Bedenarzik v. State
| Decision Date | 28 March 1933 |
| Docket Number | 25,564 |
| Citation | 185 N.E. 114,204 Ind. 517 |
| Parties | Bedenarzik v. State of Indiana |
| Court | Indiana Supreme Court |
1. SEARCHES AND SEIZURES---Search Warrant---Probable Cause---Determination is Judicial Function.---The determination of the question whether there is probable cause for the issuance of a search warrant is a judicial function p. 519.
2. SEARCHES AND SEIZURES---Search Warrant---Probable Cause---Sufficiency of Affidavit.---An affidavit on information and belief and containing only the affiant's conclusion upon the question of probable cause, is not of itself a sufficient basis for the issuance of a search warrant. p. 519.
3. SEARCHES AND SEIZURES---Search Warrant---Probable Cause---Oral Evidence.---Testimony of the issuing magistrate that he heard oral evidence on the question of probable cause adds nothing to the showing made by the warrant itself. p 519.
4. SEARCHES AND SEIZURES---Search Warrant---Probable Cause---Finding of Magistrate Not Conclusive.---The finding of the issuing magistrate on the question of probable cause is not conclusive and may be inquired into by the trial court. p. 520.
5. INTOXICATING LIQUORS---Search Warrant---Must Contain Copy of Affidavit.---A search warrant issued under the State prohibition law---(2746 Burns 1926) must include a copy of the affidavit therefor as provided for in the general statute. p. 521.
6. SEARCHES AND SEIZURES---Search Warrant---Sufficiency---Defendant's Right to Question.---A defendant has the right in the trial court to question the sufficiency of a search warrant and the sufficiency of the information upon which it was issued. p 522.
7. SEARCHES AND SEIZURES---Search Warrant---Probable Cause---Evidence Thereof---Must be in Written Affidavit Form.---The facts to establish probable cause for the issuance of a search warrant must be in written affidavit form and copied into the warrant. p. 522.
8. SEARCHES AND SEIZURES---Search Warrant---Motion to Quash---State Has Burden to Justify Warrant.---Upon the filing of a motion to quash a search warrant and suppress evidence, the burden is upon the State to justify the issuing of the warrant. p. 523.
9. SEARCHES AND SEIZURES---Search Warrant---Probable Cause---Evidence Held Insufficient to Support.---Upon a motion to quash a search warrant, the affidavit therefor upon information and belief, and supported by oral testimony of the issuing magistrate that he heard oral evidence on the question or probable cause to exist, but not reciting names of any witnesses or any facts to which they testified, was held insufficient to support a finding that probable cause existed for the issuing of the warrant. p. 523.
From Allen Circuit Court; Lloyd Hartzler, Special Judge.
Alex Bedenarzik was convicted of possession of a still, and he appealed.
Reversed.
Robert A. Buhler, for appellant.
Arthur L. Gilliom, Attorney-General, Dale F. Stansbury, Deputy Attorney-General, and Albert M. Campbell, for the State.
OPINION
The defendant was charged, tried and convicted of possession of a still under § 2719 Burns 1926.
Appellant, at the proper time, filed a verified motion to quash the affidavit and search warrant and to suppress the evidence procured thereunder. The motion was overruled and the evidence admitted, to both of which rulings appellant excepted, and upon the exceptions presents the only questions to be decided.
Evidence was heard as to whether there was a sufficient showing of probable cause for the issuance of the search warrant. In addition to the affidavit for the search warrant, which is upon information and belief, and in the exact form prescribed by statute, the evidence consisted of the testimony of the city judge who issued the warrant. He testified that witnesses had appeared before him and testified on their oaths to facts constituting probable cause for the issuance of the search warrant, but that he did not remember the names of the witnesses nor the facts to which they testified. There was no other pertinent evidence.
It has been held that the determination of the question of whether there is probable cause is a judicial function. Wallace v. State (1927), 199 Ind. 317, 157 N.E. 657; Veeder v. U. S. (1918), 252 F. 414.
And that an affidavit on information and belief and containing only the affiant's conclusion upon the question of probable cause is not of itself a sufficient basis for the issuance of such warrant. Wallace v. State, supra; State v. Blystone (1928), 200 Ind. 173, 162 N.E. 233; U. S. v. Pitotto (1920), 267 F. 603.
It must be assumed that the issuing magistrate judicially decided that the evidence before him showed probable cause before he issued the search warrant. With the warrant itself before the trial court there would seem to be no necessity for any further showing that the magistrate considered the evidence sufficient. His testimony that he heard evidence which he believed established probable cause added nothing to the showing made by the warrant itself.
Since there was nothing before the trial court but the affidavit and the conclusion of the issuing magistrate as to the effect of what evidence he might have heard, we are confronted with the questions--may a warrant issue upon an oral showing of probable cause, and is the decision of the issuing magistrate as to the sufficiency of the evidence conclusive?
Courts of last resort, including this court, have, as a matter of course, reviewed decisions in cases where the trial court had, upon motion, determined for itself the question of the sufficiency of the evidence adduced before the magistrate issuing the warrant and, since we find no decision of any such court which suggests that the finding of the magistrate is conclusive, we must treat these cases as holding that it is not conclusive and that the trial court upon proper motion may inquire into the sufficiency of the showing of probable cause. Gwinn v. State (1929), 201 Ind. 420, 166 N.E. 769; Cornelius, Search and Seizure (2d), § 178.
Article 1, § 11, of the Constitution of Indiana provides: "The right of the people to be secure in their persons, houses, papers, ----- and effects, against unreasonable search, or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. -----" (The punctuation used is that of the original document.)
The construction of the last part of the sentence is unusual, but any interpretation of the language leads to the conclusion that the probable cause and the description of the place and person or thing to be seized shall be supported by the same oath or affirmation. The Legislature in all of its enactments upon the subject has provided for a written oath or affirmation. Prior to 1881 the statute provided that a verified complaint must be filed. Since the revision of 1881 the document to be filed has been described as an affidavit.
The general search warrant statute, § 2086 Burns 1926, provides:
"No warrant for search shall be issued until there is filed with the justice an affidavit, particularly describing the house or place to be searched and the things to be searched for, and alleging substantially the offense in relation thereto, and that the affiant believes, and has good cause to believe, that such things as are to be searched for are there concealed."
The following section...
To continue reading
Request your trial