Ott v State

Ott v State
1939 OK CR 1
86 P.2d 341
65 Okl.Cr. 317
Decided: 01/06/1939
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Searches and Seizures Statutory Provision as to Search Warrants. Section 2638, O.S. 1931, 37 Okla. St. Ann. § 87, provides: No such warrant shall issue but upon probable cause, supported by oath or affirmation, describing as particularly

Page 318

as may be the place to be searched and the person or thing to be seized.

2. Same-Essentials of Affidavit for Search Warrant. It is evident that it was the intention of the framers of the Constitution and the lawmakers to limit the right to search places and premises where a proper affidavit showing probable cause was filed, particularly describing the premises to be searched.

3. Same-Affidavit Held Insufficient Because of Variance in Street Number Describing Premises. An affidavit for the purpose of securing a search warrant to search a building at 218 1/2 West Broadway street, Enid, Okla., is not sufficient to authorize the issuing of a search warrant to search a building located at 219 1/2 West Broadway street, Enid, Okla.

4. Same-Search Warrant Issued Without Authority of Law. The search warrant issued in this case was issued without authority of law, as there was no affidavit as required by our statute authorizing the searching of 219 1/2 West Broadway street, Enid, Okla.

Appeal from District Court, Garfield County; J. W. Bird, Judge.

Ray Ott was convicted of a violation of the prohibitory laws, and he appeals. Judgment reversed.

C. D. Roseman, of Enid, and Charles Swindall, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for the State.

DAVENPORT, P. J. The defendant, Ray Ott, was by information charged in the district court of Garfield county, with a violation of the prohibitory liquor laws of the state of Oklahoma, again and for the third time; was tried, convicted and sentenced to serve a term of two years in the state penitentiary, at McAlester, and to pay a fine of $500 and cost. Motion for new trial was filed, considered, overruled and defendant appeals.

The defendant alleges eight errors committed by the trial court. After an examination of the record it is only

Page 319

deemed necessary to consider the defendant's first assignment of error, which is as follows:

"That the court erred in overruling defendant's motion to suppress the evidence in said cause; to which order and ruling of the court, the defendant at the time excepted and saved an exception."

The affidavit for the search warrant in part is as follows:

"That malt, spirituous, vinous and fermented liquors are being unlawfully kept for sale and are being sold in the building located at 218 1/2 West Broadway street, city of Enid, in Garfield county, Okla., and known as occupants unknown and is being used as a place for storage for such liquors and is a public resort maintained for the illegal sale and distribution of such liquors."

It will be seen the affidavit upon which the search warrant seems to be predicated stated the place to be searched is a building located at 218 1/2 West Broadway street, in the city of Enid, Garfield county, Okla., and known as occupants unknown.

When the search warrant was issued based upon this affidavit, it in part states:

"I find from the affidavit filed and from the evidence of witnesses sworn and examined that there is probable cause to believe that malt, spirituous and vinous liquors are kept for sale and unlawfully sold in a building located at 219 1/2 West Broadway street, city of Enid, and known as occupants unknown, in Garfield county, Okla."

Section 7012, C. O. S. 1921, now 2638, O. S. 1931, 37 Okla. St. Ann. § 87, reads as follows:

"No search warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized."

Page 320

In Preston v. State, 42 Okla. Cr. 372, 276 P. 784, this court had this question before it, and in the second paragraph of the syllabus stated:

"A search warrant authorizing the search of a building at 700 North Hightower street is not authority for the search of a building at 702 North Hightower street."

In United States v. Rykowski, D. C., 267 F. 866, it was held that premises described as belonging to William Kozman, 123 Garfield street, insufficiently described premises at 123 North Garfield street.

In United States v. Chin On, D. C., 297 F. 531, it is held that a warrant authorizing a search of a building at 24 Liberty street, did not authorize the search of a building at 23 Liberty street.

In Miller et al. v. State, 34 Okla. Cr. 103, 245 P. 68, 69, in the body of the opinion the court stated:

"It is evident that it was the intention of framers of the Constitution and the lawmakers to limit the right of search to places and premises where a proper affidavit showing probable cause was filed, particularly describing the premises to be searched." People v. Musk, 221 Mich. 578, 192 N.W. 485; Scogin v. State, 61 Okla. Cr. 348, 68 P.2d 111.

In Leary v. State, 61 Okla. Cr. 298, 67 P.2d 972, in the fourth paragraph of the syllabus the court said:

"Where a conviction is based solely on evidence obtained by an unauthorized search and seizure, admitted over timely objection and exception, the judgment will be reversed."

There are many other decisions from this state construing the statute, and holding there must be a particular description of the place to be searched. It is not deemed necessary to extend this opinion further.

The search warrant in this case authorized the searching of a building at 219 1/2 West Broadway street, Enid,

Page 321

Okla. The affidavit filed to obtain the search warrant described the building as located at 218 1/2 West Broadway street, Enid, Okla. It is not disputed that 218 1/2 was on the opposite side of the street from 219 1/2. The search warrant in this case was issued without authority of law and not supported by an affidavit as required by the statute.