We subscribe to the rule that a private person may *Page 514 make an arrest without warrant when he has information, imparted to him by creditable persons, to cause him honestly and in good faith, acting with reasonable discretion and caution, to entertain the belief that a crime has been, or is being, committed, — that is, a private person may act when the facts and circumstances are such as to warrant a man of prudence and caution in believing a crime has been, or is being, committed. In our opinion, the testimony of Kelly falls short of this requirement. His testimony is unsatisfactory, to say the least, and does not carry conviction. He testified that two or three weeks before the arrest a drug addict advised him that defendant was carrying "dope" from Butte to Billings, making a trip "about once a month or so." He frankly admitted that his informant was unreliable. Clearly, this information was not sufficient to justify the arrest. But what about the so-called "business man," who is said to have supplied Kelly with information sufficient to justify the arrest? Upon this point Kelly testified that two or three days before the arrest a "yellow" man, whose name, by ruling of the court, he was not required to disclose, told him that "he thought this fellow was going to make that [Northern Pacific 9 o'clock] train around that time [Feb. 22]." He says this man was "a business man." "Q. Do you mean somebody, a druggist or what? A. Well, yes. Q. What kind of a druggist, in the drug business; do you mean that he was somebody engaged in the morphine and narcotic business? A. He is in business, different lines, got different kinds of business." It seems to us that the only reasonable inference to be drawn from this testimony is that this so-called "business man" was himself dealing in narcotics; at any rate, there is not one iota of evidence that he was a reliable or credible person. It is significant that it was not until his recross-examination by the county attorney that Kelly said anything about having received a telephone call from the "business man" on the morning of the arrest, — and not until his redirect examination by defendant's counsel that he divulged the language used by his informant. Had Kelly received a telephone call giving him the definite and explicit information he says he received, he would have disclosed *Page 515 that fact on his direct or cross-examination. The conclusion is inevitable that the telephone call was an after-thought and conceived in Kelly's mind when he perceived the weakness of the showing he had made.
It is also significant that when Kelly first mentioned this alleged telephone call, it was from a third person, but after further questioning he changed his testimony and said it was the "business man" who called.
The majority opinion says that the "business man's" identity "was not disclosed, apparently by consent of all." We do not so read the record. Counsel for defendant pursued their inquiry in this regard until the court ruled that Kelly would not be required to divulge the name of his informant, and quite properly counsel made no further effort to obtain the name. We do not see how counsel could have done more.
We are forced to the conclusion that Kelly's "business man" was a myth, pure and simple, and that in making the arrest he acted upon suspicion and by reason of the fact that defendant is a Chinaman. It is inconceivable that one qualified to act as an investigator for the county attorney, and who had so acted for more than a year and was asked to state the information upon which the arrest was made, would overlook or forget the most important facts in his possession.
The fact that when Kelly drove up to the sidewalk and jumped out of his car, defendant put down the grip he was carrying is an unimportant fact; and that at some time, either at the time of the arrest or while he was being interviewed by the county attorney — the record does not disclose when — he called Kelly by name, is equally unimportant. Kelly was a well-known person, the county attorney's investigator, and no doubt known by many persons living in Butte. To justify the arrest on such flimsy and unimportant circumstances is like a drowning man grasping for a straw.
The principle involved is not whether the narcotic law shall be applied and enforced, but rather, shall the guaranties of our Constitution as to human rights and liberties be upheld? We fully realize the baleful influences upon society in consequence of the use of narcotics; and no one can appreciate more *Page 516 the desirability of effectually stamping out the drug peddler by enforcing the law and punishing most severely those human vultures who seek to profit by reason of man's weakness with abandoned heart as to the consequences to the individual or to society. However, in our ardor to uphold and enforce such a salutary law, we must not transgress our constitutional guaranties of human liberties constituting the bulwark of our government. In the dissenting opinion of Mr. Justice Galen in the case of State ex rel. Neville v. Mullen, 63 Mont. 50,207 P. 634, he denounced the arrest of persons without semblance of a warrant and on mere suspicion; and he has not since had occasion to change his views. In fact, he says that he is now even more pronounced in his convictions in that respect. In accord with the views expressed by the supreme court of the United States, we contend that it is the duty of the courts to be watchful of the constitutional rights of our people, and against stealthy encroachments thereof. (Byars v. United States,273 U.S. 28, 71 L. Ed. 520, 47 Sup. Ct. Rep. 248; Gouled v. UnitedStates, 255 U.S. 298, 65 L. Ed. 647, 41 Sup. Ct. Rep. 261; Boyd v. United States, 116 U.S. 616, 29 L. Ed. 746,6 Sup. Ct. Rep. 524; State ex rel. Kuhr v. District Court, 82 Mont. 515,268 P. 501.) As was well and appropriately said by Mr. Justice Brandeis, dissenting, in the case of Casey v. United States,276 U.S. 413, 72 L. Ed. 632, 48 Sup. Ct. Rep. 373: "I am aware that courts — mistaking social values and forgetting that a desirable end cannot justify foul means — have, in their zeal to punish, sanctioned the use of evidence obtained through criminal violation of property and personal rights, or by other practices of detectives more revolting." But such methods should be denounced by our courts to insure the stability of our form of government.
Section 3 of Article III of the Constitution of Montana provides: "All persons are born equally free, and have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties, or acquiring, possessing, and protecting property, and of seeking and obtaining their safety and happiness in all lawful *Page 517 ways." If this means anything — and to all fair-minded and liberty-loving Americans it means much — it means that all men, whether Chinamen or of other national origin, are equal before the law and entitled to the same rights and privileges under like circumstances. As a result of this guaranty of our Constitution, every person is entitled to the same inalienable rights, the same fair treatment, and the same degree of justice, irrespective of race, creed or place of nativity. This is a fundamental principle of our government from its inception. Let it not be forgotten that in the Declaration of Independence it was solemnly proclaimed that "we hold these truths to be self-evident — that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness."
The same protection is given our people against unwarranted arrest as against invasion of individual rights and liberties by search and seizure without a warrant. And an officer or individual citizen cannot justify an unreasonable seizure and search of the personal effects of a person by reason of an arrest on suspicion. They should not be permitted to indulge in such subterfuge, thus indirectly doing that which is directly prohibited. Section 7 of Article III of the Montana Constitution provides that "the people shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures, and no warrant to search any place or seize anyperson or thing shall issue without describing the place to be searched, or the person or thing to be seized, nor without probable cause, supported by oath or affirmation, reduced to writing."
"The constitutional provision, both state and federal, against unreasonable search and seizure, applies to the person and his baggage and personal belongings (Youman v. Commonwealth,189 Ky. 152, 13 A.L.R. 1303, 224 S.W. 860), and to the search of a person unlawfully arrested and the seizure of his personal belongings (State v. Wills, 91 W. Va. 659, 24 A.L.R. 1398, 114 S.E. 261). Any search and seizure which is unlawful is unreasonable. (State v. *Page 518 Wills, supra; State ex rel. King v District Court, 70 Mont. 191,224 P. 862.)" (State ex rel. Sadler v. District Court,70 Mont. 378, 225 P. 1000.) And an arrest or search which is unlawful in its inception is not made lawful by what is thereby found; hence the seizure of contraband articles, in the possession of a person after his unlawful arrest, is not justified by the fact that he was found to have such goods on his person or in his possession. (State ex rel. King v. DistrictCourt, 70 Mont. 191, 224 P. 862.)
In the case of State ex rel. Samlin v. District Court,59 Mont. 600, 198 P. 362, Mr. Chief Justice Brantly for the court said: "Speaking of the Fourth Amendment to the Constitution of the United States, Mr. Justice Day, in Weeks v. UnitedStates, 232 U.S. 383, Ann. Cas. 1915C, 1177, L.R.A. 1915B, 834,58 L. Ed. 652, 34 Sup. Ct. Rep. 341 (see, also, Rose's U.S. Notes), said: `The effect of the Fourth Amendment is to put the courts of the United States and federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful seizures and enforced confessions, the latter often after subjecting the accused persons to unwarranted practices destructive of rights secured by the federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.' This forceful statement of the learned Justice applies as well to the guaranty found in our own Constitution; for, except that the order in which the several clauses in it are arranged is different, it is expressive of *Page 519 the same fundamental principles and was intended to be equally as effective to prevent an invasion of the rights of the citizen of the state under the guise of the law by the state government or any of its officers."
The same principles apply to an arrest by an officer or a private citizen as to search and seizure without a warrant, i.e., in either case probable cause sufficient to justify an arrest or a search must be based on known facts or credible information and circumstances sufficient to justify a reasonable man in the belief that the law has been or is being violated. The facts and circumstances in the possession of the person making the arrest must be of such character and strength as to justify a magistrate in issuing either a warrant of arrest or a search-warrant. And an arrest, or search, or seizure on mere suspicion is never justified. The circumstances warranting the issuance of a search-warrant must be as strong as those which would justify the institution of a criminal charge or the arrest of a person onsuch charge without a warrant; that is to say, the belief must be founded on facts and circumstances which would justify a reasonably prudent man in acting without a warrant, or be such as would justify a magistrate in issuing a warrant. (State ex rel.Stange v. District Court, 71 Mont. 125, 227 P. 576; Stateex rel. Kuhr v. District Court, supra.) And in order to entitle a private person to make an arrest under section 11754, Revised Codes 1921, for a public offense committed or attempted in his presence, the facts and circumstances must be such that upon them alone he would be justified in making a complaint upon which a warrant of arrest would issue.
Whether there was probable cause, and whether Kelly acted as a prudent and cautious person, is a question of law, and this court is not bound by the conclusion of the trial judge on that point. (Michel v. Smith, 188 Cal. 199, 205 P. 113; Murphy v.Murray, 74 Cal. App. 726, 241 P. 938.)
In our opinion, Kelly acted upon mere suspicion and in consequence the arrest was unlawful and the motion to suppress should have been sustained. *Page 520