State v. Edwards , 311 P.2d 266 ( 1957 )

: ■ POWELL, Judge. :

This is an appeal by the State of Oklahoma on a reserved question of law, from 'an order 'of the district court of Tulsa County wherein a motion of John Bill Edwards, defendant, to suppress evidence of the violation of prohibitory liquor laws obtained by a claimed insufficient search war-rent, was sustained and a judgment of “Not guilty” was entered in favor of the defendant.

' The record discloses that deputy sheriff William L. Bliss swore to an affidavit and 'application for a search warrant for intoxicating liquor before one of the judges of the court of common pleas of Tulsa ■County, describing a certain specific motor ■vehicle sought to be searched. A search warrant was thereupon issued, and thereafter the deputy sheriff executed said ■search warrant by causing the car described to be stopped on the streets in the city of Tulsa, searching the same, and seizing a -large' quantity of tax-paid whiskey and mother liquor. The driver of the car, John Bill Edwards, the defendant, was placed .under arrest and was charged With unlawful possession of intoxicating liquor,' second; and subsequent offense..

¡ .A preliminary information was filed in the court .of common pleas of Tul'sa'County, charging the defendant with unlawful pos¡session'of intoxicating liquor, se'cond and subsequent offense. Thereafter, a “Motion to suppress”, and later a “Supplemental motion to suppress” were filed,- attacking the 'sufficiency, of the affidavit and the search warrant. These motions.were over:-' ruled by the examining magistrate, a preliminary hearing was held and the defendant ' bound over for trial in the district court.

- ■ In the district court the defendant filed a “Motion to quash information”, and a “Motion to suppress”. He apparently abandoned the first motion, but urged his motion to suppress.

■' On stipulation, the transcript of the proceedings held, in the- court of common pleas ¡was admitted in evidence in the district .court, and considered by the court in ruling on the defendant’s motion to suppress filed in that court.

, The district court, after ■ reading, the transcript of the proceedings ; had before ■the examining magistrate at the preliminary hearing, rendered a written opinion or judgment, sustaining the defendant’s motion to suppress, and on stipulation that said transcript be considered by the court as the evidence in the case, found the defendant not guilty.

Reversal is sought. by the State as to certain questions of law involved and ruled on adversely to the State. Three propositions are advanced that shall be, considered ■in the order presented.

. It 'is first argued “That the trial court erred in considering incompetent, irrelevant and immaterial evidence admitted at the preliminary hearing over the objections of .the State, in drawing its findings of fact and conclusions of law.”

■ Under the above proposition it is pointed .out, as we have already recited, that thé only testimony before the district court was that introduced at the preliminary hearing. At the preliminary the examining magistrate, over the objections of counsel for the State, permitted defense, counsel to cross-examine -deputy sheriff William L. Bliss- in an effort -to show that at the time lie 'Signed the affidavit for a search warrant Jie. -actually knew the name of the owner of the automobile that he sought to search, ánd for such reason should have disclosed the name rather than naming the operator “John Doe”. Witness admitted that he had known the defendant prior to the time of the filing of the affidavit for a search warrant, and knew the car that he drove.

It is argued that the trial court should have rejected from its consideration the evidence in question as incompetent, where timely objection was made by the county attorney. Cited in support of such contention are the following cases from this court: Nance v. State, 50 Okl.Cr. 17, 294 P. 1097; Davidson v. State, 52 Okl.Cr. 305, 4 P.2d 131; Rausch v. State, 65 Okl.Cr. 52, 82 P.2d 687; Wagner v. State, 72 Okl.Cr. 393, 117 P.2d 162.

In the Nance case this court in paragraph one of the syllabus, said:

“Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of affiant’s information or the means by which it was obtained.”

Counsel for the defense agrees that the cited cases support the State’s proposition, but asserts that the facts in the within, case bring it within the holding in the case of Lee v. State, Okl.Cr., 297 P.2d 572, arguing that the question of whether or not deputy sheriff Bliss knew the defendant prior to signing the affidavit for a search, warrant was first opened up by the State. We have carefully read the evidence and do not find that the questions asked by the county attorney justified the cross-examination complained of. It is true that the defense did call this officer as a defense witness and on cross-examination the State sought to show by him the name of the person in whom title to the automobile described in the search warrant was regis-' tered. The'court did not permit the witness to answer, probably on-the ground that the questions- posed did not -constitute proper cross-examination.

In the Lee case the affidavit for the search warrant was made by the sheriff of Caddo County on information furnished him by the chief of police of Anadarko. The court approved the affidavit and search warrant as to wording, but the county attorney and the court permitted counsel for the defense to go back of the affidavit and show that the affiant sheriff actually had no personal knowledge of the matters positively sworn to, but in fact made the affidavit upon information and belief. That case does not govern for the reason that in the within case the county attorney interposed timely objections.

It is next urged that .“The trial court erred in ruling that the affidavit for search warrant and the warrant were defective and insufficient because they were issued in the name of John Doe.”

Most of the cases from this court dealing with “John Doe” warrants involve‘the search of residential or commercial buildings, or real estate. The same protection afforded a home against unreasonable search and seizure, Art. II, § 30, Okl. Const., has been held to apply to one’s motor vehicle. Strong v. State, 42 Okl.Cr. 114, 274 P. 890; Bush v. State, 64 Okl.Cr. 161, 77 P.2d 1184.

This court has many times ‘held that where an affidavit for a search warrant under the prohibition liquor law particularly describes the place to be searched so that no discretion is left to the officer making the search, the description of the place will be sufficient. Cahill v. State, 38 Okl.Cr. 236, 260 P. 91; Ross v. State, 38 Okl.Cr. 252, 260 P. 90; Hughes v. State, 78 Okl.Cr. 240, 147 P.2d 176.

We have also said that if the name of the party owning or occupying the premises to be searched is known, it should be stated' in the affidavit and in the search warrant,but that it is not absolutely necessary,' where the place is otherwise particularly described. Gransbury v. State, 64 Okl.Cr. 423, 82 P.2d 240; Crim v. State, 68 Okl.Cr. 390, 99 P.2d 185. See in this connection: United States v. Diange, D.C., 32 F.Supp. 14; United States v. Fitzmaurice, 2 Cir., 45 F. 133; Dixon v. United States, 5 Cir., 211 F.2d 547; Prater v. Commonwealth, 216 Ky. 451, 287 S.W. 951; Egner v. Commonwealth, 217 Ky. 503, 289 S.W. 1108; Henry v. Commonwealth, 312 Ky. 491, 228 S.W.2d 32.

. While with the elimination of the improper cross-examination of deputy sheriff Bliss it, is doubtful that the evidence was_ sufficient to show that -affiant actually knew, that the automobile- in question was owned by the person found driving it at the time of the service of the search warrant, it did have a state tag and it requires no great effort' to'ascertain irom the Oklahoma Tax Commission the name of the person to whom the tag was' issued. It is true, no doubt, as argued by the State, that major, dealers in illicit intoxicants use delivery boys; and that' an officer could never be sure as to who might he driving a specific' vehicle at any given time, still it seems to us that the proper practice should be to name' the registered owner and thén add; “John. Doe” to take in any person who might be driving the car. This thought is in line with previous expressions from this court. See: Denmark v. State, 71 Okl.Cr. 424, 112 P.2d 437, 113 P.2d 608; Vincent v. State, 75 Okl.Cr. 116, 129 P.2d 196; Hammons v. State, 80 Okl.Cr. 33, 156 P.2d 379.

We do not find where this court has ever held, in spite of its criticism of John Doe warrants, that the failure to state the name of the actual owner of a motor vehicle to be searched would constitute reversible error.

But defendant argues that in the search of a motor vehicle it may be said that it involves the search of a person as well, and that where a warrant is sought for the search of any person, such person must be, particularly described in the affidavit for search warrant. State v. Skelton, 36 Okl.Cr. 377, 254 P. 754. Whether an officer is searching a home or a motor vehicle, he has a right to search persons in the home or in the motor vehicle for firearms, for his protection, if by the circumstances confronting him such is indicated as necessary;

In the case of Hines v. State, Okl.Cr., 275 P.2d 355, 356, 47 A.L.R.2d 1440, this court held:

“1. A search warrant describing an automobile by its license number is a sufficient authority for the search of a vehicle bearing such number.

“2. It is not essential to the. validity - for the search of an automobile that the name of the owner of the automo- , bile be given in the search warrant.”

. In the,.Hines case it was not developed that the sheriff knew that the automobile belonged to the defendant. The. sheriff did not obtain the search warrant. McCann v. State, 87 Okl.Cr. 387, 198 P.2d 436, cited in the opinion.

In the McCann case it was pointed out that there is a distinction in the decided cases between those cases where a warrant is issued for the search of property, and for the search of a person, citing Chronister v. State, 73 Okl.Cr. 367, 121 P.2d 616.

From a consideration of the cases, it is the opinion of this court that while it is the better practice when the search of a motor vehicle is sought, to name the ovvner in affidavit for search warrant and in the search warrant, with the name of any unknown driver as “John Doe:”, we conclude that where the affidavit for search warrant' and search warrant are otherwise sufficient,' it is not essential to the validity for the search of an automobile that the name of' the owner be given in the search warrant.',

It is, finally urged that “The trial court erred in holding that the affidavit for search warrant.does not contain sufficient-evidential facts to authorize the issuance of a search warrant.”

Counsel for the State says that the affidavit in question is the same that has been - used in Tulsa County for many years as a. basis for the search of motor vehicles: . A, copy is made a part of the casemade. We; note that while there are blanks in the affidavit for the purpose of filling in facts peculiar to the particular case, that none have been made use of other than the filling in of the description of the motor vehicle to be searched, the name “John Doe”, signature of affiant, and date.

Counsel for the defendant contends that the affidavit for search warrant and the search warrant are insufficient, being issued on the basis of information and belief. It is urged that the affidavit simply contains conclusions of the affiant and fails by any stretch of the imagination to set out evi-dentiary facts within the knowledge of affiant, and that such has uniformally been held insufficient, citing Hannan v. State, 29 Okl.Cr. 203, 233 P. 249, and Southard v. State, Okl.Cr., 297 P.2d 585.

In the Southard case we attempted to review the cases from this court on the subject, and it would be most difficult for us to state the rule in clearer manner than therein set out in paragraphs two to six, inclusive, of the syllabus.

It is true that the difficulty comes about in applying the law to the facts of a particular case. This is forcibly illustrated by the Hannan case, February 1925, and Smith v. State, April 1925, 30 Okl.Cr. 144, 235 P. 273, 274. The same judge wrote both of these opinions. He frankly stated that “it seems to us that the affidavit in the Hannan Case is on one edge of the twilight zone, and the affidavit here [Smith case] is on the other edge.”

The case of Griffin v. State, 95 Okl.Cr. 421, 246 P.2d 424, 426, relied on by the State to support its contention that the affidavit in the within case is sufficient, would appear to be on the same edge of the twilight zone mentioned by Judge Bessey in the Smith case, for while in the Griffin case the affidavit was on an identical printed form as in the within case, there had been added in the blanks, allegations of affiant that he considered additional and peculiar to the case, to-wit:

“ T know that Winnie Johnson [owner of the automobile] and John Doe are delivering whiskey on the streets and alleys in the City of Tulsa in this automobile. I know that Winnie Johnson retails whiskey.”

If there is one thing the Griffin case illustrates it is that this court will try hard to uphold an affidavit for a search warrant and a search warrant if it can from the language used possibly be concluded that evidentiary facts are set out. Illustrations of such fact may be gleaned from a study of the cases cited in the Southard case. And while a printed form has been approved by this court, see Shiever v. State, 94 Okl.Cr. 37, 230 P.2d 282, and Southard v. State, supra, it is difficult to imagine a printed form that would apply to every motor vehicle. The facts in each case are bound to vary.

It is argued that to require the affiant to swear to evidentiary facts would force him to commit perjury. Such argument is an admission that some officers signing an affidavit do so solely on hearsay. Possibly information given by some spotter or informer that might be true or might be wholly false. The person signing an affidavit for a search warrant should make some inquiry, should become convinced from what he sees and learns that there is basis for the search. A moving vehicle presents a greater problem than stationary property, a house, commercial building, etc., but it is not insurmountable. The vehicle may be seen moving along alleys, stopping at hotels, rooming houses, and places where whiskey is used and may even be obtained. The driver or companion may be seen taking packages in. This would not justify an officer in making an arrest where it could not be determined from observation whether or not the packages might as likely contain shoes or other merchandise. However, such surreptitious maneuvers by known bootleggers, along with other facts peculiar to the case, would justify a -magistrate in issuing a search warrant. The facts peculiar to the particular case could be added in the blanks left for such purpose. We do not think that is asking too much, or placing an undue hardship on the officers.

We must keep in mind what we. have heretofore said, that once the magistrate is satisfied that probable cause has been shown and issues the warrant, one will not be permitted to go behind the affidavit and show that the officers did not have sufficient knowledge of the charges alleged in the affidavit.

This principle came about, as pointed out in the Southard case [297 P.2d 588]:

“* * * for the reason that an examining magistrate has been recognized as something more than an automaton. It is his duty .to examine the affidavit presented to see whether or’ not it fulfills the requirements of the law, and not only that, to determine that the person presenting' the affidavit knows its contents and wants to and does swear to the same. It is a solemn •' instrument, not to be -lightly made, be-' cause it is the key that opens the citizen’s • door to the officers to search his home, or his place of business for evidence of the crime that may be charged. It is the vehicle provided by the Constitution that permits the invasion of the citizen’s privacy. Therefore we have said that the affidavit and search warrant should be strictly construed [citing cases]; though a technical construction should not be placed thereon-which destroys the true meaning [citing cases].”

The pertinent portion of the affidavit complained of reads:

“William.L. Bliss, being'first duly sworn, upon oath -deposes and says: That certain intoxicating liquor is being sold, stored,- transported, given away, and otherwise furnished; and is being kept for the purpose of being ■sold, stored, transported, given away, and otherwise furnished in violation of the prohibitory laws of the State of Oklahoma; the kind and description of-, said, intoxicating -liquor being as fo-1-lows, 'to-wit: Wine, Beer, Whiskey and Other Intoxicating Liquor, -and imitations thereof .and ■ .substitutes .. therefor, the exact quantity thereof being unknown.

“That said intoxicating, liquors are being disposed of and kept by one John Doe, whose more full and' correct name is to affiant unknown, in the manner aforesaid, in and/or on the following described motor vehicle, situated in Tulsa County, Oklahoma, to-wit: A certain 1955 Mercury Coupe, bearing 1956 Oklahoma license No. 37-269 which said motor vehicle is be- ' ing used in secreting, storing and transporting intoxicating liquors in and on the streets and alleys of the City of Tulsa and the highways ánd roads of Tulsa County, Oklahoma.”

We conclude that the trial judge in the' district court correctly analyzed Southard v. State, supra, and the cases cited, and applying the principles therein announced held the above affidavit to be insufficient. Some facts stated in the affidavit particularly applicable to John Bill Edwards and the use of the automobile in question-could easily have turned the scales and required approval.

By reason of the defects in the affidavit for the search warrant and the -warrant, the question reserved by the State is resolved in favor of the defendant in error.