The solo question presented in this appeal is whether the evidence upon which appellants were convicted was obtained through an illegal search and seizure of the dwelling house that they were occupying as asserted sublessees.
Before the trial, appellants moved to suppress all of the evidеnce against them, supporting their motion by affidavits. These affidavits set forth that on October 25, 1930, three prohibition agents entered their dwelling without a search warrant or other warrant, and, in the course of a search, seized a still and “accessories.”
The officers’ entry into the dwelling was sought to be justified by the terms of a lease given by the proprietor of the farm to one Hill. This lease is set up in the affidavit of Paul Helmer, ono of the executors of the will of the proprietor, who has died. In the affidavit, Helmer assorts that he gave the federal officers permission to enter the premises for the purpose of searching.
The lease contained the following provision: “It is agreed that this lease is non-assignable without the written consent of the first party, and any assignment of this lease or sublease of said premises, or any portion thereof, without the consent of the first party, shall be void.”
In his affidavit, Helmer denied giving such consent to the sublease.
An affidavit filed by the appellants denied that they were trеspassers, claimed that they were occupying the dwelling under a subletting of the premises made by said Hill, and denied the authority of Helmer to give any one the right to enter and search the house. Under the terms of the lease, the owner had reserved “the right to go upon said premises at any time he deems necessary,” etc.
Decision of ibis controversy hinges upon the question of whether or not the appellants were trespassers. If they were trespassers, they cannot claim the benefit of the Fourth Amendment; if they were not, they can.
Under the circumstances of the lease and under the Washington statute, they were at least “tenants by sufferance” and not trespassers: “Whenever any person obtains possession of premises without the consent of the owner or other person having the right to give said possession, he shall be deemed a tenant by sufferance merely, and shall he liable to pay reasonable rent for the actual time he occupied the premises, and shall forthwith on demand surrender his said possession to the owner or person who had the right of possession before said entry, and all his right to possession of said premises shall terminate immediately upon said demand.” Section 10621, Rein. Comp. Stats. Wash. vol. 3, pp. 2946, 2947.
In the instant ease, there is no showing that either the owner or the lessee made any demand upon the appellants to vacate the premises.
Under the Washington decisions, no one else had the right to complain; hence the appellants were there “under a color of right.” In Beebe et al. v. Tyra et al.,
See, also, Teater v. King,
Similarly, the Supreme Court of California, in J. S. Potts Drug Co. v. Benedict et al.,
The foregoing eases bear out thе general principle laid down in 35 Corpus Juris, 979: “Restrictions against assignment or subletting imposed by the terms of the lease are intended for the benefit of the lessor and his assigns, and if neither of these objects to a breach of the restriction no one else may do so.”
Similar views have been expressed by Supreme Courts in other cirсuits. Thus, in Webster et al. v. Nichols et al.,
So, also, Eldredge v. Bell,
In Taylor’s Landlord and Tenant (9th Ed.) vol. 1, pp. 508, 509, we find the principle thus correctly stated: “The covenant against assignment being for the benefit of the lessor only, an assignment made without his consent is not void, but voidable merely. And the assignment does not work a forfeiture without a declaration to that effect, contained in the lease.”
It may be contended that the lease in the instant ease provides that any sublease without the written consent of the lessor shall be “void,” and not merely “voidable.” A complete answer to this objection, however, is found in a Supreme Court opinion, which, in the half century since it was rendered, has met with no criticism or limitation from that highest tribunal. In Ewell v. Daggs,
It may be pointed out in passing that the illustration of the Supreme Court as to a lease containing the term void presents an even stronger covenant than the one at bar, for in the instant case there is no specific provision for “forfeiture.”
Citing the foregoing opiniоn by Mr. Justice Matthews, the Sixth Circuit Court of Appeals said in a recent decision: “ * *
*
Ordinarily the party for whose benefit a condition is provided has an election whether or not to insist upon the condition; and this principle applies to leases as well as to other contracts. * * *
We
must look upon this condition as being dominantly for the benefit of the landlord.” Schneider v. Springmann,
Furthermore, as we have seen, even if we assume that the purported sublease was wholly invalid, under the Washington law appellants would have been considered merely tenants by sufferance, and not trespassers.
Nor can it be maintained that the lessor, by giving the officers permission tо search the premises, constituted them his “agents” for the purpose of exercising the right of entry that was reserved to him under the lease. Agency means more than mere passive permission; it involves request, instruction, or command.
While it is conceded that, as appellants earnestly contend, the principal may do thrоugh his agent what he might do personally, nevertheless there is not an iota of evidence in this ease tending to show that Helmer intended, that the prohibition officers should be his agents.
As a matter of fact, Helmer had no right to “permit” the officers to enter the leased premises on any business same his own. While it is true that, as owner of the premises, he would have had a right, either personally or through an agent, to inspect them to see whether or not the law was being violated thereon, it does not affirmatively appear, anywhere in the record, that he “delegated” this power to the officers, as his agents. He simply asserts that he “permitted” them to search the premises, with no intimation thаt the search was to he made on his behalf.
The right of a landlord to inspect the leased premises does not include the right to “permit” third persons, not shown to be his agents, to come and go over the premises cm business other than the owner’s. Such an interpretation would be an unwarranted straining of the meaning of “agency,” and might easily, as here, result in encroachment upon the constitutional rights of private citizens.
Furthermore, there is no evidence that the officers regarded themselves as the lessor’s agents, or held themselves out as such. Indeed, the reasonable inferences to be drawn from the record are all to the contrary.
Therefore, since the appellants occupied the searched premises “under claim and color of right,” their tenancy did not amount to trespass, and they are consequently entitled to the protection of the Fourth Amendment. In Ewing v. Burnet, 11 Pet. (36 U. S.) 41, 52,
This century-old case has been cited with approval in several recent Supreme Court decisions: Cox v. Hart,
In Lewis et al. v. United States (C. C. A. 9)
In the instant ease, however, the appellants not only claimed title as sublessees, but introduced an uncontradicted affidavit that tended to establish their claim.
*62 The relevancy of the question of trespass in a case of this kind was indicated by Judge Dietrich in Stakich et al. v. United States (C. C. A. 9) 24 F,(2d) 701, 702, when he said: “We need not discuss questions of law which would properly arise had the defendants been the owners or in the lawful possession of the propеrty. Being trespassers, they are in no position to question the right of the officers to come upon the premises.”
Another ease in which it was indicated that even an
averment
of ownership of the building would assist the application for suppression is Alvau v. United States (C. C. A. 9)
See also United States v. De Bousi (D. C.)
“I do not find in any of the cases where the evidence obtained upon wrongful search and seizure has been admitted that the defendant had or asserted any rights in the premises searched or in the property seized. If there is any authority for the present contention of the government, it has not come to my attention. 'Recent decisions of the Supreme Court, citеd above, the provisions of the Prohibition Act, and the penalties of the Willis-Campbell Act (Act Nov. 23, 1921, 42 Stat. 222), emphasize so strongly the unreasonableness, consequently unlawfulness, of a search of a private dwelling house without a warrant, that evidence obtained as a result of any infraction of the rule ought to be excluded in every case unless the court is satisfied beyond doubt that the defendant cannot claim the protection of the Fourth and Fifth Amendments.
“In Byars v. United States, supra [
“ ‘The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and in the colonies; and the assurance against any revival of it, so carefully embоdied in the fundamental law is not to be impaired by judicial sanction of equivocal methods, which regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right.’ ”
Having determined that the appellants were not trespassers, we must needs arrive at the conclusion that their constitutional rights were infringed by the search made without a warrant of any kind. No sufficient showing of probable cause for the arrest has been made; the sole sworn statement on the subject being contained in the affidavit of Prohibition Agent Shirley, to the effect that “affiant had received information that cеrtain persons were operating a distillery on a farm situated,” etc.
Such “information” does not justify entry into a private dwelling at 10 o’clock at night, without a warrant, either of search or of arrest. Under these circumstances, the case clearly fails to come within the rule that a search may be made in connection with a lawful arrest. An illegal search cannot lift itself by the bootstraps of an illegal arrest, and vice versa. The officers entered the dwelling in violation of the appellants’ constitutional rights; nothing that they could do after such entry would validate it. This ease can easily be distinguished on the facts from Marron et al. v. United States, 8 F(2d) 251, and King v. Unitеd States,
Although it is true that the question of the lawfulness of the arrest was not made the subject of an assignment of error, we are considering it solely on the theory that the legality of the arrest might furnish a possible justification for the subsequent search аnd seizure. We believe that both the arrest and the search were in violation of the appellants’ constitutional rights, and that the lower court erred in permitting the introduction of any evidence obtained as a result of such search..
Judgment reversed, and the case remanded, with instructions that the motion to suppress be sustained and the defendants be discharged.