Opinion
No. 27381.
December 3, 1928. Suggestion of Error Overruled December 22, 1928.
1. SEARCHES AND SEIZURES. Issuance of search warrant is adjudication by officer issuing same that probable cause existed for search.
Issuance of search warrant is an adjudication by officer issuing same that probable cause existed for search sought to be made.
2. SEARCHES AND SEIZURES. As between state and defendant, judicial finding of officer issuing search warrant of existence of probable cause therefor is conclusive.
As between state and defendant, judicial finding of officer issuing search warrant of existence of probable cause therefor is conclusive, and cannot be inquired into.
3. SEARCHES AND SEIZURES. Search warrant having caption, "State of Mississippi, Bolivar County: To any lawful officer of Bolivar County, Mississippi," held valid ( Hemingway's Code 1927, section 2240; Constitution 1890, section 169).
Search warrant conforming to Hemingway's Code 1927, section 2240, and having caption, "State of Mississippi, Bolivar County: To any lawful officer of Bolivar County, Mississippi," held not void under Constitution 1890, section 169, providing that "style of all process shall be `The state of Mississippi.'"
4. CONSTITUTIONAL LAW. Every reasonable presumption should be indulged in favor of constitutionality of statute.
Every reasonable presumption should be indulged in favor of the constitutionality of a statute.
5. SEARCHES AND SEIZURES. Statute prescribing form of search warrant held not to violate constitutional provision that "style of all process shall be `state of Mississippi'" ( Hemingway's Code 1927, section 2240; Constitution 1890, section 169).
Hemingway's Code 1927, section 2240, prescribing form of search warrant for intoxicating liquors, held not to violate Constitution 1890, section 169, providing among other things that "style of all process shall be `state of Mississippi.'"
APPEAL from circuit court of Bolivar county, Second district, HON. W.A. ALCORN, JR., Judge.
Shands, Elmore Causey, for appellant.
It is the contention of the appellant that the officers when they entered his home were trespassers, because they did not have reason to believe and believe before the search that evidence of a crime existed in his home. As a result of such unlawful search the officers procured evidence to convict him, and such evidence cannot be used against him. We therefore say that the rights guaranteed to the appellant by sections 23 and 26 of our state Constitution have been violated.
We are familiar with section 2, chapter 244, Laws of 1924, in which the legislature has authorized officers to search without a search warrant automobiles and other vehicles for intoxicating liquors and the appliances for the manufacture of the same, but when such searches are made the officer must show that he had probable cause for the search, that is, he must show that he had reason to believe and did believe that intoxicating liquor was being kept or transported. We also observe that this court has held that the above statute does not violate section 23 of the Constitution. This decision was rendered in Moore v. State, 138 Miss. 116, 103 So. 483.
We are also familiar with the law as announced in the recent cases, to the effect that when a felony has been committed an officer may make search without a search warrant for the person charged with the crime, provided the officer had such knowledge as will constitute probable cause to believe that a felony has been committed or is being committed or is about to be committed. Such announcements have been made in the Kennedy case, 139 Miss. 579, 104 So. 449. In the Love case, 142 Miss. 608, 107 So. 667, and in the Monette case, 119 Miss. 852, 81 So. 593.
The question of whether or not the officer is armed with a search warrant really makes no difference, because when he acts under a search warrant he must by his oath before a justice of the peace show probable cause for making the search, and on the other hand, if he does not proceed under the authority of the search warrant probable cause for the search must exist.
So we say that probable cause must exist whether a search is made under a search warrant or not under a search warrant. Probable cause must exist when the officer is searching for intoxicating liquor, the possession of which is a misdemeanor, or when the officer is searching for a still, the possession of which is a felony. In each instance the same thing is, probable cause must exist before the search may be made.
The question to next consider is: Did the officer have reason to believe, and believe, before he made the search that the appellant had a distillery in his home? We call attention to the definition of probable cause as announced by this court in Sellers v. Lofton, 116 So. 105; See, also, Canteberry v. State, 142 Miss. 402, 107 So. 672; Chrestman v. State, 148 Miss. 673, 114 So. 748.
In a number of cases, notably McNutt v. State, 143 Miss. 347, 108 So. 721; and in the Hamilton case, 115 So. 427, this court held whether or not the officer had reasonable cause to make a search was a judicial question to be determined by the trial court, and in Ingram v. State, 111 So. 362, this court held that the trial court's finding of probable cause is subject to review by the supreme court. Of course should the trial court erroneously hold that the evidence was admissible, this court should on review of the case correct the error, and render such decision as ought to have been rendered by the trial court. See Hughes v. State, 238 S.W. 588.
It is our contention that the words "The state of Mississippi, Bolivar county" only denote the place — a statement of the venue where the search warrant was issued. The court will observe that the act of the legislature, chapter 22, Laws of 1924, in fixing the specimen or form for such writs, has used the words above quoted. But the same words appear at the beginning of the form for the affidavit to indicate the venue. (See section 4 of the above act.)
The court by referring to all of the forms given in the code, dealing with affidavits, will observe that the form in every instance begins by indicating the state and county, being the venue, but in no instance when a form for process is given do we find the state and county — as shown above. (See forms for affidavits and process in attachment, Replevin, etc., in the Code.) See Little v. Little, 32 Am. Dec. 317; Forbes v. Darling, 54 N.W. 385, 387; Beach v. O'Reilley, 14 W. Va. 55; Wallaham v. Ingersol, 7 N.E. 519, 522; Manville v. Battle Mounting Co., 17 Fed. 126; Leighton case, 83 Am. Dec. 205.
No provision of the Constitution is to be regarded as directory. 6 R.C.L. 55; Love v. State, 8 So. 465. When the legislature has fixed a form for process which is contrary to the provisions of the Constitution, the court shall obey the Constitution of course. Orick v. State, 105 So. 466.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
Counsel for the appellant have assigned as error the admission of the evidence against the appellant, which was secured by a search of the appellant's home, upon the ground that the officers making the search had no probable cause upon which to base the search. It is contended that the officers had no reason to believe, nor belief, that the evidence of a crime existed in the appellant's home. The record shows that one C. Norris, a deputy sheriff of Bolivar county, Mississippi, made an affidavit before T.D. Allen, Jr., justice of the peace, for a search warrant. Upon this affidavit, a search warrant was issued by the said justice of the peace.
The affidavit and search warrant were introduced in evidence as exhibits to the testimony of C. Norris over the objection of counsel for the appellant. One ground of objection was that there was no proper cause or reason for the issuance of the search warrant. The next objection is that the search warrant is not styled as the Constitution required. Counsel for the appellant contend in an elaborate brief on the subject that the officers making the affidavit for the search warrant did not have probable cause therefor. It is argued by counsel for appellant that the testimony shows that the officer making the affidavit for the search warrant had no reason to believe and did not believe the facts set out in the affidavit. Practically all of the cases which are discussed in the appellant's brief are cases in which a search was made without a search warrant, and the question of probable cause to make the search was raised on the trial of the case. None of these cases are similar to the case at bar. The case at bar is very similar to and must be controlled by the case of Hendricks v. State, 144 Miss. 87, 109 So. 263.
It is next argued by counsel for the appellant that the search warrant is invalid because the State Constitution, section 169, provides that "the style of all process shall be the state of Mississippi." It is argued by counsel for appellant that the style "state of Mississippi, Bolivar county," only denotes the venue where the search warrant was issued. I fail to see the force of this argument. The section of the Constitution referred to does require that process be styled "the state of Mississippi." The search warrant in the case at bar is styled "the state of Mississippi." If this be taken as an indication of the venue, I do not see that it makes any particular difference as it certainly meets the requirements of the Constitution. The fact that the style of the process includes "Bolivar county" will not invalidate the search warrant. At the most it is only surplusage. Chapter 244 of the Laws of 1924, suggests a form of a search warrant. The heading of this suggested form is:
State of Mississippi, County of ____.
It is argued by appellant that this form is contradictory to that required by section 169 of the state Constitution. I submit that there is no merit to this contention.
Shands, Elmore Causey, in reply for appellant.
The attorney-general argues that when an affidavit is made which recites that the affiant has reason to believe and does believe that a still is being kept by an accused, and when a search warrant is issued based on such affidavit, then probable cause is forever and for all purposes established, and the question of no probable cause cannot thereafter be raised.
We think the attorney-general's contention is contrary to the policy of our law and the decisions of our court. Sellers v. Lofton, 116 So. 105. Under that decision the affiant must have the information which is stated in the affidavit at the time he makes the affidavit. If he does not have the information when he makes the affidavit, then the warrant is wrongfully and unlawfully issued.
Even though the justice of the peace may have judicially determined that the affiant had reason to believe and did believe that the still existed, nevertheless the trial court had the right to determine whether or not the affiant had such belief or reason to believe that a still existed. Hamilton v. State, 115 So. 427; Ingram v. State, 111 So. 362.
The attorney-general cites the Hendricks case, 144 Miss. 87, 109 So. 263, to sustain his position. That case does not hold that the finding of the justice of the peace is conclusive. The court does not hold that the finding of the justice of the peace may not be reviewed and held to be erroneous. The case does not hold that such "judicial determination is not the subject of inquiry after the search was made."
It is our contention that whenever it appears that an officer has made a search based upon a warrant issued without probable cause it then becomes the duty of the court to exclude all testimony obtained by reason of the unlawful search, and direct the jury to acquit the accused. That is exactly what was done in the Sellers case, supra.
Appellant was convicted in the circuit court of Bolivar county of the crime of possessing a still, and was sentenced to the penitentiary for the term of one year. From that judgment he prosecutes this appeal.
Much of the material evidence against appellant was secured by a search of his home and premises. The search was made by officers in pursuance of a search warrant issued for that purpose. Appellant undertook to show by testimony that such warrant was issued without probable cause. The court heard evidence of that character, and admitted the testimony of the officers making the search.
The issuance of a search warrant is a judicial finding by the officer issuing the warrant of the existence of the statutory grounds therefor set forth in the affidavit for the warrant. The issuance of the warrant is an adjudication by the officer issuing the same that probable cause exists for the search sought to be made. Hendricks v. State, 144 Miss. 87, 109 So. 263; Loeb v. State, 133 Miss. 883, 98 So. 449. It is true that in none of these cases did the court hold that the issuance of a search warrant was a conclusive judicial finding of the existence of probable cause therefor, but the reasoning in those cases lead to that result. Where a search and seizure is made in pursuance of an affidavit and search warrant, legal on their face, to permit the defendant to challenge the truth of the judicial finding of the officer issuing the warrant that probable cause existed therefor would open up for trial an issue collateral to that of the guilt or innocence of the defendant. In many cases the field of inquiry would be very broad, and calculated to divert the minds of the jury from the main issue. Such result should be avoided, unless the defendant would thereby be deprived of a substantial right. Some courts have held that whether a search warrant is issued on probable cause is always a question of legitimate inquiry. We think the contrary rule is the sounder one, and by its enforcement a defendant would be deprived of no substantial right. We hold that, as between the state and the defendant, a judicial finding of the officer issuing the warrant, of the existence of probable cause therefor, is conclusive, and therefore cannot be inquired into; and evidence procured by the state in pursuance of a search under such a warrant, where competent and relevant, is admissible against the defendant. Those decisions of our court, holding that, in cases where the search was authorized by law, upon probable cause, without a search warrant, the defendant, on his trial, was entitled to controvert the state's claim of probable cause, are not in point. The reason upon which such cases are founded is that there has been no adjudication of probable cause previous to the search; therefore, on the trial of the defendant, the question of probable cause is open for investigation and determination. Our holding in this case does not mean that as between the person making the affidavit for the search warrant and the officer issuing the warrant, on the one hand, and the defendant on the other, in a suit by the latter against either one, or both, of the former, for the unlawful procurement or issuance of the warrant, the finding of probable cause by the officer issuing the warrant would be conclusive against the plaintiff. That question is not presented in this case for decision. It follows from these views that the trial court should not have gone into the question of whether probable cause did, in fact, exist for the issuance of the search warrant.
Appellant contends that the search warrant was void, because it was issued in violation of section 169 of the Constitution, which provides, among other things, that "the style of all process shall be `The State of Mississippi.'" The search warrant involved has this caption, which conforms to chapter 244 of the Laws of 1924, Hemingway's Code of 1927, section 2240: "State of Mississippi, Bolivar County: To any lawful officer of Bolivar County, Mississippi," etc. Appellant argues that there is no authority, under the section of the Constitution referred to, to style criminal process in that manner; that "State of Mississippi, Bolivar County," in the search warrant, was a mere statement of venue. We do not think that appellant's position is well-founded. We think a fair interpretation of the search warrant is that the state of Mississippi and Bolivar county directed any lawful officer of the county to proceed to execute the warrant according to its terms. Bolivar county might probably have been left out of the warrant, but failure to do so does not deprive the warrant of its proper style, as required by section 169 of the Constitution. To hold otherwise would mean that the above statute prescribing the form of search warrants violates section 169 of the Constitution. Every reasonable presumption should be indulged in favor of the constitutionality of the statute. Under that rule we cannot say that the statute in question violates section 169 of the Constitution.
Affirmed.