Nottingham v. State

BRETT, Judge

(dissenting) :

I must respectfully dissent to this decision. It is regrettable when an apparently guilty party escapes punishment, because he was convicted on unlawfully obtained evidence; but there is a paramount consideration — the imperative of judicial integrity. “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928).

In my opinion loose interpretation of this constitutional provision may well be the initial erosion of other long-standing constitutional requirements. If this exception may be allowed, then why not another, and another, until finally the requirements for a search warrant become baseless.

The Fourth Amendment to the Constitution of the United States provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis added.)

The Oklahoma Constitution provides that the right of the people to be secure against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, “describing as particularly as may be the place to be searched.” Article II, Section 30. This Court has repeatedly held that an affidavit and search warrant merely describing premises by street address, without designating the town in which the premises are located, is constitutionally insufficient to describe the place to be searched. In Tucker v. State, 45 Okl.Cr. 68, 281 P. 818 (1929), this Court held:

“The record discloses that, at the time charged, a constable and a federal prohibition officer procured a search warrant to search a building at 1213 Sheridan Avenue, in said county and state. It is not stated in the search warrant of what town, if any, Sheridan avenue is a part. The warrant in that particular is insufficient, under article 2, § 30, of the Bill of Rights.”

In Doyle v. State, 49 Okl.Cr. 422, 295 P. 237 (1931), this Court held:

“This description is wholly insufficient as failing, to state the name of the town in which the premises were located. The officers could not tell from this description in what particular town in Pottawatomie county 126 South Minnesota was located. Under this description the officers might have searched that number in one or more of the numerous towns in Pottawatomie County.”

“This court has repeatedly held that the description in the affidavit and search warrant must be such that the officers, without the aid of any other information than that contained in the search warrant, could locate the premises to be searched. White v. State, 43 Okl.Cr. 275, 277 P. 946; Overstreet v. State, 46 Okl.Cr. 68, 283 P. 1032; Smithson v. State, 48 Okl.Cr. 204, 290 P. 568.”

I can see no justification for making the requirements for a search warrant any less restrictive than they were in 1929, 1931, or 1956. The Constitution of the United States, and the Constitution of Oklahoma are each specific in its requirements; and until now this Court has consistently enforced this constitutional mandate. I find no compelling reason to emasculate this constitutional command, nor to overrule the decisions of this Court for the past forty years, on this point. It is not an undue burden to require that a search warrant specify the city or town of the premises to be searched. Surely the constitutional right of all persons to be secure against rude invasions of privacy by state officers requires this basic ingredient, if this right is to be more than an empty promise. To eliminate this ingredient of a search warrant is to invite further omissions. I view this decision as being an unnecessary departure from sound judicial precedent which may spawn future unforeseen repercussions.

In the instant case the defendant’s written motion to suppress the evidence obtained by the search was summarily overruled without hearing, by a judge of the district court other than the trial judge. Subsequently, as the trial began, the trial judge refused to rule on the defendant’s motion to suppress for the reason that another judge of the district court had previously overruled same. The court should have afforded the defendant an opportunity to be heard on his motion. I believe the court erred in overruling the motion to suppress as the warrant and affidavit failed to state the city or town in which the premises to be searched were located.

I again respectfully suggest, with reference to the quotation from Ex parte Flores, supra, quoting from the Texas Court of Criminal Appeals, defendant in this case was never given the opportunity to properly challenge the insufficiency of the search warrant; nor was he given the opportunity to demonstrate to the trial court that there may have been another such address in Oklahoma County. Suppo-sitional information is not the kind of which a court may take judicial notice.

With reference to the citation from United States v. Ventresca, supra, the United States Supreme Court was discussing the requirements for probable cause, not the location to be searched.

I am therefore compelled to dissent to this decision for the foregoing reasons.