Watson v. Com.
| Citation | 433 S.W.2d 884 |
| Parties | Allan WATSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 08 November 1968 |
| Court | United States State Supreme Court (Kentucky) |
Morris Butler, Greensburg, for appellant.
John B. Breckinridge, Atty. Gen., Joseph Famularo, Asst. Atty. Gen., for appellee.
Allan Watson was convicted of grand larceny and sentenced to two years in prison. KRS 433.220. He appeals, contending that (1) evidence procured under an invalid search warrant was used against him and (2) the trial court erred in overruling his motion for a continuance on the ground that some of the jurors had served at a previous trial during the same term of court in which he was accused of a misdemeanor committed in violation of the local option law. The previous trial had resulted in a hung jury.
During November of 1967 a pavement breaker and several other items of power equipment were stolen from Edwards and Webb Construction Company in Adair County, Kentucky. On December 5, 1967, while the crime was under investigation by state and local police officers, a United States Commissioner issued a federal search warrant commanding Edgar D. Cowan and Edgar E. Dillon, investigators for the Alcohol and Tobacco Tax Division, to search Watson's home for an illegal still, supplies and apparatus connected with it, mash fit for distillation, and any distilled spirits on which the applicable taxes had not been paid. There is no contention that this warrant was not valid.
In executing the warrant the federal officers were accompanied and assisted by the local sheriff, two of his deputies, a state trooper and a state detective. While so assisting, the detective opened a closet and discovered the stolen pavement breaker. One of the federal officers and one of the deputy sheriffs remained in the house while the state trooper went to town and procured a search warrant from the Adair County Judge directing a search for the pavement breaker. Upon his return to Watson's home with this new warrant the trooper took possession of the stolen property which was later admitted in evidence.
The search warrant issued by the county judge was fatally defective because the trooper's affidavit pursuant to which it was issued did not state the factual basis for his belief that the stolen property was on the appellant's premises. This is conceded. However, the trial judge was of the opinion that the property had been discovered and seized in the proper execution of the federal warrant and was admissible in evidence without the aid of the local warrant. We agree.
18 U.S.C.A. § 3105, under which the federal warrant was issued, reads as follows: 'A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.'
Appellant contends that since the warrant was directed to officers Cowan and Dillon and was served by them, only they could execute it. He suggests it is absurd to suppose they would or did require aid in searching an empty house for a still (appellant was not at home). It seems to us that this is an extremely tenuous and hypertechnical argument. Cooperation and mutual assistance between local and federal law enforcement authorities not only is wholesome, helpful and a custom of long standing, but has become more necessary as civilization has become more complex. If federal officers desire the presence of local officers in searching for a jug of moonshine, or if the local sheriff chooses to take an FBI agent along to participate in a search for a stolen spittoon, surely it would not make much sense for a court to hold the supernumerary's efforts for naught because in its own opinion his services were not necessary.
All of the officers were legally and properly present when the stolen property was discovered. Technically, the seizure was made by the federal officers, because it was their search. That they did not list the property on their return is of no significance; it was not involved in a federal offense...
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