32 Del. 120 | New York Court of General Session of the Peace | 1922
delivering the opinion of the Court:
There are two questions raised under the testimony:
1. Was the defendant arrested before he admitted he had liquor in his package?
2. Was the officer justified in making the arrest after the admission, without a warrant?
It has been held by this court in some cases that to constitute an arrest, the officer shall place his hand on the accused, or otherwise take possession of his person. But even if this is not necessary, certainly the officer must do or say something from which the accused can reasonably believe that he is under arrest. He must have reasonable ground to believe that he cannot go away, that he is restrained of his liberty. The officer in this case was in uniform, and the accused, therefore, knew he was accosted by an officer, and no doubt thought he was bound to stop when approached. But we do not think the mere fact that an officer in uniform walks up to a person on the street and asks him what he has in his package, or on his person, is enough to constitute an arrest. The officer, when he approached the man and questioned him, no doubt suspected he had intoxicating liquor in his package, and the accused may have thought he was under arrest because of his guilty knowledge, and the officer’s questions, but we do not think these facts and circumstances are sufficient to show an arrest before the accused admitted his package contained liquor.
Was the arrest that was made after the admission legal?
It was if the accused had committed a crime in the officer’s presence or view, and the officer knew it. When the accused admitted that he had two gallons of liquor on his person, did the officer have a right to assume that the liquor was intoxicating? We think there is no doubt that the word “Liquor”, in common usage today, means intoxicating liquor, and the officer was, therefore, justified in believing that it was of that character. The accused had, at the time of his arrest, more than one quart of intoxicating liquor in his possession, and was, therefore, violating the law. And when he admitted that he had in his possession
Under the common law, and under the law of this State, a peace officer has a right to arrest without a warrant any person who commits a breach of the peace in his presence or within his view. 2 R. C. L. 447, 448; State v. Krakus, 5 Boyce 326, 93 Atl. 554; State v. Mills, 6 Penn. 497, 69 Atl. 841.
To justify an arrest, without a warrant, where the offense charged or suspected is a misdemeanor, it is necessary that it should have been committed in the presence of the officer, or, as some courts express it: the officer must actually see the offense committed. It is true, as stated in Pricket v. Ridgeway, 25 S. E. 608, that the officer has no authority, upon mere suspicion, or upon mere information derived from others, to arrest a citizen and search him in order to ascertain whether or not he is carrying a concealed deadly weapon. But if in that case the defendant had admitted to the officer, before his arrest, that he had on his person concealed, a deadly weapon, it is hardly conceivable that the Court would have held the arrest illegal. The words, “in his presence”, could not be construed so strictly, and technically. The law requires that the offense shall be committed in the officer’s presence so that a citizen shall not be arrested on suspicion, information or mere belief. To justify the arrest, without a warrant, the officer must know an offense had been committed, and he can obtain that knowledge, not only from seeing the act committed, but also from what he actually sees together with the admission of the accused.
In the instant case the arresting officer had been told that the defendant was violating the liquor law, but that was not enough to justify his arrest. The officer found the defendant on the street carrying a package which was believed to contain intoxicating liquor. The officer asked the defendant what he had in his package, and he said, “Liquor, two gallons”. With that admission the knowledge of the officer was just as complete and certain as though he had caught the defendant holding in his hand a bottle
If the defendant’s arrest was legal the search of the prisoner after his arrest was also legal. This is not denied; in their brief counsel for the defendant say:
“It is conceded that the police have a right upon making a lawful arrest without a search warrant, to search the person of a suspect and to seize any instrument or evidence of crime thus discovered. But such incidental right is predicated absolutely upon the arrest having been lawful. As the offense in the case under consideration was not committed in the presence of the officer, in legal contemplation, the arrest was illegal and consequently the search incidental thereto was illegal”.
In the case of Weeks v. U. S., 232 U. S. 381 (392), the Court, in stating what the case was, said: “It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidence of crime".
Defendant’s petition is, therefore, dismissed.
