Opinion
No. 43346.
April 19, 1965.
1. Intoxicating liquors — search of automobile without a warrant — probable cause — must be supported by information from credible person.
Search of automobile in which officers believe intoxicating liquor is being transported in violation of law must be based upon probable cause, supported by information from credible person. Art. 3, Sec. 23, Constitution 1890.
2. Searches and seizures — same — probable cause — facts must be sufficient to constitute.
Facts upon which officer acts in searching automobile must be sufficient to constitute probable cause. Art. 3, Sec. 23, Constitution 1890.
3. Searches and seizures — probable cause — a judicial question.
Whether officer had probable cause for search of automobile is judicial question for decision of Court. Art. 3, Sec. 23, Constitution 1890.
4. Searches and seizures — search of automobile without a warrant — probable cause — defendant entitled to full disclosure of facts upon which officers acted.
Counsel of defendant charged with possession of intoxicating liquor, based upon search and seizure of liquor in defendant's automobile, was entitled to know who gave information to officers concerning such possession, and to obtain full disclosure of facts upon which officers acted, in order to present issue of whether there was probable cause for such seizure without authority of law. Art. 3, Sec. 23, Constitution 1890; Sec. 2615, Code 1942.
5. Searches and seizures — same — probable cause — information obtained from anonymous telephone call as not constituting.
Information obtained from anonymous telephone informer that defendant would be traveling on certain road, in his automobile, around certain time, making delivery of whiskey, did not constitute probable cause for search of defendant's automobile by officers who had no search warrant. Art. 3, Sec. 23, Constitution 1890; Secs. 2470, 2615, Code 1942.
6. Searches and seizures — same — search begins when pursuit begins.
Search of automobile begins when pursuit by police officers begins. Art. 3, Sec. 23, Constitution 1890.
7. Arrest — without a warrant — when officer may arrest.
Sheriff has no right to arrest without warrant unless it is evident to him that some breach of peace is being threatened or crime is being committed in his presence. Art. 3, Sec. 23, Constitution 1890; Secs. 2470, 2615, Code 1942.
8. Arrest — same — arrest begins when pursuit begins for such purpose.
Arrest begins when officer begins his pursuit for purpose of making it. Sec. 2470, Code 1942.
9. Arrest — same — pursuit — violation of traffic law as not authorizing an arrest.
If officer does not have authority to make arrest at instant he begins his pursuit for that purpose, fact that person the officer is pursuing violates traffic law in making his escape does not thereby authorize arrest which began unlawfully. Art. 3, Sec. 23, Constitution 1890; Sec. 2470, Code 1942.
10. Arrest — same — same — same — evidence obtained as result of search, improper.
Where officers had been waiting for over two hours on country road in early morning for defendant, defendant drove by in his automobile, not violating the law, and stopped on the side of the highway, and officers then pulled up behind him, with red signal lights operating on their vehicle, pursuit of defendant by officers began at that point; and inasmuch as at that point they did not have legal authority to make arrest and search, admission of evidence obtained as result of search occurring after defendant was overtaken was improper. Art. 3, Sec. 23, Constitution 1890; Secs. 2470, 2615, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Lee County; N.S. SWEAT, JR., J.
Robert B. Smith, Ripley, for appellant.
I. The appellant is protected by the Constitutions of the United States and State of Mississippi against unreasonable searches and seizures. Adams v. State, 202 Miss. 68, 30 So.2d 593; Pickle v. State, 172 Miss. 563, 160 So. 909; State v. Watson, 133 Miss. 796, 98 So. 241; Turner v. State, 133 Miss. 738, 98 So. 240; Sec. 2615, Code 1942.
II. Where officers search the automobile of defendant without a warrant either for his arrest or for the search, officers are not final judge of the credibility of the information furnished, etc. Branch v. State, 171 Miss. 301, 157 So. 875; Branning v. State, 215 Miss. 223, 60 So.2d 633; Elardo v. State, 164 Miss. 628, 145 So. 615; Gardner v. State, 145 Miss. 210, 110 So. 588; Hamilton v. State, 149 Miss. 251, 115 So. 427; Hill v. State, 151 Miss. 518, 118 So. 539; McGowan v. State, 184 Miss. 96, 185 So. 826; Mapp v. State, 148 Miss. 739, 114 So. 825; Perry v. State, 150 Miss. 293, 116 So. 430; Perry v. State, 154 Miss. 212, 122 So. 398; State, For Use and Benefit of Kemper County v. Brown, 219 Miss. 383, 68 So.2d 419.
III. The ultimate arrest of appellant, and the search of his automobile began when the officers started to overtake, follow or pursue him. Ford v. City of Jackson, 153 Miss. 616, 121 So. 278; Gause v. State, 203 Miss. 377, 34 So.2d 729; McNutt v. State, 143 Miss. 347, 108 So. 721; One 1948 Pontiac Automobile v. State, 221 Miss. 352, 72 So.2d 692; Sellers v. Lofton, 149 Miss. 849, 116 So. 104; Smith v. State, 240 Miss. 738, 128 So.2d 857.
IV. In order to convict appellant of second violation of intoxicating liquor statute, it was necessary to prove a first conviction, and this, the State failed to do. Sec. 2613, Code 1942.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The arrest of appellant. Fanning v. State, 249 Miss. 124, 161 So.2d 199; Ford v. City of Jackson, 153 Miss. 616, 121 So. 278; Goodman v. State, 158 Miss. 269, 130 So. 285; Smith v. State, 240 Miss. 738, 128 So.2d 857.
II. The proof of prior conviction. Entrekin v. Tide Water Associated Oil Co., 203 Miss. 767, 35 So.2d 305; Goldsby v. State, 240 Miss. 647, 123 So.2d 429, cert. den. 365 U.S. 861, 5 L.Ed.2d 824, 81 S.Ct. 829; Viator v. Stone, 201 Miss. 487, 29 So.2d 274.
Jessie Terry, appellant, was convicted in the Circuit Court of Lee County of the possession of intoxicating liquor, second offense, fined $500 and sentenced to six months in the county jail. Miss. Code Ann. § 2613 (b) (1956). The question is whether the search and seizure of the liquor in appellant's automobile was valid. This includes the issues of whether there was probable cause for the search when the officers were acting on a telephone call from an anonymous informant, and whether the arrest began before appellant drove his automobile recklessly and at high speed in an attempt to evade the officers.
On the night in question, Sheriff Webb, Deputy Sheriff Moore, and Constable Wilson were together at a truck stop. Wilson obtained information from an anonymous telephone caller that Jessie Terry would be traveling a certain road in his automobile around 4:30 a.m., making a delivery of whiskey. The anonymous information indicated, and the officers thought that this whiskey would be delivered to a particular bootlegger in that vicinity. Accordingly, the three officers parked their car on a side road in the country and waited for Terry to pass in his automobile, the description of which they knew. At 4:20 a.m. a car of that description, given to the constable by the anonymous informer, proceeded down the road headed toward the bootlegger's house. At this time Terry was violating no law. The plan of the officers was for Terry to drive into the bootlegger's yard, and they would then catch him. The officers had no search warrant for appellant's car, and no warrant for his arrest.
Instead of Terry turning into this place, he pulled over to the side of the road, stopped and turned his car lights off. When the officers saw that Terry was not turning into the bootlegger's driveway, they moved on up the road, came into view of Terry's car, and gave a "signal or warning" with two red lights on the front of the sheriff's car. At the time this was done, Terry was not violating any law. The sheriff said when he pulled his automobile into the road toward Terry, he wanted to see what was going on.
With the two red lights shining on the front of the sheriff's car, at night on the country road, Terry started up his car and drove away at a high rate of speed, chased by the officers. He turned over after running about three miles, and the officers found several cases of whiskey in his vehicle. This was the evidence used in this case.
The sheriff said that after Terry's car passed the bootlegger's house, "I was after the automobile that Mr. Terry was driving from then on." His sole purpose in waiting out there two hours on the night in question was to catch Terry with the whiskey. Asked whether he gave any warning signal to defendant that he was pursuing him, the sheriff said, "I had my red light on, two of them that sets ( sic) in front of the car." Deputy Sheriff Moore said that two or three minutes after Terry's car passed them, they drove toward the bootlegger's house; that they came up behind him, with the police red lights on the front of their car; and that then Terry, who was stopped, took off in a burst of speed.
Mississippi Constitution article 3, section 23 (1890) provides that the people shall be secure "from unreasonable seizure or search; and no warrant shall be issued without probable cause. . . ." Mississippi Code Annotated section 2615 (1956), recognizing that automobiles provide a particular problem, states that the sheriff and other officers have the power, if they have reason to believe that intoxicating liquor is being transported in violation of law in any automobile, to make a reasonable search of the vehicle, to seize the liquor, and to arrest the person in possession thereof.
(Hn 1) However, such search of a vehicle without authority of law must be based upon probable cause, supported by information from a credible person. (Hn 2) The facts upon which the officer acts must be sufficient to constitute probable cause, (Hn 3) and this is a judicial question for the decision of the court. (Hn 4) Defendant's counsel is entitled to know who gave the information, and to obtain a full disclosure of the facts upon which the officer acted, in order to present the issue of whether there was probable cause. Mapp v. State, 148 Miss. 739, 114 So. 825 (1927). (Hn 5) The information obtained from the anonymous telephone informer did not constitute probable cause for the search made by these officers. Pickle v. State, 172 Miss. 563, 160 So. 909 (1935). They had no search warrant for appellant's car, and did not have the probable cause required by Constitution article 3, section 23 and Code section 2615 to make the search without a warrant.
(Hn 6) Furthermore, no misdemeanor was being committed by appellant in the presence of the officers at the time the arrest and search began. The search begins when the pursuit begins. Smith v. State, 240 Miss. 738, 128 So.2d 857 (1961); Ford v. City of Jackson, 153 Miss. 616, 121 So. 278 (1929). (Hn 7) The sheriff had no right to arrest defendant unless it was evident to him at the time that some breach of the peace was being threatened or a crime was being committed in his presence. Miss. Code Ann. § 2470 (1956). (Hn 8) An arrest begins when an officer begins his pursuit for the purpose of making it. (Hn 9) If he does not have the authority to make an arrest at the instant he begins his pursuit for that purpose, the fact that the person the officer is pursuing violates a traffic law in making his escape does not thereby authorize the arrest which began unlawfully. Smith v. State, supra; Harris v. State, 209 Miss. 183, 46 So.2d 194 (1950); Gause v. State, 203 Miss. 377, 34 So.2d 729 (1948); Butler v. State, 135 Miss. 885, 101 So. 193 (1924).
(Hn 10) In the instant case, the officers had been waiting for over two hours on a country road in the early morning hours for a specific person, the defendant. He drove by in his car, not violating the law, and stopped on the side of the highway. The officers then pulled up behind him with the two police, red signal lights on. At that point we think the pursuit of appellant by the officers began. At that point it was essential that they have legal authority to make the arrest and search. They did not have it, and the trial court erred in admitting the evidence obtained as the result of the search in question.
Reversed and appellant discharged.
Lee, C.J., and Gillespie, Brady, and Inzer, JJ., concur.
I concur in this decision because binding authority of former cases requires that I do so. However, in my opinion, and with deference, I believe there has been too much refinement in the law of arrests and concerning unreasonable searches and seizures. There is authority for the proposition that the arrest in this case began when the officers turned on the red lights of their car. This does not seem to me to be a reasonable rule and I do not think people should be licensed to flee when they see officers approaching on the public highways and in fleeing violate the speed laws and other traffic laws. Officers should have a right to patrol any highway at any time and turn on red lights without justifying others in violating the traffic laws. Therefore, I think the law should be other than what it is, but I yield to authority. In my opinion the law in the areas of arrest and searches and seizures has developed in the abstract without proper regard for the realities officers face in enforcing the law.