Opinion
No. 32279.
October 12, 1936.
ARREST.
In prosecution for unlawful transportation of liquor, fact that sheriff, when he arrested accused, acted under void warrant did not preclude proof that sheriff was also acting upon probable cause, so that he was authorized to arrest accused and seize liquor being transported, since void warrant could not destroy probable cause sheriff had at time of arrest.
APPEAL from the circuit court of Lafayette county. HON. T.H. McELROY, Judge.
R.L. Smallwood, Jr., of Oxford, for appellant.
The testimony of the officers as to the contents found in the defendant's automobile should have been excluded by the lower court, for the officers had in their possession a search warrant, which if void made the search of the automobile void and the contents found therein inadmissible in evidence.
I have searched the decisions of our state and have been unable to find any decision covering the exact question of law as presented in this case. The specific question of law for this court to determine is: where a sheriff is armed with a search warrant and searches an automobile and the search warrant is void can the state then rely upon section 1976 on the theory that there was probable cause for the search without a search warrant?
It is the position of the appellant that since the sheriff made an affidavit and the justice of the peace issued the search warrant, and the sheriff had the search warrant with him at the time this search was made and noted his proceedings thereon that the state of Mississippi must rely on the affidavit and search warrant itself, and which if void, the contents found in the automobile are not admissible, it being in violation of the defendant's constitutional rights.
It is the position of the defendant that the issuance of the search warrant was a final and conclusive adjudication as to the question of probable cause, and after the search warrant was issued it was the duty of the state to rely solely upon the affidavit and search warrant in making the search of the defendant's automobile, and the trial court erred in allowing the question of probable cause to be gone into and not holding that the state of Mississippi was bound by the terms and conditions of the affidavit and search warrant.
Mai v. State, 152 Miss. 225, 119 So. 177; Hendricks v. State, 144 Miss. 87, 109 So. 263; Loeb v. State, 133 Miss. 883, 98 So. 449; Sykes v. State, 128 So. 753, 157 Miss. 600.
The primary purpose for which section 1976 of the Code of 1930 was passed by the Legislature of the state was to enable an officer to make a search of fast moving vehicles without having to secure a warrant for their search. In the case at bar the record shows that the sheriff had ample time to secure a search warrant and did secure same. The appellant urges that because of the affidavit and search warrant being void, which was so held by the trial court, that the evidence introduced as to the search of the appellant's automobile should have been excluded by the lower court and the court erred in not excluding this evidence.
The court erred in holding that the statements made to the sheriff by his deputy constitute probable cause for the search and in allowing the result of the search to be introduced in evidence over the objection of the defendant.
Mai v. State, 119 So. 177; State v. Messer, 108 So. 145, 142 Miss. 882; Lenoir v. State, 132 So. 325, 159 Miss. 697.
There was no probable cause for this search because no information was received by the sheriff for the information was given the sheriff by his deputy.
Smith v. State, 133 So. 240, 160 Miss. 56.
The court erred in refusing the peremptory instruction requested by the defendant.
Webb M. Mize, Assistant Attorney-General, for the state.
If probable cause exists for the search of an automobile, the search may be made without a warrant, and if a warrant is issued, even though the officer is acting on probable cause, the officer is not required to use the warrant, and if he does use the warrant, his action in so doing is unnecessary, and a probable cause is shown on a trial of the case. The court could not be put in error by allowing his testimony to go in on the authority of sufficient probable cause for the search.
In the case at bar the sheriff testified that he personally knew the defendant. The information that he had was specific. The deputy sheriff submitting the information to the sheriff happened to be the son of the sheriff. The information stated that a car loaded with whiskey was coming toward Oxford and that the car was driven by J.D. Keel. The facts constituting probable cause in the instant case certainly fall within the rule set out in the Lenoir case. The information was so specific that it absolutely identified the occupant of the car, and the owner of the car was a man known to the sheriff making the search.
Lenoir v. State, 159 Miss. 697, 133 So. 325; Moore v. State, 138 Miss. 116, 103 So. 483; Story v. City of Greenwood, 153 Miss. 755, 121 So. 481.
Argued orally by R.L. Smallwood, Jr., for appellant, and by Webb M. Mize, for appellee.
The appellant, J.D. Keel, was convicted in the circuit court of Lafayette county for the unlawful transportation of intoxicating liquor, and sentenced to pay a fine of one hundred dollars and costs, from which this appeal is prosecuted.
Appellant, with others, was seen by a son of the sheriff, who was at that time a deputy sheriff, traveling over the highway of the county in a car containing intoxicating liquor. The deputy sheriff called his father, the sheriff, stating that the appellant was transporting intoxicating liquor and was proceeding toward Oxford, and that if the sheriff would act promptly he would be able to apprehend and arrest the appellant. On receiving this information, the sheriff reported the facts to a justice of the peace and requested the issuance of a search warrant stating that he would make oath to the facts, and instructed the justice of the peace to deliver the warrant to another son who had the same initials as the sheriff, except that he used the word "Jr." after his name. The warrant was issued as requested, and this son signed the affidavit leaving off the word "Jr." to his signature, and then took it to his father, who had gone on the highway between Oxford and Byhalia in Lafayette county. Accompanied by deputies, the sheriff then went north of Oxford, and stationed the deputies up and down the highway in order to apprehend the appellant.
The appellant came along, was hailed by the deputies, refused to stop, and the deputies fired at him, but did not succeed in stopping him. When he came within range of the sheriff, upon failing to stop him, the sheriff fired, puncturing a casing, which caused the appellant's car to stop within a half mile. The sheriff pursued, came upon the car, made a search, and found intoxicating liquor therein. The appellant said the car and liquor were his, and that the others in the car had nothing to do with the liquor. The sheriff arrested the appellant and made affidavit against him for a violation of the law.
The court held that the search warrant thus issued was void, and excluded the affidavit, the warrant, and the sheriff's return from the evidence, but held that if the sheriff was acting upon probable cause, he was authorized to make the seizure of the liquor and to arrest the appellant.
The son who communicated to the sheriff the information was not introduced as a witness by either the state or the appellant. This statement by the son, who was a deputy sheriff, to his father, the sheriff, was positive, and constituted a statement of fact as within the son's knowledge. The sheriff testified that he believed the facts communicated to him; that his son was a credible person, and that he acted upon the information communicated to him.
The appellant contends that the testimony of the officers as to the liquor found in the automobile should have been excluded by the lower court for the reason that the officers had, in their possession, a search warrant which was void, and that when a sheriff procures a void search warrant, he must be limited in his action to such search warrant, and that a sheriff cannot act upon information when the search warrant he has procured is void. It is stated in the argument that this point has not been decided by this court, but that a sheriff cannot act upon a search warrant which he has procured, and also upon probable cause within his knowledge, or information received from credible sources, at one and the same time. We think this contention is unsound. If the search warrant procured, for any reason, is void, it has no legal existence, and the sheriff is remitted to his information constituting probable cause.
Appellant seems to base his argument upon the case of Mai v. State, 152 Miss. 225, 119 So. 177, in which it was held that as between the state and defendant, a judicial finding of an officer issuing a warrant, of the existence of probable cause therefor is conclusive, and cannot be inquired into by the defendant upon his trial. We fail to see that this holding precludes the officer's acting upon information which he had at the time of making the affidavit. The issuance of a void search warrant amounts to nothing, is waste paper, but that does not destroy the probable cause the officer had at the time, or the probable cause which came to his knowledge after the issuance of the search warrant. It is probable cause that authorizes a sheriff to seize a car without a search warrant, and if this cause exists, the fact that he had a void warrant would not affect his right to act upon information constituting probable cause.
Consequently, it was permissible to receive the testimony of the sheriff as to the facts constituting probable cause, and the evidence of the officers as to what was found by the search and seizure.
We find no reversible error in the case, and the judgment of the court below will be affirmed.
Affirmed.