Commonwealth v. Wilkins

• Decision Date: 09 January 1923
• Citation: 243 Mass. 356,138 N.E. 11
• Parties: COMMONWEALTH v. WILKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 356

138 N.E. 11

COMMONWEALTH

v.WILKINS.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 9, 1923.

Exceptions from Superior Criminal Court, Middlesex County; Frederick Lawton, Judge.

Herbert Bray Wilkins was found guilty of keeping and exposing liquor for sale, and he brings exceptions. Exceptions overruled.

Defendant's exceptions were to the refusal, before trial, of his petition for the return of property alleged to have been illegally seized, and to the exclusion, at the trial, of evidence offered to show that liquor introduced by the commonwealth was obtained as the result of illegal seizure.Endicott P. Saltonstall, Dist. Atty., of Boston, and Raoul H. Beaudreau, Asst. Dist. Atty., of Marlboro, for the Commonwealth.

James P. Brennan, of Boston, for defendant.

RUGG, C. J.

This is a complaint charging the defendant with keeping and exposing for sale intoxicating liquors. The defendant before the trial filed a petition for the return of two bottles of liquor alleged to have been taken from his person by a police officer without right. This petition was denied. At the trial the defendant excepted to the admission in evidence of intoxicating liquors, setting forth that they were obtained by an illegal seizure by a police officer and offering to present evidence thereof an asking that he be heard by the jury at that time on the collateral issue so raised.

The question to be decided is whether intoxicating liquor obtained by an illegal seizure by a police officer is admissible in evidence against a defendant charged with crime in the courts of this commonwealth.

The underlying principle on which the decision of that question depends came before this court for adjudication in 1841. In Commonwealth v. Dana, 2 Metc. 329, the defendant was indicted under a lottery statute, and a lottery ticket and other materials seized by a police officer were admitted in evidence against the exception of the defendant. The opinion contains a review of the reasons which led to the adoption of article 14 of the Bill of Rights of the Constitution of this commonwealth, to the effect that:

‘Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers and all his possessions.’

It was contended that the warrant was illegal and also that seizure was made in excess of its authority. After discussing these points the decision was rested on a ground which ignored any distinction between these contentions. It there was said at pages 337, 338:

‘Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence, the court can take no notice how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question.’

That statement of the law has been followed and approved hitherto in this commonwealth in a large number of cases involving almost all grades of crime, including murder in the first degree. Property seized without search warrant by police officers has been admitted in evidence, even though rights of the defendant have been violated in securing possession of it. The constitutional aspects of the matter have been treated as settled by Commonwealth v. Dana, ubi supra, and the numerous cases following it: Commonwealth v. Certain Lottery Tickets, 5 Cush. 369, 374;Commonwealth v. Intoxicating Liquors, 4 Allen, 593, 600;Commonwealth v. Welsh, 110 Mass. 359;Commonwealth v. Taylor, 132 Mass. 261;Commonwealth v. Henderson, 140 Mass. 303, 5 N. E. 832;Commonwealth v. Keenan, 148 Mass. 470, 20 N. E. 101;Commonwealth v. Ryan, 157 Mass. 403, 32 N. E. 349;Commonwealth v. Tibbetts, 157 Mass. 519, 32 N. E. 910;Commonwealth v. Hurley, 158 Mass. 159, 33 N. E. 342;Commonwealth v. Byrnes, 158 Mass. 172, 33 N. E. 343;Commonwealth v. Brelsford, 161 Mass. 61,39 N. E. 677;Commonwealth v. Welch, 163 Mass. 372, 40 N. E. 103;Commonwealth v. Acton, 165 Mass. 11, 42 N. E. 329;Commonwealth v. Smith, 166 Mass. 370, 44 N. E. 503;Commonwealth v. Tucker, 189 Mass. 457, 470, 76 N. E. 127,7 L. R. A. (N. S.) 1056. In Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575, it was said in holding admissible in evidence papers seized in excess of the authorization of a warrant:

‘In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained.’

See Holt v. United States, 218 U. S. 245, 252, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138, and Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652.

Doubtless the raising of the question anew in this commonwealth is due to decisions of the Supreme Court of the United States interpreting the Fourth Amendment to the federal Constitution, which in substance is the same as the Fourteenth Article of our Bill of Rights already quoted. The precise point of the federal decisions, as we understand them, is that property of a defendant seized by or under the direction of an officer of the federal government in violation of rights secured by the Fourth Amendment to the Constitution of the United States cannot be used as evidence in a federal court against that defendant on trial for having committed a crime but should be returned to him on motion made before the opening of such trial. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746;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;Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319;Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647;Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654. Objection to such evidence is not too late, even at the trial of the defendant for the crime, provided it comes promptly upon the first notice which comes to the defendant of such illegal seizure of his property. On the other hand, property of a defendant seized by a police officer in excess of his legal warrant is admissible in evidence provided the question is raised first when the evidence is proffered at the trial. Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575. And property seized by private individuals without color of authority may be used by a special assistant to the Attorney General of the United States, to whom it has been truned over, as evidence in a criminal prosecution of the owner in the federal courts. Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159. In the Circuit Court of Appeals for the Fourth Circuit it was held in Kanellos v. United States, 282 Fed. 461, that property seized contrary to law by a state police officer was admissible in evidence on the trial of its owner charged with crime in the United States courts, there being no evidence that the seizure was made by arrangement with any federal officer. To the same effect is Youngblood v. United States (C. C. A.) 266 Fed. 795.

Those decisions are not binding on this court in interpreting similar provisions of the Constitution of this commonwealth. The interpretation of that instrument is vested finally in this court (Fairfield v. County of Gallatin, 100 U. S. 47, 52, 25 L. Ed. 544), except perhaps so far as it affects rights secured under the federal Constitution, treaties, and laws. See Opinion of Justices, 234 Mass. 597, and cases collected at page 607, 127 N. E. 525, at page 529;McCullough v. Virginia, 172 U. S. 102, 109, 110, 19 Sup. Ct. 134, 43 L. Ed. 382;Long Sault Development Co. v. Call, 242 U. S. 272, 37 Sup. Ct. 79, 61 L. Ed. 294. No federal question is here involved. The Fourth Amendment to the federal Constitution does not apply to proceedings in the state courts. As was said in 1887 by Chief Justice Waite in Spies v. Illinois, ...