246 P. 548 | Ariz. | 1926
In the evening of January 21st, 1925, Gorman Malmin, hereinafter called appellant, and one G.A. Lindsay were driving a Chevrolet motor-car along the Thumb Butte road in Yavapai county. Somewhere between Thumb Butte and Prescott they were stopped by Deputy Sheriffs Poulson and Denny of Yavapai county. These officers had, a short time before, received information that appellant was coming into Prescott along this road with a load of intoxicating liquor, and, there being no time to file a complaint or obtain a search-warrant before *260 appellant was expected to arrive, they immediately posted themselves on the road, and, as appellant and Lindsay came, stopped them. The car was examined and about ten gallons of alcoholic liquor found. Thereupon the officers arrested appellant and Lindsay, and in due time an information was filed against them charging them with the illegal transportation of intoxicating liquor contrary to the provisions of chapter 63, Session Laws of 1917. A severance was granted, and upon trial before a jury appellant was found guilty, and was sentenced to serve eight months in jail and to pay a fine of $300, from which judgment he prosecutes this appeal.
Before the trial, appellant moved to suppress as evidence any intoxicating liquor found in the car when he was arrested, on the ground that its use was in violation of the
There are two assignments of error which raise in effect two points: First, that the liquor seized in the car was illegally admitted in evidence; and, second, that the state had failed to prove the aforesaid liquor was not denatured alcohol. We will consider these objections in their order.
The
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." *261
Sections 8 and 10 of article 2 of the state Constitution read as follows:
"Section 8. No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
"Section 10. No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense."
Briefly stated, appellant's position is this: That, under the state and federal Constitutions, it is unlawful for officers of the law to search an automobile for intoxicating liquor, unless they have either a search-warrant or a warrant of arrest for the driver of the car, except when an arrest is made for a felony under the provisions of our statute, and that, if any intoxicating liquor be found in an automobile when such unlawful search is made, any liquor found may not be used in evidence against the driver. It has, of course been held times without number by the Supreme Court of the United States that the first ten amendments to the Constitution limit only federal, and not state, action. So we need not consider appellant's contention that his rights under the
There is a diversity of opinion among the courts as to whether articles obtained by a violation of the
"We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the
"But we are pressed with the argument that if the search of the automobile discloses the presence of liquor and leads under the statute to the arrest of the person in charge of the automobile, the right of seizure should be limited by the common-law rule as to the circumstances justifying an arrest without warrant for a misdemeanor. . . . The argument for defendants is that, as the misdemeanor to justify arrest without warrant must be committed in the presence of the police officer, the offense is not committed in his presence, unless he can by his senses detect that the liquor is being transported, no matter how reliable his previous information by which he can identify the automobile as loaded with it. . . .
"The argument of defendants is based on the theory that the seizure in this case can only be thus justified. If their theory were sound, their conclusion would be. The validity of the seizure then would turn wholly on the validity of the arrest without a seizure. But the theory is unsound. The right tosearch and the validity of the seizure are not dependent on theright to arrest. They are dependent on the reasonable cause theseizing officer has for belief that the contents of theautomobile offend against the law. (Italics ours.) . . . The character of the offense for which, after the contraband liquor is found and seized, the driver can be prosecuted does not affect the validity of the seizure.
"This conclusion is in keeping with the requirements of the
With both this reasoning and the conclusion of the court, we are in most hearty accord. It is consonant with a proper regard both for the rights of the citizen and the enforcement of law by the officials charged with that duty. Nor have we ever heard that it was a violation of constitutional provisions similar to section 10 for contraband goods legally seized to be used in evidence against a defendant. We therefore conclude that the constitutional rights of appellant in this case were in no manner violated by the use in evidence of the liquor seized as set forth above.
It is further contended that the state failed to prove the liquor transported was not denatured alcohol. This court has specifically held in the case of Richardson v. State,
McALISTER, C.J., and ROSS, J., concur. *265