Opinion
No. 27545.
December 3, 1928.
1. INTOXICATING LIQUORS. Where officer, unlawfully searching house, found liquor, procurement of search warrant did not legalize search.
Where officer unlawfully entered house and found liquor, subsequent procurement of search warrant, where that part of search made thereafter was but continuation of unlawful search, did not legalize unlawful search.
2. INTOXICATING LIQUORS. Where officer went to house to serve warrant for nonpayment of road tax, and knocked door down and entered, and found liquor therein, entrance was unlawful, and did not give right to seize contraband.
Where officer went to house to serve warrant on person for nonpayment of road tax, and knocked door down, and entered without a search warrant, and found liquor therein, entrance was not lawful so as to give officer right to seize contraband.
3. INTOXICATING LIQUORS. Where officer had no justification for belief that whisky was being manufactured, entrance and search without warrant was unlawful.
Where officer had no justification for belief that whisky was being manufactured, or that defendant had a still, except what he found while unlawfully in house, entrance by knocking down door and search of premises without warrant was unlawful.
4. CRIMINAL LAW. Evidence obtained by unlawful search of house held inadmissible in liquor prosecution.
Evidence obtained by unlawful search of defendant's house held inadmissible in prosecution for possessing still.
APPEAL from circuit court of Benton county, HON. T.E. PEGRAM, Judge.
L.T. McKenzie, for appellant.
There is proof that the defendant consented to a search of his home or premises and evidence procured by an unlawful seizure or search is inadmissible — see section 23 of the Constitution of the state. State v. Patterson, 130 Miss. 680, 95 So. 96; Butler v. State, 129 Miss. 778, 93 So. 3; Williams v. State, 129 Miss. 469, 92 So. 584; Tucker v. State, 128 Miss. 211, 90 So. 845.
This search warrant was void as to the finding of this part of the still because he did not specifically designate the place to be searched merely using the word premises which this court has held time and again to be void and certainly this part of the still was not found in the house, outhouses or automobiles of the defendant which the search warrant testified. See Miller v. State, 129 Miss. 774, 93 So. 2.
We respectfully submit that all the evidence of this officer should have been excluded because not founded on a proper search warrant and affidavit, the affidavit sworn to C.I. McKenzie the deputy sheriff who made this search and arrest was in the usual form stating that he had been informed by a credible person, refused to answer the question of counsel as to who had informed him, but upon a statement from the court that he would have to give this information, he replied that up to the time of swearing out this affidavit and search warrant that no person had informed him. That proof certainly renders the affidavit and search warrant void and all evidence founded on them is clearly inadmissible as held by this honorable court in Mapp v. State, 148 Miss. 739.
Rufus Creekmore, Assistant Attorney-General, for the state.
Counsel strenuously argue that the evidence in this case was unlawfully obtained because the search warrant under which the officer was acting was illegal, and void. With reference to this point, I am frank to say, in my opinion, the issuance of a search warrant gave to the officer no additional authority to search the house and the premises of this defendant, because, if the entrance to the house was unlawful and a part of the search made was unlawful, and the evidence obtained thereunder was illegally obtained, then the subsequent issuance of a search warrant could add nothing to, nor justify the action of the officer in continuing the search. In other words, there would never have been an abandonment of the unlawful search, but merely a continuation of it after the attempted procurement of a lawful search warrant. Robinson v. State, 135 Miss. 774, 101 So. 706; Jordon v. State, 100 So. 384.
On the other hand, however, if the officer was lawfully within the house, and being there on a lawful mission, he as an incident thereto saw that the defendant possessed things which were contraband and which it was unlawful to possess, then he had the right, without the issuance of a search warrant at all to seize the contraband articles and to arrest the defendant. And, if he saw things which would cause him as a reasonable man to believe that a felony was being committed, or had recently been committed, by the defendant, then he had a right to search the house and the premises of the defendant, with a view of determining whether or not such felony was being committed, or recently had been committed. Reynolds v. State, 135 Miss. 329, 101 So. 485; Kennedy v. State, 139 Miss. 579, 104 So. 449; Love v. State, 142 Miss. 602, 107 So. 667.
In the case at bar, the officer was lawfully on the premises, his business there being to execute a warrant for the arrest of one of the tenants of Mr. Tucker. He went to the defendant's house in an effort to serve this warrant and was lawfully therein. His entrance being lawful, then those things which he saw as an incident thereto, which it was unlawful to possess, were not seen as a result of an unlawful search. When the officer saw the jug of whisky in the house, when he saw the barrel of mash in the garden, he had reason to believe that a felony was being committed by this defendant, and that he did have in his possession articles designed for the manufacture of intoxicating liquor, or, in other words, a still. This being true, he had the right to search the house and the premises of the defendant to ascertain whether or not a felony was in fact being committed by him.
Appellant was indicted and convicted of unlawfully having in his possession a still, or the integral parts thereof, and sentenced to imprisonment for three years in the state penitentiary, from which conviction and sentence he appeals.
The only testimony given for the state was that of a deputy sheriff, which was objected to by appellant on the ground that it was illegally obtained, in that the officer had entered and searched his home without the authority of a search warrant. The deputy sheriff testified, in substance, that he was attempting to serve a warrant on a certain tenant living on the Tucker place for the nonpayment of his road tax; that, upon finding the tenant away from his home, he was advised that he would be probably found at the appellant's home, to which place he went and demanded entrance, the officer's exact testimony on this point being:
"Yes, I knew there was something there and I tried to get the door open and I could not and I called to Will Lund, one of my men, to knock the door down and this boy opened it and I went into the house. He wanted to know if I had a search warrant and I told him no but I was going to walk through his house and I would get one."
While thus in appellant's house, the deputy sheriff found a jug of whisky on the floor, some empty bottles, and also found a gasoline barrel partly filled with mash in the back yard. The barrel was smoked as if it had been over fire. Upon finding these things, the deputy sent a negro boy to the justice of the peace for a search warrant, and the deputy remained, it seems, at appellant's house until the negro boy returned with the warrant. Before the search warrant was delivered to him, the officer had also found, in the yard, two bottles of whisky, which he put in his pocket, and, upon receiving the search warrant, continued his search, and found the worm of a still in a nearby cotton patch by following freshly made tracks over newly-ploughed ground from the house to where the worm was. The worm was smoked and partly covered with "dough," and showed evidence of recent use.
Peremptory instruction was asked for by the defendant, and refused by the court.
It is conceded by the able assistant attorney-general that, if entrance to the house was unlawful in the first instance, procurement of a search warrant thereafter conferred no authority for the search. It appears, without question, there was no abandonment of the illegal search begun without a search warrant, and that part of the search made thereafter was but a continuation of the unlawful search. Unless the officer had procured the warrant before entering, he could not, by the warrant, legalize a wrongful and unlawful search. Robinson v. State, 136 Miss. 850, 101 So. 706. In the Robinson case the search was begun, as here, without a search warrant, and, finding some whisky in the defendant's house, the sheriff remained in possession thereof, as did the officer here, while another officer went to the justice of the peace and procured a warrant. Returning with the warrant, the officer continued with the search, which resulted in the finding of the still. The court, speaking through Justice SYKES, said in part:
"We therefore conclude, first, that the testimony shows that the sheriff in making this affidavit acted upon the information obtained in the unlawful search; second, that the sheriff unlawfully seized the premises of the appellant and held them unlawfully through the entire transaction; that there was no abandonment by him of this unlawful seizure. In legal effect the obtaining of the search warrant was an attempted evasion of the law. No part of this search was lawful. Consequently all of this testimony was inadmissible."
The state contends, however, that the officer was lawfully within the house, and, being there on a lawful mission, he had the right to seize anything in defendant's possession that was contraband and unlawful to possess; and furthermore that, if the officer saw things that would reasonably lead a prudent man to believe a felony was recently committed, he had the right to search the house for evidence of the commission of the felony. We do not think this position tenable. It cannot be said, in the instant case, that the officer's entrance into the house was lawful, thereby giving him the right to seize contraband, as was held in Reynolds v. State, 136 Miss. 329, 101 So. 485. If a public officer has information upon which to base probable cause that a felony is being committed, or has recently been committed in a house or residence, and has reason to believe that the perpetrator is secreted therein, the officer may enter such building without a warrant and make the arrest. If demand for entrance is refused, he may enter by force; and evidence found on entering the house, incident to such arrest, may be introduced in the prosecution of the owner or occupant of the house. There is no satisfactory proof that the deputy sheriff had any justification for the belief that whisky was being manufactured, or that the appellant had a still, except what he found while unlawfully in appellant's house. Love v. State, 142 Miss. 602, 107 So. 667.
On account of the incompetency of the evidence, and there being no other evidence to support the conviction, the case must be reversed, and the appellant discharged.
Reversed, and appellant discharged.