I cannot concur in this opinion. We have a Constitution of our own to respect, in that this is a proceeding under the State law. The basis of the opinion lies in the alleged fact that the officer scented "corn whiskey." It is not shown whether the jars had caps upon them or not. They were in sacks. But at most there was less than a half pint of fluid (whatever it was) in all the jars, and it is preposterous to think that the aroma from this small amount of corn whiskey, or any other kind of whiskey, would have touched the acute olfactory nerves of one at any reasonable distance from the automobile. The facts (physical facts) indicate strongly that the sack of sugar and the mud upon the car aroused the suspicion of the officer, and he, without warrant, in the absence of the owner, searched the car, opened the sacks and the jugs and bottles, and then for the first time caught the scent. We should apply our common sense to a case of this kind. Had there been no mud on this car, and had there been no sack of sugar in it, there would have been no scent of "corn whiskey" by the policeman. Previous conviction might have helped his olfactory nerves also. As indicated above, had the real truth been told, this policeman, made suspicious by the mud upon the car, the sack of sugar and previous conviction of the defendant, proceeded to *Page 230 search the car, and when he opened the sack and jars then got his first "scent." But in addition had a doctor given a patient a little liquor strictly for an ailment, and an officer chanced to smell his breath, he could search him upon the street without a warrant, under this opinion. This is not the law.
The evidence should have been suppressed, and I dissent to the opinion by our learned Commissioner.