State v. Lock

MISSOURI, OP COURT 400 SUPREME Look. State v. LOCK, ANNA THE LOCK STATE v. WILLIAM Appellants. February 11, Banc, 1924. In “probable Cause. words SEARCH WARRANT: Probable The 1. Constitution, declar- cause” in Article used Section any place ing issue . . shall . that “no warrant to search by cause, probable supported or affirmation oath . . without . writing,” facts and circum- the existence of such reduced to mean mind, belief in a reasonable stances as would excite.the prose- charged guilty is to be for which he is of the crime fact; question law and mixed Probable cause is a cuted. probable cause is circumstances stated show the facts and whether by jury, question whether sufficient of fact to be found a may probable be inferred from which cause have been stated facts by law, question the court. to be determined is a -: Belief: Evidence. The sworn statement -: On 2. attorney, ground- upon prosecuting is the search warrant which “verily ed, in a named he that he believes” in which states manufactured,” stating liquors “intoxicating without are residence based, upon which said is does belief facts or circumstances judicially may probable be in- cause facts from which not state ferred, of warrant issuance a to the authorize and does not residence, and search and the seizure of such said to search sheriff illegal, things pursuance the warrant are dis- in articles illegal in cannot be used as evidence search covered prosecution of the defendant. Notwithstanding Judicial Function. -: -: Statute: Sec- 3. declaring 1921, p. that “no warrant shall be Laws tion occupied private dwelling such . house as . . to search issued intoxicating place in which is ... residence unless such manufactured,” question liquors of the existence of a are function, judicial determined probable to be a court is a cause only, question jurisdiction competent unless such sub- court, issued sworn state- to the mitted illegal, attorney alone, prosecuting ment of pursuance* dwelling thereto sheriff made house statute, respect, up illegal. does not measure this likewise “probable requirement, must be there the constitutional determined, judicially the search and that warrant to’ be cause” to, writing” “supported reduced oath or affidavit must be sufficient and circumstances facts set forth opinion cause. to constitute court TERM, Yol. v. Lock. Description

4. -: of Place. The words of the de- Constitution claring any place . . . shall issue that “no warrant to search place nearly may permit describing the be” a search without only to be to made when the search warrant describes the description identify particularity; the should searched with certainty property that no mistake clearness and with 'sufficient enter “to the build- A warrant which commands sheriff ensue. residence, house, outbuildings, ing dwelling barn and all known as owned, vehicle, occupied car, premises, or under the con- farm and Missouri,” Lock, County, does contain a trol of Bill Webster not description to be searched. sufficient Wording. Confused A search warrant and -: Affidavit: 5. inartificially paragraphs are disconnected and so whose affidavit judicial sup- they meaningless unless construction drawn words, plies are insufficient. deputies Consent: Waiver. the sheriff and -his -: Where 6. home, read a search warrant at the door o'f defendant’s knock premises, have come to search inform him that him and coercion, implied than there is more where and coercion there is sheriff, necessary, by to enter warrant commands the search force; no case there is element of consent or and in such waiver. Suppress: Illegal: Motion to Collateral -: — : Evidence: Issue. 7. illegal by suppress obtained as evidence articles motion to warrant, issue, search, not a search collateral but under a void original independent issue; an trial raises before if made void, because the constitutional re warrant the search when observed, quirement cause is not to the existence reasons, suppress the motion to as evidence other is void for by illegal sustained, search should be obtained the articles subsequent at the excluded trial. Courts thus obtained the evidence justice and to enforce the laws of the to administer established objection accused, receive, over evidence State will purpose public in violation of law officer for the obtained alleged Any securing offender. of an other course conviction away guaranty against the constitutional un whittle would seizure, compel and would also defendant search and reasonable Pomeroy, testify against- [Distinguishing State himself. right Sharpless, 212 Mo. wherein the and State Mo. having officer, public without made a lawful arrest after of a warrant, accused or the room to search search seize, 'by him, occupied previously and to and to use at trial as him,, forged lottery charged against papers, the crime evidence discovered, thus articles an other contraband tickets disclaiming approved, nounced, the obiter announce Sup Mo. —26. MISSOURI, OF COURT SUPREME v. Lack. illegality no warrant was the search that “the ment therein excluding papers evidence.”] good seized reason for only relied evidence -: Conviction. Where illegal and void was obtained an defendant convict State to suppress timely warrant, such motion filed a and he evidence, stand. cannot a conviction Skvnker, C. E. Appeal Court.—Eon. Circuit from Webster Judge. Reversed and remanded. appellants. Dugan Seth V. Conrad

G. S. testimony se- prevent (1) introduction of To illegal void cured question reason of quash such raised motion to must be thereby, testimony procured suppress and warrant and to testimony. v. objection State introduction to People Pomeroy, 575; Ed. 48 Adams, Mo. v. Law 489; 130 right (2) 657. The 58 Ed. v. Law Weeks, United States . papers persons, people houses, in their to secure be against seizures unreasonable searches effects without warrant shall issue shall not be violated, and no probable supported affirmation, oath or cause, thing place seized, to be searched, be particularly Fourth Amendment must be described. Constitution; Art. Mo. Constitution; 11, 2, U. S. Sec. United 532; Bram v. 168 U. S. Weeks v. States, United Ed. 656; 232 58 United v. States, 391, U. S. Law States compelled Wong, (3) party No can 94 Fed. 834. be himself; criminal case to a witness nor can be deprived liberty property due he be without life, process Constitution; Amendment of law. Fifth U. S. Rykow- 23, 2, Constitution; Sec. art. Mo. United States v. ski; 866; 267 v. 819. Slusser, Fed. United 270 Fed. States (4) statute which the affidavit The under filed provides only for warrant was issued this case building provides fur- search of a or structure. And 403 1923. TERM, Yol. v. Lack. State private search a shall issued to he warrant ther that no application upon occupied unless dwelling such, house place used good such reason is shown to the court resi- purpose such or unless law, violation of for intoxicating place where resort, dence p. 416. liquors 1921, sec. are manufactured. Laws warrant (5) purported which the affidavit fatally it contained because defective was based was could cause- of no fact from which statement p. v. Veeder 416; sec. he inferred. Laws United Kelih, 252 Fed. States v. 418; United Fed. 484. Henry Attorney-General, and BarreH,

Jesse W. J. Attorney-General, respondent. Caruthers, Assistant (1) permit sheriff It was not error deputies testify premises to the articles found permit appellants, the introduction in and to evidence Sharpless, v. v. 200'; such.articles. State Mo. State Pomeroy, App. 500; Kramer, 130Mo. State v. 206Mo. 54; (2) Pope, v. 254. State 243 S. W. cause should This Springfield Appeals, transferred Court of for the charged no reason that the offense a misdemeanor properly question constitutional been has raised. Secs. S. v. 2411,4107,4108, 1919; R. State Swift & 270 Mo. Co., Cordage Lohmeyer 694; v. Co., Mo. 685; Littlefield 272 Mo. Littlefield, 163; 215 Mo. Gamma, day of November, DAYIS, C. On the 8th 1921, Prosecuting Attorney County infor- Webster of filed consisting mation, in the counts, of two circuit court. The charged first count, in substance, William Lock and Anna appellants, possession having Lock, in their a still, liquor. making intoxicating used etc., and fit for use charged having intoxicating The second count them with liquor possession. in their upon appellants

The were convicted, trial, before jury, court and a evidence obtained execution SUPREME COURT OF MISSOURI,

State v. Lock. by pursu- of a search warrant the circuit issued clerk in prosecuting attorney, ance to an affidavit filed the said in the officeof circuit directed of clerk, said sheriff county, commanding’ said him to search the residence, occupied buildings premises, other and under owned, County. the control Bill Lock, Webster prosecuting sworn statement attorney herewith set forth: Attorney. Prosecuting “Statement oe County, “To the Clerk of the Circuit Missouri: Court Webster n “I, Smith, elected, Prosecuting Attorney duly J..P. commis- sioned, sworn, qualified, acting installed and as such in and County Webster, Missouri, for the in the State of state that verily building residence, I dwelling, barn, believe that in the known as outbuildings, premises, and the and farm Lock, buggy vehicles, owned and under the control of Bill carriages, automobile owned and under control said Bill Lock, Missouri, premises farm, County, on off said in Webster verily intoxicating liquors affiant as believes were being manufactured, kept contrary provisions sold and to the Chapter of Article VII of 52 of the Revised Statutes of Mis- souri, 1919, Legislature and as amended the acts 1921; verily “And further affiant in said believes build- ing buildings premises said farm above described used, still, worm, tub, kept, tub, doubler worm mash tub, vessel, fermenting manufacturing and fixtures used and fit for use in the producing intoxicating liquors, said dwell- public resort, ing place' intoxicating is a and a in which house manufactured, verily believes, liquors contrary as affiant Chapter 52 of Revised to Article Statutes of Mis- VII souri, Legislature amended Acts and as 1921, contrary to law. Smith, Prosecuting Attorney. “J. P. day sworn me this to before 4th “Subscribed of No- my vember, official D. Witness hand ,1921. A. and the seal of

my office. Corbett, Clerk, A. “R. Circuit “By Corbett, Deputy. Marion SEAL: COURT “CIRCUIT County, Mo. “Webster Nov. “PILED: Corbett, Circuit Clerk.” “R. A. by the issued circuit The search clerk the sheriff, thereon, follows: return Cases). (Liquor “Search Warrant: Missouri, “State of } n ss n Webster, County of J of Missouri to the Sheriff “The of Webster County, GREETING: Yol. 302] 1923. TERM,

State v. Lock. “Whereas, Smith, Attorney Prosecuting J. P. of Webster County, Missouri, day November, 1921, the 4th of filed says my by oath, statement in office verified in which he verily being intoxicating liquors that he believes are manufactured, kept contrary provisions Ar- and to of sold Missouri, Chapter ticle VII of 1919, 52 of the Revised Statutes of Missouri, by Legislature and amended the of the Acts of 1921, buildings and in are said hereinafter described used, doubler, tub, tub, kept, still, tub, fermenting worm mash manufacturing vessel, and fixtures used fit for in the and use producing intoxicating liquors, contrary of and to VII Article Missouri, Chapter amend- 52 of the Revised Statutes of and as Missouri, 1921, Legislature ed the Acts of of dwelling, building buildings, and barn and out- residence known cars, vehicles, wagons premises or oc- and owned County, cupied Lock,'in Bill and the control of Webster under contrary Missouri, to law. (cid:127) you, in the of “This therefore command name force, necessary, building Missouri, enter of State known as residence, house, dwelling barn and out- all occupied car, vehicles, owned, buildings, premises, farm Missouri, Lock, County, Bill of Webster the control under malt, liquors, mash, grain any intoxicating other and if any any point products, unfit to such for fermented fruit use save manufacturing intoxicating liquors, of tub, tub, tub, fermenting doubler, worm, still, worm mash raisins, any syrup, hops, fixtures, sugar or vessel or kind, fruits, grain use manu- of fit for in the other and intoxicating liquors. facturing prop- hereby and hold to take such commanded “You provisions violating prosecutions erty Ar- all until Chapter Revised Statutes of the State ticle VII of Legislature Missouri, Acts of the and amended same as above directed. to hold .the therein to be found my Whereof, set hand as have hereunto I “In witness County, and affixed the Court of Webster Circuit Clerk day November, my office, this 4th at Court of said seal A. D. Corbett, “R. A. Circuit Clerk. Deputy. “By Corbett, Marion SEAL: COURT “CIRCUIT County, Mo. Webster “Return County certify within writ executed I “I searching November, day of 4th on the of Webster buildings on residence, the land of other smoke-house copper seizing finding, taking one still with Bill Lock whiskey thereto, gallons of attachments other worm and 1% 10-gallons used mash and other vessels jars, three in fruit liquor. manufacturing in the Edmonds, “Ira L. County, Mo.” of Webster “Sheriff appellants January, filed day 16th On the return warrant, and quash the search motion their suppress any evi- all and to thereon, of the sheriff COURT OP MISSOURI, SUPREME Lock. State v. acting and by under and those the sheriff deuce obtained by warrant. said with under and virtue of him, caption, omitting follows: quash, as Said motion to for case in this and the defendants “Come now represent purpose only, and show of motion this prepared by charged information court that stand Attorney County, by Prosecuting of and Webster filed un- offense crime and court, with the of Missouri, this possession having lawfully using and a still in their and apparatus, manufacture in the other and fit to use used production liquors; intoxicating with also, and and, of intoxicating unlawfully having of crime and offense liquors purposes by beverage still and use of such apparatus, Stat- all in violation Revised 6588, of Section page by of amended the Laws 1919, Missouri, 1921, tes of Mis- of 414; that the officers this court and State County souri, to-wit: the Sheriff of and his de- Webster puties, persons acting under and and other him posses- unlawfully have in their took and direction, and which the State of and sion, Missouri intends use introduce in on evidence trial of this a certain cause, apparatus, charged by still and claimed said informa- and possessed by tion to have and been used these defendants, 10-gallon alleged and also mash in- three barrels and charged liquors toxicating claimed and been in to have possession of these defendants. ‘‘These defendants further state that the mash tubs, liquor, intoxicating any, unlawfully mash, were seized possession by taken and officers said on November private premises dwelling 1921, at and in house and County, Lock, of William Webster Missouri, occupied was at, and used these defendants their private .property home and and that all residence; of said illegally unlawfully above was mentioned seized and is now held the said under and officers virtue of illegal and void search issued the clerk of this court under date of Nov. 4, 1921, and is file in illegal case; this that search warrant said being void as in violation of the Fourth and Fifth amend- TEEM, Yol. OCTOBEB v. Lock. United merits to Constitution Article 2, Section Article Section providing Missouri, Constitution of the State persons, effects people homes shall their be secure no and that seizures, searches and from unreasonable thing person any seize warrant to search supported by oath probable Cause, issue without shall writing; providing further or affirmation reduced compelled testify furnish no shall criminal cause. himself evidence said state and show “Defendants further supported by and purports been to have search warrant Smith, of Prosecut- the affidavit J. P. on oath and based pretended County, Attorney affi- ing but such of Webster nullity. davit is a the further state show

“These defendants and being viola- in search warrant is void as court that said page 416, Missouri, tion of Section of Laws a providing search no warrant shall issued to occupied private as dwelling such as same is used unless purposes shop, for other a store or than hotel, private dwelling'; say and these show and defendants private dwelling so Lock not William said of private wholly dwelling time,, and at used, was, occupied nor search on warrant issued such; was said by any application any required court court, dwelling’. any private order to search dwelling deny “These further that said defendants and residence William and Anna of Lock Lock atwas any time such and seizure, of search at time, public pretended and resort, as stated affidavit,, premises any that said search warrant does describe person. Lock or William other “These defendants further state and show to by by court that the information filed herein Pros ecuting Attorney County, of Webster these Missouri, charged unlawfully pos using defendants stand sessing with and ap on Nov. 4, 1921, a still, tubs and worm, other paratus production fit to used and use in the intoxieat MISSOURI, SUPREME COURT OF

State v. Lock. . with, unlawfully man there ing liquors, then and and also by beverage purposes, liquors ufacturing intoxicating other and by tubs, worm, still, such of and use of means void by acting of said virtue apparatus. and under Tahat County and Webster the Sheriff of warrant, right unlawfully without deputies and on 4,1921, did Nov. Constitution and authority, violation and and said search the enter into and State, laws of this premises private dwelling Lock of said William house and unlawfully seize, then and there Lock did and Anna and fruit and tubs cans, some hold, now a certain still liquors, intoxicating sheriff jars, alleged said and the void search warrant issued made his return said £By stating: searching aforesaid, him as executed buildings other on the land residence, smoke-house taking seizing finding one of Bill still Lock and gallons thereto; copper worm and other attachments 3-J 10-gallons whiskey jars; three in fruit of mash liquor;’ and manufacture other used vessels things found and seized the sheriff so while unlawfully searching dwelling premises of house and acting under while William Lock and and things virtue void are the same intox said liquors icating infor which these defendants are charged unlawfully having manufactured mation with beverage purposes. and héld for ££ say These defendants therefore the show to and by proceeding Missouri court that the State of this charges prove and will endeavor that the so still, seized by by held the and sheriff under and void virtue of said property warrant, unlawful search and was and is the of possession the Lock, .defendant William and their and purposes for the this use, motion and in in order to protected rights against voke their constitutional and be the unreasonable and unlawful search and seizure, aforesaid, admit and aver that were, at the time the same were and seized, now the owners and entitled possession intoxicating the liquors, said still and so by seized by and now held the said sheriff under and 1923. TERM, Yol. y. Lock. issued warrant and void search

virtue of the unlawful in this case. and executed pray the court for the defendants

“Wherefore holding quashing warrant, the search and void said order illegal- so defendants, these that all evidence per- deputies, ly by his other or said sheriff and obtained acting by under such warrant, search with him, sons consequence executing thereof, same or in the and while suppressed trial these defend- excluded dis- of Missouri be not allowed that the State ants,.and to. ag'ainst put any or these defendants, close or evidence knowledge, information relative to them, by deputies charged, his sheriff, offence obtained said persons, executing of or the said other virtue while consequence or in connected the same. ’’

‘‘ Attorney at Law. Pukd Hays, G-. quash hearing the motion to On suppress testimony virtue obtained warrant and part the defense the evidence on tended thereof, show: attorney, prosecuting The statement sworn were return thereon the sheriff’s

the search warrant and introduced. in substance

2. Defendant William*Lock said private Dis- McDaniel he residence in the School owned a family, occupied himself, wife and trict, public mash still, a hotel resort; not used things smoke- other found the sheriff were yard. house or sheriff evidence to show that the tended State’s the return on warrant.

made the search the search objected excepted, because war- Defendant the search comply illegal rant was and void and with'the did Objection Missouri. overruled. Constitution or laws of Continuing he statement said sheriff grainery, whiskey found vat smoke-house or half-gallon quart-jars, barrels and mash, two and the MISSOURI, SUPREME COURT OP State Lock. Defend- grainery, worm outside. and and the tubs ex- objected, and the evidence ant strike out moved to and cepted ruling, the facts reason that all to the knowledge came in evidence to circumstances related illegal warrant reason and of a void witness issued clerk. the- day court -January,, trial

On the 16th quash warrant, search overruled motion the said to suppress any and under all evidence obtained and to and defend- virtue to the court the which action of thereof, objected excepted. ants and day January, tried was

On .the the cause 1922-, 17th jury. before the court and a impaneled jury sheriff,

After had,been and Ira L. had sworn tes- first been Edmonds, witness, position, tify, and stated name and official had placed hands that a search warrant been in his had property did what he search the Lock, "William ob- executing in jected reference defendants warrant to further because the search evidence, illegal was void in violation of the Constitution page at Laws of Missouri and the the Session law of 1921. part show

The evidence tends to that: November search warrant .to 4, 1921, On dwelling premises house and of William Lock placed company in the with a hands of the who sheriff, deputy sheriff and a constable went to the residence p. door, at about nine o’clock at m., defendant knocked they they war- told who were, defendant had a made it to a search rant, him, read house, nothing. The searchers then made found jars, outbuilding, some barn and where found whiskey, mash still hidden and a about worm, premises. The sheriff told Mrs. Lock that if did she things get tell take him where were and he them, would jail. during her Mrs. Lock, this was dressed time, night her clothes. 411 TERM,

Yol. v. Lock. State exception objection defendants Over whiskey, introduced in evidence, court allowed jars, vat, worm and identified sheriff. still, testify only Anna Defendant Lock was witness tended to show that defendants. Her evidence she County, District, lived the McDaniel Webster School years; had for nine that was the wife William she deputies Lock; that she the sheriff and remembered night; coming past there about nine one she half try whiskey any thing; did not to hide or other that she acted under the direction of her husband. provides

I. The of Missouri in Sec- Constitution tion 11 of Article 2 that: “No warrant to search place describing . . . shall issue without nearly may be; to be searched as as prodable probable cause, supported nor without writing.” affirmation reduced to oath or character, equal importance, in cases of this Of person no shall Section Article 2: “That be com- 23, pelled against testify himself in "a criminal cause.” Pomeroy, 130 Mo. 32 498,

It stated State supra, as a W. is intended re 11, S. Section powers government,’and not a striction re act of an individual. on the unauthorized In straint S. l. c. the same McDowell, Burdeau v. 256 U. stating: conclusion the court is reached, protection against gives “The Fourth Amendment pre- and as seizures, unlawful searches shown (Boyd 616; 116 S. Adams vious cases v. United U. States, v. United States, v. New 192 U. S. Weeks York, 585; 228 457; U. S. U. S. Johnson v. United 383; States, 7; 247 U. S. Silverthorne Lum- States, Perlman United 251 U. S. Gouled v. United States, 385; ber Co. v. United applies govern- 298), protection U. its S. history clearly origin show that it mental action. Its upon the activities of sover- intended a restraint eign up- authority, intended to be limitation was not agencies; governmental au- such on other than MISSOURI,' OP COURT SUPREME v. Lock. thority purpose Amendment-to the Fourth it was the occupa- right in the of the unmolested citizen secure the property, possession dwelling of his tion of his process duly subject right issued.” to the seizure cause, Webster, as defined facts and as would ex- existence of such circumstances acting reasonable mind on the facts the belief cite knowledge prosecutor, within the prose- charged guilty of the crime for which he was was cuted. by “supported” is defined “to Webster as verb

verify or to substantiate.” prove “Verify” be “to confirm or true;” —“to compe- by authority or of,

establish affirmation by proof.” evidence;” “to confirm substantiate tent establish the existence or truth “Substantiate” —“to verify.” competent by “to evidence;” true or of, not need “oath” or “affirmation” do de- The words writing,” fining. “reduced to include the The words deposition witness. of a affidavit is Mo. c. said: Bieber, 326, l. In Hanser probable question cause is a one of law mixed “The alleged prob the circumstances show and fact. Whether jury. question be of fact to found cause able is probable circumstances amount such Whether, true, ” question determined the court. of law to be is cause question probable cause a mixed of fact That question proposition. As the law states law probable dependent cause facts, the existence magistrate may first deter- without the not be inferred may mining from which it facts are stated that sufficient arise. not sworn to. Of warrant, served,

The search supported by requisite oath or affirma- it is not itself, prosecuting attorney, statement of tion. The sworn support issued, which the search warrant may prob- look for only we to which verified document any of fact from statement if it cause; able contains complies probable may inferred, it cause Yol. OCTOBER TERM, 1923.

State v. Lock. the Constitution. no statement If of fact is stated probable may legally from which cause therein, be in- rights, ferred, the Constitution and there- defendant’s been have violated. The under, verified how- statement, contains no statement of fact. ever, itWhile follows the whereby it sets forth no fact or statute, circumstance magistrate may probable determine the cause. His Prosecuting Attorney, statement is: J. P. “I, Smith, verily . . building . state that I believe that in the known as the . residence, . . and etc., further as verily building, affiant that in believes said etc., . . . intoxicating liquors in which are manufac- contrary,” verily tured as affiant believes, etc., may Prom the above statement cause not be judicially gives found. The affiant be- no reason for his verify support, nor does he lief, or substantiate es- it, tablishing the existence or truth of fact or circum- competent proof stance, evidence. The statement things, verily is that he believes certain contraband are on the farm of Bill statute, defendant, Lock; and verily he believed however it, unfounded belief his may appears have no fact in -been, the statement that subject legal responsibility. him to would only unreasonable searches It and seizures that prohibited by in are Section As said Gouled v. l. c. United U. S. 308: “Searches States, and seiz under the ures are constitutional Amendment when under valid search warrants as are made uncon because when made without stitutional, unreasonable, ’ ’ them. drug- 108 Mo. Davis, 666, In State v. a defendant, gist pharmacist, was indicted under Section refusing produce, to Revised for Statutes before jury grand county, lawfully when summoned prescriptions during previous by him do filled so, to' year. The court “We entertain no stated: doubt that spirit per- protection, ‘that of the constitutional no compelled testify against in son shall be to himself a precludes pri- criminal also the seizure of one’s cause,’ MISSOURI, COURT OF SUPREME y. Lock. papers against in order to obtain evidence vate books [Cooley, Evidence, Lim. 370: Mm. Const. Wharton sec. 751.]” protection that such court,

The held did however, prescriptions required preserved by to to extend liquor pharmacists, being druggist because, with- right Legislature impose rights, had the out its authorizing in sales. The situation in own conditions prohibition totally present case is dissimilar. liquor only not authorize sale of statute not does prohibits wholly upon it. conditions, .but 99 Ga. c. court State, In Pickett said: 12, l. ££ may, an Code, under Section 4723 of officer While, an a make arrest offense com without presence, authority, upon in he no his has bare mitted suspicion from mere information derived others, person in order his to as to arrest citizen a weapon carrying concealed or not he is a certain whether law. The in constitution of violation this State £ rights right expressly in the bill of that: The declares people persons, pa in their to be secure houses, pers unreasonable searches and seiz effects, [Code, 5008.] sec. shall not be violated.’ If ures, and obnoxious our fundamen search is unreasonable with which we tal is one of the kind law, now person dealing. arrested did Even if fact have person, pistol being about his fact not concealed carry offense thus search, discoverable without contemplation, legal ing presence committed in it was not, officer, the latter violated a sacred right assuming of the citizen to exer constitutional pretended authority cise search his order criminality.” suspected expose Cunningham 160, Ala. l. c. Baker, 169, the garnishment in the hands of of funds action police, previously had chief of who arrested defend no ants. the search there was warrant for At the time of process charging capias other them arrest, city, against any other state, criminal offense state TERM, Yol. '415

State v. Lock. get nor States, or the United did the authorities ever process any any during kind time their deten- person The court held: “A tion. search of the arrested justifiable only an incident to a lawful arrest; is be unlawful, the arrest the search is unlawful and is aggravated illegality by the of the arrest.” warrants,

Search based on the belief affiant, have early English writings been condemned from the to the day. early English present regarding An treatise, probable warrants is found in 2 cause, Pleas Hale, is “They Crown, 150, it said: where granted justice to be without oath made before the felony party complaining a and that the committed, hath suspect probable cause to are in a such house or place, suspicion. do show his for such reasons And, general I it, do take therefore, a warrant to search suspected places good, only in all is not but to search particular places, assigns party in such where be- justice suspicion fore the and the cause judicial for these warrants are thereof, acts, and must upon granted be examination of fact.” Opin. Atty. 688, In 24 Gen. it is said: “The sec- (meaning S.)R. 3642, tion See. U. S. does not state all application that must be stated therefor. The provides Amendment to the Fourth Constitution that ‘no upon probable supported warrant shall issue, cause, particularly describing affirmation, oath or things searched, be and the ’ question seized. The determination of whether this requirement and those of the section to have referred been and whether the warrant should issue in met, responsible particular highly important case, ’’ duty. s pp. said: 4, In Institute Book 176-177, Coke’s peace justices make “For sur- warrants subjects breaking for houses to search mises, goods, Magna stolen Charta.” felons, Ripper In v. United 178 Fed. l. c. agent, A. made affi- Love, 101 C. revenue C. OF SUPREME COURT MISSOURI, State v. Lock. before a United States that he davit good commissioner had

reason to believe and did believe the accused engaged unlawfully manufacturing in was the business of oleomargarine with to defraud the intent United States, prayed issue of a search warrant to enter and premises accused, search the which were de- coloring and if materials used scribed, oleomargarine them were to seize for trial. The found, pur- reciting the search warrant commissioner issued port Commenting affidavit, on the affidavit. court said:

“The affidavit on warrant was issued set probable aof facts from which the existence forth no nor did the warrant determined; cause could be itself There no of such cause. was re recite existence issued it cital in the warrant that the officer who found probable further cause, there than a determined one declared under statement that some had oath mere good and did believe, reason to believe, he had violating true that the law. Section accused was It Comp. p. (U. 2283), 1901, St. Revised Statutes S. 3462, a search warrant be issued such affi authorizes requisites all are not there think ex we davit, Attorney-General pressed. the view of This was also opinion Atty. Opin. [24 delivered June 688.] Gen. 685, writing

“The should state from oath facts issuing may determine which the officer the warrant probable or there "should be a hear- cause, existence of purpose immunity ing by in view. The him guaranteed by lightly should not Constitution set non-judicial general offi- declaration aside mere etc. believe, cer that he reason undisclosed has. may cause.” fall far short of reason 164 C. C. A. v. United In Veeder said: Fed. 418 and court 414, l. c. property be entitled, must

“One’s democracy, orderly protection both mob an' oppression agents hysteria whom the and the Vol. TERM, 1923 y. Lock. people represent have them in the chosen administra- required tion of which are the Constitution to laws operate persons on all alike. judge shall

“No search warrant be issued unless the facts under has first been furnished with oath—not sus- picions, facts when which, beliefs or surmises—but the applied properly is tend to establish them, law to the legal necessary or facts the which, when law conclusion, applied probable properly is to tend to establish them, legal right. believing cause for the conclusion is inviolability the home to be deter- of accused’s is suspicion guesswork. rumor, mined the not facts, legal If for the search the facts the basis afford consequences. equally the take the But accused must consequences, If for accuser to face. must be there must the accuser fiction, the sworn accusation is based punishment perjury. for Hence take the chance of necessity facts, of because of sworn statement one though perjury having a of belief, cannot be convicted utterly in fact and law. unfounded the belief be legal finding conclusion of “The of judicial is a facts function, cause from exhibited be, judge delegated by to the accuser. . . . it cannot should be broader than warrant “No search . . justifying . facts. basis of “ principles Applying to these Mclsaac’s affidavit, single statement of fact veri that not we observe is good All he that £he has oath. swears is fied his verily so and does believe’ so. He believe and reason to are true. He so not swear that so'and does does not why gives He no facts or say believes. circumstances he apply legal judge standard could which the probable cause for affiant’s be there was decide that application nothing affiant’s but the of lief. There the law to an undisclosed undisclosed notion own system government under our And state facts. judge.” permitted be also the not accuser —Writ S.U. certiorari, denied, 246 Sup. 302 Mo. —27. OP MISSOURI, COURT SUPREME y. Lock. l. c. Tureaud, Fed.

In United States said: supported by ‘prohable oath or affirma- “The cause prescribed.by the fundamental law United tion,’ persons those the oaths affidavits is, then, depose knowledge, to the which their oivn who, facts constitute offense. appear affidavit “It from the does any procedures are the affiant has based, that these knowl- edge truth of the matters contained whatever simply ‘all statements informations; verily i. e., he he believes,’ are true as averments showing all to be without true, believes them grounds belief.” 267 Fed. an in- In States v. Pitotto, United unlawfully charged felo- dictment defendant weapon using deadly resisting niously a United States in the execution of a Internal Revenue officers by a States commissioner. The warrant United issued was based on an affi- of the search warrant issuance good “that he has reason to be- davit made affiant upon verily a believe that fraud the rev- lieve does being States been and is com- enue of the United has void, The court held that warrant mitted,” etc. complies saying: Charlton “The affidavit of in lan- obviously guage but it with this insufficient statute, requirements of the Fourth meet the Amendment to requirements In word, ... a the Constitution. relating showing to the to be made as Section 3462, issuing a do not meet man- basis datory provisions of ... the Constitution. In other paramount. provision is the constitutional words, upon predicate showing which to under oath essential pertinent state warrant should facts the issuance magistrate may determine existence from hearing by probable or there him cause, should legal purpose in view. Probable cause is con- with the deduce, magistrate to for the from the which is clusion, Yol. 419 TEEM, 1923. v. Lock. facts and the stated, mere assertion under oath that the affiant upon believed and does believe that a fraud being entirely revenue has been or is committed, in- predicate finding sufficient which to cause.”

To the same effect are: United States v. Kelih, 272 Fed. 484; United States v. 268 Borkowski, Fed. Armstrong, 408; United Fed. 506; States United Ray, States v. 275 Fed. In re 1004; Tri-State Coal & Coke Rykowski, 253 Fed. 605; Co., United States v. Kelly, Fed. United 866; States v. 277 Fed. 485; United Friedberg, 233 States v. Fed. 313; United States (C. A.) Various 278 Fed. Documents, C. 944; United States v. Yuck Kee, 281 Fed. 228; Central Consumers’ Co. v. Berry 278 Fed. James, 249; v. United States, 275 (C. A.) Fed. C. 680; Gouled v. United U. S. page II. provides Section Laws Attorney-General, prosecuting if the attorney or prohibition enforcement shall file a officer, statement verified oath with the clerk of the circuit . , Statute. . . . . .1 having juris- or other court, court, criminal county verily diction in the that he believes, etc., shall duty building he the of the sheriff to enter said or struc- necessary, ture force, . etc. . . “No warrant private occupied dwelling shall be issued to search a part shop, some such, unless is used store hotel, purpose private or for dwelling, other than a upon application good to the court reason is shown place purpose that such aforesaid is used for the of vio- place lation of this act or unless such residence is a public place intoxicating liquors or a resort, which are manufactured.”

Except, pri- in where instance, accused used his dwelling purpose violating vate for the the act, the provide magistrate, above statute does not a court or probable may to whom the existence of cause be sub- judicial mitted for determination. This is a function MISSOURI, OF COURT SUPREME y. Lock. which, competent ju- delegated. may not be Courts justices only, circuit courts, risdiction such as our peace, may determine the exis- when authorized, probable L. In the 706.] cause. R. C. [24 tence of present probable not submitted to a

case, cause was justice peace, upon the but, court or even to prosecuting filing attorney the circuit sworn with clerk a verily believed, etc., the sheriff exe- statement that he clearly illegal. The the search warrant. This cuted ju- proper to the statement must be submitted sworn facts, whether the dicial which alone determines tribunal, probable any, if show cause. require the circuit clerk

The above statute not does probable search warrant. or even issue a cause, find provides.that It sheriff must nec- enter, force, filing essary, sworn statement with the of a attorney. prosecuting by the stated circuit As clerk, Atty. Opin. “the section does not state Gen. 288, ” application therefor. Nor all must be stated supra, provide for the all the essentials does Section Something more is nec- issuance of search warrant. essary. judicial Being action, the sworn statement may be from cause should show facts stating to be well as searched determined, as particularity. The should itself, may that the accused facts, inferences, contain so jeopardy. rights usu- are in This is whether his know copying ally statement, facts of the sworn done showing probable warrant. As in the search cause, things been have even done, left undone that should were pro- though following we hold statute, ceedings warrant,, for the search were insufficient, illegal and void. the reasons above stated, describe with rea- III. The warrant must pro- particularity place to be searched, sonable Missouri II, vided section Article Constitu- 1921, page 416, pro-

tion. Section Laws building vides that "in some or structure to be dESCRIPTION designated statement," plain in said etc. It is TEEM, OCTOBEB Vol. v.

State Lock. permits only he a search to made that the Constitution place describes to be when search warrant particularity. searched with

The search this case does describe warrant not may nearly required to be, be searched as It commands the sheriff our Constitution. “to enter building dwelling barn residence, house, known as outbuildings, premises, all farm car, vehicles, occupied Bill or under control of owned, Lock, Web- description County, Such ster Missouri.” is insuffi- [Smith 276.] cient. v. 72 Ore. McDuffee, n description cases hold that minute is neces- Some sary, convey such as is to real estate deed. sufficient description ought identify property to think We certainty, so that a with sufficient clearness mistake may ensue. sheriff

IV. When the and his assistants knocked at the door of read the search war- home, defendant’s rant him that and informed -had come to him, implied premises, was, it at least, searc^ the Consent- more, coercion. But it was view of the com Waiver.’ necessary, warrant, mand in the element There no of consent enter with force. he allowing the sheriff make the accused then in the S. In 313.] United U. [Amos search. contention that the con- the court said: “The case this rights waived defendant were when his stitutional officers, who home Government wife admitted demanding admission to make a without came, authority, cannot be en- of it under Government possible not consider whether We need tertained. thus to waive husband, of her wife, absence perfectly rights, for it is clear his constitutional presented, implied no such here coercion under or effected.” intended waiver was people subjecting unrea- practice V. no find sanction seizures should searches sonable MISSOURI, SUPREME COURT OP Look. judgment charged the which are courts, at all times support with the of the and to which the Constitution, people may appeal at all times for the maintenance of rights. such fundamental part

This case is not an assertion on the of the State, recognized under the law, to search the of the legally when accused, to discover arrested, and seize the fruits [Dillon of crime. evidences v. O’Brien, 16 Cunningham Cox C. C. Pickett 245; v. State, 112; Ga. Pomeroy, 104 Ala. Baker, 160; State v. 498; Mo. Sharpless, State v. 212 Mo. 176.] Nor is a collat- this proceeding attempted eral where it is to raise, admissibility first time, evidence, ob- jection during the trial. Nor it a sworn statement of larceny goods, to a fact, relative with reasonable suspect grounds possession of the one in control of the to be searched. Nor in- does it volve the introduction evidence, used or to be used in a crime, commission of obtained under a valid and legal search warrant. right, original proceed-

This case in an involves ing, supplementary to a criminal action filed, to be suppress to recover or seized in evidence, the home filed, premises accused, and on the authority, without his consent or county, the sheriff of under a void search without a warrant for warrant, his arrest, prosecution. and threatened to be used in his The ac- timely quash before made effort cused, trial, suppress the evidence obtained warrant, un- rights, under the der as violative of Eleventh it, Twenty-third Article sections of II the Constitution. levy property, under of a void If obtained search war- prose- may and used as evidence in be seized rant, by an unreasonable cution of the accused, search, with- and he thus forced cause, out State produce -himself, evidence Eleventh and scraps Twenty-third paper. become veritable sections commendable are their officials, Courts and ef- bring guilty punishment, may not forts to aided 302'j TERM, Vol. Lock. people’s rights. rights may Nor those sacrifice tbe expedient. away pub- because If courts

be frittered charged with its violate enforcement, lic officials, to convict, the land in their zeal it law of follows knowledge integrity, people, to their who look only respect law. The sheriff could have will invaded premises home and when armed the defendant’s prescribed by the Constitu- legally, may it however, not invade without such tion. He correct of law that, rule warrant. It asserted as court, under the control evidence comes when inquire it is obtained, the manner which into will not n competent, keep permit use. it and its But will but the Constitution mean- cannot obtain. If so, rule this sounding cym- tinkling ingless. and a It as brass becomes guaranty right. any a The and is valueless bal, prohibit seizures, searches and not Constitution does only seizures, are unreasonable. Searches such as not follow the Con- that do are unreasonable however, prob- issued without a search warrant stitution; and it and is void. follow cause, able does not illegally, in obtained contra- evidence, The use of permits rights, in- by done be of fundamental vention may directly. affirm To not be done that which direction, people persons, in their Constitution secures that the papers, searches unreasonable and effects homes although people the then that to assert seizures, and are rights by State, their the from violations of secure yet by assenting guaranteed that land, the law of the may security wind from them on their be carried away given. taking that where it lists, inconsistent. must neces- are We aforesaid contentions sarily prefer in- other; we hold to the one or the spirit terpretation that conforms letter and the than to emasculation. The rather its Constitution may profit by taking advantage of own its consequences. wrongful act. would direful This lead quarrel that We have no with the rule of law question of the introduction evidence, obtained without MISSOURI, SUPREME OF COURT

State v. Lock. may illegal a or not be warrant virtue one, properly objecting its raised a criminal cause during for first the trial. have use, time, held, We questions many must constitutional cases, pleading good opportunity raised at the earliest Cordage [Lohmeyer orderly procedure admit. v. 272.] Co., 685; Mo. v. 274 Mo. Railroad, Strother The issue is not when collateral, however, raised quash suppress motion to warrant, provisions up- evidence, wherein the constitutional relied pointed guaranteed rights, as violative on, or, out; filing when raised either motion, before after the of an information indictment, the return of ' property.

The State contends evidence obtained under void search warrant is admissible within the rule laid Pomeroy, down in State v. 130 Mo. 489, and State Sharpless, 212 Mo. The rule of there evidence, as upholding right police, enunciated, of the mak- ing a lawful arrest without a search to search person suspect occupied room him, and to seize instruments thus evidence of crime long accepted discovered, been has [Weeks doctrine. United S. U. 383, 392.] con- Nor do we trovert this doctrine, so far as ac- cused is concerned. Pomeroy, supra, In State v. the defendant law- was

fully in person arrested his of business. On and his in his desk, after his arrest, were found a number of lot- tery complained tickets. Defendant admission that their improper. Referring in evidence was quoting to and from a Massachusett’s case, which was obiter dictum on the it illegality facts, was said: “that of search war- good rant was no excluding papers reason for seized pertinent evidence, were to nor would issue, it question.” form a collateral to issue determine that Sharpless,

In supra, papers State v. taken from the after accused, his arrest, were admitted evidence. The Yol. TERM, State v. Look. Boyd United distinguishing from v. this case court, v. quoting Gindrat from said, U. S. People, 103: 138 Ill. er- and the unconstitutional

“In ease, the latter court process trial procedure of order, roneous produce compelled evidence the claimants process procedure were order, and such themselves, search and unreasonable be an also held to tantamount ques- cited, in the other cases here, while seizure, collaterally, courts illegality raised tion of was produce compulsion evidence whatever to exercised no nor.issued orders neither made defendants, from the process authorizing purporting a to authorize or simply papers, premises property or or a seizure stopping without offered, which admitted evidence possession obtained inquire been had whether lawfully unlawfully. the administration Courts, over-sensitive be not accustomed law, criminal to. regard comes, from evidence the source competent and evidence that will avail of all themselves pertinent constitutional and not some subversive right.” legal papers taken were

In both of the above cases, person his from the after defendant,'or desk, his a after lawful for arrest, arrest. It is a established charged, ac- crime when the officer definite sees the committing accused, cused crime, premises, under seen contraband articles are where entry, properly may war- without a examined, lawful guilt. finding purpose evidence rant, of his [Cunningham 104 Ala. Pickett Baker, 160; State, v. may person, without arrest 12.] But Ga. upon suspi- crime, and without evidence of a cion, and. convict the the evidence found accused [Pickett him. State, 12.] 99 Ga. supra, Pomeroy Sharpless Case and the Case,

recognize the doctrine accused issue, collateral that the may day ob- not wait until the then, trial, and. jection, il- testimony by an exclude obtained and articles

426 SUPREME COURT OF MISSOURI,

State v. Lock. not legal in the above did accused, cases, search. The attempt bring attention court, the matter to the proceeding. independent supplementary original, in an collateral. De- In the case at the issue was bar,’ quash suppress, fendant, his motion to raises original independent notice. which we must issue, right timely is action to exclude where evidence, recognized many [Weeks United taken, is cases. v. 232 S. Lumber Co. United States, 383; U. v. Silverthorne 251 S. 385; v. States, U. S. Gouled United 255 U. States, Flagg 298; v. United 233 Fed. Giles v. United States, 481; (C. People A.) States, 284 Fed. v. 208; Marxhausen, C. 204 559.] Mich. objection

In some few cases, it held that to the admissibility during evidence, trial, is sufficient. Ky. [Youman v. 121 189 152: Comm., State v. Sheridan, Height, Iowa, 164; v. v. Iowa, State Blum 650-661; Blacksburg State, 375; Beam, Md. Town of 104 C.S. 146; v. Slamon, 73 Vt. 212; State, Underwood v. App. 13 Ga. 206.] opinion, Carrington,

Lord Camden’s in Entick ground subsequent How. St. Tr. 1029, is work of' all It discussion. one considered the landmarks liberty. English [Boyd v. United 116 U. S. privilege against 626.] Lord Camden unrea- links sonable searches with that self-incrimination and only general condemns, not character of the warrants, but also the fact that are issued to search out evi- ruling great importance: very dence, “It is certain, obligeth that the man law no to accuse because himself; necessary compelling means of fall- seif-accusation, ing upon guilty, the innocent as well as the cruel would unjust; and it seem would that search for evidence principle.” is disallowed same things Two have been declared Lord Camden : that general uncertainty, were warrants void principle against search for evidence violated self- incrimination. Such, then, would seem be the law the amendment was intended to perpetuate. It TERM, Yol.

State v. Lock. parts significant in itself is two the amendment —one other and the searches,” “unreasonable which forbids particulars requires before be observed certain which prohibition “un- may issued. be This warrants intended have been must, therefore, reasonable searches” something warrant. the form of the other than to cover Law 34 Harvard [Fraenkel Seizures, Searches 361.] Review, opinion Case, in the Entick of Lord Camden papers, compulsory production

supra, considering of any compulsory discovery by extorting’ the held: And party’s private production compelling his of oath, papers, him forfeit books and to convict of crime, principles property, contrary of free his to the Eng- government. abhorrent an It is to the instincts of it American. lishman abhorrent to the instincts of an ; purposes despotic power; may It cannot suit it political pure atmosphere per- liberty abide the sonal freedom. Ky. 152,

In Youman v. l. Commonwealth, c. commenting in court, seizures searches of the well said: law, officers “Returning this now for a moment to the facts of purpose plain position, making case for the our stands admitted that the evidence offered on the trial objection to the of which introduction then was made, way by county in unlawful officer obtained an charged complete duty giving with the obedience Constitution and laws State. This officer disregard violation of the Constitution premises pointing way might statute out the searched took the into own hands, law his invaded the premises buildings suspected of and went into the asking obtaining and without offender, consent proceeded liquor to and search for did and find the was seized. ‘‘ question presented On these facts the is: will courts justice established to administer and enforce the laws objection over receive, evi- accused, MISSOURI, OF SUPREME COURT

State v. Lock. admittedly ob- prosecution that was dence offered disregard lawof public in deliberate officer tained alleged securing purpose conviction of for the offender? encourage authorize and courts words,

“In other will eyes to close their public the law and officers to violate bring into disre- inevitably law that must methods pute guilty? may Will be found an accused order say officers one its high of in effect to a of the State court prohibits of a the State that the Constitution of premises search warrant, without a the aof you against so accused if the can obtain evidence open you premises, doing may go doors break the to his pro- his in of his search it his over absence, house and permit present, so the evidence test court will and this go jury secured the to secure conviction? to to his like this would practice in- do “It seems to us that a jus- finitely good more than in administration of harm the surely the tice. That it create the of would minds respect people that courts no Con- the belief had respect when ends stitution designed interfered laws, accomplished. give ap- to cannot our be We proval practice like is much better a to a this. It that punishment guilty escape than that individual should justice put a court a fundamental of should vital, .aside principle the law to secure his order conviction. powers great “In the exercise their courts have pro- duty higher perform involving no those to than rights guaranteed tection of citizen in him civil protection the Constitution, at and if time the rights delay justice these should even defeat ends of particular good public in the it is better case, for the great' happen this should than a man- constitutional be date should nullified. trifling .importance question

“It with the say, injured party as some have said, courts that the has against his cause action officer this should be Perhaps rights sufficient satisfaction. far so as the might are concerned does individual this answer, but TERM, Yol. v. Lock. public, are law-abiding who demands

not meet prin- preservation fundamental in the more interested petit of- punishment some ciples in the than are fender.” reversing U. S. States, 232 United In Weeks v. re- motion to court trial denied because conviction, il- in an evidence obtained use of, and allowed turn, legal private letters and “If said: the court search, evi- and used as and held be seized can thus documents protec- against offense, accused of citizen dence right declaring Amendment tion of the Fourth value, against seizures is of no such searches secure might placed concerned, thus those so far as and, ” from the Constitution. well be stricken (C. A.) 208, Tu 284 Fed. C. v. United Giles that-the void; warrant to be held the the court the denial unauthorized; seizure was Government’s quash return the indictment and for the of the motion property was admission, error; so, also, property defendants. evidence, of the seized People where Mich. 571-2, In Marxhausen, carefully considered correct and the are the authorities distinguishes Boyd v. United well the court stated, rule is 232 U. v. United States, and Weeks U. S. Pome in from rule of enunciated State S. the law Sharpless, roy, State v. Mo. 130 Mo. opinion Michigan quote as follows: the We impressed, con- careful that a “We are however, Boyd of in connection with Adams sideration the Case the which of the State some of courts, Case and the decisions many which taken in the above, are but are not, cited light by Case, what was the court in the said Weeks Supreme in demonstrates that the main the States United last resort of Court and the courts of the states various Boyd are in and that not accord, the does conflict Case holdings many the as its critics State claim, many along courts. The Adams Case and State cases the belong line of that to while the case one class cases, Boyd belong to another Weeks cases of cases. class OP MISSOURI, COURT SUPREME Lock. legal- question of the the and similar oases

In the Adams sought ity col- to raised seizure he was of the search proceedings. by the laterally, In these cases not direct paper objection unlaw- article not until the made was patent fully in evidence. It must be offered seized was upon cannot the court a criminal case the trial of pause under in a bit of admissible evidence, the trial when inquiry engage general in a collateral rules, offered, possessed prosecution evi- such became the how a collateral dence. would be the trial of matter, That proposition general have held, the so as a courts competent, offered have not where paused evidence was the collateral issue in the trial determine the legally . . . or not. whether was secured the evidence Boyd question “In and Weeks was not cases, proceed- collaterally, by in raised ing; both a direct cases Boyd by court an affirmative order of the Case produce requiring order invoice, claimant directly review the was assailed case the Su- preme which order held Court, and was to.invade rights claimant’s under Federal in the Constitution; negative refusing order Weeks Case the return of property seizure, taken unlawful search and directly upon which Supreme was assailed review in order Court, and which order held court rights. to have denied defendant constitutional “From this consideration ob- of these cases it is underlying vious that the rule them when defend- ant in a criminal case the first time the trial ob- jects to the admission evidence of articles taken un- lawful seizure, search and under admissible general governing admissibility proof, rules pause court in the will trial of the case to determine prosecution question whether collateral be- lawfully possessed came articles; of such that where appear it is made to before trial that articles have the possession been from taken the of the defendant in viola- rights lation of constitutional unlawful 431 Vol. OCTOBER TERM, 1923. State v. Look. it at search warrant all, seizure and without duty re- then the the the trial court order becomes of unlawfully turn thus to the defendant of the articles p. taken. 10 R. thus stated in C. L. 933: rule “ principle admitting underlying ‘The the decisions proof objection of the evidence is that an an offer question than made on the trial of a.cause no other raises competency, relevancy materiality of consequently such evidence offered, court, objection, an is- cannot trial collateral enter on the of a sue ob- as to the source from the evidence was right, necessity tained. But since there ais there must of making remedy, remedy be a and the to be in the found timely application directing of a to the court for an order unlawfully papers applicant the return to the application, question seized. legality an On such il- fully may.be seizure if the court heard, and erroneously papers, refuses to order a return of applicant thereafter receives them in evidence objection, judgment over his an error for which a conviction must reversed.’

“Turning now to our in' own them cases we find harmony strict with the rule announced. This court has pause held that will trial of a courts up open cause inquiry collateral whether wrong obtaining has been committed information which possesses. [Cluett witness v. Mich. Rosenthal, 100 193; People People Campbell, v. Aldorfer, 676; Mich. (N. S.) L. Mich. R. A. 58.] court But this application has also held made before trial .for. mandamus per to set aside an order the circuit court, mitting police department possession prop to take erty investigation pending of the citizen, for crime depriving possession, owner of its order should be resulting vacated and set aside, return in the property unlawfully [Newberry thus withheld. ’’ Carpenter, 107 Mich. 567, 31 R. 163.] L. A. foregoing

For the we reasons, think the ob- evidence tained in the unlawful search and the sheriff seizure MISSOURI, OP

432 COURT SUPREME v. Lock. State [Amos v. excluded. been have and should assistants, Ed. Sup. L. 65 Ct. 266, 41 313, 255 S. United U. States, Rep. Sup. Ct. 6 Boyd 616, 116 U. S. States, 654; v. United 710; Fed. States, 279 United 746; 29 L. Ed. Woods v. v. Johnston Honeycutt 941; 277 Fed. States, v. United States 612; C. A. United 30 87 Fed. States, United C. Fried (D. C.) v. United States 735; Fed. v. 179 Baumert, Rykowski, v. berg, (D. C.) States United 313; 233 Fed. C.) (D. (D. Marosca, C.) States v. United 866; 267 Fed. 164 Fed. States, 252 713; 266 Veeder United Fed. C.) Fed. (D. 281 States Yuck Kee, A. C. C. United 338; Sup. Ct. 183, 168 532, 18 U. S. Bram v. United 228; by Fraenkel on Searches collected Ed. Cases 568; L. 361.] Review, Seizures, Harvard Law future A for comment, reference, VI. word may respect search not be warrant, to the affidavit and They inartificially are drawn, so amiss. affidavit. paragraphs so disconnected, words judicial unless a construc- would, careful consideration meaningless. supplied tion them words, hold present facts in VII. The case show only ob- evidence to convict defendant was relied illegal warrant. tained of a void and virtue insisted that entitled as defendants were Therefore, possession of the articles seized under the it results that the direct made attack suppress quash motion to because evidence, rights violation of under the have Constitution, should been sustained. may

In that the in a'retrial of State, have cause, opportunity produce additional evidence, if tending guilt, to show has, defendants’ we reverse and proceedings remand the for such incon- cause, Bailey, Higbee, sistent herewith. dis- C., concurs; C., sents. TERM,

Yol. v. Tunnell. opinion foregoing PER CURIAM:—The Davts, adopted opinion Woodson, en Bane. C., Court Ragland, C. T. J,; Graves, Blair, James White dissent JJ., Blair JJ., concur; Walker, David E. David, expressed dissenting opinion of reasons page E. Blair, J., in 380. Owens, ante, 2, 4, Courts, 512; 1: 6: Headnote sec. 5 and 15 J. Headnotes C. Anno). Cyc. 1266, (1926 Seizures, Searches and 35 STATE TUNNELL, THE v. GUS DOROTHA TUN Appellants. NELL TUNNELL, and SAMMIE Banc, February 11, In 1924. Appellate Jurisdiction: Constitutional Ques- WARRANT:

1. SEARCH (a) having pos- defendants, charged tion. with- in their Where apparatus intoxicating session the manufacture certain liquor (c) liquor, (b) intoxicating and with the manufacture intoxicating liquor, having possession motion filed their their suppress the sheriff evidence obtained before trial seizure, ground il- warrant was search search on contrary legal Fourth and Fifth Amendments and void 11 and 23 of States Sections the United Constitution Constitution, thereby a con- raised of the Missouri Article being nothing opportunity, question first there at their stitutional suggesting the constitutional the information face of appropriate question more or other demurrer could be raised jurisdiction appellate Supreme motion; Court has appeal judgment of conviction and the assessment of from their punishment hundred dollars each on each of at a fine two their the counts. two of A war- No Statement Facts. -: Probable Cause:

2. probable cause, provided by only upon Sec- can be issued rant Constitution, the affi- Missouri tion 11 Article attorney prosecuting no facts from which states davit filed inferred, warrant, ground- judicially can cause illegal. affidavit, is unauthorized such ed on Revised Statutes does-not -: Section Statute. issued thereunder one is void. authorize a search Sup. 302 Mo. —28.

Case Details

Case Name: State v. Lock

Court Name: Supreme Court of Missouri

Date Published: Feb 11, 1924

Citation: 259 S.W. 116

Court Abbreviation: Mo.