State v. Rotolo

• Decision Date: 09 October 1928
• Docket Number: 1489
• Citation: 270 P. 665,39 Wyo. 181
• Parties: STATE v. ROTOLO [*]
• Court: Wyoming Supreme Court

270 P. 665

39 Wyo. 181

STATE v. ROTOLO ^[*]

No. 1489

Supreme Court of Wyoming

October 9, 1928

APPEAL from District Court, Fremont County; EDGAR H. FOURT, Judge.

Carmelo Rotolo was convicted of possessing a still, and he appeals.

Affirmed.

M. C Burk, for appellant.

Defendant was arrested without warrant. The arrest was unlawful, there being no evidence of defendant's commission of an offense in the presence of an officer. There was also a search made of a neighboring house without a search warrant and some articles taken therefrom were used in evidence against the defendant over the motion of his counsel to suppress. The search was in violation of Article I, Section IV of the State Constitution. The Court erred in permitting the officer to testify as to an alleged voluntary statement of defendant after defendant was in custody. It is only upon proof of circumstances warranting it by competent evidence that a search of premises may be made without warrant. Tobin v State, (Wyo.) 255 P. 788; Amos v. State, 255 U.S. 313; Lydecker v. U.S., 275 F. 976; Agnello v. U.S., 269 U.S. 20; Gouled v. U.S., 65 L.Ed 647. The arrest of defendant did not make the search legal. Henderson v. U.S., 12 Fed. (2nd) 528; Russell v. State, 256 P. 758. A search is not justified by what it reveals or brings to light. Tobin v. State, supra. A confession to be admissible must be affirmatively shown to be voluntary. Maki v. State, 18 Wyo. 481. The Court erred in denying the motion of the defendant to suppress the evidence obtained by the unlawful search and seizure and in permitting the introduction of evidence of the articles obtained in said search. The Court further erred in receiving in evidence the alleged statements or admissions of the defendant. Defendant not having received a fair and impartial trial, the judgment should be reversed.

W. O. Wilson and John Dillon, Special Attorney General, for respondent.

While the officer was searching the house of Pete Genero, one of the spectators left the crowd and as he left one of the other spectators said "There he goes to tip Rotolo off." The officer followed the departing spectator to an outbuilding on the premises of defendant and observed defendant walking with a still in his possession to an outhouse on adjoining property. The officer took the still in his possession and arrested defendant. At the time defendant was arrested he stated to the officer that he was out of work and that was the only thing he could get to do. This statement was voluntary. The officers found a coil, mash, some whiskey, and a burner in the shed from which defendant had carried the still. Two points are urged for reversal of the case (1) that the search was illegal and the motion to suppress should have been sustained (2) the admission of the statement of defendant that he could not get work at the mine and that that was the only thing he could get to do. The officer saw the still in defendant's possession without making a search; he was justified in arresting the defendant who had a still in his possession in the presence of an officer. Defendant's statement as to being out of work was voluntary and evidence thereof admissible, 16 C. J. 626, 629; Reid v. State, (Ala.) 71 So. 96. The case of Maki v. State is not in point. A voluntary statement is one coming from the party's own mind free from influence of any disturbing cause. State v. Clifford, 53 N.W. 299.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

Carmelo Rotolo was convicted in the District Court of Fremont County, Wyoming, on the charge of being in possession of a still, used, designed and intended to be used by the said Carmelo Rotolo for the manufacture of intoxicating liquor. He has brought the record in the case here for review by direct appeal.

The evidence material to be considered in connection with the questions argued is substantially as follows: On May 23, 1927, the Deputy Sheriff of Fremont County was engaged, with other officers, in searching the premises of a neighbor of Rotolo at or near the town of Hudson. While the search was being carried on, a number of people gathered to observe the proceeding. During the time the people were present and while the search was progressing, the deputy sheriff noticed a man leave the crowd and run towards Rotolo's premises. Simultaneously the officer heard someone say: "There he goes to tip Tony off." The deputy immediately followed the man who was running, saw him go to the back of Rotolo's house, and saw Rotolo immediately come out and engage in conversation with the man for a few moments. Thereupon both men went to a shed back of the Rotolo house and from there the man who had been running proceeded onward toward town. Meanwhile the officer, who was all the while drawing near the premises, observed Rotolo go into the shed, come out with part of a still in his arms, cross to a small shed located nearby but on another person's property, place the article in that shed and then run hastily back to his house. The officer was about twenty-five feet distant when Rotolo came out of the shed, after leaving the article there. The former continued on to the shed, took out the utensil placed there by Rotolo--it being found to be yet hot--and immediately went to the latter's house and placed him under arrest. Then the deputy took his prisoner and the article thus obtained to the shed from which Rotolo had taken it, and there found a coil in position in a barrel of water, four barrels of mash--three full and one half full--a pint bottle about one-third full of liquor, a sack of corn, a sack of sugar and a gas stove-burning at the time. When the arrest was made, Rotolo said he could not get work at the mine and that was the only thing he could get to do. On cross examination, the officer testified that before he made the arrest he could see that the article which Rotolo carried over to the shed on the other premises was a still; that he was sure of it, as he had seen so many. The only witness for the defense, a neighbor of Rotolo's, testified that the officer could not see the outbuildings back of Rotolo's premises from where he said he saw them. The witness, however, was absent from home at the time of the occurrence and did not see the course followed by the officer in going to the Rotolo premises.

A motion was made by appellant prior to trial to suppress the evidence thus obtained by the State, and at the conclusion of the trial, also, a similar motion was interposed, as well as a motion for a directed verdict in appellant's favor. These were all overruled and to the several rulings of the court due exceptions were saved.

It is urged for appellant that the arrest and search made by the deputy sheriff were illegal, being made without a warrant, and that the latter had nothing but suspicions and suspicious circumstances upon which to act. It is frankly conceded, however, by counsel, that if a crime was being committed in the presence of the officer, he could arrest the defendant and take whatever he found in his possession.

Section 7349, W. C. S. 1920, makes it the duty of a deputy sheriff to arrest "any person found violating any law of this state." It is unlawful and a misdemeanor for anyone to "possess * * * any property designed for the manufacture of liquor intended for use in violation" of the prohibition laws of the state (Laws 1921, c. 117, Sec. 25). Being the owner of, or operating or knowingly possessing a still used, designed and intended to be used for the manufacture of intoxicating liquor, is declared to be a felony (Laws 1927, c. 28). In the record before us, the affirmative testimony is that the officer saw appellant in possession of part of a still and that the latter was endeavoring to free himself from such possession before detection. In the case of State v. George, 32 Wyo. 223, 231 P. 683, the following rules were announced, upon authorities cited:

"In cases of misdemeanor, the right to arrest without a warrant is limited, ordinarily at least, to cases where the offense is committed in the presence of the officer. Information, in such case, justifying him in the belief that an offense has been committed, will not authorize him to make an arrest. The facts constituting the offense must have been within the knowledge of the officer, and that knowledge must have been revealed and the facts capable of being observed in the officer's presence. * * * Where a felony has been committed, the right of arrest without a warrant is broader than in cases of misdemeanor; and according to the general rule, which we have no reason to doubt is in force in this state, a peace officer may arrest without a warrant, one whom he has reasonable or probable grounds to suspect of having committed the felony."

Tested by these principles the officer was fully justified in making the arrest of appellant. It is true there is negative testimony in the record to the effect that the officer could not have seen what he claims to have seen, but this only made the matter a question for the jury, under proper instructions, and there appears to be no complaint before us as regards them. Going upon appellant's premises and arresting him under the circumstances here disclosed, the officer's presence there was lawful and the arrest of Rotolo was lawful. That being so, what search could the deputy make as incident to such an arrest? In the George case, supra, quoting from the previous decision of Wiggin v. State, 28 Wyo. 480, 206 P. 373, this court remarked concerning this question:

"The law is well settled that an officer has the right to search the party arrested and take from his person and from his possession property reasonably believed to be connected with the crime, and the fruits,...