One alleged error is presented to sustain this appeal, based upon the action of the trial court overruling appellant's verified motion to quash the search warrant, the return of the officer of the service of the search warrant, and the affidavit upon which the search warrant is predicated.
Appellant is charged by an affidavit approved by the prosecuting attorney, in one count, with the unlawful and felonious possession and control and use of a certain still and distilling apparatus for the unlawful manufacture *Page 320 of intoxicating liquor. Acts 1925, ch. 48, § 6, § 2719 Burns 1926.
Before arraignment, appellant filed his verified motion to quash the search warrant, the return thereon, and the affidavit for the search warrant, and that all evidence of the finding and seizure of any alleged intoxicating liquor or any still or distilling apparatus, or mash, or any property whatever, be suppressed, and not be permitted to be used by the state against the defendant, and that the testimony of the officers who served the search warrant, or who were present when such warrant was served, and each of them, with respect to what they, or any of them, observed, heard, learned or did, while making said search and seizure, be suppressed, and that none of such facts or information thus obtained be permitted to be introduced in evidence by the state against the defendant in said cause. The state answered appellant's verified motion to quash the writ for the search by general denial. The issue thus formed was submitted to the court, and evidence was introduced both in support of the verified motion and the general denial. The court overruled appellant's verified motion to quash the writ of search warrant, and thereafter appellant pleaded not guilty to the affidavit which charged the offense, and the matter was submitted to the court, trial had, which resulted in a finding by the court of guilty as charged and the court rendered judgment against him by fine of $100 and imprisonment in the Indiana State Prison for a period not less than one year and not more than five years.
The affidavit for the search warrant was sworn to before the prosecuting attorney and by the prosecuting attorney filed with the justice of the peace, who issued the search warrant. The affidavit, search warrant, and return thereon by the officer, are in words as follows: *Page 321
"STATE OF INDIANA | SS: "COUNTY OF HENRY, |
"Comes now the undersigned affiant, who, upon his oath, says: that affiant has reason to believe and does believe that James Wallace has in his possession intoxicating liquor, being then and there sold, bartered and given away as beverage in violation of the laws of this State, and has in his possession stills, implements, devices and property kept for the purpose of the manufacture of intoxicating liquors, intended for use in violation of the laws of this State, at the following premises: The rooms and basement and outbuildings appurtenant thereto, used as a candy parlor and bakery, located at Number 1430 Broad Street, in the city of Newcastle, of said County and State.
"JAKE LOWE
"Subscribed and sworn to before me this 1st day of December, 1925.
"GEORGE R. JEFFREY, "Prosecuting Attorney.
SEARCH WARRANT
"STATE OF INDIANA | SS: "COUNTY OF HENRY, |
"To the sheriff of Henry County or any Constable of said County, or to the Chief of Police and any member of the Police Force of the City of Newcastle, Indiana, Greeting:
"WHEREAS, There has been filed with me an affidavit of which the following is a copy, to wit:
"STATE OF INDIANA | SS: "COUNTY OF HENRY, |
"Comes now the undersigned affiant, who, upon his oath says: that affiant has reason to believe and does believe that James Wallace has in his possession intoxicating liquor, being then and there sold, bartered and given away as a beverage in *Page 322 violation of the laws of this State, and has in his possession stills, implements, devices and property kept for the purpose of the manufacture of intoxicating liquors, intended for use in violation of the laws of this State, at the following premises.
"The rooms and basement and outbuildings appurtenant thereto, used as a candy parlor and bakery, located at Number 1430 Broad Street in the City of Newcastle, of said County and State.
"JAKE LOWE.
"Subscribed and sworn to before me this 1st day of December, 1925.
"GEORGE R. JEFFREY, "Prosecuting Attorney.
"You are therefore commanded, in the name of the State of Indiana, with the necessary and proper assistance, in the daytime or in the nighttime, to enter into the premises described in said affidavit and there diligently search for the said intoxicating liquors and said stills, devices and property kept for the purpose of manufacturing intoxicating liquors, as aforesaid, and that you bring the same or any part thereof found on such search, together with the vessels in which such intoxicating liquors are contained, and all the implements, fixtures, devices and property used or kept for such illegal selling, bartering, giving away or manufacture of such intoxicating liquors, and all books, papers, bills, documents and letters relating to such liquors, implements, devices and supplies, and manufacture of such liquors forthwith before me, at my office, to be disposed of according to law.
"Given under my hand and seal of the Court this. . . . . . day of December, 1925.
"CHARLES R. SWAIN, "Justice of the Peace.
RETURN
"This writ came to hand this 1st day of December, 1925, and I served the same upon the said *Page 323 James Wallace by and by entering upon the premises herein described and there making diligent search for intoxicating liquor, and for stills and implements intended to be used in the unlawful manufacture of intoxicating liquor, as described herein; and by virtue of this writ seized the following, viz: One still and distilling apparatus, 90 gallons of mash, and 18 gallons of intoxicating liquor, and now have and hold the same subject to the further order of the court.
"CHARLES ZORNES, "Officer Serving Warrant."
Appellant's verified motion to quash the search warrant alleges: "that thereupon (upon the delivery of the affidavit for the search warrant to the justice of the peace) at once upon so receiving said affidavit so made, and without further legal proceeding or proof to show probable cause, and without any hearing had or any evidence heard, and solely by virtue of said alleged affidavit . . ., such justice of the peace proceeded to and did, at once on said day issue, on said alleged affidavit, an alleged search warrant," directed to an officer commanding him to search the premises described in said alleged affidavit upon which the search warrant was issued, for intoxicating liquors, stills, devices, and property, so alleged to be kept for the purpose of manufacturing liquors.
Upon the issue formed by the state's answer in general denial to appellant's verified motion to quash and suppress, the state, to support the search warrant, presented the evidence by the testimony of the policeman who made the affidavit for the search warrant; the affidavit was presented to him for signature by the prosecuting attorney, who, immediately after the officer signed it and took the oath before the prosecuting attorney, turned the affidavit over to the prosecuting attorney, all of which occurred at his desk at police headquarters; and *Page 324 that he, the policeman, could not say that the defendant had a still, but that a short time before that day he had walked past defendant's bakery and smelled an odor which he described as like the odor coming from "swill." The justice of the peace, as a witness at the hearing upon appellant's verified motion to quash the writ for search and seizure testified that the affidavit for the writ was presented to him by the prosecuting attorney, and that, after it was so presented to him, he issued a search warrant based upon it, and after placing the affidavit on file and issuing a search warrant, he delivered the search warrant to the prosecuting attorney, and that he did not know what the prosecuting attorney did with it, but after a few days the search warrant was returned to him, and had the return of the officer upon it, and that it had been in his possession ever since.
The appellant presented to the trial court a memorandum, which was a part of his verified motion to quash the search warrant, giving the reasons in support of his said verified motion. The reasons of importance here are:
A. (5) "That said affidavit contained no showing of probable cause for believing that the defendant unlawfully possessed intoxicating liquors, or stills, implements, devices, or property kept for the purpose of manufacturing intoxicating liquors, intended for use in violation of the laws of the state."
B. (6) "That said affidavit did not state or allege any grounds or facts upon which the alleged belief of the affiant therein was based."
C. (7) "No evidence or facts are shown or alleged in said affidavit for search warrant on which the belief of the affiant therein was based, nor any facts alleged therein which show probable cause, for the issuance of said search warrant."
D. (8) "That said affidavit does not state facts sufficient to show probable cause for the issuance *Page 325 of said search warrant as the law in such cases requires."
E. (9) "That said search warrant was issued without probable cause for the issuance thereof under the law."
F. (10) "That no statement of facts or alleged facts under oath or affirmation either written or oral was made to or received by said justice of the peace purporting to state ground or reasons for or tending in any manner to show probable cause for the issuance of said alleged affidavit (search warrant)."
G. (11) "That no statement of any kind, supported by oath or affirmation, was made by any person to said justice of the peace on the subject of the issuance of said search warrant prior to the issuance thereof, other than said affidavit."
H. (12) "That no probable cause was shown or established supported by oath or affirmation before said justice of the peace for the issuance of said search warrant prior to its issuance by said justice."
I. (13) "That said justice of the peace had no hearing of evidence on said affidavit and made no finding of the existence of probable cause for the issuance of said search warrant prior to the issuance thereof."
Appellant presents his verified motion to quash the search warrant and the hearing with the evidence upon the issue made by the answer in general denial by the state by special bill of exceptions.
Certain settled principles of law in relation to search and seizure must enter into the decision of the question which is presented by the alleged error predicated upon the 1. overruling of the motion to quash the search warrant. The action of the court or magistrate, in determining the question of the existence of probable cause, upon which to base the issuing of a search warrant, is judicial. In re Rule ofCourt (1877), 3 Woods *Page 326 502, 20 Fed. Cas. 1336; Commonwealth v. Intoxicating Liquor (1869), 103 Mass. 448; Commonwealth v. Schwartz (1923),82 Pa. Super. 369, 375; Chipman v. Bates (1843), 15 Vt. 51, 40 Am. Dec. 663; People v. Prall (1925), 314 Ill. 518, 145 N.E. 610; Zimmerman v. Bedford (1922), 134 Va. 787, 115 S.E. 362; State v. Lock (1924), 302 Mo. 400, 259 S.W. 116;Craven v. State (1913), 148 Tenn. 517, 256 S.W. 431;Kinseley v. Ham (1913), 39 Okla. 623, 136 P. 427, 49 L.R.A. (N.S.) 770; Veeder v. United States (1918), 252 Fed. 414;Locknane v. United States (1924), 2 F.2d 427; Money v.Leach (1765), 3 Burr. (Eng.) 1742, 1766; Black, Constitutional Law 612; 24 R.C.L. 707.
The existence of probable cause, within the meaning of the Constitution, is not for ministerial determination. 2. Veeder v. United States, supra; Smoot v. State (1925), 160 Ga. 714, 128 S.E. 909, 41 A.L.R. 1533.
The affidavit or the statement under oath or affirmation, in, support of probable cause, must bear the countenance of truth, which is so infallible, that either an action for damages, 3. or a criminal charge of perjury may be legally predicated thereon, if such statement is untrue. Ex parte Burford (1806), 3 Cranch 448, 2 L.Ed. 495; Veeder v. United States,supra; State v. Quartier (1925), 114 Or. 657, 236 P. 746.
All present authority to issue a search warrant, and the exercise of authority thereunder, results from written law, either the Constitution or the statutes, or both. Art. 1, § 4. 11, Constitution of Indiana; § 8356y Burns' Supp. 1921.
The search warrant, and the statements upon oath or affirmation upon which probable cause is based, must conform strictly to the Constitution and the valid statutory laws which permit 5. a search and seizure. United States v. Rembert (1922), 284 Fed. 996; White v. Wager (1900), 185 Ill. 195, 57 N.E. 26, 50 *Page 327 L.R.A. 60; Reed v. Rice (1829), 2 Marsh. (Ky.) 44, 19 Am. Dec. 122.
Statutes which relate to search and seizure must be strictly construed in favor of the constitutional right of the people. Guenther v. Day (1856), 6 Gray (Mass.) 490; Leonard 6. v. United States (1925), 6 F.2d 353, 355;
The constitutional guaranty against unreasonable search and seizure must receive a liberal construction, in its application to guarantee such right to the people. Gouled v. United 7. States (1921), 255 U.S. 298, 304, 41 Sup. Ct. 261, 65 L. Ed. 647; Byars v. United States (1926), 273 U.S. 28, 47 Sup. Ct. 248, 71 L.Ed. 520; Flum v. State (1923),193 Ind. 585, 141 N.E. 353; Boyd v. United States (1886),116 U.S. 616, 635, 6 Sup. Ct. 524, 29 L.Ed. 746.
In executing a search warrant, there must be a strict compliance with whatever formalities are required by law. 8. United States v. Borkowski (1920), 268 Fed. 408; Reed v. Rice, supra; Flum v. State, supra.
Evidence secured by unreasonable search and seizure may not be admitted against the accused over objection. Flum v. State, supra; State v. Lock, supra. All searches and 9, 10. seizures executed in violation of law are unreasonable. Flum v. State, supra.
The major proposition of law asserted by appellant is that the search warrant was illegally issued, because the warrant did not issue upon probable cause, supported by oath or 11. affirmation, as required by the Constitution (Art. 1, § 11, Constitution, § 56 Burns 1926); the point being, that no facts were alleged in the affidavit which was filed with the magistrate, or evidence heard, to present or support probable cause, upon which the search warrant could legally be issued. It appears as an alleged fact in appellant's motion to quash the writ, that the writ was based wholly *Page 328 upon the affidavit of the officer, and not upon any other additional facts or information whatever. The proposition is based upon the motion to quash the writ, and is presented by the bill of exception. The appellee assumed the burden upon the issue presented by the general denial of appellant's verified motion to quash the writ for the search, to sustain the writ for the search. State v. Blumenstein (1925), 186 Wis. 428, 432, 202 N.W. 684; Wells v. State (1924), 135 Miss. 764, 100 So. 674;Meno v. State (1925), 197 Ind. 16, 148 N.E. 420.
The question of the showing of probable cause, upon which warrants for arrest, and search and seizure, shall issue, upon the allegation or statement, under oath or affirmation, "has reason to believe and does believe" or "is reliably informed and believes" — which amount to the same in law — has been very frequently discussed and determined by the courts of last resort in many of the states, and by the several courts of the United States, in very recent years. The further discussion of any length in this opinion upon the point is unnecessary, in order to add to or supplement the composite, which results from so great a number of judicial opinions of these courts, nearly all of which are of one mind.
The form of affidavit prescribed by the legislature is:
"If any person shall make an affidavit before any mayor, justice of the peace or judge of any court that such affiant has reason to believe, and 12. does believe, that on any described or designated premises or tract of land, there is intoxicating liquor or a still or distilling apparatus which is being sold, bartered, used, or given away, or possessed, in violation of the laws of this state, such justice of the peace, mayor or judge shall issue his warrant to any officer having power to serve criminal processes, and cause the premises designated in such affidavit to be searched," etc. Acts 1925 p. 144, § 31, § 2746 Burns 1926. *Page 329
If it was intended by this statute to declare that an allegation in the affidavit, such as therein prescribed, shall be sufficient to show probable cause, and that an affidavit embodying such allegation alone is proof sufficient to warrant the magistrate to determine the question of probable cause, then, in our opinion, the legislature, in that respect, exceeded its power, although it may make a certain act or series of actsprima facie evidence of a fact, yet it is not within its province to say to any judicial officer that when he has heard proof of certain facts, the evidence thus adduced before him shall constitute conclusive proof of the fact in issue in the trial of the cause before him.
The axiomatic principle of law concerning the issuing of a search warrant that the matter of consideration of the subject and determination, either for or against the affidavit, and showing upon oath or affirmation in its support of probablecause, is judicial, and in no sense ministerial or for decision by the maker of the affidavit or witness under oath or affirmation, determines the question at bar.
The affidavit before the court is the sole and only proof in support of probable cause upon which the search warrant was to issue, as is conclusively shown by the motion to quash the 13. writ. The averment by affiant in the affidavit "that he has reason to believe and does believe" that appellant "has in his possession certain intoxicating liquor," etc., is not an averment of any fact from which the existence of probablecause could be determined. At least such averment is hearsay evidence only. It is the conclusion of affiant — his opinion — based upon his "reason to believe." If this be the determining factor, then the magistrate who shall issue the warrant, performs such act ministerially, not judicially, for the magistrate had no conclusion to reach, no finding of probable cause to make. The statute which provides that "an affidavit . . . *Page 330 that such affiant has reason to believe and does believe" is good as far as it goes, but it stops short of probable cause. UnitedStates v. Pitotto (1920), 267 Fed. 603, and cases there cited.
The averment in the affidavit amounts solely to the possibility, not the probability, that affiant's belief will prove to be a fact, rather than a belief, upon the execution of the warrant, and not before. The affidavit, if untrue, would not subject affiant to prosecution for perjury, unless it can be proved that affiant, at the time he made the affidavit, knew that there was no intoxicating liquor at the place described. UnitedStates v. Keleher (1924), 2 F.2d 934; State v. Lock,supra.
The whole case upon which a search warrant issues must be made by him who prays for such writ. The judicial officer before whom an application for a search warrant is filed must exercise his judicial power to determine whether or not a warrant shall issue; such judicial function can be moved only by the facts brought before him, which are under oath or affirmation. A warrant to search and seize, which follows upon a statement based solely upon the belief of the affiant, rests upon the reasoning of the affiant, based upon the secret facts of which he may have knowledge; and the conclusion which results from such reasoning is affiant's, not that of the judicial officer. The judicial process to ascertain probable cause is then transferred from the judicial officer to the affiant. The Constitution permits no such thing.
The court acknowledges the erudite pronouncements of those sages of the law, that, "It is not fit that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer," by Lord Mansfield in Money v. Leach, supra; and that in holding void an affidavit made as a foundation for a warrant by a person who did not have personal knowledge *Page 331 of the facts, that, "If the charge against him was malicious, or grounded on perjury, whom could he sue for the malicious prosecution? or whom could he indict for perjury?" by Mr. Chief Justice Marshall, in Ex parte Burford, supra; and that in considering a statute which provides, as stated in the court's opinion, that: "If the three persons state their belief that any spirituous liquors are kept or deposited and intended for sale, in any store, shop or warehouse, or in any steamboat or other vessel, or in any vehicle, or in any building or place, then the warrant shall issue, and the sheriff or constable shall proceed to search the premises . . .," the court says: "If it be said that the act provides for as much certainty in the description of the articles to be searched for and seized, and in the definition and limitation of the officer's powers, as the nature of the case will admit of; that the complainants cannot know with certainty, before search is made, that spirits are deposited in the place described, or are intended for sale, and can only state their belief; and that neither the complainants nor the magistrate can know, before search, who is the owner, or has the custody, or intends to sell, and therefore cannot name him; and that it is impossible for the complainants or for the searching officer to distinguish what part of the liquors found is intended for sale, and that that must be a subject of inquiry before the magistrate afterwards; the answer seems to us to be obvious, that if these modes of accomplishing a laudable purpose, and of carrying into effect a good and wholesome law, cannot be pursued without a violation of the constitution, they can not be pursued at all, and other means must be devised, not open to such objection," by Mr. Justice Shaw, in Fisher v. McGirr (1854), 1 Gray (Mass.) 1, 61 Am. Dec. 391; and that, "One cause of this evil (arrest of person without probable cause) seems to be the fact that warrants are issued upon the affidavit of *Page 332 some officer, who, upon the relation of others whose names are not disclosed, swears that, upon information, he has reason to believe, and does believe, the person charged has committed the offense charged. . . . Such an affidavit does not meet the requirements of the constitution, which, by the fourth article of the amendments, declares that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated. . . . It is plain from this fundamental enunciation, as well as from the books of authority on criminal matters in the common law, that the probable cause referred to, and which must be supported by oath or affirmation, must be submitted to the committing magistrate himself, and not merely to an official accuser, so that he, the magistrate, may exercise his own judgment on the sufficiency of the ground shown for believing the accused person guilty; . . . In other words, the magistrate ought to have before him the oath of the real accuser, presented either in the form of an affidavit, or taken down by himself by personal examination, exhibiting the facts on which the charge is based and on which the belief or suspicion of guilt is founded. The magistrate can then judge for himself, and not trust to the judgment of another, whether sufficient and probable cause exists for issuing a warrant. It is possible that by exercising this degree of caution, some guilty persons may escape public prosecution, but it is better that some guilty ones should escape than that many innocent persons should be subjected to the expense and disgrace attendant upon being arrested upon a criminal charge, and this was undoubtedly the beneficent reason upon which the constitutional provision referred to was founded"; by Mr. Justice Bradley, In the Matter of a Rule of Court, supra, and that: "No search warrant shall be issued unless the judge has first been furnished with facts under *Page 333 oath — not suspicions, beliefs, or surmises — but facts which, when the law is properly applied to them, tend to establish the necessary legal conclusion, or facts which, when the law is properly applied to them, tend to establish probable cause for believing that the legal conclusion is right. The inviolability of the accused's home is to be determined by the facts, not by rumor, suspicion, or guesswork. If the facts afford the legal basis for the search warrant, the accused must take the consequences. But equally there must be consequences for the accuser to face. If the sworn accusation is based on fiction, the accuser must take the chance of punishment for perjury. Hence the necessity of a sworn statement of facts, because one cannot be convicted of perjury for having a belief, though the belief be utterly unfounded in fact and law," by Judge Francis E. Baker,Veeder v. United States, supra; and that: "The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land"; by Mr. Justice Day, Weeks v.United States (1914), 232 U.S. 383, 393, 34 Sup. Ct. 341, 344, 58 L.Ed. 652, L.R.A. 1915B 834, Ann. Cas. 1915C 1177; and that: "The affidavit on which the warrant was issued set forth no facts from which the existence of probable cause could be determined; nor did the warrant itself recite the existence of such cause. There was no recital in the warrant that the officer who issued it found or determined there was probable cause, further than the mere statement that some one had declared under oath that he had good reason to believe, and did believe, the accused was violating the law. It is true that § 3462 Rev. Stat. (U.S. Compiled Stat. 1901, p. 2283)1 authorizes *Page 334 a search warrant to be issued upon such an affidavit, but we think that all the requisites are not there expressed. This was also the view of the Attorney General in an opinion delivered June 19, 1903 (24 Ops. Attys. Gen. 685, 688). The oath in writing should state the facts from which the officer issuing the warrant may determine the existence of probable cause, or there should be a hearing by him with that purpose in view. The immunity guaranteed by the constitution should not be lightly set aside by a mere general declaration of a nonjudicial officer that he has reason to believe and does believe, etc. The undisclosed reason may fall far short of probable cause," by Hook, Circuit Judge,Ripper v. United States (1910), 178 Fed. 24, 26; and that: "The section providing for the issue of these search warrants" (§ 3462 Rev. Stat. 1901, p. 2283, supra) "does not state all of that which must be stated in the application therefor. The Fourth Amendment to the Constitution provides that `no warrant shall issue, but upon probable cause, supported on oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.' The determination of the question whether this requirement and those of the section referred to (§ 21, Act of May 28, 1896, 29 Stat. 184) have been met, and whether the warrant should issue in a particular case, is a highly responsible and important duty"; . . . by Mr. Philander C. Knox, Attorney General, 24 Ops. Attys. Gen. 685, 688. The opinion in the case of Ripper v. United States, supra, shows that that case was much like the case at bar. Ripper was convicted of violations of Act of August 2, 1886, ch. 840, 24 Stat. at L. 209 (U.S. Comp. Stat. 1901, p. 2228, § 13, p. *Page 335 2232) commonly known as the "Oleomargarine Act." Complaint was made on appeal to the Circuit Court of Appeals for the eighth circuit that the trial court erred in admitting the testimony of revenue officers as to what they discovered in the house of accused, because they gained admission by means of a void search warrant. A revenue agent made affidavit before a United States commissioner that he had good reason to believe, and did believe, that the accused was unlawfully in the business of manufacturing oleomargarine. The commissioner issued the warrant upon the showing, as made by the affidavit. The affidavit in the Ripper case, in so far as the question of "reason to believe and does believe" has to do with the decision of the question, is the same as the affidavit in the case at bar, only the one involves oleomargarine, and the other intoxicating liquor, and stills, etc., for the manufacture of intoxicating liquor.
Concerning the argument before the superior court in Boston in 1761, by James Otis, Esquire, in the case of Gray v. Paxton (1761), Quincey's Mass. Rep. 541, John Adams, who listened to the argument, said of the merits of this renowned forensic effort, that, "Then and there, the child Independence was born," and reports the speech, in relation to the unwarranted invasion of one's person, house or effects, of which the following excerpt is apt here: "Now one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. . . Every man, merely natural was an independent sovereign, subject to no law, but the law written on his heart, and revealed to him by his Maker, in the constitution of his nature, and the inspiration of his understanding and his conscience. His right to his life, his liberty, no created being could rightfully contest. Nor was his *Page 336 right to his property less incontestible. . . . These rights are derived only from nature, and the author of nature; they are inherent, inalienable, and indefeasable by any laws, pacts, contracts, covenants, or stipulations which man could devise. . . . These principles and these rights were wrought into the English Constitution, as fundamental laws. . . . The security of these rights of life, liberty, and property, had been the object of all those struggles against arbitrary power, temporal and spiritual, civil and political, military and ecclesiastical, in every age." Life of Otis (Tudor 1823) 61-71; VIII World's Best Orations, 3128.
The consensus of judicial opinion, where this question has been thoroughly considered upon principle and sound reasoning, is, that a search warrant issued upon an affidavit of mere belief, or on information and belief, is insufficient upon which to base a finding of probable cause, and its issuance under such circumstances would be without warrant of law. State v. Derry (1908), 171 Ind. 18, 24, 131 Am. St. 237; Ex parte Dimmig (1887), 74 Cal. 164, 15 P. 619; Lippman v. People (1898),175 Ill. 101, 51 N.E. 872; People v. Heffron (1884), 53 Mich. 527, 19 N.W. 170; State v. Patterson (1904), 13 N.D. 70, 99 N.W. 67; Wells v. State (1924), 135 Miss. 764, 100 So. 674;State v. Patterson (1920), 27 Wyoming 185, 194 P. 342, 13 A.L.R. 1284; Veeder v. United States, supra; United States v.Rykowski (1920), 267 Fed. 866; People v. Effelberg (1922),220 Mich. 528, 190 N.W. 727; Smoot v. State, supra; Lochnane v. United States, supra; Johnston v. United States (1898), 87 Fed. 187, 30 C.C.A. 612, 58 U.S. App. 313, 11 Am. Crim. Rep. 349;Byars v. United States, supra; People v. Kempner (1913),208 N.Y. 16, 101 N.E. 794, 46 L.R.A. (N.S.) 970, 975, Ann. Cas. 1914B 169; Swart v. Kimball (1880), 43 Mich. 443, 451, 5 N.W. 635; State v. Lock, supra; United States v. VariousDocuments (1921), 278 Fed. 944; United *Page 337 States v. Pitotto (1920), 267 Fed. 603; Wagner v. UnitedStates (1925), 8 F.2d 581; Reg. v. Walker (1887) 13 Ont. Rep. (Can.) 83; United States v. Tureaud (1884), 20 Fed. 621; 24 R.C.L. 708; 6 Words Phrases (1st. Series) 5618-5627; 16 C.J. 292;
The Constitution is imperious. We turn to it as a refuge to protect our very social and political life, instead of disobeying its wholesome commands. It is for all the people. The mantle of its protection falls without discrimination, and without respect of persons, upon all. The benevolence of its power estops him who would cross the threshold of those under suspicion of guilt, as well as of the innocent, unless by virtue of probable cause therefor, judicially determined. To secure a search warrant by means not warranted by the Constitution, according to its plain language, is to evade the law. The law knows no evasion.
Appellant does not challenge the constitutionality of the section of the statute (§ 25, ch. 4, Acts 1917), but contends that the constitutional rights of a citizen to be secure 14. in his house and effects against unreasonable searches and seizure have been violated. It follows from the position already shown to have been taken by the court, that it is of the opinion that the search warrant is void because it was not issued upon probable cause, and violates Art. 1, § 11, of the Constitution of Indiana.
Because the search and seizure under the search warrant were illegal, and therefore unreasonable, the knowledge learned and the effects seized by means of the execution of the 15. illegal warrant, may not be admitted in evidence upon the trial of the accused over his objection. The ruling of the court overruling appellant's verified motion to quash the writ and suppress the evidence, was error. Flum v. State, supra; *Page 338 Weeks v. United States, supra; State v. Lock, supra; Boyd v. United States, supra; Silverthorne Lumber Co. v. UnitedStates (1920), 251 U.S. 385, 40 Sup. Ct. 182, 64 L.Ed. 319;Youman v. Commonwealth (1920), 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1903.
In oral argument, it was contended by counsel for the appellee that the search warrant was valid although founded upon an affidavit based solely upon the information and belief of the affiant, there being no other evidence in any form in support of the affiant's information and belief, and that therefore the evidence sought to be excluded was admissible. This contention was based upon the authority of Rose v. State (1909),171 Ind. 662, 17 Ann. Cas. 228. That was not a criminal case, but a case in rem only. The question of the admissibility of evidence because of an alleged void search warrant was not then before the court. The holding in the opinion of the Rose case is nothing more than that the affidavit then under consideration was good to the extent of its allegations, and thereby did not offend the Constitution. To this extent, it is similar to the opinion in the case of United States v. Pitotto, supra, and also the opinion of Attorney General Philander C. Knox, supra, that the statute does not state all that must be stated; and either that the showing (by affidavit) should state pertinent facts sufficient to support a judicial finding of probable cause to issue the warrant, or that such showing should be supplemented by legal evidence presented in a hearing with that purpose in view. It is unnecessary to decide here and now whether the decision upon the question of the sufficiency of the affidavit for the search warrant in the Rose case was correct or incorrect, inasmuch as the question arose in a different manner than in the case at bar, and is not in conflict with the question now presented and decided. The question in the instant case is the admissibility of evidence presented by an alleged *Page 339 void search warrant to sustain an entirely different proposition from that before the court in the Rose case, thus clearly distinguishing that case from the one at bar. If the statements in the opinion in the Rose case might lead to the belief that the decision in that case controls the decision of the legal question involved in the case at bar, it must be and is disapproved. The trend of judicial opinion concerning the very question here for decision, generally adopted by our federal courts and the courts of the different states, approves the rule that evidence is not legally admissible in the trial of a criminal case when knowledge of the same is gained by virtue of a search warrant which is based only and solely upon a statutory affidavit which provides that such affidavit may be made upon information and belief, without stating any facts upon which such information and belief are founded.
For the error committed in overruling appellant's motion to quash the search warrant and the return thereto by the officer, the judgment of the Henry Circuit Court must be reversed, and it is so ordered.
The cause is remanded to the trial court, and it is ordered to sustain appellant's motion to quash the search warrant and the return thereto, and suppress the evidence learned or obtained thereby, and evidence of the things seized, and to sustain appellant's motion for a new trial.
Martin and Gemmill, J.J., dissent with an opinion.
1 "The several judges of the circuit and district courts of the United States, and commissioners of the circuit courts, may, within their respective jurisdictions, issue a search-warrant, authorizing any internal-revenue officer to search any premises within the same, if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of the said premises."