Opinion
No. 37497.
May 8, 1950.
1. Searches and seizures — lack of time to procure search warrant immaterial, when.
If evidence is obtained by officers by means of a search of one's premises or personal belongings, the lack of sufficient time to obtain a search warrant is wholly immaterial for in such a case a warrant is a condition precedent to a lawful search and this without regard to the statute as to searches of automobiles and other means of transportation. Sec. 2615 Code 1942.
2. Searches and seizures — intoxicating liquors — search without a warrant.
The right to make a search for intoxicating liquors on probable cause and without a search warrant is applicable only to the search of an automobile and the other means of transportation mentioned in the statute, Sec. 2615 Code 1942.
3. Arrest — without warrant for misdemeanor committed in officer's presence — knowledge by officer of facts — confession not sufficient.
In order to authorize an arrest without a warrant for a misdemeanor committed in the officer's presence, the officer must have knowledge, at the time, of facts which would constitute the corpus delicti; and the confession of the person arrested is not of itself sufficient to supply the facts.
4. Arrest — evidence obtained through the means of an unlawful arrest inadmissible.
Where officers had taken charge of defendant's suitcase, having no knowledge at the time beyond a suspicion of its contents, and upon asking the defendant what it contained he answered that it contained whiskey, whereupon the officers arrested the defendant and took him to jail, the arrest was unlawful, and the fact that when told to do so at the jail defendant opened the suitcase revealing therein a quantity of whiskey was of no aid to the State's case since it supplied, for the first time, knowledge of the corpus delicti which the officers did not have at the time of the arrest, with the result that the proof of the defendant's unlawful possession of the whiskey was illegally obtained and was inadmissible in evidence.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Grenada County; J.P. COLEMAN, Judge.
Frank C. Horton, for appellant.
The court below in its statement of the facts bases the conviction of the appellant upon the authority contained in the case of Quan v. State, 185 Miss. 513, 188 So. 568. The court erred in its application of the rule of that case to the facts of the present case and we submit the following as distinguishing features of the two cases:
I. It must be borne in mind that in the present case no search warrant of any nature was issued for the search of the appellant or his possessions, although the record indicates that the information received by the officers was to the effect that the appellant, who was known by the officers to be a resident of Grenada, was to get off of the train in Grenada. Nowhere is it shown that the officers would have been unable to procure a search warrant, since appellant was known as such resident of Grenada and readily available to the officers. The search of a train upon reasonable information does not come within the scope of Section 2615 Code 1942 although this point was not controverted by the State on the trial. The consideration of the case turns then, on the question of whether or not the statements made by the appellant to the officer were voluntary and therefore admissible against him, and if such admissions were voluntary and therefore admissible, can the appellant be convicted in the case when the corpus delicti is proved solely by such admissions?
II. It is respectfully submitted that the confessions or admissions of the appellant in the present case were involuntary and therefore not admissible under the stated laws of our state. Our courts have recognized the fact that compulsion such as to render statements involuntary and thus inadmissible, need not be physical, but may arise from the condition of the parties and the circumstances at the time. See Johnson v. State, 107 Miss. 196, 165 So. 218; White v. State, 129 Miss. 182, 91 So. 903; Whip v. State, 143 Miss. 757, 109 So. 697; Fisher v. State, 145 Miss. 116, 110 So. 361.
It is shown by the evidence that this officer, recognized by the appellant, had taken possession of the suitcase and had actually started an illegal search at the time the admissions on which this conviction is based were made. It is submitted that under the circumstances of this event, where a known officer of the law had taken possession of the suitcase of an ignorant negro, although illegally, were of such nature and character as to intimidate the appellant and deprive his statements of their voluntary character, and that such admissions were not thereafter admissible in evidence against him.
The language of the very case relied on by the court below (Quan v. State) sustains this position.
III. It is further urged that, conceding for the sake of argument that such statements made by the appellant as to the contents of the suitcase were voluntary, these admissions alone cannot be made the basis for a conviction. The rule has been stated most recently in the case of Walker v. State, 188 Miss. 177, 189 So. 804.
The Quan case is distinguished from the present case in the fact that there the sole evidence of the offense or the corpus delicti was not contained in the admissions of the accused.
In the present case all of the evidence was based on the admissions of the accused.
This principle of law finds further support in the case of Myers v. State, 158 Miss. 554, 130 So. 741.
George H. Ethridge, Assistant Attorney General, for appellee.
In my opinion the present case is governed by Williamson v. State, 140 Miss. 841, 105 So. 479, and that the only cases necessary for the Court to consider are Butler v. State, 135 Miss. 885, 101 So. 193; the Williamson case just cited and Orick v. State, 140 Miss. 184, 105 So. 465, 41 A.L.R. 1129.
Many other cases are collected under Section 23 of the State Constitution, Code 1942, pages 142 to 147, where a great array of authorities on search and seizure are collected.
It will be noted from Mr. Abel's testimony that he asked the appellant what was in the suitcase before he arrested the appellant and that the appellant answered, "whiskey", and that neither threats nor promises or other inducements were used to secure this statement. The whiskey was not visible until the suitcase was opened but the deputy sheriff did not use any force but merely requested the appellant to open the suitcase and when he did open it the whiskey was visible. This seems to be in precise point under Williamson v. State, 140 Miss. 841, 105 So. 479, and the court held that when the defendant in the Williamson case answered, "whiskey" and the whiskey was in the truck, in that case that the crime was committed in the presence of the officer and that no search warrant or warrant for arrest was necessary where the defendant, without compulsion or unlawful inducements, voluntarily stated that he had whiskey although the whiskey itself, at the time of the statement by the defendant that he had whiskey, was not visible. There has been a large amount of litigation involving the law of arrest and the law of search and seizure but it is settled that where the whiskey is disclosed without compulsion under the circumstances indicated in this case, the evidence is admissible and as an incident of an arrest a search may be made by the arresting officer without a warrant or affidavit where the crime is committed in the presence of the officer. See Volume 1, page 144, Code 1942, Paragraph 4, under the heading, "Without Warrant", and page 145, Paragraph 6, under the heading, "Admissibility of Evidence Obtained By Illegal Search and Seizure".
Upon information furnished to the sheriff and his deputy by a special agent of the railroad company, who was known to them to be a credible person, the said officers went to the passenger station at Grenada to await the arrival of a train on which they had been advised that the defendant, Buster Harris, would arrive with a suitcase of whiskey. The train was due within a few minutes after this information was furnished at the sheriff's office, and there was not therefore sufficient time left within which to obtain a search warrant for the seizure and search of the suitcase when the defendant should alight from the train. However, (Hn 1) if evidence is obtained by officers by means of a search of one's premises or personal belongings, the lack of sufficient time to obtain a search warrant is wholly immaterial; then such warrant is required as a condition precedent to a valid search without regard to the provisions of Section 2615, Code of 1942.
As the train came to a stop, these two officers were standing on opposite sides thereof looking for the accused, Buster Harris. Before it came to a complete stop, he got off on the wrong side from the depot (although either side would have been the wrong one for him to get off on under the circumstances) and ran along by the train until it came to a standstill. Thereupon another colored man placed the suitcase on the top step of the train after the trap-door had been raised and the accused caught hold of it as if to set it on the ground. He then saw the deputy sheriff standing nearby, who testified at the trial that then "he turned it loose and backed off". This officer then said to him, "Buster, get your suitcase, the train will leave you", and the deputy says that the accused then "kept backing off from it and I picked the suitcase up and set it down on the ground and says, `Buster, what have you got in that suitcase?' and he says, `whiskey'".
Immediately following the above-mentioned incident, the deputy arrested the accused, carried him to the other side of the train where the sheriff was standing, and the two officers then took him to jail, where he was told by the sheriff to open the suitcase, and the officers there saw for the first time that it did contain about a half a case of bonded whiskey.
It seems to be the theory of the deputy sheriff, when testifying, that he didn't seize the suitcase but that he merely took it off the top step of the train, and set it on the ground to keep the train from carrying it away. And he says that he delivered the suitcase back to the accused after asking him what it contained. However, when he asked this question, and the accused made his reply, the latter was entitled to assume that the officer still had it in charge and under his control after taking it off the train-step and setting it on the ground and before delivering it back to the accused after arresting him to take him to jail.
It is true that he surrendered the suitcase to the accused to carry with him to the jail, where the latter had no particular need for it, but the deputy had taken charge of the accused before the latter again took hold of the suitcase.
And it seems to be the theory of the sheriff that neither he nor his deputy sheriff searched the suitcase at the jail; that on the other hand Buster, the accused, searched it by opening the same when the sheriff told him to do so. The deputy was asked as a witness: "Q. If Buster hadn't opened it, you would have, wouldn't you? A. Well, I would think it would be natural for a man to open it." Moreover, the deputy further testified that they went to the train to get the suitcase and the whiskey, without a search warrant for that purpose, and that "it was my intention to get the whiskey if he unloaded it off that train".
(Hn 2) The right to make a search for intoxicating liquors on probable cause and without a search warrant is applicable only to the search of an automobile and the other means of transportation mentioned in Section 2615, Code of 1942. Martin v. State, 190 Miss. 898, 2 So.2d 143.
If the deputy sheriff took his stand beside the train to get the whiskey if the accused should unload it off the train, as the officer testified he intended to do, and then seized the suitcase and placed it on the ground and then stood over it when asking the accused as to what it contained, he was a trespasser while he had the suitcase in his possession and under his control because of having seized it without a search warrant. Naturally the accused would have told him what was in it when asked the question, since he would necessarily have known that the officer would find out anyway, and that the withholding of the requested information, and lying in regard to the fact inquired about, would have militated against him as to the extent of his punishment if convicted.
Moreover, there is no merit in the contention that the deputy promptly delivered the suitcase back to the accused after setting it on the ground and asking him what it contained. This officer frankly admitted that the reason he asked him what it contained was "because it was so heavy". The officer discovered that it was heavy by having first taken charge of it in removing it from the train-step to the ground. Most assuredly it is not to be contended that the officers did not require the accused to bring it along to the jail himself "because it was so heavy" as they accompanied him there to have him search it for them.
(Hn 3) Except for the confession of the accused, made under the circumstances hereinbefore mentioned, the officers had no evidence of the corpus delicti, and the only proof of the corpus delicti aliunde the confession was obtained by the sheriff asking the accused to open his suitcase and to thereby give evidence against himself as to the corpus delicti at a time when the accused was under arrest for a misdemeanor which the officers had not seen committed in their presence and at a time when their possession of his suitcase was wrongful. In other words, the officers still had charge of the suitcase when they arrived at the jail since the accused had carried it there for them.
The case of Walker v. State, 188 Miss. 177, 189 So. 804, has a direct bearing on the point as to the necessity for the officers to actually see a misdemeanor being committed in their presence before they are entitled to arrest without a warrant, and also on the point that a confession alone by the accused is not sufficient to establish that a misdemeanor has been committed in the presence of the officer.
In the Walker case, supra, there was no proof other than the confession of the accused that he had stolen the watermelon from the patch of the owner when the latter found him in possession of a melon and arrested him. The Court held that the arrest was unlawful, since the entire misdemeanor must be committed in the presence of the officer or private person before the arrest of the accused without a warrant.
In the case of Myers v. State, 158 Miss. 554, 130 So. 741, the Court declared that: "One of the safest tests, although we do not declare it to be under all circumstances an exclusive test, of when a misdemeanor is committed in the presence of an officer, is whether the officer as a witness could at the time of the arrest of his own knowledge testify to sufficient facts as having happened in his presence to make out a case for conviction, if his evidence were undisputed; and, of course, an admission made to him or in his hearing is sufficient to supply knowledge of those facts competent to be covered by an admission. But no admission or confession can wholly supply the corpus delicti; that is to say, there must presently exist, independently of the confession, the essential facts which constitute the corpus delicti."
(Hn 4) In other words, there must presently exist, independently of the confession, the essential facts to the knowledge of the person making the arrest which constitute the corpus delicti. Since the first actual knowledge that the defendant had the whiskey in his suitcase was gained by the officers when he was told by the sheriff to open it at the jail, the officer making the arrest could not at the time thereof "of his own knowledge testify to sufficient facts as having happened in his presence to make out a case for conviction, if his evidence were undisputed", for the reason that in order to make out a case for conviction it is necessary to prove the corpus delicti. In the instant case, the officer had no knowledge of his own of the corpus delicti until after he had arrested the accused and carried him to jail; he only had the confession which was insufficient in itself to establish the corpus delicti.
Under all the facts and circumstances, we do not think that the cases of Williamson v. State, 140 Miss. 841, 105 So. 479, and Quan v. State, 185 Miss. 513, 188 So. 568, relied on by the state, are controlling in the instant case. It is true that in the Quan case, supra, it was held that a confession, freely and voluntarily made while one is in custody under an unlawful arrest, is not excluded on account of the illegality of the arrest, but we are unable to agree that under the facts of the present case the accused both freely and voluntarily confessed the crime and consented to the search of his suitcase. Unless he did do so, the fact that he may have told the officer that there was whiskey in it would not have entitled the officer to require him to open it so that he could look at the whiskey, when he had no search warrant authorizing him to do so.
As to the Williamson case, supra, the whiskey was being transported in an automobile, and the confession of the occupants of the car as to what was in the containers therein had the effect of furnishing the officers with probable cause to make the search and seizure. That case was decided subsequent to the enactment of Section 2615, Code of 1942, authorizing the search of an automobile on probable cause without a search warrant, but there is no law that would authorize the search of a person's suitcase without a search warrant, even though such person should alight from a train and see an officer and say to him, "I have some whiskey in this suitcase". The same situation would be presented thereby as if a citizen should engage in conversation with a police officer in regard to the prohibition laws as to possession of intoxicating liquor and voluntarily say, "I keep whiskey in my house most of the time, and I have some there now", thus affording the officer probable cause for obtaining a search warrant and searching the premises of such citizen, but which confession would not authorize a search thereof without a warrant.
We do not think that any of the decisions cited in the briefs are controlling on the unusual facts of the instant case, and we are of the opinion that the proof of the defendant's unlawful possession of the whiskey was illegally obtained and was for that reason inadmissible in evidence against him.
Reversed and judgment here for the appellant.