Monnette v. Toney , 119 Miss. 846 ( 1919 )

HoldeN, J.,

delivered the opinion of the court.

The appellee, Mrs. Sarah 0. Toney, recovered judgment against the appellant and the surety company o.n his official bond, for damages for an unlawful search of her house and premises by the appellant Monette, chief of police of the city of Meridian, and from which judgment this appeal is prosecuted.

Here are the facts, briefly stated, upon which the judgment is founded. Mrs. Toney was a householder and head of a family residing with her family in a bouse in the city of Meridian. Mr. Monette, as chief of police of the city, had in his possession a warrant for the arrest of one Gus Nelson to answer the state of Mississippi on a criminal charge. About 1 o’clock in the afternoon Mr. Monette was informed that said Gus Nelson was af the home of Mrs. Toney, his aunt, in Meridian. Upon receiving this information Mr. Mon-ette, as chief of police, took with him the warrant for the arrest of Nelson, and with two other policemen went to the home of Mrs. Toney, and after informing her of the object and purpose of his visit, searched the home and premises of Mrs. Toney for the purpose of finding and arresting the said Gus Nelson. Officer Mon-ette had no search warrant. There is a conflict in the testimony as to whether or not the search was made without the consent of Mrs. Toney. There is also a dispute in the testimony as to the, method and character of the search made by the appellant Monette.

The case was submitted to the jury for the plaintiff below upon the theory that the appellant Chief of Police Monette, was liable for damages if he searched the house and premises without having first secured a search wárrant as provided by law, authorizing him to make such search, and also provided that the ap-pellee, Mrs. Toney, did not consent that the search be made. The instructions granted the plaintiff below embodied this theory throughout the case; and the defendant asked for and was refused the following instruction.

“The court charges the jury that if, from all the testimony in the case, they believe that the defendant jointly with the sheriff of Lauderdale county, had been searching for Gus Nelson to arrest him on warrants previously issued for his arrest, and if they further believe that, on the occasion testified about, the defendant had information which caused him reasonably to believe that Gus Nelson was in plaintiff’s house, and that defendant, in company with two other policemen, went to plaintiff’s house for the purpose of finding and arresting Gus Nelson, and that plaintiff knew or was informed of the purpose of his visit, then defendant had the lawful right to search the house for the purpose of ascertaining whether or not Gus Nelson was in it, no matter whether plaintiff consented to such search or not; and if the jury further believe that the defendant exercised such right of search in a reasonable manner under all of the circumstances for the sole purpose of finding out whether Gus Nelson was in the house or not, then the jury should find for the defendant.”

We fully appreciate the inhibition of the Constitution with reference to unreasonable search and seizure, and fully realize that the protection afforded by the Constitution is to be respected and held sacred in all proper cases: but we do not think the constitutional prohibition can be successfully invoked in the case before us. The right to make arrests at any time or place exists by statute in this state. In order to make the arrest of a person charged with crime, an officer has authority to enter and search any dwelling house, when he acts upon probable cause and reasonable belief that the party whom he seeks to arrest is then in such dwelling house.

Such officer, in seeking to arrest one charged with crime, whose arrest he is legally authorized to make, may enter and search the dwelling house of the accused, or the dwelling house of any other person when acting in good faith upon reasonable belief that the accused is in the house, and this is true whether the owner or possessor dwelling in the house consents or not; and when the search by an officer is made in a reasonably necessary manner under these circumstances for the purpose only of apprehending the person whose arrest he seeks, the officer violates no right or law and is not liable for damages, and is not required to have a search warrant under our statute. The constitutional provision against unreasonable seizure and search never intended that the execution of criminal process in the apprehension of persons convicted or charged with crime should he thereby delayed or hindered. Such reasonable search in the due enforcement of the criminal laws of the land is not an invasion of the personal security of the citizen.

Petty officers who commit acts in excess of their lawful authority are amenable to the law in such cases, but the arrest of harbored criminals is not to be hindered under the claim of personal security against unreasonable search. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; 2 R. C. L. 475. The above instruction, refused by the lower court to the appellant, Monette, we think, clearly sets forth the law governing this case, and it should have been granted. Therefore the judgment of the lower court is reversed on direct appeal, and the case remanded.

Reversed and remanded.