Wallace v. State
| Decision Date | 13 December 1930 |
| Docket Number | A-7397. |
| Citation | 294 P. 198,49 Okla.Crim. 281 |
| Parties | WALLACE v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A peace officer may arrest without a warrant in the case of a misdemeanor only where it is committed or attempted in his presence. Section 2471, Comp. Stat. 1921.
Acts constituting offense, where not known to officer, are not "committed in presence of officer" within provision permitting arrest (Comp. St. 1921, § 2471).
Where the officer does not know of the act constituting the offense, it is not committed in his presence. Whitford v State, 35 Okl. Cr. 22, 247 P. 424.
In case of lawful arrest, officer may search person and seize anything found upon him or in his control which he possesses illegally; where arrest is unlawful, incidental search is likewise unlawful, and evidence secured thereby is inadmissible (Comp. St. 1921, § 2471).
In case of a lawful arrest, the arresting officer may search the person and immediate surroundings of the person arrested and may seize anything found upon his person or in his control which is unlawful for him to have, and anything so taken may be used as evidence against him at the trial. But, where the arrest is unlawful, the incidental search in connection therewith is likewise unlawful, and evidence secured by virtue of such unlawful arrest is not admissible.
That liquor was found through illegal search does not constitute justification of unlawful arrest and search.
Where a person is unlawfully arrested and his person, possessions and immediate surroundings searched, the fact of finding liquor by such search does not constitute a justification therefor.
Additional Syllabus by Editorial Staff.
Search of defendant's automobile following arrest of defendant by officers armed with search warrant authorizing search of defendant's filling station held illegal, where officers had no probable cause to believe defendant was transporting liquor (Comp. St. 1921, § 2471).
Appeal from County Court, Pottawatomie County; Leroy G. Cooper Judge.
T. D. Wallace was convicted of transporting intoxicating liquor, and he appeals.
Reversed.
Waldrep & Haight, of Shawnee, for plaintiff in error.
J. Berry King, Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county on a charge of transporting intoxicating liquor, and his punishment was fixed at a fine of $500 and imprisonment in the county jail for ninety days.
The record discloses a state of facts about as follows: Certain officers with a search warrant authorizing them to search a filling station operated by defendant went to the place and made a search. They found nothing. They then left and started back to Shawnee, and about two or three blocks from the filling station they met defendant driving a car. They did not accost him, but turned and followed him east on Highland street some four or five blocks to his residence, where he had stopped by the side of his house. They drove up beside him and asked permission to search his car, which he refused. They then arrested and took him and the car to the police station and proceeded to procure a search warrant to search the car and found a quantity of whisky in the turtleback. The officers do not testify that there was anything in the appearance or acts of defendant that led them to believe he was violating any law, nor that they had any probable cause, or that they even suspicioned he was transporting intoxicants. Their acts in arresting him so far as their testimony is concerned seem to have been wholly arbitrary. Mr. Budd, one of the officers testified:
The testimony of the other officers is substantially the same. The court struck from the jury all testimony of the search of the filling station, but objections to the testimony and motion to strike the testimony of the finding of whisky in his automobile were overruled.
The authority of a peace officer to arrest without a warrant is fixed by Section 2471, Comp. Stat. 1921. The right to arrest for misdemeanors is limited to arrest only for a public offense committed or attempted in the presence of the officer. The right to arrest for a felony, or upon charge of a felony, or upon reasonable cause to believe the person arrested to have committed a felony is much broader. Id. The procuring of a search warrant for the automobile of defendant after it had been seized, and after the unlawful arrest and incarceration of defendant, is but an aggravation of the matter, as it tends to show that the officers who made the arrest knew it was illegal. For, if legal, they had the right without a warrant to search defendant and his immediate surroundings as an incident to the arrest. Washington v. State, 37 Okl. Cr. 415, 259 P. 150; Callahan v. State (Okl. Cr. App.) 276 P. 494.
It is well settled that, if an arrest is unlawful, the incidental search of the person and immediate surroundings of the person arrested is likewise unlawful. Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177.
The courts are practically unanimous in holding that, where the officer does not know of the act constituting the offense, it is not committed in his presence. Graham et al. v. State, 31 Okl. Cr. 125, 237 P. 462; Whitford v. State, 35 Okl. Cr. 22, 247 P. 424; Coffey v. State, 38 Okl. Cr. 91, 258 P. 923; Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 20 A. L. R. 639; Snead v. Bonnoil, 166 N.Y. 325, 59 N.E. 899; Snyder v. U.S. (C. C. A.) 285 F. 1.
The citizenship of this state is strongly committed to the principle of prohibition of the traffic in intoxicating liquor. It is in the Constitution by the voluntary act of the people in a state-wide referendum at the time of the adoption of the Constitution. The Legislature has clarified and supplemented the Constitution; but the Constitution and the law has preserved those fundamental rights of the citizen which protect him from unreasonable search and protect him from arrest on a mere suspicion that he has committed a misdemeanor.
Trafficking in intoxicating liquor is a damnable business. Zeal of the officers in enforcing this or any other law is commendable, but the limitations fixed by the statute on the authority to arrest without a warrant, and the constitutional guaranties against unreasonable searches, must not be destroyed, even though the intent in destroying them may be for a good purpose. Good intentions cannot supersede law. Those who would seek to enforce this law by unlawful means by overriding the fundamental rights and immunities of the citizen serve poorly the cause of prohibition. If officers without a warrant may search the citizen or his automobile, or if, by his refusal upon demand that he submit to such search, he may be unlawfully arrested and incarcerated and his automobile searched, what becomes of the provision of the law against unlawful arrest or the provision of the Bill of Rights against unlawful searches, article 2, § 30? If the arrest in this case and the subsequent search can be justified, any person, whether he be pedestrian or one operating an automobile, must either submit to search on demand of some petty officer, or be subject to unlawful arrest and subsequent search; then, if liquor be discovered, the search will be legal. Such is not the law; the guaranty against an unreasonable search applies as well to one justly suspected as to one unjustly suspected. U.S. v. Kaplan (D. C.) 286 F. 963; Garske v. U.S. (C. C. A.) 1 F. (2d) 620; Jokosh v. State, 181 Wis. 160, 193 N.W. 976; People v. Jakira, 118 Misc. 303, 193 N.Y.S. 306; State v. District Ct., 70 Mont. 191, 224 P. 862. To say the proceeding here complained of is illegal is putting it mildly. Boyd v. U. S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Amos v. U. S., 255 U.S., 313, 41 S.Ct. 266, 65 L.Ed. 654; U.S. v. Slusser (D. C.) 270 F. 818.
In the case of Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 285, 69 L.Ed. 543, 39 A. L. R. 790, sometimes relied upon to justify search without a warrant, Chief Justice Taft said: "It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search."
Upon a consideration of the whole case, it is clear that the arrest of defendant was illegal and the search of his person and automobile as an incident thereto illegal. The evidence thus obtained was not admissible.
I cannot agree with the majority opinion in this case, for the reason that the officers had a legal right to arrest defendant.
The evidence of the state was that the officers procured a search warrant to search the defendant's filling station at 1001 East Highland, in Shawnee. They went to this filling station but did not find the defendant there, and upon searching it found no liquor. The officers left the filling station and went two or three blocks and met the defendant in a car at the corner of Highland and Tucker streets, and followed him east on...
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