SEARCH WARRANT ‑- FOR SEARCH OF AUTOMOBILE

SEARCH WARRANT ‑- FOR SEARCH OF AUTOMOBILE.

Search warrant may issue to search an automobile, if applicant complies with jurisdictional steps and automobile is properly described.

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                                                                February 16, 1954

Honorable Evro M. Becket,Chairman
Liquor Control Board
Public Lands-Social Security Building
Olympia, Washington                                                                                              Cite as:  AGO 53-55 No. 204

Dear Sir:

            We acknowledge your request for an opinion as to whether a search warrant may issue to search an automobile for intoxicating liquor.

            It is our conclusion that a search warrant may issue under RCW 66.32.020 to search an automobile if the automobile is sufficiently described, as to make, model, year, license number and any other distinguishing features.

                                                                     ANALYSIS

            Two elements are necessary to justify the issuance of a search warrant for the purpose of searching for liquor.  These two combined bring about an unlawful possession or a possession with intent to sell.  One is possession, the other is an unlawful intent with reference to such possession.  With reference to intent, RCW 66.44.060 provides:

            "In any proceeding under this title, proof of one unlawful sale of liquor shall suffice to establishprima facie the intent or purpose of unlawfully keeping liquor for sale in violation of this title."

             [[Orig. Op. Page 2]]

            With reference to possession with intent to sell, RCW 66.44.170 provides:

            "Any person who keeps or possesses liquor on premises conducted or maintained by him as principal or agent with the intent to sell it contrary to provisions of this title, shall be guilty of a gross misdemeanor.  The possession of liquor by the principal or agent on premises conducted or maintained, under federal authority, as a retail dealer in liquors, shall beprima facie evidence of the intent to sell liquor."

            When aprima facie case of possession with intent to sell exists, the steps necessary to secure a search warrant are established by RCW 66.32.020, as follows:

            "If, upon the sworn complaint of any person, it is made to appear to any judge * * *, justice of the peace, * * * that there is probable cause to believe that intoxicating liquor is being manufactured, sold, bartered, exchanged, given away, furnished, or otherwise disposed of or kept in violation of the provisions of this title, such judge, justice of the peace, * * * shall, * * * issue a warrant directed to a civil officer * * * duly authorized to enforce * * * any law thereof, or to an inspector of the board, commanding him to search the premises designated and described in the complaint and warrant, and to seize all intoxicating liquor there found, * * * and to safely keep the same, * * *."

            The words "manufactured, sold, bartered, exchanged, given away, furnished, or otherwise disposed of or kept in violation of this title," designate the basis for the issuance of a warrant, and any one of these conditions is sufficient to justify the issuance of such warrant.  The direct question of what is embraced in the term "premises" has never been passed on by the courts of Washington so far as we are able to ascertain.  The identical question under laws either identical or similar to ours has been passed upon in other states, and accordingly we look to those jurisdictions for our authority.

             [[Orig. Op. Page 3]]

            In passing upon the question as to whether the term "place" includes an automobile, the Supreme Court of Kansas, in Kansas City Breweries Co. v. Kansas City, et al. (1915), 153 Pac. 523, had before it for consideration an ordinance of Kansas City which provided as follows:

            "* * * it shall be unlawful * * * to maintain * * * any place where intoxicating liquors are manufactured, sold, bartered or given away in violation of law within the city * * *."

            The Supreme Court held "place" to be all-inclusive, and to include "automobile," and stated:

            "What is a 'place' as named in the liquor nuisance statute (Gen. Stat. 1909, sec. 4387) and the ordinances of the city of this state corresponding therewith?  It is any place or thing in or out of which intoxicating liquors may be sold.  It may be a railway train, moving across the state.  It may be a barrel in an alley.  State v. Dykes, 83 Kan. 250, 111 Pac. 179.  It may be a wagon, or any other vehicle, moved from one part of the city to another.  It is not necessary that the place be a building or in any particular kind of structure.  State v. Rabinowitz, supra."  (Emphasis supplied)

            A Kansas statute makes "all places where intoxicating liquors are manufactured, sold, bartered, or given away in violation of law" a nuisance, and imposes criminal penalties.  Under that statute, the court found defendant guilty where he was delivering beer from a wagon.  Upon appeal the conviction was affirmed.  State v. Rogle, Kansas (1917), 164 Pac. 1165.

            The following Oklahoma statute is practically identical in language to the wording of the Washington statute on issuance of search warrants.  The pertinent portion reads as follows:

            "If it shall be made to appear to any Judge, * * * Justice of the Peace that there is probable cause to  [[Orig. Op. Page 4]] believe that liquor * * * is being kept for the purpose of being sold * * * such Judge * * * shall * * * issue a warrant * * * to search thepremises described * * * in such complaint and warrant, * * *."  (Emphasis supplied)

            InHowe v. State, (1947) Okla., 181 P. (2d) 571, the court had before it the question of search of an automobile under the law quoted above.  The search warrant described "A black Plymouth Coupe automobile, bearing 1945 Oklahoma license 2-38328, which said automobile is used in storing, secreting and transporting intoxicating liquor," and, in sustaining the search and subsequent conviction, the court said:

            "* * * This was a sufficient description of the property to be searched.  It required no outside information for the officers to properly identify the property.  We are of the opinion that the Legislature under the terms of the statute above mentioned did not intend by the use of the term 'premises' as above mentioned, to prevent the search of an automobile.

            "In the case ofWagner v. State, 72 Okl. Cr. 393, 117 P.2d 162, 167, this Court said:  'While we have strictly construed the terms of the statute as applied to search warrants, we are of the opinion that there should not be a technical construction of the statute which would defeat the ends of justice and permit the guilty to escape through technicalities.'"

            It is our conclusion that, based on probable cause and with a proper description of the automobile, a Judge of the Superior Court, Justice of the Peace, or Magistrate, may issue a search warrant under RCW 66.32.020, to search an automobile.

Very truly yours,

DON EASTVOLD
Attorney General

FRED C. DORSEY
Assistant Attorney General