Defendant was, by information, charged with the crime of feloniously assaulting the prosecuting witness with a pistol. When counsel for the state offered the pistol in evidence, defendant's then counsel claimed surprise, objected to introduction of the article in evidence, and moved its suppression on the ground that the evidence had been obtained from the home of appellant without his consent and without a search warrant. The objection was overruled, the motion was denied on the ground that it was not timely, and the pistol was admitted in evidence. Trial to a jury resulted in a verdict of guilty. Defendant appealed from the judgment and sentence entered against him upon the verdict.
Appellant committed the assault (pointed pistol at the prosecuting witness) 8:15 p.m., March 30, 1942, in the home of the prosecuting witness, 2710 Oakes *Page 93 avenue, Everett, Washington. Very shortly thereafter, appellant returned to his own home at 2601 Oakes avenue, Everett, Washington, where he accidently shot himself in the left leg. He immediately telephoned the information to the prosecuting witness, who at once notified the police. That evening, two local policemen called at the home of appellant, whom they did not then arrest, and learned that he was under the influence of intoxicating liquor. Later the same night (March 30, 1942), appellant was placed in a local hospital to receive treatment for the wound in his leg. March 31, 1942, the day subsequent to the alleged commission of the assault, appellant, on justice court warrant issued against him, was placed under arrest at thehospital for assault alleged to have been committed by him thenight before at the home of the prosecuting witness.
April 1, 1942, a local policeman, accompanied by the prosecuting witness, searched appellant's apartment (his home) without his consent or knowledge and without a search warrant, while appellant was absent therefrom in a local hospital. A thorough search of the rooms on the main floor of appellant's home was fruitless; whereupon, the searching parties — without a search warrant and without permission of appellant, in hope of finding evidence in that home, where the offense was not committed and where appellant was not arrested — unlocked door to basement of home and diligently searched that portion of appellant's home, where they found a pistol.
Appellant's present counsel, who did not represent appellant in the trial court, insists that, as neither he nor appellant was aware, until the pistol was offered in evidence, that appellant's home had been entered and the pistol found therein, the motion to suppress *Page 94 was timely and that the evidence should have been suppressed for the reason that it was obtained without a search warrant.
Counsel for the state admit in this court that the motion to suppress was timely made, but argue that, as the search of appellant's home was incidental to a lawful arrest, the search was "lawful and not an unreasonable one"; therefore, the pistol found on that search was admissible in evidence under authority of State v. Much, 156 Wash. 403, 287 P. 57, and other cases.
In argument for new trial, counsel for appellant contended that the trial court erred in admitting the pistol in evidence. In its memorandum decision, the court correctly conceded, as follows, that the objection to the admission of the pistol in evidence was timely:
"Defendant was arrested on a warrant at the hospital, which hospital was located some distance from his home. On the following day police officers of the City of Everett along with the prosecuting witness went to the home of defendant and, upon search of the basement, found the gun admitted in evidence. The officers had no search warrant or process of any kind authorizing a search of defendant's home. During the course of the trial and at the time the gun was first offered in evidence, defendant's attorney objected and I ruled that the objection was not timely in that no motion had been made for suppression of evidence. Without objection the officer was cross-examined and the facts heretofore recited were brought to light. Defendant's counsel then renewed his objection to the admission of the gun. This last objection was overruled and upon motion for new trial defendant now asserts that the court erred in admitting the gun in evidence.
"Whether or not the objection is made in timely manner is the first question presented. The evidence of the State's witnesses disclosed that defendant was under arrest at the hospital in Everett at the time the *Page 95 search was made, that such arrest was lawful and that the search was made the day after the arrest at the hospital. The record does not disclose whether there was anybody at home at the time of the search and does not disclose whether or not some person may have given consent to a search of the house. Under the record as it stands, however, I am inclined to the belief that the objection to the admission of the gun was made in timely manner under the holding of our court in the case of State v. Raum,172 Wash. 680."
The trial court expressed the view that the search was legal, as it was made incident to a lawful arrest; therefore, the pistol obtained on that search was admissible in evidence.
In State v. Raum, 172 Wash. 680, 21 P.2d 291, which is determinative of the question whether appellant timely objected to admission of the pistol in evidence, we held, in conformity to rule enunciated in State v. Dersiy, 121 Wash. 455,209 P. 837, 215 P. 34, that, where the admitted facts show — as they do in the case at bar — that the articles were obtained on an unlawful search, it is error to admit the articles in evidence, over objection first made when the articles are offered in evidence, since there is no collateral issue of fact to be tried, and nothing for the court to do but sustain the objection.
The founding fathers were aware of the ills to which a republican form of government is peculiarly heir. They were mindful of the fact that a free people too soon forget the fathers' sacrifices which made the heritage of liberty possible, and that, through the years, as they prosper, the people grow more indifferent to, and heedless of, the fundamental principles of government, and fall an easy prey to the slow and insidious encroachment from within upon natural and constitutional rights. *Page 96
". . . the little rift within the lute That bye and bye will make the music mute; And, slowly widening, Ever silence all."
The fathers, warning us — some of our present day members of Congress are tardily endeavoring to awaken the American people from their Utopian dream and challenging them to recapture their constitutional rights — that individual rights and free government would be lost if we were not heedful of the basic principles, wrote
"A frequent recurrence to fundamental principles is essential to the security of individual rights, and the perpetuity of free government." Art. I, § 32, Washington constitution.
Art. I, § 7, Washington constitution, provides that no person shall be disturbed in his private affairs, "or his home invaded, without authority of law."
Clearly, the foregoing provision is mandatory, in view of Art. I, § 29, of our state constitution, which reads as follows:
"The provisions of this constitution are mandatory, unless by express words they are declared to be otherwise."
Rem. Rev. Stat., § 2240-1 prohibits the search of any private dwelling-house without the authority of a search warrant.
The constitutional (Art. I, § 7, Washington constitution) and statutory (Rem. Rev. Stat., § 2240-1) prohibition against the invasion of private dwellings, is declaratory of the common-law right of the citizen not to be subjected to search or seizure without warrant.
Searches and seizures without warrants are out of harmony with the traditions of our government. *Page 97
"Except in the case of stolen goods, there is no power at common law to issue a warrant authorizing the search of a house [see Entick v. Carrington (decided 1765), 19 State Tr., 1029, 1067]. But provision is made by statute for the issue of a search warrant in certain specified cases." 9 Halsbury's Laws of England (2d ed., 1933), p. 101, § 131.
In the notes to the foregoing section is a list of the statutes which authorize issuance of a search warrant.
Entick v. Carrington, XIX State Trials 1030, was an action of trespass by plaintiff against Carrington and three other messengers in ordinary to the king, tried during the sixth year (1765) of the reign of George III. The compiler entitled the cause "The Case of Seizure of Papers," for the reason that the chief point adjudged was that a warrant to search for and seize the papers of the accused, in the case of a seditious libel, is contrary to law. One of the defenses of the defendants in the case was that they seized the papers of the plaintiff by virtue of a warrant issued by one of the principal secretaries of state in the king's name, authorizing them to seize and apprehend the plaintiff and his books and papers, plaintiff being alleged to have written certain seditious papers which grossly and scandalously reflected upon the king and upon parliament.
Counsel for plaintiff argued that a power to issue such a warrant was contrary to the genius of the law of England. In holding that the search and seizure were unlawful, the court used the following language which is apt in the case at bar:
"What would the parliament say, if the judges should take upon themselves to mould an unlawful power into a convenient authority, by new restrictions? That would be, not judgment, but legislation." *Page 98
The English people were so jealous of their rights and so apprehensive of encroachment by the government upon their liberties that, while, at the common law, a private person had the power to arrest, without a warrant, one whom he had a reasonable cause for suspecting of having committed treason or felony, the king had no power to arrest or order the arrest of such a person. 9 Halsbury's Laws of England (2d ed.) p. 85. See, also, 2 Coke's Institutes 186, 187, and case of Lord Kimbolton and the Five Members, 4 State Trials 83, in the year 1641.
It is true that, wherever a valid arrest is made, property found within certain legal limitations, in connection with such arrest, which tends to prove the commission of the crime charged, may be held by the arresting officer for evidence in prosecution of the defendant. The rule that if the arrest is lawful the seizure is lawful is, according to the best considered cases and texts, restricted to property seized by a search of the person or the room where the arrest took place, which property must be of an evidentiary nature, tending to establish the commission of crime. Cornelius, Search Seizure (2d ed.), p. 171, § 46.
"While it is well settled that incidental to a lawful arrest an officer has the right to search the person of the individual arrested and seize any evidence tending to establish `crime,' whether it be the one for which the arrest was made or any other, the cases do not so clearly define how far an officer may go, in searching the room, premises or effects of the person arrested. The following principles, however, are well settled: (1) If thearrest is made outside the home or rooming place of the arrested party the officer has no right to go to the place where he resides and make a search for incriminating evidence [Amos v. United States, 255 U.S. 313, 65 L. Ed. 654,41 S. Ct. 266; Gouled v. United States, 255 U.S. 298, 65 L. Ed. 647,41 S. Ct. 261; Silverthorne Lumber Co. v. United States,251 U.S. 385, 64 L. Ed. 319, *Page 99 40 S. Ct. 182, 24 A.L.R. 1426; Flagg v. United States (C.A.A.), 233 Fed. 481; United States v. Mounday, 208 Fed. 186; UnitedStates v. Mills, 185 Fed. 318; State v. Rowley, 197 Iowa 977,187 N.W. 7]; (2) the officers may seize any articles of an incriminating nature visible to them in the rooms where thearrest is made; (3) the officers have no right to search anypart of the residence of person except the room where thearrest is made.
"So far as a private residence is concerned the Supreme Court of the United States has held such a place can not be searched without a search warrant and that even probable cause to believe that contraband is contained therein would not be sufficient to justify a search thereof without a warrant. And because adefendant is lawfully arrested at the home of another thisgives the officers no right to take the defendant to hishome several blocks distant and search it." Cornelius, Search and Seizure (2d ed.), p. 177, § 50. (Italics mine.)
The fourth amendment to the United States constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In Agnello v. United States, 269 U.S. 20, 70 L. Ed. 145,46 S. Ct. 4, 51 A.L.R. 409, the United States supreme court held that the search without a search warrant of the premises of one (Agnello) of several conspirators who violated the anti-narcotic act, who had been placed under arrest at the residence of one of them, violated the fourth amendment. The court said:
"We think there is no state statute authorizing the search of a house without a warrant; and, in a number of state laws recently enacted for the enforcement of prohibition in respect of intoxicating liquors, there are *Page 100 provisions similar to those in § 25 of the National Prohibition Act. Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. See Entick v. Carrington, 19 Howard's State Trials, 1030, 1066. Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause. See Temperani v. United States, 299 Fed. 365;United States v. Rembert, 284 Fed. 996, 1000; Connelly v.United States, 275 Fed. 509; McClurg v. Brenton, 123 Ia. 368,372; People v. Margolis, 220 Mich. 431; Childers v.Commonwealth, 198 Ky. 848; State v. Warfield, 184 Wis. 56. The search of Frank Agnello's house and seizure of the can of cocaine violated the Fourth Amendment.
"It is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. Boyd v. United States,supra [116 U.S. 616], 630, et seq.; Weeks v. United States,supra [232 U.S. 383], 398; Silverthorne Lumber Co. v. UnitedStates, supra [251 U.S. 385], 391, 392; Gouled v. UnitedStates, supra [255 U.S. 298], 306; Amos v. United States,255 U.S. 313, 316."
The court, addressing itself to the rule as to the scope of search incidental to arrest, said that the right to seize any article of an incriminating nature in the rooms where the arrest is made
". . . does not extend to other place. Frank Agnello's house was several blocks distant from Alba's house, where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests. See Silverthorne Lumber Co. v. United *Page 101 States, 251 U.S. 385, 391; People v. Conway, 225 Mich. 152;Gamble v. Keyes, 35 S.D. 645, 650."
The fourth amendment to the United States constitution, which provides that the right of the people to be secure in their homes against unreasonable searches and seizures — a right which existed as a common-law right prior to the adoption of the Federal constitution — shall not be restricted, has been, as stated above, interpreted by the United States supreme court, which holds, true to Anglo-Saxon traditions, that a man's home is his castle and cannot be searched without a search warrant. The belief, however well founded, that the criminal evidence sought is hidden in a dwelling-house, an apartment, a hotel room, or whatever may be one's home, would not justify a search of the place without a warrant. Agnello v. United States, supra.
The pistol should not have been received in evidence, for the reason that it was obtained by the local police officer without the authority of a search warrant in contravention of Art. I, §§ 7 and 9, Washington constitution (which specifically prohibits — in harmony with the fourth and fifth amendments to the United States constitution and declaratory of the common law — invasion of any person's home without authority of law and guarantees immunity from self-incrimination) and the statute (Rem. Rev. Stat., § 2240-1) which provides,
"It shall be unlawful for any policeman or other peace officer to enter and search any private dwelling-house or place of residence without the authority of a search-warrant issued upon a complaint as by law provided."
In Corpus Juris (56 C.J. 1187) it is stated that the general rule is that the constitutional or statutory guaranties do not prohibit all searches and seizures without a warrant, for the reason that their prohibition *Page 102 is directed against all unreasonable searches and seizures.
Our statute and constitution are not so limited. The interpretation of the qualifying language "unreasonable searches and seizures" by the editor of Corpus Juris is illogical and is contrary to the interpretation by the United States supreme court of the fourth amendment to the United States constitution. SeeAgnello v. United States, supra.
In State v. DeFord, 120 Ore. 444, 250 P. 220, which is followed by State v. Lee, 120 Ore. 643, 253 P. 533 — the Oregon constitution contains the language "unreasonable search or seizure" — the Oregon supreme court applied the rule announced in 56 C.J. 1187, on the ground that, if the possession of a warrant were the test of reasonableness, the force and effect of the word "unreasonable" in the constitutional provision would be lost.
In State v. McDaniel, 115 Ore. 187, 231 P. 965,237 P. 373, which is not discussed in State v. DeFord, supra, andState v. Lee, supra, is the following logical discussion of the question:
"Our attention is called to the proposition that the Constitution is addressed only to the legislature, and there being no law of the state authorizing unconstitutional searches, the officers, at most, were trespassers, and the remedy is against them. But the Constitution is addressed not only to the legislature, but to every officer of the state, including the judiciary. It is said by the Supreme Court of the United States, in the case whose reasoning is adopted by this court in the Laundy case, `The Fourth Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law acting under the legislature or judicial sanction. This protection is equally extended to the action of the government, and officers of the law acting under it. To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance *Page 103 of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.'Weeks v. United States, supra, p. 394 [232 U.S. 383,58 L. Ed. 652, 34 S. Ct. 343]; Boyd v. United States, supra [116 U.S. 616,29 L. Ed. 746, 6 S. Ct. 524]; Adams v. New York, 192 U.S. 585 (48 L. Ed. 575, 24 Sup. Ct. Rep. 372, see, also, Rose's U.S. Notes).
"Besides, the trespass of the officers and the remedy against them has no relation to the competency of the evidence, which is the question here. That is to be determined upon its own merits. If the evidence is made competent by the trespass and the remedy against the trespasser, every confession wrung by an officer from a defendant by force and duress would have to be admitted because the defendant had a remedy against the officer.
"Another question meets us. May a search, without a warrant, be reasonable? It is said that a search with a warrant may be unreasonable, and a search without a warrant be reasonable and lawful, if reasonable. The first proposition is a legal impossibility. An officer with a warrant duly issued who follows its commands cannot make an unreasonable search. It is reasonable because it is lawful. He may exceed his authority, and the search be unreasonable, but in that case he is no longer with a warrant. He loses its protection. It dies in his hands, and he is a trespasser ab initio.
"Nor is the second proposition any sounder. If he makes a search without a warrant, however polite, gentle, or considerate he may be, the search is unreasonable, because it is unlawful. The standard of reasonableness is not the conduct of the officer, but the possession of the warrant."
The constitution of Kentucky provides that the people shall be secure in their persons, houses, and possessions from unreasonable search and seizure. In Youman v. Commonwealth,189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303, it was held that, while it might be thought, in view of the use of the word "unreasonable" in the constitution, a reasonable search and seizure, as one that was not unreasonable, would be allowed without *Page 104 a warrant, but that there was no foundation for such construction; that the constitutional provision does not permit any kind or character of search of houses, papers, or possessions without a search warrant.
"The common-law maxim, `Every man's house is his castle,' is guaranteed by the constitutional provision of `the right of the people to be secure in their person, houses, papers and effects against unreasonable searches and seizures,' and that `no warrant shall issue except upon probable cause, supported by oath or affirmation, describing the place to be searched and the person or things to be seized.' It was said by Lord Chatham that `the poorest man in his cottage may bid defiance to all the forces of the crown; it may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king may not enter, and all his forces dare not cross the threshold of the ruined tenement.'" Bessemer v. Eidge, 162 Ala. 201, 204,50 So. 270, 272.
See, also, 56 C.J. 1190, § 80, to the effect that the search of one's home without a warrant is unreasonable and abhorrent to our laws, and that, under the Federal constitution, no search of a private residence, without invitation or consent, can be made without a search warrant, except when such a search is incident to a lawful arrest. In State v. Slat, 98 W. Va. 448,127 S.E. 191, it was held that a search of a person's house without a valid search warrant is "unreasonable search" within Art. III, § 6 of the constitution of West Virginia, which provides that the rights of the citizens to be secure in their houses against unreasonable searches and seizures shall not be violated.
As stated in Agnello v. United States, supra, the right of the people to be secure in their persons, houses, and effects against unreasonable searches and seizures was not created by the fourth amendment to the United *Page 105 States constitution, but existed as a common-law right before the constitution was adopted.
"It would seem as if, at this late day, these Amendments, which paraphrase the language of a more venerable Bill of Rights, would have had their intendments so fixed and determined by a chain of judicial construction, that little room would any longer exist for a reasonable doubt as to their cogency in any given case. But the case at bar seems to prove the contrary. The natural desire on the part of administrative officials to enforce the penal laws, and of the judiciary to lend vitality to such efforts, has created a shadowy terra incognita, wherein the interests of criminal justice collide with rooted constitutional immunities. Upon this region a great deal of casuistry has been expended in an endeavor to inhibit these immunities from defeating the immediate ends of justice." United States v. Di Corvo,37 F.2d 124.
The fourth amendment to the United States constitution applies solely to the Federal government and its agencies. This state is limited in regard to searches and seizures only by our own constitutional provisions, Art. I, § 7. The rights and privileges saved to individuals by the state constitution cannot be lessened by the state legislature. Art. I, § 7, Washington constitution, limits the authority of our state legislature to enactments providing for searches and seizures, but it is implicit therein that the search and seizure must be reasonable. The legislature prohibited (Rem. Rev. Stat., § 2240-1) the search of any private dwelling house without the authority of a search warrant. Of course, the legislature could not authorize unreasonable searches and seizures. State ex rel. American Mfg. Co. v. Anderson,270 Mo. 533, 194 S.W. 268, L.R.A. 1917E, 833. Statutes which authorize invasion of private premises and the sanctity of the home by search and seizure proceedings are to be strictly construed. *Page 106 Hart v. State, 89 Fla. 202, 103 So. 633; People v. Moten,233 Mich. 169, 206 N.W. 506.
In Cornelius on Search and Seizure (2d ed.) § 138, pp. 315-317, the learned author discusses the subject of statutory prohibitions against the search of private dwellings without warrant. In his forecast, as follows, that we would follow the plain, unambiguous statutory mandate (Rem. Rev. Stat., § 2240-1), the author was not afforded the light of the later opinion of this court in State v. Much, supra, where, in our endeavor to vitalize the efforts of the representatives of another branch of our government to further the ends of justice (convict and execute a cold-blooded murderer), we emasculated the statute, disregarded our constitution, and deprived the defendant of the protection which he should have been afforded under the constitution and the statute:
"Washington also has a drastic statute on the subject making it a gross misdemeanor for an officer to illegally search a dwelling house without the authority of a search warrant and it wouldseem from the language of the Washington statute that any searchof a dwelling house without the authority of a search warrant,would be illegal." (Italics mine.)
All illegal searches and seizures are "unreasonable" under Art. I, § 7, of our state constitution, while, of course, searches and seizures with authority of law are reasonable. In other words, under Art. I, § 7, Washington constitution, and Rem. Rev. Stat., § 2240-1, searches and seizures without a search warrant are illegal unless incidental to lawful arrest.
In State v. Much, 156 Wash. 403, 287 P. 57, we held that the trial court properly received in evidence articles which had been obtained by the officers without the authority of a search warrant. The unsound reason given for disregarding the statute (Rem. Rev. Stat., § 2240-1), Art. I, § 7, Washington constitution, *Page 107 and the overwhelming weight of authority, was that, there being no statute requiring the issuance of a search warrant to search for evidence of a murder, it was not error to receive in evidence articles belonging to the victim, indicating the guilt of the accused, found on a search of the premises of the accused two or three days after his arrest outside his home; since only unreasonable searches without probable cause are forbidden. Obviously, the holding is so patently erroneous that it is hardly necessary to discuss it. The case should be overruled.
In State v. Evans, 145 Wash. 4, 258 P. 845, defendant, who was suspected of having committed a murder in a certain rooming house, was arrested on the street while on his way from the scene of the alleged crime to a room at a hotel in the same town. Following the arrest, he was taken to the police station and subjected to an examination, in the progress of which he made known the place of his room at the hotel. Police officers, without a search warrant, immediately went and searched the room, finding therein a pistol holster which fitted the automatic pistol taken from defendant's person. On the trial, the holster was admitted in evidence over defendant's objection that it had been obtained by an unlawful search. On appeal we held: (1) that the great weight of evidence sustained the trial court's finding that the defendant had consented to the search; and (2), by way of a full paragraph of dictum, that, even if the search of the room had been made without defendant's consent, we would hold the search lawful as incident to the arrest.
In State v. Evans, supra, again the interests of criminal justice collided with statutory and rooted common-law and constitutional immunities — protection against unlawful searches and compulsory evidence. The following dictum, which is unsound and is not, as implied *Page 108 therein, supported by the weight of authority, improperly manifests willingness of a court to deny these immunities if by upholding same the immediate ends of justice might be defeated.
"But were it the fact that the search had been made without the consent of the appellant, we are not willing to hold that the search of his room was unlawful, or the evidence obtained by the search inadmissible. A heinous crime had been committed. The appellant was under arrest as the perpetrator of the crime. There was then in the possession of the officers making the arrest persuasive evidence tending to show that the appellant was guilty of the crime. In so far as our examination of the cases has extended, all of the cases hold, even those which adhere most strictly to the rule that evidence obtained by an unlawful search is inadmissible as evidence, that, where the accused is arrested in his home, or place of residence, a search of the home or place of residence may be lawfully made for evidence of his guilt. In this instance, the defendant was on his way to his place of residence when arrested, and the fact that he was caught before he reached the place ought not to require the application of a different rule." State v. Evans, 145 Wash. 4, 13, 258 P. 845.
A just criticism of State v. Evans, supra, in 3 Wash. L. Rev., pp. 59-61, reads as follows:
"The foregoing decision is undoubtedly correct on the first ground [defendant's consent to the search] stated, since consent waives the requisite of a search warrant. 24 R.C.L. 723; Statev. Tucker, 137 Wash. 162. But the holding next suggested in the paragraph of dictum is without support in the authorities (the court cites none) and is squarely contrary to the epochal decision rendered two years earlier by the Supreme Court of the United States in Agnello v. United States, 269 U.S. 20,46 Sup. Ct. 4, 70 L. Ed. 145 (1925). In that case, the defendant, in company with persons suspected of a felony under the federal antinarcotic act, was observed to leave his home and go to the home of one *Page 109 Alba, where he was arrested while delivering some narcotics. While the defendant was being taken to the police station, certain of the revenue agents and police officers, without a search warrant, went to defendant's house, several blocks from the scene of his arrest, and on search found a can of cocaine, which, over defendant's objection, was admitted in evidence at the trial. It was held by the United States Supreme Court, reversing both federal courts below, that the `search cannot be sustained as an incident to the arrest.' The Court speaking through Mr. Justice Butler, says: `While the question has never been directly decided by this court, it has always been assumed that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein . . . The search of a private dwelling without a warrant is, initself, unreasonable and abhorrent to our laws . . . The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted . . . But the rightdoes not extend to other places . . . Belief, however well founded, that an article is concealed in a dwelling house, furnishes no justification for a search without a warrant. . . . The search of Frank Agnello's house and seizure of the can of cocaine violated the Fourth Amendment.' Further authorities are collected in 32 A.L.R. 697; 51 A.L.R. 434. It has even been held that where a person is arrested on his premises just outside of his house, the house cannot be searched as an incident to the arrest without a warrant. United States v. Steck,19 F.2d 161 (1927). It is to be noted that in the Agnello case, supra, the officers who observed the defendant coming from his house to the scene of the crime where he produced the cocaine had reasonable ground upon which they might have asked for a search warrant, whereas in the instant case in this state where the defendant was arrested with a revolver in his possession while on *Page 110 his way from the scene of the murder to his home (of the location of which the officers had no knowledge until told by the defendant) had no particular grounds to suspect that his room contained any evidence of crime, but were merely engaged in a fishing expedition, and probably could not have sufficiently described any item to be searched for had they been required to ask for a warrant.
"In view of the fact that Rem. Comp. Stat., [Rem. Rev. Stat.] § 2240-1 makes it `unlawful for any policeman or other peace officer to enter and search any private dwelling-house or place of residence without the authority of a search warrant issued upon a complaint as by law provided' (see later case of State v.Buckley [145 Wash. 87, 258 P. 1030], where both this statute and Agnello v. U.S. were cited with approval), and in view of the fact that an examination of the briefs in the instant case does not show that the decision of Agnello v. U.S. was before the court, it is to be hoped that the broad dictum in the instant case will not become the law of this state without re-examination of the question and a full examination of the authorities bearing on it. Considering the state of the authorities that have squarely passed on the question, the dictum does not appear to be a safe one for peace officers to follow."
On pages 1418 et seq., 74 A.L.R. (which annotation supplements annotations in 3 A.L.R. 1514, 13 A.L.R. 1316, 27 A.L.R. 709, and 39 A.L.R. 811), will be found interesting reviews of the cases concerned with the questions of constitutional guaranties against unreasonable searches and seizures, as applied to search for, or seizure of, intoxicating liquor.
In 24 A.L.R. 1408 and 32 A.L.R. 408, the authorities on the subject of admissibility of evidence obtained by illegal search and seizure are reviewed. The general question of the right of search and seizure incidental to lawful arrest without a search warrant, is treated in annotations in 32 A.L.R. 680, supplemented by *Page 111 annotations following Henderson v. United States,12 F.2d 528, 51 A.L.R. 420.
State v. Thomas, 183 Wash. 643, 49 P.2d 28, is not in point. We held in that case that Rem. Rev. Stat., § 2240-1 had no application to a search made as an incident to a lawful arrest.State v. Beaupre, 149 Wash. 675, 271 P. 26, should be overruled. It is bottomed on dictum in State v. Evans,145 Wash. 4, 258 P. 845, which was correct in result for the reason that defendant consented to the search. In State v. Gunkel,188 Wash. 528, 63 P.2d 376, we held that, where objection to receiving in evidence articles unlawfully seized was not made until three months after the seizure, the objection was not timely. That case is not in point.
We should overrule State v. Much, supra, frankly acknowledging that it is not founded on sound reason, and declare the true doctrine as we should have done in that case. The case at bar is one in which personal liberty is involved; therefore, the doctrine of stare decisis may not be successfully invoked to prevent overruling State v. Much, supra (that decision does not constitute a rule of property), which was decided contrary to our statute, to our constitution, to the common law, and to all respectable authorities.
"Infallibility is to be conceded to no human tribunal. A legal principle, to be well settled, must be founded on sound reason."Leavitt v. Morrow, 6 Ohio St. 71, 78, 67 Am. Dec. 334.
See, also, Powell v. Superior Portland Cement, Inc., 15 Wash. 2d 14, 129 P.2d 536.
The motion to suppress as evidence the pistol which was unlawfully seized was timely made by appellant. The admission in evidence against the accused in a criminal case of an article obtained by an illegal search of his home contravenes the guaranty of Art. I, § 7, *Page 112 Washington constitution, and of the statute (Rem. Rev. Stat., § 2240-1).
The judgment should be reversed and the cause remanded for a new trial.
SIMPSON, C.J., concurs with MILLARD, J.