93 So. 293 | Ala. | 1921
Lead Opinion
(1) Is evidence obtained by the unreasonable search of the dwelling house and appurtenant premises of a citizen of this state admissible against such citizen on the trial, in a criminal prosecution growing out of such unreasonable search, when said citizen objects to such evidence upon the ground that it was obtained by a violation of his constitutional rights as set out and contained in sections 5 and 6, respectively, of article 1 of the Constitution of Alabama?
(2) Is the rule of evidence established in the case of Shields v. State,
The appellant insists that, if the Shields Case, supra, is permitted to stand, and evidence obtained through a violation of the constitutional provision against unreasonable search is admitted over the objection and exception of a defendant, then in effect a state will be permitted to enforce a law which abridges the privileges and immunities of citizens of the United States, and a state will be permitted to deprive a person of his liberty without due process of law, because Gouled's Case,
C. R. BRICKEN, Presiding Judge.
WM. H. SAMFORD, H. P. MERRITT, Associate Judges.
It is the application of rules within the third group, wherein artificial tests, not based upon its probative value, are applied — as the "manner in which" evidence is obtained. Illustrations of material evidence wrongfully obtained admitted on criminal trials are to be found in the decisions of many of the states. *181
"The cases mention evidence obtained 'by unlawful, improper, reprehensible, and even criminal search and seizure,' 'search and seizure without a warrant,' 'by illegal and unauthorized search,' 'search and seizure without color of authority,' 'by strategy and fraud,' 'by forcible search,' 'by the commission of a trespass,' 'by means of a warrant illegally issued and executed,' and many other similar modes. Evidence appears to have been wrongfully obtained in the following cases: In Pope v. State (Ala.)
To the foregoing may be added the several cases from this court of Shields v. State, supra; Scott v. State,
Our Shields v. State, supra, is a leading case throughout the several states, and we may observe of the facts on which that decision rested that no offense had been charged against the defendant, who sought to visit a kinsman in jail, and was halted by the sheriff and informed that he must submit to a search of his person before he would be permitted to enter. Against his consent the sheriff searched his person and seized a weapon concealed thereon. Responding to the insistence that evidence so obtained was privileged under the constitutional guaranties, this court observed that not infrequently evidence is obtained by reprehensible methods —
"offensive to fair dealing, subjecting it to unfavorable inferences, the party relying upon it must neutralize, to entitle it to full credence. And evidence is sometimes obtained under circumstances which meet with the unqualified disapprobation of the courts. The evidence, however unfairly and illegally obtained, is not subject to exclusion, if it be of facts in themselves relevant. * * * While it is true the search of the defendant was without legal justification, a trespass, and an indictable misdemeanor, we know of no principle or theory upon which the state may be deprived of the right to employ the evidence of a criminal offense thus obtained."
This doctrine has been accepted in America, and cases supporting it are to be found in almost every state of the Union. Weeks v. U.S.,
The reasoning on which the rule rests is said to be that the court, when engaged in the trial of a criminal action, "will not take notice of the manner in which a witness has possessed himself of papers or other chattels, subjects of evidence, which are material and properly offered in evidence" (People v. Adams,
"Others might be advanced, having their roots in the principles of logic, and based upon the nature and properties of evidence and its purposes; * * * that the object of evidence is to elicit truth, and it can never be said that the probative value of any evidentiary fact is affected in the smallest particular by the manner or the means whereby the fact itself was obtained." 136 Am. St. Rep. 142.
This ancient rule of law, so well stated by Judge Brickell (Shields v. State, supra), has obtained among English-speaking people for 200 years, since the trial of Bishop Atterbury in 1723 (16 How. St. Tr. 323). With this construction by our court of sections 6 and 7 of article 1 of the Constitution of 1875, the same was reordained in the Constitution of 1901 as sections 5 and 6, with the additional provision in section 6 that the accused has the right "to testify in all cases, in his own behalf, if he elects so to do." Ex parte Pepper,
The uniform construction of sections 6 and 7 as a part of the organic law of this state in 1875, and of sections 5 and 6 of 1901 is answer to the first inquiry propounded by the Court of Appeals; that is to say, the evidence being, as presented in Judge BRICKEN'S opinion, that the sheriff or deputy sheriff of the county, without any search warrant and without any legal justification or excuse, searched the dwelling house and appurtenant premises of appellant, and there found a still or appliance which each of said officers testified was suitable and adapted to the distillation of prohibited liquors — beer being made ready for distillation into whisky or other prohibited liquors or beverages. The question of the competency of such evidence, raised on the trial of defendant by her objection "to the appearance of each of said witnesses and to any testimony that might be elicited from them, or either of them, upon the grounds that said testimony was procured by said witnesses through an illegal and unwarranted search of her dwelling house and appurtenant premises," was properly adjudged in favor of the state. The Constitution of the United States contains amendments providing that:
"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 person or things to be seized." Article 4.
And that:
"No person shall be held to answer for a capital, or other infamous crime; * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. * * *" Article 5.
With commendable frankness appellant's counsel said:
"I am not contending, nor do I insist, that articles 4 and 5 of the Amendments to the federal Constitution were intended to limit the powers of a state government with respect to its own people. I am not contending * * * that the federal Constitution has any power or control whatever over rules of evidence as regulated by the laws of this state, where said rules of evidence do not violate some provision of the federal Constitution applicable to the states."
This concession is warranted by the long line of authorities cited in Spies v. Illinois,
"That the first ten articles of amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone, was decided more than a half century ago, and that decision has been steadily adhered to since. Barron v. Baltimore, 7 Pet. 243, 247. * * *"
There has been uniform adherence to that rule by the Supreme Court of the United States. Ex parte Sawyer,
Not only is the pertinent provision of the
"The law appoints the remedy for the redress of the wrong, but the exclusion of the evidence criminating the defendant is not within the scope of the remedy, or the measure of redress."
In State v. Fuller,
"a statement of the common-law rule of evidence, and guarantees no greater privilege than that all persons [parties or witnesses], * * * shall be free from compulsion by legal process, to give self-incriminating testimony." Shields v. State, supra; Wigm. Ev. § 2183 et seq.; Twining v. New Jersey, supra; 2 Story, Const. § 1788.
This privilege, broadly stated by text-writers, is that:
"An accused person cannot be compelled by process directed to him as a witness to furnish evidence against himself, either in the form of oral statements which he is coerced into making, or in that of papers or chattels of any description capable of being made the subject of evidence, which he has the right to hold secret, in the production of which he coerced into doing some positive, overt act."
Mr. Freeman adds, "Beyond this, the privilege does not extend;" and it must be produced under compulsion, the degree of which "robs the accused of volition" (Barton v. State,
In Moss v. State,
Where, however, a defendant has testified on the trial for the crime or offense, and has objected to being required "to rise and come round in front and face the jury for their inspection," on the ground that this requirement by the court was a violation of the constitutional provision against self-crimination, Mr. Justice Head observed of the right of the accused under section 7, article 1, Constitution 1875, that:
"If defendant had not voluntarily made herself a witness in the cause, * * * the action of the court would have been an invasion of the constitutional immunity * * * referred to." Williams v. State,
Such pronouncements of the extent of the constitutional privilege would not prevent some person, be he not a state official or agent, from taking the shoes from the possession of the accused, and with or without his consent, make comparisons with footprints, *184
and testify to the result of such comparison; the distinction being the accused is not required to "do any positive act in connection therewith." Davis v. State,
It must be noted in this connection that compulsion of self-crimination (denied by the Constitution) must be directed to the accused person in the capacity of a witness — must be strictly testimonial. Spicer v. State,
In the case of Gindrat v. People, it was held that constitutional privileges, whether national or state, prohibiting the enforced production by the parties in a criminal case of evidence against themselves are merely limitations upon the powers of the government, and have no reference whatever to, or bearing upon, unauthorized acts of individuals, as to render inadmissible such damaging evidence so obtained in a prosecution for a criminal offense. In that case a private detective secured damaging evidence by an enforced search of defendant's room. In the Flynn Case, supra, it was said to be an unfounded idea that the damaging discoveries made by state officers, in the execution of process, or where they intrude upon a man's privacy without a legal warrant, are the admissions of the party or evidence given by him. If the accused has in his possession certain "mute witnesses," which he endeavors to keep concealed, when revealed by force or fraud, the evidence thus obtained is not that of the accused, but that of the persons gaining access to defendant's place of concealment. The Justice says:
"It does not seem to us possible to establish a sound distinction between that case, and the case of the counterfeit bills, the forger's implements, the false keys, or the like, which have been obtained by similar means. The evidence is in no sense his [the accused's]."
In Commonwealth v. Dana, supra, the Justice said:
"Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, as they unquestionably were."
Said Judge Brickell in Shields v. State, supra:
"The defendant made no admission or confession; he was passive, the unresisting victim of unlawful violence; and if he had made an admission or confession, its exclusion, because not free and voluntary, would have been unavoidable. It is not that which he has said or done, which is supposed to offend the constitutional guaranty, but the independent, unlawful acts of the sheriff, by and through which it was discovered that he bore upon his person the 'mute witness' of a criminal offense."
An analogy to this is found in "voluntary confessions" that are obtained by false statements that did not amount to fear of punishment or the hope of reward (Curry v. State,
We are satisfied with the construction of sections 6 and 7 of the Constitution of 1875 (sections 5, 6, Const. 1901), made to the facts on which rested the decision in Shields v. State, supra, and other cases following the rule there announced. The ancient rule of securing to the people immunity against unreasonable searches and seizures was adverted to by Mr. Justice Gardner in State Tax Comm. v. T. C. I. Co.,
It may be interesting to note the constructions placed by the Supreme Court of the United States on the
The case of Weeks v. U.S., supra, held that protection against individual misconduct of certain of the municipal officers of Kansas City, Mo., in the seizures of defendant's letters and documents (not acting under any claim of federal authority), is not afforded by the guaranty of the
"As to the papers and property seized by the policemen, it does not appear that they acted under any claim of federal authority such as would make the amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment in the federal court, under what supposed right or authority does not appear. What remedies the defendant may have against them we need not inquire, as the
In Silverthorne Lbr. Co. v. U.S., supra, Mr. Justice Holmes observed:
"If knowledge of them [the papers taken by government officials] 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" — the unreasonable search and seizure having been made by representatives of the Department of Justice.
The holding was that the numerous decisions like Adams v. N. Y.,
The Silverthorne decision was in the matter of contempt of court for refusal to obey subpœnas and an order of the court to produce books and documents of the company before the grand jury of the United States, to be used in regard to an alleged violation of the statutes of the United States by Silverthorne and his father.
In Gouled v. United States, supra, on a certificate from the United States Circuit Court of Appeals, where defendant, one Vaughn, and another, were charged (in the courts of the United States) with conspiracy to defraud the United States, one Cohen, a private in the army, attached to the Intelligence Department, and a business acquaintance of Gouled, "under direction of his superior officers, pretending to make a friendly call upon the defendant, gained admission to his office, and in his absence, without warrant of any character, seized and carried away several documents" of the defendant Gouled. The trial court overruled defendant's objections to the introduction in evidence of said papers and documents on the ground (it was inferred) that they were obtained without the use of force or illegal coercion, or because the objection came too late. The holding by Mr. Justice Clarke was that the prohibition of the
"It is plain that the trial court acted upon the rule, widely 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 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."
This announcement must be taken with the other announcements of the Supreme Court of the United States, limiting the effect of the field of operation of the
The case of Amos v. U.S., supra, was in error to the District Court of the United States for the Eastern District of South Carolina, to review a conviction in the federal court for violation of federal internal revenue laws. Before the evidence was offered, defendant Amos petitioned the court to require the return of private property described, which, it was averred, the district attorney intended to use in evidence at his trial in the federal court, and which had been unlawfully seized by officers of the government in the unlawful search of defendant's house, and contrary to the provisions of the
Nothing is contained in such recent authorities, or in the other decisions of the Supreme Court of the United States, that controlled the state court at the time of the trial of defendant for an offense against state law, or so changed the declared field of operation of the
The second inquiry, as to whether the ruling was offensive to provisions of the
"It is no longer open to contention that the due process clause of the
This second inquiry is more properly answered in Twining v. New Jersey, supra. Mr. Justice Moody there pointed to the fact that prior to the formation of the Constitution of the United States in which the exemption from compulsory self-crimination was secured by amendment, independently, and side by side with the requirement of due process, the doctrine (freedom from self-crimination) was formed, as other doctrines of the law of evidence have been formed, "by the course of decision in the courts, covering a long period of time," and that it was not then thought to be other "than a just and useful principle of law." He further states that the immunity was not contained in the "great instruments" — in the declaration of the fundamental rights — was not dreamed of for many years after the Magna Charta (1215), and its phrase of the "law of the land"; nor by the Petition of Right in 1629; nor was the inhibition contained in the Bill of Rights (1689) of the first year of the reign of William and Mary, at which time "the practice of questioning the prisoner at his trial" had not ceased; nor was it contained in the Declarations of Rights of the Stamp Act of Congress (1765), nor the Declaration of Rights of the Continental Congress (1774), nor the Ordinance for the Government of the Northwestern Territory. Of this exemption (from self-crimination) Mr. Justice Moody said further that though secured, as against federal action, by the
The Twining Case is directly in point, since it was in error to the Court of Errors and Appeals of the state, to review a judgment which affirmed a judgment of the Supreme Court of that state, affirming a conviction of petitioner in the court of quarter sessions of that state, for having knowingly exhibited a false paper to a bank examiner with intent to deceive, and for which an indictment had been returned by the grand jury of Monmouth county of same state. The history of the first eight articles of amendment to the Constitution of the United States, and their relation to the federal and state governments, were reviewed, the leading cases of self-crimination and of due process of law considered, illustrations of the rights and privileges of national citizenship, as contradistinguished from the "class of rights *187
which the state governments were created to establish and secure," given; the declaration of the privileges and immunities of citizens of the United States made, as being only such as arise out of the essential character of the national government or specifically granted or secured to all persons or citizens by the Constitution of the United States dealing with the question in hand, and considered were the Slaughter House Cases, 16 Wall. 36,
"If, then, it be assumed, without deciding the point, that an exemption from compulsory self-incrimination is what is described as a fundamental right belonging to all who live under a free government, and incapable of impairment by legislation or judicial decision, it is, so far as the states are concerned, a fundamental right inherent in state citizenship, and is a privilege or immunity of that citizenshiponly. Privileges and immunities of citizens of the United States, on the other hand, are only such as arise out of the nature and essential character of the national government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States," and "the inference is irresistible that it has been the opinion of Constitution makers that the privilege, if fundamental in any sense, is not fundamental in due process of law, nor an essential part of it,"
— that exemption by the
The Twining Case is cited with approval in the conclusion of the decision in Weeks v. U.S., supra, where the observation is made:
"What remedies the defendant may have against them [the police officers of Kansas City, Mo.] we need not inquire, as the
The discussions by Mr. Justice Moody of the first eight articles of amendment to the Constitution of the United States, and in particular Articles 5 and 14, of the difference between the rights of citizenship guaranteed under the Constitution of the United States and the class of rights which the state governments were created to establish and secure, would induce a like conclusion as to articles 4 and 14 of Amendments. National Safe Deposit Co. v. Stead, Atty. Gen. of Ill., Russell, Treas. of Ill., and Lincoln, Inheritance Tax Atty.,
The rule applied in the introduction of evidence on defendant's trial, under circumstances indicated by the opinion of the Presiding Judge of the Court of Appeals, accompanying the inquiry of that court under the statute, was in accord with the rule announced in Shields v. State, supra, and the overruling of defendant's objection thereto contravened no right secured to her under the
All the Justices concur.
Concurrence Opinion
I concur in the foregoing response to the inquiry of the Court of Appeals. In my opinion, the trial court did not err in admitting the evidence under the Shields, Pope, and other Alabama cases, as well as the decisions of many of the state courts. True, these decisions do not harmonize with the recent Gouled Case, but said case does not and cannot control the state courts, under the authority of Ohio v. Dollison,