Opinion
No. 29202.
March 2, 1931.
CRIMINAL LAW. In prosecution for possession of liquor, evidence showing officers detected alcohol odor coming from automobile held to establish probable cause for search.
Evidence tended to show that officers before making search of automobile or disturbing it in any way detected odor of alcohol coming from automobile, whereupon they searched it and found several kegs therein containing whisky, one of which was leaking.
APPEAL from circuit court of Neshoba county. HON. D.M. ANDERSON, Judge.
A.L. Mars, of Philadelphia, for appellant.
It is well settled by the law of Mississippi, that an officer cannot make a search of an automobile upon mere suspicion that there is whiskey in the absence of such facts as would lead a reasonable man to believe that the law was being violated in this respect. Mere suspicion alone will not warrant a search without a warrant.
Since the only evidence introduced against this defendant was obtained by means of an illegal search, the testimony should not have been admitted and the peremptory instruction asked by the defendant, should have been granted.
Lee v. City of Oxford, 99 So. 509; Hamilton et al. v. State, 115 So. 427; Sellers et al. v. Lofton, 116 So. 104; Tucker v. State, 90 So. 845; Williams v. State, 92 So. 584; Harrell v. State, 106 So. 268.
Eugene B. Ethridge, Assistant Attorney-General, for the state.
The search of appellant's car without warrant was legal.
Section 2, chapter 244, Laws of 1924.
This law authorizes any officer to search any automobile in which he has reason to believe and does believe that intoxicating liquors are being transported unlawfully in his jurisdiction.
The question of what constitutes "probable cause" is a broad one and is a question for judicial determination, but "probable cause" being shown to the satisfaction of the court, it is lawful to search an automobile without a warrant therefor.
Moore v. State, 138 Miss. 116.
Information and belief has always been considered sufficient "probable cause" to justify a search and seizure.
State v. Quintini, 76 Miss. 498; Loeb v. State, 133 Miss. 883; Bufkin v. State, 134 Miss. 1.
This is an appeal from a conviction for having intoxicating liquor in possession. The appellant's complaint is that the evidence of his possession of the liquor was obtained by an unlawful search of an automobile, and that his objection thereto should have been sustained. The evidence discloses that the marshal of the town of Philadelphia met the appellant driving an automobile, the curtains of which were up, and that the actions of the appellant caused him to suspect that he had whisky therein. The appellant parked and left the automobile in front of his residence a short distance from where he passed the marshal, who immediately called his deputy, told him to watch the automobile, and then notified the sheriff. The automobile was kept under observation of either the marshal's or the sheriff's deputy for several hours, during which time no one was seen to approach or leave the automobile. The sheriff and the marshal then went to the automobile for the purpose of searching it. On arriving at it and before making any search of it or disturbing it in any way they detected the odor of alcohol, which they located as coming from the automobile. They then searched the automobile and found three five-gallon kegs therein containing whisky, one of which was leaking.
The appellant's contention is that the search began when the automobile was taken under the observation of the officers with the intention of thereafter searching it. All of what occurred prior to the actual search of the automobile was mere preparation therefor, and the search did not in fact begin until the curtains of the automobile were removed or pulled back so that the officers might see therein, and before they did this they had unmistakable evidence, through one of their senses, that the automobile contained intoxicating liquor, and therefore had probable cause for making the search. Eady v. State, 153 Miss. 691, 121 So. 293. No trespass had been committed when this evidence was obtained, for neither the eye nor the nose can commit such, provided the owner thereof is in a place where he has the right to be.
The case is ruled by Goodman v. State (Miss.), 130 So. 285, with which compare Ford v. City of Jackson, 153 Miss. 616, 121 So. 278. The court below committed no error in admitting the evidence.
Affirmed.