268 P. 501 | Mont. | 1928
Lead Opinion
On application of Max Kuhr, county attorney for Hill county, this court issued an alternative writ of supervisory control to the district court of Hill county and the judge thereof, commanding the respondents to show cause on May 1, 1928, if any they had, why an order of that court suppressing evidence in a pending criminal case should not be annulled. On the return day respondents appeared by counsel and moved to quash the writ, and the matter was fully argued and duly submitted for decision. From the record the following facts appear:
On December 16, 1927, one Rella Bolton was, by information filed by relator, charged with the crime of unlawful possession of morphine and thereafter moved to suppress the evidence in the hands of the state officials. On the hearing of this motion Rella Bolton showed to the court that on December 8, 1927, she went to the postoffice at Havre and there received a special delivery package addressed to Ruth Foster, under which name she often received mail, and that, as she was leaving the *518 building, she was arrested by the sheriff of Hill county and one Daniel P. Bailey, and the package was taken from her. The county attorney then admitted that, unless restrained, he would use the package and its contents as evidence against the woman on her trial under the information referred to.
On behalf of the state it was then shown that, when the package was received at the Havre postoffice, it was unsealed but so wrapped that its contents were undisclosed and tied up with string; it bore the necessary postage and a special delivery stamp. For reasons undisclosed, the postmaster suspected that the package contained narcotics and called Bailey, United States customs agent, into the office and the two unwrapped the package and found that it contained fifteen grains of morphine. Bailey's authority extended only to the seizure of articles illegally transported into the United States and, as the package did not disclose, externally or internally, that it came from a foreign country, he decided that he was without jurisdiction in the matter and took no further action, except that he told the sheriff of Hill county of his discovery.
On learning of the contents of the package the sheriff went with Bailey to the postoffice where the postmaster again unwrapped the package and he recognized its contents as morphine. The package was then rewrapped and the sheriff and Bailey waited until Rella Bolton received the package and passed out of the postoffice with it in plain sight, when the sheriff placed her under arrest; Bailey received the package from her and handed it to the sheriff.
Relator contends that the arrest and seizure were lawful under the circumstances and therefore the order of suppression was erroneous and worked gross injustice upon the state in that it deprived the prosecution of evidence on which to convict, for which it has no remedy by appeal or otherwise; while counsel for Rella Bolton, appearing herein for respondents, contends that the arrest was unlawful and the taking of the package constituted an unreasonable seizure, in violation of the Fourth Amendment to the federal Constitution and section *519 7 of Article III of the state Constitution, as state and federal officers were acting jointly. A determination as to which of these positions is correct depends upon the application of the following propositions of law to the facts and circumstances set out above.
1. A peace officer may make an arrest without a warrant either (1) for a public offense committed in his presence, or (2) when a person arrested has committed a felony, although not in his presence, or (3) when a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it. (Sec. 11753, Rev. Codes 1921.)
The possession of morphine, except under certain circumstances enumerated in the statute, constitutes the commission of a felony (sec. 3200, Rev. Codes 1921, and sec. 3202, Id., as amended by Chap. 38, Laws of 1925).
"The utmost that can be exacted of an officer who arrests[1] without a warrant is that the circumstances shall be such that upon them alone he would be justified in making a complaint upon which a warrant might issue," and in either making complaint or making an arrest without a warrant the officer need not have actual personal knowledge of the facts which constituted the offense. (State v. McCaffery,
The "reasonable cause" for believing the party arrested to have committed a felony is the same as "probable cause" for the institution of a criminal prosecution or seizure without process. (5 C.J. 417; State ex rel. Neville v. Mullen, above.)
The necessary elements of the grounds on which the officer may act are a belief in the person's guilt, based either upon facts and circumstances within the officer's own knowledge, or upon information imparted to him by reliable and credible third persons, provided there are no circumstances known to the officer materially to impeach the information received. *520
(Burt v. Smith,
Where an arrest is lawfully made, the arresting officer may[2] take into his possession any articles in the possession of the party arrested which may reasonably be of use on the trial. (State ex rel. Neville v. Mullen, above.)
When, therefore, the sheriff was informed by federal officers,[3] whose reliability and credibility is not questioned, that the package in question contained morphine and he thereafter saw the package in the possession of the person arrested, the facts and circumstances in his possession constituted reasonable cause for his belief that that person had committed, or was then committing, a felony, and he was justified in making the arrest without a warrant, even without his personal inspection of the contents of the package, and, on making the arrest, he was warranted in taking possession of the package and holding it as evidence; indeed, it was his duty to do so.
2. Counsel for respondents, however, urges that, as Rella[4] Bolton told the officer that she did not know what was in the package as she had not opened it, the officer could not know that a crime was being committed.
Section 3200, above, makes possession of the drugs therein enumerated prima facie evidence of guilt and her lack of knowledge on the subject, if it existed, is a matter of defense to be passed upon by the jury. Further, the reasonable or probable cause required "does not depend on the actual state of the case in point of fact, for there may be probable cause for commencing prosecution against a party although subsequent developments may show his absolute innocence" (quoted in Stateex rel. Neville v. Mullen, above).
3. Conceding for the purposes of this opinion that the[5] information that the package contained morphine was originally obtained by the federal officers by illegally prying into a private piece of mail matter, did that illegal act render the evidence, later obtained, subject to suppression? *521
The Fourth Amendment to the Constitution of the United States is a prohibition against federal officers only and has no application to states or state officers. (Hammond Packing Co.
v. State,
Likewise, the similar provisions against unreasonable searches and seizures found in state Constitutions are restrictions upon the activities of state officers alone and cannot be invoked as against independent action by federal officers or private persons. (State v. Gardner,
The provisions of the "Bill of Rights" against unreasonable searches and seizures "was not intended to furnish an asylum for the violators of the law, but a protection against oppression." (Fitzpatrick v. State,
In a recent opinion by the supreme court of the United States it was held that evidence, obtained by New York troopers acting independently and without the knowledge of federal agents and later turned over to the federal officers, was properly suppressed (Gambino v. United States, 275 U.S. ___, 52 A.L.R. 1381,
Of the opinion in Weeks v. United States,
In the case at bar, when the postmaster and the customs agent opened the package addressed to Rella Bolton as "Ruth Foster," it is clear that they were not acting in any manner in aid of the prosecution of a state offense, but solely for the purpose of determining whether a federal law had been violated. Having determined that he had no jurisdiction over the nonmailable matter found in the mail, and knowing that the state law prohibited possession of such article, Bailey *523
notified the state officer that an offense against a state law was about to be committed and thereafter proved his statement by showing the sheriff the contents of the package. It is true that Bailey thereafter remained as an interested spectator and assisted the sheriff to the extent of receiving the package from the person arrested, but the illegal act by which the woman's constitutional rights had been violated, if there was such a violation, had already been accomplished and that without the knowledge, co-operation or collusion of the sheriff and not in his aid. The sheriff's situation with reference to the knowledge obtained was no different than it would have been had a private citizen advised him that, by an illegal entry, such citizen had discovered a cache of stolen goods and thereafter the informer had gone with the sheriff to point out the place and then assisted the sheriff in arresting the thief as he emerged with the stolen goods. Acts of this nature are not such as render the evidence inadmissible and do not constitute a violation of our constitutional provision relied upon. (State v. Gardner, above; Brown v. United States (1926, C.C.A. 9th),
The order of the district court suppressing the evidence is, therefore, annulled.
Order annulled.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS and STARK concur.
Dissenting Opinion
I dissent. As shown by the record, the writ was issued in this case over my protest.
It appears that the assistant postmaster suspicioned the contents of the package which was wrapped in brown paper, tied with string, postmarked Butte, Montana, and mailed special delivery. He spoke to Bailey, United States customs agent at Havre, about it, who in turn told the sheriff, Timmons, feeling that the subject was beyond his authority. Thereupon Timmons accompanied Bailey to the postoffice and the contents *524 of the package were examined and the discovery made, after which Timmons and Bailey waited in the postoffice for someone to call for the package. They had not long to wait. The defendant in the criminal action called for mail; the package was delivered to her, she receipted for it, placed it under her left arm and was leaving the postoffice when she was accosted by the sheriff and placed under arrest, without a warrant of any kind. The sheriff took hold of her arm and told her she was under arrest and Bailey took the package from her. She was then asked as to the contents of the package and replied that she did not know. They took her up to Mr. Bailey's office, again examined the contents of the package, remained there about thirty minutes, and then took her to the county jail.
Bailey, customs officer, testified: "There was no indication on the package that it was of foreign origin; consequently it was not under my jurisdiction"; and that he turned the case over to Sheriff Timmons and thereupon rendered assistance to him. The sheriff admits that it was upon the information so received that he arrested the defendant, and the county attorney stated that it was his intention, unless restrained, to use the evidence so obtained against her in proof of the offense with which she is charged.
While there is some discrepancy in the evidence, as I read the record, the package was opened by Patterson, the postmaster, in the presence of the sheriff. Timmons the sheriff, testified: "Q. When you went out this package, you say, was unwrapped? A. When? Q. At the time you saw it in the postoffice? A. Mr. Patterson opened it while I was there and I looked at it and he wrapped it back up * * *. Q. You say he opened it in your presence? A. Yes, sir. Q. The defendant was not there at that time? A. No."
Bailey testified that it was beyond his province, officially or otherwise, to intermeddle with packages received through the United States mail originating within the United States, and his conduct in opening the package was accordingly most *525 reprehensible. Conceding that Bailey had obtained positive information by his indefensible independent examination of the contents of the package before the inspection thereof made by the sheriff; and conceding further that the sheriff was entitled to act on the information so furnished by Bailey, the record shows that the sheriff (the state officer) was not satisfied with Bailey's report, and did not act solely thereon, but himself went to the postoffice, where the package was opened for his independent inspection. That act constituted the state officer's independent offense. However that may be, the action of the officers in co-operation was in furtherance of the enforcement of a state law.
I fully appreciate the destructive effects upon humanity, both physically and morally, from the use of narcotics, and the great desirability of suppressing the unlawful traffic therein. I have no patience with a peddler of drugs and feel that they are despicable leeches on society; their activities for profit resulting in the destruction of individuals, who, but for drug addiction, would be useful members of society. But, however necessary and desirable to suppress such traffic and punish infractions of the law, it is more important to the stability of the government and the protection of the guaranteed liberties of our people to uphold and apply our constitutional restrictions. The courts of this country should not on any theory of expediency disregard the sacred and inviolable rights of the people, as the preservation of our constitutional guaranties is far more important than the enforcement of any law. I realize that such laws should and must be enforced for the good of society, but I insist, under our system of government, it may only be done in conformity with the requirements of the Constitution. As was well and appropriately stated by Mr. Justice Brandeis, dissenting, in the recent case (April 9, 1928) of Casey v. United States, 275 U.S. ___,
By way of dissent, in the case chiefly relied upon by the relator (State ex rel. Neville v. Mullen,
In Weeks v. United States,
Our late Chief Justice Brantly, in State ex rel. Samlin v.District Court,
"Constitutional provisions for the security of person and property are to be liberally construed, and it is the duty of courts to be watchful for the constitutional rights of the citizen, and against the stealthy encroachments thereon. (Boyd
v. United States,
"The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against the revival of it, so carefully embodied 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 by which, in reality, strike at the substance of the constitutional right." (Byars v. United States, supra.) And "it is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment." (Agnello v. United States, supra.)
Section 3929 of the Revised Statutes of the United States forbids any postmaster or other person to open any letter entrusted to the mail not addressed to himself. Referring to this section of the statute, Mr. Chief Justice Taft, speaking *528
for the supreme court of the United States in the recent case (June 4, 1928) of Olmstead v. United States, Nos. 493, 532, 533, (U.S.) 72 L.Ed. ___,
"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 domicils. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, whereever 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 *529
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." (Mr. Justice Field, in the case of In re Orlando Jackson,
In Byars v. United States, supra, it was held that where a federal officer participates officially with state officers in a search, so that in substance and effect it is their joint operation, the legality of the search and of the use in evidence of the things seized, is to be tested, in federal prosecutions, as it would be if the undertaking were exclusively his own. And in the case of Gambino v. United States, supra, it was held that: "Evidence obtained through wrongful search and seizure by state officers who are co-operating with federal officers must be excluded." I can see no reason for applying a different rule respecting like action by a state officer assisted by a federal officer in prosecutions arising under state law.
It is manifest that the defendant's constitutional rights were invaded by the joint and separate action of state and federal officers. In my opinion the writ should be denied. *530
