Opinion
No. 30218.
October 24, 1932.
INTOXICATING LIQUORS. Evidence held not to show probable cause for search of automobile for intoxicating liquors without search warrant.
Evidence disclosed that deputy noticed that automobile seemed heavily loaded, and that it was proceeding on one of the back streets of the town with a flat tire, that officers followed car to place where occupants were fixing flat tire, and when noticing that they were about half drunk made arrest and searched the automobile.
APPEAL from circuit court of Pearl River county. HON. J.Q. LANGSTON, Judge.
Ovie L. Berry, of New Hebron, for appellant.
The entire record in this case clearly shows that all of the evidence obtained against this appellant and Denman Sherman, who also has appealed his case to this court, and the number of the same being 30,217, was inadmissible against the appellant, and that the court below was in error in not sustaining the numerous objections made by appellant, as well as motion of appellant; also for failure to grant peremptory instruction requested by appellant.
Hamilton v. State, 149 Miss. 251, 115 So. 427; King v. State, 151 Miss. 580, 118 So. 413; McNutt v. State, 143 Miss. 347, 108 So. 721.
Mere suspicion and belief alone does not create probable cause for a search of an automobile without a warrant; neither can the sheriff convey information to himself, which was done in this case.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
In the face of the case of King v. State, 118 So. 413, and Hamilton v. State, 115 So. 427, wherein the court held that probable cause must rise higher than mere belief on the part of the officer, I have my doubts as to whether or not the information on which the search in this case was made was such as to constitute "probable cause" as that term has been judicially defined by this court.
Smith v. State, 133 So. 240.
In the case at bar, the only witness who testified said that he went back with the officer who gave this information and that the officer giving the information participated in the search. It therefore appears to me that the search was that of the informer, as well as the informant and that when considered in this light there is no showing of probable cause at all.
Appellant, with a companion, was passing through the town of Poplarville, in a Ford car. A deputy sheriff noticed that the car seemed to be heavily loaded, and that it was proceeding along one of the back streets of the town and had a flat tire. This deputy communicated this information to another deputy, and it was then suggested that the two deputies follow the automobile. This was done, and at a short distance outside of the town limits they overtook the car which had stopped alongside the road, where appellant and his companion had alighted from the car and were inspecting the flat tire. The deputy who actually made the search said that, when he came into the immediate presence of appellant and his companion, he noticed that the two parties were about half drunk, whereupon he proceeded to search the car, and found hidden therein a ten-gallon keg of whisky. Appellant and his companion were then arrested, and charged with the unlawful possession of intoxicating liquors.
Upon the trial, the only evidence against the appellant, sufficient to convict, was that of the deputy sheriff who found the liquor as a result of the search above mentioned, and which was without a search warrant. Appellant objected to this evidence, and moved to exclude it, and finally requested a peremptory instruction on the ground that the said search was unreasonable — which is to say, was without probable cause. The rulings of the trial court were adverse to appellant, and he was convicted and sentenced.
The attorney-general, in his brief, confesses that the facts upon which the officers acted in making the search were not of sufficient probative force to constitute probable cause, and we agree with that view. Moore v. State, 138 Miss. 116, 103 So. 483; Hamilton v. State, 149 Miss. 251, 115 So. 427; Sellers v. Lofton, 149 Miss. 849, 116 So. 104; King v. State, 151 Miss. 580, 118 So. 413; Chrestman v. State, 148 Miss. 673, 114 So. 748; Ford v. City of Jackson, 153 Miss. 616, 121 So. 278; Smith v. State, 160 Miss. 56, 133 So. 240.
Reversed and remanded.