Commonwealth v. Rubin

• Decision Date: 12 December 1923
• Docket Number: 86-1924
• Citation: 82 Pa.Super. 315
• Parties: Commonwealth v. Rubin, Appellant
• Court: Pennsylvania Superior Court

82 Pa.Super. 315

Commonwealth v. Rubin, Appellant

No. 86-1924

Superior Court of Pennsylvania

December 12, 1923

Argued November 19, 1923

Appeal by defendant, from judgment of Q. S. Armstrong Co., Sept Sessions, 1923, No. 26, on a verdict of guilty in the case of Commonwealth of Pennsylvania v. Harry Rubin.

Indictment for illegal possession and transportation of liquor. Before King, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

Errors assigned were in discharging rule to show cause why the liquor and automobile seized under the State Prohibition Act should not be returned, various rulings on evidence and the sentence of the court.

Affirmed.

H. D Hirsh, and with him E. O. Golden, for appellant. -- The police power of the state is not justified, without a search warrant, under paragraph 9 of the Act of March 27, 1923, P. L. 34, in conducting unlimited searches and seizure of property of persons while on the public highway: 8 Ruling Case Law 285; U.S. v. Rembert, 284 F. 996.

Evidence obtained while conducting an unlawful search was inadmissible: U.S. v. Dziadus (U. S. District Court, N.D. W. Va.), 289 F. 837.

No appearance and no printed brief for appellee.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

PORTER, J.

The indictment in this case charged the defendant with the unlawful transportation of intoxicating liquor for beverage purposes, in violation of the act entitled " An act concerning alcoholic liquors" etc., approved March 27, 1923. The trial resulted in a conviction and sentence, from which we have this appeal by the defendant. The evidence clearly established the guilt of the defendant, but he complains that the manner in which the liquor was seized by the officers of the Commonwealth and used as evidence at the trial involved a violation of his constitutional rights. The defendant while driving a motor vehicle along the public highway, was arrested without a warrant by a member of the State Constabulary, who found in the vehicle one hundred bottles of intoxicating liquor, whereupon the officer seized the liquor and the vehicle, made an information before a justice of the peace charging the defendant with violation of the statute; the justice duly issued his warrant and, after a hearing, held the defendant to bail to answer at the next court of quarter sessions, and the liquor and vehicle seized were by the constable delivered to the district attorney of the county. The defendant subsequently presented to the court his petition setting forth that he had been driving his automobile along the public highway in a careful and lawful manner without arousing any suspicions whatever, when he was ordered to stop by the officer, who proceeded to search the vehicle and finding the liquor seized the same and the vehicle; that the officer had no search warrant or warrant for the arrest of the defendant; that the arrest, search and seizure were in violation of the fourth and fifth amendments of the Constitution of the United States; that the property was taken from the possession of the petitioner unlawfully, was then in the possession of the district attorney who proposed to use it as evidence upon the trial of the defendant, which would be in violation of the defendant's rights. The petition prayed for a rule upon the district attorney and the arresting officer to show cause " why liquors and automobile seized under the State Prohibition Act should not be returned to him, and that the bond on file in this case be declared cancelled and to no effect; and that the district attorney and the arresting officer should be restrained from giving any testimony as to what they found in the automobile." The court granted a rule to show cause, to which the district attorney filed an answer averring that the officer who arrested the defendant had been notified that " the said Harry Rubin and Lawrence Peters were driving a Buick automobile and that it contained liquor; " that the said officer had reasonable ground to believe and did believe that a misdemeanor was being committed, and, " upon stopping the said automobile without a diligent search he found eighty pints and twenty quarts of intoxicating liquor." The court, after a hearing, discharged the rule, to which action the defendant excepted and here assigns for error. The other assignments of error refer to the admission in evidence, notwithstanding the objection of the defendant, of the liquors seized and the testimony of the officers as to the manner in which the arrest was made and the finding of the liquors in the automobile.

The questions involved are the following: (1) Did the court err in refusing to discharge the defendant from custody and decree that his bond be cancelled, because of the manner of his arrest? (2) Was there error in the refusal of the court to order that the liquors be returned to the defendant, because of the manner in which they were seized? (3) Did the court err in admitting in evidence the liquors and the testimony of the officers who seized them while in course of transportation? It is contended on behalf of the defendant that his arrest, the search of his automobile, and the seizure of the liquors involved a violation of his rights guaranteed by the fourth and fifth amendments of the Constitution of the United States, and by Article I, section 8 of the Constitution of Pennsylvania.

The fourth and fifth amendments of the Constitution of the United States contain no restrictions on the powers of the states but were intended to operate solely on the Federal government and the Federal courts: Brown v. New Jersey, 175 U.S. 172; Bolln v. Nebraska, 176 U.S. 83. We have, therefore, to consider only the provision of the Constitution of Pennsylvania, invoked by the defendant, which provides that: " The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant." The appellant insists, that under this provision of the Constitution, no arrest, for the offense with which he is charged, is lawful without a warrant, issued on probable cause supported by oath. Whether this be the true construction of the Constitution is the main point in the cause. The substance of the provisions of this section of the Constitution of 1874 had been embodied in all the earlier Constitutions of the Commonwealth. The provisions of this section, so far as concerns warrants, only guard against their abuse by issuing them without good cause, or in so general and vague a form, as may put it in the power of the officers who execute them to harass innocent persons under pretense of suspicion. Concerning such a constitutional provision, Chief Justice Tilghman, in Wakely v. Hart, 6 Binn. 316, said: " It is nowhere said, that there shall be no arrest without warrant. To have said so would have endangered the safety of society. The felon who is seen to commit murder or robbery, must be arrested on the spot or suffered to escape. . . . These are principles of the common law, essential to the welfare of society, and not intended to be altered or impaired by the Constitution. The whole section indeed was nothing more than an affirmance of the common law, for general warrants had been decided to be illegal; but as the practice of issuing them had been ancient, the abuse great and the decisions against them only of modern date, the agitation occasioned by the discussion of this important question had scarcely subsided, and it was thought prudent to enter a solemn veto against this powerful engine of despotism. I am therefore of opinion, that the defendants were justified in making the arrest, if they could prove the plaintiff guilty of larceny, consequently the record tending to prove the larceny was legal evidence." The arrest there involved was, in fact, made upon suspicion that the party arrested had been guilty of felony. The important point there decided was that the constitutional provision " was nothing more than an affirmance of the common law," and did not prohibit the arrest of an offender without a warrant, in circumstances warranted by common law principles. A constable may, without a warrant, arrest a person for an affray which takes place in his presence. " There is no danger to the liberty of the citizen in this; for if the arrest and detention be improper, the prisoner can have instant redress by writ of habeas corpus, and the constable may be punished by indictment, or subjected to damages in an action of trespass. On the other hand, were the law otherwise, the means of securing the persons of prisoners, and of acting with decisive effect in quelling affrays and riots, would be greatly and unnecessarily lessened" : Com. v. Deacon, 8 S. & R. 47. In Russell v. Shuster, 8 W. & S. 308, which was an action of trespass for false imprisonment, the arrest had been made without a warrant, upon suspicion alone, there was no allegation that a felony had been committed by any person; the greater part of the evidence was from the contents of the trunk of the defendant, examined with his consent after his arrest. Chief Justice Gibson said, in his opinion in that case: " A constable may justify an arrest for reasonable cause of suspicion alone." The duties and powers of a constable, at common law and under our statute, were discussed by Agnew, J., in McCullough v. Com., 67 Pa. 30; it was there declared, in substance, that the authority of the officer to arrest...