dissenting:
Profound respect for the decisions of the Supreme Court of the United States and for the learning of my associates, who agree with the decision in People v. Brocamp, supra, and the case at bar, tempts me to submit to their view, but I consider the question of evidence involved of such great public importance that I feel compelled to dissent, even at the risk of a charge of presumptuousness. I yield to no man in his reverence for the constitution nor his devotion to the cause of freedom of human action. I deplore the assaults on personal liberty by misguided individuals and over-zealous peace officers. I realize to its fullest extent the dangers lurking in the tendency to invade the field of personal liberty and to make our people the subjects of a government. Severe condemnation and vigorous prosecution of those clothed temporarily with governmental authority who violate the sanctity of the home meets with my hearty approval; but respect for the constitution cannot be established by returning contraband goods to those who scorn the constitution and who scoff at all law.
Section 6 of article 2 of our State 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 warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.” How can this plain and wholesome guaranty of our bill of rights be distorted to read: “No person or his house or effects shall be searched, or himself or things in his possession seized, except by virtue of a search warrant issued after a showing of probable cause supported by affidavit particularly describing the place to be searched and the person or thing to be seized?” If the writers of the State and the Federal constitutions had intended that there could be no lawful search and seizure without a warrant they would have said so. That they did not consider all searches and seizures made without a warrant unreasonable is manifest, because the constitution contains no prohibition against arrest, search or seizure without a warrant. The common law, with which they were undoubtedly familiar, authorized arrests, searches and seizures without a warrant under certain circumstances, (Cahill v. People, 106 Ill. 621; 4 Blackstone’s Com. 292; 1 Hale’s Pleas to Crown, 587;) and being lawful they were reasonable. They are unreasonable only when there is in law a want of probable cause. If the officer has personal knowledge of the probable cause he does not need the affidavit of some other person to advise him. To hold no accused or suspected person can be arrested and searched for tokens of crime without a' warrant would be to leave society at the mercy of the shrewdest criminals. The section is aimed at the use of general warrants issued without a showing of probable cause, which describe neither the place to be searched nor the person or thing to be seized. It protects the citizen from an unreasonable search in any case, whether with or without a warrant, and requires that when warrants are issued they shall be specific as distinguished from general.
With this brief explanation of the purpose of the constitutional provision I pass to the real question in issue: Is an article seized without a search warrant inadmissible in evidence notwithstanding its admitted relevancy to the issue? This is a simple question of evidence and ought not to be confused with a discussion wholly foreign to principles of evidence. Conceding, for the purpose of the discussion to follow, that the liquor in question was illegally seized, I undertake to demonstrate the fallacy of the Federal rule which this court now adopts.
Greenleaf says (vol. 1, — 15th ed. — sec, 254a): "Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, — whether lawfully or unlawfully, — nor will it form an issue to determine that question.” Prior to the decision in People v. Brocamp, supra, this court had held in an unbroken line of decisions that the admissibility of evidence is not affected by the illegality of the means by which the evidence was obtained. (Stevison v. Earnest, 80 Ill. 513; People v. Paisley, supra.) The rule is• supported by the great weight of authority. (Wigmore on Evidence, — 2d ed. — sec. 2183; 8 R C. L. 196; 10 id. 932; Annotation, 24 A. L. R. 1408.) The unlawful act of procuring the evidence is not condoned; it is merely ignored.
The soundness of this rule of evidence was never doubted until contrary dicta appeared in Boyd v. United States, supra, decided in 1885. The sole question to be decided in that case was whether a certain statute, and order of court entered pursuant thereto, which, in effect, compelled a defendant to furnish evidence against himself, were violative of the privilege guaranteed by the fifth amendment to the Federal constitution. In the decision of that question the guaranty of the fourth amendment against unreasonable search and seizure was confounded with the question at issue, and a large part of the opinion is devoted to a discussion of this question, which was not at all involved. In 1904 the Federal Supreme Court, in the Adams case, repudiated the obiter dicta of the Boyd case and declared the rule as stated by Greenleaf to be the true rule. In discussing the right of the prosecution to use in evidence articles illegally seized it was said: “In such cases the weight of authority, as well as reason, limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained.” Authorities holding that the court will not form an issue to determine this collateral question were cited and quoted with approval. The Adams case was approved in Hale v. Henkel, 201 U. S. 43, and Holt v. United States, 218 id. 245. This remained the rule for ten years, and then the Supreme Court held in the Weeks case that where a motion is made, before the opening of the trial, for the return of the property illegally seized, it must be returned and cannot be received in evidence. Seven years later, in the Gouled case, the court returns to the construction placed on the fourth amendment to the Federal constitution announced in the Boyd case and holds that evidence illegally obtained is not admissible. In the Gouled case the court goes further and holds that all searches and seizures without a warrant are unreasonable. No authority is cited for this holding, and I think none can be found. It is contrary in principle to the holding in Stroud v. United States, 251 U. S. 15, that letters written by a prisoner and handed to the keeper for mailing can be seized and used as evidence against him.
, In the Weeks case the general rule that the court will not interrupt the orderly trial of a cause to try a collateral issue was recognized, but it was said that the court would inquire into the method of procuring the evidence if a petition properly presenting the question were filed with the court before the trial began. Thus the defendant’s constitutional right to be protected from unlawful search and seizure was made to depend upon his raising the question in a particular way at a specified time. Can it be that the-protection of a citizen’s constitutional rights is dependent upon a mere rule of practice ? Is the clever crook, or the one able to hire skilled counsel, who knows just when and how to raise the question, to be protected, while the amateur lawbreaker or the innocent victim unfamiliar with court procedure loses his rights under the constitution because he did not proceed thus and so ? The court fails to make clear how a collateral fact is made material by the specified procedure. The question of illegality of method in obtaining evidentiary materials is collateral to the main issue, and motions without number will not make it anything else. In the Gouled case the court went further, and held that the fact that evidentiary materials had been illegally seized by a Federal officer could be shown at any time the evidence was offered.
In the Weeks case, and in Burdeau v. McDowell, 256 U. S. 465, it was held that evidence illegally seized was inadmissible only when the illegal seizure was made by a Federal officer. Evidence seized by city police officers and private citizens was received in evidence on the ground that the government was not bound by their acts. That the inadmissibility of evidence can be made to depend upon the antecedent and wholly unrelated fact that the unreasonable search by which it was unlawfully obtained was made by a petty Federal officer instead of by a city policeman or a private individual is not founded in reason or law. The policeman takes substantially the same oath to uphold the law of the land that the Federal peace officer takes. If it is the purpose of the rule to protect the outraged citizen he is entitled to the protection under one situation as much as under the other. The unsoundness of the rule rests in the erroneous assumption that the people are bound by the wrongful acts of public police officials employed by their government and that the people are to be punished for those acts by the court’s refusing to receive evidence illegally obtained. Professor Wigmore illustrates the result of the rule this way: “Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the constitution. Titus ought to suffer imprisonment for crime t> and Flavius for contempt. But no! We shall let you both go free. We shall not punish Flavius directly but shall do so by reversing Titus’ conviction. This is our way of teaching people like Flavius to behave and of teaching people like Titus to behave, and incidentally of securing respect for the constitution. Our way of upholding the constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else.” (Wigmore on Evidence, — 2d ed. — sec. 2184.)
Many State Supreme Courts of first rank have refused to follow the Federal rule, but we shall quote from only a few of them. In Commonwealth v. Wilkins, (Mass.) 138 N. E. 11, after full consideration of the question it is said: “We are unable to assent to the distinctions established by the Federal decisions. The presentation of evidence in court in prosecution of crime is by the district attorney, who for that purpose is the representative of the government. He, alone, decides what evidence shall be offered. It seems to us that whether physical property seized through an unreasonable search should be received in evidence when presented by the government attorney cannot soundly depend upon the antecedent and disconnected fact that the unreasonable search by which it was unlawfully obtained was made by a police officer without any warrant instead of by a private individual acting on his own responsibility. The decisions of the United States courts and all other courts appear to be unanimous in holding that in the latter instance property will be admitted in evidence, if otherwise competent, against the owner on trial for a crime. We prefer to adhere to our rule, which makes the competency of evidence depend upon its inherent probative value rather than upon outside circumstances, and which leaves the redress of grievances for invasion of constitutional rights to the usual and adequate provisions of the civil and criminal law.”
In People v. Mayen, (Cal.) 205 Pac. 435, we find this significant language: “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 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 transomlight. 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.”
The Supreme Court of Iowa, in State v. Tonn, 191 N. W. 530, after a full re-investigation of the question, repudiated the rule established by the Federal courts, saying: “The due administration of the criminal law would be seriously hampered, and in many cases entirely subverted, by a strict adherence to this rule. We would not detract one iota from the full protection vouchsafed to the citizen by the constitutional provisions. A trespassing officer is liable for all wrong done in an illegal search or seizure. The constitutional provision is a sacred right and one which the courts will rigidly enforce, but that does not mean that the State, in the prosecution of crime, cannot use any proper evidence available to it without stopping to conduct an independent inquiry in the criminal proceeding as to how that evidence was obtained. Great public interests are involved in the due and efficient prosecution of crime. The vital question is whether or not the evidence is competent ' and relevant to the issue on trial.”
In Lawrence v. State, 103 Md. 17, 63 Atl. 96, police officers had taken from the satchel of the defendant certain documents, and he objected to the receiving of them in evidence on the ground that they were taken from him in violation of his constitutional right to security from unlawful search and seizure of his property, and that the production of them in evidence was, under the circumstances, a compulsion upon him to give evidence against himself. The court disposes of this contention, saying: “It would seem upon reason and the great preponderance of authority that the manner in which the State secured control of these articles did not make them inadmissible in evidence upon the ground last referred to. The true effect of the constitutional provisions here invoked against the admissibility of the evidence in question has been declared by the courts to be that they are inhibitions upon governmental action, and intended to prohibit legislation that may be oppressive to the citizen by subjecting him to vexatious and unreasonable search and seizure of his property, and compelling him, when accused of crime, to give evidence against himself, as also to restrain the courts from making use of their process to vex and oppress him in like manner; that they have no application to the irregular and unlawful acts of individuals.”
The Supreme Court of Kansas in State v. Turner, 82 Kan. 787, 109 Pac. 654, declares that “the rule authorizes the use as evidence not only of articles taken by force, but also of those which the defendant has been coerced into delivering. The manner of their procurement, however reprehensible, will not prevent their use as evidence so long as the person against whom they are used has not been constrained by the court to procure them. A document that has been taken stealthily from the defendant’s desk or forcibly from his pocket, or that he has surrendered under a threat of personal violence, may be used against him, because its wrongful procurement creates no estoppel, and the story it tells is its own and not that of the defendant.”
In State v. Barela, 168 Pac. 545, the Supreme Court of New Mexico states the general rule to be, that “the admissibility of evidence is in no way determined or affected by the manner in which or the means by which it is obtained. If it is otherwise competent and relevant to the issues in the case it is admissible, and does not violate either the constitutional guaranty against unlawful searches and seizures • or against involuntary self-incrimination. * * * The provision against unreasonable searches and seizures refers to searches and seizures by the government through legislative or judicial sanction and not to the private acts of individuals. The provisions against self-incrimination are limited to testimonial compulsion under process of some kind directed against the defendant as a witness. It does not and cannot logically apply to actions of the defendant under compulsion of persons or officers without judicial sanction. In such cases the physical facts speak, not the defendant as a witness.”
In State v. Chuchola, (Del.) 120 Atl. 212, police officers without a proper search warrant searched the residence of the defendant and seized certain intoxicating liquors. In denying a petition to return the seized articles and holding it proper to use them as evidence the court said: “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. * * * The denial of the use in evidence of articles 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 acts should not prevent the use of the thing seized in evidence, and certainly not if its possession constituted the' crime charged.”
In State v. Krinski, 62 Atl. 37, the Supreme Court of Vermont says, that however the Federal rule may be regarded, “there is a plain distinction between the seizure and production of papers which are not the basis of the charge and are merely of an evidentiary character, and the seizure and production of property kept for an illegal use,” and holds that the trial court properly refused to inquire into the legality of the seizure of intoxicating liquor offered as evidence in a prosecution for its unlawful possession. To the same effect are Rosanski v. State, 106 Ohio St. 442, 140 N. E. 370, and State v. Simmons, 183 N. C. 684, 110 S. E. 591.
To quote at length from the scores of decisions which adhere to the same rule of evidence would unnecessarily lengthen this opinion'. It is all-sufficient to say that practically all the States have adopted and repeatedly approved the rule. A few of the decisions declaring against the Federal rule, in addition to those hereinbefore cited, are Banks v. State, 207 Ala. 179, 24 A. L. R. 1359; Venable v. State, (Ark.) 246 S. W. 860; State v. Magnano, 97 Conn. 543, 117 Atl. 550; Johnson v. State, 152 Ga. 271, 19 A. L. R. 641; State v. Burroughs, 72 Me. 479; State v. Hesse, (Minn.) 191 N. W. 267; Billings v. State, (Neb.) 191 N. W. 721; State v. Pauley, (N. D.) 192 N. W. 91; State v. Agalos, 79 N. H. 241, 107 Atl. 314; People v. Adams, 176 N. Y. 351, 68 N. E. 636, (aff. 192 U. S. 585, 24 Sup. Ct. 372;) Knight v. State, 16 Okla. Crim. 298, 182 Pac. 734; State v. Ware, 79 Ore. 367, 154 Pac. 905; State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; State v. Madison, 23 S. D. 584, 122 N. W. 647; Welchek v. State, (Texas) 247 S. W. 524; and Lucchesi v. Commonwealth, 122 Va. 872, 94 S. E. 925. This view is further supported by the decisions of eleven more courts, (Imboden v. People, 40 Colo. 142, 90 Pac. 608; State v. Anderson, 31 Ida. 514, 174 Pac. 124; People v. Campbell, 160 Mich. 108, 125 N. W. 42; Pringle v. State, 108 Miss. 802, 67 So. 455; State v. Pomeroy, 130 Mo. 489, 32 S. W. 1002; State v. Fuller, 34 Mont. 12, 85 Pac. 369; Knight v. State, 16 Okla. Crim. 298, 182 Pac. 734; State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; Cohn v. State, 120 Tenn. 61, 17 L. R. A. (N. S.) 451; State v. Royce, 38 Wash, in, 80 Pac. 268; and State v. Edwards, 51 W. Va. 220, 59 L. R. A. 465;) but in later decisions these courts follow the Federal rule. There are but four more States to be added to those approving the Federal rule: Indiana, Kentucky, Wisconsin and Wyoming. It may be safely said that no State court of last resort on its own judgment, independent of the influence of the Federal cases, holds contrary to the rule announced in this dissent, and the decisions of the Supreme Court of the United States are in conflict on the question..
The suggestion that the court will halt a trial to determine whether a confession is voluntary before it will receive evidence of it is entirely beside the point. Involuntary confessions are rejected not because of the illegal or deceitful methods employed in securing them but because of their unreliability. The rule is thus stated in Commonwealth v. Morey, 1 Gray, 461: “The ground on which confessions made by a party accused, under promises of favor or threats of injury, are excluded as incompetent, is not because any wrong is done to the accused in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him, without regard to their truth, in order to obtain the promised relief or avoid the threatened danger, and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted.” In People v. McMahon, 15 N. Y. 384, the rule that such confessions are excluded on the ground of their want of reliability is thus stated: “The principle upon which this rule is based is obvious. It is, that we cannot safely judge of the relation between the motives and the declarations of the accused when to the natural agitation consequent upon being charged with crime is superadded the disturbance produced by hopes or fears artificially excited. It is because it is in its nature unreliable, and not on account of any impropriety in the manner of obtaining it, that the evidence is excluded. In this all the authorities agree. Mr. Phillips, speaking on this subject, says: ‘A confession so obtained cannot be received, on account of the uncertainty and doubt whether the prisoner might not have been induced, from motives of fear or interest, to make an untrue statement’ ” In State v. Carrick, 16 Nev. 120, it is said that it is only when the wrongful acts “exercise such an influence over the mind of the accused as to induce him to state things that are not true, that will authorize the courts to exclude the confession or admission. The law in its general application to this question, as well as others, is founded in reason and common sense. Its object is to ascertain the truth, and it is not its purpose to reject any reliable and competent means of attaining it.” Greenleaf says: “The object of all the care which is taken to exclude confessions which were not voluntary is to exclude testimony not probably true.” Wigmore says: “The principle, then, upon which a confession may be excluded is that it is under certain conditions testimonially untrustworthy.” In State v. Turner, supra, the Supreme Court of Kansas says: “Extorted confessions are not excluded as a rebuke to those who have obtained them, but because they are regarded as of doubtful credibility.”
Without further extending this division of the opinion, I cite in support of the foregoing, Roesel v. State, 62 N. J. L. 216, 41 Atl. 408; State v. Willis, 71 Conn. 293, 41 Atl. 820; People v. Wolcott, 51 Mich. 612, 17 N. W. 78; State v. Novak, 109 Iowa, 717, 79 N. W. 465. This principle of testimonial untrustworthiness being the foundation of exclusion, it follows that the exclusion is not rightly rested on the privilege against self-incrimination and other plausible theories. (2 Wigmore on Evidence, — 2d ed.— sec. 823.) The rule is settled that notwithstanding the inadmissibility of the confessions, all facts discovered in consequence of the information given by the accused, and which go to prove the existence of the crime of which he is suspected, are admissible as evidence. Gates v. People, 14 Ill. 433; 2 Wharton on Crim. Evidence,—10th ed.— 1398; 2 Bishop’s New Crim. Proc.—2d ed.—1061; 3 Ency. of Evidence, 341.
The Federal courts go still further, and hold that the admission, over the objection of the accused, of evidentiary articles seized without a search warrant is in violation of the fifth amendment to the Federal constitution, because it is, in effect, compelling the accused to testify against himself. The fifth amendment states that the accused shall not be compelled in any criminal case to be a witness against himself, — that is, he is privileged from taking the witness stand and submitting to examination by the court or the prosecuting attorney. He is privileged from producing evidence against himself but not from its production. (Johnson v. United States, 228 U. S. 457; State v. Flynn, 36 N. H. 64.) Instruments of crime and fruits of crime speak for themselves, and there is nothing in the constitution nor in the historical background of the constitutional provisions under consideration to prevent these mute witnesses from testifying against their criminal associates. If the production of articles of evidentiary value which have been seized without a search warrant amounts to compelling the accused to be a witness against himself, then the production of the same articles seized under a search warrant is in violation of the fifth amendment. The result is exactly the same to the one accused. In either case he is the unwilling source of the evidence. The most casual examination of the history of this provision found in the constitution of the United States and of forty-six of the States shows that the privilege is personal. The extreme brevity of the clauses naming the privilege is plain proof of an intention to recognize, and not create, the privilege. There is no attempt to codify the various details of the rule or to alter in any respect the scope of the privilege as already understood, accepted and judicially developed at the time the several constitutions were adopted. The rule was the natural outgrowth of the opposition to the practice of compulsory disclosure, and especially to the abuse of the inquisitorial powers of the prosecuting officers 'and judges. For an enlightening discussion of the history of the development of this privilege see Wigmore on Evidence, (2d ed.) sections 2250 to 2252. There is no more reason for excluding the story which evidentiary articles can tell, if their story is relevant, than for excluding the story of persons discovered and brought into court notwithstanding the effort of the accused to conceal them. If the accused concealed in his house a person having knowledge of his crime, and the officers, without a warrant, searched the house, found the witness and forcibly presented him in court, would the witness be incompetent? Would the court require that the witness be returned to the accused ? That these questions must be answered in the negative seems too plain for argument. Then why return a still, or counterfeiter’s tools, or gambling implements, or stolen goods seized without a search warrant? They have a story to tell, and it is relevant; and more, it is true. Without extending this division of my discussion further, I say the holding that the production of contraband articles seized from the accused without a search warrant is compelling the accused to be a witness against himself is without foundation in fact, in reason or in law.
The object of the constitutional guaranty against unlawful search and seizure is to protect the citizen from domestic disturbance by disorderly intrusion by irresponsible administrative officials. The provision implies a remedy in the courts, and it is a slander of our much-boasted American justice to say that the remedy is not to be had if it is sought. Positive refutation of such unjustified slander is found in the reports of decisions in every jurisdiction in the United States. Civil damages have been awarded aggrieved persons and the offending officials have been fined and imprisoned. The fallacy of the doctrine of the Federal courts is in assuming that constitutional rights of the defendant are violated by using his private papers and property as evidence against him, whereas it is the invasion of his premises and the taking of his goods that constitute the offense, irrespective of what is taken or what use is made of it. The return of the property is nowhere guaranteed in the constitution. The injury occasioned by the unlawful intrusion is not redressed by a mere return of the property unlawfully seized. For a court to refuse to receive evidence relevant and otherwise admissible because it was unlawfully procured is to seek to right one wrong by committing another. Is it possible that property unlawfully seized must be returned to the person from whose possession it was taken regardless of the character of the property? Must a court compel police officers to return bombs and dangerous explosives seized in an anarchists’ den because the anarchists did not invite the officers to visit their den and did not voluntarily deliver to them the instrument talities by which they intended to destroy the property of the State and to kill all public officials, including the judge who must order the articles returned and the police who seized them? Must an officer who finds a cache of stolen property procure a search warrant before he can seize the property? How is he to particularly describe the “things to be seized” before he sees them? The rule seems to be universal that where a defendant is personally searched at the time of his arrest, the property taken from him which is in any way connected with the crime charged or which may serve in identifying the prisoner may be used in evidence against him on the trial. Why is it not equally admissible when seized a few minutes after his arrest although not in his actual presence? It is just as germane to the question being tried. A dwelling house may be a man’s castle, but it is also possible that it is a thieves’ den or a robbers’ rendezvous. A man’s house is no more sacred than his person, and if his person can be searched so can his house. The constitution does not prohibit all searches and seizures but only those which are unreasonable. If the search is unreasonable and unlawful he has his remedy, but the reasonableness or lawfulness of the search cannot be determined without making an issue of that fact in a proper proceeding. The law provides a remedy for any wrong done, and the complaining citizen should be referred to that remedy. The return of the property with due apologies for the outrage cannot be made a substitute for the action for damages. If the court is of the opinion that the prosecuting attorney is in conspiracy with the offending officers and that he will not prosecute them, it should-exercise its right to appoint a special prosecutor to see that the law is vindicated and not undermine the foundations of our judicial system by refusing to receive relevant and competent evidence in a criminal or civil proceeding.
The purpose of the constitutional guaranty is to protect the citizen from governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority and was not intended to protect the citizen from trespasses of individuals. The constitutional provision is a safeguard to protect the intimate sanctity of the person and the home from invasion by the State. The purpose is to provide against any attempt, by legislation or judicial order, to authorize, justify or declare unlawful any unreasonable search or seizure. Gindrat v. People, supra; Burdeau v. McDowell, supra; People v. Mayen, supra.
In the case at bar the State has not by legislative act nor by judicial order attempted to make lawful an unreasonable search and seizure. The question of the legality of the search of the dwelling house of plaintiff in error was collateral to the question, Did he possess for a prohibited purpose intoxicating liquor ? — and this collateral fact could not be turned into a material fact merely by making a formal motion before trial. The court properly denied the request of plaintiff in error to return to him the contraband liquor seized and properly overruled the objection to its admission in evidence.