Wallace v. 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 90 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:

"Q. Mr. Budd, when you and the officers came up to where Mr. Wallace was in the car, and after he refused to let you search his car, you arrested him and took him to the station, the police station, is that correct? A. Yes, sir.

"Q. Put him in jail? A. Yes, sir.

"Q. And after that you say someone got out a search warrant for his car? A. Yes, sir. * * *

"Q. And Mr. Deister got in the car, you say, at the time you first found the defendant Wallace and brought him to the station? A. Yes, sir."

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 objection 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 Okla. Cr. 415, 259 P. 150; Callahan v. State, 42 Okla. Cr. 425, 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 Okla. Cr. 125, 237 P. 462; Whitford v. State, 35 Okla. Cr. 22,247 P. 424; Coffey v. State, 38 Okla. 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.

DAVENPORT, J., concurs.