[32]*32Capotosto, J.
This is a criminal complaint, under general laws 1938, chapter 612, §36, charging that the defendant knowingly had in his possession certain slips used in carrying on, promoting, and playing the game commonly known as policy-lottery or policy. In the superior court the defendant, who waived jury trial, was tried and found guilty by a justice of that court. The case is before us on. the defendant’s exception to the denial of his motion, before trial, to suppress evidence in the form of lottery slips allegedly obtained in an illegal search and seizure, and on his further exception to the admission of such evidence at the trial. Both exceptions raise the same question, namely, whether such evidence is admissible against a defendant in a criminal prosecution in the courts of this state in view of article I, sec. 6, of the Rhode Island constitution. We note here that while the case was pending in this court the defendant, by stipulation in writing and of record, waived any rights he may have had under the United States constitution.
The undisputed facts may be outlined as follows. The defendant and his mother occupied a tenement of a house in the city of Providence. In his absence the mother, who was unfamiliar with the English language, admitted certain police officers into her home believing that they wanted to [33]*33use the telephone. Apparently this was not their purpose, as they immediately began to search the premises without her consent. While such search was in progress defendant came home and protested against the officers’ conduct in general and particularly against their seizing the lottery slips in question, which they found in his bedroom.
The ultimate issue here is whether, in a criminal prosecution by the state, evidence procured by police officers in an illegal search and seizure should be rejected, although otherwise competent, because obtained in violation of article I, see. 6, of the Rhode Island constitution. It is now beyond discussion that there is a marked division of authority on this important question which in comparatively recent years has been the subject of serious consideration, with conflicting results, by both the United States and state courts. As was well said by Cardozo, J. in People v. Defore, 242 N. Y. 13, at page 24: “The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.”
The question here has been considered on numerous occasions by the supreme court of the United States in connection with article IV of the amendments to the federal constitution. That .amendment is substantially the same as article I, sec. 6, of the Rhode Island constitution, which is the only section or provision in our constitution that defendant has invoked and briefed or argued in this case. It reads as follows: “The right of the people to be secure in their' persons, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing as nearly as may be, the place to be searched, and the persons or things to be seized.”
[34]*34The development of the conflict among the authorities in this country with reference to the admission or rejection of evidence obtained by a police officer in an illegal search and seizure deserves attention. At common law relevant evidence was not excluded because of Such wrongful conduct. 20 Am. Jur., Evidence, §394; 8 Wigmore on Evidence (3d ed.), §2183, notes 1 and 2, pp. 5 and 11. Under that rule the injured party has a direct remedy against the wrongdoer. An illegal search and seizure is a trespass for which a person, especially if he be charged with the duty of enforcing the law, should and probably would be severely punished by a jury through the award of heavy damages, as was done in the early cases of Entick v. Carrington (1765), 19 Howell’s State Trials 1029, and Wilkes Case, Id., at 981 and Addenda at 1382. See also Johnson v. Comstock, 14 Hun. (N. Y.) 238. So far as we are informed, this is the settled law of England and its dependencies up to the present time.
The English rule was followed and applied in this country until 1886 when Boyd v. United States, 116 U. S. 616, was decided. That was a federal prosecution for violation of the revenue laws. The court there held among other things that the admission of evidence obtained by an illegal search and seizure violated the fourth amendment to the United States constitution. In 1904 the same question was considered by the United States supreme court in Adams v. New York, 192 U. S. 585, where illegally obtained evidence had been admitted against a defendant on trial for a crime in a state court. The decision in that case did not apply the rule of the Boyd case but expressly approved precedents in the state courts that were contrary thereto.
The situation thus created apparently remained unchanged until 1914 when the question as to the admissibility of evidence procured in an illegal search again came before the supreme court for adjudication in Weeks v. United States, 232 U. S. 383. In that case the defendant was convicted of sending lottery tickets through the mail in viola[35]*35tion of a federal statute. Certain letters connecting him with the lottery, which were seized in an unlawful search of his home, were admitted in evidence over objection. In that opinion, written by the same justice who wrote the one in Adams v. New York, supra, the court reverted to the reasoning in Boyd v. United States, supra, and reversed the conviction. But in so doing it qualified the rule of exclusion as set forth in the Boyd case by holding that, in order to render inadmissible under the fourth amendment the evidence so obtained by federal officers, the defendant should move to suppress it before trial, otherwise it would be admissible notwithstanding that it had been unlawfully obtained. Numerous later decisions applying such rule of exclusion with further modifications need not be discussed here, as it is now well settled that evidence illegally seized by federal officers is not admissible in federal prosecutions. See Agnello v. United States, 269 U. S. 20; United States v. Lefkowitz, 285 U. S. 452; Goldman v. United States, 316 U. S. 129; Harris v. United States, 331 U. S. 145; Trupiano v. United States, 334 U. S. 699; Brinegar v. United States, 338 U. S. 160;
Free access — add to your briefcase to read the full text and ask questions with AI
[32]*32Capotosto, J.
This is a criminal complaint, under general laws 1938, chapter 612, §36, charging that the defendant knowingly had in his possession certain slips used in carrying on, promoting, and playing the game commonly known as policy-lottery or policy. In the superior court the defendant, who waived jury trial, was tried and found guilty by a justice of that court. The case is before us on. the defendant’s exception to the denial of his motion, before trial, to suppress evidence in the form of lottery slips allegedly obtained in an illegal search and seizure, and on his further exception to the admission of such evidence at the trial. Both exceptions raise the same question, namely, whether such evidence is admissible against a defendant in a criminal prosecution in the courts of this state in view of article I, sec. 6, of the Rhode Island constitution. We note here that while the case was pending in this court the defendant, by stipulation in writing and of record, waived any rights he may have had under the United States constitution.
The undisputed facts may be outlined as follows. The defendant and his mother occupied a tenement of a house in the city of Providence. In his absence the mother, who was unfamiliar with the English language, admitted certain police officers into her home believing that they wanted to [33]*33use the telephone. Apparently this was not their purpose, as they immediately began to search the premises without her consent. While such search was in progress defendant came home and protested against the officers’ conduct in general and particularly against their seizing the lottery slips in question, which they found in his bedroom.
The ultimate issue here is whether, in a criminal prosecution by the state, evidence procured by police officers in an illegal search and seizure should be rejected, although otherwise competent, because obtained in violation of article I, see. 6, of the Rhode Island constitution. It is now beyond discussion that there is a marked division of authority on this important question which in comparatively recent years has been the subject of serious consideration, with conflicting results, by both the United States and state courts. As was well said by Cardozo, J. in People v. Defore, 242 N. Y. 13, at page 24: “The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.”
The question here has been considered on numerous occasions by the supreme court of the United States in connection with article IV of the amendments to the federal constitution. That .amendment is substantially the same as article I, sec. 6, of the Rhode Island constitution, which is the only section or provision in our constitution that defendant has invoked and briefed or argued in this case. It reads as follows: “The right of the people to be secure in their' persons, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing as nearly as may be, the place to be searched, and the persons or things to be seized.”
[34]*34The development of the conflict among the authorities in this country with reference to the admission or rejection of evidence obtained by a police officer in an illegal search and seizure deserves attention. At common law relevant evidence was not excluded because of Such wrongful conduct. 20 Am. Jur., Evidence, §394; 8 Wigmore on Evidence (3d ed.), §2183, notes 1 and 2, pp. 5 and 11. Under that rule the injured party has a direct remedy against the wrongdoer. An illegal search and seizure is a trespass for which a person, especially if he be charged with the duty of enforcing the law, should and probably would be severely punished by a jury through the award of heavy damages, as was done in the early cases of Entick v. Carrington (1765), 19 Howell’s State Trials 1029, and Wilkes Case, Id., at 981 and Addenda at 1382. See also Johnson v. Comstock, 14 Hun. (N. Y.) 238. So far as we are informed, this is the settled law of England and its dependencies up to the present time.
The English rule was followed and applied in this country until 1886 when Boyd v. United States, 116 U. S. 616, was decided. That was a federal prosecution for violation of the revenue laws. The court there held among other things that the admission of evidence obtained by an illegal search and seizure violated the fourth amendment to the United States constitution. In 1904 the same question was considered by the United States supreme court in Adams v. New York, 192 U. S. 585, where illegally obtained evidence had been admitted against a defendant on trial for a crime in a state court. The decision in that case did not apply the rule of the Boyd case but expressly approved precedents in the state courts that were contrary thereto.
The situation thus created apparently remained unchanged until 1914 when the question as to the admissibility of evidence procured in an illegal search again came before the supreme court for adjudication in Weeks v. United States, 232 U. S. 383. In that case the defendant was convicted of sending lottery tickets through the mail in viola[35]*35tion of a federal statute. Certain letters connecting him with the lottery, which were seized in an unlawful search of his home, were admitted in evidence over objection. In that opinion, written by the same justice who wrote the one in Adams v. New York, supra, the court reverted to the reasoning in Boyd v. United States, supra, and reversed the conviction. But in so doing it qualified the rule of exclusion as set forth in the Boyd case by holding that, in order to render inadmissible under the fourth amendment the evidence so obtained by federal officers, the defendant should move to suppress it before trial, otherwise it would be admissible notwithstanding that it had been unlawfully obtained. Numerous later decisions applying such rule of exclusion with further modifications need not be discussed here, as it is now well settled that evidence illegally seized by federal officers is not admissible in federal prosecutions. See Agnello v. United States, 269 U. S. 20; United States v. Lefkowitz, 285 U. S. 452; Goldman v. United States, 316 U. S. 129; Harris v. United States, 331 U. S. 145; Trupiano v. United States, 334 U. S. 699; Brinegar v. United States, 338 U. S. 160; United States v. Rabinowitz, 339 U. S. 56; United States v. Jeffers, 342 U. S. 48; On Lee v. United States, 343 U. S. 747.
Á different situation prevailed in prosecutions for crime by the state. Following the common-law rule, which was in effect approved by the United States supreme court in Adams v. New York, supra, a decided majority of the states continued to hold that, notwithstanding the decision in Weeks v. United States, supra, relevant evidence obtained by an illegal search and seizure was admissible against a defendant in a criminal prosecution by the state.
The state rule was again challenged recently in Wolf v. Colorado, 338 U. S. 25, where the defendant, who was convicted of crime in a state court, claimed that the admission of illegally obtained evidence violated his rights under the fourteenth amendment to the federal constitution. The court rejected the contention holding that,- while it adhered [36]*36to the rule of Weeks v. United States, supra, in federal prosecutions, such rule was not imposed on the states by the fourteenth amendment. Referring to its decision in the Weeks case the court, at page 28, stated that the ruling there made “was not derived from the explicit requirements of the Fourth Amendment * * * The decision was a matter of judicial implication”; and further that as a matter of inherent reason the admission or exclusion of evidence illegally obtained was one “as to which men with complete devotion to the protection of the right of privacy might give different answers.” (italics ours)
The decision in the Wolf case in substance held that in prosecutions by the United States government the exclusion of illegally obtained evidence was a rule of evidence for the federal courts; that, considering the “weighty testimony” furnished by the opinion in People v. Defore, 242 N. Y. 13, against such rule, the court would not insist that its view in the matter be adopted in prosecutions by the state; and that “There are, moreover, reasons for excluding evidence unreasonably obtained by the federal police which are less compelling in the case of police under State or local authority. The public opinion of a community can far more effectively be exerted against oppressive conduct on the part of police directly responsible to the community itself than can local opinion, sporadically aroused, be brought to bear upon remote authority pervasively exerted throughout the country.”
A classification of the decisions by state courts approving or rejecting the rule of Weeks v. United States, supra, is to be found in an appendix to the Wolf case, supra, reference to which is hereby made. According to- such summary sixteen states approved while thirty-one states rejected the rule of the Weeks case. Included in those rejecting such rule are Maine (State v. Schoppe, 113 Me. 10), New Hampshire (State v. Agalos, 79 N. H. 241), Vermont (State v. Stacy, 104 Vt. 379), Massachusetts (Commonwealth v. Wilkins, 243 Mass. 356), Connecticut (State v. Reynolds, 101 Conn. [37]*37224), and New York (People v. Richter’s Jewelers, Inc., 291 N. Y. 161).
Commenting on the effectiveness of the federal rule in the very recent case of Irvine v. California, 347 U. S. 128, where a conviction by the state involving the admission of illegally obtained evidence was sustained, the court, at pages 135 et seg., stated: “Our case's evidence the fact that the federal rule of exclusion and our reversal of conviction for its violation are not sanctions which put an end to illegal search and seizure by federal officers * * * The extent to which the practice was curtailed, if at all, is doubtful * * * There is no reliable evidence known to us that inhabitants of those states which exclude the evidence suffer less from lawless searches and seizures than those of states that admit it. Even this Court has not seen fit to exclude illegally seized evidence in federal cases unless a federal officer perpetrated the wrong.”
Keeping in mind our review of the authorities which we have herein but sketchily summarized, we now come to the consideration of the single question raised and argued by the defendant in the instant case, namely, whether in a trial for crime in the courts of this state section 6 of article I of the Rhode Island constitution prohibits the admission of evidence obtained in an illegal search and seizure. By its language that section, which is essentially the same as article IV of the amendments to the United States constitution, is declaratory of a fundamental principle that should be jealously protected. But section 6 does not purport to be self-enforcing, nor does it contain any prohibition, either in express language or by necessary implication, against the admission in a prosecution by the state of illegally obtained evidence. If the provisions of that section were intended to be self-enforcing or to demand such a prohibition, that intention could and undoubtedly would have been expressed in unequivocal terms, since it would have constituted a radical change from the then unquestioned and established practice. There is no such language. Moreover, when they [38]*38intended to prohibit the use of particular evidence in a criminal trial, they did so in express language. See article 1, sec. 13, of the Rhode Island constitution.
The intention of the framers of section 6 should be ascertained from the language used by them in the light of historical facts well known to those who were interested when our constitution was adopted in 1842. Up to that time the admission or exclusion of evidence, such as here in question, was governed by the common law. Since .the truth was the objective, it was then the settled practice in both federal and state courts to admit relevant and material evidence in a criminal prosecution regardless of the unlawful method by which it was obtained. Under such practice the misconduct of á police officer was not condoned but was punishable in a substantial manner to the advantage of an aggrieved person, as in Entick v. Carrington, supra.
Furthermore, for over fifty years before the adoption of our constitution Rhode Island lived under and observed the effects of the fourth amendment to the federal constitution, which, as hereinbefore stated, is substantially the same as section 6 of article I of our constitution. During all that period there was no decision by the United States supreme court holding that the fourth amendment by its terms was self-enforcing; or that it contained or was intended to contain a prohibition against the use of evidence obtained by an unlawful search; or that it purported to change in any way the settled practice with reference to the admissibility of evidence in the trial of persons accused of crime. Furthermore throughout that period of more than fifty years our legislature, having before it the position of the United States supreme court respecting the fourth amendment, likewise made no change in the procedure relating to the admissibility of evidence in prosecutions for violations of the criminal laws of this state.
In our view the fourth amendment to the federal constitution does not derive its origin in a direct protest by the people against a rule of evidence. At the time of the Revo[39]*39lut-ion the colonists were clamoring for protection against the unrestrained issuance of writs of assistance, so called, by the colonial government to revenue officers empowering them, in their discretion, to make a general search of suspected places for smuggled goods. The resentment entertained by the colonists respecting such writs was quite similar to that shown by the people in England to the increasingly objectionable practice by the government of issuing warrants empowering the enforcing officers to enter and search the home or place of any person suspected of political offenses or seditious libel for the purpose of seizing his private papers.
In our judgment the inhibition of the fourth amendment to the United States constitution was a constitutional restraint upon the powers of government, and not a prohibition in the use of relevant evidence illegally obtained. The, utter silence of that amendment as to the procedure to be followed in enforcing its mandate is a clear indication that in that respect it was merely declaratory of the common law. We find no convincing reason requiring us to consider article I, sec. 6, of our constitution from a different viewpoint, especially since, as a matter of fact, the common-law rule admitting unlawfully obtained evidence was generally applied by the courts of this country until 1886 when it was questioned for the first time in Boyd v. United States, supra.
Historically, the background at the time of the adoption of the state constitution was in brief as follows. First, there was a long adherence by all courts to the common-law rule admitting material evidence even though obtained in an illegal search ,and seizure, notwithstanding the provisions of article IV of the amendments to the federal constitution; and secondly, neither the state legislature nor the court changed that rule in any way prior to 1842, when our constitution was adopted. This background was undoubtedly well known to those who were charged with the extremely delicate mission of drafting an instrument that was to change the government of this state from one under the [40]*40charter granted by King Charles II to one under a constitution.
We cannot believe that with such knowledge at hand the framers of an instrument which would so vitally affect the future welfare of our citizens intended to cast aside the experience of years and prohibit the use of evidence which the courts of England and this country had theretofore received without question. If the men who drafted our constitution contemplated such a result and intended to make inadmissible evidence which had been long established as admissible in criminal trials, it is our firm conviction that they would have expressed themselves in language so direct and unequivocal as to leave nothing for doubtful intendment or judicial implication.
The constitutional right of the individual against unlawful search and seizure should be scrupulously preserved, but at the same time the equally important right of the people to be protected from crime cannot be lightly cast aside. The exclusion of relevant evidence unlawfully obtained punishes society in favor of the individual. On the other hand, the admission of such evidence, although probably detrimental to an individual on trial for a criminal offense, enables the state to use the evidence in furtherance of its duty to protect the people’s common right to live in peace and safety. However, in doing so it nevertheless subjects the officer who acted unlawfully to punishment by way of substantial damages to the aggrieved party, to disciplinary action at the hands of his superiors, and conceivably to prosecution criminally if the legislature so provided. Furthermore, if at any time it is deemed desirable or necessary in the public welfare to abolish or modify the common-law rule admitting evidence obtained by illegal search and seizure, it is within the power of the legislature, which has wide discretion in matters of policy and procedure, to effectuate such a change.
For the reasons herein stated it is our opinion that article I, sec. 6, of the Rhode Island constitution, which is the only [41]*41provision thereof relied on by the defendant in the instant case, does not prohibit, either in express language or by necessary implication, the admission of relevant and material evidence obtained in an illegal search and seizure. Under such a view we deem it our duty to refrain from incorporating by judicial implication into sec. 6 language that would abrogate a -rule of evidence which has met with approval in this state both under the charter and the constitution.
The defendant’s exceptions are overruled, and the case is remitted to the superior court for further proceedings.