Opinion
No. 36360.
May 12, 1947.
1. ARREST.
A misdemeanor is being committed in "presence of an officer," so as to authorize an arrest, when he acquires knowledge thereof through one of his senses or inferences properly to be drawn from testimony of the senses.
2. ARREST. Criminal law.
Where officer observed that defendant was intoxicated, saw bottle in defendant's coat pocket, and smelled whisky on him, the officer's observation was sufficient to entitle him to make arrest without warrant for misdemeanor being committed in his presence, and officer's testimony regarding defendant's possession of intoxicating liquor was admissible, although officer did not actually see whisky in bottle until bottle was taken out of defendant's pocket.
APPEAL from the circuit court of Neshoba county. HON. PERCY M. LEE, J.
James M. Mars, of Philadelphia, for appellant.
It is a well determined principle of law in this State that one's person cannot be searched with or without warrant. One's person may be searched as an incident to a lawful arrest, and evidence obtained by such search used against the person searched. A lawful arrest for a misdemeanor may be made only when the entire body of the crime is committed in the presence of the arresting officer. Such arrest may not be made merely upon suspicions of the officer.
Canteberry v. State, 142 Miss. 462, 107 So. 672; Patton v. State, 160 Miss. 274, 135 So. 352; Quick v. State, 192 Miss. 789, 7 So.2d 887; Constitution of 1890, Sec. 23.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The sheriff testified that he went out to the place where the appellant lived and called him out of his house, which the sheriff designated as his bootleg joint. As the appellant came out of the house, his coat blew back or was thrown back in some way and the appellant had a bottle of whiskey in his breast pocket which the sheriff saw, and the sheriff stated that he knew before making the arrest that it was whiskey in fact in the possession of the appellant and that he arrested him and then took the bottle of whiskey from him. It was also testified to by the sheriff that the appellant had the smell of whiskey on him and that the bottle which he took from the appellant had been sealed and the seal broken and part of the bottle's contents was in the bottle. That he knew the label of the bottle and knew it was whiskey when he saw the label. The question revolves around whether or not the sheriff knew the appellant was in possession of intoxicating liquor before he took the bottle from the appellant, when it was in the pocket of the appellant, and that there was no authority to search a person for liquor except to search after a lawful arrest had been made. Under the facts in the record the sheriff had probable cause to believe that the appellant was committing a misdemeanor in his presence. All of the circumstances warranted the sheriff in so believing. The presence of liquor can be proven by any of the five senses. The fact that there was the scent of liquor is not in dispute, but if it was in dispute, the jury were the judges of the truth of the matter.
See Butler v. State, 135 Miss. 885, 101 So. 193; Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 346; Quick v. State, 192 Miss. 789, 7 So.2d 887.
Pursuant to a valid warrant for the search of a tourist court for intoxicating liquors, the sheriff called the defendant, H.E. Copeland, out of one of the cabins, which was "down at his bootleg joint" and where he was visiting with one of his guests there. The officer testified that as the defendant came out of the cabin, in a drunken condition, his coat blew back or was thrown back in some way, and that thereupon he saw a bottle in his inside coat pocket, and smelled whiskey on him. The whiskey in the bottle did not extend all the way to the top, that is to say, the bottle lacked two and one-half or three inches of being full to the top, and the officer does not claim to have seen more than two and one-half or three inches of the top of the bottle before he arrested the defendant and took the bottle out of his pocket, but testified positively two or three times that under the circumstances he knew it was whiskey before he removed it from the person of the defendant pursuant to his arrest.
A reversal of the case is sought upon the ground that although the bottle was found to actually contain whiskey after it was removed from the pocket of the defendant pursuant to his arrest, the sheriff did not know that the defendant had whiskey in the bottle and on his person until after he had arrested him; that his statements as a witness to the contrary were mere conclusions on his part. Therefore the precise contention is that the arrest was unlawful and the testimony of the sheriff was incompetent and inadmissible, since it is claimed that the said officer did not actually know that the defendant was committing a misdemeanor in his presence, by having intoxicating liquor in his possession, until after he had arrested him without a warrant.
The sheriff testified as aforesaid that he was then at the defendant's "bootleg joint," and that the latter was drunk at the time; that he saw the label, etc., and smelled whiskey on him; and that he called him out of the cabin for the purpose of making complaint in regard to the defendant's having undertaken to unduly influence or bribe some of the sheriff's helpers, who were assisting him in his efforts to enforce the law.
In the case of Baldwin v. State, 175 Miss. 316, 167 So. 61, 62, this Court held that "A misdemeanor is being committed in the presence of an officer when he then and there acquires knowledge thereof through one of his senses (Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 346), `or inferences properly to be drawn from the testimony of the senses.' Garske v. United States (8 Cir.), 1 F.2d 620, 623."
While the case may be thought to be on the border line, nevertheless, under the announcement of the rule hereinbefore quoted from the case of Baldwin v. State, supra, and under the authorities review and pronouncements made in the well considered case of Garske v. United States, supra, which applies the provision of the Federal Constitution, Amendment 4, in regard to unlawful searches and seizures, we have concluded that the testimony of the sheriff discloses much more than a mere suspicion on his part that a misdemeanor was being committed in his presence and was competent; and that what he saw and observed was sufficient to entitle him to make the arrest, even though the language employed in the cases of Canteberry v. State, 142 Miss. 462, 107 So. 672, and Patton v. State, 160 Miss. 274, 135 So. 352, is somewhat persuasive to the contrary.
The judgment and sentence of the trial court must therefore be affirmed.