Tacker v. State
| Decision Date | 07 May 1941 |
| Docket Number | A-9789. |
| Citation | 113 P.2d 394,72 Okla.Crim. 72 |
| Parties | TACKER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. An officer may search the person arrested, and seize anything found upon him, or in his immediate control, the possession of which is unlawful. In order to justify the search of the person, and the immediate surroundings of the person arrested, the arrest must be in good faith, and not as an excuse or subterfuge for the purpose of making an unlawful search.
2. Constitutional provisions guaranteeing one immunity from unlawful search and seizure is personal, and one accused will not be heard to object that the search of the property or premises of some third person is a violation of his constitutional rights. Oklahoma Statutes Annotated, Constitution, Article 2, Section 30.
Appeal from Court of Common Pleas, Oklahoma County; Carl Traub Judge.
C. L Tacker was convicted of unlawful possession of intoxicating liquor, and he appeals.
Affirmed.
Mac Q Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
Laynie W. Harrod, of Oklahoma City, for defendant.
Defendant C. L. Tacker was charged in the Court of Common Pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: 48 pints of nontax-paid liquor; was tried before the court without the intervention of a jury, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.
The only error complained of is that the court erred in overruling the motion to suppress and exclude the testimony offered by the State. This contention is based upon the alleged illegality of the search, the liquor having been found by the officers in a car driven by Jim Owens and in which defendant was riding. The search was made on the public streets of Oklahoma City by two police officers who were following the car and who arrested Jim Owens for speeding prior to the search of the car. He afterwards paid a fine of $10 in the police court upon this charge. When the car was stopped and after Jim Owens was placed under arrest, as above stated, the officers raised the turtle back to the car and found therein 48 pints of nontax-paid whiskey. The defendant, C. L. Tacker, claimed the ownership of the whiskey, and Owens claimed ownership of the car, the defendant stating that Owens knew nothing of the whiskey and Owens corroborating this statement. Owens was not held in connection with the possession of the whiskey.
The contention of defendant is without merit:
1. Because the search was legal without the necessity of any warrant, having been made pursuant to a legal arrest. Skinner v. State, 65 Okl.Cr. 371, 87 P.2d 341.
2. This defendant is in no position to question the legality of the search of the automobile for the reason that he disclaimed ownership and control thereof.
This court has in many decisions stated that the constitutional provision guaranteeing one immunity from unlawful search and seizure is personal, and accused will not be heard to object that the search of the property or premises of some third person is a violation of his constitutional rights. Bynum v. State, 40 Okl.Cr. 352, 268 P. 993; White v State, 33 Okl.Cr. 428, 244 P. 450; ...
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King v. State
... ... Smith v. State, 52 ... Okl. Cr. 315, 4 P.2d 1076; Skinner v. State, 65 Okl ... Cr. 371, 87 P.2d 341; Barfield v. State, 68 Okl. Cr ... 455, 99 P.2d 544; Brumley v. State, 69 Okl. Cr. 122, ... 100 P.2d 465; Simons v. State, 69 Okl. Cr. 265, 101 ... P.2d 852; Tacker v. State, Okl. Cr.App. 113 P.2d ... 394; Mitchell v. State, Okl. Cr.App., 119 P.2d 99; ... Sims v. State, Okl. Cr., 121 P.2d 317, decided ... January 7, 1942, not yet reported [in State reports] ... Defendant ... next complains of instruction number 6, which attempted to ... ...
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Rausch v. State
...court construing the same. Barfield v. State, 68 Okl.Cr. 455, 99 P.2d 544; Matthews v. State, 67 Okl.Cr. 203, 93 P.2d 549; Tacker v. State, 72 Okl.Cr. 72, 113 P.2d 394; Nott v. State, 70 Okl.Cr. 432, 107 P.2d However, the facts in this case are not the same as in the cases relied upon. In t......
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Fisher v. State
...anything found upon him, or in his immediate control, the possession of which is unlawful." Syllabus by the Court, Tacker v. State, 72 Okl.Cr. 72, 113 P.2d 394 (1941). In the present case, the appellant was admittedly speeding. The officers caught up with him only after he collided with ano......
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Flanagan v. State
...the liquor was found, or of the liquor. Freeman v. State, Okl.Cr.App., 113 P.2d 843, not yet reported (in State Report); Tacker v. State, Okl.Cr.App., 113 P.2d 394, not yet reported (in State Report); Rogers v. Okl.Cr.App., 113 P.2d 606, not yet reported (in State Report); Chanosky v. State......