Hancock v State

Hancock v State
1926 OK CR 325
248 P. 1115
35 Okl.Cr. 96
Decided: 09/11/1926
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Searches and Seizures Insufficiency of Affidavit for Warrant. A search warrant issued on affidavit made on information and belief, and without stating facts showing probable cause, is illegal.

2. Same Evidence Obtained by Illegal Search Inadmissible. Intoxicating liquors seized under search warrant issued on affidavit made on information and belief is inadmissible in evidence.

3. Same Permission to "Go Ahead and Search" Held not to Waive Constitutional Rights. A statement by defendant, when officers delivered to him a search warrant, to "go ahead and search," did not waive defendant's constitutional rights, where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search premises, but rather as a statement of intention not to resist search under the warrant.

Appeal from County Court, Okmulgee County; W.A. Barnett, Judge.

H.H. Hancock and another were convicted of unlawful possession of whisky, and they appeal. Reversed and remanded, with direction to dismiss.

E.M. Carter and Harland A. Carter, for plaintiffs in error.

The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, J. The plaintiffs in error were jointly charged, tried, and convicted on a charge of unlawful possession of 3 pints of whisky, and in accordance with the verdicts they were each sentenced to confinement in the county jail for 30 days and to pay a fine of $300. To reverse the judgments they appeal, and assign as error that the trial court erred in admitting incompetent evidence over the objections of the defendant, and in refusing to

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strike such evidence, and that the verdicts returned by the jury are contrary to both the law and the evidence, and not supported by either.

The state relied for this conviction on the testimony of M.L. Lairmore and E.T. Mitchell, deputy sheriffs, admitted over defendants' objections that it was obtained by an unlawful search. Their testimony shows that they visited the defendant's place of business in Okmulgee and served a search warrant on the defendant, A.V. Hancock, who said, "Go ahead and search," and that they found more than a quart in pint bottles.

The affidavit upon which the search warrant issued was introduced and showed that it was made by M.L. Lairmore, on information and belief that the defendants did have possession of intoxicating liquor in a building occupied by them as a residence and shop, on lots 1 and 2, block 16, in the city of Okmulgee.

As witnesses in their own behalf, each defendant testified that they did not have any liquor there, and that they did not waive their constitutional rights, and A.V. Hancock testified that a copy of the search warrant was delivered to him, that he did not tell the officers to "go ahead and search."

The trial court held the affidavit upon which the search warrant issued was insufficient as having been made solely on information and belief, and that the search warrant issued thereon was void, but submitted the issue to the jury as to whether or not the defendants waived their constitutional rights.

The precise question presented was determined by this court in the case of Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, wherein it was held that:

"A statement by defendant when officers showed her a liquor search warrant to `go ahead and search' did

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not waive defendant's constitutional rights, where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search the premises, but rather a statement of the intention not to resist search under the warrant."

The search and seizure was made under the authority of the search warrant, a copy of which was delivered to the defendant there present at the time. What this defendant might have said could not have prevented the search. The warrant itself and the return thereto refute all testimony of a waiver on the part of the defendants.

For this reason the court erred in overruling defendants' motion to strike, and their motion for a directed verdict should have been sustained.