16 Adv. S. 32 | Miss. | 1953
Appellant, Babbs Jones, was convicted in the Circuit Court of Lowndes County of the unlawful possession of intoxicating liquor. He had appealed from a prior judgment of conviction in a justice of the peace court. Ap
Sheriff C. E. Farmer of Lowndes County and two of his deputies, Tom Glover, Sr. and Jr., obtained a search warrant to search the premises of Earl Wilson, who apparently operated a rural store at which beer was sold. Wilson’s place of business was about 75 yards from the highway. As the officers in their car turned off of the highway toward Wilson’s place, .they saw a woman’s head appear through a glass window in the building and immediately disappear. Wilson ran out of the back of his place of business, toward which the driveway went, and conferred hurriedly with appellant, a negro man who was wearing a yellow oil-skin coat. Immediately appellant ran into a field in the back of Wilson’s place, down a beaten path. By that time, the officers’ car had come to a stop at the rear of Wilson’s place. The sheriff immediately walked in and served the search warrant upon Wilson. Tom Glover, Jr., who was driving, jumped out of the car and ran after the appellant. The field across which appellant ran was about JO yards in depth, and at its far edge there began a Avooded tract which dipped into a steep declivity or ditch, down the side of which there was a path. The shrubbery was rather thick and for a short time Glover lost sight of appellant. During the chase, Glover says that he shot ‘ ‘ one time in the ground right at my feet and kept running. ’ ’ The deputy sheriff chased appellant down into the holloAv, where appellant became exhausted and' stopped. During the latter part of the chase, appellant had in his hand a suitcase. He dropped it shortly before Glover caught up Avith him. Glover said that he smelled whiskey from the
This court adopted in 1922 tbe Federal rule that evidence obtained by an illegal search and seizure, or without a warrant for arrest when no misdemeanor was being committed in tbe officer’s presence, is inadmissible. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377 (1922). Here tbe officers bad no warrant for appellant’s arrest. When the search and seizure of tbe suitcase in appellant’s possession began, that is, when tbe chase began, appellant was not committing any misdemeanor or other offense in tbe officer’s presence. Tbe search warrant for Wilson’s premises did not authorize a search of tbe person and possessions of Jones, who happened to be at Wilson’s place. Hence there was no authority for this search and seizure.
In Butler v. State, 135 Miss. 885, 101 So. 193 (1924), Eli Butler was walking down a street in Natchez at about 4 A.M. with a charcoal bag under bis arm. A policeman commanded him to stop, whereupon Eli began to run. Tbe policeman then fired three pistol shots at bim, which caused Eli to drop his sack to tbe sidewalk, following Avbicb Eli increased bis speed and temporarily evaded tbe officer. A search of tbe sack revealed that it contained whiskey. Eli’s conviction of possession of in
In Burnside v. State, 144 Miss. 405, 110 So. 121 (1926), officers had a search warrant to search the premises of Marshall Burnside, who was the husband of appellant, Mary Burnside. While searching the premises, one of the officers saw appellant, who had gone into the back yard, pick up a small flat bottle and place it under her dress. This bottle was forceably taken away from Mary. She was convicted of unlawful possession of intoxicating liquor, but upon appeal this conviction was reversed and appellant was discharged. The court held that the officer had no right to search appellant’s person nor to compel her to give him the bottle. His actions were equivalent to a forceable search of appellant’s person without authority of law. It was said that the right of personal privacy of the citizen is superior to the zeal of the officer. And in Haney v. State, 43 So. 2d 383 (Miss. 1949), there was also a search warrant issued, this time for a search of appellant’s automobile. The liquor was found upon the rear seat in a purse belonging to Mrs. Haney. This evidence was used to convict her husband. On appeal the case was reversed and appellant discharged. It was stated that the officer was authorized to arrest appellant without a warrant only if the misdemeanor was being knowingly committed in his presence. Mere suspicion, later vindicated by what was
Canteberry v. State, 142 Miss. 462, 107 So. 672 (1926), involved a situation where appellant rode his horse into town and hitched him in the public square. The city marshal observed him get off of his horse and stagger as if under the influence of liquor. After appellant went to a store, the marshal approached his horse and claimed to have smelled whiskey as he got near. Appellant had left a bundle, which was a jumper folded together, tied to the horn of his saddle. The marshal said he observed the imprint of a bottle in the jumper, so he searched it and found whiskey. The officer had no warrant. The evidence was held to be inadmissible, under the Tucker rule.
In Webb v. Town of Sardis, 143 Miss. 92, 108 So. 442 (1926), the officer made a search of appellant without a search warrant and took from his hands a suitcase in which the whiskey was found. The Tucker rule applied. In Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 346 (1933), an officer ordered appellant to stop. They did not see him committing any offense. Appellant ran, the officer fired at him with his pistol, and as appellant ran around the house he encountered the sheriff. He immediately broke two bottles of whiskey upon the sidewalk. There was no warrant for appellant’s arrest. The seizure of this evidence was held to violate Miss. Constitution Secs. 23 and 26, citing the Butter and Burnside cases. The case was reversed and appellant discharged. And in Davis v. City of Columbus, 212 Miss. 181, 54 So. 2d 275 (1951), officers went to a house in which appellant rented a room, for the purpose of locating a man against whom they had a complaint. They had no search warrant nor any warrant for appellant’s
To offset these decisions, the state relies only upon West v. State, 12 So. 2d 751 (Miss. 1919), hut we do not think that case is applicable. Officers had a search warrant for appellant’s place of business. During the search appellant’s son went out of the front door with a paper bag in his hand. An officer took it from the boy and found that it contained four bottles of whiskey. Appellant immediately admitted that it belonged to him and stated that he had told the boy to run with it. No charge was filed against the boy. Appellant was convicted of possession of liquor. It was said that there was no search of the boy’s person but simply a removal of the paper bag from his hands; and that the bag which the officer saw was being removed from the very premises which he was authorized to search. The search warrant covered appellant’s premises and there was no illegal search of appellant. Assuming for present purposes that the taking of the bag from the boy was an illegal search of him still he was not charged with any offense. Appellant could not complain when none of his own rights were violated. In all of the cases referred to above, the illegal search was made of the possessions of the convicted party, who could properly raise' that issue.
Although the limitations of the Constitution and judicial interpretations of it circumscribe and hamper in some respects activities of police officers in apprehending criminals, the constitutional prohibitions of illegal
Reversed and appellant discharged.
