Allen v. State

Citation183 Wis. 323,197 N.W. 808
PartiesALLEN v. STATE.
Decision Date11 March 1924
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Error to Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Melvin J. Allen was convicted for having in his possession illegally manufactured intoxicating liquors, and for trafficking in same, and he brings error. Reversed and remanded.

The defendant below, herein designated as the defendant, was convicted by a jury for having in his possession illegally manufactured intoxicating liquors and trafficking in the same. He was sentenced to 90 days at hard labor in the county jail. He now claims his conviction was unlawful for the reason that he was unlawfully searched, and liquor thus taken from his person was received in evidence over his objection.

Defendant was walking peacefully along a public street in the city of Fond du Lac when he was accosted by a police officer in uniform accompanied by another officer in plain clothes, and asked if he had any liquor on his person. He replied that he did. Thereupon the officer searched him and found a pint bottle of liquor in his inside coat pocket. He was then taken to the police station by the officers and further searched, when a second bottle was found in his hip pocket. On the trial a motion was made by defendant's attorney to suppress the evidence obtained by such searches and seizure. On this motion evidence of the police officers was taken by the court in the absence of the jury. It appeared that the officers had no warrant for the arrest of the defendant, and they had no search warrant. They had been informed that the defendant had gone for liquor, and they had intercepted him upon such information. It would seem that the search was made before the arrest, and the arrest was made on the evidence obtained by the search. The court denied the motion to suppress the evidence thus obtained. On the trial the liquor was offered in evidence, to which offer defendant's counsel objected. His objection was overruled, and the evidence admitted. His conviction followed. After sentence and judgment, a writ of error was issued out of this court to review the proceedings.

Jones, J., dissenting.Gooding, Keck & Gooding, of Fond du Lac, for plaintiff in error.

Herman L. Ekern, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and James Murray, Dist. Atty., of Fond du Lac, for the State.

CROWNHART, J. (after stating the facts as above).

In was June 15, 1215, that the people at Runnymede wrested from King John of England the great charter of English liberties, wherein the King gave the pledge of the government that--

“No freeman shall be taken or imprisoned * * * nor will we pass upon him, nor will we send upon him unless by the judgment of his peers or the law of the land.”

That guaranty of personal liberty, under constant struggle between sovereign and subject for hundreds of years, was expanded and confirmed in the English common law until it was said by William Pitt that--

“The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter,--but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”

Such was the spirit of English liberties that came to us as a part of our common law. But that was not enough. The founders of our government, in writing the Constitution, assumed the liberties of the people to be firmly established and did not write them into the Constitution. The people of this country, however, having had experience under the British crown, with writs of assistance, refused to accept the Constitution until assured of the adoption of amendments that would enumerate and preserve their liberties under a written Constitution. Accordingly, there was immediately adopted the Bill of Rights” contained in the first ten amendments to the federal Constitution, among which are found the following pledges of security of person and property:

Article 4. 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 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Article 5. No person shall be * * * deprived of life, liberty, or property, without due process of law. * * *”

These provisions have their counterparts in the Bill of Rights in the Wisconsin Constitution, where it is written:

Article 1. Section 1. All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

Section 11. 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 warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Section 22. The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.”

In speaking of these rights and liberties of the citizens, in Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, Mr. Justice Day said:

“The effect of the Fourth Amendment is to put the courts of the United States and federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. * * * If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”

In speaking of the Fourth and Fifth Amendments to the federal Constitution, Mr. Justice Clarke, of the United States Supreme Court, for the full court, said:

“It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is: That such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty and private property;’ that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen--the right to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly overzealous executive officers.” Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647.

Thus the purpose of these amendments, the substance of which are found in our state Constitution, is made plain and unequivocal. Under the Constitution of our state every argument advanced by the United States Supreme Court in favor of a broad and liberal construction of such provisions is applicable and persuasive. No stealthy encroachment on the liberty and freedom of the citizens of this state, either by legislative enactment or by courts or other officers of the law, is to be permitted or tolerated. The constitutional rights of our citizens are to be preserved in all their intendments unimpaired.

A good illustration of the jealousy with which these guaranties of liberty are regarded is found in Snyder v. United States (C. C. A.) 285 Fed. 1. In that case--

Defendant, about 2 o'clock in the afternoon of the 5th of November, 1921, while standing in one of the public streets in the city of Wheeling, W. Va., was approached by a federal prohibition officer, who, observing the inside pocket of his overcoat bulged out and the neck of a bottle protruding therefrom, walked up to him, placed one hand on his shoulder, remarked that he ‘had beat him to it,’...

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  • State v. Rodgers, 82-1930-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 12, 1984
    ...Although our court has been willing to consider federal precedents which accord with the Wisconsin Constitution, Allen v. State, 183 Wis. 323, 329, 197 N.W. 808 (1924), this court has refused to be bound by federal decisions which are contrary to our state constitutional values. This court ......
  • State v. Young
    • United States
    • United States State Supreme Court of Wyoming
    • October 7, 1929
    ...... State v. George, 22 Wyo. 223, 231 P. 683;. Whitford v. State, (Okla.) 247 P. 424; Hughes v. State, (Tenn.) 238 S.W. 588; Pickett v. State,. (Ga.) 25 S.W. 608; Youman v. Com., (Ky.) 224. S.W. 860, and see note in 13 A. L. R. 1303 at 1309; Allen. v. State, (Wis.) 197 N.W. 808; Tobin v. State,. (Wyo.) 255 P. 789; Soards v. State, (Okla. ) . 259 P. 157. Plaintiff's exhibits "A,". "B," "C" were improperly received in. evidence. State v. Kelley, (Wyo.) 258 P. 571;. Carroll v. U.S. 267 U.S. 232; Hoyer v. State,. (Wis.) 193 N.W. ......
  • State v. Zamzow
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    • April 6, 2017
    ...of trial. A few jurisdictions still follow [this approach]....") (internal quotation marks omitted).See, e.g. , All e n v. Stat e , 183 Wis. 323, 197 N.W. 808 (1924) (motion to suppress illegally obtained evidence brought during trial, when prosecution seeks to use the evidence).21 See also......
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    ...493, 137 N.W. 20, 43 L.R.A.,N.S., 339; In re Ernst (1923), 179 Wis. 646, 650, 192 N.W. 65, 30 A.L.R. 681; Allen v. State (1924), 183 Wis. 323, 331, 197 N.W. 808, 39 A.L.R. 782; McCoy v. Kenosha County (1928), 195 Wis. 273, 277, 218 N.W. 348, 57 A.L.R. 412 (sec. 13, art. XIV, Wis.Const., con......
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