*1 3333. Oct. 1929.] [No. DILLON.
STATE v. Pac. [281 474.] Askren, Roswell, for appellant. O.O. Patton, Atty. Dow, Gen., F. H. Asst. Atty.
R. C. Gen., for the State.
OPINION OF THE COURT WATSON, Appellant posses- was convicted of the J. sion of here intoxicating for sale. error liquor The only is in him urged overruling of his motion to return and to which the suppress evidence certain liquors trial sheriff had seized under a search warrant found, court and the con- Attorney apparently General cedes, illegal. to have been motion based overruling trial court’s State understanding “that evi Hammond, No. had laid down the rule dence, obtained, however whether legally illegally, pub referred to has not admissible.” lished; the cause become moot reason having a motion death of the appellant during pendency decision, it is the sole basis of Since rehearing. here, cannot do bet of difference single point It follows: opinion. ter insert it in this than “Botts, The question before us is whether or J. *2 papers rendered inadmissible in evidence party of by reason their been seized in unreason- having able search of his in premises. case which the question civil, arises is the order of the court the search directing and seizure having been made in proceedings supplemental to execution. In the of search and seizure making there can be no question but that appellant’s guar- rights anteed to him 10 by section article 2 Mex- of of the New ico Constitution were violated. Robinson et al. v. Richard- son, 13 Gray fact 454. In there serious (Mass.) is no contention to the That : contrary. section as follows reads people persons, papers, shall be secure in their homes effects, seizures, from unreasonable searches and no war- any place, any person rant thing, or seize or shall issue describing place persons without searched, to be or the things seized, to be showing probable nor without a written cause, supported by oath or affirmation.’
“On this question the jurisdictions courts the several fail to harmonize. No attempt will be herein made discuss or cite the very numerous dealing cases with the subject, but reference is made to the notes appearing 24 A. L. at 1408, R. page and 32 R. A. L. page at 408, with the several cases to which the notse are appended, for a collection the various authori- ties. For some cases decided since of the last the date note, see 275; Voorhies v. U. S. et al. C. 299 (C. A.) F. 56, Warfield, 854; State v. 184 Wis. 198 N. State v. W. 196; 51 N. D. Dinger, 98, W. 199 N. Simmons v. Com- monwealth, 621, 972; State, 203 262 Ky. W. Thomas v. S. 264, 600; State, 27 Cr. 226 Foster Okl. P. v. 270 Okl. 602; 270, Cr. 226 P. Temperani A.) v. C. 299 (C. U. S. 365; al., F. ex v. State rel. District Court et 71 Stange 125, 576; State, 384, Mont. 227 Bush 112 Neb. 199 P. v. 792; 224, Reynolds, N. W. 101 Conn. 125 A. State 636; Griffin, 200, State v. 124 S. E. 35 A. 129 S. C. 1227; Brown, C. 124 E. L. R. S. 87. State S. Supreme “The Court of the United adopted States has a rule of construction excluding from in a consideration criminal case evidence which has been obtained a search and seizure violation Fourth Amendment to the Constitution, Federal that’amendment being substance as the
the same
section of
New Mexico Constitution
above
This
a number
rule
been followed
quoted.
hand,
courts.
state
of the state
On the other
many
doctrine,"
courts of last resort have refused to
accept
admitted
a defendant
permit
obtained.
regard
without
to the means which it has been
themselves, as
with
of the courts even fail to
Many
agree
opinions.
dissenting
is evidenced
number
large
jurisdictions
the several
We have not taken
poll
greater
which side stand the
an effort
to ascertain on
deciding
number. Suffice it
say
time, with
in an hour’s
either
written
point
way might be
it;
sustain
but we
ample
respectable
authority
underlying
fundamental
rather endeavored to discover the
must be governed.
conclusion
by which a correct
principle
*3
indicated
development
by
“The
of the
rule is
federal
S., 116
U.
following
examination of the
cases:
Boyd
746;
616,
524,
Ed.
Adams v. New
U.
6
Ct.
29 L.
S.
S.
575;
585,
372,
York,
375,
L.
24
48
Ed.
192 U. S.
Ct.
S.
344,
383,
341,
L.
S.,
58
34
Ct.
Weeks v.
232 U. S.
S.
U.
1177;
834,
652,
1915C,
1915B,
Ann. Cas.
Ed.
L. R. A.
385,
S.,
40 S.
251 U.
Co. v. U.
S.
Silverthorne Lumber
F.
319;
233
182,
(C.
L.
v. U.
C. A.)
Ct.
Ed.
S.
Flagg
481,
refer-
by
specially adopted
which is
principle
of
in the Silver-
Court
Supreme
ence in the
of the
299,
S.,
41 S.
Case,
255 U.
thorne
and
v. U.
S.
Gouled
be based
261,
That rule seems to
Ct.
“The theory, upon many cases evi- holding ren- dence obtained thereby unlawful is not inadmissible, dered is that case in the trial of a criminal determine the court should not form an stop to issue evidence; but question collateral of the source of the *4 here, has because effort theory that no application criminal in a the evidence is not forth suppressed put have case; has injunction in a civil is asked but cause and, of sup- the effect if would have purpose granted, cases, evidence, obtained, in criminal so pressing now pending. and others of which seem to be threatened therefore, not collateral before the was question guilt. a defendant’s to the question Supreme just applied suggested “The rule York, supra; Adams New of the United States Court States, evi- United supra, in the case of Weeks but dence obtained unlawful search was held to inad- be missible, and the Adams Case was distinguished by fact that there the objection admission of evi- dence was trial, first made at the while in the Case Weeks a motion had been made the return of the evi- seized prior dence to the trial. The distinction so made been frequently criticized on the ground that the issue to the source of the evidence did not cease to be collateral it simply because was raised and determined ahead of issue; but, main founded, even if that criticism it be well has no application stated, here for the reason already in the case before us the issue to the source of the evidence is a not raised in criminal case at all.
“It was furthermore said in the Weeks Case ‘if letters and private documents can thus held be seized and used in evidence a citizen of- accused of an fense, Amendment, the protection of 4th his declaring seizures, right secure such searches value, and, concerned, of no so far thus placed as those as well might be if stricken from the Constitution.’ But true, that be it would follow that the law logically pro- hibiting the indi- forceful invasion of one’s home stricken’; vidual ‘is of value’ but ‘might as well be we never expect argu- have heard never to hear that ment advanced. Under the law citizen and both the state have their remedies. To hold the evidence admissible is not to (un- sanction the unlawful search and seizures evidence so guaranty less the conviction on one obtained, in- a hereafter since the proposition discussed), jured trespass. citizen has'his for the remedy there can be no
“Again question but ob- that evidence tained a search and seizure which violates the consti- tutional is obtained if unlawfully; we should but hold that the mere unlawfulness its ren- procurement inadmissible, then, consistent, ders in order to if arise, question should must we hold evidence necessarily inadmissible which has trespass by on a individual, private trespass because such also unlawful. say, exception But the books all far as without so find, been able that evidence obtained unlawfully individual is not rendered inadmissible. thereby *5 So, under consideration if it is to be held the evidence than inadmissible, ground on other it must be unlawfully that it was merely obtained. the problem
“It to us that the correct solution of appears object sought the depends determination of the the people adopting attained towas object searches seizures. If the unreasonable prop- security person violations of ‘prevent the home erty sanctity and unlawful invasion the law, under legislative the citizen officers acting such sanction,- remedy against judicial or and to give York, v. New attempted’ when usurpations (Adams constitutional then of the citizen’s the violation supra), in- of the right completion has been with completed vasion, same on the and the so obtained evidence stands If, on unlawfully. any basis as other evidence obtained hand, the citizen to guarantee other object un- through obtained conviction seizure, the evidence so search and reasonable admission and its footing, on an altogether stands different violation, the violator would gist becomes the of the who be, search, judge but the made not the officer who the evidence. admits Coxirt Supreme of the
“Notwithstanding language it Case, quoted supra, of the United States in Adams rule development recent of' the would seem that the more Amendment to that court that the Fourth requires construction be made by Constitution of the United States : follows to read somewhat as right of the conviction of ‘The be secure people part by or in unreasonable crime on evidence obtained whole shall searches and seizures shall not violated no warrants upon probable cause, supported by affirmation, oath issue but or describing place persons properly be searched and things to' be seized.’ but, “No oxie case has found xxsing language been opinions consideration
taking language into rule has de- cases which the through several said that final federal we believe must be veloped, is we indicated. Constitution interpretation overruled, specifically has never been The Adams Case *6 but, if not overruled in it has at effect, been dis- least tinguished to death.
“The to case which jurists have looked historical as the for foundation the guaranty is Entick v.' Carrington, 19 How. St. Tr. decided in eleven just years prior separation. to the That anwas action for damages one brought been by premises whose had searched for warrant, evidence under an illegal against the officials search. making the of Nothing argument was said the counsel, inor of to im- opinion relative munity subject from conviction on evidence so ob- tained, and, as if been the that had already suggested, object of the that done wrong it would seem guaranty, was court in by the admission the evidence and not in the action of seiz- searching officers for and however, latter, it. ing were the defendants. “The Case Boyd quotes extensively from Lord Cam- from opinion, den’s which it plainly appears gen- that the eral warrant .under which the search had made was illegal, and that Entick premises whose been searched had for libel, evidence of seditious was entitled maintain to an action in damages for trespass act- against officers warrant; ing under the illegal neither quotation but in the nor in other any part Lordship’s of his do we find to anything the use of that justify authority case as that evidence holding unlawful is rendered thereby party inadmissible searched; there to language but which seems throw- in insist- light upon sought be attained object to ing a unreasonable obtaining seizures; and, inter- if correct in our searches and we be used, the case is rather pretation authority of the language that reached for a conclusion to directly contrary said: Lord Camden Supreme Court of the United States. “ urged ‘Lastly, argument utility, such a it that as detecting by discovering a means of evidence. search is offenders shewn, the law I wish some cases had been where forceth process. custody by process out of the owner’s There is no pre- tried, papers has been but never causes. often civil adversary got pos- Nay, vailed. where the force or fraud has evidence, way get your proper own there is no session back but action. “ of; proceeding heard never law such ‘In the criminal rape, murder, crimes, yet such for instance there are some per- say forgery house-breaking, nothing robbery, libelling. But our law jury, than more atrocious that are help provided paper-search forward con- in these cases viction. “ gentleness proceedeth the law from the ‘Whether power criminals, such from a consideration towards pub- pernicious useful to the innocent than more would be say. lic, I will obligeth no man to accuse very certain, the law ‘It necessary compelling himself; self-accusa- because falling guilty, tion, upon would be the innocent well as the unjust; seem, that search for it should evi- both cruel and principle. inno- There too the same *7 dence is disallowed the guilty.' be confounded with the cent would what reason
“Now is it his that for Lordship assigns rule that a search the for evidence is ? He says disallowed it is for the same obliged reason that one will to not be accuse himself compelling 'because the means of necessary self-accusation, the as well as the falling upon innocent be both unjust,’ unescap- would cruel and the guilty, and construction of is a for evi- language able his that dence is disallowed means secur- because the necessary it falls and ing upon guilty the innocent as as the well a unjust. Now, would be both cruel and wherein would innocent? unjust search for cruel to the evidence be and admission, because, ordinary case its in the Surely least, as Lordship speaking, at in the his case where and a the disclose no evidence search of innocent would in the ad- admit. hardship there would be none to ; mission, on the only guilty if a fall is would hardship, unjust to cruel and but the means of it would obtaining much dis- innocent, would be as his privacy the because guilty. the of the privacy would search as turbed the evidence, the and not the obtaining the means of in and cruelty thereof, that results use made subsequent to innocent. injustice in de- assistance further historical interest and
“Of in object termining people adopting Massachusetts, Otis, in fact native of that a James Boston, adop- thirty years before trial held Consti- to Federal Fourth Amendment tion of the then tution, of assistance of the writs legality testing used being officers of the Crown as a for secur- ing evidence against Colonists, made a which speech fire ‘set to a torch which is still burning, and will burn, continue to for in that masterful effort he impressed the American heart the great lesson of resistance to tyranny outrage.’ Constitution, and 2 Watson on the 1415. It was due powerful largely influence this speech that the Fourth Amendment adopted. came to be Id. In his speech, pertinent part of which is in 2 Wat- quoted at son, beginning he page argued everyone armed with such warrant or writ in a may tyrant be a control, legal manner and may imprison any- murder realm, one within the is accountable and to no person his doings; every might thereby man secure reign his around petty terror desolation tyranny spread him, houses, etc., all daytime enter at might all assist him. And: will and command English liberty ‘Now one of the essential most branches castle; freedom of one’s A guarded house. man’s house is his prince quiet, whilst he is he well as a is as his castle. writ, totally legal, This if it should be declared would annihilate privilege. may this Custom-house officers enter our houses when they please; permit entry. are commanded their Their menial may may enter, locks, bars, everything servants in their break way; they through revenge, man, and whether break malice or * * * inquire. open! Every can What no man does a'scene prompted by humor, inspect revenge, ill or wantonness house, may get neighbor’s a writ of inside his assistance. Oth- self-defense; arbitrary provoke will ers ask it in one exertion will society *8 another, until be in in involved tumult and blood.’ in this “Nothifig speech suggests that to the opposition the of assistance writs was based on the of criminals right to be immune from conviction through evidence obtained Massachusetts, the by then, writ. the may be said American birthplace of the Fourth Amendment the to Federal Constitution similar provisions the various of Constitutions, state that commonwealth early adopted and has since adhered the consistently to rule that evidence obtained an unlawful search by is rendered thereby inadmissible, as aby disclosed line cases from of Com. Dana, 329, in Metc. decided to Com. v. (Mass.) 507, 141 in Donnelly, 246 Mass. N. E. decided 1923. great our for of “Notwithstanding respect the learning the several high contrary, courts which have held to the have been the of brought to conclusion that the object constitutional unreasonable searches guaranty against the is not to the use a citizen’s prevent and seizures of him, the evidence but unlawful against to make papers privacy invasion of his governmental premises with the of-his what is done goods, irrespective'of taking derive or the use made of them. The innocent could guar- benefit of the constitutional interpretation from for, and the surely into the rule of evidence contended anty to, be were never intended to are not entitled guilty equally a which are not shared given protection benefit and Mr. what justified' the That only innocent. could be self- in Jeremy Bentham, discussing privilege called (Wig. 2251), incrimination on Ev. § Ed.] [2d pertinent argument Reason. is more Fox Hunter’s His guar- to a discussion of present discussion than to have self-incrimination, would and doubtless anty against contended of evidence forward the rule put for, claimed that evidence he ever it had heard party inadmissible search was by unreasonable searched. He said: introducing upon in ‘The Fox Hunter’s Reason —This consists ‘fairness,’ legal in carpet procedure in the of sense the idea sportsmen. fair a The fox is to have used which word is analogy) (so what close is life: he must chance for his way length for ex- certain to run a is called ‘law’ —leave escape. under press purpose giving While a him chance for convicting pursuit, be ‘unfair’ as it would he must not be shot: time, burglary court five minutes’ a a hen-roost him of on being rational, sporting code, these laws In the
of conscience. end; professed obviously end. Amusement is conducive to it; dispatch, degree delay a quantity essential a is certain delay reducing quantity mini- allowed dispatch below the * * * persons, view) (in mum, this different fatal to it would be use; a the use of fox is their a fox and criminal have both hunted; be tried.’ the use of criminal is
“Our conclusion that the under consideration which not inadmissible account of obtained, denying and the trial court was correct its petition suppression. intended that we “Nothing have said and seizure unlawful search to excuse condone the under Not- produced the evidence consideration. *9 not is have concluded that withstanding we rendered inadmissible by the method of its procurement, it still remains as a fact the appellant’s constitutional have been rights violated. remedies flagrantly what Just has it be he would not for us in case. proper to decide Some authorities indicate that remedies possibly the same as other trespasser. against any “It follows that the and judgment order of the court affirmed, below should be and it is so ordered.” to the Adhering opinion, in foregoing which the constituted, as then unanimous, we cannot sustain the contention that the here sub- ruling is complained versive of either of the immunities ques- constitutional self-incrimination, tion. As to compulsory we see Barela, reason to what modify supra. was said State As to and Constitu- unreasonable searches ^seizures, still ju- tion stands a protection against legislative dicial acts calculated to authorize them. Since former Botts wrote the foregoing, Justice controversy renewed Supreme Court States;
the United in a resulting five to four decision. Olmstead States, United 277 U. S. 48 S. Ct. 575, 72 L. 944. Ed. majority The hold that the limit construction of the Fourth and Fifth Amendments was reached in Gouled v. U. supra. S. The seem to minority hold that whatever constitutes invasion of privacy Amendment, comes within the spirit of Fourth an instance of the avoided, evil sought stop- to be must be ped by the courts, must not permitted to aid in enforcement of the criminal laws. Mr. Holmes Justice goes so far as to say he cannot “between distinguish the government as prosecutor and the government judge.” As between the two views reflected in the several opinions, we sense a difference. first striking thought of the minority is to what Mr. purify justice prevent Holmes calls while “dirty majority, business.” Justice taken, surrendering ground already concerned enforcement, difficulty way in the of law put construction. would not increase it more liberal It regretted that those concerned law en- forcement individual frequently disregard rights. so *10 is also matter for painful reflection law enforcement difficult. It zeal to becoming increasingly is easy, evil, promote check one to to the other. This we desire avoid. We or would not the high importance minimize the sacred character of the constitutional nor guaranties; offer for offer premium them. Nor we violating would easy air means consequences of crime. To escaping check the the two one evil without to the other adding must de- be with. When called to separately dealt we termine the or innocence accused guilt person, it, need the either suppress evidence. seems illogical which affords compensation for for the law trespass, another business” remedy, punishment “dirty officials, of dis- court have other whom the courts Legis- If let the ciplining. required, other remedies are lature devise them.
In the case at bar the sheriff who obtained the writ served it is not said to have showing made sufficient probable cause. That probable cause existed is demonstrat- ed the return. He found that the warrant erroneous- ly described the 8” premises as “Lot to read altered it “Lot 6.” In he law trespass, committed a answer- and is able for it according to the enormity of his offense and inflicted, the injury as a shall Does not jury determine. that satisfy the Constitution? with What that to do before question the court in this case? According for, the rule free, contended appellant would go trespass would from probably again. never be heard Neither nor public wrong prop- would be effect, redressed, erly would, in other. but one offset the Appellant is no less victim guilty he has been the because still a unlawful unlawful search search. The trespass, in appellant’s has resulted conviction. though com- Appellant still though should be entitled punished, case and circumstances of the pensation according to the the injury done.
It would be indeed highly desirable if uni- there were formity in courts, the state and federal particularly view of the concurrent powers Congress the states in the enforcement of Eighteenth Amendment. If by attained, to the federal adhering rule uniformity could be n not now should do so. But that result is perhaps we make could contribution prospect. slight diffi- enhanced is more than uniformity offset rights of in law enforcement. If the constitutional culty involved, considerations were practical the people, really in- they Considering would excluded. evils, we volved, choice between it as a considering the lesser. choose what we deem force, 4a, pro then c. Laws Section vided that *11 “* * * any search warrant obtained reason the evidence any
may
any
competent
jurisdiction,
action
court of
used
brought
provisions of
Act.”
under
that,
It is
this section
urged
implication,
prohibits
illegal
the use
use of an
obtained
portion
warrant. We do not think so.
quoted
Such would have
the section is affirmative
form.
cases
In such
without
declaration
it.
legislative
rule
exclusive. State
not
the stated condition is
deemed
could
N.
BICKLEY, concur. J., C. J., and SIMMS, participate. did not JJ., CATRON 3363. Oct. 1929.] [No.
STATE MARCUS. Pac. 454.] [281