In re Dissenting
| Decision Date | 25 January 1927 |
| Parties | Dissenting Opinion. |
| Court | Indiana Supreme Court |
MARTIN and GEMMILL, JJ. ---The appellant is admittedly guilty of possessing, in violation of the law, a still or distilling apparatus and of using the same for the unlawful manufacture of intoxicating liquor.
The record shows that he had for his place of business a bakery at 1430 Broad street in the city of Newcastle Indiana, and that his working hours were from a little after midnight until eight or nine a. m. He had bakery equipment on the ground floor and a very elaborate distilling outfit in the basement, used for the unlawful manufacture of intoxicating liquor. The still was installed inside an old saloon refrigerator eight by twelve feet in size and six feet high. The return to the search warrant showed "1 still and distilling apparatus (which constitute Exhibits 1 to 24) 90 gallons of mash and 18 gallons of intoxicating liquor," and the officers testified that there were three barrels of mash (fifty to sixty gallon barrels) which were warm and in the process of fermentation. A water pipe ran down from the ground floor and supplied water for the cooling process of condensation, and other equipment consisted in part of coils, pipes, rubber hose, funnels chemists' measuring glass, alcohol testing thermometer yeast, barrels, jugs, kegs, buckets, earthenware jars bottles, a bag of one-half inch corks, and jugs of white mule whisky, brandy and alcohol.
We do not believe that any of appellant's constitutional rights have been invaded but, on the contrary, believe that he was given a fair trial, which was free from error. He offered no evidence in dispute of the facts proved by the state and relies solely on the alleged invalidity of a search which we believe was in all things sufficient. He was found guilty and was fined and sentenced by the court to imprisonment, and we respectfully dissent from the decision of this court reversing the judgment.
The court in its opinion announces two radical changes in important parts of the intoxicating liquor law and overrules two well-settled rules of law that have prevailed in Indiana for many years. We cannot agree with the other members of the court in making these changes in the law, for the reasons hereinafter set out.
The first of the changes is that the burden of proof is upon the state to establish the validity and legality of the search warrant rather than upon the defendant to establish its invalidity and illegality. The court says "The appellee assumed the burden upon the issue presented by the general denial of appellant's verified motion to quash the writ for the search, to sustain the writ for the search."
If this is intended to be a statement of the record, it is erroneous, because the record shows that thereupon "the defendant (appellant) to maintain and support the issues in his behalf gave, offered and introduced the following evidence...," and after the record notation "defendant rests," the state introduced its evidence. If it is intended to be a statement of the law, we believe that it is unsupported either by reason or by precedent, and an examination of the three cases cited to support the proposition shows that they do not so hold.
While the court, in State v. Blumenstein (1925), 186 Wis. 428, 432, said: "It devolved upon the State, before the warrant could be introduced in evidence, to show the constitutional and statutory requisites had been complied with," the court held that the recital in the search warrant that the justice was "satisfied that there was reasonable cause" for the belief that defendant was violating the law, was a sufficient finding of probable cause; and that, independent of such recital, the issuance of the warrant itself was equivalent to a formal adjudication of probable cause. The case of Wells v. State (1924), 135 Miss. 764, 100 So. 674, merely held that where evidence obtained by a search warrant is offered and objected to and a demand made that the affidavit and warrant be produced before the evidence is received, the affidavit and warrant must be produced or its loss proved, or proof of a waiver at the time of the search be shown, before the evidence is admissible. No question as to the sufficiency or validity of the affidavit or search warrant was raised in that case. In the third case cited, Meno v. State (1925), 197 Ind. 16, 148 N.E. 420, it was said: "The attack here is not against the search warrant; there was not a motion to quash the writ." Citation of the Blumenstein case was there made to support dictum to the effect that if the validity of the writ had been questioned, it was the duty of the state to show "that all the constitutional and statutory requirements had been complied with."
The law on this question of where the burden of proof lies, has heretofore been exactly opposite to the present decision of the court. Where a search warrant is regular upon its face, the burden to prove that it was irregularly issued is upon the defendant. Underhill, Criminal Evidence (3d ed.) 745, p. 1025. In Morgan v. State (1923), 194 Ind. 39, 141 N.E. 790, the appellant contended that a search and seizure had been made in violation of designated sections of the State and Federal Constitutions and this court said: "One who seeks affirmative relief on the ground that officers of the court have violated his constitutional rights in the execution of process has the burden of establishing facts from which it will affirmatively appear that his rights were invaded." In Terrell v. Commonwealth (1922), 196 Ky. 288, 244 S.W. 703, the court said: "While the information upon which a search warrant is issued must be furnished by affidavits of the character required by the Constitution and laws of the state... if the search warrant is regular and sufficient in its terms and upon its face and is issued by an officer authorized by law to issue such writ the same presumption respecting its validity must prevail that is required by law to be accorded any other process, civil or criminal, that is regular on its face; and if the information upon which it was issued is so defective or insufficient as to render the warrant invalid, that fact can and must be relied on by the defendant by way of defense, and be established by evidence introduced by him, just as he must assume the burden of proving any other ground of defense upon which he relies." In Flora, Trustee, v. Brown (1923), 79 Ind.App. 454, 138 N.E. 767, the court said: "The presumption is that the officers are doing their duty, keeping within the law, and hence the party who challenges the act of an officer must show that there is no authority in the officer to do the act in question."
On the hearing on appellant's verified motion to suppress evidence and quash the affidavit for the search warrant, the warrant and the return, the appellant, to sustain his motion, introduced no evidence except his Exhibit No. 1, which was his said verified motion. The justice of the peace who issued the warrant, the prosecuting attorney, and the police officer who made the affidavit for the search warrant were all present, yet appellant, to make out his case in support of his motion, did not call upon them or upon any other witness to testify to any fact with reference to the question as to whether probable cause existed for the issuance of the warrant, but relied solely upon the affidavit of appellant.
The state, in resisting appellant's motion, proved by the justice of the peace, the prosecuting attorney and the desk sergeant of the police department who executed the affidavit, that the search warrant was issued regularly and in accordance with the statutory requirements.
The desk sergeant also testified that there had been a great deal of complaint at police headquarters about the appellant running a still and that he had walked past appellant's bakery on the sidewalk where there was an opening below, with some kind of covering, in which there was holes, and that he had smelled an odor like "swill." In describing this smell, he said that he had never before smelled liquor being made, but that it was the same kind of a smell or odor as when "we used to feed hogs and put bran and water in the trough until it fermented." He said that he could not detect the odor in front of any of the other stores in the neighborhood, but only in front of the bakery, and that the policemen had had many conversations at police headquarters about what was going on and what this smell was, and that, after hearing what the officers said and after smelling it himself, he had a firm belief that the appellant was manufacturing intoxicating liquor. He thereupon made the affidavit for a search warrant.
We believe that the appellant had the burden to prove that probable cause for the issuance of the search warrant was not shown and that he failed to make such proof. He failed to offer any proof, although all the witnesses who knew the facts were present, to substantiate his allegation that the justice of the peace had nothing before him which constituted "probable cause" for the issuance of the search warrant. The circuit court heard the evidence and decided in favor of the state. This court, entirely overlooking the evidence which we have set out above, and notwithstanding the long-established rule that it will not undertake to weigh conflicting evidence, says: "The affidavit before the court is the sole and only proof in support of probable cause upon which the search warrant was to issue, as is conclusively shown by the motion to quash the writ." It considers as "conclusive" the matter stated in the verified motion of this illicit manufacturer of liquor although the matter set forth in the motion can only be stated by him on his...
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