Allen v. Lindbeck

• Citation: 93 P.2d 920,97 Utah 471
• Decision Date: 20 September 1939
• Docket Number: 6098
• Court: Supreme Court of Utah
• Parties: ALLEN v. LINDBECK, Justice of the Peace, et al

93 P.2d 920

97 Utah 471

ALLEN v. LINDBECK, Justice of the Peace, et al

No. 6098

Supreme Court of Utah

September 20, 1939

Original proceeding by E. L. Allen against Fred Lindbeck Justice of the Peace in and for the Third Precinct, Salt Lake County, and others, for a writ of prohibition against the named defendant to prevent his proceeding to determine ownership of milk bottles, bearing trade-marks, seized pursuant to Rev. St. 1933, 95-2-10, under a search warrant. On demurrer to plaintiff's application for the writ.

Alternative writ of prohibition made permanent and defendants ordered to make restitution of the seized bottles to plaintiff.

A. U. Miner, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., and Paul Thatcher, of Ogden, for defendants.

McDONOUGH, Justice. MOFFAT, C. J., and WOLFE, LARSON, and PRATT, JJ., concur.

OPINION

McDONOUGH, Justice.

This case is heard upon demurrer to an application for a writ of prohibition against the defendant Lindbeck to prevent his proceeding to determine ownership of milk bottles, bearing trade marks, seized pursuant to Section 95-2-10, R. S. U. 1933. The bottles were seized from plaintiff's milk truck under a search warrant issued by defendant Lindbeck directing seizure of such bottles, which warrant was issued on the basis of the affidavit of a deputy of the Department of Agriculture of the State of Utah.

Plaintiff attacks the jurisdiction of the justice's court, basing the attack on the unconstitutionality of the statute under which the proceedings in the justice's court were had.

The primary contention of the plaintiff is that Section 95-2-10 is in conflict with Article I, Sec. 14 of the Constitution of Utah, which reads as follows:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized."

The section alleged to conflict with this provision, so far as here pertinent, is as follows:

"Whenever any person shall make affidavit before a court of competent jurisdiction that he has reason to believe and does believe that any receptacle * * * is in the possession of any person engaged in any business specified herein * * * such court shall issue a search warrant for such property * * *."

We are thus called on to determine whether the statute meets the requirements of the Constitution as to issuance of a search warrant. The Constitution says "no warrant shall issue but upon probable cause supported by oath or affirmation" while the statute requires issuance of the warrant when the affiant deposes "that he has reason to believe and does believe" that the articles are wrongfully held or used. Is "probable cause" satisfied by an oath that one "has reason to believe and does believe"?

Plaintiff cites some dozen cases in support of the view that the statute, in requiring only an affidavit on information and belief does not meet the constitutional requirement that probable cause be shown. The defendant says, as to these cases, "The plaintiff has cited what are, so far as we know, all of the cases holding against the validity of such a statute," and then attempts to distinguish all of those cases except two, after admitting that "there is a conflict in the authorities on this question." So far as we have been able to learn the decided weight of authority is with plaintiff, and indicates that the statute authorizes a search in violation of a constitutional right.

A series of annotations, citing many cases, supports the statement found in 41 A.L.R. 1539, that,

"It is the general rule that probable cause is not shown by an affidavit on information and belief, which does not state the facts showing the grounds of the belief." 3 A.L.R. 1517; 13 A.L.R. 1318; 27 A.L.R. 742; 39 A.L.R. 835; 74 A.L.R. 1490. See also a note in 1 Ann. Cas. 653, annotating State ex rel. Register v. McGahey, 12 N.D. 535, 97 N.W. 865, 1 Ann. Cas. 650.

The general rule and the weight of authority are said to be the same way in Cornelius on Search and Seizure, § 85; 24 R. C. L. 708; and 56 C. J. 1216.

In State v. Arregui, 44 Idaho 43, 254 P. 788, 794, 52 A.L.R. 463, 473, the Idaho court thus summarized its examination of numerous authorities:

"Under the great weight of authority of both state and federal courts, a search warrant issued upon 'information and belief,' unsupported by facts submitted to the magistrate, and based upon the conclusions of the affiant rather than the facts, is illegal, and a search conducted thereunder is unlawful and in violation of the constitutional provisions with relation to searches and seizures."

A similar statement is found in State v. Peterson, 27 Wyo. 185, 186, 194 P. 342, 345, 13 A.L.R. 1284:

"In a great majority of the states, as well as the courts of the United States, it has been held that an affidavit on mere belief does not fulfill the requirements of the Constitution in this regard, although there are a few decisions which hold otherwise. It is generally held that an affidavit is not sufficient if it is made on information and belief, and is not corroborated or supported in any way."

See also Mattingly v. Commonwealth, 197 Ky. 583, 247 S.W. 938, and the comment on cases following the minority view.

A few of the additional cases holding, under a Constitution like ours, that an affidavit of belief and reason to believe, without the necessary facts to support a finding of probable cause, is insufficient to support a search warrant, are: Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159; Grau v. United States, 287 U.S. 124, 53 S.Ct. 38, 77 L.Ed. 212; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; United States v. Williams, D. C. Pa., 43 F.2d 184; United States v. Lai Chew, D. C. Cal. 298 F. 652; United States v. Tureaud, C. C. La., 20 F. 621; Burtch v. Zeuch, 200 Iowa 49, 54, 202 N.W. 542, 39 A.L.R. 1349; People v. Effelberg, 220 Mich. 528, 190 N.W. 727; Elliott v. State, 148 Tenn. 414, 256 S.W. 431; Goode v. Commonwealth, 199 Ky. 755, 252 S.W. 105; Smoot v. State, 160 Ga. 744, 128 S.E. 909, 41 A.L.R. 1533, 1539; Cooley's Constitutional Limitations, 8th Ed., 619.

Since our Constitution requires a showing of probable cause to support a search warrant, and Section 95-2-10 requires merely an affidavit on information and belief, we hold, in line with the overwhelming weight of authority in the federal and state courts, that such an affidavit does not meet the constitutional requirements and the statute is therefore invalid. Invalidating this section will not upset our practice in such matters since other statutory provisions comport with the constitutional provision. For example, the search warrant provision in the criminal code, Sec. 105-54-3 and that in the Fish and Game title relating to seizure of firearms (Sec. 30-0-58) require that "probable cause supported by oath or affirmation" be furnished. Other sections provide that "cause" or "reasonable cause" shall be furnished. R. S. U. 1933, 103-5-5, 14-7-22, and 3-10-33. These can and should be read, in view of our constitutional requirement of probable cause, as requiring probable cause which, after all, is that which a reasonable person regards as cause. As defined by Cornelius on Search and Seizure in Section 83:

"* * * probable cause is defined by the courts and legal writers to be such an apparent state of facts that a discreet and prudent man would be led to the belief that the accused, at the time of the application for the warrant, was in possession of property. * * *"

Thus reasonable cause and probable cause might be contended to mean the same thing. However, the test of the statute here in question is merely that the affiant "has reason to believe and does believe," without requiring him to furnish any evidence or cause which might be interpreted as designed to comply with the constitutional provision.

Defendant relies on the following cases as establishing his position: United States v. Eldredge, 5 Utah 161, 13 P. 673; Lowrey v. Gridley, 30 Conn. 450; Rose v. State, 171 Ind. 662, 87 N.E. 103, 17 Ann. Cas. 228; Winters v. State, 142 Miss. 71, 107 So. 281; Loeb v. State, 133 Miss. 883, 98 So. 449; Rosanski v. State, 106 Ohio St. 442, 140 N.E. 370, 28 A.L.R. 759; State v. Kees, 92 W.Va. 277, 114 S.E. 617, 27 A.L.R. 681; State v. Brown, 91 W.Va. 709, 114 S.E. 372; State v. Noble, 96 W.Va. 432, 123 S.E. 237; State v. Mallett, 123 Me. 220, 122 A. 570; Dupree v. State, 102 Tex. 455, 119 S.W. 301.

United States v. Eldredge, supra, is not in point. That case involved probable cause as it must be established at preliminary examination before a committing magistrate. The court held that the complaint need not establish probable cause since an examination is had and evidence introduced. If the evidence establishes probable cause that is sufficient. So here, if the court were required to hold a hearing and hear testimony, it could validly find probable cause and issue the search warrant even though the affidavit alone would not be sufficient. See Burtch v. Zeuch, supra, 200 Iowa at page 54, 202 N.W. 542, 39 A.L.R. 1349; 56 C. J. 1216. But Section 95-2-10 provides for no hearing and contemplates none. Chapter 54 of Title 105, R. S. U. 1933, provides for such a hearing at which probable cause is to be proved by the complainant.

Rose v. State, supra, is no longer followed in Indiana. Wallace v. State, 199 Ind. 317, 157 N.E. 657, definitely establishes that an affidavit on information and belief is not sufficient and the Rose case is disapproved so far as it might be found...