Smith v. State

Dec 17, 1923
No. 23381
Versions:

Lead Opinion

HohdeN, J.,

delivered the opinion of the court.

Bеrtha Smith appeals from a conviction of having intoxicating liquor in her possession.

The record shows a easе of this kind. A deputy sheriff, in search of intoxicating liquors, entered the residence of appellant at Brandon, and, without hаving a search warrant, proceeded to investigate and search the premises for intoxicating liquor. After the officer began his quest for liquor he said to appellant that he “believed he smelled some whisky in there and that he was going to hunt for.it;” whereupon appellant said to him, “All right, you are welcome to find it if you can. ’ ’ The officer then proceeded further to search the room, and finally found a goblet about two-thirds full of liquor which he claimed was intoxicating liquor. In his effort to satisfy himself that it was intoxicating liquor he dropped the goblet upon the floor and broke it. At the trial he sworе ha knew the liquor was intoxicating because it smelled like intoxicating liquor.

The appellant introduced testimony to show the liquor was not in her possession nor under her control, but was liquor belonging to some other person occupying the same building.

At the trial the appellant duly objected to the admission ‍‌‌‌​​​​‌​​‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌​‌​​​‌​​‌​​‌‌​‌​‌‌​‍of the testimony of the officer with referencе to the *735liquor, on the ground that this testimony was illegally obtained without a search warrant. The testimony was submitted to the jury upon the theory, we suppose, that the appellant consented to and invited, the search by the officer, and therеfore the search warrant was not necessary, or was waived by the appellant.

Three grounds for reversal аre urged by the appellant: First, the testimony of the officer making the search and seizure' without a search warrant wаs inadmissible; second, the proof of the state fails to show the liquor was intoxicating; and, third, the proof is insufficient to estаblish the fact that that the liquor seized was in the possession or control of the appellant. '

We shall pass upоn but one point, and that is whether or not the search made by the officer without a search warrant was such as to make his testimony inadmissible,. involving section 23, Constitution 1890; a decision of this question will end the case.

The appellant contends the search was unlawful, and the testimony of the ‍‌‌‌​​​​‌​​‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌​‌​​​‌​​‌​​‌‌​‌​‌‌​‍officer was inadmissible under the rule announced by this court in Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and the cases of Faulk v. State, 127 Miss. 894, 90 So. 481; Williams v. State, 129 Miss. 469, 92 So. 584; Miller v. State, 129 Miss. 774, 93 So. 2; Butler v. State, 129 Miss. 778, 93 So. 3; and Taylor v. State, 129 Miss. 815, 93 So. 355 —all being decisions rendered by this court since the Tucker case, supra.

The state urges that the above cases are not in point, because the-case at bar comes within the rule of Baskin v. State (Miss.), 92 So. 556, wherein it was hеld the requirement of a search warrant was waived and the testimony secured under the circumstances there was аdmissible because the owner of the premises “ consented to the search and expressly invited it.” Now it is contendеd by the state in the case before us that the appellant waived the* requirement of the search warrant by consenting to.and inviting the search.

*736We have carefully examined the proof hearing upon this question, and we are cоnvinced the case before us does not come within the rule announced in the Baskin case, supra, but falls within the rule of the Tucker case, supra.

In the instant case the officer hаd entered the house in search of liquors and was then already proceeding to make the search without a sеarch warrant, and while thus engaged he said to the appellant that he smelled whisky and was going to hunt for it in the ‍‌‌‌​​​​‌​​‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌​‌​​​‌​​‌​​‌‌​‌​‌‌​‍house. He had in fact made the invasion and commenced the search when he made this statement to the' appellant, аnd in reply the appellant merely said, “All right, you are welcome to find it if you can. ’ ’ He did not ask permission to make the search.

We do not think what the appellant said to the officer constituted a waiver of her legal rights in the prеmises. There was no express invitation or freely granted permission on the part of the appellant. The officer had already invaded the premises and was beginning the search. Under such circumstances where an officer is in the process of illegally searching a house in which he states he smells whisky and is going to find it, we do not think the owner waives her rights by a mere acquiescence or failure to object to the search, as is true in this case.

It is our opinipn under suсh circumstances the occupant, as a matter of legal right, stands objecting to any unlawful search of her premises; and in order to waive her rights it must clearly appear that she voluntarily, permitted, or expressly invited and agreed to the search, being cognizant of her rights in the premises when the officer proposed to her, by asking her permissiоn, to make the search without a warrant, 24 R. C. L., p. 723.

When an officer acting under the badge of legal authority is wrongfully searching the private premises of a person, such private person is not required to expressly *737protest and object. The law recognizes that he is ob-' jeoting to such unlawful search, and his objection continues unless he expressly аnd voluntarily agrees otherwise after permission is asked and before the search is undertaken. The officer of thе law is supposed to ‍‌‌‌​​​​‌​​‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌​‌​​​‌​​‌​​‌‌​‌​‌‌​‍know that the private citizen is always silently objecting, to an' unlawful invasion of his premises. Therefore permission to search without a warrant must be first obtained; otherwise the search is illegal and the evidence sеcured thereby is inadmissible at the trial.

The wisdom and purpose of the law to destroy one of the greatest curses to the human race is'not questioned, but the sacred sáfeguards of the Constitution must be preserved unto the citizen, the soverеign in the government. The right of pe'rsonal security against illegal search and seizure, against unlawful invasion of the home, is vоuchsafed to the lowly occupant of the hovel; it is for the protection qf the intelligent and the ignorant, the cultured and the coarse.

. The judgment of the lower court is reversed and cause remanded.

Reversed and remanded.





Concurrence Opinion

Smith, C. 'J.

(specially concurring).

I concur in holding the evidence inadmissible, but solely on the authority of Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, which case -I think was erroneously decided and should.be ‍‌‌‌​​​​‌​​‌​‌‌‌‌‌​​​‌‌‌​‌‌‌​‌​‌​​​‌​​‌​​‌‌​‌​‌‌​‍overruled for the reasons set forth by me in a dissenting opinion in Owens v. State, 98 So. —, this day decided.