State v. Owens

The disposition of the appeal in this case turns solely and squarely upon the action of the trial court, after overruling a motion to suppress, in admitting in evidence certain intoxicating liquor found upon the person of the appellant by the sheriff. The appellant had not been arrested prior to the search, and it may be admitted that the search of appellant and the seizure of the liquor were in violation of Section 11, Article II, of the Constitution of this State and therefore illegal. Notwithstanding, it does not follow that the discovery made by such illegal search may not be introduced in evidence upon the trial.

There are only two cases in this State which pass upon this question, to-wit, State v. Pomeroy, 130 Mo. 489, and State v. Sharpless, 212 Mo. 176. In both cases it was squarely held that it makes no difference how the evidence was procured, whether by legal or illegal search or by cunning, stealth or force, the manner of *Page 381 securing the evidence cannot and does not affect its admissibility in the trial.

It is uniformly held that courts will not form a collateral issue to try the question of how incriminating evidence came into the hands of the person proposing to introduce it at the trial. To get away from this rule the practice has arisen of presenting to the trial court in advance of the trial a motion to suppress the evidence obtained by an illegal search and to return the property to defendant. It would seem that such a procedure is still only a collateral issue, even though tried in advance of the trial on the merits. Our Pomeroy and Sharpless cases were decided before adroit counsel discovered the value of a motion to suppress the evidence.

The rule is well laid down in Commonwealth v. Dana, 2 Metc. (Mass.) 329. In the Pomeroy Case, supra, Judge SHERWOOD quoted from the Dana Case, as follows:

"Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence, the court can take no notice how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question."

Judge SHERWOOD further quoted from Mr. Justice BAKER in Gindrat's Case, 138 Ill. 103, as follows:

"Courts, in the administration of the criminal law, are not accustomed to be oversensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent and not subversive of some constitutional or legal right."

State v. Sharpless, supra, merely followed and reannounced the rule laid down in the Pomeroy Case. The *Page 382 case of Commonwealth v. Dana, supra, is probably the leading case in the United States on the question of the admissibility of evidence, no matter how obtained. The Massachusetts courts have consistently followed it. On January 9, 1923, the Supreme Judicial Court of that state handed down an opinion in Commonwealth v. Wilkins, 138 N.E. (Mass.) 11, in which the Dana Case is followed and approved, notwithstanding the evidence was admittedly procured by illegal search and seizure and timely motion for the return of the liquor had been filed and overruled.

It would seem that some of the cases have gone too far in reading constitutional provisions like our Section 11, Article II, into constitutional provisions like our Section 23, Article II. The unsoundness of this is well illustrated in State v. Flynn, 36 N.H. 64, from which Judge SHERWOOD quoted in the Pomeroy Case, as follows:

"In State v. Flynn, supra, BELL, J., speaking as the organ of the court, said: `It seems to us an unfounded idea that the discoveries made by the officers and their assistants, in the execution of process, whether legal or illegal, or where they intrude upon a man's privacy without any legal warrant, are of the nature of admissions made under duress, or that it is evidence furnished by the party himself upon compulsion. The information thus acquired is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force or fraud access is gained to them, and they are examined, to see what evidence they bear. That evidence is theirs, not their owner's. If a party should have the power to keep out of sight, or out of reach, persons who can give evidence of facts he desired to suppress, and he attempts to do that, but is defeated by force or cunning, the testimony given by such witnesses is not his testimony, nor evidence which he has been compelled to furnish against himself. It is their own. *Page 383 It does not seem to us possible to establish a sound distinction between that case, and the case of the counterfeit bills, the forger's implements, the false keys, or the like, which have been obtained by similar means. The evidence is in no sense his.'"

The late case of State v. Chuchola, 120 Atl. (Del.) 212, decided September 29, 1922, discusses this and other features of the question and expresses my own views much more ably and clearly than I can and I quote from the opinion at considerable length:

"It is difficult to see any constitutional connection between the illegal seizure and the use of the thing seized as evidence. The act the Constitution prohibits is the seizure, not the use of the article seized. The violation of the constitutional provision would seem to be complete when the seizure is made, and in that case the only remedy or redress the wronged party has is an action against the wrongdoer — the person who made the seizure. [People v. Mayen (Cal. Sup.), 205 P. 435, in which the leading cases, State and Federal, are ably reviewed.]

"The denial of the use in evidence of an article illegally seized might discourage, and to a great extent prevent, illegal seizures, but it does not seem to us to be a sufficient reason for excluding such evidence at the trial. If a man's property is seized without a warrant, illegally seized, the person making the seizure can be and ought to be punished for his unlawful act, but such act should not prevent the use of the thing seized in evidence, and certainly not if its possession constituted the crime charged.

"It is argued that if every article, the possession of which is made unlawful by statute, is admissible in evidence although illegally seized, the Legislature can nullify to a great extent the constitutional guaranty. The same argument was formerly unsuccessfully made in many cases against seizures with a warrant and searches without a warrant after legal arrest. But the *Page 384 courts have generally held that such seizures were not unreasonable and that such searches were not illegal. And we think that if articles illegally seized belong to the corpusdelicti their use in evidence is not a violation of any constitutional provision.

"But the Supreme Court has said in the Weeks Case, and in several others, that property illegally seized cannot be used in evidence and must be returned if restoration is seasonably asked for. That conclusion may be intelligible and reasonable if the thing taken was something the person had a right to hold. Even though a person be suspected of a crime, if his property has been taken from him illegally, it would seem that it should be returned to him in a proper proceeding, regardless of indictment or approaching trial. If it is his property and his possession is lawful it is conceivable that he has a right to its restoration. But it does seem to us that, if the article illegally seized was something in which the suspect could have no right of property, its possession was unlawful, and it constituted in fact, as was said in the case of Com. v. Dana, supra, the corpus delicti, it should not be returned or destroyed.

"In the present case the defendant has made a motion, for the return or destruction of the liquor taken without a warrant, so that it may not be used as evidence against him at his trial. He does not expect its return, for possession would be unlawful. Such motion, therefore, indicates that the defendant has no right to the liquor, and that he cannot lawfully have it in his possession. What right then has he to ask for its destruction? The only answer is, that the liquor was unlawfully taken from him, and should be destroyed. This seems to us to be illogical, unreasonable, and unfair to the State in its effort to punish the criminal. Upon what theory of justice or reason has any one the right to have returned to him money he has stolen, a weapon with which he has committed a murder, or intoxicating liquor he has in his possession in violation of law, no matter *Page 385 by what means it was found and seized? If the liquor must be destroyed the result is that the person who made the illegal search is not punished, but the State is punished in being deprived of the use of the liquor to secure the wrongdoer's conviction. We do not believe the Constitution-makers meant to be so solicitous for the interests of a person accused of crime as to exclude from the jury, not only the evidence of his guilt, but the thing the possession of which constitutes his crime. Such an article is in theory, and ought to be in fact, whenever and however taken, forfeited by the accused, and in the custody of the law."

The opinion then discusses many of the cases, and then proceeds:

"It is argued by the defendant, and clearly stated by the court in United States v. Slusser, supra, that an unlawful search cannot be justified by what is found; that a search that is unlawful when it begins is not made lawful when it ends by the discovery and seizure of liquor. There is no doubt about the correction of that proposition. The contention of the State is that, no matter how unlawful the search and seizure may have been, if the thing seized constitutes the corpus delicti and is something in which the defendant had no right of property or possession, it may be used as evidence against him at his trial, and he has no right to its return or destruction. It is in the custody of the law, and should remain there until it has answered its purpose as evidence, and is ordered to be destroyed by the court on its own motion or on the application of the State.

"Even if such contention is inconsistent with the decisions of the United States Supreme Court subsequent to the Adams Case, we are convinced that the decided majority of the State courts have approved the decision in Com. v. Dana, and in conformity therewith we hold, that the illegality of the seizure constitutes no good reason for excluding the thing seized from admission as evidence, if it is pertinent to the issue. *Page 386

"But after a careful examination of the Federal cases, we are not convinced that the Supreme Court would hold that intoxicating liquor, the possession of which is unlawful, as in this State, seized without a warrant, must be returned or destroyed, or that its use as evidence against the defendant would be a violation of any provision of the Constitution."

The case of People v. Mayen, 205 Pac. (Cal.) 435, is squarely in point. There the seizure was illegal, and a motion for return of the seized property was filed and denied in advance of the trial. Discussing the effect of the constitutional provision that no person shall be compelled in any criminal case to be a witness against himself, SLOANE, J., said:

"Section 13 of Article I of our Constitution says, as does the Fifth Amendment to the Federal Constitution, that no person `shall . . . be compelled, in any criminal case, to be a witness against himself.' This means, as we understand it, that one charged with the commission of a crime has the right at all stages of the investigation to stand silent and inert before his accusers. If he is required to contribute by word or act to the evidence against himself, his constitutional right is invaded. Such was the situation in Boyd v. United States, supra, which is cited as authority on this point in the decision last referred to. But to apply such an interpretation to the surreptitious or forcible seizure of incriminating evidence, even from the possession of the defendant, would bar the use of all information emanating from the acts or possessions of such defendant not voluntarily furnished. In the face of such an interpretation of the Constitution, how could the law authorize the search of the person of one arrested for crime, and the use of evidence of his guilt thus secured? How could a witness who had by trespass or dissimulation witnessed, or overheard incriminating acts or statements of the accused be permitted to testify? How could articles used in commission of a crime be taken from *Page 387 the premises of the defendant by authority of a search warrant to be used in evidence, as is permitted by Section 1524 of our Penal Code? In each instance suggested the incriminating facts would be involuntarily forced from the possession of the accused."

It was also held in People v. Mayen, supra, that the correctness of the court's ruling on motion to return property illegally seized could not be reviewed on appeal from the judgment in the criminal case. On this point, Judge SLOANE said:

"It may in this connection be noted that the decisions of our own court and of every other jurisdiction are in entire accord with the Supreme Court of the United States in holding that the seizure by officers of the law of private papers and effects by unlawful and unauthorized entry and search, to be used as evidence in criminal prosecutions of the persons from whom taken, is a violation of the constitutional right to security against unreasonable searches and seizures; and that such constitutional guaranty is one which should be zealously enforced in behalf of every citizen. But no authority, so far as we have been able to discover, has suggested that the subsequent use of articles so taken as evidence is in itself any part of the unlawful invasion of such constitutional guaranty. The search and seizure are complete when the goods are taken and removed from the premises. Whether the trespasser converts them to his own use, destroys them, or uses them as evidence, or voluntarily returns them to the possession of the owner, he has already completed the offense against the Constitution when he makes the search and seizure, and it is this invasion of the rights of privacy and the sacredness of a man's domicile with which the Constitution is concerned.

"The Constitution and the laws of the land are not solicitous to aid persons charged with crime in their efforts to conceal or sequester evidence of their iniquity. From the necessities of the case the law countenances *Page 388 many devious methods of procuring evidence in criminal cases. The whole system of espionage rests largely upon deceiving and trapping the wrongdoer into some involuntary disclosure of his crime. It dissimulates a way into his confidence; it listens at the keyhole and peers through the transom light. It is not nice, but it is necessary in ferreting out the crimes against society which are always done in darkness and concealment.

"Thus it is that almost from time immemorial courts engaged in the trial of a criminal prosecution have accepted competent and relevant evidence without question, and have refused to collaterally investigate the source or manner of its procurement, leaving the parties aggrieved to whatever direct remedies the law provides to punish the trespasser, or recover the possession of goods wrongfully taken."

In the recent case of Welchek v. State, 247 S.W. (Tex.) 524, decided January 17, 1923, reasoning that seems to me to be entirely sound is used. The liquor held admissible in evidence was taken from defendant after arrest, but the court makes no distinction on that ground. In disposing of the case, LATTIMORE, J., said:

"The detection of crime and the punishment of criminals and the consequent preservation of the lives, liberty, peace, and property of the law-abiding part of organized society is one of the most important functions of government, and it not infrequently happens that in the pursuit of this function the rights of the individual citizen must endure for a season when there is an apparent conflict between them and the rights of the general public. One whose property is stolen or whose home is burglarized or whose property in other ways which might be instanced becomes necessarily a link in a chain of evidence might find himself forced to leave such property in the custody of the courts till the rights of the general public to have present all testimony to develop a criminal case have been observed, unless he can satisfy the authorities that he would produce such *Page 389 property in court when its presence became necessary. It is not believed that any court upon motion or petition would deliver to an alleged criminal or those interested in its removal or destruction personal property whose presence is deemed necessary to the development of a criminal case. It is no argument against such right of the courts to retain the custody of such property that the home of the owner was entered without his consent, or the property was violently taken from his person or possession. Indeed, the person of a witness may, without his consent, be held in custody of the court for the sake of obtaining his testimony under circumstances which might be set forth.

"In our judgment, however, the proper decision of the question before us rests on the fact that there is nothing in the constitutional provision inhibiting unreasonable searches and seizures which lays down any rule of evidence with respect to the evidential use of property seized under search without warrant, nor do we think anything in said constitutional provision can be properly construed as laying down such rule. It seems to us that it is going as far as the provision of said Constitution demands to admit that one whose property is wrongfully obtained in any manner is entitled to his day in some court of competent jurisdiction and to a hearing of his claim for the restoration of such property, and for the punishment of the trespasser or the announcement that the citizen may defend against such intrusion; but it must always be borne in mind, if there appear the fact that said property by its physical appearance upon the trial will aid the court in arriving at a correct conclusion in a criminal case, that the owner's right to the return thereof should be held in abeyance until said property has served the government, the whole people, by its appearance in testimony. Nor can the rejection of the proffer in testimony of such property be soundly sustained upon the theory that the officer or person who removed such property having evidential value from *Page 390 the house or curtilage of its owner should be punished for an entry into said premises without search warrant. To reject such evidence for such reason or to completely return same to the owner and relinquish jurisdiction over same would in no wise be a punishment to the officer, but would rather be a hurt inflicted upon the people, whose interest in the punishment of crime suffers because the court may think the officer should be rebuked for the manner in which he obtained the evidence.

"We believe that nothing in Section 9, Art. I, of our Constitution, supra, can be invoked to prevent the use in testimony in a criminal case of physical facts found on the person or premises of one accused of crime, which are material to the issue in such case, nor to prevent oral testimony of the fact of such finding which transgresses no rule of evidence otherwise pertinent.

"Under general rules the acts and declarations, both oral and written, of one accused of crime, which shed light on the issues before the court, are competent; it being excepted that those are not admissible which are made under duress, in confinement or custody, save when coming under certain safeguards. The underlying reason for such exception does not rest upon the fact that these acts and declarations are not entitled to be heard inherently, but that experience fears that same may be induced by hope of reward, fear of punishment, etc., or that those interested in the prosecution of the prisoner may not have fairly reproduced, obtained, or presented what was said or done by him.

"But when the evidence offered is of an act, a declaration, or a writing which is not tainted by the objectionable circumstances of duress or constrained when uttered or done, or when the question is evidence of the possession by the accused of any property whose custody, ownership, or creation by him gives it weight in solving a crime, the method or manner by which such proffered testimony came before the court cannot be raised by any attempted application of said Section 9, *Page 391 Article I, supra, but may only be determined by rules of evidence which are general and have become fixed in the wisdom and experience of the courts of all civilized countries. If there be sound objection to testimony otherwise material which has been found on the person or in the possession or home of the accused, such objection must rest upon some better reason than that the accused did not consent to its taking or to the entry of such premises."

The Supreme Court of Ohio, in January, 1923, handed down an opinion in seventeen cases consolidated in one opinion. The title of the first case is Rosanski v. State. It is reported in106 Ohio St. 442, 140 N.E. 370. The issue in those cases is thus clearly stated in the opinion:

"Only one further question remains to be discussed, viz., whether in any case where liquors have been seized, whether lawfully or unlawfully, whether by virtue of a search warrant or not, and, if by virtue of a search warrant, whether the process has been regular or not, the persons from whom such liquors have been taken have a right to demand a return of the liquors before trial, and whether the liquors can under such circumstances be admitted as evidence on the part of the State."

The court concluded that where articles taken under unlawful search and seizure are contraband or articles in which defendant can have no lawful rights, defendant is not entitled to have such articles returned to him and they are admissible in evidence against him, notwithstanding petition for their return or motion to suppress. After discussing the numerous State and Federal cases, the opinion proceeds as follows:

"I repeat that it is unnecessary to discuss the numerous cases which agree with the views herein expressed, but it should be stated that the opinion of BAKER, J., in United States v. Snyder, 278 F. 650, contains an excellent discussion and the opinion of SLOANE, J., in People v. Mayen, 205 Pac. (Cal.) 435, is equally cogent. *Page 392 Many constitutional and statutory safeguards have been provided to insure that persons accused of crime shall have a fair and impartial trial, and these safeguards apply to matters of form as well as substance; but neither the laws nor the courts are solicitous to aid persons accused of crime in concealing the evidence of their guilt. Many presumptions are indulged in favor of accused persons, and a strong measure of proof is required as to every material fact necessary to establish the guilt of the accused. But such indulgencies do not reach to the extent of rejecting competent evidence because of the method by which it was procured. In the case of People v. Mayen, supra, the court made the following observation upon this subject: `From the necessities of the case the law countenances many devious methods of procuring evidence in criminal cases. The whole system of espionage rests largely upon deceiving and trapping the wrongdoer into some involuntary disclosure of his crime. It dissimulates a way into his confidence; it listens at the keyhole and peers through the transom light. It is not nice, but it is necessary in ferreting out the crimes against society which are always done in darkness and concealment. Thus it is that almost from time immemorial courts engaged in the trial of a criminal process have accepted competent and relevant evidence without question, and have refused to collaterally investigate the source or manner of its procurement, leaving the parties aggrieved to whatever direct remedies the law provides to punish the trespasser, or recover the possession of goods wrongfully taken.'

"In those cases holding to the opposite view, it is urged that to use the evidence would be tantamount to compelling the accused to be a witness against himself, thereby violating the 5th Federal Amendment. That amendment has no relation to state criminal procedure, but the same provision is found in Section 10 of the Ohio Bill of Rights, and the proposition therefore challenges our attention. Whatever might be said of using *Page 393 evidence which the accused is entitled to again have lawfully in his possession, the principle can have no application to those cases where the possession constitutes the offense. The accused could only be the unwilling source of the evidence if the contraband property had been placed in his possession against his will. If he is willing to possess liquor he must be said to be the willing source of the evidence. He is only the unwilling source of the evidence if unwilling to possess the goods, but in this event, he cannot be guilty at all.

"All that has been said on this latter question can have no relation to liquors carefully possessed in the home, and if liquor should be taken from a bona-fide dwelling, without process, or by unlawful process, such goods should be returned to the accused before the trial. But in those cases where there is a failure to show lawful possession the liquor may lawfully be admitted in evidence on the part of the State.

"There has been a great deal of misguided sentiment foisted upon a patient people during these latter days about the constitutional rights and privileges of the criminal classes. If all the doctrines which are being urged by attorneys representing liquor-law violators should be adopted by the courts as the true interpretation of our sacred Bill of Rights, it would no longer be recognized as a charter of government and as a guarantee of protection of the weak against the aggressions of the strong, but rather as a charter of unbridled license and a certificate of character to the criminal classes."

Numerous other cases supporting more or less strongly the same view might be cited. I have quoted from a few of the best reasoned cases. Professor John H. Wigmore has written a most exhaustive discussion of the subject for the American Bar Association Journal, which article is entitled, "Using Evidence Obtained by Illegal Search and Seizure." The same is found in the August, 1922, issue at page 479, and is well worth careful *Page 394 study. See also an article in the December, 1923, issue of American Bar Association Journal, page 773, by the late Senator Knute Nelson. The article is entitled, "Search and Seizure: Boyd v. United States."

Since this case reached Court en Banc, the learned Attorney-General has filed a brief in which he has cited the leading case in each of the states which have passed upon this vexed question. They are cited in the order of the states. He says the list is substantially correct up to the Reporter publications of the week of January 14, 1924. I will not undertake to verify these citations or to discuss the cases cited or recite what they decide. They show that the weight of authority in the State courts is against the rule announced in the majority opinion. The labor involved in preparing such a list should not be entirely lost and, for the benefit of the interested reader, I herewith set out the cases he has cited, with the years such cases were decided:

Alabama — Banks v. State, 207 Ala. 179, 93 So. 293, 24 A.L.R. 1359 (1921);

Arizona — Argetakis v. State, 212 P. 372 (1923);

Arkansas — Benson v. State, 149 Ark. 633, 233 S.W. 758 (1921);

California — People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383 (1922);

Colorado — Pasch v. People, 72 Colo. 92, 209 P. 639 (1922);

Connecticut — State v. Magnano, 97 Conn. 543, 117 A. 550 (1922);

Delaware — State v. Chuchola, 120 A. 212 (1923);

Georgia — Calhoun v. State, 144 Ga. 679, 87 S.E. 893 (1915); Kennemer v. State, 154 Ga. 139, 113 S.E. 551 (1922);

Idaho — State v. Anderson, 31 Idaho 514, 174 P. 124 (1918); State v. Myers, 36 Idaho 396, 211 P. 440 (1922);

Illinois — Gindrat v. People, 138 Ill. 103, 27 N.E. 1085 (1891); People v. Paisley, 288 Ill. 310, 123 N.E. 573 (1919); *Page 395

Indiana — Callender v. State, 138 N.E. 817 (1922);

Indiana — Flum v. State, 141 N.E. 353 (1923);

Iowa — State v. Tonn, 195 Iowa 94, 191 N.W. 530 (1923);

Kansas — State v. Miller, 63 Kan. 62, 64 P. 1033 (1901); State v. Van Wormer, 103 Kan. 309, 173 P. 1076 (1918);

Kentucky — Youman v. Com., 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303 (1920);

Louisiana — State v. Creel, 94 So. 433 (1922);

Maine — State v. Plunkett, 64 Me. 534 (1874);

Maryland — Lawrence v. State, 103 Md. 17, 63 A. 96 (1906);

Massachusetts — Com. v. Dana, 2 Metc. (43 Mass.) 329 (1841); Com. v. Wilkins, 138 N.E. 11 (1923);

Michigan — People v. Marxhausen, 204 Mich. 559, 171 N.W. 557, 3 A.L.R. 1505 (1919); People v. Case, 220 Mich. 379, 190 N.W. 289 (1922);

Minnesota — State v. Hesse, 191 N.W. 267 (1921); State v. Pluth, 195 N.W. 789 (1923);

Mississippi — Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377 (1922);

Montana — State ex rel. District Court, 59 Mont. 600, 198 P. 362 (1921).

Nebraska — Billings v. State, 191 N.W. 721 (1923); Georgis v. State, 193 N.W. 713 (1923);

New Hampshire — State v. Flynn, 36 N.H. 64 (1858); State v. Agalos, 107 A. 314 (1919);

New Jersey — State v. McQueen, 69 N.J.L. 522, 55 A. 1006 (1903); State v. Lyons, 122 A. 758 (1923);

New Mexico — State v. Barela, 23 N.M. 395, 168 P. 545, L.R.A. 1918-B, 844 (1917);

New York — People v. Adams, 176 N.Y. 351, 68 N.E. 636, 98 A.S.R. 675, 63 L.R.A. 406 (1903); People v. Esposito, 194 N.Y.S. 326,118 Misc. 867 (1922);

North Carolina — State v. Wallace, 162 N.C. 622, 78 S.E. 1, Ann. Cas. 1915B, 423 (1913); State v. Simmons, 183 N.C. 684,110 S.E. 591 (1922); *Page 396

North Dakota — State v. Pauley, 192 N.W. 91 (1922);

Ohio — Ciano v. State, 105 Ohio St. 229, 137 N.E. 11 (1922); Rosanski v. State, 106 Ohio St. 442, 140 N.E. 370 (1922);

Oklahoma — Gore v. State, 218 P. 545 (1923);

Oregon — State v. Laundy, 103 Or. 443, 204 P. 958 (1922);

South Carolina — State v. Prescott, 117 S.E. 637 (1923);

South Dakota — State v. Madison, 23 S.D. 584, 122 N.W. 647 (1909); City of Sioux Falls v. Walser, 45 S.D. 417, 187 N.W. 821 (1923);

Tennessee — Hughes v. State, 145 Tenn. 544, 238 S.W. 588 (1922);

Texas — Welchek v. State, 93 Tex. Cr. App. 271, 247 S.W. 524 (1923); Bell v. State, 94 Tex. Cr. App. 266, 250 S.W. 177 (1923);

Utah — State v. Aime, 220 P. 704 (1923);

Vermont — State v. Suiter, 78 Vt. 391, 63 A. 182 (1905);

Virginia — Lucchesi v. Com., 122 Va. 872, 94 S.E. 925 (1918);

Washington — State v. Gibbons, 118 Wash. 171, 203 P. 390 (1922); State v. Dersiy, 121 Wash. 455, 215 P. 34 (1922); State v. Basil, 217 P. 720 (1923);

West Virginia — State v. Wills, 91 W. Va. 659, 114 S.E. 261, 24 A.L.R. 1398 (1922); State v. Pridemore, 116 S.E. 756 (1923);

Wisconsin — Hoyer v. State, 193 N.W. 89 (1923).

Wyoming — State v. Peterson, 27 Wyo. 185, 194 P. 342 (1920).

I also quote the recapitulation of the Attorney-General, without assuming responsibility for its accuracy, as follows:

"Authorities in point were not found in Florida, Rhode Island, Pennsylvania and Nevada. Missouri is omitted for obvious reasons. Of the other forty-three *Page 397 states, the foregoing table shows that twenty-six of them in cases necessarily determining the point have held that the means by which evidence is obtained does not affect its admissibility, if otherwise relevant; and five other states have announced the same rule in substantial obiter. Ten states where the question was squarely before them announced adherence to their interpretation of the Federal rule and two others in substantialobiter hold likewise. Of the thirty-one states announcing the view contended for by the Attorney-General herein, seventeen of them passed upon the question in cases where it was raised in a preliminary motion or proceeding before the trial, and in the remaining fourteen, it arose upon objection to the evidence. In the twelve states purporting to follow the Federal rule, seven of them passed upon the question where raised by preliminary pleading of some kind, and the other five upon objection to the evidence only."

In the majority opinion Judge WHITE cited and ably discussed the cases which he holds establish the conclusion that the liquor taken from defendant should not have been admitted in evidence in the case at bar. He has also sought to distinguish cases which reached a different conclusion. It is difficult to make such distinction and leave the Federal rule intact.

My own views are that there is no necessary constitutional connection between Sections 11 and 23, Article II, of our Constitution and the fact that articles have been seized in violation of Section 11 does not make their admission in evidence a violation of Section 23. I am unable to comprehend how the use of evidence obtained under a legal search warrant does not violate our constitutional provision "that no person shall be compelled to testify against himself in a criminal cause" just as much as the use of evidence obtained by an unlawful search andseizure violates said provision. If the introduction in evidence of articles unlawfully seized is compelling a defendant to testify against himself, then just *Page 398 as truly the introduction in evidence of articles lawfully seized is compelling a defendant to testify against himself. The distinction is utterly unsound. The attempt to draw such distinction necessarily leads to and has resulted in hopeless confusion in the decided cases. The State courts adopting the rule announced by the majority have yielded reluctantly to the apparent rule of the Boyd Case and have contrived all manner of expedients to avoid its supposed effect, such as contraband exception, use of such testimony when obtained by others than officers, discovery when arrest was for some other misdemeanor or when arrest was upon suspicion of felony and necessity, as in case of search of an automobile.

I think the Ohio case and other cases cited and quoted from are entirely right in holding that a defendant can have no property rights in contraband articles, such as intoxicating liquor, the possession of which is denounced as a crime, and that such defendant is not entitled to have such articles returned to him upon motion, even when admittedly taken from him in violation of Section 11, but I do not think such decisions go to the very heart of the matter. Section 23 has no necessary or logical constitutional connection with Section 11. Articles unlawfully seized may properly be introduced in evidence without violating the provisions of Section 23. If defendant has secured their return before trial because of some lawful property right therein, there is nothing in Section 23 forbidding witnesses to testify at the trial concerning the finding and character of such articles.

My notion about Section 11, Article II, is that it is a provision entirely separate and apart from Section 23, Article II. Section 11 provides for the security of the people from unreasonable searches and seizures. It is not a rule of evidence, and does not purport to be. Its aim is to prevent invasion of the privacy of the citizen and to protect his property rights and the sanctuary of his home. Undoubtedly the wronged citizen may maintain an action for infringement of this right. If the available remedies are not sufficiently deterrent, the Legislature *Page 399 may make infringement of the right a criminal offense and punishable as such. It may authorize a civil suit by the injured party, as for a penalty for his use and benefit, without reference to the actual damages suffered. Because the Legislature has not seen fit to enact such legislation, is no reason why the courts should take Section 11 and read it bodily into Section 23. It will not do to make the violation of this right the basis of a second wrong, to-wit, the injury done the whole people by excluding the evidence thereby obtained and thus permitting violators of the criminal statutes to go "unwhipped of justice."

If evidence can thus be excluded in a prosecution for violation of the Prohibition Law, it will necessarily have to be excluded in all cases, where such evidence has been procured under similar circumstances. The murderer may go free where the sole and conclusive evidence of his guilt is found upon his person or in his home by zealous officials through too hasty or too eager action before a search warrant can be procured. "Suspicion of felony," an exception upon which some of the cases ride off, might not be sufficient protection in all cases. Damning proof of murder or other grave felony has frequently been discovered in the pursuit of one under suspicion for misdemeanor merely. The rule announced in the majority opinion is one fraught with the possibility of serious consequences and capable of far-reaching results. It may be used to cripple most disastrously speedy and effective prosecution of crime.

For the reasons set forth, I respectfully dissent from the conclusion reached in the majority opinion. Walker, J., concurs herein.

Headnotes 1 and 2: Criminal Law, 16 C.J. sec. 1110, andIntoxicating Liquors, 33 C.J. secs. 368, 487; Headnotes 3, 4, 5, 6, 11 and 12: Searches and Seizures, 35 Cyc. 1269, 1273, 1272 (1926 Anno), and Courts, 15 C.J. sec. 317; Headnotes 7 and 9: Intoxicating Liquors, 33 C.J. secs. 397 (1926 Anno), 383 (1926 Anno); Headnotes 10 and 13; Constitutional Law, 12 C.J. secs. 109, 445 (1926 Anno). *Page 400