Opinion
No. 39157.
June 11, 1945. Rehearing Denied, July 2, 1945.
1. SEARCHES AND SEIZURES: Criminal Law: Defendant Not at Home: Search Not Illegal. The fact that defendant was not at home when a search was made of his premises under a search warrant does not render the search illegal.
2. SEARCHES AND SEIZURES: Criminal Law: Probable Cause Shown. The affidavit of the prosecutor stated facts and showed probable cause to justify the issuance of the search warrant.
3. SEARCHES AND SEIZURES: Criminal Law: Stolen Property Properly Seized. Being legally on defendant's premises under a search warrant looking for a still, the officers had the right to seize stolen property which they found on the premises.
4. SEARCHES AND SEIZURES: Criminal Law: Fictitious Basis for Search Warrant Not Shown. No evidence was offered to sustain the contention that fictitious charges were made to obtain the search warrant.
Appeal from Sullivan Circuit Court. — Hon. G. Derk Green, Judge.
AFFIRMED.
Claude C. Fogle for appellant.
(1) Although the constitutional question as to unreasonable searches and seizures is attempted to be lodged in the motion to suppress here, it is a mere matter of assignment, and no constitutional question is here involved. Raising a constitutional question is not a mere matter of form; the question must really exist, and if it does not exist it is not raised. Ex parte House v. Mayes, 227 Mo. 617; Stegall v. Pigment Co., 263 Mo. 719; Davidson v. Life Ins. Co., 151 Mo. App. 561. (2) The Liquor Control Act is an act unto itself. The search warrant should have been procured under Sec. 4159, Revised Statutes of Missouri, 1939, as lawfully made whiskey purchased by Lucas was all that was being sought. Hence the application and affidavit filed, and the search warrant issued, here, under Sec. 4916 of said statutes, had no facts on which they could be, or were, based, were fictitious, and were used merely as a device and a subterfuge to enter defendant's home, and, once in, the lawfully made and purchased whiskey which all along had been the only object of the search, was seized. The motion to suppress should, therefore, have been sustained, and the court's refusal to do so, was reversible error. State v. Wright, 336 Mo. 135; State v. Rebasi, 306 Mo. 336. (3) Moreover, at the time the appellant's home was searched, the appellant was not there, although his wife was. To search the premises in his absence renders such search and the consequent seizure unreasonable and hence unlawful and void. The motion to suppress should have been sustained on that ground. The court's refusal to do so was reversible error. State v. Richards, 334 Mo. 485; State v. Wilkerson, 349 Mo. 205. (4) The search warrant and the seizure thereunder being void, no article so seized thereunder, such as the pasteboard box, could be retained and used by the court as evidence, as against a timely proceeding for its return. Hence, the use of the paste board box in evidence here was improper, and it should have been restored to the appellant and his motion to suppress sustained. The court's refusal to do so constitutes reversible error. State v. Lock, 302 Mo. 400; State v. Pierce, 269 Mo. 406. (5) When the objection was raised by the appellant in his motion to suppress, as to the use of the paste board box in evidence against him (none of the other property seized under the search warrant here being offered in evidence against him) and such objection was overruled by the action of the court in overruling the action to suppress, similar objections to the use of such pasteboard box in evidence would be useless as the court had already by its ruling on the motion to suppress signified that it would overrule such objections if made, and such objections, therefore, need not be made in the trial of the cause. State v. Turner, 110 Mo. 196; 16 C.J., p. 878, sec. 2201, n. 38.
Roy McKittrick, Attorney General, and Lloyd E. Boas, Assistant Attorney General, J.E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.
The defendant's motion to suppress evidence was properly denied. State v. Stevens, 292 S.W. 36; State v. Naething, 300 S.W. 892; State v. Charles, 8 F.2d 302, 1 S.W.2d 837; State v. Coleman, 302 Mo. 646, 259 S.W. 431.
Appellant was convicted in the circuit court of Sullivan county, Missouri, on a charge of burglary and larceny and sentenced to serve three years' imprisonment for the burglary and two years for the larceny. He appealed.
The only points briefed by appellant pertain to the issuance of a search warrant and the evidence obtained in the search made pursuant thereto. These points were raised by a motion to suppress the evidence. It will be necessary to review the evidence introduced at the trial which was substantially as follows: Otto Lucas owned and operated a retail store in Greencastle, Sullivan county. He had on hand a quantity of whiskey and other merchandise. On the evening of November 29, 1942, Lucas left his store at about 8:00 P.M. and returned about two hours later, when he [665] found that the lights had been turned out and a coal chute broken open. An investigation revealed that twenty-seven cases of whiskey valued at $685.00; eight cartons of cigarettes valued at $10.00 and $80.00 in cash were missing. A witness for the state testified that he saw appellant walking in the street near the store building shortly after 8:00 P.M. on the night in question. Two other witnesses testified that they saw two men in the store on the night in question at about 9:00 o'clock and that they recognized appellant as one of these men. A number of witnesses testified of having seen appellant on the highway near Greencastle on that night. Another witness testified that appellant visited him about three weeks after the alleged theft and that he saw a number of cases of whiskey in appellant's truck; that it was Schenleys whiskey, the same brand as the whiskey stolen from the store. The only article obtained in the search and introduced in evidence was a pasteboard box which was marked Exhibit E. Lucas, owner of the store, testified that the exhibit was in his store when he last saw it and contained twenty-four pints of Schenleys Red Label Whiskey; that he checked the serial numbers and wrote the number 286421 on the box at the time the shipment was received; that that number appeared on Exhibit A. A witness testified that he was employed at the wholesale house dealing in Schenleys whiskey and that a case of such whiskey bearing that number had been sold to Lucas in October, 1942.
Appellant filed a motion to suppress the articles obtained under the search warrant wherein he relied upon the following two grounds to suppress the evidence. First, that the defendant was not at home at the time the search was made; second, that the search warrant issued under the provisions of sec. 4916, R.S. Mo. 1929, Mo. Rev. St. Ann., was not supported by a proper application and not supported by evidence showing probable cause as required by law. The evidence in support of the motion to suppress was substantially as follows: As to the first point, the evidence disclosed that appellant's wife was home when the search was made, but that appellant was not. As to the second point, it showed that the application for the search warrant was made by the prosecuting attorney of Adair county, Missouri, in which county appellant lived. In this application it was stated that the prosecutor "upon his oath states that at and in a certain building, structure motor vehicle and conveyance hereinafter described in the said County and State, intoxicating liquor is being unlawfully manufactured, sold, stored, kept and transported, and that thereat and therein is being used and kept a still, doubler, worm, worm tub, mash, mash tub, fermenting tub, and certain vessels, fixtures and equipment and parts thereof used and fit for use in the unlawful manufacture and production of intoxicating liquor, . . ." No oral testimony was offered. The search warrant was issued solely upon the sworn application of the prosecutor. The evidence further disclosed that in the search no evidence of any unlawfully manufactured whiskey was found. Exhibit E, offered in evidence in support of the burglary and larceny charge, was found and also a quantity of Schenleys whiskey. The whiskey was later returned to appellant, but Exhibit E was retained by the officers. Appellant in his brief, urging that the search warrant was illegal because appellant was not at home at the time, cited two cases: State v. Richards, 334 Mo. 485, 67 S.W.2d 58 and State v. Wilkerson, 349 Mo. 205, 159 S.W.2d 794. In the Richards case the charge was murder committed in the perpetration of a robbery. The search warrant described a .38 caliber revolver. Such a revolver had been used in the robbery. The home of appellant was searched. A .32 caliber revolver and a sheepskin coat were taken. This court held that the .32 caliber revolver and the sheepskin coat were illegally taken under the search warrant because they were not mentioned therein, had no connection with the crime charged and were not contraband per se. 67 S.W.2d 58, l.c. 61 (5-7). The fact that appellant was not at home at the time was mentioned to show there had been no waiver of the search. The same is true of the Wilkerson case. The evidence disclosed that the defendant was not at home, but that the wife of defendant gave consent to the search. It was held by this court that the wife could not waive the defendant's rights in this regard. The opinion does not hold that the trial court should have sustained or did sustain the motion to suppress on the ground that appellant was not at home. The applicable rule is stated in 56 C.J. 1241, sec. 160:
[666] "Since the service of a warrant for the search of premises is sufficient when made at the place designated in the warrant, it is not necessary to the validity of a search and seizure that it be made in the presence of accused; hence the effect of the warrant cannot be avoided by accused by absence when the warrant is executed. Nor is it necessary that service of the warrant be made on the owner of the premises when in jail."
As to the second point, appellant urges that the search warrant was void because the record disclosed that no sufficient affidavit or evidence was offered to show probable cause. To this we cannot agree. The allegations contained in the application, duly sworn to by the prosecutor, were not based upon his information and belief, but were stated as facts. Such an application is sufficient to support the issuance of a search warrant. It was expressly so held in State v. Naething, 300 S.W. 829, l.c. 831 (1) (2-5), 318 Mo. 531; State v. Brugioni, 320 Mo. 202, 7 S.W.2d 262, l.c. 263 (1-3).
We must, therefore, conclude that the officers executing the search warrant were legally on appellant's premises for the purpose of searching for illegally manufactured whiskey and utensils used in the making of illicit liquor. Being on the premises legally for that purpose, did the officers have the right to seize stolen property found on the premises? We think so. Possession of the stolen property was unlawful per se. It was therefore contraband and subject to seizure when discovered by the officers legally on the premises. 56 C.J. 1166, also page 1244, sec. 164, and the following cases which sustain our ruling; State v. McKindel, 268 (Wash.) Pac. 593; United States v. Old Dominion Warehouse, 10 F.2d 736, l.c. 738 (2, 3).
Appellant in his brief insists that the bases for obtaining the search warrant were fictitious and were used merely as a device and subterfuge to enter defendant's home, and that after being in the home the lawfully made whiskey, the real object of the search, was seized. Suffice to say on this point that it was not covered by the motion to suppress and no evidence was offered to sustain that charge. It is therefore not before us for review. The evidence in this case was certainly sufficient upon which to base a search warrant for the purpose of searching appellant's premises for the stolen property. Why a search warrant was obtained under the provisions of the liquor control statute the record does not disclose and we are not in a position to decide that question. The record proper, that is the information, arraignment, selection of jury, trial, verdict and sentence are in proper form.
The judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.