Jokosh v. State
193 N.W. 976
Wis.
1923
Check Treatment
Vinje, C. J.

It will be seen from the statement of facts that the bottle was taken from the person of the defendant forcibly and against his will and without a search warrant for his person, thus constituting a search and seizure within the condemnation of sec. 8, art. I, and of sec. 11, art. I, of the constitution. Dunn v. Lowe, 203 Mass. 516, 89 N. E. 1046.

*162The rule is thus stated in 24 Ruling Case Law, 717:

“An unreasonable search is an examination or inspection without authority of law of one’s premises or person with a view to the discovery of stolen, contraband, or illicit property, or for some evidence of guilt to be used in the prosecution of a criminal action.”

The search in question satisfies the call of this definition; that is, it was made without authority of law, no search warrant for the person of the defendant having been issued, and it was made for the purpose of discovering contraband property to be used in the prosecution of a criminal action. Search warrants issue for the inspection of both places and persons, and one issued for the search of premises owned or leased by A. cannot be a justification for the search of the person of B. though he is employed in or has charge of such premises.

But it is claimed that the search was not unreasonable because the officers saw the bottle before they seized the defendant and had good grounds for believing that the bottle contained intoxicating liquors. The trouble with the argument is that it would permit such officers to seize and search every person whom they found in possession of a bottle. The fact that in this case it did contain intoxicating liquor could not legalize the search if unlawful in the beginning and before the nature of its contents was ascertained. A search must be lawful in its entirety. It is not made lawful by what is ascertained after it is made. U. S. v. Slusser, 270 Fed. 818. Officers of the law have a right to know before the search is instituted whether or not it is lawful. They are not required to take the chances of responding in damages to the person searched if it turns, out that no contraband goods are found. The law is based upon the safer and saner ground that if there is probable cause to believe that a person is in possession of contraband goods a search warrant will issue. But it is a judicial question as to when there is probable cause, hence a proper magistrate must *163determine it. When it is held there is and a warrant issues, the warrant protects the officers making the search. They are not left to the chance of being mulcted in damages if they fail to find contraband goods. The state has no right to subject its peace officers to such a penalty by saying “A search is lawful if you find contraband goods but unlawful if you do not find them. Enforce the law and take your chance.” The constitutional guaranty protects persons and places from such a haphazard procedure by requiring the issuance of a search warrant upon due proof before a search can lawfully be made.

Since it is not unlawful either as a misdemeanor or as a felony to have a bottle on one’s person, the search cannot be justified on the ground that the person searched was committing an unlawful act and hence could be lawfully searched. It is also said that, if searches such as this cannot be made, the prohibition law cannot be enforced. This may be true in part or it may be true in whole. The answer is that an article of the constitution having its origin in the spirit if not in the letter of the Magna Carta prevents it, and that it is the duty of the court to sustain and enforce the constitution in its entirety, and not to permit what may seem to be presently a desirable mode of procedure to annul such fundamental portions of our organic law as the freedom from unlawful searches. The importance of such a provision may be lost sight of in times of peace in a well organized and well administered state, but in times of stress or dissensions its value is as great as those who inserted it in the constitution conceived it to be.

The question is fully treated and the authorities discussed in the case of Hoyer v. State, 180 Wis. 407, 193 N. W. 89, recently decided, and nothing need be further added except to state that the case comes well within the rules there announced.

By the Court. — Judgment reversed, and cause remanded with directions to discharge the defendant.