(dissenting): The clash in legal principles here is whether a provision of our constitution is to be rendered meaningless by a rule of evidence. We have on the one hand the provisions of our state constitution:
“The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.” (Bill of Rights, § 15.)
And in criminal proceedings, “No person shall be a witness against himself, . . (Bill of Rights, §10.) The principles here announced have grown out of the history of our civilization. They are embodied in our federal constitution (4th and 5th Amendments) and in the constitutions of most of the states and have long been regarded as characteristic of and essential to the. government of a free people.* On the other hand, we have the general rule of evidence that in the trial of a criminal case when evidence is offered which is competent and material to the issue then before the court, it will not be excluded because of the manner its possession was obtained by the party offering it. This rule has been long estabhshed, has become firmly fixed in the law of evidence, and is founded upon the reasons, first, that the court will not stop the trial of one charged with crime to try the collateral question of whether evidence offered was improperly obtained, and second (and by far more important), one charged with crime, if guilty, should not escape merited punishment because some one has proceeded irregularly or *67even unlawfully in.procuring the evidence which establishes his guilt.
When those conducting the prosecution have proceeded to obtain evidence in accordance with the constitutional provisions above quoted there is, of course, no conflict between the constitution and this rule of evidence; but when prosecuting officers ignore the constitutional provisions and proceed to obtain evidence in violation of them and then offer such evidence upon the criminal trial of the one whose constitutional rights they have thus infringed, as was done in this case, there is presented a real clash between constitutional provisions and the rule of evidence above mentioned and the question is, what to do in such a case?
It is said that searches and seizures were unknown to the early common law and were first used in the search for stolen property only. • Because of their great aid many times in detecting and punishing crime, they gradually crept into the law until they became not only numerous but general. Search warrants were issued permitting the officer to search any place for any person or thing which would tend to aid in the prosecution of offenses. Similar warrants, writs of assistance, were much used in colonial times. The practice of the officers under such warrants became so obnoxious as to produce serious antagonism and opposition to their use was one of the principal causes of the American revolution. At the time our federal constitution was framed its authors, in order to have the benefit of the evidence produced by search warrants in the prosecution of crime and at the same time protect its citizens against the abuses previously practiced under such warrants, embodied the provisions above mentioned.
During the first one hundred years and more after the formation of our government the question here discussed seldom arose in the courts, but with the increased number of statutory offenses and the more general use of search warrants the Cases became more frequent and are especially numerous within the last few years. The early authorities in this country without much discussion of the matter, and some of the later state decisions, hold that the rule of evidence should be followed and that the one who was deprived of his constitutional rights must seek redress by an action against the officers for damages. It is now generally recognized that such a procedure is inadequate and futile and many of the courts are now holding *68that the only effective way of securing the constitutional rights of the party in such a case is to prohibit the use of such evidence by the prosecuting officers. This for the reason that the constitution is the supreme law of the land and hence superior in authority to a rule of evidence however well grounded it may be, and for the further reason that, as between the two, when the situation arises that one must yield to the other, stated in its strongest form, it is better that one guilty of crime go free in a single case than that fundamental principles of our government be held for naught; for, if the fundamental principles of our government be destroyed, all law, civil and criminal, becomes meaningless. Such a construction appears to many courts to be necessary to prevent abuses in the matter of search and seizure which have been deliberately made in reliance upon the rule that the evidence is admissible anyway and without fear of the hopelessly inadequate remedy of an action for damages. Such is the holding of the United States supreme court (Boyd v. United States, 116 U. S. 616; Weeks v. United States, 232 U. S. 383; Gouled v. United States, 225 U. S.,298; Essgee Co. v. United States, 262 U. S. 151), and federal courts generally. (Ganci v. United States, 287 Fed. 60; Murphy v. United States, 285 Fed. 801, and many others.) And the following state courts: United States v. Johnstone, 6 Alaska 323; Haile v. Gardner, 82 Fla. 355; People v. Castree, 143 N. E. 112 (Ill.); Flum v. State, 141 N. E. 353 (Ind.); State v. Myers, 36 Idaho 396; Cotton v. Commonwealth, 254 S. W. 1061 (Ky.); People v. Conway, 195 N. W. 679 (Mich.); Strangi v. State, 98 So. 340 (Miss); State, ex rel. Samlin, v. District Court; 59 Mont. 600; People v. Jakira, 193 N. Y. S. 306; Dyer v. State, 220 Pac. 69 (Okla.); State v. Laundy, 103 Ore. 443; Elliott v. State, 256 S. W. 431 (Tenn.); State v. Salmon, 73 Vt. 212; State v. Gibbons, 118 Wash. 171; State v. Massie, 120 S. E. 514 (W. Va.); Hoyer v. State, 180 Wis. 407; State v. Peterson, 27 Wyo. 185.
It has been held, where the property seized is of a kind the possession of which is an offense, and where the defendant does not claim to own the property, his motion to return it to him should be.denied (Ciano v. State, 105 Ohio St. 229); that the proper motion in such a case is to suppress the evidence (State v. Owens, 259 S. W. 100 [Mo.]), and if that were the only question involved here I would not oppose a reversal.
The constitutional inhibition is against unreasonable searches *69and seizures. Accordingly it has been properly held that when one is lawfully arrested it is not unreasonable to search him; that an inspection of premises under pure food or health statutes or for purposes of taxation is not unreasonable for these are essential to the existence of our government, and generally that a search of a suspected automobile even upon the public highway to see if it contains intoxicating liquor, stolen property, or other evidence of crime, is not unreasonable, for in such a case to take time to get a search warrant would render it useless. Other situations might be suggested in which a search without a warrant is not unreasonable, but no such situation existed in the case before us. In this case the county attorney and sheriff, starting from the county seat without a warrant of any kind, where they had ample time and could have secured a search warrant if they had any reason to do so, went some miles into the country to the house of Johnson, finding no one at home they effected an entrance into his residence and there found and carried away certain articles which they thought could be used in evidence against him on the trial of a criminal charge. Returning to the county seat, a warrant for Johnson’s arrest was issued. No search warrant was ever issued. It is clear, of course, in this case that there was no reason to search his premises without a search warrant, hence, it was an unreasonable search, and in direct violation of the constitutional provisions above mentioned.
To my mind there is nothing so destructive to good government and so demoralizing to the cause of law enforcement as the open violation of the law by officers whose duty it is to enforce it. Here a county attorney and sheriff, who had taken an oath to support and defend the constitution of the United Statqs and the constitution of the state of Kansas, willfully and without reason, ignore and violate fundamental principles embodied therein. Their conduct is a shock to the moral sense of the community, causing every citizen to feel insecure in his fundamental constitutional rights and to doubt the efficiency of government, and forces their law-enforcement friends to apologize for their conduct. This cannot be overcome by the conviction of one against whom they thus obtained evidence.
Courts should and do protect officers in the discharge of their duties and are anxious that they be zealous and efficient in doing so. Realizing the difficulties often confronting them, they should not be held to trivial niceties in their procedure, and any time the situation is such that it can be said to be reasonable to search without a *70warrant the evidence thus disclosed should not be excluded. But officers have no more license to violate the law than any one else and when they do so the constitutional rights of citizens must be protected. Until some other efficient way is devised for doing so, I would agree with the courts listed above, and protect such rights-by excluding, upon proper and timely application, the evidence obtained by unlawful and unreasonable searches. This is the only present effective way to give force and meaning to the constitutional provisions.