Dunn v. Lowe

• Decision Date: 22 November 1909
• Citation: 89 N.E. 1046,203 Mass. 516
• Parties: DUNN v. LOWE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

203 Mass. 516

89 N.E. 1046

DUNN v. LOWE.

Supreme Judicial Court of Massachusetts, Bristol.

November 22, 1909

COUNSEL

Dana Malone, Atty. Gen., and F. B. Greenhalge, Asst. Atty. Gen for appellant.

Perry Jenney & Potter, for appellee.

OPINION

KNOWLTON C.J.

The plaintiff was engaged in the business of taking, buying and selling lobsters. The defendant is a deputy of the commissioners on fisheries and game of the commonwealth. The plaintiff was carrying by hand, through the streets of New Bedford, two sacks securely tied, containing lobsters. He had just received them from a common carrier, and had not opened them. It was not unlawful for him to take, hold or offer for sale these lobsters. The defendant met the plaintiff, and suspecting that the lobsters in the sacks had been taken held or offered for sale unlawfully, and acting under Rev. Laws, c. 91, § 91, he seized and opened the sacks, searched them, and removed the lobsters and measured them, all against the objection and protest of the plaintiff and without a search warrant, and then returned them to the sacks. These facts appear by an agreed statement; and the question of law presented is whether the plaintiff can recover for the alleged wrong.

The provision of law under which the defendant seeks to justify his conduct is Rev. Laws, c. 91, § 91, as follows: 'For the purpose of enforcing the provisions of section 88, any one of the commissioners on fisheries and game, or their deputy, or any member of the district police, may search in suspected places for, and seize and remove, lobsters which have been unlawfully taken, held or offered for sale.'

The first question is, what is the scope of the words 'search in suspected places for.' In the present case the lobsters were in the manual possession of the plaintiff. They were taken from his person. They were in his hands, and had the protection of his personal, manual control. We do not think authority to search in suspected places gives a right to seize property that is upon the person or in the hands of another, and to take it from him for the purpose of examining the contents of a receptacle which is seized while in his hands and which is taken from his person against his will. The statute does not contemplate or authorize such a violation of personal rights. It is directed to an examination of places, rather than to a direct interference with the person of one under suspicion, with...