Tucker v. State

Decision Date06 March 1922
Docket Number22335
Citation128 Miss. 211,90 So. 845
CourtMississippi Supreme Court

1. CRIMINAL LAW. Searches and seizures. Federal constitutional provisions as to unreasonable search and self-incrimination not applicable to state agencies.

The Fourth and Fifth Amendments of the federal Constitution guaranteeing the people against unreasonable search and seizure, and self-incrimination, are directed at the exercise of federal authority, and not at the states and their agencies.

2. CRIMINAL LAW. Testimony based on knowledge acquired in searching premises without search warrant, in violation of Constitution, held inadmissible.

Where a defendant, charged with the unlawful making of intoxicating liquors, was convicted alone on the evidence of the officers making a search of his home and premises without a search warrant, whose testimony was based alone on knowledge acquired by what they saw in his home and premises in making such search, such evidence should have been excluded and the defendant acquitted, because such conviction violated section 23 of the Constitution of 1890 of this state, guaranteeing the people against unreasonable searches and seizures, and that clause of section 26 of said Constitution securing a defendant in a criminal case against self-incrimination.

HON. D M. MILLER, Judge.

APPEAL from circuit court of Lincoln county, HON. D. M. MILLER Judge.

Tom Tucker was convicted of the unlawful making of intoxicating liquor, and he appeals. Reversed, and defendant discharged.

Reversed, and defendant discharged.

Jas. A. Noble, for appellant.

In behalf of appellant I invoke the Fourth Amendment and Fifth Amendment of the Constitution of the United States. In his behalf I invoke sections 23 and 26 of the Mississippi Constitution. In his behalf I invoke our own statute laws. Amendment 4 of the United States Constitution reads as follows: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Section 23 of the Mississippi Constitution reads: "The people shall be secured in their persons, houses, and possessions from unreasonable seizure or search and no warrant shall be issued without probable cause supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized." . . . Thus the court at once sees that our state constitution and national constitution are the same in meaning and almost identical in phraseology. Also there is in the Fifth Amendment to the Federal Constitution this language: ". . . nor shall be compelled in any criminal case to be a witness against himself . . ." In the 26th section of the Mississippi Constitution is this language: ". . . and he shall not be compelled to give evidence against himself . . ." Again the absolute sameness of our state Constitution and our Federal Constitution. I have thus compared these Constitutions, because a little later I will cite several decisions of the supreme court of the United States, as well as several supreme court decisions of the states; and I am doing this partially because it might be said for the state that the Federal Constitution has reference only to Federal officers; but, right here I will say that the Federal and state organic laws are the same; therefore, I feel absolutely sure our supreme court will follow the lead of the United States supreme court, especially since the two constitutions are the same on this subject.

Just before I now cite my authorities, let me observe that, argument might be made for the state, that since it appears that the two officers in question, found things in the house and smokehouse of defendant that shows him guilty, he should not complain, and should not be acquitted, even though the evidence was obtained unlawfully and unconstitutionally. I will not weary the court with my own argument and my own reasoning, but will let the court hear the argument of the great jurists of various state supreme courts and the supreme court of the United States as expressed in their well-writen and well-reasoned decisions.

I now will give authorities in the following paragraph. Freemont Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, 35 S.Ct. 341, L. R. A. 1915B. 834; Town of Blacksburg v. Audie Beam, 88 S.E. 441, L. R. A. 1916E. 714; State of Michigan v. August Marxhausen, 171 N.W. 557, 3 A. L. R. 1505; Roy Youman v. Commonwealth of Kentucky, 189 Ky. 152, 224 S.W. 860, 13 A. L. R. 1303, 88 So. 377.

I cite the Mississippi cases of J. Livelar & Co. v. State, 53 So. 681, and also the Mississippi cases of Banfil v. Byrd, 84 So. 227; United States Fidelity & Guaranty Co. v. State to use of Hardy, 83 So. 610. I think these Mississippi cases tend along the line of and support my argument and my contention. The statute laws of this state are so elementary and so well known with reference to searches and seizures that I am sure it is needless to refer to the statutes specially, surely there was not the slightest attempt to comply with them in the instant case by the constable and his deputy.

They had no search warrant of any kind whatever. They had not any warrant for the arrest of defendant (appellant here). At the time the search and seizure was made, he was not charged with any crime. It would be quite different indeed if these officers had had a warrant for him and had reasonable cause upon which to proceed to a search of his houses and premises. Here we have a bold and daring and dangerous invasion of a man's home by an officer and his deputy without the least shadow of legal authority and without any sort of search warrant or other legal process whatever and at the time not even any crime charged against him in any court. In the light of reason, in the name of the rights of the people, in view of the Federal Constitution and our own state Constitution and our statute laws, in the interest of the general and public good, in behalf of the constitutional liberties and guaranties of the people, I urge this court to render a judgment and decision not only reversing this case, but acquitting the appellant absolutely.

I might here add that I feel positive under the many decisions of this court (I am sure it is not necessary to cite them), the instruction the court below gave the state was entirely erroneous, because the case was a circumstantial one, and the instruction did not have in it the theory, "and to the exclusion of every other reasonable hypothesis." But I say in a final word, I am basing my fight and contention on the fundamental constitutional provisions imbedded in our national and state constitutions, that guarantee the people against unreasonable search and seizure in their persons, houses, papers and effects, and upon this I confidently, faithfully hope to win this case in this court.

H. Cassedy Holden, special assistant attorney-general for appellee.

1. The prohibition of the Fourth Amendment to the Constitution of the United States against unreasonable search and seizure does not apply to the state but only to federal officers and agents. Weeks v. U.S., 232 U.S. 383, 58 L.Ed. 652; National Safe Deposit Co. v. Stead, 232 U.S. 58; State v. Peterson (Wyo.), 194 P. 342, 58 L.Ed. 504.

2. Courts do not concern themselves with the method by which evidence is secured; evidence otherwise admissible will not be excluded because it was wrongfully obtained. 22 C. J. 192, citing many cases; Adams v. New York, 192 N. S. 585, 48 L.Ed. 575; Weeks v. U.S., supra.

3. It is to be noticed that although the motion of defendant, that the seized articles be returned to him, was denied, these articles were not offered in evidence against th defendant. There are no property rights in apparatus used for making whiskey nor in whiskey made in violation of the laws of the state. Such apparatus and the product thereof may be seized and destroyed by the proper officers. The defendant's motion was, therefore, properly denied. See section 2088, Hemingway's Code, and section 5, chapter 189, Laws of 1918.

4. The defendant consented to the search of his premises, thereby waiving the privileges set out in section 23, Constitution of Mississippi. See record 19, 20, 22; 24 R. C. L. par. 27, page 723.

In the cases cited by appellant there was no consent to the search and seizure given by the owner of the premises or his authorized agents. The searches and seizures, in these cases were made either surreptitiously, or in the absence of the owner, or over the protest of the owner or his agents.

5. The constitutional prohibition is against unreasonable searches and seizures. A reasonable search and seizure is not forbidden. A search of the person and effects of one arrested for intoxication, and the seizure of liquor found on his person, do not constitute an unreasonable search. U. S. v. Murphy (1920), 264 F. 842.

Officers who, through their sense of smell, are led to suspect that a violation of the law against manufacturing whiskey is in progress, may lawfully enter and search the premises without warrant and seize the utensils employed in such manufacture. U. S. v. Borkowski, 268 F. 408. A statute which provides that the sheriff or arresting officer, who becomes cognizant of the facts, or who finds liquor in such conveyances, shall seize the same, does not violate a constitutional provision against unreasonable seizure. Maples v. State (Ala.), 82 So. 183.

6. The defendant confessed his guilt to the officers. Record page 43. This confession, together with the testimony of the officers concerning...

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