People v. Holcomb

3 Park. Cr. 656

• Court: New York Supreme Court
• Decided: May 15, 1858
• Status: Published

Opinion

By the Court, Rosekrans, J.

The defendants were indicted for resisting a constable in executing a search war rant, issued by a justice of the peace, in these words:

[The search warrant was here set forth in the same words as in the statement of this case.]

The acts of the defendants, which were proved, were sufficient to convict them of the offence if the warrant was a legal justification of the constable in making the search, and taking the property. Upon the trial the defendants insisted that the warrant was void : First. Because it was directed “to any constable of the county of Washington,” instead of the “ sheriff of the county, or a constable of the town of Whitehall;” Second. Because it commanded the officer to search the place where the property was suspected to be concealed, without describing the place; and, Third. That the warrant was unauthorized. These objections were overruled, and the defendants excepted. The court charged the jury that the warrant was valid, and the defendants excepted to this part of the charge.

The warrant, although it recites a complaint on oath, that a larceny had been committed and that the complainant suspected that Henry Loomis had stolen the property and had secreted it in the stable of Charles Pardo at Whitehall, does not direct the arrest of Loomis but only that the officer should search for the stolen property and bring it before the justice. Had it directed the arrest of the person charged with the offence, it might have been directed to the sheriff of the county or any constable of any town in the county and need not have been under seal. (2 R. S., 890, § 3, 4th ed.) But search warrants are by statute required to be directed “ to the sheriff of the county or to any constable or marshal of the town or city ” (2 R. S., 929, § 33), and by the common law, warrants, in criminal proceedings, are required to be under the hand and seal of the magistrate who issues them. (4 Bl. Com., 291; 2 Hawk., 85, 136 ; 4 Burns’ Justice, 393, 394.) In Beekman v. Traver (20 Wend., 68) the court say that the word “ warrant ” implies that the process is under the hand and seal of the magistrate, and that it would not be a warrant in the sense of the law unless it was sealed. The same doctrine is held in North Carolina, (Welch v. Scott, 5 Ire., 72.; State v. Woolsey, 11 ib., 242), in Maine, (State v. Drake, 36 Maine, [1 Heath] 366; State v. Coyle, 33 Maine., [3 Red.] 427; State v. McNally, 34 id., 210). The search warrant in Bell v. Clapp (10 J. R., 263) was under the hand and seal of the justice. Our statutes have dispensed with seals to process in various cases. Warrants issued by justices of the peace in civil cases “ may be under or without seal.” (2 R. S., 453, § 153.) Warrants issued for the arrest and examination of offenders may be with or without seal. (2 R. S., 890, § 3.) Also warrants under the statute entitled “ Of proceedings to prevent the commission of crimes.” (2 R. S., 888, § 3.) Warrants issued upon judgments of Courts of Special Sessions may be only “under the hands of the magistrates who held the court.” (2 R. S., 901, § 36.) Also warrants issued by trustees of school districts annexed to tax or rate bills may be under the hands of the trustees, and it is expressly provided that they need not affix their seals. (1 R. S., 902, § 144.) But the statutes directing the issuing of a warrant against the putative father of a bastard child (2 R. S., 57, § 6) and the statute entitled “Of betting and gaming’’? (1 R. S., 75, §24) and the statute authorizing the issuing of search warrants for stolen property (2 R. S., 929, § 32), merely direct or authorise the issuing of warrants, without specifying whether they shall be with or without seal. As the common law required a warrant to be under seal, and the legislature in reference to warrants authorized to be issued in various cases, both civil and criminal, have expressly provided that they may be issued without the seal of the magistrate or officer, the rule of expressio unius est exclusio alterius requires that, in those cases in which warrants are not expressly authorized to be issued without seal, they should be issued under seal. (Bouv. L. Dic., title “ Search Warrant”) If this position is correct, the warrant under which the officer was acting when he was assaulted and resisted by the defendants was void upon its face and afforded him no protection; the resistance of the defendants was lawful and the ruling of the Court of Sessions that the warrant was valid and that such resistance was unlawful, was erroneous. ( Sanford v. Nichols, 13 Mass., 288.

We think, too, that the objection that the warrant did not conform to the statute in its direction was well taken, and that it was for that reason void upon its face. The statute declares that “ such warrant shall be directed to the sheriff of the county, or any constable or marshal of the town or city.” The warrant issued to the constable who was resisted was directed “to any constable of said county” (Washington). It is clear that a warrant can only be executed by the officer to whom it is directed; and in the hands of any other person or officer than one of those to whom its execution is by law intrusted it is of no validity. There is no such officer as a “ constable of the county.” Constables are town officers. But perhaps the reasonable construction of the direction of the warrant is, “ to any constable of any town in the county of Washington.” If so, it is unauthorized. The statute contemplates that a search warrant should only be executed by the sheriff of the county, or a constable or marshal of the town or city in which the stolen property is alleged to be secreted. To direct it to any other officer is a violation of the statute. The direction of a warrant is a material part of it. (Russel v. Hubbard, 6 Barb., 656, and authorities there cited; 1 Chit. Cr. L., 48.) In King v. Weir (1 Barn. & Cress., 288), Barley, J., says: “It is of great consequence that magistrates should be careful to direct their warrants in such manner that the parties to be affected by them may know that the persons bearing them are authorized to execute them;” and Allen, J., says, in Russell v. Hubbard (supra), “a delivery to a proper officer is not the direction required by law.” Hawkins says : “ If a warrant is generally directed to all constables, no one can execute it out of his own precinct.” Courts should construe statutes in relation to search warrants strictly, and see that the specific directions of those statutes are rigidly followed. A search for and seizure of property, not made in the cases and according to the exact mode prescribed by statute, is an unreasonable search and seizure, the right to be secure against which should not be violated. (Bill of Rights, 2 R. S., 302, § 11; Const. U. S., amend, art 4.)

We think, too, that the warrant is void upon its face, in not designating particularly the place to be searched. It stated, in the part reciting the complaint, that the complainant “ suspects that the stolen property is concealed in the stable of Charles Pardo, on the east side of the canal, in the village of Whitehall in said county, known as the red barn.” This designation of the place would be sufficiently specific if the direction to search was confined to that place, either expressly, by repeating it, as was done in the warrant in Bell v. Clapp (10 John., 263), or by reference, as in the case of Commonwealth v. Dana (2 Metc., 831, note) and in Sanford v. Nichols (13 Mass., 386). But the direction is not to search the said place, which would limit the search to Pardo’s barn before described. The constable is directed “ to search the place where the said property is suspected to be concealed." This direction, if constitutional and legal, would authorize search in any other place where the officer or any other person might suspect the property to be concealed, It is a general warrant for a search of suspected places. The words, “ the said property,” are a sufficient designation, by reference, of the property to be searched for, but the place where the search is directed to be made is not designated with sufficient particularity to comply with the requirements of the constitution and statute, It is no answer to this objection that the officer may have construed the warrant as only authorizing a search at Pardo’s barn, nor that the search which he made and which the defendants resisted was made at that place. The question is not, what construction did or might the officer put upon the warrant, nor whether his acts were such as would have been legal and justifiable under a warrant which would have been authorized by the complaint, but it is simply whether the warrant, according to the legal construction of its language, confines the search to the particular place designated in its reciting part as the place of suspected concealment of the property. We think it does not, and that nothing should be be left to inference or intendment in that particular. The place of search mentioned in the reciting of the warrant should either have been repeated in its mandatory part or have been designated by reference to it, as “the said place where the said property is, as before mentioned, suspected to be concealed.”

It is also questionable whether a search warrant can be executed, or afford protection to an officer, where it shows upon its face that the party who has the property alleged to be stolen is charged with the larceny of it, and no warrant for his arrest accompanies or is incorporated in the search warrant. The complaint recited in the warrant disclosed that a criminal offence had been committed by Loomis as clearly as it did the place of concealment of the stolen property. Both were founded merely upon suspicion, and without a disclosure of the facts upon which the suspicion was based, the justice should not have been satisfied of the existence of either. The reasonable grounds of suspicion should have been set forth. This, however, did not affect the officer’s right to execute the process. But if the larceny was satisfactorily made out, it was the duty of the justice to issue a warrant for the arrest of Loomis. (2 R. S., 890 § 3), and when the property alleged to be stolen was taken by the constable, he was required to keep it subject to the order of the magistrate who issued the warrant, and who should take the examination of the defendants, and such magistrate, upon satisfactory proof of the title of the owner, is authorized to order the property delivered up to such owner (2 R. S., 930, §§ 37, 38); and if stolen property shall come into the hands of a justice of the peace, upon like proof he may order it delivered to the owner (id., § 39); but it was never contemplated that a search warrant should be issued to obtain possession of property alleged to have been stolen, and when brought to the justice that he should order it to be delivered over to the person claiming to be the owner, upon ex parte proof of his title. No freeman can be thus dispossessed of property. He is entitled to a day in court, and a hearing in some tribunal, civil or criminal, before his possession is disturbed. An ample civil remedy is provided for the delivery of property held under circumstances such as were disclosed by the complaint in the case. His proceedings under his complaint and warrant were anomalous and unprecedented. They seem to have been designed by him to peform the office of the old writ of replevin, or the proceedings under the Code of Procedure for the claim and delivery of personal property, without subjecting him to the inconvenience of giving security for the return of the property, if return thereof should be adjudged, and without giving the defendant Loomis, who was charged with the larceny, an opportunity to establish his title or right to the possession of the property, or to defend his reputation against the serious charge preferred against him. No warrant was issued for his arrest, nor was he arrested for the alleged larceny, although he was present at Pardo’s stable and resisted the officer in his attempts to take the property. No notice was given him, or cóüld be legally given him, under the process, of the time when or the place where the proof of the complainant’s title to the property was to be furnished to the magistrate. It was probably not intended that he should have had such notice. This novel disseizin might not have worked as it was designed had the notice been given. At common law it was necessary that a search warrant should command that the goods found, together with the party in whose custody they should be taken, should be brought before the magistrate, to the end that upon examination of the facts, the goods and the prisoner might be disposed of according to law. (2 Hale, 150; 15 Petersd. Abr., 361, margin and note.) The revisors make this citation from Hale in their notes to the section of the statute authorizing a search warrant; and also 3 Dickinson's Justice, 505 (3 R. S., 838, 2d ed.); also, to the same effect, Bouvier’s Law Dictionary, title “ search warrant,” and authorities cited. (1 Chit. Cr. L., 64.)

For these reasons the judgment of the Sessions should be reversed and the defendants discharged.