Vanhook v. Commonwealth

• Decision Date: 24 January 1933
• Parties: Vanhook v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

247 Ky. 81

Vanhook v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 24, 1933.

1. Criminal Law. — Search is illegal, making evidence inadmissible, if affidavit for search warrant is insufficient.

2. Searches and Seizures. — Affidavit on information or belief is insufficient for search warrant unless accompanied by statement showing source of information or grounds of belief of

recent occurrence creating probable cause for belief that forbidden articles were possessed when affidavit was made.

3. Searches and Seizures. — Sufficiency of affidavit for search warrant must be measured by what appears on face of affidavit.

4. Intoxicating Liquors. — Affidavit for search warrant on May 2d, alleging liquor purchase on "____ day of April," held insufficient to show probable cause.

Single purchase of liquor on day which may have been 30 days before affidavit was made was not sufficient to create probable cause to believe that defendant possessed intoxicating liquor when affidavit was made and search warrant issued.

Appeal from Harrison Circuit Court.

JOHN P. LAIR for appellant.

BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

Elon VanHook appeals from a judgment convicting him of a second violation of the Prohibition Law, and fixing his punishment at three years' confinement in the state reformatory.

All the evidence was obtained by a search of appellant's premises under a search warrant based on the following affidavit:

                         "State of Kentucky, County of Harrison
                                         "Affidavit
                

"The affiant, Leslie Miller being duly sworn, states that he is reliable informed and verily believes that Elam VanHook has concealed in his house or on or about his premises in Cynthiana, Harrison County, Ky., intoxicating liquor.

"Affiant states that said house and premises are located as follows:

"Being a one story frame house, located on the North side of the West Pearl Street, which runs from Main Street to S. Licking River. Said house being 3rd house East on Pearl Street from Poplar Street intersection on the North side of Pearl St. in Cynthiana, Harrison County, Kentucky.

"Affiant further states that information upon which he relies is as follows:

"That on the ____ day of April, 1931, this affiant had a colored man with him in his machine they hath went to Elam VanHook house as above described. The colored man did not go to the said Elam VanHook upon two separate occasions to secure a price for said liquor, and the said VanHook told this affiant that the colored man would go with this affiant to get the said liquor, and that this affiant did go to the said house of Elam VanHook and received a can container with intoxicating liquor for which he paid the sum of four dollars.

"Affiant further states that Elam VanHook has the reputation of being a violator of the prohibition law.

"Wherefore affiant says that a search warrant be issued to thoroughly search said house and premises together with all outbuildings for intoxicating liquor.

                                   "Leslie Miller
                     "Subscribed and sworn to before me this 2nd
                   day of May, 1931, by L. Miller
                          "W.W. VanDeren
                          "N.P. Harrison County, Ky."
                

The admissibility of the evidence was properly challenged on the ground that the search was illegal. It is settled law that evidence obtained by an illegal search is inadmissible and that the search is illegal, if made under a search warrant based on an insufficient affidavit. Price v. Commonwealth, 195 Ky. 711, 243 S.W. 927. It is also the rule that an affidavit based on information or belief is not sufficient to support a search warrant, unless accompanied by a statement of facts showing the source of information, or the grounds of belief, of such recent occurrence as to create probable cause for the belief that the forbidden articles were possessed at the time the affidavit was made. Taylor v. Commonwealth, 198 Ky. 728, 249 S. W. 1035; Maynard v. Commonwealth, 201 Ky. 593, 257 S.W. 1024; Elliott v. Commonwealth, 216 Ky. 270, 287 S.W. 726; Neal v. Commonwealth, 218 Ky. 718, 292 S. W. 314. Following this rule we have held in several cases...