Flum v. State
| Decision Date | 13 November 1923 |
| Docket Number | 24,331 |
| Citation | 141 N.E. 353,193 Ind. 585 |
| Parties | Flum v. State of Indiana |
| Court | Indiana Supreme Court |
From Marion Criminal Court (54,157); James A. Collins, Judge.
Frank Flum was charged with violations of the prohibition law. From a judgment of conviction, he appeals.
Reversed, with instructions.
Robert R. Dalton, for appellant.
U. S Lesh, Attorney-General, and Mrs. Edward Franklin White Deputy Attorney-General, for the State.
Appellant was indicted upon two counts; first, with having unlawfully manufactured, transported, possessed, and kept intoxicating liquor, and having the same in his possession with intent to sell, barter, exchange, give away, furnish and otherwise dispose of the same; and second, with unlawfully having and possessing a certain still for the manufacture of intoxicating liquor. As a result of the trial by the court upon his plea of not guilty, the court made its general finding of guilty, which was followed by judgment.
November 16, 1922, certain police officers, the sheriff, and a federal officer, went to the home of appellant and under the authority of a search warrant searched appellant's dwelling house and the premises surrounding the same and found, as shown by the return to the search warrant, three stills, a quantity of mash, and ten gallons of white mule whisky, which facts were testified to upon the trial by two of the officers, the only witnesses for the state.
Error is predicated upon the refusal of the trial court to allow appellant to file his verified motion to quash the affidavit the search warrant, the return thereon, and to suppress the evidence, and in permitting the witnesses for appellee, who were the officers who made the search, to testify to what they found when making the search by virtue of such warrant, and that the finding of the court is not sustained by sufficient evidence.
Before arraignment and plea, appellant offered to file in open court his verified motion to quash the affidavit on which the search warrant was issued, and to quash the search warrant and the return thereon, and to restrain the officers and the sheriff from testifying in the cause concerning any matter learned while executing said invalid warrant, and that they be ordered and directed not to produce any evidence seized while executing said search warrant, and that such evidence be suppressed; which offer to file was refused by the court, to which ruling appellant at the time excepted.
The affidavit upon which the search warrant was issued described the premises as section D Beech Grove, section 21, township 15 north, range 4 east, in the city of Indianapolis, Marion county, Indiana, and the warrant directed the search of the premises described in the affidavit. The objection to the search warrant in the motion offered to be filed was that the description was general, indefinite, and uncertain, and did not describe or identify the dwelling house or land owned and occupied by appellant, and that said search and seizure made by the officers was in derogation of the rights of appellant and in violation of the guaranties afforded him by the constitution of the State of Indiana. Said motion averred that section D of Beech Grove is approximately 2,500 feet long and 1,800 feet wide, and divided into lots and out lots to the number of more than 125, which are owned by approximately seventy-five distinct and different individuals; and that there are more than twenty-five buildings located on said section D of Beech Grove which include dwelling houses, a grain elevator, and a storage house; that the premises of appellant consist of out lots 32, 33, 34, 35, and 36 of said section D, Beech Grove, located upon which is his dwelling house which is a frame structure of two rooms.
Article 1, § 11, of the Constitution of Indiana, § 56 Burns 1914, provides that "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." Section 8340 Burns 1914, Acts 1907 p. 27, concerning intoxicating liquors provides that "no warrant for search shall be issued until there has been filed with the justice, judge, or mayor an affidavit describing the house or place to be searched. * * *"
Appellant's motion which was offered for filing, contesting the validity of the affidavit for the search warrant, the search warrant and the return thereon, was, for the purpose of consideration of the court in making its ruling, to be taken as true, unless and until controverted upon a trial of the issue made by it. It was before the court by virtue of said motion, together with the affidavit for the search warrant, that the premises named in the application, and referred to in the search warrant to be searched, was section D of said Beech Grove, which contained, as shown by the verified motion of appellant, 125 lots upon which were twenty-five separate buildings, all but two of which were dwelling houses; and the court is further informed by the motion that the affidavit for the search warrant did not describe any dwelling house or infer that a dwelling house was upon the premises described as section D of Beech Grove. The description of the premises to be searched in an affidavit for a search warrant under our Constitution must be so specific as to leave no discretion to the officer as to what place he is to search, but fully directs him as to the particular premises and property upon which he is to execute his warrant.
The colonists were harassed by the inquisitorial warrant known as the "writ of assistance," which later developed into the more feared and detested judicial writ known as the "general warrant," which warrants laid the foundation for the protection to the colonists against such unreasonable searches and seizures, by constitutional restraint. The search warrant must speak with clearness and be as specific as the constitution itself. From the description given the officer by the search warrant, he could not tell which of the twenty-five houses in said Section D he was to search. The search warrant was void for the reason that the description of the place to be searched was indefinite and uncertain. Rose v. State (1909), 171 Ind. 662, 668, 87 N.E. 103, 17 Ann. Cas. 228, and cases there cited.
It is the law that in obtaining and executing search warrants, there must be strict compliance with whatever formalities are required by law. United States v. Borkowski (1920), 268 F. 408. and it is equally firmly established that this right shall receive a liberal construction in its application to guarantee such right to the people. Gouled v. United States (1921), 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647.
If the seizure is illegal, for the reason that it was without warrant or by virtue of an improper warrant, any evidence gained thereby--whether it be the instruments used to commit the crime, or oral evidence of what was found or seen in such unlawful search--is incompetent against the accused, and a conviction based thereon ought to be reversed. Boyd v. United States (1885), 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. United States (1913), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834, Ann. Cas. 1915C 1177; Silverthorne Lumber Co. v. United States (1919), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.
The affidavit and search warrant being insufficient, the search and seizure were unauthorized, and appellant's motion to quash should have been ordered filed. The ruling of the court refusing permission to file the motion to quash was error. The crucial question in this case is: Will an officer who has searched the dwelling house and premises appurtenant thereto under the authority of an illegal search...
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