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Boyd v. State

Supreme Court of Mississippi, In Banc
May 9, 1949
206 Miss. 573 (Miss. 1949)

Opinion

May 9, 1949.

1. Searches and seizures — search of automobile on owner's private premises must be under valid search warrant.

Although the officer had probable cause for searching an automobile for intoxicating liquors based upon information within the personal knowledge of his informant, this would not authorize him, without a valid search warrant, to invade the place of residence, store and garage of the suspect, or to go on his private premises, to make such a search.

2. Searches and seizures — affidavit for search warrant, must be made by an affiant who personally appears before judicial officer.

An affidavit for a search warrant must be made by an affiant personally present before the judicial officer who takes it; hence an affidavit purporting to be made by the sheriff who sent it by a deputy to the justice of the peace, who acted upon it without the personal appearance of the sheriff before him, was insufficient, as a basis for the issuance of a search warrant, and a search warrant so issued was invalid, the evidence obtained by a search under it was illegally obtained, was inadmissible in evidence, and a conviction based on such evidence will be reversed.

Headnotes as approved by McGehee, C.J.

APPEAL from the circuit court of Smith County; HOMER CURRIE, J.

Deavours Hilbun, for appellant.

In the case of McGowan v. State, 184 Miss. 86, 185 So. 826, the appellant was convicted of the unlawful possession of intoxicating liquors. The evidence against him was obtained by a search of his car without a warrant. The sheriff of the county, the constable of the district and the marshal of the town made the search without a search warrant upon a statement made by a citizen to the constable and to the sheriff. It was testified that the informant told the officers where the appellant was going to obtain the liquor, the amount of liquor he was going to get and bring back, and from whom he was going to get the liquor. The informant also told the officers that they must act quickly if they were to intercept the liquor, which was being transported on the highway. The sheriff testified that under these facts he did not have sufficient time to obtain a search warrant. On cross-examination it was brought out that the informant did not communicate the information as a fact within his personal knowledge, nor did the officers inquire as to the source of his information.

The court discussed the right of officers to search an automobile without a warrant, upon probable cause that it contained intoxicating liquor or that such liquors were being transported in the automobile. Therein the court cited and commented upon Moore v. State, 138 Miss. 116, 103 So. 483; McNutt v. State, 143 Miss. 347, 108 So. 721; Mapp v. State, 148 Miss. 739, 114 So. 825; Elardo v. State, 164 Miss. 628, 145 So. 615; Lenoir v. State, 159 Miss. 697, 132 So. 325; State v. Messer, 142 Miss. 882, 108 So. 145.

To sum up the present testimony . . . it appears that some unidentified person informed Deputy Sheriff Ollie Ainsworth that he saw the appellant and his son leave in an automobile, and that he guessed that they were going for a load of whiskey. The source of Mr. Blue's information was not disclosed but it appears that it was practically the same. It should be noted that the information was not shown to be within the personal knowledge of the informant, nor did the sheriff inquire as to the source of knowledge, nor was it stated affirmatively that the truth of the matter was personally known to the informant. In view of the holding in McGowan v. State, 184 Miss. 86, 185 So. 826, above cited, it appears that the search of appellant's car without a warrant was illegal, and that the evidence obtained as a result of such search should have been excluded.

The only other justification for the search of appellants' car would be that the sheriff, from his position in the highway, saw the appellant in possession of whiskey, and thereupon arrested him and proceeded to search his automobile as an incident to the arrest.

In the case of Baldwin v. State, 175 Miss. 316, 167 So. 61, a deputy sheriff testified that he had been informed by George Williams that he had purchased whiskey from Baldwin which would be delivered to him by Baldwin shortly thereafter "on the west of the Desoto Automobile Company." This deputy, accompanied by another, proceeded to the appointed place in an automobile and there awaited the consummation of the sale. Baldwin and Williams appeared on the scene. Baldwin had in his possession a paper sack from which protruded the neck of a bottle. Before he delivered it to Williams, he saw the deputy sheriff and his companion and immediately fled, but stopped and struck the sack and its contents on a brick. The sack contained a bottle which broke when it came in contact with the brick, thereby disclosing its contents to be whiskey. The Supreme Court assumed that the command to stop which was given by the deputy just before the bottle was broken was the equivalent of a search and held: "An officer has the right to arrest without a warrant for the commission of a misdemeanor in his presence. Section 1227, Code of 1930. A misdemeanor is being committed in the presence of an officer when he then and there acquires knowledge thereof through one of his senses (Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 346) or inferences properly to be drawn from the testimony of the senses. Garske v. United States (C.C.A.) 1 F.2d 620, 623. What the officer here saw, before ordering the appellant to stop, was a hurried flight by the appellant immediately upon his observing the officer, having in plain view a paper sack with the neck of a bottle . . . a usual and proper container for whiskey . . . protruding therefrom. These facts, in the light of the information given him by Williams, which had been verified to the extent that the appellant met Williams at the appointed place, justified the officer in drawing the inference, from what he had observed, that the bottle in the paper sack contained whiskey."

In King v. State, 147 Miss. 31, 113 So. 173, the court held in effect that the search of an automobile without a search warrant can only be made when a lawful arrest is made, and that the right of search in such a case is a limited one, saying: "In this case there was no showing that an arrest was actually made, and without a search warrant a search can only be made when a lawful arrest is made, and the right of search in such a case is a limited one (Toliver v. State, 133 Miss. 789, 98 So. 342), and does not go to the extent of searching the entire premises of the person arrested. The right of search following a lawful arrest is not so extensive as a search under a search warrant which described the premises to be searched." See also Millette v. State, 167 Miss. 172, 148 So. 788, 792.

Did the appellant in the present case commit a misdemeanor in the presence of the officers? If so, was he arrested therefor and a search of his automobile immediately made as an incident to his arrest?

In the present case the information given the officers was not shown to be within the personal knowledge of the informant, but merely hearsay and not sufficient even to authorize the issuance of a search warrant. The boxes had nothing particularly distinctive about them except that one had a large number "7" on its side. The boxes might well have contained fruit jars, soft drinks, legal beer, 7-Up, or nothing at all. Clearly the officers had no probably cause to believe that the boxes contained whiskey at the time the appellant's car was searched. Therefore, no misdemeanor was committed by the appellant in the presence of the officers which would have entitled them to arrest him. If no lawful arrest were made, then no search of the automobile without a search warrant would be legal, and the evidence obtained by such a search would be incompetent.

All the evidence in this case tends to show that the officers searched appellant's automobile in pursuance of the belief that they had a valid search warrant, and that they did not search it in pursuance of and as an incident to the arrest of the appellant. In fact, it does not appear that the appellant was ever arrested before the search was made. Under this state of facts the case of Millette v. State, above cited, would control and the evidence obained by such illegal search should have been excluded. J. Ed. Franklin, also for appellant.

By all of the decisions in this State, which are legion, a search of one's premises or property without a search warrant is sanctioned only as of necessity and never to be exercised or permitted if a search warrant could have been obtained.

Section 23 of our Constitution accords every person, — high or low, rich or poor — alike, the right of security of his person, houses or possessions, from unreaonable 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." Our courts have uniformly held that this constitutional guaranty is to be favorably construed to the citizen and strictly against the State.

Mr. Crumpton, the sheriff, testified that he filled in a blank affidavit for the search warrant in his office at Raleigh between 11:00 and 12:00 o'clock on the day of the alleged search when the Justice of the Peace, Glenn, was not present and that he never saw the Justice of the Peace in connection with the matter. He also testified that Barney Jones, Hooker Martin and Ollie Ainsworth were present at that time. The said Ollie Ainsworth being his informant.

The case of Moore v. State, 138 Miss. 116, 103 So. 483, seems to be the first case where the constitutionality of Section 2615, Code of 1942 — being the section authorizing search of automobiles on probable cause without a warrant — was attacked and passed upon by our court. It is true that the court upheld the Act. It is equally true that the court did so because of the rapidity with which an auomobile moves and to require the issuance of a search warrant in all cases would give the automobile time to escape and defeat the very purpose of the law, to-wit: the enforcement of the liquor laws of this State. In other words, the whole right and authority to search an automobile without a warrant is one of necessity.

We are going to concede, for the sake of the argument only, that the sheriff might have had probable cause for searching appellant's automobile without a warrant. The probable cause was for the search of his automobile while in the transportation of contraband whiskey. As said by Section 2615, Code 1942,: "and to seize any intoxicating liquors so found being transported." This by the furtherest stretches of the imagination could not authorize, justify or condone the searching of the automobile when not so engaged in the transportation of intoxicating liquors. The common sense view to me is that the search must be made while the automobile thus engaged is moving along the highway or was so moving when intercepted. I can conceive that it might be legally searched under the circumstances if it was parked on the highway from a flat tire, in a mud hole or from some wreck.

It will be noted that the sheriff and the three deputy sheriffs all testified that they secreted themselves along the highway near the appellant's home and under a bridge near his home from 5:30 to 6:00 o'clock in the evening until past 11:30 that night. Right on the highway that the sheriff said his information was that the appellant would be travelling, and not one of these officers testified that he even saw the appellant on the highway. The sheriff said that he heard the car, which means he heard a car. At least two of these officers, including the sheriff, said that they saw the appellant and his son after they had stored the car in the garage, a part of his residence, cut off the engine as they were going into appellant's house. It will be recalled that the undisputed testimony in the record is that this garage in which the automobile was stationed was a part of the appellant's home. Some called it a shed but was enclosed on three sides, only the entrance being open and all under the same roof. Can it be contended that after all of this took place that these officers had any right to go on to appellant's premises, into his garage and part of his house and make a search of this automobile without a search warrant?

It is inconceivable to us that under the statute, the sheriff could lie in wait as he did, making no effort to apprehend the appellant while transporting liquor on the highway and waiting until his car came to rest and then go on his premises and make a search of his automobile as in this case, stored in the garage, a part of his house, and then justify his actions by saying that he had probable cause that it was transporting contraband liquor.

By reference to the Atwood case, Atwood v. State, 146 Miss. 662, 111 So. 865, it will be seen that the officer appeared personally before the Justice of the Peace, signed the affidavit in the Justice of Peace's presence and the Justice of the Peace in the presence of the officer, signed his jurat to the affidavit after the same had been signed by the sheriff, and both the sheriff and the Justice of the Peace knew that an oath was required before a search warrant could issue and both knew and realized exactly what they were doing — knew that he was making the required oath. In fact, nothing was left out, everything was done that could have been done except the Justice of the Peace didn't require the sheriff to perform the actual physical act of raising his hand. Both the Justice of the Peace and the sheriff testified that they did not believe this to be necessary.

Now, compare what was done by the sheriff in the instant case. The sheriff testified that he signed a blank affidavit between 11:00 and 12:00 o'clock A.M. in his office at Raleigh, 18 miles away from Taylorsville, where the Justice of the Peace resided, that the Justice of the Peace was not present when he signed the blank nor did the sheriff know where he was. George H. Ethridge, Assistant Attorney General, for appellee.

I have serious doubts as to the validity of the search of the car on the evidence and information contained in this record. It is doubtful in my mind from the facts in the record whether the sheriff was acting on this information or whether he was acting on the search warrant issued and supposed to be valid by him and by the person searched at the time of the search. It is true that this court and the Federal Supreme Court have held that an automobile due to the rapidity with which it may be moved is an exception growing out of necessity as held in Moore v. State, 138 Miss. 116, 103 So. 483, and Carroll v. U.S. referred to in the Moore case. Does this authority to search automobiles apply to property which is on the premises of the person searched or is it limited to searches on the public highway or roads or on property belonging to another person in which the person searched has no interest? Is it reasonable to institute a search of a car even upon the highway on such testimony as is contained in this record; the information seemingly being either a mere opinion or a mere guess that liquors are to be transported or are being transported? The general rule as I understand it is that the testimony in such case constituting information must be such as the witness could testify to in court if the informer was in court testifying as a witness. Can an officer act upon mere information obtained from an unsworn credible witness if he has time and opportunity to procure a search warrant in time to effect a search on a warrant? The sheriff had received his information around three or four p.m. If this be answered that the search could be so made, then the question will arise — must the search be made while the automobile is on the highway or road and off the premises of the person to be searched? In the facts before us the officers saw the car of the appellant leave the highway and go upon his premises and enter appellant's garage and come to rest and appellant and his son leave the car and go into the house. They did not stop the appellant's car to see whether appellant was in the car and whether it contained liquor while it was on the highway, but permitted it to leave the highway and go onto the property of the appellant. No immediate search was made. It is not a case here of starting a chase of the appellant and pursuing him on to his own premises but no effort was made while the car was on the highway to see whether it was the car they were expecting or any request made immediately after the appellant left the highway before the car came to rest to made the search. I am not trying to thwart the process of law in permitting a search of an automobile containing intoxicating liquor, but to determine the true and lawful limits of a search of a car without a warrant. Can a car be searched in a man's garage or on his premises without a warrant even though the officer may have probable cause to believe that intoxicating liquors are contained in the car? Apparently, the law of searching a car without a warrant was based upon necessity as indicated in syllabus 3 of Moore v. State, supra. If so, where does the necessity cease and when does it begin? The presumption, of course, is to be indulged that the decision of the court below is correct but it is not to be presumed that the legislature or other or the constitution intended for a search to be made off of the highways or other roads or waters due to necessity but that the constitution is there to prevail and search warrant to be procured unless to do so would be a fruitless thing due to the rapidity with which the moving vehicle could get out of the jurisdiction of the officer seeking to make the search. I think this is a very important case and a proper time for the court to decide whether an officer may search an automobile without a search warrant on mere probable cause when the automobile is at rest on the premises of the person searched.

I desire to assign cross error to the action of the court below in excluding the affidavit for search warrant and the search warrant and the evidence obtained by the sheriff in searching the store house and residence of the appellant. In the case of Atwood v. State, 146 Miss. 662, 111 So. 865, 51 A.L.R. 836, the court held that whenever attention of the affiant is called to the fact that his statement is not mere assertion but must be sworn to and he is then called on to do some corporal act and does it, it constitutes an oath and it is not necessary that affiant hold up his hand when taking oath. It was also held that where affiant going before a justice of the peace for the purpose of obtaining search warrant and justice did what they both considered proper for administration of oath in that affiant in the presence of the justice signed affidavit and justice thereupon fixed his jurat thereto and issued a search warrant in proper form, affiant will be held to have taken necessary oath required by Section 23 of the constitution.

The court in the opinion in this case discussed this question at considerable length and quoted athorities on what an oath was.

In the present case the sheriff who made out and signed the purported affidavit was an officer of the law charged with the duty of enforcing the law and knew that it was necessary that he swear or take oath to obtain the search warrant. The justice of the peace to whom he sent the said purported affidavit and the blank search warant to be signed by the justice of the peace by a deputy who was authorized to represent the sheriff generally but who did not so far as the record shows himself swear to the facts stated in the affidavit. Both the justice of the peace and the sheriff knew that the oath was a requisite for obtaining the search warrant to make the search legal and they both assumed that what they did complied with the law. Under the language of the Atwood case, is it sufficient? I think the court should decide this for the guidance of all officers as well as for the protection of the citizens.


The evidence on which the appellant, P.H. Boyd, was convicted of the unlawful possession of intoxicating liquor was obtained upon a search by the offcers under a search warrant issued by a justice of the peace at the instance of a deputy sheriff, who had carried to the justice of the peace a signed form of affidavit, bearing the signature of the sheriff, substantially in the form prescribed by Section 2616, Code 1942, as an affidavit for a search warrant for intoxicating liquors. However, the sheriff had signed this printed form of affidavit at his office at Raleigh in Smith County, and did not appear before the justice of the peace, who received the alleged affidavit and issued the search warrant at Taylorsville, in said county, some fifteen miles or more from where it was signed by the alleged affiant.

The trial court sustained a motion of the defendant to exclude the affidavit and search warrant on the ground that the form of affidavit had not been signed or sworn to before the justice of the peace, or any other officer who is authorized to administer oaths. However, the court admitted the evidence obtained in the search of the premises of the defendant to the extent of that portion of the whiskey found in the automobile of the defendant, which was parked in his garage and which formed a part of the building in which the defendant had his place of business and residence. This evidence was held to be competent upon the theory that the officers had a right to search the automobile without a search warrant upon probable cause for believing that the same was being used in the unlawful transportation of intoxicating liquors by the defendant to his said place of business for sale.

The correctness of this ruling of the trial court is dependent (1), on whether or not the proof discloses that the sheriff had probable cause for searching the automobile without a warrant within the meaning of the previous decisions of this Court in that behalf; or (2), whether or not the right to search an automobile on probable cause for so doing would entitle the officer to invade the private premises and possessions of the defendant without a search warrant after the automobile has left the highway, completed its journey, and come to rest in a garage built onto the residence and store building of the defendant. We confine our decision to the second question above stated.

The State has filed on this appeal by the appellant a cross-assignment of error under and by virtue of the authority of Section 1153, Code 1942, as to the action of the trial court in excluding the affidavit and search warrant and the evidence obtained thereunder by the search, and has asked that we decide the issue raised as to the sufficiency of the affidavit, and the validity of the search warrant issued pursuant thereto, in the light of the failure of the sheriff to appear personally before the justice of the peace and sign the affidavit in the presence of such officer; that is to say, whether or not the charge contained in the form of affidavit, signed by one known to the justice of the peace to be a credible person, to the effect that the sheriff "has reason to believe, and does believe, that intoxicating liquor is being stored, kept, owned, controlled or possessed by the accused for the purposes of sale in violation of law", etc., was in fact sworn to by the sheriff.

Aside from the fact that Section 1153, Code 1942, supra, expressly provides that "All questions of law thus presented (on a cross-assignment of error by the state) shall be decided by the Supreme Court", it is necessary that we decide the issue above mentioned in the instant case, for the reason that in our opinion the competency of the evidence, upon which the conviction was had, is dependent entirely upon whether or not the officers did have a valid search warrant issued pursuant to a sufficient affidavit in that behalf; since (Hn 1) we are of the opinion that if the sheriff had probable cause for searching the automobile in question without a search warrant, based upon information within the personal knowledge of his informant, as required by the decision in the case of McGowan v. State, 184 Miss. 96, 185 So. 826, and the cases therein cited, he would not have been authorized to invade the place of residence, store, and garage of the defendant for such purpose, or to go on his premises to make a search, for the reason that Section 2615, Code 1942, granting authority for searching an automobile for intoxicating liquors without a search warrant, contains the provision that "this section shall not authorize the search of a residence or home or room or building or the premises belonging to or in the possession lawfully of the party suspected, without a search warrant." In view of Section 23 of the Constitution of 1890, it would have been wholly unnecessary to insert the above quoted provision in Section 2615, supra, unless the legislature had intended thereby to make it clear that an officer should not go upon the private premises of a citizen without a search warrant and search his automobile on probable cause for believing that it contained whiskey.

Moreover, the statute by its very terms is only intended to give the right to make "a reasonable search of such vehicle and to seize any intoxicating liquor so found being transported or being attempted to being (be) transported in violation of law and at once to arrest the person or persons in possession or control thereof and transporting or attempting to transport the same in violation of law; . . ."

In the instant case there were four officers waiting on the highway near the place where the automobile in question turned into the defendant's driveway to enter his garage. Neither of them attempted to stop the automobile and search the same before it had completed its journey and reached its destination in the garage. The sheriff and his deputies had arrived at Taylorsville within about a mile of the residence, place of business, and the garage of the defendant at about 4 o'clock in the afternoon, when and where the sheriff obtained information relied on as constituting probable cause for searching the automobile, and they had from that time until nearly 11:30 that night in which to make a proper affidavit and obtain a legal search warrant for the search of the entire premises of the defendant. There were two justices of the peace at Raleigh during this interval, one at the nearby town of Mize, and it was shown that Asa Glenn, the justice of the peace who had "by remote control" taken the affidavit of the sheriff in his absence and issued the search warrant on the streets of Taylorsville at about 1 o'clock that afternoon, had returned to Taylorsville from a trip to Laurel during the afternoon, and was at home from about dark until the search of the store and garage was made during the said late hour of that night.

In making the said search at the premises of the defendant, the proof discloses that after the defendant had left his automobile in the garage on his return from Laurel, the officers, after knocking at the building and receiving no response broke into the same, served a copy of the alleged search warrant in question on the defendant, proceeded to search his store building underneath his living quarters, and then went into the garage from the store and searched the automobile. That they found whiskey in both the store building and in the automobile, which was parked in the garage, and that the whiskey taken from the automobile was introduced in evidence and the testimony of the officers in regard to finding the same was given before the jury; and it was upon this evidence that the conviction was had.

It should be noted here that it is not the theory of the prosecution that the officers entered the place of residence, business, and garage of the defendant for the purpose of arresting him as for a misdemeanor committed in their presence. They did not actually know that he had the whiskey which was found in the automobile and later introduced in evidence, until after they had served a copy of the alleged search warrant on him; and this is true regardless of what they may have really believed in regard to the recent transportation of whiskey in the said automobile. On the contrary, it is the theory of the State that they had a right to enter his garage and search the automobile on probable cause for making the search without a warrant. But this theory was for the first time relied upon for a conviction after the trial court had excluded the alleged affidavit and search warrant, — that is to say, the search was made in reliance upon the alleged search warrant, a copy of which was delivered to the defendant in the store building, as hereinbefore stated.

Most assuredly, it was never contemplated by Section 2615, Code 1942, supra, authorizing the search of an automobile without a search warrant, that an officer would be permitted to invade the private premises of a defendant without a search warrant and search an automobile in his garage after the same has come to rest at the completion of the journey during which intoxicating liquors had been unlawfully transported. However, we do not mean to hold that an automobile must be actually moving when intercepted on the highway in order that a search thereof may be authorized. It may be searched on probable cause for so doing if it is driven off the traveled portion of the highway for any purpose while the same is en route to the place to which the intoxicating liquors are being transported and when its continuous travel along the highway has been temporarily interrupted, whether the automobile is at the time actually on the highway or has departed therefrom to avoid a search, or for some other temporary purpose.

As to the validity of the search warrant under which this search was made, it is provided by Section 23 of the Constitution of 1890, which we quote in full as follows: "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."

(Hn 2) The search warrant in the instant case was not "supported by oath or affirmation".

In the case of Atwood v. State, 146 Miss. 662, 11 So. 865, 51 A.L.R. 836, wherein an affidavit for a search warrant was held to be sufficient, the opinion of the Court states: "The affidavit for the search warrant was signed by the affiant in the presence of the justice of the peace for the pupose of obtaining such warrant. It is true that the justice of the peace did not require the affiant to hold up his hand to be sworn, nor was there any formal oral administration of the oath to the affiant by the justice of the peace; but the evidence shows, without conflict, that both the affiant and the justice of the peace knew and realized that an oath was necessary before a search warrant could be obtained, and that they considered what was done at the time the oath was signed by the affiant and the warrant issued by the justice of the peace to be sufficient in law to constitute an oath. . . . In short, the evidence shows that the person making the affidavit for the search warrant went to the justice of the peace, and told him that he wanted to make the necessary affidavit for the search warrant that was afterwards isued. The affidavit was thereupon prepared, the affiant signed it in the presence of the justice of the peace, and the latter affixed his jurat thereto. . . ."

We are, therefore, of the opinion that the Atwood case, supra, is distinguishable on its facts from the case at bar, and we are unable to agree with the suggestion that because the sheriff is an officer of law and charged with the duty of enforcing the laws against the unlawful possession of intoxicating liquor, his signed form of affidavit is a sufficient compliance with the said Section 23 of the Constitution, when he does not personally appear before the justice of the peace or other officer issuing the search warrant; that is to say, we do not think that the issuance of the search warrant in the instant case was "supported by oath or affirmation" before the officer issuing the same, as contemplated by the Constitution.

It is, therefore, the opinion of the Court that the evidence upon which the conviction is based in the instant case was illegally obtained and was, therefore, inadmissible before the jury.

Reversed, and judgment here for the appellant.


Summaries of

Boyd v. State

Supreme Court of Mississippi, In Banc
May 9, 1949
206 Miss. 573 (Miss. 1949)
Case details for

Boyd v. State

Case Details

Full title:BOYD v. STATE

Court:Supreme Court of Mississippi, In Banc

Date published: May 9, 1949

Citations

206 Miss. 573 (Miss. 1949)
40 So. 2d 303

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