Hoyer v. State

• Citation: 193 N.W. 89,180 Wis. 407
• Parties: HOYER v. STATE.
• Decision Date: 03 April 1923
• Court: Wisconsin Supreme Court

180 Wis. 407

193 N.W. 89

HOYER

v.STATE.

Supreme Court of Wisconsin.

April 3, 1923.

Error to Circuit Court, Racine County; E. B. Belden, Judge.

Sophus Hoyer was convicted of unlawfully transporting intoxicating liquors, and he brings error. Reversed and remanded, with directions to discharge defendant.

Plaintiff in error, hereinafter designated as defendant, was prosecuted on an information charging him with violation of section 1543 (3), Stats., by the unlawful transporting of intoxicating liquors in the city of Racine, November 24, 1921.

At the time in question, defendant, a resident of Racine, was the owner of a Dort automobile, which had been left by him in a public garage during his absence on a hunting trip for about 12 days prior to Sunday November 24th, the day in question. He returned to Racine on the morning of that day and first again used the automobile at about noon, in returning a gun which he had borrowed to the sheriff of Racine county. He had placed alcohol in the radiator. He with two friends drove around the city during the afternoon. Between 5 and 6 o'clock p. m. his automobile was injured in a collision with another car. The radiator of his car took fire immediately after the collision. The fire department were called and put it out, and then moved the automobile about a half a block, and it was left standing next the curb on a city street. The defendant left and was gone about one-half hour, and was then informed that his automobile was being taken. He returned and found that it was being towed away by Deputy Sheriff Lindstrum, acting under instructions from the sheriff. Defendant then protested against such action but without avail. Later in the same evening he called at the office of the sheriff and was then informed that intoxicating liquor had been found in the automobile and that it had been seized on that account. He then denied knowledge of any such having been in the car. He was arrested on the following day charged as above stated.

Upon the trial, Deputy Sheriff Lindstrum testified for the state that he and one Kosterman, also a deputy sheriff, passed by the place of the accident about 6 p. m. on that Sunday and both stopped at the other car. Lindstrum then went alone to the defendant's car. Neither had any search warrant referring to this car or any warrant for the arrest of anybody in connection therewith. He also testified:

“I went on the south side of this car, and standing there I could smell something funny. I happened to see a package in there. I went in the car, and I seen a package there. I opened the door and went in and saw a package in the hole back of the seat and put my hand in there and got hold of a broken bottle. There was no cover on the hole, which was about 10 by 14 inches. I took out the broken bottle and looked it over. I thought it was Eau de Vie. I am familiar with the odor of intoxicating liquors and could detect such when I observed them.”

He also testified on the preliminary examination, made a part of the record here, that the newspaper bundle in question was not sticking out, but was jammed down in the compartment, and that at this time he went all through the car.

The other deputy, Kosterman, testified that, upon being called over to defendant's car by Lindstrum, he received the broken bottle and then stepped on the running board of the car and reached in and pulled out four other bottles from a little open pocket back of the seat; that he detected an unusual odor there, smelled like Eau de Vie, the national drink of Denmark. The testimony was undisputed that the five bottles contained gin, with an excess of alcohol.

Prior to the hearing on the preliminary examination the defendant, upon his affidavit reciting his ownership of the automobile and its being on one of the public highways, that the deputies Lindstrum and Kosterman, without his consent and without authority, searched the said automobile and forcibly seized and carried away from the same certain bottles or containers containing beverages therein, and seized the said automobile; that all such was an unlawful and unreasonable search and illegal seizure and without search warrant or warrant for his arrest, all contrary to constitutional provisions; and that it was proposed to use the articles so found as evidence against him in the prosecution then pending, moved the court commissioner for an order requiring the return of the said automobile and the property found or seized therein, and to suppress all testimony obtained by reason of such unlawful search and seizure. No counter affidavits were presented.

This motion was denied by the court commissioner. The defendant was bound over after a preliminary examination, and before trial again renewed the same motion, which was again denied. Upon trial, the defendant challenged the use of any such evidence on the same grounds.

The defendant denied any knowledge of the fact of liquors being in said automobile and testified that the covers on the openings on the back of the automobile in which the bottles were found were closed at the time he left the automobile after the collision. The two persons with him during the afternoon also so testified.

The defendant was found guilty and July 17, 1922, sentenced to the house of correction in Milwaukee county for 90 days. Subsequent thereto an order was made directing the sale of the automobile so seized by the officers. Thereafter defendant sued out this writ of error.

Foley & Brach, of Racine, for plaintiff in error.

Herman L. Ekern, Atty. Gen., and Thorwald M. Beck, Dist. Atty., and J. A. Simpson and G. E. Smalley, Asst. Dist. Attys., all of Racine, for the State.

ESCHWEILER, J. (after stating the facts as above).

[1][2] Defendant's uncontradicted affidavit, used before the preliminary examination and again before trial, disclosed that the automobile and the five bottles of liquor were possessed by the officers as the result of an unlawful search and seizure, and such should have been so held as a matter of law. When the same question is considered in connection with the testimony given by the deputy sheriffs on the preliminary examination, and again at the trial the result is the same. Under their testimony the situation presented to these officers at the time they entered the automobile and took its contents was one which, at the most, might have justified the issuance of a search warrant by a magistrate. The granting of such a writ, however, is a matter for judicial determination and not within the much more limited field of the discretion vested in executive or administrative officers(State v. Peterson, 27 Wyo. 185, 194 Pac. 342, 13 A. L. R. 1284), and the many authorities in that case cited. The search and seizure in this case was, upon the facts presented, without sufficient warrant in law and therefore unlawful.

Notwithstanding this, the evidence thus procured was received, and there is for consideration the presently much vexed question whether a trial court, when challenged as here, shall halt in the trial sufficiently to determine whether or not evidence offered by the state against a defendant charged with a crime has been obtained by the officers of the state by unlawful means, and particularly if in violation of rights secured to the defendant by constitutional guarantees, and if found to have been so obtained reject it.

The constitutional provisions particularly relied upon by defendant, so far as material, are as follows:

Article 1, § 8. “No person * * * shall be compelled in any criminal case to be a witness against himself.”

Article 1, § 11. “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Section 8 corresponds in substance with article 5 and section 11 is identical with article 4, respectively, of the amendments to the United States Constitution. Such federal provisions are not here asserted because not concerned with state action. Minn. & St. L. R. R. v. Bombolis, 241 U. S. 211, 217, 36 Sup. Ct. 595, 60 L. Ed. 961, L. R. A. 1917A, 86, Ann. Cas. 1916E, 505; Kentucky F. Corp. v. Paramount A. E. Corp., 171 Wis. 586, 590, 178 N. W. 9.

In passing upon such question arising from similar constitutional provisions there are two clearly opposed views. Some courts early adopted and have followed the doctrine that neither preliminary to, nor upon the trial of, a criminal cause will the court consider the question as to the means used in obtaining the offered evidence, relegating the defendant to his action for damages if there were any unlawful invasion of his constitutional rights. Among recent cases so holding, with numerous citations to others, are the following: State v. Tonn (Iowa) 191 N. W. 530 (which case evidently, though not expressly, so stated in the majority opinion is an overruling of their holding to the exact opposite of less than a year before in State v. Rowley [Iowa] 187 N. W. 7);Billings v. State (Neb.) 191 N. W. 721;People v. Mayen (Cal. Sup.) 205 Pac. 435;Johnson v. State, 152 Ga. 271, 109 S. E. 662, 19 A. L. R. 641;Comm. v. Tucker, 189 Mass. 457, 470, 76 N. E. 127, 7 L. R. A. (N. S.) 1056;State v. Pauley (N. D.) 192 N. W. 91.

The federal and many other courts, however, have held that on proper challenge the state will not be permitted to use, against a defendant charged with crime, evidence which appears to have been seized or obtained by government officials by or through a violation of constitutionally guaranteed rights; Amos v. U. S., 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, holding that liquor found through an unlawful search of defendant's home should, on demand, have been returned to him and could not be used as evidence over his objection; Gouled v. U. S., 255 U. S....