The plaintiff in error resides at 354 Orazabo street, in the city of San Francisco. The place of residence consists of a one-story dwelling with a garage underneath. Some time prior to December 1, 1922, certain federal prohibition agents were informed that intoxicating liquor was manufactured in the garage beneath the dwelling. On the above date the officers visited the premises, and detected the odor arising from the manufacture of intoxicating liquor emanating from the garage.. They thereupon forced an entry and discovered stills in operation, a quantity of intoxicating liquor, and a quantity of -mash used in the manufacture thereof. At the time of the entry there was no person in the garage, and the plaintiff in error was absent from home. The property thus found was seized by the officers. Before the trial a motion was interposed for its return, upon the ground that the search and seizure were unlawful. The motion- was denied, and upon this ruling the principal' assignment of error is based. ,
Article 4 of the Amendments to the Constitution of the United States declares that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. In construing similar language in Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168, the Supreme Court of Appeals of Virginia said:
“We know of no analogy in the law for the construction of this language, except such as is foun<l in the common and statute law referring to arson, burglary, and to homicide and assault cases, where the prisoner claims toPage 367have committed the alleged crime in self-defense after having retreated to his castle or his home. As construed by the courts from the earliest to the latest times, the words ‘dwelling’ or ‘dwelling house’ have been construed to include, not only the main house, but all of the cluster of buildings convenient for the occupants of the premises, generally described as ‘within the curtilage.’ ’’
This ruling is supported by Hale, Blackstone, Greenleaf, Bishop,, and all the text-writers. Within this definition the garage comes clearly within the protection of the Constitution. Section 25 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138y2m) provides that no search warrant shall issue to search any private dwelling occupied as such, with certain exceptions not material here, and section 6 of the Supplementary Act of November 23, 1921, provides that any officer, agent, or employee of the United States who shall search any private dwelling, as defined in the National Prohibition Act, without a search warrant, shall be guilty of a misdemeanor. 42 Stat. 223 (U. S. Comp. St. Ann. Supp. 1923, § 10184a). These statutes are a limitation upon the right of search, and it may well be that the term “private dwelling,” as there used, is not as broad as the term “house” found in the constitutional guaranty, but with that question we have no immediate concern.
The governmeht, as we understand it, does not claim the right to search a private dwelling or garage under the facts disclosed by this record, but an attempt is made to justify the conduct of the officers under the common-law or statutory rule permitting peace officers to make arrests for offenses committed within their presence. But here the offender was not in the presence of the officers; he was not in the garage, and they had no reason to suspect that he was there. Laying all pretense aside, the officers entered the garage, not to apprehend an offender for committing an offense within their presence, but to make a search of the premises to obtain tangible evidence to go before a jury, and whatever necessity may exist for-enforcing the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 1013814 et seq.), or other laws, the violation of rights guaranteed by the Constitution cannot be tolerated or condoned. If present laws are deficient in not permitting the search, in a constitutional way, of homes where intoxicating liquor is known to be manufactured, the remedy is with Congress, not in subterfuge or evasion. For these reasons, the court should have kept from the jury all property found on the search and all evidence given by the officers concerning the same. Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654.
Ordinarily this error would call for a reversal of the judgment, but the plaintiff in error took the witness stand in his own behalf and admitted the possession of the still, as charged in the first count of the indictment, and is now in no position to claim that incompetent testimony was admitted to establish that fact. There is some claim that this admission was brought out through improper cross-examination, but the plaintiff in error took the witness stand for the purpose of proving what he kept in the garage, and the connection between the garage and other portions of the house, and the cross-examination was not entirely without the scope of the testimony thus given on direct But
The judgment of the court below is therefore affirmed as to the first count, and reversed as to the two remaining counts.