Opinion
No. 34427.
May 12, 1941.
1. CRIMINAL LAW.
Where night watchman, who suspected that beer was being served in back room of restaurant located in county wherein sale of beer had been outlawed, entered restaurant without search warrant and upon being informed that back room was a private place went to back of building and from position on back porch observed sales of beer in the room, testimony of the watchman, who did not make an arrest until two days later, concerning what he saw while he was on back porch was not admissible in prosecution of restaurant operator for complicity in the illegal sale of beer, on ground that night watchman had right to go onto porch for purpose of making an arrest for misdemeanor being committed in his presence (Laws 1924, chap. 244).
2. INTOXICATING LIQUORS.
The right to make search for intoxicating liquors on probable cause and without a search warrant is applicable only to the search of an automobile and other means of transportation mentioned in statute (Laws 1924, chap. 244).
3. CRIMINAL LAW.
Where night watchman, who suspected that beer was being served in back room of restaurant located in county wherein the sale of beer had been outlawed, entered restaurant without search warrant, and upon being informed that back room was a private place, went to back of building and from position on back porch observed sales of beer in the room, the watchman who made no arrest at that time was a "trespasser" while on the back porch, and information gained while there was illegally obtained and was inadmissible in prosecution of operator of restaurant for complicity in the illegal sale of beer.
APPEAL from the circuit court of Calhoun county, HON. T.H. McELROY, Judge.
W.O. Lawrence, of Bruce, for appellant.
Appellant is within the protection of the rule in Tucker v. State, 90 So. 845, 128 Miss. 211, as violating the rights of the citizen under Sections 23 and 26 of the Mississippi Constitution of 1890, and of Amendments 4 and 5, Constitution of the United States, and especially within the protection of the rule as laid down in Butler v. State, 101 So. 193, 135 Miss. 885.
The officer went around on the back porch of the premises of the appellant, L.W. Martin. He did not go there to make an arrest, but for the purpose of obtaining evidence upon which he could base a charge of crime. He was a trespasser, and his evidence was plainly inadmissible. It was the unlawful invasion of the premises that disarmed the officer of his commission and made him a plain trespasser.
Falkner v. State, 134 Miss. 253, 98 So. 691; Fairmount Athletic Club v. Bingham, 61 Miss. 419; Orick v. State, 140 Miss. 184, 105 So. 465; Polk v. State, 167 Miss. 506, 142 So. 480; Duncan v. State, 152 Miss. 209, 119 So. 179.
Even though Officer Herring stated that this kitchen was a public place, this does not within itself make it a public place, and even though people might be served foods or drinks in the kitchen by permission, or without permission by L.W. Martin, it does not make this kitchen a public place, and when Officer Herring stood on the back porch and peeped into this kitchen, through a window, he was then a plain, ordinary trespasser, without authority of law, on said premises, and anything Officer Herring observed or heard while so standing on this back porch or sitting on the back porch, a private place, was not admissible as testimony against this defendant.
A.M. Byrd, Assistant Attorney General, for appellee.
The nightwatchman and police officer had a right and duty to arrest without a warrant anyone committing a misdemeanor in his presence.
Secs. 1065, 1227, Code of 1930.
A misdemeanor was committed in his presence when it was apparent to any of his senses.
Baldwin v. State, 175 Miss. 316, 167 So. 61; Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 346; Garske v. U.S. (C.C.A.), 1 F.2d 620, 623.
For the purpose of furthering his effort and intention of making an arrest for the misdemeanor committed in his presence, the night watchman and police officer had a right to go upon the private premises of the appellant.
Monette v. Toney, 119 Miss. 846, 81 So. 593.
The nightwatchman and police officer, in determining whether or not he had the right to proceed to make an arrest for the misdemeanor committed within his presence, had the right to act upon appearances which amounted to probable cause.
Forsythe v. Ivey, 162 Miss. 471, 139 So. 615.
Whatever conveyed to the nightwatchman and police officer, as a reasonably prudent man, through any of his senses, the belief that the misdemeanor was being committed, as it was being committed, in the back room of the cafe amounted to probable cause, warranting him in proceeding upon the private premises of the appellant for the purpose of furthering his intent to arrest and convict the appellant for the commission of the misdemeanor.
Baldwin v. State, 175 Miss. 316, 167 So. 61; White v. State, 159 Miss. 503, 132 So. 599; Goodman v. State, 158 Miss. 269, 130 So. 285; Schillings v. State, 151 Miss. 361, 118 So. 137; Daniels v. City of Gulfport, 146 Miss. 517, 112 So. 686; Holmes v. State, 146 Miss. 351, 111 So. 860.
The nightwatchman and police officer in the case at bar having probable cause to arrest the appellant and others violating the law in his presence, had the right to remain upon the appellant's premises for the purpose of coping with any unlawful practices there taking place.
King v. State, 172 Miss. 610, 161 So. 296.
The appellant was charged with complicity in the sale of beer in Calhoun County, where the sale thereof has been legally outlawed. He operates a cafe in Calhoun City in a building fronting on the courthouse square, and in the front room of which the customers of the restaurant are served. From this room, there is an opening into a back room but where there is no door. On different occasions prior to the alleged sale of the beer here complained of, the nightwatchman, a police officer, visited the front room of the place of business, which was a public place where he had a right to be, and was furnished probable cause for believing that some beverage was being unlawfully sold in the room to the rear, but did not then see any sale made. On the day when the sales involved in this case were alleged to have been made, he went into the restaurant, heard some cans rattled when being pushed against each other in the rear room, and thereupon indicated his purpose to enter that room when the wife of the appellant objected and told him that the back room was a private place. He then went to the rear of the building, got up on the platform of the wash rack at the Pan Am Filling Station, and from this vantage point he looked into the back room through a raised window, and saw persons raising beer cans to their mouths, but did not see any sale made while there. He then went onto the back porch of the building, seated himself by this window, and from that position heard several different persons calling for a can of beer and observed the sales being made. The testimony as to what he saw and heard while seated on this back porch, and having no search warrant for the premises, was objected to as evidence illegally obtained. The objections were overruled, and that action in the trial court is assigned here as error.
The state contends that the testimony was competent both on the ground that he had the right to go onto the porch and even into the back room if he had desired, for the purpose of making an arrest for a misdemeanor being committed in his presence, and for the further reason that he had probable cause to search the premises. But he did not go onto the porch for the purpose of making an arrest, nor did he make one until two days later. He admitted that he went to the rear of the building and onto the porch for the purpose of ascertaining whether a misdemeanor would be committed in his presence. As to whether he had probable cause for believing that beer was being sold is immaterial in this case. The right to make a search for intoxicating liquors on probable cause and without a search warrant is applicable only to the search of an automobile and the other means of transportation mentioned in Chapter 244, Laws of 1924. Moore v. State, 138 Miss. 116, 103 So. 483.
It is further contended that this back room was also a public place since customers were being served therein and there was a counter or table being used for that purpose. Nevertheless, an entrance had been provided at the front of the building to afford access into both of the rooms, and the officer was not authorized to go onto the back porch over which no invitation was held out to the public for entrance to the building. In other words, he was a trespasser while on this back porch for the purpose he had in mind, and the information gained there was illegally obtained and was inadmissible in evidence.
Reversed and remanded.