Craven v. State

| Tenn. | Apr 15, 1923

Mr. ■Chief Justice Green

delivered the opinion of the Court.

The plaintiff in error was convicted of the violation of one of our liquor laws and has appealed in error to this court.

The evidence upon which this conviction rests was procured through the instrumentality of a search warrant based upon an affidavit of the sheriff, made on the information and belief of that officer, that probable cause, existed to justify the writ. The character of his information was not disclosed. We reiterate our announcement lately made in Elliott v. State, 256 S. W. 431, ante, p. 414, that such a warrant is void.

If the magistrate is to issue a search warrant without being apprised of tlié reasons leading the sheriff to think a search should be made, and without weighing these reasons, then the propriety of a search is always in the discretion of the police officer, and there is no judicial discretion involved. Why require a warrant? Why not let the officer make it on his own responsibility, if his bare opinion as to the necessity for a search justifies process authorizing it?

The history of our ancestors for three 'hundred years has demonstrated that police officers cannot be permitted to ransack at will the properties of the people. Intolerable conditions have always followed such practices. A revolution in England and the revolution of the American colonies are said by high authorities to have been largely influenced by promiscuous seizures and searches of the h.ouses and effects of the people — efforts by the constituted authorities to procure evidence of the violation of regulations deemed wise by those in power, but unpopular with many, and constantly transgressed.

Another storm was-rising in England following a renewal of such oppression, when Lord Camden delivered his great judgment in Entinck v. Carrington, 19 St. Tr., 1030, 1067, 95 Eng. Reprint, 807, denying the validity of a search warrant not issued by a judicial officer after investigation of the particular case in which the warrant was sought. This decision is everywhere alluded to as 'one of the landmarks of Anglo-Saxon liberty. Its principles have been embodied in the Constitution of the United States, and of the several States; the language of the Constitution of Tennessee being as follows:

“That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty, arid ought not to be granted.” Article 1, section 7.

Our statutes prescribe the procedure necessary to be observed by way of obtaining sanction to search the person or effects of a citizen, and a search made on less authority is unreasonable and in contempt of the Constitution.

We can conceive of no exigency in time of peace that could induce this court to weaken the barriers put up by our fathers to prevent the abuse of this writ. They build-ed upon a bitter experience.

At the very foundation of our State is the right of the people to be secure in their persons, houses, papers, and possessions. Infringement of such individual rights cannot be tolerated until we tire of democracy and are ready for communism nr a despotism. The enforcement of no statute is of sufficient importance to justify indifference to the basic principles of our government. The better class of our ancestors at one time thought there could be no more heinous, sin than questioning the divine right and will of the king. Later the majority of them regarded all dealings with the exiled house of fe'tuart as: calling for the most severe methods of repression, and many of a later generation- believed that the libels of Wilkes and his associates upon the ministry were so dangerous to good order that they should be suppressed by any means. Likewise there was little general sympathy with the earlier violations of the imposts laws in the colonies.

On these occasions the government proceeded with a heavy hand, and indiscriminate searches and seizures were made in the hunt for evidence upon which to try offenders.

There is little doubt but that at the beginning of each of these crises predominant moral sentiment supported the crown. But violent methods outraged and antagonized the people, and either made impossible or postponed the end sought to be reached. Much turmoil arose, much blood flowed, but little progress was made in law enforcement. The observance of no law has been promoted by tyranny, nor do we suppose ever will be, in an English-speaking country.

These lessons from the past, as well as the Constitution which rules us all, admonish that this court should set itself unfalteringly against any disturbance of the security of the people in “their persons, houses, papers and possessions” by unreasonable searches and seizures.

Search warrants have been considered at length in two recent opinions of this court, Hughes v. State, 145 Tenn., 544" court="Tenn." date_filed="1921-12-15" href="https://app.midpage.ai/document/hughes-v-state-8302107?utm_source=webapp" opinion_id="8302107">145 Tenn., 544, 238 S. W., 588, 20 A. L. R., 639, and Hampton v. State, 252 S. W., 1007, ante, p. 155, where the authorities are reviewed, and to these cases the profession may refer. Circumstances, however, seemed to demand this further statement of the position of the court in plain and unpretentious form.

Judgment below reversed.