136 Va. 1 | Va. | 1923
after making the foregoing statement, delivered the following opinion of the court.
We will here say that the jury were plainly warranted in finding from the evidence that there was no common law liability upon the defendants for malicious or wanton conduct.
The decision of the instant ease therefore turns upon this single question.
The question must be answered in the affirmative.
The office of conservators of the peace is a very ancient one, and their common law authority to make police inspection, without a search warrant, extends throughout the territory for which they are elected or appointed, as the case may be, in private as well as in public places, and upon private as well as public property, unless inhibited from entry for such purpose without a search warrant by some rule of the common law, or by the Constitution, or by statute. It was provided in Edw. Ill, ch. 15, that “in every shire of the realm good men and lawful, which are no maintainers of evil nor barretors in the county, shall be assigned to keep the peace;” of which it was said that this “was as much as to say that in every shire the King himself should place special eyes and watches over the * people, that should be both willing and wise to foresee, and should
So that it is plain that the common law and the sections of Code and of the prohibition law last above quoted (which are but declaratory of the common law as applicable in such cases) gave the defendant officers the legal authority to make the entry upon the land in question for the purpose in question, without a search warrant, unless there is some rule of the common law, or Constitution or statute which inhibited them from so doing.
(a). To sustain the position (a) just mentioned the following authorities are cited: Entick v. Carrington, 19 Howell’s St. Trials 1029; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915 B, 834, Ann. Cas. 1915 C, 1177; People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, 3 A. L. R. 1505; 2 Watson on the Constitution, p. 1415 (see also Idem. pp. 1417, 1418, 1419, 1424); Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. Rep. p. 261, 65 L. Ed. 647 (advance sheets); Black’s Const. Law, sec. 7, p. 9 (see also Idem. pp. 606, 607, 608, 612); Anonymous, Minor (Ala.), 52, 12 Am. Dec. 31; People v. Ross, 19 Cal. App. 469, 126 Pac. 375; Delafoile v. State, 54 N. J. Law, 381, 24 Atl. 557, 16 L. R. A. 500; Commonwealth v. Eyre (Pa.), 1 S. & R. 347.
It is manifest, therefore, that since the entry in the instant case was not under any search warrant at all, section 10 of the Virginia Constitution has no direct application to the case. It has an indirect application, however, in its enunciation in part of the common rule on the subject.
We find no indication in any of the authorities that protection of the title, or the constructive possession of property, is the controlling object of the common law rule against unreasonable searches and seizures. No right- of property is primarily intended to be protected' thereby, and certain property rights, not inclusive of those involved in the instant ease, are incidently protected only because they are immediately incidental to and inseparable from the enjoyment of the personal, rights aforesaid.
This is true of all of the decisions aforesaid cited and. relied on for the plaintiff. Anonymous, supra, involved the search of a dwelling house without a warrant; People v. Ross, supra, a dwelling house and curtilage, without a warrant; Delafoile v. State, supra, a hotel (the home of the landlord and wife) and assault upon the landlord’s wife, without a warrant; Commonwealth v. Eyre, supra, the curtilage, without a warrant; People v. Marxhausen, supra, a dwelling house, without a warrant; Boyd v. U. S., supra, letters and private documents ordered to be produced; Entick v. Carrington, supra, private papers seized in a dwelling house, under a. “general warrant;” Gouled v. U. S., supra, private papers seized and taken from an office, without a warrant.
In Faulkner v. Alderson, Gilm. (21 Va.) 221, cited for-the plaintiff, the entry was by the landlord, not an officer, but the entry originally lawful became unlawful ah initio, under settled principles, because of the subse—
In the case last cited, this is said:
“Not all searches and seizures are forbidden. Consider first the character of the property that may be seized. It never has been deemed unreasonable to hunt for and take stolen property, smuggled goods, implements of crime, and the like. * * * Consider next the person whose privacy is invaded. * * ”
The same rule there announced has been uniformly held to apply to contraband (such as was the illegal still for which the defendants in the instant case were searching), Elrod v. Moss, supra, ([C. C. A.], 278 Fed. 123); and no privacy of the plaintiff was invaded.
It is too manifest for further elaboration that the search, without a warrant, of the plaintiff’s premises, remote from his home and curtilage, and not even in his personal presence, was not an “unreasonable” search, and hence was not forbidden by the common law.
(b). Did the statute concerning search warrants (Acts 1920, pages 516, 517) require the defendant officers to obtain a search warrant before making the entry on the land of the plaintiff, in the aforesaid locality, remote from his dwelling and curtilage, and not in his presence or immediate actual possession, for the purpose of searching for the illegal still which they “had cause to suspect” was there?
The question must be answered in the negative.
“* * every constitutional or statutory provision must be construed with the purpose of giving effect, if possible, to every other constitutional or statutory provision, and in view of new conditions and circumstances in the progress of the nation and the State” (citing Supreme Court decisions). “Hence the provisions of Federal and State Constitutions forbidding unreasonable searches must be construed in the light of the constitutional provision against the sale, manufacture and transportation of intoxicating liquors.”
The same is equally true of the provisions of the search warrant statute under consideration, and they must be construed in the light of the aforesaid provisions of section 21 ¡J/-? of the prohibition law of the State authorizing the seizure of illegal stills without a warrant, and in the light of the common law and the statutory authority aforesaid conferred upon such officers as the defendants.
So construing such search warrant statute we are of
The word “house” used in the statute, does not exhaust the class to which it refers, as is argued for the plaintiff. And plainly, in the light of the common law rule aforesaid, the words “place” and “thing” mean other places and things of like character, with respect to being in the immediate personal custody of some one, so that the entry thereon or search thereof would violate the personal liberty and privacy aforesaid. Hence the cases of Jones v. State, 104 Ark. 261, 149 S. W. 56, Ann Cas. 1914C, 302, and American Ice Co. v. Fitzhugh, 128 Md. 382, 97 Atl. 999, Ann. Cas. 1917D, 33, relied on for plaintiff on this subject, have no controlling application.
The case must be affirmed.
Affirmed.