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(Cite as: 113 So. 541)

TRANUM

v.

STRINGER.

3 Div. 808
Supreme Court of Alabama
June 30, 1927

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action for trespass by Ross Stringer against S.E. Tranum. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, 7326. Reversed and rendered.

 

*542 The facts are stated by the court.

Statement.

The complaint claims damages for trespass upon the property of plaintiff, in that the defendant did, on March 13, 1927, without a search warrant, unlawfully search plaintiff's automobile without his consent.

Defendant, by way of confession and avoidance, pleaded:

"That although he did search said automobile without a search warrant as alleged in the complaint, nevertheless the defendant avers that he is and was on March 13, 1927, a deputy state law enforcement officer of the state of Alabama; that as such officer he had received information from a reliable source and he had reasonable and probable cause for believing and did believe that the automobile referred to in the complaint was then and there in the act of transporting intoxicating liquors; that acting upon this information and belief, defendant, in a reasonable manner and using no undue force or threats, stopped said automobile and searched the same for the purpose of ascertaining if said car was transporting intoxicating liquors; that the defendant found that said car contained a one-gallon jug of whisky."

Demurrer to this plea was sustained. The cause was then tried upon the general issue, and heard by the court without a jury upon an agreed statement of facts as follows:

"That the defendant is and was on March 13, 1927, a deputy state law enforcement officer of the state of Alabama, and that as such a part of his duties consists in the enforcement of the prohibition laws of this state; that on March 13, 1927, he received information from a reliable source that the automobile of one Ross Stringer, the plaintiff, was transporting intoxicating liquors; that he considered that he had reasonable and probable cause for believing and he did believe that said automobile was transporting liquor; that acting upon this information he pursued said automobile as it proceeded easterly on Highland avenue in the city of Montgomery, Ala.; and that after he overtook said automobile he searched the same without a search warrant and found that said car contained a one-gallon jug of whisky; that he conducted said search in a reasonable manner and used no undue force or threats; that the plaintiff did not protest against the defendant making said search. It is further agreed that if judgment is entered for the plaintiff that the amount of damages which shall be assessed shall be $500."

Judgment went for plaintiff. Defendant appeals and assigns as error the ruling on demurrer to the special plea and the judgment rendered.

Lawrence H. Lee and Arthur B. Chilton, both of Montgomery, for appellant.

Thos. E. Martin, of Montgomery, for appellee.

Opinion.

BOULDIN, J.

Counsel for appellant, in brief, say:

"The agreed question of law as stated in the agreement signed by counsel and on file in this case is whether a sheriff or other arresting officer or any other person acting under authority of law in the enforcement of the prohibition laws of the state may, without search warrant, lawfully stop and search in a reasonable manner an automobile which he has reasonable and probable cause to believe and does believe is then and there transporting intoxicating liquors, and which automobile was then and there transporting intoxicating liquors."

The first and major inquiry is whether such search is in violation of section 5 of the Bill of Rights incorporated in the Constitution of Alabama, which declares:

"That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation."

The Fourth Amendment to the federal Constitution reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

[1] Clearly enough these provisions of the federal and state Constitutions are in substance the same, and have a common purpose. The federal amendment may be regarded historically as the parent of the like provision in the state Constitution.

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, the Supreme Court of the United States in an illuminating opinion by Chief Justice Taft has fully considered the question of search and seizure without warrant under the National Prohibition Act (U.S.Comp.St. 10138 1/4 et seq.), as affected by the Fourth Amendment.

[2][3][4] We think it fitting to let that court speak for itself. After reviewing numerous statutes and decisions, the opinion proceeds:

"We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, *543 and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." ***

"On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens. ***

"Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. *** But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. ***

"It follows from this that if an officer seizes an automobile or the liquor in it without a warrant and the facts as subsequently developed do not justify a judgment of condemnation and forfeiture, the officer may escape costs or a suit for damages by a showing that he had reasonable or probable cause for the seizure. Stacey v. Emery, 97 U.S. 642 [24 L.Ed. 1035]. The measure of legality of such a seizure is, therefore, and the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."

We consider the principles announced in the Carroll Case entirely sound, and well supported by authorities therein reviewed. There is an obvious distinction between the reasonableness of a search of a dwelling or other stationary building without warrant and the search of an automobile, the most convenient agency of the rum-runner and the getaway criminal in general. In the one case there is no occasion to act without a search warrant; in the other a failure to so act means in many cases the utter impotency of law enforcement.

[5] We find nothing in the public policy expressed in our state Constitution and laws which calls for a construction of section 5 of the Bill of Rights at variance with that given the federal Constitution upon the question in hand. Indeed, the Eighteenth Amendment expressly prohibits the manufacture, sale, or transportation of intoxicating liquors in all the states, and vests the states with concurrent power to enforce it. It declares a national public policy, which carries a duty to the states, the general duty to support and maintain the Constitution of the United States.

[6] Our prohibition laws, with enforcement machinery, and many provisions designed to prevent evasion, are in entire harmony with the spirit of the National Prohibition Laws. Not only "prohibited liquors" but "vehicles of transportation" used in conveying same are declared "contraband." Both are subject to seizure, the liquors for destruction and the vehicle for forfeiture to the state. Seizure shall be made by any enforcement officer "who becomes cognizant of the facts, or who finds liquor in such conveyance or vehicle being illegally transported." Code, 4778.

[7] This alternative mode of expression indicates that the power and duty of seizure is not limited to cases where the officer finds the liquor being transported with the aid of the five senses, but where he "becomes cognizant of the facts"; acquires knowledge from any source which measures up to the requirements of probable cause; such information as leads a careful, prudent man, regardful of the rights of the citizen, to a reasonable belief.

[8] Mere belief, however honest, is not enough. The rash and the unduly suspicious cannot justify upon belief which may to him seem sufficient. There must come to him facts from sources which a prudent man deems reliable, and of sufficient probative force to lead such man to a reasonable belief; there must be probable cause to believe.

[9][10] In dealing with the individual case the fact that the automobile upon search is found to be transporting contraband liquors is of decided weight in passing upon the reasonableness of the search without warrant. That the car is in fact contraband tends to verify the information on which the search was made. The officer who acts upon information which proves unreliable, resulting in the stoppage and search of the car of an innocent citizen, carries the full burden of showing probable cause.

[11][12] It seems clear enough that section 4778 of the Code contemplates the seizure of contraband vehicles as well as contraband liquors without a writ of seizure or search warrant. The constitutionality of our statute in this regard has already been declared. Maples v. State, 203 Ala. 153, 82 So. 183; Allred v. State, 205 Ala. 193, 87 So. 842.

[13] The provisions of Code, 4748 et seq., dealing with search warrants in connection with our prohibition laws, clearly show they are directed to places where liquors are manufactured, sold, kept for sale or storage *544 contrary to law, etc. They do not deal with the matter of searching and seizing automobiles and liquors transported therein.

The Carroll Case above quoted has been followed and distinguished in Agnello v. United States, 269 U.S. 20, 31, 46 S.Ct. 4, 70 L.Ed. 145. See, also, United States v. Lee, 47 S.Ct. 746, 71 L.Ed. 1202. All the federal courts are consistently following the decision in the Carroll Case. See Sheppard's U.S. Citations. In Wilder v. Miller, 190 Wis. 136, 208 N.W. 865, the Supreme Court of Wisconsin, with the same constitutional search and seizure provision as ours, approved and followed the Carroll Case.

Supporting decisions collected in brief of appellant's counsel are the following: Houck v. State, 106 Ohio St. 195, 140 N.E. 112; State v. Dinger, 51 N.D. 98, 199 N.W. 196; Quivers v. Commonwealth, 135 Va. 671, 115 S.E. 564; Moore v. State, 138 Miss. 116, 103 So. 483; State v. Duncan, 74 Mont. 428, 240 P. 978; Malmin v. State (Ariz.) 246 P. 548; State v. Hall (Mo.Sup.) 278 S.W. 1028; Welchek v. State, 93 Tex.Cr.R. 271, 247 S.W. 524.

[14] We conclude that under the Constitution and laws of Alabama the sheriff and other law enforcement officers have the same authority to search automobiles without warrant as federal enforcement officers, all subject to the rule of probable cause, as above defined.

The ruling of the trial judge was not in harmony with this decision.

The judgment is reversed and one here rendered in favor of appellant, defendant in the court below.

Reversed and rendered.

ANDERSON, C.J., and SAYRE and GARDNER, JJ., concur.

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