Novak v. State

200 N.W. 369, 185 Wis. 616, 1925 Wisc. LEXIS 81

• Court: Wisconsin Supreme Court
• Decided: February 10, 1925
• Status: Published

Opinions

The following opinion was filed October 14, 1924:

Owen, J.

Plaintiff in error (hereinafter called defendant) operated a soft-drink parlor in the city of Milwaukee under license issued pursuant to the provisions of sec. 165.01, Stats. The place was visited by two state and two federal prohibition officers. Defendant was asked whether she had a still to make whisky. She replied that she had not. She was then told that a search of the place would be made, and she replied, “All right, you can go across and look all over every place.” While the two state officers were inspecting one part of the premises, one federal officer discovered a false panel over a door and found three bottles of liquor, in the recess back of the panel. One of the state officers was immediately called, who saw the bottles in'this hiding place. The bottles were taken by the state officer, labeled by him, and kept in possession of the state prohibition authorities until brought into court at the time of trial. The question presented is whether the bottles thus seized were properly received in evidence.

It is the contention of the defendant that the search and seizure was unlawful because made by a federal prohibition officer without a warrant. It is settled that a state prohibi-, ¡ tion officer may search the premises of a licensee for the sale ■ of soft drinks without a search warrant, under the authority j of sub. (30), sec. 165.01, Stats. Finsky v. State, 176 Wis. 481, 187 N. W. 201; Silber v. Bloodgood, 177 Wis. 608, 188 N. W. 84.

It is claimed, however, that the statutory provision referred to does not authorize federal prohibition officers to conduct a search and seizure; that because the liquor was discovered by the federal prohibition officer the search and seizure was unlawful, and the liquor seized should not be admitted in evidence, under the authority of State v. Hoyer, 180 Wis. 407, 193 N. W. 89, and Jokosh v. State, 181 Wis. 160, 193 N. W. 976.

We need not inquire whether the seizure was by the state or federal officers, as in neither event was the evidence inadmissible. If the seizure was by the state officers it was a legal seizure under the authorities already cited and the product of the search was admissible in evidence. If the seizure was by the federal officers, then the rule of State v. Hoyer and Jokosh v. State does not apply, as the rule there announced applies only to seizures made by officers of the state in violation of constitutional rights. State v. Warfield, 184 Wis. 56, 198 N. W. 854. Where the seizure is. not made by officers of the state whose duty it is to protect the individual in his constitutional right of immunity from unlaw-lawful searches and seizures, the product of the search is admissible in evidence. Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574.

By the Court. — Judgment and sentence affirmed.