248 P. 192 | Mont. | 1926
The search-warrant in question is a blanket or general one directed to cover and search the entire buildings situated on the given lots, and therefore void for the reason that the description of the place to be searched under and by virtue of said search-warrant is vague, indefinite and far too general, and not a particular description of the place to be searched as required by the Constitution and laws of Montana. (UnitedStates v. Chin On, 297 Fed. 531; United States v.Mitchell, 274 Fed. 128; United States v. Innelli, 286 Fed. 731; State v. Duane,
Evidence obtained and acquired under and by virtue of an illegal search and seizure by the government is not admissible against the accused in a criminal case, where timely motion has been made by the defendant to suppress the evidence so obtained and acquired under such illegal search and seizure. (State exrel. Thibodeau v. District Court,
It appears from the record that on November 3, 1924, one Marien appeared before the judge of the district court of Custer county and made an affidavit to the effect that the defendant had, on several occasions immediately preceding the making of the affidavit, sold intoxicating liquors to the affiant, and that such liquors were then unlawfully kept for sale by the defendant at and within certain buildings commonly known as the Olive Bar and the building in the rear thereof known as the Olive Annex, situated on described lots located in Miles City. After examining the complainant orally and considering *27 his affidavit, the court found that there was probable cause for believing that liquor was possessed, kept for sale, and sold on the premises described, and thereupon issued a warrant to search the same, which was served by a special officer of the state. The officer serving the warrant found some intoxicating liquors in a room on the lower floor of the Olive Annex, seized it, and made his return to that effect, and thereafter the county attorney filed an information charging the defendant in separate counts with the possession and sale of intoxicating liquor.
The defendant made a timely motion to suppress the use of this liquor as evidence against him, on account of alleged defects in the search-warrant proceedings, which motion was denied by the court. At the trial the defendant made objection to the introduction in evidence of the liquor obtained in the search-warrant proceedings upon the same grounds and for the same reasons mentioned in the motion to suppress its use as evidence, which objections were by the court overruled, and in this court he undertakes to show that the search-warrant proceedings were so irregular that the court was in error in admitting the liquor obtained thereunder. We do not, however, find it necessary to inquire into the regularity of these proceedings, for the reason that the record shows that the defendant is not in a position to question them.
On pages 12 and 13 of this brief filed in this court, defendant's counsel, referring to the questioned evidence, says: "The intoxicating liquors were seized in a room on the lower floor of the Olive Annex. There are 14 rooms on the lower floor of said annex; the annex being a 3-story building with rooms on each floor of same, and being occupied by persons other than the defendant, some permanent and some transient guests at said hotel. The defendant rented from the Keye Hotel Company, which company runs and operates the Olive Hotel property, 2 rooms in the main building, or Olive Hotel. He never occupied nor was he in possession of any of the rooms in the Olive Annex in which the intoxicating liquor was seized." *28
In his testimony given at the hearing on the motion to suppress, and also upon the trial of the action, defendant insisted that he did not have possession of the Olive Annex, nor any part thereof, at the time of the alleged unlawful search, and that the liquor found therein by the officers did not belong to him.
The rule is that one, whose interests are not affected in any[1] manner by the search-warrant, cannot question the validity thereof. If a party claims that the property seized, or the premises searched, did not belong to him, he is thereby precluded from questioning the legality of the search and seizure. This proposition was settled in this jurisdiction by the decision in the case of State ex rel. Teague v. District Court,
Since the defendant disclaimed the right to the possession or occupancy of the rooms in the Olive Annex which were searched, and likewise disclaimed ownership of the property therein seized, he was not in position to question the validity of the search and seizure. For this reason the court did not err in allowing the use of the seized property as evidence against the defendant, and the judgment is affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY, and ASSOCIATE JUSTICES HOLLOWAY and MATTHEWS concur.
MR. JUSTICE GALEN, being absent, did not hear the argument and takes no part in the foregoing decision. *30