Affirmed on rehearing June 30, 1925. ON REHEARING. (237 P. 373.) Defendant was convicted of the crime of having intoxicating liquor in his possession. Timely application was made to the court for return of the whisky taken from him — which in our opinion was equivalent to a motion for suppression of evidence — upon the ground that he was not under lawful arrest and that the search made was in violation of his constitutional rights. The trial court held that the search and seizure were unlawful, but permitted the state, over the objection and exception of appellant, to introduce evidence to the effect that the flask taken from him contained intoxicating liquor. Did the court thus commit reversible error? It is conceded, for which no authorities need be cited, that if the search and seizure were legal, the evidence thereby obtained would be admissible. If the search and seizure were illegal, the admissibility of the evidence depends upon whether this court elects to follow the rule as announced by the federal courts: Weeks v. United States, 232 U.S. 383 (58 L. Ed. 652, Ann. Cas. 1915C, 1177, L.R.A. 1915B, 834, 34 Sup. Ct. Rep. 341); Gouled v. United States, 255 U.S. 298 (65 L. Ed. 647, 41 Sup. Ct. Rep. 261); Amos v. United States,255 U.S. 314 (65 L. Ed. 654, 41 Sup. Ct. Rep. 266, see, also, Rose's U.S. Notes and Supp.); 5 C.J. 395.
Let us consider first the legality of the search, for if it be determined that the same was legal, then the problem before us is solved. At the time defendant was searched the officers did not have a warrant of search or arrest. Justification for the search therefore must be predicated on the right to arrest defendant for a crime committed, or attempted to be committed, in their presence. If the arrest was unlawful, *Page 236 the search was unlawful: 2 R.C.L. 467. The validity of the search does not, however, depend upon the existence of a warrant:Carroll v. United States (U.S.), 45 Sup. Ct. Rep. 280), decided by the United States Supreme Court March 2, 1925; State v. Turner, 302 Mo. 660 (259 S.W. 427). The federal and state Constitutions guarantee protection only against unreasonable search: Amos v. United States, supra; Gouled v. UnitedStates, supra; People v. Case, 220 Mich. 379 (190 N.W. 289, 27 A.L.R. 691); State v. Turner, supra. A lawful search is reasonable, and an unlawful search is unreasonable. It follows, therefore, that he who would search the person of another must do so pursuant to law; otherwise, there is an invasion of his personal liberty and a violation of his constitutional rights. The officers not having a warrant would be justified in arresting defendant only for a crime committed, or attempted to be committed, in their presence. If the arrest was lawful, then the right to search and seize the fruits or instrumentalities of the crime exists without question: State v. Laundy, 103 Or. 443 (204 P. 958, 206 P. 290).
Was a crime, in contemplation of law, committed in the presence of the arresting officers? The facts of this case are lucidly stated by Mr. Justice PIPES, speaking for a majority of the court, on the original hearing, as reported in 231 P. 965, and it is not deemed necessary to restate them at length here. Suffice it to say, Robinson testified:
"I observed he was under the influence of liquor. Q. How did you observe that? A. By the scent and by the way he acted. Q. The scent of what? A. of booze on his breath. * * Well, his face was all flushed up — also, he came up with his overcoat all buttoned up here — his overcoat, it was buttoned this *Page 237 way. * * Q. What did you observe about his conduct in going to the car? A. He walked to me like a man that is under the influence of liquor."
Plunkett testified:
"I observed that he was considerably under the influence of liquor. Q. By what means did you arrive at that conclusion? A. By his actions and by his breath. Q. What about his breath? A. It was pretty strong with liquor odor. Q. What about his face? A. His face showed signs — it was pretty red."
From such observations did the officers have the right to draw the reasonable inference that the defendant was drunk? There are different degrees of drunkenness, but in a legal sense a person is drunk when he is so far under the influence of intoxicating liquor that he is not entirely himself, and his unusual appearance — flushed face and staggering walk — attracts the attention of others: Elkin v. Buschner, 1 Monaghan (Pa.), 359 (16 A. 102); Bouvier's Law Dict. (3 ed.), p. 943. Reasonable cause to believe a person to be intoxicated is sufficient to excuse an arrest without a warrant if such conclusion is based on personal observation: Commonwealth v.Presby, 14 Gray (Mass.), 65; United States v. Rembert, 284 Fed. 996.
"An offense is considered as taking place within the view of a police officer where his senses afford him knowledge that one is being committed." 2 R.C.L. 448.
In 5 C.J. 416 it is said:
"An offense is committed in the presence or view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the acts constituting it, although at a distance, *Page 238 view of such acts as constitute reasonable grounds for arrest being sufficient."
Blakemore on Prohibition (2 ed.), page 487, says:
"Under the federal as well as the state statutes, to justify search and seizure or arrest without warrant the officer must have direct personal knowledge, through his hearing, sight, or other sense, of the commission of the crime by the accused. But it is not necessary that he should actually see the contraband liquor."
Sense of smell is often more unerring than that of sight. Lipton's tea might look ever so much like Scotch whisky and fool many people dependent solely upon sight, but few would be misled through the sense of smell. In McBride v. United States, 284 Fed. 416, federal officers passing along the street smelled the fumes of whisky, and without warrant seized the still located in a building. The court held the crime was committed in their presence and refused to suppress the evidence. In State v.McAfee, 107 N.C. 812 (12 S.E. 435, 10 L.R.A. 607), it was held that where an assault was so near the officer could hear the conversation and the sound made by the blow, it was a breach of the peace in the presence of the officer, although he could not see the parties on account of darkness. The rule is well stated in Ingle v. Commonwealth, 204 Ky. 518 (264 S.W. 1088):
"When the evidence of such commission reaches him through his senses and is sufficient to render the ultimate fact morally certain and it is augmented by other strongly persuasive facts in his possession, all of which is sufficient to convey virtual knowledge to any normal mind that the offense is then and there being committed, he may act upon such information as being tantamount to actual knowledge that the offense is being committed, and *Page 239 if it turns out that he was correctly convinced the arrest will be upheld as one having been made for an offense committed in the officer's presence."
People v. Esposito, 118 Misc. Rep. 867 (194 N.Y. Supp. 326), is much in point:
"Was the arrest lawful? The defendant was all the while committing the crime of having the revolver in his personal possession without a license. Was the crime committed in the presence of the officer? The defendant was on the street a few paces from the officer; all that intervened between the officer and the physical object, the body of the offense, was a brief space and a bit of cloth. To this mere propinquity were joined visible indications in some degree significant. Defendant's glancing at the officer and retreat as described, when the latter appeared to be about to accost him, might reasonably have been considered flight, with its implication of guilt. Personal presence includes corporeal extension within the sphere of sense perception. Presence is not the same as view. To justify arrest without a warrant by an officer for a misdemeanor, the statute requires that the offense be actually committed or attempted in the officer's presence. There is no definite statement of the necessary extent of the evidence conveyed to the officer's consciousness. The purpose of the permission is promptness, to secure apprehension and identification. In the emergency the officer proceeds or tarries at his peril. If he does not act, he may incur penalty of dereliction. If in arresting he makes mistake of law or fact as to the commission of the offense, no matter how clearly apparent to him may seem the doing of the forbidden act by the person arrested, the officer is a trespasser and liable accordingly. Stearns v. Titus, 193 N.Y. 272 (85 N.E. 1077).
"The officer has no judicial immunity for errors of judgment. He must be right or suffer. Therefore, if he is right by ultimate determination, he ought not to suffer, provided only he has acted in good faith. *Page 240 Hence the rule deducible according to the law in this state may be stated thus: If a police officer is in bodily reach of a person then and there actually engaged in the commission of a misdemeanor, and perceiving indications of the commission of the offense sufficient to induce reasonable belief of the fact, acting in good faith, intending performance of duty, proceeds to arrest such person, the arrest is lawful as for the commission of a crime in the officer's presence."
In support hereof see the well-reasoned case of UnitedStates v. Rembert, supra. Viewed in the light of the authorities above cited, we believe that the officers in question, from personal knowledge acquired through their senses, had the right to draw the reasonable inference that the defendant had intoxicating liquor in his possession and that he was attempting to drive an automobile while in a drunken condition. Without doubt he was committing a crime in their presence, for which they had the legal right to make an arrest.
Section 1753, Or. L., defines an arrest as follows:
"Arrest is the taking of a person into custody that he may be held to answer for a crime."
Section 1757, Or. L., provides the manner in which it is made:
"An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer."
When the defendant got into his automobile and started the engine, and the officers stepped on the running-board saying, "Hold on there, Mac, we are going to search the car and you," the arrest as tested by the above statutory provisions was then and there consummated. The defendant certainly was under restraint and undoubtedly submitted to *Page 241 the custody of the officers. He knew them and knew what they intended to do. He also knew that he was guilty of committing a crime in their presence and that he was subject to arrest. He was taken into custody that he might be held to answer for the commission of a crime, and the search that followed was incidental thereto. It is true that he was not held for the crime of being drunk in a public place or driving an automobile while in an intoxicated condition, but the crime for which he was held does not determine the validity of the arrest in the first instance. It is altogether possible that a person might be arrested for one crime and held to answer for another. We know not for what crime the officers contemplated holding the defendant to answer when they took him into custody. It may be the officers decided to hold him to answer for the crime of having intoxicating liquor in his possession when it was actually found on his person but, if such be true, that would not invalidate a prior arrest. If in making a legal search evidence of another crime is discovered, an officer certainly would not be precluded from making an arrest for such offense, even though the accused had been previously arrested for a different crime.
It is urged that the arrest followed, and did not precede, the search. In our opinion it is immaterial whether the arrest preceded or followed the search if such acts were practically simultaneous, and if, in fact, the defendant was guilty of committing a crime in the presence of the officers for which he might have been arrested. In many instances it is dangerous for an officer to go through the formality of stating that the accused is under arrest, and the law does not require him to do so. It is oftentimes safer to act first and talk afterward. InIngle *Page 242 v. Commonwealth, supra, the court, answering a similar contention that "the sheriff did not arrest the defendant at that time, but first made the search," said:
"We seriously doubt if it is based upon sound reasoning, since we are inclined to the belief that a search may always be made without a warrant in all cases where an arrest might be made without a warrant for an offense committed in the officer's presence."
The same question was presented in State v. Reynolds,101 Conn. 224, 125 A. 636, and the court said:
"We think he was justified in securing the bottle of whisky before he placed the accused under arrest. In reality both acts were practically simultaneous, and if the general rule had required the arrest before the search, we should think it far too technical an application of the rule to hold that this search was unlawful because it preceded the arrest by an appreciable moment of time."
We are not unmindful of the duty of courts to safeguard the constitutional rights of the guilty as well as the innocent, and the mere fact in itself that whisky was found in the possession of the defendant would not legalize a search which was unlawful when undertaken. The legality of the search and seizure must be tested by determining whether the officers were justified in making an arrest without a warrant for a crime committed in their presence. If they were so justified, the right of search and seizure follows as an incident of the arrest. If the arrest was unlawful, then it is equally certain that the search was unreasonable, and therefore unlawful. We give no sanction or approval to arrests based upon mere suspicion and hearsay, and *Page 243 exploratory searches cannot be made to obtain evidence upon which to base an arrest. The law requires the arresting officers to exercise prudence and good faith, and will not countenance impudent and unwarranted interference with the constitutional rights of citizens to be "secure in their persons, houses, papers, and effects." In the instant case the defendant was legally arrested and searched, and the evidence of his crime was admissible to establish his guilt. The trial court erred in holding the search and seizure unlawful, but since the ruling favored the defendant he is in no position to complain. The evidence that was admitted was sufficient to establish the charge in the indictment.
Having held there was a lawful search and seizure, it follows that the evidence thus obtained was admissible, and it is neither necessary nor essential to a decision of this case to pass on the question as to whether evidence illegally obtained is admissible where timely application has been made to suppress the same. Properly that question is considered only where the search and seizure are unlawful. It is not so here. We ought to be and are content to decide only those matters before us for decision.
The defendant was duly convicted of a crime of which he was unquestionably guilty. His rights under the Constitution have not been violated, and we see no reason to reverse this case.
The judgment of conviction is affirmed.
AFFIRMED.
McBRIDE, C.J., and BURNETT and COSHOW, JJ., concur; BEAN, RAND and BROWN, JJ., dissent. *Page 244