Moore v. State

103 So. 483, 138 Miss. 116, 1925 Miss. LEXIS 105

• Court: Mississippi Supreme Court
• Decided: April 6, 1925
• Docket: No. 24764.
• Status: Published

Opinions

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for having intoxicating liquor in possession. The conviction rests on testimony obtained by a search of the appellant’s automobile without a warrant therefor. The bill of exceptions sets forth this testimony and the appellant’s objection thereto as follows:

“Said Simmons, being duly sworn, testified as follows: That on the 24th day of April, 1924, he was called over the telephone by an officer of an adjoining county, who stated to him that an automobile containing whisky was making a rapid approach to the city of Jackson, and would pass into the city of Jackson over Pearl River Bridge, giving witness a description of the automobile and the tag number of the same; that Simmons at the time was chief of police of the city of Jackson, and having-reason to believe, and then and there believing, that intoxicating liquor was thus being transported, at once repaired to the western end of said bridge, which is situated in the Fifth supervisors district of Hinds county, and within the corporate limits of the city of Jackson, Miss., and that presently approached over said bridge and into the city of Jackson the automobile described to said witness, and bearing the tag number given to him; that in said city and at that place the witness arrested the defendant, Donovan Moore, and searched the automobile that he was driving, and found several quarts of whisky; that the search was made without violence or the consent of the said Donovan Moore, who was driving and in possession of said car containing said intoxicating liquors; that in the telephone message above mentioned, the party giving him the information stated to him that the automobile contained and there was being transported in said automobile several quarts of intoxicating liquors; that he regarded the officer giving him the information as being a credible person, and that he believed the information given to be true, and acted upon the same in good faith, at the time when he made the search and found the defendant with the whisky. Whereupon the defendant objected to said testimony upon the ground that it involved a search, and that the information given in said testimony was obtained by testimony secured against the will of the defendant without affidavit or searcli warrant, and that the said search was in violation of the Constitution of the state of Mississippi, and that under the decisions of the supreme court of Mississippi said testimony was not competent to be introduced before the jury.”

Section 2, chapter 244, Laws of 1924, provides that— “It shall be the duty of any sheriff or constable of a county, or any sheriff, constable, marshal, or policeman in a municipality who has reason to believe and does believe that intoxicating liquor is being transported in violation of law, in any wagon, cart, buggy, automobile, motorcycle, motor truck, water or air craft, or any other vehicle, forthwith to make a reasonable search of such vehicle and to seize any intoxicating liquor so found being transported or being attempted to be transported in violation of law and at once to arrest the person or per sons in possession or control thereof and transporting or attempting* to transport same in violation of law; and such officer or officers proceeding* in good faith shall not be liable either civilly or criminally for such a search and seizure without a warrant, so long* as said search and seizure is conducted in a reasonable manner, it appearing that the officer or officers had reason to believe and did believe that the prohibition laws of the state of Mississippi were being violated at the time such search was instituted. And the officer or officers making* such search shall be a competent witness, or witnesses, to testify as to all facts ascertained, and discoveries made, by means of said reasonable search, and all liquor, and all appliances for its manufacture or transportation, so seized in the reasonable search of any such vehicle shall be admitted as evidence.

“But this section shall not in any event authorize the search of a residence or home or building or room in a building or premises, without a search warrant duly and properly issued.”

The question presented for decision is the validity, vel non, of this statute under section 23 of the Mississippi Constitution, which provides that — “The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing* to be seized.”

The possession, transportation, and control of intoxicating liquor is a misdemeanor punishable by fine and imprisonment. Section 5, chapter 189, Laws of 1918, provides that no property rights of any kind shall exist in intoxicating* liquor, and that all such liquor may “be seized by the sheriff or any other lawful officer of the state, and destroyed and rendered useless by him without any formal order of any court.”

The section of the Mississippi Constitution here under consideration is practically a rescript of the Fourth Amendment of the federal Constitution, and the supreme court of the United States has recently held that the provision of the National Prohibition Act (U. S. Comp. St. Ann. Supp. 1923, section 1038 1/4 ei seq.) permitting vehicles, boats, etc., to be searched for intoxicating liquor without a warrant, on probable cause therefor, is valid. Carroll v. United States, 45 S. Ct. 280, 69 L. Ed. • — , decided March 2, 1925, and not yet [officially] reported. While it is true that this decision of the supreme court of the United States is not binding on us, it is, to say the least, very persuasive, and, moreover, the enforcement of the amendment to the Federal Constitution prohibiting the manufacture and sale of intoxicating liquor will be more effectually enforced in Mississippi if the decisions of the state and Federal ■ courts thereon are in accord.

Section 23 of the Constitution does not prohibit all searches and seizures, nor does it, in express terms, require a warrant therefor. It prohibits: First, unreasonable searches and seizures; and, second, the issuance of warrants “without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.”

The right of the citizen to be secure from unreasonable searches and seizures was a great constitutional doctrine of the common law (Money v. Leach, 3 Burr. 1742; The Bishop of Atterbury’s Case, 16 Howell St. Tr. 490; Entick v. Carrington, 19 Howell St. Tr. 103; Story’s Constitution, section 1902), and its incorporation into the national and the early state Constitutions was because of the claim of the English and of some of the colonial governments of the right “to issue warrants for the arrest of persons without inserting their names in the warrants, especially authors, printers and publishers of obscene and seditious libels, and to invade the homes and search for private papers of individuals to obtain evidence against them on imaginary charges” (2 Watson on Construction, pp. 1414, 1415; Cooley’s Constitutional Limitations [7th Ed.] 426; 4 Wigmore [2d Ed.] 2264). When the Constitution is viewed, as it must be, in the light of this historical fact, it is clear that the reasonableness of a search or seizure must also be viewed and determined in the light of the common-law traditions. People v. Chiagles, 237 N. Y. 193, 142 N. E. 583, 32 A. L. R. 676.

The immunity, it will be observed, covers not only a search and seizure of property, but of persons as well, and the common-law rules and statutes permitting and regulating arrests or seizures of persons are pertinent here, for a seizure of property cannot be said to be unreasonable if made under the same circumstances that justify the arrest or seizure of a person. An arrest at common law. has always been permissible without a warrant if made on probable cause therefor. For a misdemeanor when committed in the presence of the person making the arrest, and for a felony, though not committed in the presence of the person making the arrest on probable cause therefor.

If section 23 of the Constitution prohibits all arrests or seizures of persons without a warrant, the rule of the common law permitting such arrests or seizures is necessarily abrogated thereby; but such has not been the construction placed thereon by this or any other court hi so far as we are aware, and the legislature has uniformly acted on .the theory that arrests without a warrant are not prohibited by the Constitution.

Section 1447, Code of 1906, Hemingway’s Code, section 1204, authorizing and regulating arrests without a warrant, enacts practically the common law on the subject and appeared in our statutes at least as early as the Code of 1857, see page 618 thereof.

Section 1448, Code of 1906, Hemingway’s Code, section 1205, which also appeared in the Code of 1857, at page 618, authorizes an officer or private person in order to make an arrest without a warrant to enter £ £ any dwelling or house in which he has reason to believe the offender may he found,” and in Monette v. Toney, 119 Miss. 846, 81 So. 593, 5 A. L. R. 261, was held not to be in conflict with section 23 of the Constitution and to authorize the entry and search of a dwelling house without a warrant therefor for the purpose of arresting a person charged with the commission of a crime.

It thus appears that the reasonableness of a search or seizure is not determined either at common law or under our statutes by -the presence or absence of a warrant therefor. It is a judicial question to be determined by the court in each case, taking into consideration the place searched, the thing seized, the purpose for, and the circumstances under which the search or seizure was made, and the presence or absence of probable cause therefor. Carroll v. United States, supra; Haywood v. U. S. (C. C. A.), 268 F. 803; United States v. Bateman (D. C.), 278 F. 231; O’Connor v. United States (D. C.), 281 F. 396; Lambert v. United States (C. C. A.), 282 F. 413; Katz v. Eldridge, 96 N. J. Law, 382, 118 A. 242.

As pointed out by the supreme court of the United States in the Carroll case, Congress has always so understood the search and seizure provision of the Federal Constitution, and beginning with its first session in 1789, it has continuously discriminated between dwelling houses and similar places and boats and vehicles, as has our legislature here, by requiring a warrant for the search of the former and permitting a search of the latter without & warrant. The impracticability in most cases of obtaining a warrant for the search of swift moving vehicles and boats before they can be moved beyond reach justifies the distinction made between them and dwelling houses and similar places, and renders a search of vehicles and boats without a warrant reasonable.

The purpose for which the search was here made, and which the statute authorizes, is, of course, reasonable, for it was made in order that a thing which it is unlawful to possess, and which by its very existence offends against +he law, might be seized and destroyed.

The 'search, of an automobile without a warrant for contraband being transported therein is reasonable and is not prohibited by section 23 of the Constitution, provided the officer who made the search had probable cause therefor, to which question we now come.

The statute permits an officer to search any vehicle, boat, etc., in which he has reason to believe and does believe that intoxicating liquor is being transported in violation of law. The officer who made the search here believed that intoxicating liquor was being transported in the automobile searched, the reason for the belief being that he had been advised by another police officer whom he regarded as a credible person that intoxicating liquor was being transported in the automobile. Information and belief has always been considered sufficient probable cause to justify a search and seizure and was so held by this .court in State v. Quintini, 76 Miss. 498, 25 So. 365; Loeb v. State, 133 Miss. 883, 98 So. 449; Bufkin v. State, 134 Miss. 1, 98 So. 452.

If it be said that an arrest for a misdemeanor is authorized at common law only when committed in the presence of the person making the arrest and therefore the seizure of contraband, the possession of which is a misdemeanor and not a felony, should be permitted only when a knowledge of the existence thereof is acquired by the person making the seizure in the same way that he becomes conscious of the commission of a misdemeanor in his presence, that is through his senses, the answer,» as pointed out by the supreme court of the United States in the Carroll case, supra, is that the distinction be tween felonies and misdemeanors is of no consequence in this connection, for the reason that the legislature has full power to classify an offense either as a misdemeanor or as a felony; the classification being determined by the punishment inflicted therefor. Section 1578, Code of 1906; Hemingway’s Code, section 1345.

It may not be amiss to say that the difference in the security afforded the citizen by requiring searches and seizures to be made only on a warrant therefor, and that afforded by permitting them to be made without a warrant on probable cause, is more apparent than real. The warrant issues on the affidavit of any credible person that he has reason to believe and does believe that intoxicating liquor is being stored, etc., in a described place, or “is being transported in any” vehicle or boat and protects the officer who makes the search under it. When a search is made without a warrant, the person making it must justify his act in so doing by proving that he had probable cause therefor. In the case at bar the officer could have obtained a warrant to search the automobile, though when the warrant was obtained the automobile might have been beyond reach, by making the same oath before a magistrate that he made on the trial in the court below; that is, that he had good reason to believe and did believe that intoxicating liquor was being transported in the automobile. The penalty for false swearing by the officer and the appellant’s remedy therefor would have been the same in either case.

The appellant relies on the line of cases beginning with Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, in which this court held that the evidence obtained by means of a search or seizure without a warrant was not admissible in a criminal trial against the person whose property was searched or seized. The power of the legislature to authorize a search or seizure without a warrant was not involved in any of those cases, and of them only the cases of Butler v. State, 129 Miss. 778, 93 So. 3, Taylor v. State, 129 Miss. 815, 93 So. 355, and Porter v. State, 135 Miss. 789, 100 So. 377, deal with the search of a vehicle in which intoxicating liquor was being transported. They were decided before the statute here under consideration, which permits the search of a vehicle or boat without a warrant, was enacted, and there was no pretense in any of them that the person by whom the search or seizure was made had probable cause therefor ; consequently section 23 of the Constitution was vio lated thereby. In none of those eases was the power of the legislature to authorize a search or seizure of a vehicle or boat without a warrant considered, and they are not here in point.

Section 2, chapter 244, Laws of 1924, is valid, and the judgment of the court below will be affirmed.

Affirmed.

Holden, J., concurring. Anderson and Ethridge, JJ., dissenting.