103 So. 483 | Miss. | 1925
Lead Opinion
"Said Simmons, being duly sworn, testified as follows: That on the 24th day of April, 1924, he was called over the telephone by an officer of an adjoining county, who stated to him that an automobile containing whisky was making a rapid approach to the city of Jackson, and would pass into the city of Jackson over Pearl River Bridge, giving witness a description of the automobile and the tag number of the same; that Simmons at the time was chief of police of the city of Jackson, and having reason to believe, and then and there believing, that intoxicating liquor was thus being transported, at once repaired to the western end of said bridge, which is situated in the Fifth supervisors district of Hinds county, and within the corporate limits of the city of Jackson, Miss., *151 and that presently approached over said bridge and into the city of Jackson the automobile described to said witness, and bearing the tag number given to him; that in said city and at that place the witness arrested the defendant, Donovan Moore, and searched the automobile that he was driving, and found several quarts of whisky; that the search was made without violence or the consent of the said Donovan Moore, who was driving and in possession of said car containing said intoxicating liquors; that in the telephone message above mentioned, the party giving him the information stated to him that the automobile contained and there was being transported in said automobile several quarts of intoxicating liquors; that he regarded the officer giving him the information as being a credible person, and that he believed the information given to be true, and acted upon the same in good faith, at the time when he made the search and found the defendant with the whisky. Whereupon the defendant objected to said testimony upon the ground that it involved a search, and that the information given in said testimony was obtained by testimony secured against the will of the defendant without affidavit or search warrant, and that the said search was in violation of the Constitution of the state of Mississippi, and that under the decisions of the supreme court of Mississippi said testimony was not competent to be introduced before the jury."
Section 2, chapter 244, Laws of 1924, provides that — "It shall be the duty of any sheriff or constable of a county, or any sheriff, constable, marshal, or policeman in a municipality who has reason to believe and does believe that intoxicating liquor is being transported in violation of law, in any wagon, cart, buggy, automobile, motorcycle, motor truck, water or air craft, or any other vehicle, forthwith to make a reasonable search of such vehicle and to seize any intoxicating liquor so found being transported or being attempted to be transported in violation of law and at once to arrest the person or persons *152 in possession or control thereof and transporting or attempting to transport same in violation of law; and such officer or officers proceeding in good faith shall not be liable either civilly or criminally for such a search and seizure without a warrant, so long as said search and seizure is conducted in a reasonable manner, it appearing that the officer or officers had reason to believe and did believe that the prohibition laws of the state of Mississippi were being violated at the time such search was instituted. And the officer or officers making such search shall be a competent witness, or witnesses, to testify as to all facts ascertained, and discoveries made, by means of said reasonable search, and all liquor, and all appliances for its manufacture or transportation, so seized in the reasonable search of any such vehicle shall be admitted as evidence.
"But this section shall not in any event authorize the search of a residence or home or building or room in a building or premises, without a search warrant duly and properly issued."
The question presented for decision is the validity, vel non, of this statute under section 23 of the Mississippi Constitution, which provides that — "The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized."
The possession, transportation, and control of intoxicating liquor is a misdemeanor punishable by fine and imprisonment. Section 5, chapter 189, Laws of 1918, provides that no property rights of any kind shall exist in intoxicating liquor, and that all such liquor may "be seized by the sheriff or any other lawful officer of the state, and destroyed and rendered useless by him without any formal order of any court."
The section of the Mississippi Constitution here under consideration is practically a rescript of the Fourth *153 Amendment of the federal Constitution, and the supreme court of the United States has recently held that the provision of the National Prohibition Act (U.S. Comp. St. Ann. Supp. 1923, section 10138 1/4 et seq.) permitting vehicles, boats, etc., to be searched for intoxicating liquor without a warrant, on probable cause therefor, is valid. Carroll v. United States, 45 S.Ct. 280, 69 L.Ed. ___, decided March 2, 1925, and not yet [officially] reported. While it is true that this decision of the supreme court of the United States is not binding on us, it is, to say the least, very persuasive, and, moreover, the enforcement of the amendment to the Federal Constitution prohibiting the manufacture and sale of intoxicating liquor will be more effectually enforced in Mississippi if the decisions of the state and Federal courts thereon are in accord.
Section 23 of the Constitution does not prohibit all searches and seizures, nor does it, in express terms, require a warrant therefor. It prohibits: First, unreasonable searches and seizures; and, second, the issuance of warrants "without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized."
The right of the citizen to be secure from unreasonable searches and seizures was a great constitutional doctrine of the common law (Money v. Leach, 3 Burr. 1742; The Bishop ofAtterbury's Case, 16 Howell St. Tr. 490; Entick v.Carrington, 19 Howell St. Tr. 103; Story's Constitution, section 1902), and its incorporation into the national and the early state Constitutions was because of the claim of the English and of some of the colonial governments of the right "to issue warrants for the arrest of persons without inserting their names in the warrants, especially authors, printers and publishers of obscene and seditious libels, and to invade the homes and search for private papers of individuals to obtain evidence against them on imaginary charges" (2 Watson on Construction, pp. 1414, 1415; Cooley's Constitutional *154
Limitations [7th Ed.] 426; 4 Wigmore [2d Ed.] 2264). When the Constitution is viewed, as it must be, in the light of this historical fact, it is clear that the reasonableness of a search or seizure must also be viewed and determined in the light of the common-law traditions. People v. Chiagles,
The immunity, it will be observed, covers not only a search and seizure of property, but of persons as well, and the common-law rules and statutes permitting and regulating arrests or seizures of persons are pertinent here, for a seizure of property cannot be said to be unreasonable if made under the same circumstances that justify the arrest or seizure of a person. An arrest at common law has always been permissible without a warrant if made on probable cause therefor. For a misdemeanor when committed in the presence of the person making the arrest, and for a felony, though not committed in the presence of the person making the arrest on probable cause therefor.
If section 23 of the Constitution prohibits all arrests or seizures of persons without a warrant, the rule of the common law permitting such arrests or seizures is necessarily abrogated thereby; but such has not been the construction placed thereon by this or any other court in so far as we are aware, and the legislature has uniformly acted on the theory that arrests without a warrant are not prohibited by the Constitution.
Section 1447, Code of 1906, Hemingway's Code, section 1204, authorizing and regulating arrests without a warrant, enacts practically the common law on the subject and appeared in our statutes at least as early as the Code of 1857, see page 618 thereof.
Section 1448, Code of 1906, Hemingway's Code, section 1205, which also appeared in the Code of 1857, at page 618, authorizes an officer or private person in order to make an arrest without a warrant to enter "any dwelling or house in which he has reason to believe the offender *155
may be found," and in Monette v. Toney,
It thus appears that the reasonableness of a search or seizure is not determined either at common law or under our statutes by the presence or absence of a warrant therefor. It is a judicial question to be determined by the court in each case, taking into consideration the place searched, the thing seized, the purpose for, and the circumstances under which the search or seizure was made, and the presence or absence of probable cause therefor.Carroll v. United States, supra; Haywood v. U.S. (C.C.A.), 268 F. 803; United States v. Bateman (D.C.), 278 F. 231;O'Connor v. United States (D.C.), 281 F. 396; Lambert v.United States (C.C.A.), 282 F. 413; Katz v. Eldridge, 96 N.J. Law, 382, 118 A. 242.
As pointed out by the supreme court of the United States in the Carroll case, Congress has always so understood the search and seizure provision of the Federal Constitution, and beginning with its first session in 1789, it has continuously discriminated between dwelling houses and similar places and boats and vehicles, as has our legislature here, by requiring a warrant for the search of the former and permitting a search of the latter without a warrant. The impracticability in most cases of obtaining a warrant for the search of swift moving vehicles and boats before they can be moved beyond reach justifies the distinction made between them and dwelling houses and similar places, and renders a search of vehicles and boats without a warrant reasonable.
The purpose for which the search was here made, and which the statute authorizes, is, of course, reasonable, for it was made in order that a thing which it is unlawful to possess, and which by its very existence offends against the law, might be seized and destroyed. *156
The search of an automobile without a warrant for contraband being transported therein is reasonable and is not prohibited by section 23 of the Constitution, provided the officer who made the search had probable cause therefor, to which question we now come.
The statute permits an officer to search any vehicle, boat, etc., in which he has reason to believe and does believe that intoxicating liquor is being transported in violation of law. The officer who made the search here believed that intoxicating liquor was being transported in the automobile searched, the reason for the belief being that he had been advised by another police officer whom he regarded as a credible person that intoxicating liquor was being transported in the automobile. Information and belief has always been considered sufficient probable cause to justify a search and seizure and was so held by this court in State v. Quintini,
If it be said that an arrest for a misdemeanor is authorized at common law only when committed in the presence of the person making the arrest and therefore the seizure of contraband, the possession of which is a misdemeanor and not a felony, should be permitted only when a knowledge of the existence thereof is acquired by the person making the seizure in the same way that he becomes conscious of the commission of a misdemeanor in his presence, that is through his senses, the answer, as pointed out by the supreme court of the United States in the Carroll case,supra, is that the distinction between felonies and misdemeanors is of no consequence in this connection, for the reason that the legislature has full power to classify an offense either as a misdemeanor or as a felony; the classification being determined by the punishment inflicted therefor. Section 1578, Code of 1906; Hemingway's Code, section 1345.
It may not be amiss to say that the difference in the security afforded the citizen by requiring searches and *157 seizures to be made only on a warrant therefor, and that afforded by permitting them to be made without a warrant on probable cause, is more apparent than real. The warrant issues on the affidavit of any credible person that he has reason to believe and does believe that intoxicating liquor is being stored, etc., in a described place, or "is being transported in any" vehicle or boat and protects the officer who makes the search under it. When a search is made without a warrant, the person making it must justify his act in so doing by proving that he had probable cause therefor. In the case at bar the officer could have obtained a warrant to search the automobile, though when the warrant was obtained the automobile might have been beyond reach, by making the same oath before a magistrate that he made on the trial in the court below; that is, that he had good reason to believe and did believe that intoxicating liquor was being transported in the automobile. The penalty for false swearing by the officer and the appellant's remedy therefor would have been the same in either case.
The appellant relies on the line of cases beginning withTucker v. State,
Section 2, chapter 244, Laws of 1924, is valid, and the judgment of the court below will be affirmed.
Affirmed.
HOLDEN, J., concurring.
ANDERSON and ETHRIDGE, JJ., dissenting.
Concurrence Opinion
Viewing the search and seizure provision of the Constitution in the light of its history, I am reasonably convinced that the protection given against search and seizure was intended primarily to apply only to the person and private premises of the citizen, such as the home, or other private place, and its immediate appurtenances (the castle and curtilages).
It is true the letter of the provision covers all possessions and property of a citizen; but it was never meant, in my judgment, to cover such things as fast moving vehicles upon the public highways, airships, or boats upon the public waters. Such possessions were not anticipated and are not within the contemplation of the Constitution; they are not of that private and stationary character which was intended to be protected against search and seizure without a warrant.
If it be held, in this day and time, that a search warrant is necessary to search an automobile speeding upon the public highway, then the right of search and seizure by the government for contraband would be partially destroyed, for under such circumstances the swift moving vehicle could not be searched because it would get beyond the reach of the officer before a search warrant could be secured. Surely governmental authority, in the enforcement of the criminal laws, is not to be defeated in this manner. The fleeting nature of the thing to be *159 searched necessitates prompt action, and if delayed, in order to first secure a warrant, the officers of the government would be helpless to enforce the law in proper cases.
Under such necessitous circumstances, the search for contraband may be made without a warrant if made upon probable cause. The very exigencies of the situation justify the reasoning that the constitutional provision was never intended to mean that every kind of search without a warrant would be unreasonable.
Therefore I am of opinion the Constitution did not intend to require a warrant to search those possessions in use on the public ways which are of such a character as would make it impracticable to first secure a warrant before making a search; and more especially is this true where the fast moving vehicle is speeding upon the public highway at the time the probable cause for the search appears to the officer.
I go no further with reference to the right of search and seizure without a warrant, upon probable cause, than indicated above. The private home and possessions and person are certainly to be protected against unreasonable search and seizure, and a warrant therefore, in my judgment, is required before such search and seizure can be lawfully made.
Dissenting Opinion
I find myself wholly unable to agree to the conclusions and pronouncement of the majority opinion in this case. It is a case of the utmost importance, involving as it does one of the most important provisions of the Bill of Rights in the Constitution. I shall therefore state my views and support them with authorities taking those views which I believe demonstrate the correctness of my position and the error of the majority opinion.
First, I want to say that my views are not in any way colored by any sympathy for the appellant or any of the class against whom the statute here under consideration is primarily directed. I rejoice that calamity has come upon the illicit manufacturer of intoxicating liquors, the *160 rum runner, and the bootlegger; but I mourn the loss of the liberty of the whole citizenship of the state which I conceive to be destroyed in a most important and vital particular. I believe fully in the prohibition of the sale and manufacture of intoxicating liquors. I would be glad to see that pernicious industry totally destroyed and the art of its manufacture forgotten. I am sensible of the great evils that the use of intoxicating liquors has brought about in the world, but they are not new in any sense. That iniquitous business was openly carried on and widely tolerated at the time the principles embodied in section 23 of the Constitution were first crystallized into a supreme law. It is unfortunate for those who are charged with maintaining the Constitution that they must do so in cases where the parties involved richly deserve the severest penalties of the law. The questions involved in this proposition generally arise in criminal cases where the defendants had so conducted themselves as to be unworthy of the protection of the law. Nevertheless the Constitution is designed to give all people the protection of privacy in their homes and to prevent the seizure of their persons and property except in proper cases in a way pointed out.
Liquor cases are not the only ones that a search warrant will be used for. It will affect the citizen in a great variety of cases. Originally, the search warrants of a general nature were used by monarchs for the purpose of discovering seditious writings. They will exist, also, to discover the private affairs of the citizen in aid of the government's revenues, such as tariff taxes, duties, income taxes, inheritance taxes, etc. Under chapter 194, Laws of 1918, it is provided for physical examination of persons affected by certain diseases, and searches and seizures will be made for this purpose with or without a warrant. Under sections 1025, 1026, Hemingway's Code, obscene literature and pictures are denounced and prohibited from being possessed. Search warrants or searches without warrant will be used for the purpose of *161 discovering whether such articles are possessed. Under section 623 and 625, Hemingway's Code, cocaine and other narcotics are prohibited from being possessed and search warrants provided for, and the same search will be used in that case as in the liquor case with necessarily a more particular examination of the person.
The Federal government may enact additional statutes in aid of its powers similar to the Espionage Act, and the seditious literature act referred to in Debs v. United States,
But let us return to the section of the Constitution involved and review the authorities pertinent to the question before us.
Section 23 of the Constitution reads:
"The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized."
The first part of the provision was intended primarily as a restraint upon the power of the legislature to enact laws authorizing searches and seizures. The laws could only be enacted so as to give the right of search or seizure in proper or reasonable cases. Such a statute must *162 be on its face a reasonable one. No search or seizure can be made unless based upon a reasonable law. It is true that it also applies to every officer and department of the government, but without a statute first enacted authorizing the search or seizure none could be made other than that which existed at the common law. The officers of the government could not extend the conditions of search or seizure. They were confined to the cases and conditions existing at the common law, and the right of search was limited to a very few objects by that law. At common law the right did not exist to search for the possession of intoxicating liquors, because the sale and possession of intoxicating liquors was entirely permissible. At the time of the promulgation of the Constitution, there was no such thing known as giving an officer authority by statute to make a general search in any case. No search whatever was authorized but by some kind of a warrant issued by an officer of the law authorized to issue it. There were two kinds of searches which were known to the history of the country at the time of the orig inal adoption of the Constitution in the several states and the ten amendments to the Constitution of the United States. Both kinds of searches were authorized by warrants issued by officers of the government on complaint either of a citizen or some officer of the government. One was a general warrant which did not describe specially the place to be searched or the person or thing to be seized, but the officer was armed with a warrant authorizing him to search for a particular purpose within his jurisdiction. These were known as "general warrants" and were conceived to be very hurtful to the legal rights of the citizen. There were also special warrants specially designating the person or thing to be seized or the place to be searched, and the thing to be seized if discovered by such search. The special warrants formally, which described the place or person to be searched or seized, were not offensive to popular conceptions of right. *163
It was the purpose of the constitutional provision to limit searches and seizures to cases where an oath was made, before an officer authorized to take it, that there were grounds for the search and the person must be named and the place described in this affidavit, so that the activities of the officers would be limited and restricted to the warrant itself. It is clear that it was contemplated that no search as such would be permitted at all unless the warrant issued. Neither king nor constable nor any intermediate officer could invade the home or property of the citizen under a blanket warrant or a general law. There was, it is true, a limited right of search where a person was lawfully arrested; but this limited right does not carry with it the right to make a general search. We dealt with and defined that right as it exists in this state by statute and at common law in Toliver
v. State,
In determining the meaning of the Constitution, we should go to the common law as it existed and was understood at the time of the Revolution. The constitutional provision spoke the language of the common law at the time. Great indignities had been perpetrated upon the colonies through the instrumentalities of writs of assistance which were general search warrants and which were extremely odious to the citizens of this country, and when the Fathers set up the independent government of the states then existing and of the United States, the provision was placed in the Constitution to forever protect the *164 citizens from an arbitrary invasion of their rights of person or property at the hands of the government or any officer acting in its name or under its authority.
In Ex parte Philip Grossman, decided March 2, 1925, by the supreme court of the United States, 45 S.Ct. 332, 69 L.Ed. ___, the supreme court of the United States was called upon to decide whether, under the power of the Federal Constitution, the President could pardon a person sentenced for a contempt of court. The Chief Justice, speaking for the court, said:
"The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the convention who submitted it to the ratification of the convention of the Thirteen States were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.
"In a case presenting the question whether a pardon should be pleaded in bar to be effective, Chief Justice MARSHALL said of the power of pardon (United States v. Wilson, 7 Pet. 150, 160, 8 L.Ed. 640):
"`As this power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.'" *165
The court, in the Grossman case, supra, also quoted from Exparte Wells, 18 How. 307, 311 (15 L.Ed. 421), as follows:
"At the time of our separation from Great Britain, that power had been exercised by the king, as the chief executive. Prior to the Revolution, the colonies, being in effect under the laws of England, were accustomed to the exercise of it in the various forms, as they may be found in the English law books. They were, of course, to be applied as occasions occurred, and they constituted a part of the jurisprudence of Anglo-America. At the time of the adoption of the Constitution, American statesmen were conversant with the laws of England, and familiar with the prerogatives exercised by the crown Hence, when the words to grant pardons were used in the Constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word `pardon.' In the convention which framed the Constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachment."
In South Carolina v. United States,
"In order to determine to what extent that implication will go we must turn to the condition of things at the time the Constitution was framed. What, in the light of that condition, did the framers of the convention intend should be exempt? Certain is it that modern notions as to the extent to which the functions of a state may be carried had then no hold. Whatever Utopian theories may have *166 been presented by any writers were regarded as mere creations of fancy, and had no practical recognition. It is true that monopolies in respect to certain commodities were known to have been granted by absolute monarchs, but they were not regarded as consistent with Anglo-Saxon ideas of government. The opposition to the Constitution came not from any apprehension of danger from the extent of power reserved to the states, but, on the other hand, entirely through fear of what might result from the exercise of the powers granted to the central government. While many believed that the liberty of the people depended on the preservation of the rights of the states, they had no thought that those states would extend their functions beyond their then recognized scope, or so as to imperil the life of the nation. . ..
"If we look upon the Constitution in the light of the common law, we are led to the same conclusion. All the avenues of trade were open to the individual. The government did not attempt to exclude him from any. Whatever restrains were put upon him were mere police regulations to control his conduct in the business, and not to exclude him therefrom. The government was no competitor, nor did it assume to carry on any business which ordinarily is carried on by individuals. Indeed, every attempt at monopoly was odious in the eyes of the common law, and it mattered not how that monopoly arose, whether from grant of the sovereign or otherwise. The framers of the Constitution were not anticipating, that a state would attempt to monopolize any business heretofore carried on by individuals."
The same ideas and principles are elaborately discussed inBoyd v. United States,
"The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions, on the part of the government and its employees, of the sanctity of a man's home and the privacies of life."
In State v. Kees,
"In the application of any constitutional provision it is always important to inquire what was the state of the law at the time such provision became part thereof. Under the common law in effect in this country at the time of the adoption, not only of the Federal Constitution, but of the various state Constitutions, search and seizure warrants were issued; but they were only allowed to be issued upon a complaint made upon the oath or affirmation of the party seeking the same. The English Constitution had guaranteed to the citizen this immunity to his person and premises from search and seizure from a time whereof the memory of man runneth not to the contrary, and we think it may be said that, when the constitutional provision relied upon came into the organic law of the American States, the purpose was to preserve to the citizen the right then enjoyed by him under the common law of England."
There are numerous other authorities to the same effect which will be referred to further along in this opinion.
The power to either arrest without a warrant or search without a search warrant did not exist at common law, except a person might be arrested for a misdemeanor committed in the presence of an officer or for a felony committed where the officer had probable cause for believing that the person arrested had committed a felony. *168
In discussing the right of arrest at common law in Kurtz v.Moffitt,
"If a police officer or a private citizen has the right, without warrant or express authority, to arrest a military deserter, the right must be derived either from some rule of the law of England which has become part of our law, or from the legislation of Congress.
"By the common law of England, neither a civil officer nor a private citizen had the right, without a warrant, to make an arrest for a crime not committed in his presence, except in the case of felony, and then only for the purpose of bringing the offender before a civil magistrate. 1 Hale, P.C. 587-590; 2 Hale, P.C. 76-81; 4 Bl. Comm. 292, 293, 296; Wright v. Court, 6 Dowl. R. 623; s.c., 4 Barn. C. 596. No crime was considered a felony which did not occasion a total forfeiture of the offender's lands or goods or both. 4 Bl. Comm. 94, 95; Ex parteWilson,
In the case of In re Swan,
In the case of John Bad Elk v. United States,
"At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter. What would be murder if the officer had the right to arrest might be reduced to manslaughter by the very fact that he had no such right. So an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence."
In Rawle on the Constitution of the United States, published in 1829, the author says, at page 127: "The term `unreasonable' is used to indicate that the sanction of a legal warrant is to be obtained, before such searches or seizures are made."
In Hoyer v. State,
"Such constitutional provisions here invoked are not grants of rights of action for trespass against official or individual violators of such guaranteed rights, for other provisions of the Constitution give such remedies. To say, then, that when the state itself has thus violated its own pledges, it may use the results thereby obtained for its own purpose, become a party to the trespass by ratification, trace its title through wrongful acts of its officers, remain itself immune, in its sovereignty, from legal liability, and then relegate the individual whose rights are thus swept away and made valueless in and by a court of justice, to his bootless and fruitless action of *170 trespass against such trespassing state officials as individuals, is to gibe and to jeer."
One of the ablest discussions of the whole subject that I have found in the books anywhere is the dissenting opinion of Judge WIEST, in People v. Case,
"The officer in this case had no warrant, unless we consider the liquor law his warrant. If the liquor law is considered as his warrant, then he acted under general warrant to the same extent as though a warrant had been issued by a magistrate with direction to search for intoxicating liquors where he willed, to subject persons and their possessions to search upon suspicion, and to lug the result of his search, if any, to a magistrate and there make complaint. If officers without a warrant, and upon a mere hunt for liquor and cause for arrest, may enter an automobile at will and make search therein, then they may stop any automobile upon any public high way and make search, may pry into the packages and bundles and baskets in every automobile parked at the curb in any city, may compel travelers to open and expose the contents of their hand baggage and parcels, make women shoppers open their hand bags, pry into trunks at depots, and in general proceed on the assumption that every person is guilty of having intoxicating liquors until exposure of their possessions satisfies the officers to the contrary, and in general so humiliate, vex, and annoy decent people as to constitute themselves a common nuisance." *171
In People v. Castree,
"A consideration of the origin, history, and use of writs of assistance in England, of their use in this country, and the evolution of the Fourth Amendment to the Federal Constitution. manifests the importance of this safeguard of the citizen against unreasonable searches and seizures of his person or property, and the necessity that it shall not be frittered away by the courts by a narrow and illiberal construction and a willing blindness and indifference to its violation. The language of the supreme court of Tennessee in Hughes v. State,
In State v. Owens, 302 Mo. 348,
"It is not within the power of the legislature to enact a statute which will permit an unreasonable search. People v.Milone,
The questions of arrest without warrant and of searches and seizures are contained in the same section of the Constitution. There are many cases holding that it is not permissible to enact a statute abridging the security of the section of the Constitution which gives the right.
In the case of Ex parte Rhodes,
"To hold an arrest lawful and reasonable, such as is shown in the opinions to which reference is made, is, in *173 legal effect, to nullify several provisions of our Bill of Rights, as well as section 89 of the Constitution.
"When the people of this state, through their representatives, met in convention to form this state government, they reserved to themselves and their descendants and successors certain rights, liberties, privileges, and immunities, which they did not surrender or cede to the government to be created by the convention. They also exacted guaranties of the government so formed to protect each person in the state, and to secure to him the enjoyment and exercise of these rights, liberties, privileges, and immunities, so reserved against encroachment or destruction thereof by other persons, whether majorities or minorities of the whole, or officers of any department of the government itself. . . .
"The various phrases and clauses used by the convention to describe the reserved rights, liberties, immunities, and privileges then had well-known meanings; many of them are to be found in the Magna Charta and other charters of liberties, then claimed by our ancestors as a part of the law of the land; and many of them were then embedded in the Constitution of the United States, and had been construed by the supreme court of our country to mean what they meant at common law. It would be unreasonable to suppose that our Constitution makers used these phrases or clauses otherwise than as then defined by the common law or the law of the land. The first clause in the fifth section of the Bill of Rights, "That the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches,' then had a well-known meaning, and the same phrase had been often defined by the courts, state and Federal. It must be presumed that the makers of the Constitution adopted it under its then construction. If it was not intended to prevent the government then being formed from authorizing or legalizing arrests like this, then the part which applies to the seizure of the person is worthless. . . . These phrases are limitations upon the *174 power of the legislature, as well as upon that of the other departments of government, or of their officers. . . .
"The general rules for the construction of statutes — that they are valid unless their prohibition can be found on the written pages of the Constitution, state or Federal, and that they must be held valid unless the court can say beyond a reasonable doubt that they are void — do not apply when the reserved rights, liberties, immunities, and privileges of the citizens are involved. That is, when the inalienable rights of the citizens are involved. As section 36 of the Bill of Rights declares: `This enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.'"
The court then reviews and quotes from many opinions in other states as well as other Alabama cases, and then says:
"Certainly, the sections of the Bill of Rights which prohibited unreasonable seizures and arrests, and which prohibited accusations, arrests, or detentions, except in cases ascertained by law, meant the law of the land as then ordained, and not any municipal law that might thereafter be ordained."
In the case of In re Kellam,
"`The city marshal or any policeman shall at all times have power to make or order an arrest upon view of an offense being committed, or upon reasonable suspicion that an offense has been committed, with or without *175 process, for any offense against the laws of the state or of the ordinances of the city, and to bring the offender for trial before the proper officer of the city: Provided, that any person arrested for any offense without process shall be entitled, on demand before trial, to have filed a complaint on oath in writing; and such person shall not at that time be tried for any other offense than that for which he was arrested and for which the complaint shall be filed.' Gen. Stat. of 1889, section 623."
That court said (55 Kan. at pages 702, 703 [41 P. 961]):
"Under the common law arrests without warrants were not permitted, except for offenses committed in the view of the officer; and in cases of felony actually committed the officer might also arrest without process upon a reasonable suspicion. The liberty of the citizen was so highly regarded, however, that the officer arresting the supposed felon without warrant must have acted in good faith, and upon grounds of probable suspicion that the person arrested was the actual felon. Felonies were excepted on account of the gravity of such offenses, and because the public safety and the prompt apprehension of criminals charged with offenses so heinous seemed to require that such arrests should be made without warrant. The powers of officers to make arrests have been extended to some extent by statutes, but it is generally held that officers cannot be constitutionally clothed with authority to arrest without warrant for minor offenses not committed in their presence or view. Pinkerton v.Verberg,
In Lippman v. People,
This case, Lippman v. People, supra, illustrates the meaning of the term "unreasonable" as applied in section 23 of the Constitution of Mississippi. It had reference to what the legislature might authorize a search warrant to be obtained for. It must be a reasonable purpose, a public purpose as distinct from a mere private purpose. It was intended as a limitation on the power of the legislature to enlarge the things for which a search warrant could be issued. It is true that an officer serving a valid search warrant would be liable civilly for making a search that unreasonably annoyed and interfered with the rights of the citizen; but this unreasonableness of service would not affect the warrant, but would make the officer liable for the unreasonable manner in which he needlessly infringed upon the right of the citizen.
In Fairmont Athletic Club v. Bingham, 61 Misc. Rep. 419, 113 N.Y.S. 905, is an interesting discussion of the constitutional rights of citizens and the power of officers to make arrest without warrant and to search without warrants. In that case an injunction was sued out to prevent the police of New York from annoying the complainant and its business by threats of constant raids upon its place. The defendant was a captain of police and entered plaintiff's premises with a squad of six policemen when a business meeting was being held and refused to leave or to withdraw his men when requested to do so. At the time of this trespass no sparring exhibition was being given. The defendant threatened to repeat the trespass whenever in his opinion or judgment it was necessary. Defendant's position briefly stated was that it was the duty of the police "to nip mischief in *177 the bud" and that to this end the police may without warrant enter with force the premises of the plaintiff and remain therein as long as they deem necessary to ascertain whether or not acts which they deem misdemeanors are being committed or are likely to be committed. The mere asking of this question shows that it must be answered in the negative. The duty of police officers, like all other public servants, is fixed and defined by law, and when they act contrary to this duty they become wrongdoers and violators of law. It is an essential characteristic of free government that every official is himself subject to the law, and that none are above it. At common law and under the statute law of New York a police officer has no right to arrest without warrant in cases of misdemeanor when the crime was not committed or attempted in his presence.
See People v. Glennon, 37 Misc. Rep. 1, 5, 74 N.Y.S. 794, at page 796, where Judge GAYNOR says:
"Instead, the jury, as it seems to me, should have been carefully instructed as to the strict and jealous limitations which the law puts on the power of policemen to enter houses or make arrests. For instead of police officers having the tyrannical powers of arrest attributed to them, they in fact have no power to arrest for a criminal offense without a warrant which every citizen does not possess. Every citizen has always had, and is expressly given by statute (Code Cr. Proc., section 183), the right and the power to arrest and take before a magistrate without warrant a person who commits any criminal offense, whether misdemeanor or felony, in his view; and if a felony has in fact been committed, although not in his view, he may in like manner arrest without warrant the person who committed it. . . .
"But the law does not tolerate the idea that any one may be arrested by a police officer for an alleged criminal offense of the grade of misdemeanor only, except on a warrant duly obtained from a magistrate, unless the offense was committed in the view of the officer. . . . *178
"The far-reaching constitutional maxim that every man's house is his castle has a history and a literature all its own, and is still as expressive and pregnant of the individual rights and liberties of a free people as when it first emanated from what Coke called the unpolished genius of the people. It burst asunder the bonds of despotic power. It is as vital now as when Chatham said of it:
"`The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.' Cooley, Const. Lim. 364."
In Pickett v. State,
"The Constitution of this state expressly declares in the Bill of Rights 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.' Code, section 5008. If any search is unreasonable and obnoxious to our fundamental law, it is one of the kind with which we are now dealing. Even if the person arrested did in fact have a pistol concealed about his person, the fact not being discovered without a search, the offense of thus carrying it was not, in legal contemplation, committed in the presence of the officer, and the *179 latter violated a sacred constitutional right of the citizen in assuming to exercise a pretended authority to search his person in order to expose his suspected criminality."
See, also, case note to Pickett v. State, supra; Douglass
v. State,
In State v. Freeman,
It is also said in the case note to 84 Am. St. Rep. at page 685, that an officer may arrest without warrant for a breach of the peace committed in his presence. This was the rule at common law, and has never been changed. The offense must be a breach of the peace, however, to warrant an arrest at common law, for there may be minor offenses within view of the officer which do not amount to breaches of the peace, and for which no arrest could be made without a warrant, unless the right to arrest had been enlarged by statute. At page 687, 84 Am. St. Rep. it is said in said note:
"Breach of Peace Not in Officer's Presence. — As already indicated by the authorities cited, an officer can arrest for a breach of the peace only when it is committed in his presence. This was the common-law rule, and it is the rule very generally under the statutes of the various states. (Citing authorities.) . . . An officer who was in one street and heard shooting in another street at night, but who was not where he could see or tell who did it, has no authority to arrest upon information received from a third person. People v. Johnson,
In Cooley's Constitutional Limitations, at star pages 299 to 308, the subject is elaborately discussed and the *180 situation as it existed in England and America during the period immediately preceding and during the Revolution is set forth. Mr. Cooley appends a note in which he quotes elaborately from a constitutional history of England dealing with the subject in England during troublesome times which is well worthy of thoughtful consideration by any liberty-loving man.
In the cases above referred to, and in Entick v.Carrington, 19 Howell, St. Tr. 1029, and Weeks v. UnitedStates,
Preceding that period under the reign of the Tudor Kings and the Stuart Kings, general warrants had been issued and many people had been arrested and many searches had been made, even Lord Coke, the great Chief Justice, who refused to bow before kingly authority, two days before his death was searched under one of these general warrants, and his manuscript seized and carried away. During the period of the writs of assistance in this country against which the patriot James Otis declaimed so eloquently and forcibly, resigning his office as attorney for the government so as to be enabled to antagonize these writs, he disclosed in his speech an instance where a judge tried a person for a crime and sentenced him therefor; when the judge had finished, the culprit, who seems to have been one of the puppets of the crown, asked him if that was all he had to say. The judge replied that it was, and the culprit said:
"I have something to say. I have a warrant in my pocket authorizing me to search all persons and places. I go now to search your honor's place."
And he did so, having a general warrant therefor.
These instances show that when general warrants are allowed or searches authorized by a statute like the one we have under discussion in the present case, that *181 searches will not be confined to criminals, but will be used against all those who incur the displeasure of such officers having such powers.
In Cooley's Constitutional Limitations, at star pages 303 and 304, it is said:
"But as search warrants are a species of process exceedingly arbitrary in character, and which ought not to be resorted to except for very urgent and satisfactory reasons, the rules of law which pertain to them are of more than ordinary strictness; and if the party acting under them expects legal protection, it is essential that these rules be carefully observed. . . .
"Search warrants are always open to very serious objections; and very great particularity is justly required in these cases, before the privacy of a man's premises is allowed to be invaded by the minister of the law. And therefore a designation of goods to be searched for as `goods, wares, and merchandise,' without more particular description, has been regarded as insufficient, even in the case of goods supposed to be smuggled, where there is usually greater difficulty in giving description, and where consequently more latitude should be permitted than in the case of property stolen."
In McClurg v. Brenton, 123 Iowa, 368, 371, 98 N.W. 881, 882 (60 L.R.A. 519, 102 Am. St. Rep. 323), the supreme court of Iowa said:
"The right of the citizen to occupy and enjoy his home, however, mean or humble, free from arbitrary invasion and search, has for centuries been protected with the most solicitous care by every court in the English-speaking world, from Magna Charta down to the present, and is embodied in every Bill of Rights defining the limits of governmental power in our own republic.
"The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and subject its occupants to the indignity of a search for the evidences of crime, without a *182 legal warrant procured for that purpose. No amount of incriminating evidence, whatever its source, will supply the place of such warrant."
In People v. Halveksz,
"Under a government of laws the security afforded persons, houses, and possessions against search without a warrant, lawfully obtained, must not be violated by officers of the law. The law must point the way to legitimate search and seizure and will tolerate none other. Officers of the law must act within the law, and, if they invade the security guaranteed individuals by the Constitution, such invasion cannot bring to the aid of justice the fruit of their violation."
See, also, People v. Marxhausen,
In State v. Peterson,
"This provision against unreasonable search and seizure has been considered one of the fundamental props of English and American liberty of the individual citizen, and to be most sacredly observed, giving rise to the expression that a `man's house is his castle,' designed to prevent violation of his private security in property, or the unlawful invasion of the home of the citizen by the officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations. Adams v. New York,
In Batts v. State (Ind. Sup. 1924), 144 N.E. 23, where an automobile was stopped and searched without a warrant and liquor found and the occupant arrested, the court held that unlawful search for liquor does not become lawful because liquor is found, and that the evidence thus secured is inadmissible. See, also,Callendar v. State (Ind. Sup. 1923), 138 N.E. 817; Ash v.Commonwealth (1922),
In Cobb v. State,
"The fact that the deceased was a nameless and friendless negro none the less entitles him to the protection of the constitutional guaranties. Indeed these provisions were necessary to be written in the organic law, more for the protection of the poor and friendless, than for the rich *184 and powerful. Even if defendant had been informed that deceased was `down there' selling whisky, defendant would have no right to search the person of deceased, based upon such information. A warrant to search the person or premises can only be obtained as is provided by the Constitution and laws of the state. There is only one other way by which an officer can search the person lawfully, and that is, when engaged in making a lawful arrest, either with a warrant duly issued, or for a felony committed by the person arrested, under section 6269 of the Code, or for a public offense committed or a breach of the peace threatened in his presence."
In Jackson v. State,
"Where searches and seizures are made pursuant to the command of a search warrant, both the search warrant and the prerequisite oath or affirmation required for it must conform strictly to the constitutional and statutory provisions authorizing their issue. This is true, because there is no process known to the law, the execution of which is more distressing to the citizen or that actuates such intense feeling of resentment on account of its humiliating and degrading consequences. As thus enunciated the law is in line with and is no doubt the child of our Anglo-Saxon spirit of liberty which holds every man's house or dwelling as his castle, and which declares that it must not be invaded or subjected to an uninvited search, except by a duly qualified officer, *185 and then only in pursuance of a valid writ commanding it."
This opinion is an able one and could be quoted from with profit if space permitted.
In Banks v. State,
In re Jackson,
"The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter; between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable *186 searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution."
In the case of Bram v. United States,
"A brief consideration of the reasons which gave rise to the adoption of the fifth amendment, of the wrongs which it was intended to prevent, and of the safeguards which it was its purpose unalterably to secure, will make it clear that the generic language of the amendment was but a crystallization of the doctrine as to confessions, well settled when the amendment was adopted, and since expressed in the text writers and expounded by the adjudications, and hence that the statements on the subject by the text writers and adjudications but formulate the conceptions and commands of the amendment itself. In Boyd
v. U.S.,
This subject is further discussed in the following cases:Hale v. Henkel,
It was said in argument by the learned assistant attorney-general that he had not been able to find in any of the circuit courts of appeal of the United States any case holding that search without warrant was invalid, and that evidence obtained by such search was inadmissible, and that he had found none at all in this, the Fifth circuit, as I recall his argument.
I have been more successful in my examination and refer to the following cases: United States v. Jajesweic (C.C.A.), 285 F. 789; Salate v. United States (C.C.A.), 286 F. 125; Joswich v. United States (C.C.A.) 288 F. 831; Singleton v. UnitedStates (C.C.A.), 290 F. 130; Pressley v. United States (Cir.Ct. App. 5th Cir.), 289 F. 477; Agnello v. United States (C.C.A.), 290 F. 671 (a narcotic act case); Murby v. UnitedStates (C.C.A.), 293 F. 849; Legman v. United States (C.C.A.), 295 F. 474; Burns v. United States (Cir. Ct. App. 5th Cir.), 296 F. 468; Hurwitz v. United States (C.C.A.), 299 F. 449.
Of course, the Federal courts, both the district courts and the circuit court of appeals, have conflicting decisions. In other words, they differ upon this question. An examination *188 of the cases cited above will show that it was very generally understood by the appellate courts and a large number of the Federal courts that the provision in the Constitution against searches and seizures was intended to perpetuate the protection which existed at the common law. The provisions were adopted from the common law of England and the interpretations in force at the time of our independence, and the adoption of the provisions of the Constitution became a part of the Constitution itself under the well-known rule that where any state or government adopts a provision of law from another government which has been construed by the courts of such government, the interpretation so placed upon the provision by such court is accepted as the true meaning of the provision.
In Falkner v. State,
We have also often cited and quoted from Boyd v. UnitedStates, supra; Weeks v. United States,
As I understand our decisions since the Tucker case, supra, we have based our holdings upon a construction of the Constitution itself, and this construction was that the Constitution prohibited searches and seizures without a warrant except the limited search incident to a lawful arrest. These decisions were not based upon a mere rule of evidence, but were based upon the fact that the Constitution ought to be so construed as to prohibit the government deriving any benefit or using any information obtained contrary to its provision. If I am correct in this, our own construction of our own Constitution would prohibit the legislature from circumventing the protection of the Constitution by the mere enactment of a statute having the legal effect of a general writ of search and seizure. I am wholly unable to see how a distinction can be drawn between a general search warrant and a statutory search warrant necessarily general in all respects.
I have quoted from the authorities at great length to show that the case of Carroll Kiro v. United States, 45 S.Ct. 280, 69 L.Ed. ___, decided by the United States supreme court on March 2, 1925, is erroneous and should not be followed by the state court. Where the United States supreme court is authority, I accept its decisions without question, as it is the duty of all subordinate courts to do. As it is not authority in the present case, it only has a persuasive effect and should not be followed if it is erroneous. The constitutional provisions of the state are to be construed according to the policy and political philosophy reflected in its jurisprudence and history. As the United States supreme court is a court of great ability, great dignity, and great power, and is looked to for leadership by all of the courts of the country, if not of *190 the world, I differ with it with the greatest reluctance. I approach its decisions with respect and with an inclination to agree with its pronouncements. But where a constitutional provision or statute of our own state is involved (as the construction of such Constitution or statute is primarily for the decision of our state court), I examine with the best attention and ability that I can the philosophy and principles of the United States supreme court and its previous announcements, as well as the previous decisions of our own court, and the political philosophy of our own state as reflected in our Constitution and statutes.
It appears to me that the recent decision of the Carroll Kiro case, supra, speaks a different philosophy from that of the Boyd case, the Weeks case, the Gouled case, the Silverthorne case, the Amos case, and other cases hereinbefore set out. The previous cases speak the voice of Liberty and Democracy. They accord to the citizen his full constitutional liberties and rights. The Carroll Kiro case bespeaks the supremacy of the government over the citizen's constitutional rights — the doctrine of thrones, the doctrine of the Stuart Kings. Instead of going to the common law and tracing the judicial pronouncement on the rights secured by these constitutional provisions as they existed at the common law, the said opinion quotes the enactment of Congress, relying principally upon the enactment of Congress enacted subsequent to the adoption of the first ten amendments of the Constitution and deducing from these enactments the understanding of the people at that time.
The Constitution was adopted to restrain Congress. The first ten amendments were adopted to prevent Congress from passing any law which would abridge or deny any rights against search and seizure and compulsory self-incrimination; among many other things from the encroachment of Congress. It must be remembered that the original Construction as adopted did not contain these amendments. The debates in the convention show that *191 the convention itself was hostile to them, but when the Constitution was put before the people for adoption, the conventions of the several states which adopted it criticised the absence of the Bill of Rights, and the adoption was only secured by assurances from the friends of the Constitution in such conventions that they would be speedily adopted, and they were adopted for the purpose of satisfying the people of the states; the government could not have been held together without adopting them. If there were no other light to illumine the question, these enactments would have some weight; but where the provisions had been definitely defined and pronounced by the courts and their meaning judicially declared, the court decision is the place to look for light.
With due respect to the high court and to my Brethen who follow it, I say that if this decision is correct the court condemns our forefathers as being rebels against the law in resisting the writs of assistance. These writs were clearly regarded by the colonies as unauthorized, tyrannical, and destructive of human liberty. The Virginia courts and the courts of England declared them unlawful. When the Constitution was first framed, the people with practically unanimous voice inserted the provisions to protect themselves against the powers of the government they were setting up. The person, home, and property of the citizen were to be secured against general invasion by the officers of the government, and any search or seizure was regarded at that time as being unauthorized and unreasonable unless the person seeking the warrant made oath as to the probable cause and particularly described the person and property to be searched for and seized.
There is a marked distinction between the right of the government to search a vessel coming to its ports to see that prohibited goods are not brought in and that proper taxes are paid, and the right to search individual possessions within the domain of a country. A person, even though a citizen of this country, when he goes without *192 its jurisdiction carrying the protection of his government with him, must submit of necessity to reasonable requirements to see that he does not violate the revenue laws of the country or bring in forbidden goods. But when a person is within the jurisdiction of the government, subject to the orderly processes of law, there is no well-grounded reason founded in necessity for a search or seizure without a warrant. The automobile and other rapid moving vehicles do not change the status at all. At the time the original Constitutions were adopted, it was much more difficult to make arrests, searches, and seizures, and procure proper warrants than it is now. A person who violated the law in that day could mount a horse and escape the officers by getting beyond the county lines. The outlaw and the officer were on equal terms so far as speed was concerned, and so are they now. Now in this day and time of swift movement, officers can use the same rapid moving vehicle that the lawbreaker can. He can go further; he can continue the pursuit from one county to another until he overtakes the outlaw. If the outlaw gets beyond the confines of the state, it is easy now on account of the telephone, telegraph, and wireless to locate such outlaw and have him returned under extradition proceedings.
It is difficult for me to understand how a court can ingraft an exception upon a provision of the Constitution. The papers and effects of the citizen under the Federal Constitution are as fully protected as the home or building or person. It seems that the supreme court intends to preserve the houses and buildings from search without a warrant and subject moving vehicles to search without a warrant.
The attempted breaking down of the distinction between felonies and misdemeanors in the law, authorizing arrest without a warrant in the Carroll Kiro case, supra, in the supreme court of the United States, and in the majority opinion in this case, is untimely, illogical, dangerous. The reason for allowing arrest without warrant *193 on probable cause for belief that the person sought to be arrested had committed a felony was founded on the doctrine of necessity growing out of the highest degree of probability that such felon would flee, due to the severity of the law as it then existed in imposing not only severe penalties, but in confiscating the property in case he was found guilty and in the many civil incapacities that followed a conviction. The felon after conviction was rendered infamous and could not thereafter be a witness, hold office, inherit or transmit property, etc. In case of a misdemeanor no such incapacities were inflicted and the punishment was slight in comparison. A misdemeanor at common law did not amount to much — was regarded as merely an option of committing the offense and paying for it the fine imposed by law. It was mala prohibita and not malum in se. It was not reasonable to believe that a person would flee the realm for so slight an offense. There was no necessity for immediate arrest. The distinction between felonies and misdemeanors is still great, the one rendering the offender infamous though with great abatement of the legal consequences in the nature of incapacities. A misdemeanor does not seriously affect the person, reputation, or civil rights of the person convicted. The fact that the lawmaking bodies have made changes in the penalties of the law, reducing the penalties and consequences of felonies and increasing the punishment in misdemeanors, and in some cases converting misdemeanors into felonies, and in other cases changing felonies to misdemeanors, does not affect the philosophy of the rule, but merely shows that the original reason for the rule making it lawful to arrest for felonies without warrant, on probable cause, is passing away. It is getting more and more difficult for a felon to escape arrest under the ordinary process of law owing to the many means of communication, identification, and extradition. To authorize an officer to arrest without warrant on suspicion or hearsay information for an offense not committed in his presence, and thus harass, and *194 discommode a citizen, peaceably within the jurisdiction of ordinary process, will speedily become intolerable.
It is unfortunate, I think, that the liberty and privacy and immunity from arrest and search are to be placed in the control of persons who will willfully lie to get some person to violate the law or agree to do so, and thereafter place such person in their power as was done in the Carroll Kiro case, supra. In that case the prohibition agents represented falsely that they were working for the Michigan Chair Company at Grand Rapids, Mich., which was a deliberate falsehood. They procured no whisky by this misrepresentation, but a mere promise which was unfulfilled to deliver whisky. Thereafter, meeting these parties on a highway with nothing to indicate that they had liquor in their possession, they made the search. It seems to me that as desirable as it may be to enforce the law, it is more desirable still to preserve the constitutional safeguards of liberty. There are those living in the realm of Utopian musardy, who believe that the millenium will be brought about by clothing a constable with dictatorial powers. There are those who would burn down a barn rather than permit the rats to escape. But such was not the faith of the Fathers, and I cannot bring my mind to accept that philosophy. I believe in the enforcement of the law fully and effectively so far as it can be done under the restraints of law necessary for the protection of the liberty of the whole people. I do not believe that the outlaw by his wrongdoing should be able to destroy the liberty of a whole people. I believe the officers charged with enforcing and administering the law are equally bound to observe the law. I do not believe in outlaw law enforcement. In other words, I do not believe either in making outlaws of our officers or in clothing them with plenary power to arrest and search on mere rumor, suspicion, or hearsay testimony.
In the case before us there was no reason why a warrant could not have been procured. The chief of police *195 and the police justice have offices in the same building. There are two other justices of the peace within two or three blocks of the city hall. There is no showing in the record that a search warrant could not have been obtained. The doctrine announced in the majority opinion in this case will make petty tyrants of policemen, constables, and other officers having the right to arrest. The evils that will flow from this decision will be as mountains compared to molehills when contrasted with those that now exist. I therefore refuse to assent to the decision pronounced.
ANDERSON, J., concurs in this dissent. *196
