E. DITTBERNER et al. v. THE STATE.*
Tennessee Reports
Nashville. December Term, 1926. Opinion filed February 26, 1927.
[155 Tenn. 102]
MR. JUSTICE CHAMBLISS
Cases of this class, turn largely upon the peculiar facts of each case, and where reasonable grounds exist fоr an arrest, a search is warranted, even though the accused had made no admission; as where the unusual and peculiar maneuvering and manipulation of an automobile, through the streets of a city, with incidental violаtion of traffic regulations, accompanied by an unusual appearance of the car itself. (Post, p. 104.)
Petition to rehear, dismissed. (Post, p. 109.)
Opinion on petition to rehear denied. (Post, p. 105-109.)
2. CRIMINAL LAW. Arrest. Felony.
The power of an officer to arrest for a felony, without warrant, under the provisions of code,
Citing: Martin v. State (Shelby Cr., Dec. 11, 1926.)
3. SAME. Same. Reasonable cause.
If the officer acts upon grounds which would support a conviction in a reasonable mind, that a crime was being or about to be committed, then he acts within the authority of law, whatever the actual fact may prove to be. (Post, p. 107.)
Citing: Goodwin v. State, 143 Tenn., 682.
4. SAME. Transporting intoxicating liquor.
The
5. SAME. Same. Federal constitutional provisions.
By the Federal constitutional interstate commerce provisions the transportation of liquor is unlawful. And the right of the State to enforce the
Distinguishing: Haumschilt v. State, 142 Tenn., 520.
*Headnotes 1. Criminal Law, 16 C. J., section 1110; 2. Criminal Law, 16 C. J., section 1110; 3. Arrest, 5 C. J., section 30; 4. Arrest, 5 C. J., sections 30, 74; 5. Intoxicating Liquors, 33 C. J., section 197; 6. Intoxicating Liquors, 33 C. J., sections 30, 34.
FROM SHELBY.
Appeal from the Criminal Court of Shelby County.—HON. J. ED RICHARDS, Judge.
CLARENCE FRIEDMAN, BRYAN & BRODE and GALLOWAY & WEINSTEIN, for plaintiff in error.
The Attorney-General for defendant in error.
MR. JUSTICE CHAMBLISS delivered the opinion of the Court.
This is an appeal from a conviction for transporting more than a gallon of intoxiсating liquor. It is not denied that when arrested plaintiff in error was in charge of an automobile in which was being transported along the streets of Memphis a large quantity of liquor. The insistence is that the evidence of the officer who made the arrest was obtained through an illegal seizure and search. The question turns upon the reasonableness of the grounds which the arresting officer had. It appears that while driving along the speedway in Memphis at night, while not on active duty, the attention of the officer was attracted to a car which passed him bearing a foreign State license plate, very dusty, the springs of which had
As heretofore held by this court, cases of this class turn largely upon the peculiar facts of each case. Of course, officers are not justified in holding up automobiles uрon mere suspicion unsupported by plausible grounds, but the facts of this case tend very strongly to support the
The assignments are overruled and the judgment affirmed.
ON PETITION TO REHEAR.
The points we conceive to be mainly relied on in this petition will be dealt with briefly.
In deciding at the present term the case of Howard Martin v. The State (Shelby Criminal, December 11, 1926), it was said:
“The distinction must not be overlooked between the statutory provisions applicable to arrests by an officer in felonies and in misdemeanors. The subsections of
Shannon‘s Code, 6997 , particularly in point, are as follows: An officer may arrest without a warrant:“‘(2) When the person has committed a felony, though nоt in his presence.
“‘(3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“‘(4) On a charge made, upon a reasonable cаuse, of the commission of a felony by the person arrested.’
“The substance of these provisions is that an officer may lawfully proceed to arrest without a warrant any person when the officer has, with reasonable cause, been led to believe that the person has committed, is committing, or is about to commit a felony. It is essential to
the protection of society that a wide discretion be vested in officers chosеn to enforce our laws against felonies. It is impossible to define ‘reasonable cause’ in terms to fit all cases arising. Each case must stand on its own facts. A narrow construction would open the way for the escаpe of desperate criminals and the defeat of justice. One too liberal would lead to the harrassment of the innocent. But the officer may not be required to wait for assurance, for evidence which would сonvict; when circumstances fairly point to a felony it is his duty to act, and act promptly.”
In that case, as in this, the arrest was for transportation in a car of more than a gallon of whiskey—a felony. We found in that case, as in this, that the circumstances were so suspicious as to afford reasonable cause, or grounds, for the arrest by the officer. Nothing in our opinion justifies the statement under assignment V of this petition that, “the court erred in hоlding that any suspicious circumstances would justify an officer,” etc. On the contrary, in the course of that opinion it was said that, “officers are not justified in holding up automobiles upon mere suspicion unsupported by plausible grounds, but the facts of this case tend very strongly to support the insistence of the State and the finding of the trial judge that reasonable grounds existed for the action taken by the arresting officer.”
As properly quoted under Assignment I, we did hold, and now reaffirm, that “the question turns upon the reasonableness of the grounds which the arresting officer had,” that is, whether the arrest was lawful depends upon what the conditions and circumstances and conduct of the рarties were, as presented to the arresting officer—how suspicious they were. If he acts upon grounds which would support a conviction in a reasonable mind
An apt illustration of suspicious circumstances justifying an arrest, whatever the actual fact may prove to be, is that of one staggering from side to side along the street having whiskey on his breath. He may prоve to be perfectly sober, but these circumstances certainly justify his arrest by an officer. Goodwin v. The State, 143 Tenn., 682. So, unusual and peculiar maneuverings and manipulations of an automobile through the streets of a city, with incidental violations of traffic regulations, accompanied by unusual appearances of the car itself, may be carried to such an extent as to justify detention and investigation by an officer. We have so held.
The search in this cаse was legal, both because it followed a legal arrest, and because it followed a voluntary disclosure by the accused.
It is true that no reference was made in our original opinion to the point that the trаnsportation was in interstate commerce. In the first place, the plaintiff in error, who only of the three occupants of the car, was convicted, did not take the stand, and there is no satisfactory evidence of the destination of the liquor, of which he appears to have been exclusively in control. Of the three occupants, but one testifies and while he states his intended destination and his information as to Dittberner
However, the Federal Constitutional Interstate Commerce provisions can have no application in any event. By both the express terms of the
In Haumschilt v. The State, 142 Tenn., 520, this court held that a conviction under