Gardner v. State

110 So. 588 | Miss. | 1926

^* Corpus Juris-Cyc. References: Intoxicating Liquors, 33CJ, p. 679, n. 51 New. S.W. Gardner appeals from a conviction on a charge of having more than a quart of intoxicating liquor in his possession. The sole question to be determined on this appeal is whether or not the search of appellant's automobile by the officers, without a search warrant, was made upon probable cause; and, if not, then the liquor secured by the search and offered in testimony was incompetent evidence in the case, and the conviction must fail.

The search of appellant's automobile, in which the liquor was found, took place in the streets of Belzoni, about twelve o'clock at night. The officers had no search warrant, but relied upon information they had as furnishing probable cause, and thereby authorizing them to search the car without a warrant.

The only information the officers had that the appellant's car contained liquor was that, about ninety days before the night of the search of the automobile, one Charles Moore told the sheriff that appellant had intoxicating liquor in his possession whenever he came to Belzoni about twelve o'clock at night. He (Moore) said that he had bought a bottle from Gardner at some date in the past, and that that was the reason why he said Gardner would have liquor in his car whenever he came to Belzoni at midnight. Upon this remote and speculative statement of Moore the sheriff acting in searching the car without a search warrant.

We think the search was unauthorized under the law, and the evidence thus secured was incompetent in the case. It is true that an automobile may be searched without a warrant, but the officer making the search must have reason to believe, and does believe, that the car is transporting intoxicating liquor.

This court has held, in effect, in that regard, that there must be probable cause before search be made without a warrant. This is also in line with the views of the United States supreme court, and we do not think the officer in the case before us had good reason to believe, under chapter 244, Laws 1924, that the prohibition laws of the state were being violated by transporting liquor in the car at the time of the search. It does not appear that there was probable cause for the search, under the law.

Whenever an automobile is searched without a warrant, there must be reasonable belief or probable cause for the search. The information must be of the present, and the search and seizure made within a reasonable time after the information is received. In the case at bar the search was not made until about ninety days after the information had been given; and the information, as given, was rather uncertain and speculative, and we do not think that such information justified the search without a warrant, especially after such a length of time had elapsed after receiving it. Therefore there was not "sufficient probable cause to justify a search of the automobile without a warrant therefor." Moore v. State, 138 Miss. 116, 103 So. 483;Chandler v. State, 108 So. 723, 143 Miss. 312.

The judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.