The opinion of Judge WHITE reverses the judgment and remands the case solely upon the ground that error was committed in the admission of the testimony of Federal officers who secured access to the safety-deposit box of defendant by means of an illegal search warrant. I am unable to concur in this part of the opinion. I agree that the motion to suppress the testimony was properly overruled, in so far as the Missouri Constitution was invoked.
The real question in the case, concretely stated, is: Does the fact that an unlawful seizure and search were made by Federal officers render the evidence procured thereby inadmissible upon the trial of the case in the State court, when such evidence, after timely and proper motion to suppress, could not have been used in the Federal court? The majority opinion so holds. To this proposition I dissent.
In Twining v. New Jersey, 211 U.S. l.c. 93, Mr. Justice MOODY said: "It is not argued that the defendants are protected by that part of the Fifth Amendment which provides that `no person . . . shall be compelled in any criminal case to be a witness against himself,' for it is recognized by counsel that by a long line of decisions the first ten amendments are not operative on the states. [Barron v. Baltimore, 7 Pet. 243; Spies v. Illinois,123 U.S. 131; Brown v. New Jersey, 175 U.S. 172; Barrington v. Missouri, 205 U.S. 483.]"
In Barron v. Baltimore, supra, speaking of the Fifth Amendment to the Federal Constitution, Mr. Chief Justice MARSHALL said:
"The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their *Page 352 situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself: and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct government, framed by different persons and for different purposes
"If these propositions be correct, the Fifth Amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest."
In Spies v. Illinois, supra, Mr. Chief Justice WAITE said: "That the first ten Articles of Amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the National Government alone, was decided more than a half century ago, and that decision has been steadily adhered to since."
In Brown v. New Jersey, supra, Mr. Justice BREWER said: "The first ten amendments to the Federal Constitution contain no restrictions on the powers of the State, but were intended to operate solely on Federal Government."
In Barrington v. Missouri, supra, it was held that the question of defendant being compelled to become a witness against himself in violation of the Fifth Amendment to the Federal Constitution was not properly saved for consideration by the United States Supreme Court. But, in passing, Mr. Chief Justice FULLER said: "Moreover, Article V of the amendments, alone relied on, does not operate as a `restriction of the powers of the State, but was intended to operate solely upon the Federal Government.' [Brown v. New Jersey, 175 U.S. 172.] *Page 353 And if, as decided, the admission of this testimony did not violate the rights of the plaintiff in error under the Constitution and laws of the State of Missouri, the record affords no basis for holding that he was not awarded due process of law. [Howard v. Fleming, 191 U.S. 126.]"
In Weeks v. United States, 232 U.S. 383, it is said at page 398: "As to the papers and properties seized by the policemen, it does not appear that they acted under any claim of Federal authority, such as would make the amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment in the Federal court, under what supposed right or authority does not appear. What remedies the defendant may have against them we need not inquire, as the Fourth Amendment is not directed to individual misconduct of such officials. Itslimitations reach the Federal Government and its agencies. [Boyd Case, 116 U.S. supra, and see Twining v. New Jersey,211 U.S. 78.]" (Italics my own).
In Burdeau v. McDowell, 256 U.S. 465, Mr. Justice DAY said: "The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to 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 be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued."
In Kanellos v. United States, 282 F. 461 (C.C.A. 4th Circuit), WOODS, Circuit Judge, said: "In Burdeau v. McDowell,256 U.S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A.L.R. 1159, it was again held that the security afforded by the Fourth Amendment applies solely to action taken under Federal authority or by Federal *Page 354 officers; and where papers are unlawfully taken by individuals unconnected with the Federal government, and afterwards come into the possession of Federal officers, they may be used as evidence against the person from whom they were taken."
That the Fourth and Fifth Amendments of the Federal Constitution may not be successfully invoked in criminal prosecutions in the State courts has been clearly decided in several reported State cases, which my brief examination has disclosed.
In People v. Adams, 176 N.Y. l.c. 356, BARTLETT, J., said: "The first point made by the learned counsel for the appellant is that by reason of the seizure of defendant's papers, as in the manner described, the defendant's constitutional right to be secure in his person, papers and effects against unreasonable searches and seizures, was violated, and he was also thereby compelled to be a witness against himself, in contravention of the Fourth, Fifth and Fourteenth articles of the amendments to the Constitution of the United States, and Article 1, Section 6, of the Constitution of the State of New York, and Section 11 of the Bill of Rights of this State. Articles Four and Five of theamendments to the Constitution of the United States do not applyto actions in the State courts." (Italics my own).
In State v. Magnano, 97 Conn. 543, the defendant claimed that the seizure of his property and the admission of evidence procured by such seizure violated certain sections of the Connecticut Constitution and the Fourth and Fifth Amendments of the Federal Constitution. BURPEE, J., said: "The Constitution of the United States and its amendments, and the cases concerning them which have been decided by the United States Supreme Court, and which the accused has relied on in his contention and brief, apply only to Federal officers and Federal courts. [Weeks v. United States, 232 U.S. 383, 398, 34 Sup. Ct. 341, L.R.A. 1915B, 834, note; 12 Corpus Juris, 744; 13 A.L.R. 1159, 1168, note.]" *Page 355
In City of Sioux Falls v. Walser, 187 N.W. (S.D.) 821, WHITING, J., said: "It seems to be the contention of appellant that the holdings of the Federal court declaring the effect of the Fourth and Fifth Amendments to the Federal Constitution (being in effect the same as Sections 9 and 11, supra) are controlling upon this court. That said Amendments 4 and 5 do not govern the several states and the courts thereof is the settled law of this country."
In Kennemer v. State, 154 Ga. 139, HINES, J., said: "The provisions against unreasonable searches and seizures are identical in the constitutions of the United States and of this State. [Civil Code, secs. 6372, 6687.] The provision in the Federal Constitution applies to, and is restrictive only of, national action. In the sphere of its action the construction put upon it by the Supreme Court of the United States is controlling and supreme; but `it does not in any manner govern or regulate trials in criminal cases in State courts.' The provision in the State Constitution is applicable alone to State action. Its construction by this court is controlling and supreme."
From the foregoing, I think it is quite clear that the contention that defendant's rights under the Fourth and Fifth amendments to the Federal Constitution, which were said to have been violated by Federal officers, cannot avail him in a prosecution in this State for a violation of the laws of this State. Said sections are only limitations upon the Federal government and its officers in actions for violations of Federal statutes when tried in courts of the Federal government. In a criminal prosecution in the courts of this State, the acts of Federal officers stand upon the same footing as acts of private individuals. Such officers are not part of the state machinery. In permitting the use of evidence obtained through unlawful search and seizure by such Federal officers, the State is in no sense taking advantage of a wrong perpetrated by its own officers. The denial of the right to take advantage of such wrongs at the *Page 356 hands of its own officers is apparently the basis for the rulings recently made by this court and in others, as well as in the Federal courts, that evidence so obtained may not be used, when objection thereto has been timely and appropriately made.
I respectfully dissent from the opinion of Judge WHITE, in so far as it reverses and remands the judgment upon the ground herein discussed.