I find myself unable to agree with the majority wherein they affirm the holding of this court in the case of State v. Tonn, and respectfully dissent. *Page 185
At the time that the opinion in State v. Tonn was handed down, a very able and elaborate dissenting opinion was filed by Mr. Justice Weaver. It might be better if I were to repeat here that dissent rather than to attempt to add anything to it, and I call upon the bench and bar of the state to again read that dissent in order that they may ascertain whether or not this court is right in the majority's present interpretation of this all-important case. The majority call attention to the fact that certain other state courts are committed to the opposite view but they fail to set out that many, if not most of the cases cited, are not really in point as they were decided by courts in states not having a constitutional guarantee identical with that of the Fourth Amendment to the National Constitution. I am aware of the fact that there are cases that hold that the Fourth Amendment to the Federal Constitution does not apply to proceedings in the state court but as I understand it, the Fourth Amendment to the Constitution of the United States was re-enacted as part of the Constitution of Iowa, Article I, Section 8. The Supreme Court of the United States, which generally has been considered pretty good authority, in its interpretation of the Fourth Amendment has in no uncertain words announced that it will not countenance a violation of this amendment and that the fruits of illegal and unlawful search shall not be available to the government.
I quote with approval from Justice Weaver's dissenting opinion in the Tonn case, at page 119 of 195 Iowa, page 540 of 191 N.W.:
"It seems little less than solemn mockery for us to protest our devotion to the `sacred constitutional right,' or our virtuous purpose to rigidly enforce it, and in the same breath declare our approval of the admission of `evidence without any inquiry as to how that evidence was obtained.' The principle so involved finds a suggestive parallel in the case of the candidate for office who maintains his equipoise on the question of prohibition by declaring himself in favor of the law, but opposed to its enforcement. The suggestion that the person whose rights are invaded by a wrongful search or seizure has his remedy in an action for damages against the individual committing the trespass *Page 186 is scarcely worthy of the court which refuses to give him the protection to which he is entitled under the charter which is supposed to command the obedience of the judiciary, as well as of the private citizen. It is this growing disregard of fundamental rights and orderly methods of justice which has given rise to the infamies of the so-called `sweat-box' and `third-degree' practices which cast discredit upon our professions of loyalty to law. The reasoning which justifies those things, and justifies a rule by which the court will refuse to inquire into the means employed to obtain evidence, if carried to its logical results, would be equally effective to admit evidence procured by physical torture, and restore the rack and thumbscrew to the dignity of judicial aids in the prosecution of alleged criminals. True, torture has been nominally outlawed in civilized lands, and the court would undoubtedly so declare, were that concrete question presented for its consideration; but the legal and constitutional guaranties of protection against the use of the torture chamber are not a whit less sacred than those which guarantee each and every citizen against illegal searches and seizures."
I have always understood that the Constitution protected all men, including those charged with a crime. The Constitution of Iowa guarantees all the citizens of this state against unreasonable search and seizure. It is as much a part of the Constitution of Iowa as any other part. By this decision, as I read it, that constitutional provision is made of no value. In saying that I am but following the Supreme Court of the United States when it says in the Silverthorne [251 U.S. 385, 392,40 S. Ct. 182, 183, 64 L. Ed. 319, 321] and Weeks [232 U.S. 383, 393,34 S. Ct. 341, 344, 58 L. Ed. 652, 656] cases:
"It reduces the Fourth Amendment to a form of words."
I yield nothing to my brothers on the question of law enforcement but I deny that this is sufficient to sweep aside a constitutional provision. If the Constitution is in the way, then it should be amended in the manner therein provided. There is no provision in the Constitution for its amendment or nullification by sheriff, county attorney, attorney general, or even this court. *Page 187
I would reverse this case and specifically overrule the case of State v. Tonn.
I am authorized to state that SAGER, J., joins in this dissent.