McClannan v. Chaplain

116 S.E. 495, 136 Va. 1, 1923 Va. LEXIS 63

• Court: Supreme Court of Virginia
• Decided: March 15, 1923
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court.

[1] 1. It is true, of course, that unless the defendants’ entry upon the farm of the plaintiff was lawful, because of the authority conferred upon them by law by reason of their official positions, and the quest they were upon, they were trespassers and liable for nominal damages at least. 26 R. C.- L., sec. 10, p. 938; 38 Cyc. 996-6.

[2] 2. It is also true that even if the entry of the defendants was lawful, if, after the entry, they, in their conduct, exceeded their authority, by doing some act which they had no right to do, the law will consider them as trespassers ab initio. 26 R. C. L., sec. 18, p. 943.

[3] 3. Moreover, if while on the premises the defendants were guilty of disorderly conduct injurious to the plaintiff, which was malicious or wanton, or conduct in violation of the search warrant statute cited and quoted preceding this opinion, they were liable for punitive damages. The liability, in the former ease, would be a common law liability; in the latter, a liability imposed by the terms of such statute for acting without a search warrant.

We will here say that the jury were plainly warranted in finding from the evidence that there was no common law liability upon the defendants for malicious or wanton conduct.

The decision of the instant ease therefore turns upon this single question.

[4, 5] 4. Did the defendant officers have the lawful right, without a search warrant, and without the consent of the owner or tenant of the land (he offering no actual resistance or objection at the time thereto), to enter upon a part of the farm in question away from the dwelling house and curtilage, in the exercise of the duty of police inspection imposed upon them by law—i. e., to ascertain if the illegal still was where they had been informed it was hidden on the farm, away from the dwelling house and curtilage?

The question must be answered in the affirmative.

[6] The statute (section 5797 of the Code) under which the defendant officers were appointed, provides that “such person or persons shall be' conservators of the peace in their respective counties.” Section 4802, with respect to the same officers, so far as material, provides as follows: “Their duties and powers.—It shall be the duty of said police to apprehend and carry before a justice, to be dealt with according to law, all persons whom they * * * have cause to suspect have violated, or intend to violate any law of the State; * In the'prohibition law, Acts 1918, section 21^, page 594, there is this provision: “All stills in this State not registered under a permit as herein required * * are hereby declared contraband and shall be subject to seizure by any officer charged with the enforcement of the law, which officer * * * shall forthwith notify the commissioner and turn over to him all still caps, worms, tubs, fermenters and other appliances! to be disposed of as required by this act.”

The office of conservators of the peace is a very ancient one, and their common law authority to make police inspection, without a search warrant, extends throughout the territory for which they are elected or appointed, as the case may be, in private as well as in public places, and upon private as well as public property, unless inhibited from entry for such purpose without a search warrant by some rule of the common law, or by the Constitution, or by statute. It was provided in Edw. Ill, ch. 15, that “in every shire of the realm good men and lawful, which are no maintainers of evil nor barretors in the county, shall be assigned to keep the peace;” of which it was said that this “was as much as to say that in every shire the King himself should place special eyes and watches over the * people, that should be both willing and wise to foresee, and should be also enabled with meet authority to repress all intention of uproar and force even in the first seed thereof and before that it should grow up to any offer of danger.” (Italics supplied.) Lambard Book 1, chap. 4; 2 Hale’s P. C. (note 1) 42. This was but declaratory of the common law authority of conservators of the peace. That authority could not have been at all efficiently exercised if a search warrant had had to be first obtained before any entry could have been lawfully made upon, any land in private tenure.

[7] And while the duties and powers of police officers are, in modern times, largely defined and regulated by statute, it is elementary that the common law may be relied on to supply many incidents (of their powers), “and others are based on what may be necessarily implied from the powers expressly conferred.” 22 R. C. L., sec. 114, p. 455.

So that it is plain that the common law and the sections of Code and of the prohibition law last above quoted (which are but declaratory of the common law as applicable in such cases) gave the defendant officers the legal authority to make the entry upon the land in question for the purpose in question, without a search warrant, unless there is some rule of the common law, or Constitution or statute which inhibited them from so doing.

[8] The position is taken for the plaintiff, which is earnestly urged, that the officers in such a case as this had no legal authority, without a search warrant, to enter upon any privately owned land, however remote from the dwelling house or curtilage, and although not in the immediate actual possession of any one, because a search warrant is in such case required, both (a), by section 10 of the Virginia Constitution and (b), by the statute aforesaid contained in Acts 1920, pp. 516, 517, in order to render such entry lawful. We will first consider the position (a).

(a). To sustain the position (a) just mentioned the following authorities are cited: Entick v. Carrington, 19 Howell’s St. Trials 1029; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915 B, 834, Ann. Cas. 1915 C, 1177; People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, 3 A. L. R. 1505; 2 Watson on the Constitution, p. 1415 (see also Idem. pp. 1417, 1418, 1419, 1424); Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. Rep. p. 261, 65 L. Ed. 647 (advance sheets); Black’s Const. Law, sec. 7, p. 9 (see also Idem. pp. 606, 607, 608, 612); Anonymous, Minor (Ala.), 52, 12 Am. Dec. 31; People v. Ross, 19 Cal. App. 469, 126 Pac. 375; Delafoile v. State, 54 N. J. Law, 381, 24 Atl. 557, 16 L. R. A. 500; Commonwealth v. Eyre (Pa.), 1 S. & R. 347.

[9] The only entry by officers which is held by these authorities to be unlawful is that which occurs when the officers are making an “unreasonable” search or seizure. Such a search or seizure is forbidden by the common, law, and by the fourth amendment to the Constitution of the United States (which, however, does not extend to the State governments nor apply to proceedings in the State courts), which is but declaratory of the common law on the subject.

[10] In Virginia we have no constitutional provision on this subject, except section 10, which merely forbids, searches and seizures under “general warrants;” not searches and seizures without any warrant.

[11] What is meant by “general warrants” in such section of our State Constitution is well settled historically and judicially, as appears from the above mentioned authorities. And as we held in Zimmerman v. Town of Bedford, 134 Va. 787, 115 S. E. 362; such war-rants are search warrants issued “(1) without any evidence of fact furnished previously to their issuance, or (2) (which do) not designate any specific thing or person to be seized, or (3) (do not) particularly describe the offense claimed to have been committed.” See to same effect Black’s Const. Law, page 612. Such search warrants, as appears from the same authorities above mentioned, would, if valid, authorize • “unreasonable” searches and seizures; and it is for that reason that they are condemned by section 10 of our State Constitution aforesaid. In so doing, this section merely adopts and makes unchangeable by the legislature the common law on the subject, to that extent, but no further.

It is manifest, therefore, that since the entry in the instant case was not under any search warrant at all, section 10 of the Virginia Constitution has no direct application to the case. It has an indirect application, however, in its enunciation in part of the common rule on the subject.

[12] We have now, therefore, to consider whether the common law condemns such an entry as that involved in the instant case, without a search warrant. It does not do so unless the entry is made in the course of an “unreasonable”, search. And, as the authorities show, what is meant by an “unreasonable” search is a search which is unreasonably oppressive in its invasion of the liberty of the citizen.

[13] It is well understood that the authorities above cited, involving the subject, hold that searches and seizures under “general warrants” are “unreasonable” solely because, under their general terms, ministerial officers might search private homes and seize private papers and persons indiscriminately, unrestrained by previous judicial sanction. And the holding is precisely the same with respect to searches and seizures by officers without a search warrant. It is the personal and political liberty of the citizen, especially the privacy of Ms home and Ms papers, which is sought to be protected by the common law rule against “unreasonable” search and seizure and which would be considered unreasonably violated if certain searches and seizures were permitted without search warrant, or under general search warrants.

We find no indication in any of the authorities that protection of the title, or the constructive possession of property, is the controlling object of the common law rule against unreasonable searches and seizures. No right- of property is primarily intended to be protected' thereby, and certain property rights, not inclusive of those involved in the instant ease, are incidently protected only because they are immediately incidental to and inseparable from the enjoyment of the personal, rights aforesaid.

This is true of all of the decisions aforesaid cited and. relied on for the plaintiff. Anonymous, supra, involved the search of a dwelling house without a warrant; People v. Ross, supra, a dwelling house and curtilage, without a warrant; Delafoile v. State, supra, a hotel (the home of the landlord and wife) and assault upon the landlord’s wife, without a warrant; Commonwealth v. Eyre, supra, the curtilage, without a warrant; People v. Marxhausen, supra, a dwelling house, without a warrant; Boyd v. U. S., supra, letters and private documents ordered to be produced; Entick v. Carrington, supra, private papers seized in a dwelling house, under a. “general warrant;” Gouled v. U. S., supra, private papers seized and taken from an office, without a warrant.

In Faulkner v. Alderson, Gilm. (21 Va.) 221, cited for-the plaintiff, the entry was by the landlord, not an officer, but the entry originally lawful became unlawful ah initio, under settled principles, because of the subse— quent unlawful conduct of the landlord in breaking into the dwelling house, etc.

[14, 15] All of the authorities concur in the view that only “unreasonable” searches and seizures are forbidden by the comm on law rule aforesaid, or by the Federal and State constitutional provisions on the same subject;, that “unreasonable” searches and seizures without a search warrant are not thereby forbidden; and that what is a reasonable or an unreasonable search or seizure is “purely a judicial question and in determining it the court must look to all the circumstances.” 2 Watson on the Constitution, pp. 1417, 1418. See to same effect Black’s Const. Law, p. 612; Mason v. Rollins, 2 Biss. 99, 102, Fed. Cas. No. 9,252; Boyd v. U. S., supra; Haywood v. U. S. (C. C. A.), 268 Fed. 795, 803; U. S. v. Bookbinder (D. C.), 278 Fed. 216, 218; O'Connor v. U. S. (D. C.), 281 Fed. 396, 398-9; Haywood v. U. S. (C. C. A.), 268 Fed.795, 803-4.

In the case last cited, this is said:

“Not all searches and seizures are forbidden. Consider first the character of the property that may be seized. It never has been deemed unreasonable to hunt for and take stolen property, smuggled goods, implements of crime, and the like. * * * Consider next the person whose privacy is invaded. * * ”

The same rule there announced has been uniformly held to apply to contraband (such as was the illegal still for which the defendants in the instant case were searching), Elrod v. Moss, supra, ([C. C. A.], 278 Fed. 123); and no privacy of the plaintiff was invaded.

It is too manifest for further elaboration that the search, without a warrant, of the plaintiff’s premises, remote from his home and curtilage, and not even in his personal presence, was not an “unreasonable” search, and hence was not forbidden by the common law.

[16] The sole question, therefore, which remains for our decision is that presented by the position (b) taken for the plaintiff, as above stated, namely:

(b). Did the statute concerning search warrants (Acts 1920, pages 516, 517) require the defendant officers to obtain a search warrant before making the entry on the land of the plaintiff, in the aforesaid locality, remote from his dwelling and curtilage, and not in his presence or immediate actual possession, for the purpose of searching for the illegal still which they “had cause to suspect” was there?

The question must be answered in the negative.

[17] In the opinion of the United States Circuit Court of Appeals for this circuit delivered by Judge Woods in Elrod v. Moss, 278 Fed. at page 129, this is said:

“* * every constitutional or statutory provision must be construed with the purpose of giving effect, if possible, to every other constitutional or statutory provision, and in view of new conditions and circumstances in the progress of the nation and the State” (citing Supreme Court decisions). “Hence the provisions of Federal and State Constitutions forbidding unreasonable searches must be construed in the light of the constitutional provision against the sale, manufacture and transportation of intoxicating liquors.”

The same is equally true of the provisions of the search warrant statute under consideration, and they must be construed in the light of the aforesaid provisions of section 21 ¡J/-? of the prohibition law of the State authorizing the seizure of illegal stills without a warrant, and in the light of the common law and the statutory authority aforesaid conferred upon such officers as the defendants.

So construing such search warrant statute we are of opinion that its provisions have no application to the search by the officers of such a place as that involved in the instant case.

[18] It is plain, when the whole statute is read, that while it has a wider scope than the common law rule on the subject, in that it designates other places and things for the search of which search warrants are thereby required, for which the common law does not require search warrants; still, it is apparent that an attribute, not present in the instant case, is common to all of the places and things for the search of which the statute requires a search warrant, namely: the immediate actual personal custody by some one of the place or thing. The statute and the common law rule aforesaid are alike in this; it is the protection of the personal liberty and privacy of the citizen which is the prime object; the prevention of the unreasonable invasion of personal rights in the course of the administration of the law; and the protection which is given by the statute to property is purely incidental.

The word “house” used in the statute, does not exhaust the class to which it refers, as is argued for the plaintiff. And plainly, in the light of the common law rule aforesaid, the words “place” and “thing” mean other places and things of like character, with respect to being in the immediate personal custody of some one, so that the entry thereon or search thereof would violate the personal liberty and privacy aforesaid. Hence the cases of Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann Cas. 1914C, 302, and American Ice Co. v. Fitzhugh, 128 Md. 382, 97 Atl. 999, Ann. Cas. 1917D, 33, relied on for plaintiff on this subject, have no controlling application.

The case must be affirmed.

Affirmed.