Mary Banks, the appellant, was convicted in the circuit court of Russell county, Ala., of the offenses of distilling and of having in her possession a still, appliance, etc., as was averred in the indictment presented against her by the grand jury of said county. The evidence upon which the defendant in the court below was convicted was without dispute. The evidence presented by the record in this case was as follows:
The sheriff and deputy sheriff of said county, without any search warrant and without any legal justification or excuse, searched the dwelling house and appurtenant premises of the appellant, and there found a still, or appliance, which each of said officers testified was suitable and adapted to the distillation of prohibited liquors, and they also found, as testified to by each of them, certain beer being made ready for distillation into moonshine whisky, or other prohibited liquors or beverages.
The defendant in the court below first objected to the appearance of each of said witnesses, and to any testimony that might be elicited from them, or either of them, upon the grounds that said testimony was procured by said witnesses through an illegal and unwarranted search of her dwelling house and appurtenant premises, and in violation of article 1, § 5, of the Constitution of the state of Alabama, and also in violation of article 1, § 6, of the Constitution of the state of Alabama. Objections to the testimony of each of said witnesses were likewise interposed as said testimony was adduced, and by appropriate and repeated exceptions to adverse rulings of the trial court upon the insistence of the defendant in the court below that the procurement and admission of such testimony was in violation of her constitutional rights, specifically set out in article 1, §§ 5 and 6, respectively, of the Constitution of the state of Alabama, prohibiting unreasonable searches and seizures, and prohibiting self-incrimination. The same constitutional questions are presented by this appeal to this court.
The question of prime importance in this case is: What judicial construction shall be given to article 1, § 5, of the Constitution of this state, which prohibits unreasonable searches and seizures? — because it is without dispute that all of the testimony offered upon the trial of said case was procured through a search of the dwelling house and appurtenant premises of the appellant, made by the sheriff and deputy sheriff of said county without any search warrant or other legal process. Article 1, § 5, of the Constitution of the state of Alabama, provides as follows:
"That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation."
A consideration of the foregoing constitutional provision was had by the Supreme Court in the case of Shields v. State,104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17, which case was followed by the cases of Pope v. State, 168 Ala. 33, 53 So. 292, and Robertson v. City of Montgomery, 201 Ala. 198,77 So. 724, and which case was also followed by the Court of Appeals in the case of Bell v. State, 16 Ala. App. 36,75 So. 181. In the Shields Case, Supra, it was held that:
"Evidence obtained by a search, which was illegal and unauthorized, is admissible to fix the guilt of a criminal offense upon the person searched, and the admission of such evidence so obtained is not violative of the constitutional guaranty that a person accused shall not be compelled to give evidence against himself, or of the further guaranty 'that the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizures or searches.' * * * However unfair or illegal may be the methods by which evidence may be obtained in a criminal case, if relevant, it is admissible, if the accused is not compelled to do any act which criminates himself, or a confession or admission is not extorted from him, or drawn from him by appliances to his hopes or fears."
The soundness of the construction reached in Shields' Case, supra, is challenged by the present appeal, and the insistence in made that the doctrine of stare decisis does not obtain in this state, and that under section 5965 of the Code of 1907 Shields' Case should be overruled and disregarded, if the rule announced in that case in unsound when measured by the language of the Constitution and the evident purposes sought to be obtained by its provisions.
This court has given a most serious and careful consideration to the question presented, and has reached the conclusion that the rule of evidence and procedure announced in the Shields Case, and followed by the later cases to which we have referred, is repugnant to and inconsistent with the plain objects and purpose sought to be obtained under the provisions of article 1, § 5, of the Constitution of Alabama. Said section of the Constitution expresses a plain, outspoken, honest guaranty that the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches. The right sought to be maintained, preserved, and enforced by this constitutional guaranty is one that relates to a fundamental principle of government, for the supreme purpose actuating mankind in the organization of society was the preservation of life, liberty and property. The end sought to be obtained by this constitutional provision was to prevent all unlawful invasions of the sanctity of the home and the privacies of life. The right protected is the indefeasible right of personal security and personal liberty, and traces its existence to that concession
of Magna Charta obtained on the battlefield of Runnymede by English freemen from John, their king, on the 15th day of June, 1215, and which guaranteed:
"No freeman may be taken, or imprisoned, or detained, or outlawed, or banished, or in any way destroyed nor will we go against him, or send against him, except by the lawful judgment of his peers, or by the law of the land. To none will we sell or deny or delay right or justice."
The case of Gouled v. United States, 255 U.S. 298,41 Sup. Ct. 261, 65 L.Ed. 647, construing the Fourth and Fifth Amendments to the federal Constitution, which contains provisions in all respects identical to article 1, §§ 5 and 6, of the Constitution of this state, holds:
"It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U.S. 616, 6 Sup. Ct. 524, 29 L.Ed. 746, in Weeks v. United States, 232 U.S. 383, 34 Sup. Ct. 341,58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U.S. 385,40 Sup. Ct. 182, 64 L.Ed. 319), have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments.
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Mary Banks, the appellant, was convicted in the circuit court of Russell county, Ala., of the offenses of distilling and of having in her possession a still, appliance, etc., as was averred in the indictment presented against her by the grand jury of said county. The evidence upon which the defendant in the court below was convicted was without dispute. The evidence presented by the record in this case was as follows:
The sheriff and deputy sheriff of said county, without any search warrant and without any legal justification or excuse, searched the dwelling house and appurtenant premises of the appellant, and there found a still, or appliance, which each of said officers testified was suitable and adapted to the distillation of prohibited liquors, and they also found, as testified to by each of them, certain beer being made ready for distillation into moonshine whisky, or other prohibited liquors or beverages.
The defendant in the court below first objected to the appearance of each of said witnesses, and to any testimony that might be elicited from them, or either of them, upon the grounds that said testimony was procured by said witnesses through an illegal and unwarranted search of her dwelling house and appurtenant premises, and in violation of article 1, § 5, of the Constitution of the state of Alabama, and also in violation of article 1, § 6, of the Constitution of the state of Alabama. Objections to the testimony of each of said witnesses were likewise interposed as said testimony was adduced, and by appropriate and repeated exceptions to adverse rulings of the trial court upon the insistence of the defendant in the court below that the procurement and admission of such testimony was in violation of her constitutional rights, specifically set out in article 1, §§ 5 and 6, respectively, of the Constitution of the state of Alabama, prohibiting unreasonable searches and seizures, and prohibiting self-incrimination. The same constitutional questions are presented by this appeal to this court.
The question of prime importance in this case is: What judicial construction shall be given to article 1, § 5, of the Constitution of this state, which prohibits unreasonable searches and seizures? — because it is without dispute that all of the testimony offered upon the trial of said case was procured through a search of the dwelling house and appurtenant premises of the appellant, made by the sheriff and deputy sheriff of said county without any search warrant or other legal process. Article 1, § 5, of the Constitution of the state of Alabama, provides as follows:
"That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation."
A consideration of the foregoing constitutional provision was had by the Supreme Court in the case of Shields v. State,104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17, which case was followed by the cases of Pope v. State, 168 Ala. 33, 53 So. 292, and Robertson v. City of Montgomery, 201 Ala. 198,77 So. 724, and which case was also followed by the Court of Appeals in the case of Bell v. State, 16 Ala. App. 36,75 So. 181. In the Shields Case, Supra, it was held that:
"Evidence obtained by a search, which was illegal and unauthorized, is admissible to fix the guilt of a criminal offense upon the person searched, and the admission of such evidence so obtained is not violative of the constitutional guaranty that a person accused shall not be compelled to give evidence against himself, or of the further guaranty 'that the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizures or searches.' * * * However unfair or illegal may be the methods by which evidence may be obtained in a criminal case, if relevant, it is admissible, if the accused is not compelled to do any act which criminates himself, or a confession or admission is not extorted from him, or drawn from him by appliances to his hopes or fears."
The soundness of the construction reached in Shields' Case, supra, is challenged by the present appeal, and the insistence in made that the doctrine of stare decisis does not obtain in this state, and that under section 5965 of the Code of 1907 Shields' Case should be overruled and disregarded, if the rule announced in that case in unsound when measured by the language of the Constitution and the evident purposes sought to be obtained by its provisions.
This court has given a most serious and careful consideration to the question presented, and has reached the conclusion that the rule of evidence and procedure announced in the Shields Case, and followed by the later cases to which we have referred, is repugnant to and inconsistent with the plain objects and purpose sought to be obtained under the provisions of article 1, § 5, of the Constitution of Alabama. Said section of the Constitution expresses a plain, outspoken, honest guaranty that the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches. The right sought to be maintained, preserved, and enforced by this constitutional guaranty is one that relates to a fundamental principle of government, for the supreme purpose actuating mankind in the organization of society was the preservation of life, liberty and property. The end sought to be obtained by this constitutional provision was to prevent all unlawful invasions of the sanctity of the home and the privacies of life. The right protected is the indefeasible right of personal security and personal liberty, and traces its existence to that concession
of Magna Charta obtained on the battlefield of Runnymede by English freemen from John, their king, on the 15th day of June, 1215, and which guaranteed:
"No freeman may be taken, or imprisoned, or detained, or outlawed, or banished, or in any way destroyed nor will we go against him, or send against him, except by the lawful judgment of his peers, or by the law of the land. To none will we sell or deny or delay right or justice."
The case of Gouled v. United States, 255 U.S. 298,41 Sup. Ct. 261, 65 L.Ed. 647, construing the Fourth and Fifth Amendments to the federal Constitution, which contains provisions in all respects identical to article 1, §§ 5 and 6, of the Constitution of this state, holds:
"It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U.S. 616, 6 Sup. Ct. 524, 29 L.Ed. 746, in Weeks v. United States, 232 U.S. 383, 34 Sup. Ct. 341,58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U.S. 385,40 Sup. Ct. 182, 64 L.Ed. 319), have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is that such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty, and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts, or by well-intentioned, but mistakenly overzealous, executive officers."
Concisely stated, the conclusion reached in the Shields Case is that evidence obtained through and by means of a plain violation of of a constitutional prohibition is admissible, if said evidence is relevant to the issue of the case on trial. In other words, a rule of evidence, or of procedure, is declared by the Shields Case to be paramount to the Constitution itself. The fallacy of this doctrine is clearly and conclusively demonstrated by the Supreme Court of the United States in the case of Silverthrone Lumber Co. v United States, 251 U.S. 385,40 Sup. Ct. 182, 64 L.Ed. 319, in the following language:
"The government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means, which otherwise it would not have had. The proposition could not be presented more nakedly. It is that although, of course, its seizure was an outrage which the government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the government can gain over the object of its pursuit by doing the forbidden act. Weeks v. U.S.,232 U.S. 383, to be sure had established that laying the papers direct before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduces the Fourth Amendment to a form of words. 232 U.S. 393. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all."
The principle, therefore, that prevents the introduction of testimony obtained through a violation of the Constitution is that the Constitution itself prohibits the obtaining of evidence in this manner. There can be no higher authority for the exclusion of such evidence than the Constitution. The Constitution of Alabama is the supreme law of this state. To it all statutes, rules of evidence, rules of procedure, courts in the exercise of their power and authority, officials acting under the color of their office, as well as individuals, must pay their respect and obedience. It is the supreme law, and to it all rules of evidence, procedure, and expediency, in conflict with its mandates and prohibitions, must yield. Dorman v. State, 34 Ala. 216; Sadler v. Langham, 34 Ala. 311; Johnson v. Craft et al., 205 Ala. 386, 87 So. 375; Boyd v. United States, 116 U.S. 616, 6 Sup. Ct. 524, 29 L.Ed. 746; Bailey v. Alabama, 219 U.S. 219, 31 Sup. Ct. 145, 55 L. Ed. 191; Weeks v. United States, 232 U.S. 383, 34 Sup. Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup. Ct. 182,64 L.Ed. 319; Gouled v. United States, 255 U.S. 298, 41 Sup. Ct. 261,65 L.Ed. 647; Amos v. United States, 255 U.S. 313,41 Sup. Ct. 266, 65 L.Ed. 654.
But, says the Shields Case:
"We, adhere to the proposition, to be extracted from the authorities to which we have referred, that, however unfair or illegal may be the methods by which evidence may be obtained in a criminal case, if relevant, it is admissible, if the accused is not compelled to do any act which criminates himself, or a confession or admission is not extorted from him, or drawn from him by appliances to his hopes or fears."
The Constitution forbids that evidence may be obtained by virtue of an unreasonable search, and when the competency, legality, or admissibility of evidence is challenged upon the ground that it was obtained through the violation of a constitutional prohibition
the method by which the evidence was obtained is the crucial test of its admissibility, for —
"The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all." Silverthorne Lumber Co. v. United States,251 U.S. 385, 40 Sup. Ct. 182, 64 L.Ed. 319.
The same principle was recognized and adhered to by the Supreme Court of Alabama in the case of Johnson v. Craft et al., 205 Ala. 386, 87 So. 375, where it was said:
"Now, as ever before, the penalty for the violation of the Constitution is that the product of the offense as a nullity."
The Constitution prohibits every officer from making an illegal search, and from intruding upon the privacy of the home without legal warrant, and from gaining access to one's premises by force or fraud. As was said in the case of Sadler v. Langham, 34 Ala. 311, at page 329:
"Every officer in the government, from the executive to the humblest magistrate, is charged, to the extent of his sphere, with the preservation of constitutional rights."
What was said in the case of Weeks v. United States,232 U.S. 383, 34 Sup. Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, applies with full force and emphasis to the question under consideration. In Weeks' Case, it was said:
"If letters and private documents can thus be seized, and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles, established by years of endeavor and suffering, which have resulted in their embodiment in the fundamental law of the land. The United States marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information and describing with reasonable particularity the thing for which the search was to be made. Instead he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the government, and under color of his office undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. Under such circumstances, without sworn information and particular description, not even an order of court would have justified such procedure; much less was it within the authority of the United States marshal to thus invade the house and privacy of the accused. In Adams v. New York, 192 U.S. 585, this court said that the Fourth Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law acting under legislative or judicial sanction. This protection is equally extended to the action of the government and officers of the law acting under it. Boyd Case, supra. To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibition of the Constitution, intended for the protection of the people against such unauthorized action."
And again in the same case it was 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 conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting 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 doctrine was later followed in the case of Amos v. United States, 255 U.S. 313, 41 Sup. Ct. 266, 65 L.Ed. 654, in the application of the rule to a case involving contraband liquors. In the case of Johnson v. Craft et al., 205 Ala. 386,393, 87 So. 375 at page 380 which is one of the latest expressions of the Supreme Court upon the question, it was said:
"The Constitution of Alabama, like that of the nation and of the other states is the supreme law within the realm and sphere of its authority. Subject only to the restraints resulting from the Constitution of the United States, the Constitution of Alabama is the highest form and expression of law that exists in this state. The source of its creation and the character of its sanction, viz. the people's deliberate will, invests the Constitution with its paramount quality. The Constitution's control is absolute wherever and to whatever its provisions apply; and every officer, executive, legislative, and judicial, is bound by oath (section 279) to support the Constitution, to vindicate and uphold its mandates, and to observe and enforce its inhibitions without regard to extrinsic circumstances. It commits to no body, officer, or agent and authority or power whatever to change or modify or suspend the effect or operation of its mandates or its prohibitions."
And again in the same case, upon application for a rehearing, it was said:
"The Constitution contains no idle assertions, no meaningless language, no ephemeral purpose, no recognition of the right of even all the people — except through revolution and attendant anarchy — or of the Legislature, or of the courts to refuse obedience to its supreme authority, or by evasion or subterfuge to defeat the Constitution as the highest expression of the people's will."
The power to forgive, condone, or heal the violation of plain, unambiguous mandates, prohibitions, or limitations of the Constitution is denied to the courts and judges of this state, although such violation may result in the greatest good, or may promote a universal benefaction. To say that a sheriff of this state may invade the privacy of the home of one of its citizens, without search warrant or other legal process, and thus procure testimony that may be used to secure the conviction to such citizen of a criminal offense, would be to affirm and sanction, by judicial decision, an open defiance of the prohibitions of the Constitution designed and promulgated for the protection of each and every citizen of the state against such unauthorized, illegal, and outrageous action. If one constitutional provision may be nullified in this manner, then why not all? To indorse, countenance, and sanction the invasion of the home of a citizen of this state by a sheriff of this state without proper process is in its last analysis to indorse anarchy and revolution.
For the reasons set forth, it is the unanimous opinion of the Court of Appeals that the case of Shields v. State, 104 Ala. 35,16 So. 85, 53 Am. St. Rep. 17, and all cases following it, should be overruled and held for naught in so far as said cases may vitalize and give effect to a plain violation of the prohibitions against unreasonable searches and against self-incrimination, as provided under article 1, sections 5 and 6, of Constitution of Alabama.
It is further the judgment of the Court of Appeals that the importance of the subject-matter presented by this appeal is of such magnitude and grave concern to all of the people of this state as to justify this court in presenting by a proper certification to the Supreme Court the constitutional question herein involved, to the end that the Supreme Court may be given the opportunity of reviewing its own cases upon the question, and of pronouncing its judgment as to whether or not the Shields Case, supra, and the other cases following it, shall be overruled.
Certificate to the Supreme Court.
Under the provisions of the statute (Acts 1911, p. 449, § 1) approved April 18, 1911, the following questions are hereby submitted to the Supreme Court for determination;
(1) Is evidence obtained by the unreasonable search of the dwelling house and appurtenant premises of a citizen of this state admissible against such citizen on the trial, in a criminal prosecution growing out of such unreasonable search, when said citizen objects to such evidence upon the ground that it was obtained by a violation of his constitutional rights as set out and contained in sections 5 and 6, respectively, of article 1 of the constitution of Alabama?
(2) Is the rule of evidence established in the case of Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am. St. Rep. 17, and followed by the cases of Pope v. State, 168 Ala. 33,53 So. 292, and Robertson v. City of Montgomery, 201 Ala. 198,77 So. 724, in conflict with the terms and provisions of the Fourteenth Amendment to the Constitution of the United States?
The appellant insists that, if the Shields Case, supra, is permitted to stand, and evidence obtained through a violation of the constitutional provision against unreasonable search is admitted over the objection and exception of a defendant, then in effect a state will be permitted to enforce a law which abridges the privileges and immunities of citizens of the United State, and a state will be permitted to deprive a person of his liberty without due process of law, because Gouled's Case, 255 U.S. 298, 41 Sup. Ct. 261, 65 L.Ed. 647, says that the right declared by section 5, article 1, of the Constitution is "indispensable to the 'full enjoyment of personal security, personal liberty and private property.' " and is "to be regarded as of the very essence of constitutional liberty, and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen-the right to trial by jury, to the writ of habeas corpus, and to due process of law."
C.R. BRICKEN, Presiding Judge. WM. H. SAMFORD, H.P. MERRITT, Associate Judges.
Response of Supreme Court to Certified Questions.