State v. Owens

259 S.W. 100, 302 Mo. 348, 32 A.L.R. 383, 1924 Mo. LEXIS 821

• Court: Supreme Court of Missouri
• Decided: February 11, 1924
• Status: Published

Opinions

WHITE, J.

The appellant was convicted in the Circuit Court of Stone County on the charge of having-in his possession a pint of whiskey, in violation of Sec tion 6588, Bevised Statutes 1919, as amended by the Act of 1921 (Laws 1921, p. 413).

The Attorney-General thus states the case:

“The evidence is short and shows that the defendant, Alfred Owens, on or about January 13, 1922, was detained by the Sheriff of Stone County and searched without any warrant or process of any kind, and that a quantity of whiskey was taken from his pocket.”

Defendant filed a motion to suppress the evidence discovered by the sheriff in that illegal search, because in violation of the provisions of the United States Constitution and the State Constitution relating to unreasonable search and self-incrimination. The motion was overruled, and the defendant was convicted upon evidence of the sheriff and his deputy. The sheriff testified that Owens was not doing anything at the time; he did not know whether he was drunk or sober; did not arrest him for drunkenness; did not place him under arrest at the time he searched him. The charge which was made against him was after the sheriff had searched him and found the whiskey. The sheriff did not see nor smell any whiskey; he had no knowledge of it. His deputy came to his house and told him “there was a man full of booze.” The deputy did not designate the defendant, nor anybody, and gave no further information. The sheriff first called up the prosecuting attorney and wanted to know if he had a right to search a car without a search warrant. Mr. Benfro, the prosecuting attorney, told him he did. The sheriff interpreted this instruction with the utmost liberality, and applied it to persons as well as cars. He took a chance when he saw Owens coming out of a restaurant, seized him and took a pint bottle of whiskey out of Owen’s hip pocket. The sheriff, according to his own account of the matter, tempered this violence with a gentle touch, for Owen “never hollered nor made no big noise” in protest of the unconventional proceeding.

I. The principal question for determination in this ease is whether evidence obtained by an illegal search of the defendant’s person, was admissible in evidence against him. Several cases aré pending in this court in which that question arises under varying states of fact, and it is important to consider certain general principles which may be applicable to all.

We are not now considering the right of an officer to search a person lawfully arrested, and take from him, to be used in evidence against him and to assist in procuring his conviction, any article which may connect' him with the commission of a crime. The right is recognized by authorities generally. [Holker v. Hennessey, 141 Mo. 527, l. c. 539; State v. Jeffries, 210 Mo. 302, l. c. 325; State v. McIntosh, 94 S. C. 439.] Nor is this a case which brings into question the right of an officer to arrest, without a warrant, a person whom he has reason to suspect has committed a felony. This is a misdemeanor case. [State v. Cushenberry, 157 Mo. 168, l. c. 181; State v. Moore, 235 S. W. l. c. 1058; State v. Peters, 242 S. W. 894, l. c. 896.] Likewise it is not a case where a misdemeanor is committed in the presence of the officer who makes the arrest, because it is admitted that the defendant was within the peace of the State so far as conduct was concerned and it was only by the illegal search that his offense was discovered.

II. The guaranty against unreasonable search and seizure provided in the Fourth Amendment to the Constitution of the United States, and the provision in the Fifth Amendment that a defendant shall not be compelled tofurnisia evidence against himself, refer only to Federal officers and agents and have no effect upon the operation of State officials and other persons not clothed with Federal authority. [Weeks v. United States, 232 U. S. 383, l. c. 398; Adams v. New York, 192 U. S. l. c. 595; Burdeau v. McDowell, 256 U. S. 465; Twining v. New Jersey, 211 U. S. 78.]

This means that evidence obtained illegally, by criminal methods, or however extorted, by a State officer or by any person not an officer or agent of the Federal government, may be produced in evidence without contravention of the Fourth or the Fifth Amendment to the Federal Constitution. So, whatever objection the appellant may urge to the introduction of evidence, the Federal Constitution prohibiting unreasonable search falls out of the ease.

The several states have followed the doctrine just mentioned as applicable to State officials. [Kennemer v. State, 113 S. E. (Ga.) 551; McGrew v. United States, 281 Fed. 809; People v. Mandel, 154 N. Y. Supp. 231, l. c. 233; City of Sioux Falls v. Walser, 187 N. W. 823; People v. Adams, 176 N. Y. 351; State v. Magnano, 117 Atl. (Conn.) 550.] The doctrine will appear in many of the cases cited below, stating that the State courts have construed these guarantees of the Constitution in a way to protect citizens from the overzealous activity of State officers, and does not protect a person charged with a crime against the treachery of associates or criminality of persons other than State agents.

While the Fourth and Fifth Amendments to the Federal Constitution are not involved here, Sections 11 and 23, Article II of the Constitution of Missouri, are almost identical in purport and in language with those amendments, and the construction of them by the United States courts is important authority for us in construing the like sections of our State Constitution. Many cases of prosecutions for the violation of prohibition laws lately have received consideration by courts of various states with reference to the production of evidence obtained by illegal search of the person or the premises of the defendant, and these will be noticed.

III. Whether a search is legal or illegal is not always determined by the presence or absence of a search warrant. The Constitution protects against an unrea sonable search. A search may be unreaunreasonable sonable when made by an officer with valid search warrant in his hands, or a search may be reasonable and entirely within the rights of an officer when he has no search warrant. Whether or not a search is reasonable is a judicial question. It is not within the power of the Legislature to enact a statute which will permit an unreasonable search. [People v. Milone, 195 N. Y. Supp. 488; People v. Case, 190 N. W. (Mich.) 289; United States v. Rembert, 284 Fed. 996; Lowry v. Rainwater, 70 Mo. 152, l. c. 158-159.] In this connection several cases turn upon the alleged consent of the party to be searched. We think such cases usually strain a point to justify the search. If an officer appears at a person’s home, and in his official character demands the privilege of searching the premises, the, owner of the premises who yields peaceably and silently to the official demand is as much under constraint as if he had forcibly resisted official interference.

IY. In the various Federal district and circuit courts, and in the appellate courts of the several states, there is a wealth of recent precedent upon the subject, and of necessity some confusion in the solution of the constitutional questions, but not so much as some amici curiae claim to be present. These may be classified as follows:

(a) Cases where objection is made for the first time when evidence is offered on the ground that it was obtained by means of illegal search;

(b) Where a timely motion or other preliminary proceeding is presented, seeking before the trial to suppress evidence obtained by illegal search;

(c) Where such motion seeks a return of property taken by means of an illegal search and in that connection cases are affected by (1) whether the property has evidential value only, or (2) is the means or instrument for the commission of a crime, or (3) prop erty which is contraband, to which the defendant has no legal right under any circumstance.

When evidence is offered and objection that it was obtained by illegal means is then made for the first time, the court will determine only whether the evidence is relevant and competent. It will not pause to determine the collateral question as to how the evidence was obtained. [Adams v. New York, 192 U. S. 585, l. c. 594-5; and that is the doctrine in this State; State v. Pomeroy, 130 Mo. 489, l. c. 498-9; State v. Sharpless, 212 Mo. 176, l. c. 197, 198, 199.]

V. The rule is general that private papers, or property possessing evidential value only, obtained by government officers by means of illegal search, are not admissible in evidence against the person affected, whose premises were searched. This is the rule of the United States Supreme Court, and is followed almost universally by the inferior Federal courts and State.appellate courts. This rule applies whether the evidence is procured by compelling the defendant to produce evidence against himself or whether it is discovered by means of an illegal search. [Greenbaum v. United States, 280 Fed. (C. C. A.) 474; United States v. Lydecker, 275 Fed. 976; United States v. Abrams, 230 Fed. 313; United States v. Maresca, 266 Fed. 713; In re Both, 192 N. Y. Supp. 822; United States v. Kraus, 270 Fed. 578; Ex parte Jackson, 263 Fed. 110; Dukes v. Commonwealth, 244 S. W. (Ky.) 74; Hess v. State, 202 Pac. (Ok.) 310; Blum v. State, 94 Md. 375; People v. Jakira, 193 N. Y. Supp. 306, l. c. 314; People v. Manko, 189 N. Y. Supp. 357; State v. Sheridan, 121 Iowa, 164; State v. Rowley, 187 N. W. (Ia.) 7.]

The Attorney-General in his oral argument in Division admitted the correctness of the rule, but claimed it had no application here, because in this case the property taken was contraband and therefore not property at all; that defendant having no right to it as property could uot ask to have the evidence suppressed. That last presents the precise question to be determined in this ease.

We will first consider cases arising in the United States Supreme Court. In Boyd v. United States, 116 U. S. 616, the defendant was charged with evading import duty on plate glass shipped into New York, and an order was made by the district judge requiring the claimant of the property to produce the invoice of the glass. The Supreme Court thus stated the question presented, l. c. 622:

“Is a search and seizure, or, what is equivalent thereto, a compulsory production of a man’s private papers, to be used in evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue laws — is such a proceeding for such a purpose an ‘unreasonable search and seizure’ within the meaning of the Fourth Amendment to the Constitution?”

The court held it was unreasonable, and that the proceeding was also contrary to the Fifth Amendment to the Constitution which provides a man shall not -be compelled to furnish evidence against himself. According to many of the courts the latter reason was entirely sufficient without a determination that it was contrary to the Fourth Amendment in regard to search and seizure. It will be noticed a warrant for the search, a court order, did not make it lawful.

In the case of Adams v. New York, 192 U. S. 585, it was held that evidence obtained by illegal .search would be admitted where the objection was presented for the first time when the evidence was offered.

The next leading case was Weeks v. United States, 232 U. S. 383. The plaintiff in error was convicted for using the mails for transportation of lottery tickets. The marshal, without warrant, searched his room and carried away certain letters and articles. Weeks then petitioned the court for a return of the property and papers. The court ordered a return of such property as was not pertinent to the charges against the defendant, bnt denied his petition as to the pertinent matter. During the trial which followed the defendant objected to the introduction of the evidence thus obtained, and in the Supreme Court assigned as error the refusal of the district court to grant his petition for a return of the property, in violation of the Fourth and Fifth Amendments to the Constitution of the United States. The Supreme Court held that the taking of the letters from the house of the accused by an official of the United States was in violation of his constitutional rights, and the refusal to return them upon a seasonable application was error.

In the case of Gouled v. United States, 255 U. S. 298, the defendant Gouled was charged with being a party to a conspiracy against the United States. At his trial a certain paper surreptitiously taken from his office by one acting under the direction of officers of the United States was offered in evidence and he' was convicted. The court held the search and seizure unreasonable, a violation of the Fourth and Fifth Amendments to the Constitution, approved the ruling in the Boyd Case and the Weeks Case, and held the evidence improperly admitted. The court said (l. c. 304) that such rights as are declared by the two amendments are indispensable to the full enjoyment of personal security, personal liberty and private property; that they are to be regarded as the very essence of constitutional liberty, and the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right of trial by jury, the writ of habeas corpus, and due process of law. The court said further, l. c. 306:

“Without discussing them, we cannot doubt that such decisions as there are in conflict with this conclusion are unsound, and that, whether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the Government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment.”

In determining whether the evidence thus obtained was admissible, the court said:

“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.”

The same ruling was had in the case of Amos v. United States, 255 U. S. 313. Those cases were delivered in 1920, and the rulings approved in the later case of Burdeau v. McDowell, 256 U. S. 465. In the recent case of Essgee Company v. United States, in an opinion delivered by Chief Justice Tart, May 7, 1923, the principle announced in the Boyd, Weeks, and Gouled cases was approved.

For nearly forty years the United States Supreme Court has uniformly held that evidence obtained by illegal search is not admissible when timely objection is made. In nearly all the states where the constitutions have provisions similar to the Fourth and Fifth Amendments to the Federal Constitution, the courts agree with the ruling in the United States Supreme Court in the interpretation of the principle. In the State courts and the Federal district 'and circuit courts a much greater variety of circumstances is presented by the facts, because of the greater number of cases, but as stated the rulings are almost uniform. It may be taken as a rule well established and of almost universal recognition.

YI. It is insisted by tbe State that inasmuch as the whiskey found upon the defendant’s person was contraband under the Eighteenth Amendment, and not property in which the defendant could claim ownership, the defendant had no right to have it returned and therefore it could be used in evidence. The whiskey discovered was not contraband on account of conflict with the Eighteenth Amendment, which merely forbids the manufacture, sale, importation, exportation and transportation of intoxicating liquors. The information charges only a violation of the Act of 1921 of Missouri, amending Section 6588, Revised Statutes 1919 (Laws 1921, p. 413), by adding to the Prohibition Act the word “possess.” He was “in posséssion” of a bottle'of whiskey, and while that possession may have been entirely innocent of any intent to violate the Eighteenth Amendment, it may be conceded that the State is correct in saying, because of the State statute, it was not property to which he could lay any legal claim. Defendant did not ask for any return of it; he only asked that the evidence discovered with it be suppressed. In the cases from the United States Supreme Court mention is made of stolen or forfeited property, implements used in the commission of the crime, and the like, discovered by legal search.

In the Federal District Court of Montana in a habeas corpus case (Ex parte Jackson, 263 Fed. 110), a prisoner was held- for deportation on account of teaching unlawful destruction of property. In a search of his residence without a warrant, papers and documents indicating his guilt were seized. The court said, l. c. 113:

“For the inalienable rights of personal security and safety, orderly and due process of law, are the fundamentals of the social compact, the basis of organized society, the essence and justification of government. . . . No emergency in war or peace warrants their violation, for in. emergency, real or assumed, tyrants in all ages have found excuse for their destruction.”

That doctrine is applied directly to cases involving illegal search for liquor. A case arose in the Western Federal District of Missouri before Judge Von Valkenburgh, where the Fedei-al enforcement officers procured the assistance of the police at Kansas City who were held to be Federal agents and subject to the same restrictions as Federal officers by the Fourth and Fifth Amendments. [United States v. Folloco, and United States v. Ross, 277 Fed. 75.] Two cases are disposed of in one opinion. The police seized a still, some whiskey and mash on the premises of each of the defendants. The defendants made application to the court to suppress the evidence and the application was sustained. Judge Von Valkenburgh made this comment (l. c. 82-83) in speaking of the activity of the police as Federal agents:

‘ ‘ If we were to ignore this circuitous, uninterrupted, but substantial evasion of the Fourth Amendment to the Constitution of the United States, even though that evasion was unconscious and unstudied, we should countenance a departure from the spirit of our fundamental law more harmful in its far-reaching effects than the evil here sought to be remedied.”

A petition for the return of illegally obtained evidence indicating the defendant was guilty of larceny, was sustained by the Federal court. [Honeycutt v. United States, 277 Fed. (C. C. A. 4) 939.] The goods and checks seized were incompetent evidence against the defendant, but in that ease they possessed evidential value only.

Liquor was illegally seized without a search warrant in the case of People v. 738 Bottles of Intoxicating Liquor, 190 N. Y. Supp. 477. The court held that the evidence obtained by the illegal seizure was incompetent, and the defendant’s right to a return of the liquor was a matter for later determination.

The Supreme Court of Mississippi, in a case where a defendant was charged with the unlawful making of in toxicating liquor (Tucker v. State, 90 So. 845), held that the evidence obtained by officers in making an illegal search of defendant’s home and premises was incompetent, and that being the only evidence in the case the court ordered the defendant’s discharge. In that case the court reviewed at length cases in the Federal Supreme Court and followed those rulings.

• To the same effect liquor discovered by an illegal search was held inadmissible in evidence. [Giles v. United States, 284 Fed. (C. C. A. 1) 208.] Also the following: People v. Marxhausen, 204 Mich. 559; Youman v. Commonwealth, 189 Ky. 152; State v. Sheridan, 121 Iowa, 164; State v. Height, 117 Iowa, l. c. 661; Blum v. State, 94 Md. 375; State v. Slamon, 73 Vt. 212. Those cases follow the same rule as that announced by Judge Yan Yalkenburgh in the cases noted above.

YII. This question under consideration, must not be confused with that arising in cases where a search without warrant under certain conditions is held to be legal and the evidence thereby disclosed admissible for that reason. A great deal of confusion arises by failure to distinguish between cases where the search clearly is illegal and where the question turns upon the legality of the search. Many eases are cited by the State — certain automobile cases, for instance — in support of the admissibility of the evidence where the search was held to be legal.

A sheriff came upon defendant asleep on the highway in a disabled truck and found a large quantity of whiskey in the truck. A motion by the defendant to have the whiskey returned to him was refused, and the Supreme Court of Washington, held it was a correct ruling. [State v. Miller, 209 Pac. (Wash.) 9.] The court said it was not called upon to decide whether the whiskey was admissible in evidence on the ground that the officer got possession of it by trespass, for in that case there was no trespass, and added this, l. c. 10: “The consti tutional provisions invoked by the appellant do not prohibit a seizure without a warrant, where there is no need of a search, and where contraband subject-matter or unlawful possession of it is fully disclosed and open to the eye and hand.”

The case of State v. Llewellyn, 205 Pac. 394, is where a policeman entered a saloon, a public place, and saw a pitcher of intoxicating liquor. The officer had no warrant, but he had a right to make the arrest, because the law was being violated in his presence, and the evidence was held admissible.

Where a search was made in a woodland lot belonging to the defendant and evidence of running an illicit still was found, it was held competent to prove it, because the search was lawful and not “unreasonable.” [Brent v. Commonwealth, 240 S. W. (Ky.) 45.]

Where rum-runners were conducting an illicit trade from Mexico into California an officer searched, without a warrant, an automobile used in the business and arrested the driver. [United States v. Bateman, 278 Fed. 231.] In an action for illegal arrest and illegal search of plaintiff’s automobile the search was held by the court to be reasonable, because the officers had information that the defendant was transporting; liquor. The officer also had a warrant which was out of date. To like effect are Elrod v. Moss, 278 Fed. 123; O’Connor v. United States, 281 Fed. 396.

Where the actions of a defendant justified an officer in the belief that he was transporting liquor, his search of the defendant’s automobile was not unreasonable, although without a warrant. [Lambert v. United States (C. C. A. 9), 282 Fed. 413.] In that case, however, the court said (l. c. 415): “-It is conceded by counsel for the Government that the search of one’s person, his home, his papers, or other effects, without a valid warrant is illegal, and that evidence so obtained cannot be %ised in 'support of a criminal charge against him.” (Italics ours).

In a ease where a defendant was convicted of transporting intoxicating’ liquor the evidence was furnished by a State constable who searched the defendant’s premises without a warrant, and it was held the evidence was competent because discovery was not made by a United States officer and the Fourth Amendment only applies to and restricts the operation to Federal officers. [Kanellos v. United States, 282 Fed. 461.]

In Queck v. Hawker, 282 Fed. 942, it was .held that goods illegally seized under a defective search warrant should be ordered returned upon petition therefor by the defendant. The kind of goods in that case is not mentioned.

A defendant was convicted of unlawfully having in his possession certain intoxicating liquor, one quart of red whiskey and one pint of moonshine whiskey. Under the law, the red whiskey might be lawfully possessed under certain circumstances, while moonshine was contraband, in which the defendant could have no property. [State v. Andrews, 114 S. E. (W. Va.) 257, l. c. 260.] The court in commenting upon the admissibility of the evidence obtained by an unconstitutional search and seizure said, l. c. 260: ‘ ‘ . . . that if the knowledge of such evidence is gained from an independent source, it may be ■proved like any other facts, but that knowledge thereof gained by the State’s own wrong cannot be used in the way proposed in this case.” The court then announced this conclusion as to both the moonshine and the red lic|uor, “that the same was acquired by an unlawful and unreasonable search of his premises; second, that having so acquired the liquor through the agency of its officers, the State could not make use thereof as evidence on the trial, nor of any information acquired by the officers in making such search and seizure.”

The case of People v. Milone, 195 N. Y. Supp. 488, is where officers without a search warrant entered defendant’s place of business and seized a revolver which was behind his counter. It was held that the search was lawful and the evidence admissible.

We have reviewed the automobile cases to show they are not in point: in each of such cases the search was held to be reasonable, because the delay in obtaining a search warrant would give time to the rapidly moving vehicles to be beyond the reach of the officers or to have disburdened itself of its load. Whether such a reason justifies the search is not before us; we can determine that question when it comes up in a proper case. We are now considering the admissibility of evidence obtained by means of an unlawful search.

Cases are numerous, some of which are cited above, which make no distinction between private papers, documentary evidence, and any other evidence, as mere evidence, discovered by illegal search. The fact that the property is contraband — not .property which could be returned to the defendant on his claim — should make no difference as to the right of the State to produce evidence obtained illegally. If the officer enters the dwelling of one not charged with a crime, and by stealth or forcibly without a warrant or any legal authority obtains papers of an incriminatory nature, it is almost universally held that such papers may not be produced in evidence. What difference does it make, if the officer, by the same unlawful method, discovers property, the implements for the commission of crime? Suppose an officer by that means discovers a letter or canceled check, showing the defendant has violated the law by importing liquor; what is the difference between that and the discovery of liquor ? One fact is exactly as significant as the other. The discovery of evidence of the offense occurs in exactly the same way. The fact that the defendant had no right to the liquor, that it is already forfeited to the" State as contraband, does not affect the quality of the evidence. If he should ask a return of it of course that would be denied, because he has no right of property in it, but he may ask the court to suppress the evidence shown by the check. To attempt a distinction is a refinement entirely without substance. If the officer should lose both the papers and the liquor he could testify about the liquor, but could not testify about the papers! To the State the liquor, like the papers, has evidential value only. It might possess another element of value to the officer.

The authorities relied upon by the State in support of its position are neither numerous nor consistent with each other. Above we have already reviewed some of them, showing they are not relevant to this particular question: admissibility of evidence discovered by an illegal search. Foremost among those authorities cited by the State is the essay of Professor Wigmore recently published in the American Bar Association Journal. Professor Wigmore has written on Evidence with great ablity and force, such that his conclusions have weight with the courts, some of which have quoted him at length. He disagrees with the Federal Supreme Court in the principle announced in the Boyd Case and in the Weeks Case; thinks the conclusions reached there are unsound and illogical. He is thereby consistent and sees no distinction between incriminating papers and contraband property.

VIII. In considering the weight of authority more effect should be given to the United States courts than to the courts of any State, and perhaps than to the courts of all the states; not merely because the United States Supreme Court is the highest authority, but for other reasons: the Federal rule is the result of years of mature consideration during which the question at issue was before the Federal courts under varying circumstances of fact, so that it has been tested and applied to nearly all conceivable conditions. Section 11, Article 11, of our Constitution is almost identical in language and exactly identical in purport with the Fourth Amendment to the Federal Constitution. The construction of that section by the Federal court is, therefore, of the highest authority.

The Attorney-General, with commendable industry and fairness, has collated from more than forty states, cases bearing upon the subject. I have examined these cases with care and find that the weight of authority in the states favors the conclusion I have reached, not appreciably in the number of courts which have reached that conclusion, but on account of the inconsistent reasons advanced in support of the opposite view, and the strong dissenting opinions appearing in many such cases. Thirteen states in the list have unequivocally announced adherence to the Federal rule, directly or in effect: Idaho, Indiana, Kentucky, Michigan, Mississippi, Montana, Oklahoma, Oregon, Tennessee, Washington, West Virginia, Wisconsin, Wyoming. The Attorney-General concedes only eleven. His concession does not include Idaho. In the case of State v. Myers, 36 Idaho, 396, cited by him, five judges participated in the decision. The principal opinion announced the rule contended for by the State and was concurred in by one judge; three other judges concurred in the result, because the search by which the evidence was discovered was lawful, and announced their adherence to the Federal rule.

Indiana is listed as against the conclusion I have reached. But two recent cases (Callender v. State, 138 N. E. 817; Flum v. State, 141 N. E. 353), mentioned in the list, show an unqualified endorsement of the Federal rule.

I find only twelve states where the rule contended for by the State has been unequivocally announced. They are Arkansas, Alabama, California, North Carolina, Delaware, Georgia, Iowa, Kansas, Nebraska, Utah, Ohio and Texas.

The force of the decisions in these states is broken by inconsistent and inadequate reasons in support of the position, and by strong dissents. For instance, the Supreme Court of Ohio, in the case of Rosanski v. State, 106 Ohio St. 442, where several cases were decided together, stated the ruling obiter, the search being legal. That court uses Professor Wigmore’s expression, “misguided sentiment,” in characterizing a disposition to protect constitutional rights. That case is entirely inconsistent with another case decided by the same court at the same term (Ciano v. State, 105 Ohio St. 229), which quotes approvingly the Federal rule laid down in R. C. L., where that work says that an objection to admissibility of evidence comes too late if presented for the first time when the evidence was offered, and then says this: ‘ ‘ But since there is a right, there must of necessity be a remedy, and the remedy is to be found in the making of a timely application to the court for an order directing the return to the applicant of the papers unlawfully seized.”

In the Arkansas case, Benson v. State, 149 Ark. 633, there was no timely motion to suppress, or other objection, except at the time the evidence was offered, and it was held admissible under the general rule stated in the Federal cases that the court would not then stop to in-' quire into that collateral question.

The Alabama case, Banks v. State, 207 Ala. 179, turns mainly upon the interpretation of the Federal Constitution, which is held not to apply to the State.

In Georgia two cases are cited (Calhoun v. State, 144 Ga. 679, and Kennemer v. State, 154 Ga. 139.) There was no preliminary attempt to suppress the evidence and the general rule was announced: that the court would not stop to inquire when the objection was made for the first time at the trial.

In Delaware, State v. Chuchola, 120 Atl. 212, the so-called contraband rule was announced where the admissibility of evidence and the right of property was hopelessly confused.

The rule in Iowa, State v. Tonn, 195 Iowa, 94, was by a divided court. A strong and well-reasoned opinion, concurred in by two judges, adheres to the Federal rule. • It is said in that dissenting opinion (l. c. 117): “It is, of course, to be admitted that certain state courts seem to be committed to the opposite view; but many, if not most, of the cases cited by the majority as opposed to the. doctrine of the Federal cases are not really in point, in that they have been decided in states not having a constitutional guaranty identical with that of the Fourth amendment to the national Constitutional.”

In the cases listed from Kansas no preliminary motion was presented, and in the latest one, State v. Van Wormer, 103 Kan. 309, the persons who made the search were hot shown to have any official character, and of course could not be affected by the Constitutional provision.

Two cases are listed from Massachusetts. In the first, Commonwealth v. Dana, 2 Metc. (43 Mass.) 329, the subject was lottery tickets and it was held that the search warrant was legal, search reasonable; and in the later case, Commonwealth v. Wilkins, 138 N. E. 11, the search was by individuals and not by State officers.

Other cases listed by the Attorney-G-eneral as supporting the view of the State may be mentioned:

State v. Barela, 23 N. M. 395, was a case where the defendant was lawfully under arrest for a felony, his shoes were taken by the sheriff and fitted to the tracks which were supposed to have been made by the guilty person. It was held that it was not self-incriminating, and the opinion cites in support of the ruling, State v. Newcomb, 220 Mo. 54. The unreasonable search provision was not considered.

A Colorado case, Pasch v. People, 72 Colo. 92, is one in which the court speaks of an illegal seizure, but the Constitution is nowhere mentioned. No constitutional right of any kind was under consideration; it was merely a common law trespass.

A South Dakota case cited, State v. Madison, 23 S. D. 584, simply announces the rule that the court will not inquire at the time the evidence is offered how it was obtained, and cites the Missouri (Pomeroy) case. The court there does not seem to have had under consideration the particular question at issue here.

A Maryland case, Lawrence v. State, 103 Md. 17, considers a search which took place after the defendant was lawfully arrested (l. c. 33).

In the New Jersey case, State v. MacQueen, 69 N. J. L. 522, the court states the general rule, and says (l. c. 528): “And it would seem that after arrest made the person of the accused may be.properly examined without a search-warrant in order to find evidence of his guilt, and that such an examination would not be deemed an unreasonable search — ” A question not in the present ease.

A Vermont case is cited, State v. Suitor, 78 Vt. 391, in which the Constitution was not mentioned. Evidence discovered by illegal process was held admissible, but the illegality was a mere trespass.

In the Virginia case, Lucchesi v. Commonwealth, 122 Va. 872, the search,'made after the defendant was lawfully arrested, was held to be perfectly lawful.

New York is listed as supporting the State’s position, People v. Adams, 176 N. Y. 351. That case turns upon the self-incrimination section of the Constitution, and not upon unreasonable search.

The case of People v. Esposito, 194 N. Y. Supp. 326, in an inferior court, turned upon the lawfulness of arrest; the prisoner was searched after being arrested. As I read the case the arrest was held to be lawful. I think-other cases cited by me show that New York adheres to the Federal rule.

In North Dakota, State v. Pauley, 192 N. W. 91, the offense was committed in the presence of the officer and the search was held to be lawful.

These are samples of the authorities which are cited by the State in support of its position. The only states in which there is the holding contended for are in the list mentioned above, and they, as shown, are not consistent, and some of them can hardly be said to announce unequivocally the doctrine contended for. Often, as stated, it is obiter, and often by a divided court.

IS. On the re-argument in Court en Banc the State claimed that the officer (the sheriff in this case) who conducts an unlawful search is acting on his own responsibility, not as an agent of the State; that the State is not responsible for, nor a party to, his actioiB therefore the question whether he violated -the Constitution does not come into the case on trial.

Let us follow that argument to its logical conclusion:

By the rule laid down by the United States Supreme Court and followed by the several states, the application of the constitutional provision against unreasonable search is narrowed to Government officers and agents. It is the act of only the Government itself through its authorized agents from which the provision is intended to protect the individual. • The Government is not concerned with unlawful trespass and searches by others than its own officers. So, here, it is only the unreasonable search of the State officers, acting for the State, which our Constitution provides protection against.

Then we reach this anomalous result: If the State officer is armed with a warrant, or other lawful authority, the provision does not apply, because the search is lawful and not unreasonable. If the officer has no warrant or authority to search he is acting on his own, not for the State, and the provision of the Constitution does not apply to him. Then, upon that logic there is no imaginable case in which the constitutional provision against unreasonable search would apply. It is a dead letter, because no one can violate it. It is a mere ineffectual gesture, instead of a substantial constitutional principle.

Put in another form the argument is this: The State can do no wrong: a State officer acting unlawfully in his official capacity is not the agent of the State, but acts on his own responsibility. The constitutional provision prohibiting unreasonable search applies only to agents of the State. Therefore it is impossible for anybody to violate that provision of the Constitution.

The State acts only through its officers, and agents. The sheriff did not, as a private individual, search the defendant and afterwards arrest him; he did it as sheriff, by virtue of authority of his office. His act was the act of the State, otherwise the constitutional provision is meaningless and cannot be applied in any case. It is suggested that in certain civil cases an officer is held liable personally for an unlawful trespass. That is in line with cases where the agent of a private, or a g-wasi-public, corporation is liable for a trespass and bis principal is also liable. The sheriff has been gnilty of a breach of duty; that cannot make his act any the less an official one.

X. The State argues further that the constitutional provision is not self-enforcing, and no statute has been passed to punish an offending officer or provide a remedy to the person injured for the infraction of his constitutional right.. It is true there . , , •. , , , is no adequate remedy available to the person injured whereby he may obtain redress after the act. He would have an action for an unlawful trespass or for assault, at common law. The Constitution adds nothing to his rights in that respect. The only remedy which can possibly benefit him is a preventive one. The Attorney-G-eneral in his oral argument admitted that injunction would lie to prevent the unlawful search, and later prevent the use of evidence discovered thereby, but argued that such action would be between the party injured and the offending officer, in which the State has no concern. Manifestly then injunction would lie to prevent a prosecutor from using it. In either case it would not lie unless the State was a party to the act, for otherwise the constitutional provision would not be in question. If an injunction would lie, why not a motion — the remedy universally resorted to and held available wher-e any remedy has been allowed? Why drive the party injured to an inadequate cumbersome method of preventive relief when adequate and proper method is provided and universally resorted to where the question is raised?

There is in fact no remedy, no method, by which the citizen can receive the protection'of the Constitution except the method here contended for by the appellant. , No .case is mentioned, and I believe none can be found, where this constitutional right was protected to the citizen except in the suppression of evidence discovered by unlawful search.

XI. All the decisions cited in support of the State’s position have entirely overlooked the most significant feature of a situation like this. The appellant’s offense was a misdemeanor. He.was charged with the possession, not with the manufacture or salé, of liquor. He should be punished if guilty, but his guilt should first be proven by legal evidence legally obtained. The officer of the law, the sheriff, committed two offenses: he was guilty of assault — more serious than the offense of defendant, because it was malum in se, and because he was an officer. He also violated the Constitution.

The Attorney-General correctly says there is no statute providing punishment for the officer’s offense. The only punishment which can be inflicted upon him is to deny him the benefit of his unlawful discovery. To admit the evidence is to approve his unlawful act; is for the State to become a party to the violation of its own Constitution for the purpose of securing a conviction for a petty misdemeanor.

XII. The Attorney-General agrees with Professor Wigmore in repudiating the rule explained in Paragraph II, above. The State’s position appears in- this question asked by the Supreme Court of California in People v. Mayen, 205 Pac. 442: “What difference does it make whether the evidence secured was by the wrongful act of the officer, or the wrongful act of a private citizen?”

It is argued that the United States Supreme Court was wrong in making that distinction. This confuses the right of the defendant with the demands of the Constitution. The government must maintain its integrity regardless of its effect upon the individual case. It was said by Chief Justice Tapt in the- case of Essgee Co. v. United States, 43 Sup. Ct. Rep. l. c. 516, in commenting upon an earlier case: “This court held that the Government could not, while in form repudiating the illegal seizure, maintain its right to avail itself of the knowledge obtained by that means which otherwise it would not have had.”

In the commission of the unlawful act there is all the difference in the world. If a private person undertakes to break into your home he has the status of a burglar or robber. You may resist him.with all necessary force. You are armed with the consciousness that you are within the law in whatever injury you may do him in protecting the sanctity of your home and person. But where an officer with the badge of authority intrudes, you are disarmed at once. However innocent you may be, you feel it necessary to submit.

It is one thing for the. government to take advantage of information which one wrongdoer reveals of another, or the revelations which ensue when thieves fall out, and quite another thing for the government to condone or encourage a violation of the law by officers sworn to observe and enforce the law. If peace officers are rewarded for breaching the peace, what more potent influence could induce people generally to hold the law in contempt and to break through legal barriers which stand across the path of their desires!

The trend of the argument in favor of admitting such evidence is that it is necessary and the only way to enforce the prohibition law. That brings us squarely to the paradoxical pronouncement: it is necessary to violate the law in order to enforce the law!

The Mayen Case makes the further point that this unlawful seizure is complete and finished; the offense is ancient history at the time of the trial, and the exclusion of the evidence would not redress the wrong which the defendant has suffered.

Since the wrong was already inflicted we should forget it and allow the wrongdoer to enjoy the fruits of it in the approval of the court and the conscious virtue of carrying through his enterprise to a successful finish. The question is not whether the defendant can be redressed in his case upon trial, but whether the reckless officer may be encouraged by the approval of the court to repeat the trespass.

The Supreme Court of Kentucky makes this comment on the subject (Youman v. Commonwealth, 224 S. W. 860): “It is trifling* with the importance of the question to say, as some of the courts have said, that the injured party has his cause of action against the officer, and this should be sufficient satisfaction. Perhaps, so far as the rights of the individual are concerned, this might answer; but it does not meet the demands of the law-abiding public, who are more interested in the preservation of fundamental principles than they -are in the punishment of some petty offender. ”

Professor Wigmore thus characterizes that argument : “All this is misguided sentimentality.’’ The State copies that cynical characterization. We think Professor Wigmore in his essay has not shown his usual logical force and clearness.

If the rule obtains that an officer may enter any house and seach any person any place without a warrant or knowledge — if he, vaingloriously sensible of the little brief authority with which he is invested, is encouraged to arrest and search because he suspects soipeone of some unknown crime and is rewarded according* to his success in discovery, encouraged to hunt and ferret on a chance of hitting upon something suspicious — a system of espionage would ensue characteristic of those countries where the sanctity of the home and inviolability of the citizen are unknown and official interference in those matters is the common experience.

It is an incident of every reform that enthusiasts, without experience, and with rapt vision of a glorious result, forget or ignore the limits of legitimate method, disdain conventional restraints and regular processes, through which alone permanent progress can be achieved. It is a state of mind which causes violent reaction rather than steady progress toward the end desired. It is for the courts where their offices are invoked, to .temper excess by enforcing the restraints which the law imposes for the peaceful orderly conduct of affairs. The lack of discrimination arising from this enthusiasm is illustrated by this argument of Professor "Wigmore:

“If officials illegally searching come across an infernal machine planned for the city’s destruction and impound it, shall we assume that the diabolical owner of it may appear in court and demand its return and be ordered by the court restitution with perhaps an apology for the ‘outrage’?”

Here is a hapless confusion of claim to property with admissibility of evidence. Violence of statement is not force of reasoning. We are concerned with evidence in a misdemeanor case, and it is beside the question to talk of arson, murder and treason.

Some misunderstanding has arisen' in the interpretation of the Federal rule, -because the Boyd Case, 116 U. S. 616, confuses amendments four and five to the Federal Constitution. The point in the Boyd Case was whether the Fifth Amendment was violated by compelling defendant to incriminate himself. It was also held, though unnecessary, that the search was unreasonable, contrary to the Fourth Amendment. In State v. Pomeroy, 130 Mo. 489, the Boyd Case is distinguished on the point of compelling the defendant to furnish evidence against himself. Judge Sherwood in writing the opinion quotes at length from State v. Flynn, 36 N. H. 64, in which case the point under consideration was whether the defendant should be compelled to incriminate himself. The unreasonable search section of the Constitution was not mentioned. While it was held that competent evidence, no-matter how obtained, was admissible, no constitutional question was raised by a preliminary attempt to suppress. The evidence was discovered by a search after a lawful arrest. Later Federal cases have construed the Fourth Amendment in more precise terms, as quotations above show. In the Sharpless Case, 212 Mo. l. c. 197, certain papers were taken from the defendant after he was arrested, and the court held them admissible because they were lawfully seized. What was said about admissibility of evidence obtained by unlawful search was obiter. The writer of this opinion thinks the search in both cases was lawful.

No doubt many rulings on the subject have been influenced by the difficulty of enforcing new and drastic statutes to which the people were wholly unaccustomed and to the enforcement of which some sections of the population have presented determined opposition. It is an instance illustrative of the old adage, “Bad oases make had law.” However difficult to maintain the judicial poise in the face of such impediments, involving popular reproach for failure, if we should allow our deliberations to he influenced by considerations of expediency or by our .own judgment regarding the propriety of any legislative act, we would at once, and rightly, be subject to the criticism that we were victims of “misguided sentiment.”

The judgment is reversed and the defendant discharged.

Woodson, G. J., and Graves and Ragland, JJ., concur; James T. Blair, J., concurs, hut thinks case should be remanded; David E.. Blair, J'., dissents in a separate opinion, in which Walker, J., concurs.