Opinion
No. 33480.
May 15, 1939.
1. SEARCHES AND SEIZURES.
Where a search of premises is being made, whether it is illegal because of invalidity of search warrant or not, the party whose premises are being searched may remain wholly silent, but he is at liberty to speak as against himself or against his own interests at any time or place so long as he freely and voluntarily does so.
2. SEARCHES AND SEIZURES.
A party, when he knows that proposed search of his premises would be illegal, may waive illegality and consent to search; and when he does so he may not thereafter complain of its illegality.
3. CRIMINAL LAW.
Admissions of defendant, freely and voluntarily made to officers during course of illegal search of premises, were properly admitted, although defendant did not know of illegality of search at the time, since, whether search was legal or illegal, defendant could have chosen to remain silent, so that when he freely and voluntarily talked it was not inherent product of search, but was because he waived his right to remain silent and consented to talk.
4. CRIMINAL LAW.
Confessions, freely and voluntarily made while one is in custody under an unlawful arrest, are not excluded on account of illegality of arrest.
APPEAL from the circuit court of Humphreys county; HON. S.F. DAVIS, Judge.
Murphy Wadlington, of Belzoni, Barbour Barbour, of Yazoo City, and Thos. H. Watkins, of Jackson, for appellant.
The lower court erred in refusing to grant the peremptory instruction requested by the appellant at the conclusion of all of the evidence because: (1) the only testimony on which the state could have possibly gone to the jury was the alleged confessions which the undisputed evidence shows were not freely and voluntarily made; (2) the state could not go to the jury without the evidence obtained as a result of an illegal and unlawful search of the appellant's premises; (3) assuming that there was sufficient evidence to convict the appellant for knowingly receiving stolen property, the peremptory instruction should have been granted because the commission of the larceny by the appellant was not negatived by the state.
Bartee v. State, 180 Miss. 141, 177 So. 355.
We believe the correct rule to be that a confession, to be competent, must be absolutely voluntary and this court has on numerous occasions pointed out that if same is induced by fear, although there were no spoken threats, the confession is rendered involuntary because fear which takes away a man's freedom of expression may arise solely from the conditions and circumstances surrounding him at the time.
Johnson v. State, 107 Miss. 196, 165 So. 218, 51 L.R.A. (N.S.) 1183; White v. State, 129 Miss. 182, 91 So. 903, 24 A.L.R. 699; Whip v. State, 143 Miss. 757, 109 So. 697; Fisher v. State, 145 Miss. 116, 110 So. 361.
This court has recognized that a confession may be involuntary merely because of the nature of the conditions and circumstances surrounding the confessor. In this case we find a man of foreign birth, at his home, when he is suddenly aroused at midnight by five armed men who demand the right to immediately search his premises. His small children are very frightened and run to the home of his neighbor. His wife, in a critical condition, becomes very much upset. It was shown that physical violence had been used on at least one other person being questioned by the officers. Finally, the defendant was accused of having committed offenses other than that on which the officers were working at the time. We respectfully submit that it is an outrage for officers to obtain a so-called confession upon which conviction must rest under these circumstances.
The alleged confession made by the defendant during the search of his premises, having been clearly brought about by coercion and improper influences, there is a presumption that the same condition of mind existed when the second confession was made at the jail, shortly afterwards. In order for the second confession to be admissible, the state must have shown that the influences which brought about the first was fully removed at the time of the second. It is clear from this record that the alleged second confession was, also, invalid.
Jones v. State, 133 Miss. 684, 98 So. 150; Boudreaux v. State, 175 Miss. 625, 168 So. 621.
We respectfully submit that the evidence obtained by the officers as a result of the search of defendant's premises, at midnight, March 11th, was illegal and unlawful and that the evidence obtained thereby, including the alleged confession of the defendant, should not have been admitted in evidence.
The admission of evidence obtained by the officers at the time of this unlawful intrusion in the defendant's home was a flagrant violation of his rights under section 23 of the Constitution of the State of Mississippi.
The statutes authorizing searches and seizures are to be strictly construed against the state and a material deficiency in the affidavit or warrant will render the warrant void.
Turner v. State, 133 Miss. 738, 98 So. 240; State v. Watson, 133 Miss. 796, 98 So. 241.
The affidavit and the search warrant must specifically designate the place or places to be searched and the person or thing to be seized.
Miller v. State, 129 Miss. 774, 93 So. 2; Smith v. State, 133 Miss. 730, 98 So. 344; Owens v. State, 133 Miss. 753, 98 So. 233; State v. Watson, 133 Miss. 796, 98 So. 241; Loeb v. State, 133 Miss. 883, 98 So. 449; Fatimo v. State, 134 Miss. 175, 98 So. 537; Falkner v. State, 134 Miss. 253, 98 So. 691; Butler v. State, 135 Miss. 885, 101 So. 193; Spears v. State, 99 So. 361; Sanders v. State, 141 Miss. 615, 106 So. 822; Webb v. Sardis, 143 Miss. 92, 108 So. 442.
Evidence procured unlawfully by an officer is inadmissible in evidence.
Tucker v. State, 128 Miss. 211, 90 So. 845; Williams v. State, 129 Miss. 469, 92 So. 584; Butler v. State, 129 Miss. 778, 93 So. 3; State v. Patterson, 130 Miss. 680, 95 So. 96; Strangi v. State, 134 Miss. 31, 98 So. 340; Matthews v. State, 134 Miss. 807, 100 So. 18; Morton v. State, 136 Miss. 284, 101 So. 379; Deaton v. State, 137 Miss. 164, 102 So. 175; Borders v. State, 138 Miss. 788, 104 So. 145; Spears v. State, 99 So. 361; Orick v. State, 140 Miss. 184, 105 So. 465; Harrell v. State, 140 Miss. 737, 106 So. 268; Tucker v. State, 128 Miss. 211, 90 So. 845.
Assuming for the sake of argument that there was sufficient competent evidence upon which the state could go to the jury in this case as to whether the defendant was guilty of having knowingly received stolen property, the state's case wholly fails because it did not negative the commission of the larceny itself by the appellant.
Sanford v. State, 155 Miss. 295, 124 So. 353.
It was error for the lower court to permit the state to show the conviction of Frank Adams and for the state to show statements made by Frank Adams without legally accounting for his absence as a witness.
Sanford v. State, 155 Miss. 295; Kirby v. U.S., 43 L.Ed. 890.
The lower court erred in allowing the state to offer evidence over the objection of appellant as to the guilt of appellant of other offenses than that for which he was being tried.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
A great deal of testimony was heard by the court at the preliminary inquiry into the admissibility of this confession. As in most cases where a preliminary inquiry is held, there was evidence to sustain the competency of the confession, as well as evidence which tended to show that the confession was induced by a species of immunity, as well as by threats of personal violence. At the conclusion of this inquiry the court had to pass upon the weight of the evidence and determine for itself whether the confession should be admitted or not and it was admitted. This court has held that in such a situation the decision of a trial court will be sustained unless from the record it appears that his finding was contrary to the weight of the evidence.
Brown v. State, 142 Miss. 335, 102 So. 373; Stubbs v. State, 148 Miss. 764, 114 So. 827; Buckler v. State, 171 Miss. 353, 157 So. 353; Wohner v. State, 175 Miss. 428, 167 So. 622; Keeton v. State, 175 Miss. 631, 167 So. 68.
Particularly do we submit that the court did not decide this question against the manifest weight of the evidence in view of the fact that appellant volunteered to go with the officers and point out, and did go with them and point out, the stolen goods which he had sent from his store out to the home of the negro, Swan, for the purpose of ridding himself of the goods after the party from whom he bought them had been arrested for the burglary and larceny.
Later, and after the stolen goods had been found, appellant made a further statement in which he said that he had bought these stolen goods from Frank Adams about, or just before daylight on March 11th, and how much he had paid, or agreed to pay him for the goods. He also explained why he gathered up these goods and sent them out in the country from Belzoni, his reason being that under the circumstances the goods were "too hot" to handle with safety.
All the testimony relating to the circumstances under which this latter statement was made indicate without any sort of doubt that it was freely and voluntarily made within the legal meaning of that term.
It is said that the state's evidence did not negative the commission of the larceny itself by the appellant. Of course, we concede the rule to be that if a party is guilty of larceny itself, such party cannot be guilty of receiving stolen goods, knowing that they had been stolen. We think, however, that this case does not call for the application of this rule. The state showed that these stolen goods were delivered to appellant by Frank Adams and another about daylight on March 3rd. Appellant himself stated that the consideration for the delivery of these goods to him was $50. In other words, if there were no evidence to show this delivery to appellant and the circumstances under which it was made, and appellant was shown to have been merely in the possession of these stolen goods, the inference might arise that he was guilty of the larceny. But, by showing how and when he came into the possession of these stolen goods, and it is not contradicted, it clearly appears that he was not the thief himself. In other words, he has explained his possession and such possession is inconsistent with the larceny itself.
The record does not indicate that the state used or offered to use any statements made by Frank Adams out of the presence of appellant. In the absence of the use, or attempted use of statements of Frank Adams out of the presence of appellant, it seems to the writer that the argument of appellant on this proposition is something entirely superfluous.
Appellant was indicted for, and convicted of, the alleged offense of knowingly receiving stolen goods. A substantial part of the testimony upon which appellant was convicted consists, or was directly derivative, of statements or admissions made by appellant to the officers during the course of an illegal search of and upon appellant's domiciliary premises. The search was illegal because of a defect in the search warrant, and that the search was unlawful for this reason is, in effect, admitted by the state, and it is nowhere suggested that appellant consented to the search.
The evidence is sufficient to support the affirmative of the issue that the statements, admissions or confessions were freely and voluntarily made. But appellant contends that even if this were conceded, the statements, admissions, or confessions should be excluded under the general rule that evidence of knowledge obtained by officers during the course of an illegal search is inadmissible, and that, therefore, everything that the officers heard, as well as all that they saw, should be excluded.
We called for additional briefs on the precise question, and the only case found by either side which seems to us to be squarely in point is Milbourn v. State, 212 Ind. 161, 8 N.E.2d 985, the holding in which is adverse to appellant's contention. But instead of following all the reasoning in that case, we prefer to state our own reasons for arriving at the same conclusion.
We may concede, for the purposes of this case, (1) that everything of an inanimate or insensate nature seen, or of which knowledge is acquired by or through the use of any of the five senses by the officers or those cooperating with them, during the course of an illegal search, is barred from being received in evidence; and (2) that any statements or conversations heard by the officers during the course of an illegal search, when the speakers were unaware of the presence of the officers or when not intended to be heard by them, are likewise barred. See Goode v. State, 158 Miss. 616, 131 So. 106. And (3) there is also barred, as a matter of course, any statement made by the accused, although intended to be heard by the officers or those cooperating with them, when such statements have been induced by any means whatever which take away or substantially detract from those statements, that which is requisite to make them free and voluntary.
But there is no such an essential connection between an illegal search — wherein the illegality consists solely in the want of a valid search warrant — and statements freely and voluntarily made to the officers during the course of that search as to bar such free and voluntary statements. Even though a search is being made, and although it be illegal because of the invalidity of the search warrant, the party whose premises are being searched may remain wholly silent, if he chose so to do. And, on the other hand, any responsible and competent person is at liberty to speak as against himself or against his own interests at any time or place or under any and all circumstances, so long as he freely and voluntarily does so.
A party, when he knows that a proposed search would be illegal, may waive the illegality and consent to the search; and when he does so he may not thereafter complain of its illegality. He may likewise consent to talk, when his consent is free and voluntary, even though it is during the course of an illegal search and although he does not know of its illegality at the time, for the reason already stated, that whether the search be legal or illegal he may choose to remain silent, and knows that he may remain silent; so that when he freely and voluntarily talks it is not an inherent product of the search, but is because he has waived his right to remain silent and has consented to talk.
And if it be said that the mere fact that an illegal search is being made, regardless of the manner of the conduct thereof, puts the accused under an unlawful restraint or under a sort of illegal pressure, or surrounds him with an unlawful oppression, wherefore as a matter of legal policy any statements made by the accused should be excluded, we would have no greater reason in point of legal policy for such exclusion than in cases of such statements or confessions when made while the accused is in custody under an illegal arrest; and nearly all of the authorities are in agreement, so far as we have found, that confessions freely and voluntarily made while in custody under an unlawful arrest, are not excluded on account of the illegality of the arrest. As illustrative of the cases so holding, we may cite Gilmore v. State, 3 Okla. Cr. 434, 106 P. 801, 27 L.R.A. (N.S.), 151, and the notes thereunder.
We conclude, therefore, that the admissions were properly received in evidence, and there being no reversible error in the record as to the other matters complained of, the judgment must be affirmed.
Affirmed.