
    SEIZURE OF LIQUOR WITHOUT SEARCH WARRANT.
    Common Pleas Court of Montgomery County.
    Cooney Hartenstine v. The State of Ohio.
    Decided, February 15, 1922.
    
      Authority to Arrest Suspected Persons — Legality of Seizure of Liquor Found in Their Possession — Section 13492.
    Where police officers, acting in good faith and upon bona 'fide information, stop an automobile and arrest its occupants, and upon removal of a burlap sack in the bottom of the machine find jugs of whiskey concealed thereunder, both the arrest and the seizure of the liquor is legal, notwithstanding the officers were not armed with a search warrant.
   Snediker, J.

In this ease Hartenstine makes application for leave to file a petition in error to the judgment of the criminal branch of the municipal court, where he was found guilty and. fined $250 on the charge, that “Cooney Hartenstine, on or about the 19th day of January, A. D. 1922, in the city of Dayton and in the county of Montgomery and in the state of Ohio, did unlawfully transport certain intoxicating liquor, to-wit, whisky, said transportation not being in accordance with, the provision of Title 2 of the act of Congress known as the National Prohibition Act, passed October 28, 1919.”

At the time of his arrest Hartenstine, together with several companions, was driving into the city of Dayton in an automobile in which were two jugs of whisky. The circumstances of the arrest are described by the officer who made it as follows:

“About 9:15 we made out report and the operator told us to be on the lookout for a Ford car, gave us the license number and the four men’s description; stopped them and brought them to headquarters. We went out and the first car we stopped was a Ford Sedan. The second ear corresponded with the number of the license and the description. I didn’t know what the trouble was. I didn’t take any chance on them. Told them to get out. We lined them up; went over to McCook’s and told them I had the men. I asked for machine. He said: ‘Get their machine and drive them down.’ I did. I came down the road then and found a five-gallon jug of whisky and a three-gallon, wrapped in burlap, and a small jug that had something in it, but was empty. I could smell it had liquor in it. We got in the machine and kept watch on the boys coming down.”

In response to questions by counsel for Hartenstine the officer answered as follows:

“Q. Curtains on the ear? A. Yes.
Q. Entirely concealed it from view? A. Yes.
Q. You had to open the curtains to get in the car A. Yes.
Q. What was on top of the burlap sack A. Nothing.
Q. Dark, was it? A. Yes.
Q. You had no search warrant? A. No.”

On analysis by the chemist of the Division of Health of the city, it was found, that the contents of the jug showed fifty per cent alcohol by volume; had the characteristic odor and taste of whisky; had no injurious or poisonous substances and was fit for beverage purposes.

The arrest in this case was made by the police department, acting bona fide on information which induced an honest belief that Hartenstine was in the act of violating the law by transporting intoxicating liquors. Such an arrest as was here made is authorized by Section 13492 of the General Code:

“A sheriff, deputy sheriff, constable, marshal, deputy marshal, watchman or police officer shall arrest and detain a person found violating a law of this state or an ordinance of a city or village until a warrant can be obtained.”

Oftentimes, from the nature of the case, such an arrest may be made and is legal, not only in the sense that it is here authorized by the Code, but for the reason that the Constitution does not forbid an arrest without warrant at such a time. It merely provides special safeguards for the issue of warrants in order to do away with the old practice of general warrants.

In the case of Ballard, vs. State, 43 O. S., page 340, Ballard was convicted of manslaughter. The marshal of Wilmington, acting on information, had arrested him for carrying concealed weapons. There was a resistance by Ballard, and a struggle, during which, by the discharge of Ballard’s pistol, the marshal was killed. Whether the arrest without warrant was authorized was one of the questions of the ease. In the charge to the jury the court had said:

“The point is made by defense that, unless the officer has absolute knowledge that an offense is being committed against the laws of the state, he has no right to arrest without a warrant for a misdemeanor. This claim is not tenable. If the person arrested is, as a matter of fact, in the act of committing such offense at the time of the arrest, and the officer has im formation or knowledge which induces him to reasonable believe, and at the time of the arrest he does believe that such offense is being committed, and the arrest is made on that account, this is sufficient.”

Of this charge the Supreme Court, in its opinion, say:

“Upon a careful consideration of the charge of the court upon this point, we think there is no error,”

• The principal contention of counsel for Hartenstine is that, having no search warrant, these officers, when they made the arrest and found in the automobile the jugs of whisky which were being transported by Hartenstine and which were covered by sacks, in taking the whisky, made an illegal seizure and found it by an illegal search.

The general rule in this behalf is found in 3 Cye., at page 896 :

“After making an arrest an officer has the right to search the prisoner and take from his person, and hold for the disposition of the trial court, any property connected with the offense charged or that may be used as evidence against him, or that may give a clue to the commission of the crime or the identification of the criminal.”

It may here be said that the search of an automobile in which the person arrested is riding, and which he has in his possession, is no more an encroachment on personal privilege or a violation of constitutional rights than the search of the person himself, if the purpose be the same, namely, to assure the officer that he is not mistaken in relying upon his information and belief as to the present commission of an act which is a violation of the law of the state. In Yol. 16 of Cox’s Crinminal Law Cases, page 245, the syllabus, supported by the opinion, reads as follows:

“When a person is arrested for committing a felony or misdemeanor, any property in his possession believed to have been used by him for the purpose of committing the offense may be seized and detained as evidence in support of the charge; and if necessary such property may be taken from him by force, provided no unnecessary violence is used.”

In the case just quoted from, the arrest was under a warrant, but was no more legal than the arrest in the case at bar, which we have already indicated is authorized by the law of this state.

In the case of Holker vs. Hennesey et al, 141 Mo., page 527-539, the Supreme Court says:

“Generally speaking, in the absence of a statute, an officer has no right to take any property from the person of the prigoner except as may afford evidence of the crime charged, or means of identifying the criminal, or may be helpful in making an escape. The officer has the undoubted right to make the search, and considering the nature of the accusation he may, when acting in good faith, take into his possession any articles he may suppose will aid in securing the conviction of the prisoner or will prevent escape. ‘Tie holds all, whether money or goods, subject to the order of the court, which,' in proper circumstances will direct him to restore the whole or a part to the prisoner.’ Bish. Crim. Proe., sees. 211, 212; Wharton, Crim. PI. and Pr., secs 60, 61.
"We find no statute of this state giving the arresting officer authority to search a prisoner, but no statute is necessary. The power' exists from the nature and objects of the public duty the officer is required to perform.”

In the case of North vs. The People, 139 Ills., page 81, the 23 syllabus reads:

"The guaranty of the constitution in regard to search warrants applies only to cases where the purpose of obtaining the warrant is to make a search for goods. It has no application to arrests for particular offenses, consisting wholly or in part in having particular property in possession, nor to the seizure of dangerous weapons, in the possession of the party arrested. In such cases the right of seizure is incidental to the right of arrest. ’ ’

In the case of Spaulding vs. Preston, 21 Vermont, page 1, the first syllabus reads:

"The officers of government have authority, derived from the general rights of the government, without any statute whatever upon-the subject, to exercise all necessary force for the prevention of crime, either by the arrest of individuals, or by the seizure and detention of the instruments for committing crime; and'this authority is also extended in many instances, to private persons.”

In the case at bar the thing searched for and the thing found are inseparably identified with the crime charged.

In our opinion, in this case, both the arrest and the search and seizure of the property were legal. The application for leave to file a petition in error therefore is denied.  