick v. State, 24841
    • United States
    • Mississippi Supreme Court
    • October 5, 1925
    ...Wis. 407, 193 N.W. 89, 27 A. L. R. 673; People v. Castree, 311 Ill. 392, 143 N.E. 112, 32 A. L. R. 357; [140 Miss. 206] State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A. L. R. 383, and Ex parte Rhodes, 202 Ala. 68, 79 So. 462, 1 A. L. R. 568, all are able discussions of the principles involv......
  • State v. Hepperman, No. 37944.
    • United States
    • United States State Supreme Court of Missouri
    • June 17, 1942
    ...suppress. Whether or not the evidence was unlawfully obtained was a question to be determined on the motion to suppress. [State v. Owens, 302 Mo. 348, 259 S.W. 100; 32 A.L.R. 383.] After the motion is overruled the defendant keeps the question alive by timely objection (State v. Tunnell, 30......
  • State v. Witherspoon, Nos. 54102
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1970
    ...free of fear or pressure, is not so readily found. Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819 (1954); State v. Owens, 302 Mo. 348, 259 S.W. 100 In this case Witherspoon did not give any oral consent. He was not advised of his Fourth Amendment rights. There is no evidence in......
  • State v. McCrary, No. 62236
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1981
    ...(which holds that evidence obtained by illegal search is not admissible at trial when timely objection is made). (2) In State v. Owens, 302 Mo. 348, 259 S.W. 100 (banc 1924), The Exclusionary Rule was adopted in Missouri. (3) In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (196......
  • Request a trial to view additional results
120 cases
  • Orick v. State, 24841
    • United States
    • Mississippi Supreme Court
    • October 5, 1925
    ...Wis. 407, 193 N.W. 89, 27 A. L. R. 673; People v. Castree, 311 Ill. 392, 143 N.E. 112, 32 A. L. R. 357; [140 Miss. 206] State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A. L. R. 383, and Ex parte Rhodes, 202 Ala. 68, 79 So. 462, 1 A. L. R. 568, all are able discussions of the principles involv......
  • State v. Hepperman, No. 37944.
    • United States
    • United States State Supreme Court of Missouri
    • June 17, 1942
    ...suppress. Whether or not the evidence was unlawfully obtained was a question to be determined on the motion to suppress. [State v. Owens, 302 Mo. 348, 259 S.W. 100; 32 A.L.R. 383.] After the motion is overruled the defendant keeps the question alive by timely objection (State v. Tunnell, 30......
  • State v. Witherspoon, Nos. 54102
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1970
    ...free of fear or pressure, is not so readily found. Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819 (1954); State v. Owens, 302 Mo. 348, 259 S.W. 100 In this case Witherspoon did not give any oral consent. He was not advised of his Fourth Amendment rights. There is no evidence in......
  • State v. McCrary, No. 62236
    • United States
    • United States State Supreme Court of Missouri
    • September 8, 1981
    ...(which holds that evidence obtained by illegal search is not admissible at trial when timely objection is made). (2) In State v. Owens, 302 Mo. 348, 259 S.W. 100 (banc 1924), The Exclusionary Rule was adopted in Missouri. (3) In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (196......
  • Request a trial to view additional results

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