discovery of evidence tending to support the charge that the law was then and there being violated. The event contributes justification for the act. In this behalf the facts and conclusions in Ballard v. State, supra, are peculiarly opposite herein. There the officer acting upon information coming from a reliable source, sought to arrest a person as for the unlawful carrying of a completely concealed weapon. Resisting arrest, the offender shot the officer with the weapon which he had been concealing. On trial he claimed the right so to do, because the officer did not have absolute knowledge that he was then violating the law. This claim was denied, and justification for the attempted arrest was accorded to the officer because of the information imparted, to him, his reliance thereon, and the fact subsequently discovered, that the person sought to be apprehended was in truth then and there violating the law. The good faith of the officer, reasonably arrived at, was the controlling factor. "In considering the question of such good faith, it ought also to be specially kept in mind that all officers are presumed to be engaged only in the proper performance of their duty, and that the exception to the rule, so to speak, should be specially pointed out. All reasonable intendments should be indulged in, in support of the propriety of official action, and all proper encouragement given to those actually engaged, not infrequently at the peril of their lives, in the attempted protection of society from those who would despoil or destroy it. "In other words, in the practical and intelligent effort to enforce the law in the face of the violations thereof, made possible by modern conditions, modern instrumentalities, and modern devices, we will dismally fail in our duty to protect society, if we fail to make adequate and effective use of all the machinery available under the law. This does not mean that individual rights, guaranteed under the Constitution or otherwise, are to be disregarded; but it does mean, to me, at least, that positive encouragement, arising out of a lax regard for the rights of organized society, is not to be accorded to those who would subvert the law and ultimately effect the destruction of government. "Having probable cause to subject the person to immediate apprehension and detention, the officer possesses ample authority-in fact, it is his duty-to take into custodia legia the instruments of the crime and such other articles as may reasonably be of use as evidence upon the trial. Thatcher v. Weeks, 79 Me. 547, 11 Atl. 599; Spalding v. Preston, 21 Vt. 9, 50 Am. Dec. 68; Getchell v. Page, 103 Me. 387, 69 Atl. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. Rep. 30. To course, necessary and permissible that the officer course, necessary and permissable that the officer search the person of the accused and all articles or instrumentalities in his immediate possession." We believe that these two statements fairly reflect the attitude of the courts as a whole as to what constitutes a reasonable search of automobiles. However, we are setting forth the following included that the driver was intoxicated and that the vehicle was used to transport liquor. He stopped the vehicle and on search discovered a bottle of liquor. It was held to be a legal search. In Milam vs. U. S., 296 Fed. 629, Federal prohibition officers having definite information that professional criminals were conveying in a motor car a quantity of whiskey along a certain road about a certain time, were on the watch to intercept it. They stopped the defendants truck, and opened it and found instead of whiskey, Chinamen in the course of unlawful transportation. It was held that assuming that this was a search of the truck, under the particular circumstances, the search was not unreasonable. Let us again call your attention to the fact that no general right exists to search automobiles and that a promiscuous search of automobiles will not be countenanced under the law. In each instance where the officer is acting without a search warrant he must be in possession of such knowledge from the employment of his own senses or from information actually imparted to him by another as to cause him honestly and in good faith, acting with reasonable discretion, to believe that intoxicating liquor is being transported in that particular car. Trusting we have satisfactorily answered your question, we remain Yours very truly, Edward T. Bishop, County Counsel By J. A. Tucker, Deputy County Counsel. |