Bagwell v. State ( 1958 )

POWELL, Judge.

Johnny W. Bagwell, plaintiff in error, hereinafter referred to as defendant, was charged by information in the county court of Ottawa County with the offense of unlawful transportation of intoxicating liquor, specified as 846 bottles of assorted brands. A jury was waived.

The record reflects that prior to the trial, the defendant filed a motion to suppress evidence on the ground of an illegal search and seizure. This motion was overruled after hearing, and by stipulation of the parties, the evidence introduced at the hearing on the motion to suppress was considered by the court as evidence in the trial of the case.

The court thereupon rendered judgment finding the defendant guilty as charged, and assessed punishment at thirty days confinement in the county jail, and a fine of $250 and costs of prosecution.

For reversal but one question is presented, and being whether the trial court committed error in overruling defendant’s motion to suppress evidence on the asserted ground of an unlawful search and seizure.

Counsel for defendant argues that: “The evidence clearly and conclusively reflects and shows that the pursuit and arrest of defendant by officers Peck and Lawson * * * was for the sole purpose of checking defendant’s vehicle for intoxicating liquors, and that such arrest was a subterfuge, and that the charge of speeding was a subterfuge used by said officers, in attempting to legalize their pursuit, arrest, and search of the defendant and his vehicle.”

Of course, even if the officers had probable cause to believe that defendant’s automobile was loaded with whiskey, still, in a misdemeanor case, a search without a warrant cannot be legally justified. Wallace v. State, 49 Okl.Cr. 281, 294 P. 198; Brinegar v. State, 97 Okl.Cr. 299, 262 P.2d 464; State v. Simpson, 91 Okl.Cr. 418, 219 P.2d 639; Edwards v. State, 83 Okl. Cr. 340, 177 P.2d 143.

We see, then, that if the defendant did not as a matter of fact commit an offense in the presence of the officers, in the absence of a warrant they would not be entitled to arrest and search his car. The offense must be real, and not some triviality, excuse or subterfuge to enable the officers to make a search. For cases with varying fact situations where we have so held, see Hoppes v. State, 70 Okl.Cr. 179, 105 P.2d 433; Leach v. State, 94 Okl.Cr. 334, 235 P.2d 968; Saltsman v. State, 95 Okl.Cr. 228, 243 P.2d 737; McCormick v. State, Okl.Cr., 277 P.2d 219; Barnett v. State, 94 Okl.Cr. 293, 235 P.2d 555. See also Byford v. State, 90 Okl.Cr. 230, 212 P.2d 476 where the arrest of a truck driver did not entitle the officers to search the truck, but where the owner of the truck thereafter unlocked the truck (probably thinking they would break in anyway) and invited the officers to search, thus waiving his rights.

With the above cases for guidance, still, in commencing the examination of the evidence to support defendant’s motion to suppress there are some other well developed principles to be kept in mind: first, there where a defendant files a motion to suppress, the burden rests on him to offer evidence in proof of the allegations contained in the motion (Edwards v. State, Okl.Cr., 319 P.2d 1021; O’Dell v. State, 80 Okl.Cr. 194, 158 P.2d 180; Wilson v. State, Okl.Cr., 268 P.2d 585); and, second, that whether search and seizure from an automobile is reasonable is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made. Such being so, this court will not reverse the trial court upon a question of fact where there is a conflict of evi-. dence, and there is competent evidence reasonably tending to support the finding of the trial court. Wood v. State, Okl.Cr., 316 P.2d 628; Franklin v. State, Okl.Cr., 281 P.2d 204; Kirk v. State, 92 Okl.Cr. 360, 223 P.2d 558; Scott v. State, 84 Okl. Cr. 171, 180 P.2d. 196.

The first witness called to support the motion to suppress was Art Peck, deputy sheriff of Ottawa County, who¹ said that he saw the defendant the night of December 14, 1956 and arrested him. The officer stated that he and his partner, Bill Lawson, drove up to the stop sign from the west and at the junction of highway 60 with 66, and stopped, awaiting traffic to clear. He said that he noticed a light-colored Chrysler car proceeding west come to a complete stop on the opposite side of highway 66, and that it then crossed over and passed them and proceeded on west, and that they noticed defendant’s car right behind the Chrysler as it approached highway 66 slow down but that it did not stop. He further testified that as soon as defendant passed them, the back wheels of his car were throwing gravel and that he was going pretty fast so that witness and officer Lawson turned their car around and proceeded to turn on their siren and chased defendant for about a mile. He estimated defendant’s speed at ninety miles per hour or better. He said that after defendant had stopped his car witness’ car was stopped and witness got out and approached defendant, and told him that he was under arrest for speeding and reckless driving. Witness said that his partner, officer Lawson, after letting him out, drove on in effort to stop the Chrysler car. Witness admitted that he shot his pistol into the air four times in an effort to get defendant to stop, but denied that he shot at defendant or his car. Witness said that when he arrested defendant he observed packages in the back seat of his car; that some of the packages had been broken in the chase and he smelled liquor¹ and recognized the packages as liquor packages. He proceeded to search the car and found approximately sixty cases of whiskey. He subsequently took defendant to jail and filed charges in the justice of the peace court against defendant for speeding in the day time, and defendant ■plead guilty to such charge and paid a fine. It was agreed that defendant was not represented by counsel in the justice of the peace court. The within charge was then filed in the county court.

Witness denied that prior to the time of the arrest of defendant he had parked at the intersection of highways 60 and 66, and denied that officer Lawson made such a statement to the defendant. Witness denied that he was looking for any particular car when defendant approached highway 66, or that he was looking for the light-colored Chrysler car and defendant’s car. He denied that he had a conversation with Mr. Taylor of Afton (endorsed on the information as a witness) within eight hours prior to the arrest respecting two cars of similar description as the two cars in question, or had any conversation with anyone else connected with the law enforcement in Afton respecting two cars described similar to the ones they chased at the time of defendant’s arrest. Witness identified the defendant at the trial as the person he arrested and the arrest as having been made in Ottawa County. Witness reiterated that prior to seeing defendant at the intersection of highways 60 and 66, and arresting him, he had no knowledge or information about defendant’s car or the occupant. He said that at the time of the arrest defendant was driving a 1953 Chrysler New Yorker, four-door sedan, blue color.

The defendant next testified and said that his name was John Wayne Bagwell, and denied that he had ever been convicted on any offense except traffic violation. Defendant denied that he failed to stop his car at the intersection of highways 60 and 66, as testified by officer Peck, but on the contrary said that he stopped and thereafter “took off” in a normal manner, and was driving at a speed of about 25 or 30 miles per hour until he saw the officers turn their car and commence pursuing him; that he did not immediately recognize them as officers and that he thought they might be hi-j ackers, and admitted that he drove his car about ninety miles per hour. He admitted that he heard the officers’ siren and the shots, and saw the red light, and finally decided to stop. He said that after he stopped officer Peck came up and said, “You are under arrest”, and then looked in defendant’s car. Defendant admitted that some of his whiskey bottles had been broken, and that one could smell the odor of whiskey, but said that a blanket covered the whiskey. Witness said that he had a conversation with officer Peck as to why he happened to pursue him. Said he: “Well, he said he was glad that he had got there because they had been waiting about two hours and he was supposed to have gone off work or duty about eight or eight thirty. At that time it was about nine o’clock. He mentioned something about missing his breakfast, or something.” Witness denied that he had violated any speed laws prior to the officers commencing the pursuit.

On cross-examination defendant was asked why he didn’t stop for the officers, and answered: “I was loaded with whiskey”.

William Lawson, deputy sheriff, testified to being with deputy Peck the early morning of December 14, 1956 when defendant was observed at the intersection of highways 60 and 66. He said that he was the driver of the officers’ car, and had just stopped his car on the west side of highway 66 and observed defendant approaching along highway 60 from the east, and that defendant failed to stop at the intersection. His testimony was substantially as that of officer Peck, except some variance to be pointed out.

Witness said that as defendant passed the officers’ car they glanced over at him, and did not like his looks and decided to take a look at him and commenced turning their car around and defendant “took off fast”.

Witness testified that it was about 4 a. m. when his regular buddy quit him and he called officer Peck to accompany him the balance of the night. He said the rules required two officers to ride together.

Witness was asked if there was a deputy sheriff who lived in Afton named Myers, and answered in the affirmative, and said that he drove a new two-tone green Studebaker car. He was asked if he talked to Mr. Myers at any time the early morning of December 14, 1956 and answered that he met him once at Eagle, and that at the time J. D. Lawrence was riding with witness; that about one and a half hours later witness called officer Peck to ride with him in the place of Lawrence. Witness said that when he talked with Myers he also talked with officer Taylor (two witnesses endorsed on information) but denied that Taylor mentioned any two cars they had followed for a short time before. Witness said that prior to officer Peck joining him that he stopped and talked to a friend at the intersection of highways 60 and 66; that later officer Peck joined him near that point and the other officer, who had been riding with him, got out. Witness said that he thought they had talked by radio phone with officers Myers and Taylor. He denied that they had set up a road block, and denied that defendant had told witness and Lawson that he almost came though Siloam Springs and that one of the officers had told defendant that it did not make any differ-: ence which road he might have used, they had him covered.

The defendant Bagwell was recalled as a witness and testified that prior to his arrest the morning of December, 14, 19S6 at approximately 4:30 or 5 o’clock he drove through Afton and he and the driver of the Chrysler car accompanying him stopped there at a service station and got their tires aired up and that he noticed a two-tone green 1956 Studebaker with a long aerial behind the back seat parked behind the building; that as witness left he noticed the Studebaker being driven down highway 66 so he drove on to a back road that led to the highway and that he noticed the Studebaker turn off on a dirt road and then its lights were turned off. He said that as officers Peck and Lawson, after arresting him, were conducting him to the justice of the peace officer he told them that he had started to come through Spavinaw and they told him it would not have made any difference which way he might have come, that they would have gotten him anyway. He did not remember which officer made the statement.

The State called deputy Art Peck in rebuttal. He was asked if he had any conversation with defendant the morning of the arrest and he said that he did. Said he: “I asked Johnny how come him to drive so fast- — take off so fast. He said he seen the car and knew we were officers and he became frightened. It was his first load of liquor and he became scared.”

On cross-examination witness denied that he saw Art Taylor or Mr. Myers after he went on duty the morning of the arrest, and denied that he had any communication with them by car radio; denied that any officers were at the scene of the arrest other than he and Lawson, and denied that he heard officer Lawson talk with Taylor or Myers by car radio.

Counsel in his brief argues that officers at Afton who saw defendant getting his tires aired up at that place, suspicioned that he had a load of whiskey and radioed to officers Peck and Lawson to await defendant and arrest him on some pretext, and that thereafter he was actually arrested. Of course defendant could have called officers Taylor and Myers and have had them testify under oath as to whether or not they radioed ahead to either officer Peck, Lawrence or Lawson concerning defendant’s automobile and their suspicions. Such evidence would have been admissible as having a bearing on whether defendant failed to actually stop at the intersection of highways 60 and 66. The burden was on defendant to support his theories with evidence. No doubt such argument was made to the trial court. The trial court held against defendant. To justify this court in reversing the case we would have to accept the testimony of the defendant as true and reject the testimony of the two officers as to the facts of the arrest. Defendant did not deny that when the officers by turning their car and showing interest in his car that he did speed up to ninety miles per hour. The record would not support the reversal of the ruling of the trial court, and we are forced by reasons of the principles heretofore set out and taken from Wilson v. State, supra, and Wood v. State, supra, and the other cases cited to affirm the judgment of the trial court.

Judgment affirmed.

BRETT, P. J., concurs. NIX, J., dissents.

1 . See Sands v. State, 36 Okl.Cr. 55, 252 P. 72.