State v. Gooder

234 N.W. 610, 57 S.D. 619, 1931 S.D. LEXIS 12

• Court: South Dakota Supreme Court
• Decided: January 30, 1931
• Docket: File No. 6916
• Status: Published

Opinions

BROWN, J.

Upon an information charging- him with keeping intoxicating- liquors for purposes of gift, trade, barter, and sale, defendant was convicted, and, from a judgment and order denying a new trial, he appeals. The sheriff «with a search warrant and accompanied by two deputies went to the premises described in the warrant, which was a private residence -where -defendant had been a roomer for four years, and, going- into his room between 9 and io o’clock in the forenoon, found -defendant in be-d, showed him the search warrant, and proceeded to search his room. In a closet they found a carton containing three empty cans, and in bureau drawers found three similar cans, one full, another about half full, and the third about one-third full of intoxicating- liquor. The sheriff said to defendant, “You have got too mu-ch stuff here.” To which defendant replied, “Yes, I know it, it is too ba-d but it is too late now, it is a wonder it hasn’t happened long ago.” Defendant conducted a garage in Orient and said he had gotten the three empty cans from an acquaintance with the intention of taking them to his garage to use as oil containers. He denied any knowledge that the cans -containing liquor were in his room. A fellow roomer occupied the same room with him and occasionally he had friends visit him at the room, and the door of the -dwelling- house was never locked. A number of witnesses testified to having- visited at his room at different times and that they never saw any signs of intoxicating liquor being used or kept there; never heard any loud talk or boisterous conduct of any kind, and the owner of the dwelling house in which he roomed and a maid who- worked there each gave similar testimony. There was no evidence that he had sold or given away any intoxicating liquor or that he drank any himself.

Possession of intoxicating liquor by any one not legally authorized to sell or possess the same is presumptive evidence that such liquor is kept contrary to law. Rev. Code, § 10318. We think there was sufficient evidence, if admissible, to make a question for the jury whether defendant was in possession of the liquor found in his room, and, if he was in possession, whether such possession was unlawful.

Before the trial defendant made timely motion to quash the information, and also moved that the property seized under the search warrant be impounded and that any evidence derived from the search be suppressed, upon the ground that all such evidence was obtained in violation of his constitutional rights, and particularly in contravention of article 6, section ix, of the state Constitution, forbidding unreasonable searches and seizures and the issuing of search warrants except upon probable cause supported by affidavit particularly describing the place to be searched and the person or thing to be seized; and similar provisions in the Fourth and Fifth Amendments to the federal Constitution. That said Fourth and Fifth Amendments do not govern or control the several states or the courts thereof is settled law. City of Sioux Falls v. Walser, 45 S. D. 417, 187 N. W. 821, and cases therein cited. State v. Gardner, 77 Mont. 8, 249 P. 574, 52 A. L. R. 454.

The search warrant under which the officers assumed to act in the present case was issued upon affidavit stating simply that affiant has reason to believe and does believe that John Doe has in his possession intoxicating liquor on the premises on lots 10, 11, and 12, block 9, in the town of Orient, that the building on said premises is a place of public resort, and that the grounds on which affiant bases his belief and on which he makes the affidavit are that he is informed by persons who claim to have personal knowledge of the facts that the said property is in possession of John Doe on the premises described, and that John Doe intends to use the same for committing the public offense above described. It will be observed that affiant’s belief is founded purely upon hearsay; he says he believes because he “is informed 'by persons who claim to have personal knowledge of the facts.” Why John Doe should have been named as the transgressor when it was perfectly well known that Emerson Gooder was the man about to be proceeded against, is not made apparent. Likewise, no reason is shown why the “persons who claim to have personal knowledge of the facts” should not have máde a proper affidavit or verified complaint as a foundation for a search warrant.

In Salata v. United States (C. C. A.) 286 F. 125, it is held that an affidavit stating that affiant has reason to believe and does believe, based upon what others have told him, that the intoxicating liquor law is being violated in a manner particularly described, does not show probable cause for the issuance of a search warrant. The same conclusion is arrived at in United States v. Kaplan (D. C.) 286 F. 963. In Glodowski v. State, 196 Wis. 265, 220 N. W. 227, 230, it is said that “the repetition under oath of hearsay statements made by others does not constitute proof of such facts and circumstances as will warrant finding probable cause for the issuance of a search warrant,” citing Wagner v. United States (C. C. A.) 8 F. (2d) 581, 583; Giles v. United States (C. C. A.) 284 F. 208, 214. It must be held that the search' warrant in the instant case was issued without probable 'cause, and that the search was illegal. What effect should this have upon the admissibility of the evidence procured?

This court has held in several cases'that relevant evidence is not rendered inadmissible by the fact that it may have been illegally procured. State v. Madison, 23 S. D. 584, 122 N. W. 647;; City of Sioux Falls v. Walser, 45 S. D. 417, 187 N. W. 821, 822; State v. Kieffer, 47 S. D. 180, 196 N. W. 967; State v. Newharth, 50 S. D. 272, 209 N. W. 542.

In State v. Madison it is said, assuming that the search warrant was illegally- issued, it -dbes not follow that the articles obtained by means of such warrant may not be introduced in evidence, for the great weight of authority seems to be in favor of such evidence without regard to the manner in which' it was obtained. The opinion discusses the question at some length, citing a number of state decisions and text-writers in support of the rule. In the Walser Case it was said that, since section 25 of title 2 of the National Prohibition Act (27 USCA § 39) declares that “no property! rights shall exist in any such liquor or property,” seizure, no matter how illegally'- effected could not be unlawful, and that defendant, not having been -deprived of any property right, could1 not -claim the return of the property nor have its use as evidence precluded, and that no constitutional right of defendant was violated by receiving in evidence the exhibits seized under an invalid warrant. In ¡State v. Kieffer, the trial court, on application timely made, ordered the return of intoxicating liquor and apparatus for the unlawful manufacture of such liquor on the ground that the search warrant under which the same was seized was illegal and void. On appeal this court reversed the order on authority of the Walser Case, saying that the property seized was, so to speak, contraband, and that no person had a right to its possession as against any other person, but the court disclaimed any intention to recognize the doctrine “that anything is legal if' you can get away with it,” and said that by the decision it was not intended to intimate that an officer of the law might resort to unlawful means to gain possession of property from another, but simply that one person, because of claimed ownership, could not recover from another intoxicating liquors or other propert)- which was contraband. State v. Newharth was disposed of b}r the statement “even if the search was illegal, the exhibits were not thereby rendered inadmissible in evidence,” and said that the question was settled for this jurisdiction I03' the cases of City of Sioux Falls v. Walser and State v. Kieffer, supra. In the Newharth Case Judge Campbell concurred upon the sole ground that the motion for the return of the propert}^ and the suppression of the same as evidence was not timely made.

Recent federal decisions, including a number by the Supreme Court of the United States, are opposed to the decisions of this and other state courts upon this subject. In the Walser Case, Judge Whiting, writing the opinion, says that the Fourth and Fifth -Amendments to the federal Constitution are in effect the same as sections 9 and 11, article 6, of the. Constitution of this state, and that, while decisions of .the federal court as to the meaning and effect of these amendments are not controlling upon state courts in the construction of similar provisions in state Constitutions, yet, "if we should find that the federal decisions- are in conflict with a decision of this court, we should hesitate to follow our decision rather than those of a tribunal whose decisions are entitled to such consideration as those of the Supreme Court of our land.” The opinion then goes into a discussion of a number of the federal decisions, including Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Silverthorne v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A. L. R. 1426; Gouled v. United States, 255 U. S. 298, 41 S. C. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; and Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159, and concludes “that the language used in State v. Madison may have been too 'broad,” but that, because of the difference in the facts, nothing said by the federal Supreme Court in those eases conflicts with what is décided in State v. Madison, nor with the rule that evidence illegally procured by a government officer under a search warrant is admissible in evidence in a prosecution for the offense, to procure evidence in which the search warrant was issued. Judge Whiting endeavors to draw a distinction between property seized by the government without warrant or under invalid warrant, where the possession of the property by the person from whom it is taken is lawful, and the seizing of property by the government withoút warrant or under an invalid warrant from one whose possession when the property was seized was unlawful. He quotes section 25 of title 2 of the National Prohibition Act (27 US'CA § 39), to the effect that no property rights shall exist in any liquor or property in the possession of any one in violation of law, and says that the property before being seized was forfeited to the United States on account of its unlawful character, and that the seizure thereof, even though irregular, was not the seizure of property of the parties in whose possession it was found, and therefore such seizure was not in violation of any constitutional provision. The distinction thus endeavored to -be drawn between the legality and rightfulness of the seizure by the government of propérty unlawfully in possession of the party from whom it is seized, and property lawfully in possession of such part}', has not commanded the approval of the federal courts in cases decided subsequent to the Walser 'Case, and is not recognized by the highest court in the land, whose decisions Judge Whiting" indicated should be followed rather than o.ur own upon questions arising under constitutional provisions similar to our own. Kohler v. United States (C. C. A.) 9 F. (2d) 23; Siden v. United States (C. C. A.) 9 F. (2d) 241; Bell v. United States (C. C. A.) 9 F. (2d) 820; Lindsly v. United States (C C. A.) 12 F. (2d) 771; United States v. Dossi (D. C.) 12 F. (2d) 956; United States v. Costanzo (D. C.) 13 F. (2d) 259; Henderson v. United States (C. C. A.) 12 F. (2d) 528, 51 A. L. R. 420; Perry v. United States, 14 F. (2d) 88; Hernandez v. United States (C. C. A.) 17 F. (2d) 373; Simmons v. United States. (C. C. A.) 18 F. (2d) 85; Alvau v. United States (C. C. A.) 33 F. (2d) 467; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Gembino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381.

In the Agnello Case the federal Supreme Court gave thorough consideration to the question, both upon principle and upon the authority of the cases sought to be differentiated' in the opinion in the Walser Case, and held that contraband narcotics seized by government revenue agents without a valid search warrant could not be used in evidence against the defendant from whose possession such contraband articles were taken by the officers, and that a conviction procured :by the use of such evidence must be reversed. In the Gambino Case the same principle was announced, conviction was reversed for the admission in evidence of intoxicating liquor seized without a valid search warrant where timely motion to suppress the evidence had been made.

It will thus be seen that the decisions of the federal Supreme Court in the Agnello and Gambino Cases are in direct conflict with the decisions in this state on the question of the admissibility of such evidence and also that the federal Supreme Court -deems its decisions in the cases sought to be differentiated in the Walser Case as being directly in conflict with the rule on the subject in this state. We are therefore now brought face to face with the conflict referred to in the W'alser Case in which Judge Whiting said: ‘‘We should hesitate to follow our decision rather than those of a tribunal whose decisions are entitled to such consideration as those of the 'Supreme Court of our land.”

In a dissenting opinion in Olmstead v. United States, 277 U. S. 470, 48 S. Ct. 564, 575, 72 L. Ed, 944, 66 A. L. R. 376, Justice Holmes says: “We must consider the two objects of desire both of which we cannot have and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained.” Sir William Scott, known in later life as Lord Stowell, said: “To press forward to a great principle -by breaking through every other great principle that stands in the way of its establishment ; * * * in short, to procure an eminent good by means that are unlawful, is as little consonant to- private morality as to public justice.” The Louis, 2 Dodson 210, 257. It seems to us that it ■will do little good for the President of the .United States to appoint commissions to inquire into the causes of disrespect for law and the best means of securing enforcement of law, if government itself through its enforcement officers flouts 'both the Constitution and the laws whenever they stand! in the way of achieving- the ends desired by such officers. We are not unmindful of the fact that the adoption of the federal rule may in some instances enable violators of law to escape merited punishment. But that need never occur unless where officers of the law are too indolent to comply with the very easy and simple requirements of the law in procuring search warrants. And as was said by Justice Holmes: “We are free to choose between two principles of policy,” and we think that the application of the federal rule is choosing the -lesser of the two evils. We agree with Justice Holmes that it is “a less evil that some criminals should escape than that the government should play an ignoble part,” and by its own conduct encourage the violation of its own laws. The motion to suppress the evidence obtained by the illegal search warrant should! have been sustained.

While a contrary view to> that herein announced still prevails in a majority of the state courts, the rule we now adopt is that of the Supreme Court of the United States and other federal courts and seems to be gaining adherents from the state courts. In 52 A. L. R., beginning at page 477, there is a very full note on the subject, in which it is stated that in twenty-eight states the evidence is 'held to be admissible, and inadmissible in sixteen. But of those favoring admissibility only one, Iowa, has changed from an originally contrary view, while of the sixteen states favoring inadmissibility only six were originally of that view. See, further, article in Minnesota Law Review, December, 1928, volume 13, page 1.

We think we take the right course in following- the ten who, becoming satisfied, of the moral obliquity and vicious tendencies inherent in holding evidence procured by state officers by means of unlawful searches and seizures admissible in prosecutions in the state courts, have abandoned that rule and adopted the opposite one, holding that evidence so obtained should be suppressed and excluded where timely objection is made.

The judgment and order appealed, from are reversed.

POLLEY, P. J„ and CAMPBELL, J., concur. ROBERT'S, J., disqualified and not sitting.