PIPES, J.
The defendant was indicted for having intoxicating liquor in his possession and was tried on the twenty-second day of December, 1922, in the Justice’s Court in Benton County, Oregon. He was there convicted and appealed to the Circuit Court, where he was again convicted.
It appears that two deputy sheriffs, Robinson and Plunkett, had seized the defendant and searched his person for intoxicating liquor and, a pint flask of liquor being found on his person, he was arrested
for the crime. Prior to .the trial the defendant filed a timely application in the Justice’s Court for a return of the liquor to him, alleging that it had been illegally seized in a search of his person. This application having been denied, it was renewed in the Circuit Court before the trial in that court. The Circuit Court heard the evidence concerning the search and seizure and decided that the search was unlawful and that the whisky obtained thereby was illegally obtained. Notwithstanding that decision, upon the trial the court admitted evidence, over the objection and exception of the defendant, of the two officers to the effect that the flask so seized by them was three fourths full of whisky. The whisky had been submitted for a chemical examination to a professor of chemistry at the Agricultural College, who testified, over the objection and exception of defendant, that a part of the contents of the bottle contained 34 per cent of alcohol. The circumstances of the search and seizure were related in their testimony by the officers. As they will be particularly referred to in the opinion, we will not recite them in this statement.
The defendant was convicted and from a judgment of conviction brings his case here by appeal. The sole question to be determined is whether the court erred in admitting the testimony of the officers and of the chemist derived from an examination of the whisky.
If the search here was legal, the evidence obtained thereby was admissible at the trial and the court committed no error in overruling the objections to it.
If the search was not legal, the evidence was illegally obtained. Whether, notwithstanding this fact, it was .admissible depends upon another question, which we will meet in its proper place. The question of the legality of this search of defendant’s person, then,
meets us at the threshold of the case, and must be decided.
An officer has authority to search the person of a man when he holds a search-warrant issued to him by a magistrate, in pursuance of a provision of the Constitution of this state, and the law passed in pursuance thereof, which are as follows:
“No law shall violate the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. ’ ’ Article I, Section 9, Constitution of Oregon.
“The magistrate must, before issuing the warrant, examine, on oath, the complainant and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.” Section 1855, Or. L.
“Thereupon, if the magistrate be satisfied that there is probable cause to believe in the existence of the grounds of the application, he must issue the warrant, * * .” Section 1856, Or. L.
Or he may search a man who is in his custody by virtue of a legal arrest to answer some criminal charge pending or in contemplation.
These two authorities differ from each other in purpose and procedure. In the cases covered by the constitutional provision, the search, if under a search-warrant, is authorized where the public has an interest in the discovery, as of stolen goods, concealed weapons, unlawful possession of intoxicating liquors, etc. But the constitutional provision is at once permissive and prohibitive. It confers authority and limits its exercise within the limits defined by the provision. This search can only be made upon probable cause, appearing by oath or affirmation, and judicially de
termined. Otherwise the search is not only not authorized; it is prohibited.
Under the second authority, the search is an incident of an arrest for some crime. The man searched must at the time be in the legal custody of the officer. He must be lawfully a prisoner.
It is admitted here that the officers had no search-warrant. If. the search was legal, it must come within the authority of the officers to search the prisoner in their legal custody to answer for some crime. If it does not come within that rule, then it comes within the prohibition of the constitution against illegal searches.
The cases are not in conflict on these propositions. They are recognized everywhere, and are established by this court. Upon the right to search a person under arrest:
State
v.
McDaniel,
39 Or. 161 (65 Pac. 520);
State
v.
Wilkins,
72 Or. 77, 80 (142 Pac. 589);
State
v.
Laundy,
103 Or. 443 (204 Pac. 958, 206 Pac. 290).
The constitutional provision and the procedure thereunder provided by statute are to be strictly construed in favor of the complainant, and, if not followed, the search and seizure are void. The provisions are mandatory:
Smith
v.
McDuffee,
72 Or. 276, 284 (142 Pac. 558, 143 Pac. 929, Ann. Cas. 1916D, 947);
Nally
v.
Richmond,
105 Or. 462, 468 (209 Pac. 871).
An officer may arrest a person for a crime committed in his presence: Section 1763, Or. L.;
State
v.
Laundy, supra.
And if he arrests him and has him in custody he may search him. But if he does not arrest him for some crime known to the laws, he cannot search him without a search-warrant, although he may believe and, in fact, may have probable cause to believe, that the person has on his
person instrumentalities of crime He cannot himself decide that probable cause exists for the search, nor act upon such decision. The determination of the existence of probable cause for the search is a judicial function, and is not confided to the executive officer: Sections 1855, 1856, Or. L.,
supra.
If the officer, therefore, did not have the defendant in custody on some criminal charge, at the time of the search, however strongly his breath, walk and conduct might indicate that he had intoxicating liquor on his person, the officer had no legal authority to search him for it. The officer had two courses to pursue: to arrest defendant for the crime committed in his presence, if he was there committing a crime, and then search his prisoner for the whisky, or, if not that, obtain a search-warrant and search him, under the authority of his warrant.
The differences of opinion that exist on this record do not arise from conflict in the law concerning search and seizure, but on the different interpretations of the evidence. The question is whether the evidence proves an arrest and a search, or a search and arrest. In the former case, the search was legal. In the latter case, it was illegal.
It should be premised that every unlawful search of a person
in invitum
involves a restraint of his liberty during the time of the search and, therefore, in a sense, is an arrest. This may not be physical force, but may be compulsion by legislative or judicial authority or duress by the officer under color of his office:
Boyd
v.
United States,
116 U. S. 616 (29 L. Ed. 746, 6 Sup. Ct. Rep. 524);
Hale
v.
Henkel,
201 U. S. 43 (50 L. Ed. 652, 26 Sup. Ct. Rep. 370, see, also, Rose’s U. S. Notes).
But that restraint is not an arrest to answer a crime, but the means of making the search. When
the Constitution prohibits a search without a warrant it prohibits the force necessary to accomplish it.
It is contended by respondent, in support of the legality of the search, that the defendant was drunk in a public place and was therefore guilty of a crime committed in the presence of the officers. Section 2244—1, Or. L., provides:
a
* * j-j; sball be unlawful for any person to be drunk in any highway, street, or in any public place or building * * .”
Assuming, without deciding, that the evidence tended to show that defendant was drunk in a public place, and in the presence of the officers, that would have justified his arrest for that crime. But the fact of his drunkenness in their presence, without an arrest, would not justify a search, without a warrant, for the instruments of the crime on his person. That is the very thing that the Constitution and the law passed in pursuance thereof forbid.
We go to the evidence to discover whether the officers arrested the defendant for being drunk in a public place. Neither officer notified the defendant that they were arresting him for drunkenness in a public place. It is said that that is not necessary to establish a lawful arrest for a crime committed in the officer’s presence. That is true. But what was said or not said at the time is relevant on the question of whether there was any arrest at all. Neither officer testified in court that he arrested the defendant for being drunk, or had any intention to do so. But the question is concluded by the fact that no charge of that crime was lodged in any court. The statute provides what an arrest is. Section 1753, Or. L., provides:
“Arrest is the taking of a person into custody, that he may be held to answer for a crime.”
The very best evidence that he was not arrested for the crime of drunkenness in a public place is that he was not afterwards charged with the crime. If he was not arrested that he might be held for that crime, he was not arrested. A legal arrest gets its legal significance from the purpose of it—to answer for a crime. We will not hold that an arrest has been made to answer for a crime that has never been charged against the defendant.
Mr. Robinson, one of the deputy sheriffs making the search, testified that in the building where the court was held, he smelled whisky on defendant’s breath; that his overcoat was buttoned awry; that his face was flushed. The defendant left the building to go to his car, standing in the street. Mr. Robinson and Mr. Plunkett, the other deputy, followed him to the car. Up to that time the defendant had not been accosted, and certainly had not been restrained of his liberty. The witness detailed what transpired as follows:
“Q. I wish you would state just what transpired there. A. Well, we walked up; we got pretty close and Mr. McDaniel started his car, and Mr. Plunkett said, ‘Hold on there, Mac, we are going to search the car and you,’ and he says, ‘What is the idea?’ And he says, ‘You smell too much like a bottle of moonshine to me, and from your appearance—We are going to search the car.’ And he says,
‘Go
ahead and search the car.’ And after we searched the car and could not find anything, Mr. Plunkett says, ‘What will we do now?’ And I said, ‘We will search you.’ And Plunkett says, ‘We are going to search you.’ And he jumped out of the car on the other side over this woman’s feet, and in the meantime I had walked on the left hand side of the c&r, where Mr. Plunkett was.
“Q. Uo ahead. A. And when he jumped out, Mr. Plunkett went in front of the car and met him and got hold of him, and I came on the rear of the car,
and caught Mr. McDaniel and held his arms back while Mr. Plunkett searched his front pockets, and he could not find anything, and Mr. ‘Mac’ kind of squirmed around—”
* *
“Q. Go right ahead. A. The bottle in his hip pocket came up against me, and I felt pretty sure, and knowed there was something in his pocket, and I surmised what it was.
“Q. What did you do? A. When Mr. Plunkett raised up from searching him, in front, I knew if there was any foul play or anything, he could protect himself. I just turned Mac’s arms loose and I raised his overcoat up and I taken the bottle out of his hip pocket, and I said, ‘How about that?’ And he said, ‘That is mine.’ And Plunkett says, ‘I will place you under arrest for having liquor in your possession.’ ”
It will thus be seen that the first words the witness said to the defendant were, “Hold on there, Mac, we are going to search the car and you.” This was repeated. The defendant said, “Go ahead and search the car,” which the officers did. Finding no liquor, the witness said to defendant, “We are going to search you.” The defendant left his car, and the officers caught him and proceeded to do what Mr. Eobinson told him they would do. In the words of the witness, he “caught Mr. McDaniel and held his arms back while Mr. Plunkett searched his front pockets.” Mr. Plunkett not finding anything, Mr. Eobinson proceeded: I just turned Mac’s arms loose and I raised his overcoat up, and I taken that bottle out of his hip pocket, and I said, ‘How about that?’ And he said, ‘That is mine.’ ”
Mr. Plunkett testified to the same effect. It is, therefore, quite clear from this evidence that the officers did not think they had evidence upon which to found a charge of possessing liquor illegally. From
the condition of defendant described by them, they no donbt strongly and justifiably suspected it. They were unwilling to arrest the defendant to answer for the crime of having liquor in his possession when they could produce no direct evidence to support it. In that state of mind, they determined to get the evidence to support it, if it existed on the person of defendant. That was the purpose of the search, and the force used to make it was not an arrest to answer for a crime, within the meaning of the statute, Section 1753, Or. L., but an arrest to make the search.
What the officers actually did accords with their words. The search began when the violence began. What they did speaks as loud as what they said. They pinioned his arms, in order to conduct a search of his person.
Bes ipsa loquitur.
The legal character of the act they were doing was then fixed by its own circumstances. We cannot give it a different legal significance by what it is assumed they could have done, but did not do. We have no power to reconstruct the transaction. It was the handiwork of the officers, and comes to us as they made it. We cannot import into it the fiction of a legal arrest, which the reality contradicts.
After they found the liquor, then for the first time Mr. Plunkett said, “I will place you under arrest for having liquor in your possession. ” The arrest for the crime for which defendant was tried and convicted followed and did not precede the search. The officers searched defendant’s person for evidence of a crime, without a warrant, and found it, and then, and not until then, they arrested him for the crime. The search was illegal and the evidence illegally obtained.
The next question is, Was the evidence thus obtained admissible? The ordinary rule, well sus
tained by the state and federal cases, is that the court will not delay the trial, on objection first made there, to inquire whether the evidence was illegally obtained. We need not go abroad for that rule. It is the rule in this court:
State
v.
McDaniel,
39 Or. 161 (65 Pac. 520);
State
v.
Wilkins,
72 Or. 77, 80 (142 Pac. 589);
State
v.
Ware,
79 Or. 367, 377 (154 Pac. 905, 155 Pac. 364);
State
v.
Laundy, supra.
But there is an exception to that rule. It is that when there is a timely application to the court before the trial for the return of the property because it has been illegally obtained by the officers, the court will try the issue, and order or refuse the return, according as the facts may disclose. But the rule does not stop with the order. If the court finds the issue for the defendant, it will at the trial sustain the objections to the evidence. This exception is approved and applied in a number of cases in the Supreme Court of the United States:
Weeks v. United States,
232 U. S. 383 (58 L. Ed. 652, Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 34 Sup. Ct. Rep. 341;
Gouled
v.
United States,
255 U. S. 298 (65 L. Ed. 647, 41 Sup. Ct. Rep. 261);
Amos
v.
United States,
255 U. S. 313 (65 L. Ed. 654, 41 Sup. Ct. Rep. 266, see also, Rose’s U. S. Notes and Supp.).
It is contended, and justly, that the state courts are not bound by the federal authorities. Many cases are cited in respondent’s brief to show that the great weight of state authority is against' the federal rule. We are relieved from following that discussion, because this court has already followed the rule announced by the national court.
In
State
v.
Laundy, supra,
the defendant was indicted for criminal syndicalism. He was arrested without a warrant. The officers entered the hall where the assembly was in progress. The crime
charged was a felony. The court held that the arrest of the defendant was lawful. The court then continued:
“An arresting officer who makes a lawful arrest may search his prisoner, and in the language of Bishop, ‘if he finds on the prisoner’s person, or otherwise in his possession, either goods or money which he reasonably believes to be connected with the supposed crime, as its fruits, or as the instruments with which it was committed, or as supplying proofs relating to the transaction, he may take and hold them to be disposed of as the court directs.’ Bishop’s New Criminal Procedure, § 211.
“If the arrest of a prisoner is lawful, a search of the person of the prisoner is lawful; and the officer making such lawful arrest and lawful search may take from the prisoner not only instruments of the crime but also such articles as may be of use as evidence on the trial:
Weeks
v.
United States,
232 U. S. 383 (68 L. Ed. 652, Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 34 Sup. Ct. Rep. 341, see, also, Rose’s U. S. Notes). * * The search is justifiable as an incident to the lawful arrest.”
State
v.
Laundy,
103 Or. 443, 496 [204 Pac. 958, 975].
The defendant, Laundy, complained that the taking of thirty-seven exhibits in the hall, and his membership-book after his arrest was a violation of his constitutional rights. In order to test the question he filed a timely petition before the trial for an order for the return of the articles taken.
That was done in the instant case. The legal efficacy of such a petition was involved there, as it is here. It was there decided, after mature deliberation, in an exhaustive opinion by Mr. Justice Harris, speaking for this court. For a full understanding of the scope of the ruling we can do no better than quote the language:
“ # * The inquiry is, "Were the rights of the defendant violated when the policeman removed the thirty-seven exhibits from the hall, and when the membership card was taken from him at the police station? As a preliminary, it is appropriate to say, in the language used by the national Supreme Court in
Weeks
v.
United States:
‘This protection’ against unreasonable search and seizure guaranteed by our state Constitution ‘reaches all alike whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted’ with the enforcement of the laws.
“The Supreme Court of the United States in a series of decisions has made plain the rule of practice to be followed by the federal courts in order to secure to ‘all alike’ the protection intended to be given by the national Constitution. An accused person whose property is taken by an officer of the federal government in violation of the Fourth Amendment is entitled to an order of the court, upon the filing of a timely petition, directing the return of the wrongfully seized property. Ordinarily such a petition must be filed prior to the commencement of the trial, because as a general rule the courts will not, after the trial has begun, suspend the trial of the accused and frame and determine a collateral issue concerning the means by which an article, competent as evidence in the trial, was obtained. This court, it is true, has held in conformity with the rulings of most of the other courts, including the Supreme Court of the United States, that the relevancy of a given article is not affected by the circumstances that it was wrongfully seized; and hence inquiry will not ordinarily be made during the trial concerning a collateral issue: [Citing authorities.] If, however, the accused does not know until the paper or other article is offered in evidence that it was obtained by an unlawful seizure, he is nevertheless entitled at that time to an order of the court directing a return of the property. [Citing authorities.] This rule of practice sanctioned by the Supreme Court of the United
States ought, for the same reasons which recommended it to the court, to be adopted and followed by the courts of this state. In the instant case the defendant filed a timely petition, and therefore if his constitutional rights were violated his petition ought to have been allowed. The question to be answered then is, Was the right granted by Article I, Section 9, of our state Constitution violated? If the membership book and all of the thirty-seven exhibits were taken lawfully > or if they were taken without violating any of Laundy’s rights, he cannot complain.” 103 Or. 493, 495 (204 Pac. 974).
The exact question that arose in that case arises here, and a succinct statement of the question is contained in those words of the opinion:
“The policemen who entered the hall and arrested Laundy did so without a warrant of arrest and without a search warrant; and, therefore, if their conduct in taking the membership book and the thirty-seven exhibits removed from the hall was lawful, it was so
only because the arrest was lawful.
*
*
” 103 Or. 495 (204 Pac. 975).
The defendant failed there to obtain the order sought, not because his petition was not an authorized procedure, for the court held that it was, but because the facts brought his case within the rule permitting a search and seizure after a lawful arrest, and not within the law prohibiting a search and seizure without a warrant where there has been no antecedent lawful arrest. The decision is clear that but for the fact that the search and seizure occurred while he was in lawful custody of the officer at the time, the order for the return would have been made.
Since this court has adopted the rule of the Supreme Court of the United States, not as necessarily binding upon this court, but for “the same reasons which recommended it to that court,” we go to the
decisions of that court, cited, to discover what those reasons are. The importance of this question, not to this defendant only, but to every citizen of the state, justifies us in quoting at length the “reasons” of the Supreme Court'decisions which this court has so explicitly adopted in the Laundy case.
In the Weeks’ case the United States marshal, without process, visited the room of defendant and took therefrom letters tending to show his guilt. These letters were placed in the control of the district attorney, who offered them in evidence. The defendant made timely application for their return, which was denied, and they were received in evidence over the objections of the defendant. The court said:
“ * * We shall deal with the Fourth Amendment, which provides:
“ 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.’
“The history of this Amendment is given with particularity in the opinion of Mr. Justice Bradley, speaking for the court in
Boyd
v.
United States,
116 U. S. 616 (29 L. Ed. 746, 6 Sup. Ct. Rep. 524, see, also, Rose’s U. S. Notes). As was there shown, it took its origin in the determination of the framers of the Amendments to the Federal Constitution to provide for that instrument' a Bill of Rights, securing to the American people, among other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under. authority óf the Government by which there had been invasions of the home and privacy of the citizens and the seizure of their private papers
in support of charges, real or imaginary, made against them. Such practices had also received sanction under warrants and seizures under the so-called writs of assistance, issued in the American colonies. See 2 Watson on the Constitution, 1414 et seq. Resistance to these practices had established the principle which was enacted into the fundamental law in the Fourth Amendment, that a man’s house was his castle and not to be invaded by any general authority to search and seize his goods and papers. Judge Cooley, in his Constitutional Limitations, pp. 425, 426, in treating of this feature of our Constitution, said: ‘The maxim that “every man’s house is his castle,” is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen.’ ‘Accordingly,’ says Lieber in his work on Civil Liberty and Self-Grovemment, 62, in speaking of the English law in this respect, ‘no man’s house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except in cases of felony, and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass. This principle is jealously insisted upon.’ In
Ex parte Jackson,
96 U. S. 727, 733 (24 L. Ed. 877, see, also, Rose’s U. S. Notes), this court recognized the principle of protection as applicable to letters and sealed packages in the mail, and held that consistently with this guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures such matter could only be opened and examined upon warrants issued on oath, or affirmation particularly describing the thing to be seized, ‘as is required when papers are subjected to search in one’s own household.’
“In the Boyd case,
supra,
after citing Lord Camden’s judgment in
Entick
v.
Carrington,
19 Howell’s State Trials, 1029, Mr. Justice Bradley said (630):
“ ‘The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious cir
cumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the_ offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence,-—it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment.’
[Weeks
v.
United
States, 232 U. S. 389, 391 (58 L. Ed. 652, Ann. Cas. 1915C, 1177, L. R. A. 1915B, 834, 34 Sup. Ct. Rep. 343, 344, see, also, Rose’s U. S.. Notes).]
“ * *
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. * * [Pages 393, 394.]
# # a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible dispossession of the owner, still, as was held in the Boyd Case, the substance of the offense is
the compulsory production of private papers, whether under a search warrant or a
subpoena duces tecum,
against which the person, be he individual or corporation, is entitled to protection. ’ If such a seizure under the authority of a warrant supposed to be legal, constitutes a violation of the constitutional protection,
a fortiori
does the attempt of an officer of the United States, the United States Marshal, acting under color of his office, without even the sanction of a warrant, constitute an invasion of the rights within the protection afforded by the Fourth Amendment. ’ ’ Page 397.
In the Gouled case the court said:
“Upon authority of the Boyd case,
supra,
this second question must also be answered in the affirmative. In practice the result is the same to one accused of crime, whether he be obliged to supply evidence against himself or whether such evidence be obtained, by an illegal search of his premises and seizure of his private papers. In either case he is the unwilling source of the evidence, and the Fifth Amendment forbids that he shall be compelled to be a .witness against himself in a criminal case. * *
[Gouled
v.
United States,
255 U. S. 306 (65 L. Ed. 647, 41 Sup. Ct. Rep. 264, see, also, Rose’s U. S. Notes Supp.).]
“The fourth question reads: £If such papers so taken are admitted in evidence against the person from whose house or office they were taken, such person being then on trial for the crime of which he was accused in the affidavit for warrant,—is such admission in evidence a violation of the 5th amendment?'’
“The same papers being involved, the answer to this question must be in the affirmative for, they having been seized in an unconstitutional search, to permit them to be used in evidence would be, in effect, as ruled in the Boyd Case, to compel the defendant to become a witness against himself. * * Page 311.
“The papers being of ‘evidential value only’ and having been unlawfully seized, this question really is, whether, it having been decided on a motion before trial that they should not be returned to the defendant, the trial court, when objection was made to their use on the trial, was bound to again inquire as to the unconstitutional origin of the possession of them. It is plain that the trial court acted upon the rule, wisely adopted, that courts in criminal trials will not pause to determine how the possession of evidence tendered has been obtained. While this is a rule of great practical importance, yet, after all, it is only a rule of procedure, and therefore it is not to be applied as a hard and fast formula to every case, regardless of its special circumstances. We think rather that it is a rule to be used to secure the ends of justice under the circumstances presented by each case, and where, in the progress of a trial, it becomes probable that there has been an unconstitutional seizure of papers, it is the duty of the trial court to entertain an objection to their admission or a motion for their exclusion and to consider and decide the question as then presented, even where a motion to return the papers may have been denied before trial. A rule of practice must not be allowed for any technical reason to prevail over a constitutional right.” Pages 312, 313.
The Laundy case, adopting these reasons, is decisive of this case as to the law governing it. It is that when evidence is illegally obtained, it will be excluded at the trial, provided that before the trial, upon a timely petition therefor, it is correctly decided that the evidence was in fact illegally obtained. The court below decided, before the trial, on timely application of the defendant, that the evidence was illegally obtained. If that decision was correct, then the court erred in admitting the testimony as procured. The law being established by a previous decision of the court, we are bound by it. So the case
must
go
here purely upon a question of fact to be derived from the evidence. We have decided the fact favorably to the defendant, and the law does the rest.
Our attention is called to the proposition that the Constitution is addressed only to the legislature, and there being no law of the state authorizing unconstitutional searches, the officers, at most, were trespassers, and the remedy is against them. But the Constitution is addressed not only to the legislature, but to every officer of the state, including the judiciary. It is said by the Supreme Court of the United States, in the case whose reasoning is adopted by this court in the Laundy case, “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 the legislature or
judicial
sanction. This protection is equally extended to the action of the government, and officers of the law acting under it. To sanction such proceedings would he to affirm by
judicial decision
a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.”
Weeks
v.
United States, supra,
p. 394;
Boyd
v.
United States, supra; Adams
v.
New York,
192 U. S. 585 (48 L. Ed. 575, 24 Sup. Ct. Rep. 372, see, also Rose’s U. S. notes).
Besides, the trespass of the officers and the remedy against them has no relation to the competency of the evidence, which is the question here. That is to be determined upon its own merits. If the evidence is made competent by the trespass and the remedy against the trespasser, every confession
■wrung by an officer from a defendant by force and duress would have to be admitted because the defendant had a remedy against the officer.
Another question meets us. May a search, without a warrant, be reasonable? It is said that a search with a warrant may be unreasonable, and a search without a warrant be reasonable and lawful, if reasonable. The first proposition is a legal impossibility. An officer with a warrant duly issued who follows its commands cannot make an unreasonable search. It is reasonable because it is lawful. He may' exceed his authority, and the search be unreasonable, but in that case he is no longer with a warrant. He loses its protection. Tt dies in his hands, and he is a trespasser
ab initio.
Nor is the second proposition any sounder. If he makes a search without a warrant, however polite, gentle, or considerate he may be, the search is unreasonable, because it is unlawful. The standard of reasonableness is not the conduct of the officer, but the possession of the warrant.
In the Gouled case,
supra,
followed by this court in the Laundy case, the court said:
“ * * [Search warrants] ‘when issued upon probable cause, supported by oath or affirmation and particularly describing the thing to be searched, and the persons or things to be seized,5 searches and, seizures made under them, are to be regarded as not unreasonable, and therefore, not prohibited by the Amendment. Searches and seizures are as constitutional under the Amendment when made under valid search warrants, as they are unconstitutional,
because unreasonable,
when made without them—the permission of the Amendment has the same constitutional warrant as the prohibition has, and the definition of the former restrains the scope of the latter. All this is abundantly recognized in the opinion of the Boy and
Weeks’ eases. # * ”.
Gouled
v.
United
States, 255 U. S. 308 (65 L. Ed. 647, 41 Sup. Ct. Rep. 264, see, also, Rose’s U. S. Notes Supp.).
19. The bottle of whisky was not offered or admitted in evidence. But there was not a word of evidence in the case tending to show the guilt of defendant that was not derived from the search. The officers testified that the bottle was three fourths full of whisky, and seemed to be able to identify it as “moonshine.” Some of the liquor was submitted to a chemist, who examined it and testified that it contained 34 per cent of alcohol.
The whisky bottle and contents are what is termed “real” evidence. It is not at all essential, in any case, to put it in evidence. The information of the witnesses, obtained from the bottle of liquor, was just as effective and just as much the result of the illegal search as was the possession of it by the officers. The distinction between them is not appealing. The same question was made in the case of
Silverthorne Lumber Co.
v.
United
States, 251 U. S. 385, 392 (64 L. Ed. 319, 40 Sup. Ct. Rep. 182, 183, see, also Rose’s U. S. Notes Supp.). Documents obtained through an illegal search were copied, and from them an indictment found. This was condemned by the court, which said:
“If knowledge of them is gained from an independent source, they may be proved like any others, but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed.”
Authorities are cited to the effect that a contraband article, which cannot be legally owned, will not be returned to the defendant. Whatever the law may be in other states, it cannot be said that intoxi
eating liquor cannot be the subject of private legal ownership in this state. It is not
per se,
contraband. Its possession is legal, if it was legally obtained before the prohibition act went into effect: Section 2224—4, Or. L. Its possession is lawful when a physician gives it to his patient for medicine: Section 2224—14, Or. L. In a suit against a nuisance, any owner of intoxicating liquor that has been seized may show that it was not used to maintain the nuisance and the statute directs the court to return it to him: Section 2224—42, Or. L.
In any event, this contention misconceives the whole purpose of the petition for the return. All of the cases we have cited show that the real object of that procedure is to challenge the competency of the evidence before the trial. The reversals were made because the evidence was erroneously admitted. In the Amos case the court said, “The petition should have been granted, but it having been denied, the motion to strike the evidence should have been sustained.”
Amos
v.
United States,
265 U. S. 317 (65 L. Ed. 654, 41 Sup. Ct. Rep. 267, see, also, Rose’s U. S. Notes Supp.). So the evidence is incompetent though the property is not returned. If the question only concerned the right of the defendant to have returned to him a few ounces of moonshine, the matter would not long detain us. We will not be diverted from the vital question—the competency of the evidence. If the liquor is contraband, it is that it is contraband as illegal evidence, and not contraband as contraband that concerns us. We mean to decide that evidence obtained by an illegal search, when the objection to it is timely made, should be excluded, whatever becomes of the real evidence.
The court erred in admitting the testimony, and the case is reversed and remanded.
Reversed and Remanded.
Bean and Rand, JJ., concur.
Brown, J., concurs in the result.