I concur in the dissenting opinion of Mr. Justice Watts and wish to add a few observations of my own in support of his conclusion.
I think that the constitutional guaranty of immunity from unreasonable searches and seizures conferred by Article 1 § 16, of our Constitution — "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated" — extends not only to the fact of search and seizure, but to every incident of such unlawful act. To hold that the citizen shall enjoy such immunity, and yet when it is flagrantly violated, his person shall be subjected to punishment and his property confiscated, upon the strength of evidence thus unlawfully obtained, is but to "keep the promise to the ear and break it to the hope."
It seems to me that the very words of the Constitution render it impossible to offer in evidence "papers or effects" thus unlawfully obtained. Can it be said that his "person" was rendered secure from such search while the evidence *Page 27 thus obtained is used to place that "person" behind the bars or made to crack rock on the public highways? Can it be said that his "papers or effects" were rendered secure when they are abstracted from his possession and used as evidence against him?
It is contended that whatever may be evidence is evidence however obtained, and that the defendant's remedy is an action for damages against the trespasser or a criminal prosecution against him whenever the Legislature sees fit to make such trespass a crime. I do not think that this meets the question of the defendant's rights under the Constitution. They are that his person, house, papers, and effects shall be secure from unreasonable search; that security should extend to every incident of such search; otherwise the immunity is but a mockery.
The State is the Fountain of Law and Justice. It is the last one to condone or seek to obtain an advantage by the infraction of the law. It is beneath the dignity of the State to juggle with the constitutional rights of a citizen and by refined reasoning to employ tainted evidence to convict him. As the Supreme Court of the United States has said in the Silverthorn Case, 251 U.S. 385; 40 Sup. Ct., 182;64 L.Ed., 319:
"If knowledge of them is gained from an independent source, they may be proved like any others; but the knowledgegained by the government's own wrong cannot be usedby it in the way proposed."
The State cannot afford to be the receiver of stolen goods.
I think it is against public policy to admit such evidence. Once lay down the law that, however unlawful the search may have been, the fruits of that search are admissible evidence, those engaged in the enforcement of a particular law, who themselves should be the strongest advocates of respect for the law, will trample it under their feet in eagerness to reach their quarry; houses will be entered at night, citizens will be held up on the street, automobiles carrying women *Page 28 will be shot into on the highways, in defiance of the law and with supreme indifference for their personal accountability. If such a holding induces such conduct, the law should remove the inducing cause.
It is bound to lead to bloodshed. If the officers persist in an admittedly unlawful procedure, they may expect justifiable resistance, and it is a question which side of the controversy will suffer most. It seems a pity to me that the Courts should offer any encouragement whatever to a course which must eventuate in trouble.
I can see no reason why there should be a departure from the well-established principles of the law, in aid of the enforcement of any particular law. If there is to be a departure in aid of efforts to enforce the prohibition law, which appears to monopolize a major portion of the time of officers, state and federal, why not extend the departure to all crimes.malum in se, and otherwise? And why not, which would appear more justifiable, go the entire length of abrogating the Constitution and give officers the right to search and seize without warrants?
The difficulties of enforcing the prohibition law are appreciated, and there is no doubt that the right to search without a warrant or to use evidence thus obtained would greatly add to the efficiency of the crusade; at the same time, this Court, through Mr. Justice Gage, than whom no South Carolina Judge ever had a greater sympathy for the enforcement of this particular law, remarked in the Beam Case,104 S.C. 146; 88 S.E., 441; L.R.A., 1916E, 714:
"Some things are to be more deplored than the unlawful transportation of whiskey; one is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person, and he who accomplishes it must do so in conformity to the laws of the land. There are two reasons for this — one to avoid bloodshed, and the other to preserve the liberty of the citizen. *Page 29 Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.
"In the instant case the possession of the liquor was the body of the offense; that fact was proven by a forcible and unlawful search of the defendant's person to secure the veritable key to the offense. It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him. * * * It is better that the guilty shall escape, rather than another offense shall be committed in the proof of guilt."
I do not see how it is possible to differentiate the case at bar from recent decisions by the Supreme Court of the United States construing the Fourth Amendment to the United States Constitution, which is identical in terms with Article 1, § 16, of our Constitution. It is true that those decisions are not controlling upon this Court, as it has been held that the security offered by the Fourth Amendment applies solely to action under Federal authority or by Federal Officers. Burdeau v. McDowell, 256 U.S. 465,41 Sup. Ct., 574; 65 L.Ed., 1048; 13 A.L.R., 1159. Yet it goes without saying that they are entitled to the greatest respect, and conformity to them conduces to uniform interpretation of the law in a matter in which the State and Federal authorities have concurrent jurisdiction.
In Amos v. U.S., 255 U.S. 313; 41 Sup. Ct., 266;65 L.Ed., 654, a search of the defendant's house was made in the daytime by Federal Officers; they had neither arrest warrant nor search warrant; bottles of whiskey were found in the defendant's house. Upon the trial these evidences of the charge were offered and admitted over the defendant's objection. Upon appeal the Court held that the search was plainly in violation of the Fourth Amendment and that the evidence should not have been received.
In Gouled v. U.S., 255 U.S. 298; 41 Sup. Ct., 261;65 L.Ed., 647, an officer of the government clandestinely, without search warrant, gained entrance to the defendant's office *Page 30 and abstracted certain papers of an evidentiary character which were offered in evidence upon the trial. The Court held that the papers were inadmissible under both the Fourth and Fifth Amendments.
In Honeycutt v. U.S. (C.C.A.), 277 Fed., 939, the Government was allowed to introduce in evidence certain goods alleged to have been received by the defendant knowing that they were stolen. The goods had been taken from the defendant's possession by a Government Officer under a void search warrant. The Court held that as the goods had been illegally seized they were inadmissible as evidence against the defendant.
In Woods v. U.S. (C.C.A.), 279 Fed., 706, it is held that evidence procured under a void search warrant cannot be admitted.
In U.S. v. Falloco (D.C.), 277 Fed., 75, it was held that although State Officers made the unlawful search, the evidence obtained was inadmissible if the Federal Officers co-operated with them. To the same effect is U.S. v. Case(D.C.), 286 Fed., 627.
In Salata v. U.S. (C.C.A.), 286 Fed., 125, it was held that evidence obtained under an admittedly invalid search warrant should not be received.
In Murphy v. U.S. (C.C.A.), 285 Fed., 801, it was held that in the absence of any invitation or consent, defendant's house and store could not be lawfully searched or his property seized without a search and seizure warrant, and evidence so obtained could not be used against him. The Court says:
"Volati's contention that the money taken from the till in his store (four of the $1 bills originally in the stolen mail pouch) without a warrant could not be used as evidence against him is so well taken that discussion is unnecessary."
In Snyder v. U.S. (C.C.A.), 285 Fed., 1, it was held in a case of search and seizure in the enforcement of the prohibition *Page 31 law, that evidence obtained from the defendant by an unlawful search was inadmissible against him.
In Giles v. U.S. (C.C.A.), 284 Fed., 208, it was held that liquor seized after search of a store under an illegal search warrant was inadmissible.
This rule is followed in Kentucky: Smith v. Com.,197 Ky., 192; 246 S.W. 449. Fairchild v. Com., 197 Ky., 308;246 S.W. 786. Hale v. Com., 197 Ky., 214;246 S.W., 787. Shell v. Com., 197 Ky., 264; 246 S.W. 797. Foleyv. Com., 197 Ky., 226; 246 S.W. 800. Taylor v. Com.,197 Ky., 289; 246 S.W. 814.
In Michigan: People v. Effelberg, 220 Mich., 528;190 N.W., 727, People v. Knopka, 220 Mich., 540;190 N.W., 731. People v. Case, 220 Mich., 379; 190 N.W., 289.People v. Margolis, 220 Mich., 431; 190 N.W., 306.
In Mississippi: Taylor v. State, 129 Miss., 815;93 South., 355. Butler v. State, 129 Miss., 778; 93 South., 3.
In West Virginia: State v. Wills, 114 S.E., 261. Statev. Andrews, 114 S.E., 257.
Many other States take the same view, but it must be admitted that a majority are opposed to it.
The vice in the argument sustaining the admissibility of the evidence is in the assumption thus expressed in Peoplev. Mayen (Cal. Sup), 205 Pac., 435:
"The trespass committed in the wrongful seizure of these personal effects by unauthorized officers, and the subsequent use of the same in evidence on the part of the prosecution,were in legal effect entirely distinct transactions with nonecessary or inherent relation to each other."
That is an assumption pure and simple, and takes for granted the turning point in the question. In my opinion they are intimately connected; the purpose of the search being to obtain the evidence, and this to be followed by its introduction.
I concede that my conclusion is not in accord with the later decisions of this Court, but it is in accord with the *Page 32 earlier decisions which have been allowed to stand. In this situation I think it is the wiser course to fall in line with the federal decisions and to secure harmony in the interpretation of a vexed and constantly recurring question. It does not add any great respect for the administration of the law to have divergent views of the same question in Courts of concurrent jurisdiction in the same territory.
MESSRS. MEMMINGER, WILSON and DeVORE, Circuit Judges, concur.