Loeb v. State

• Decision Date: 31 December 1923
• Docket Number: 23468
• Citation: 98 So. 449,133 Miss. 883
• Court: Mississippi Supreme Court
• Parties: LOEB v. STATE

98 So. 449

133 Miss. 883

LOEB v. STATE

No. 23468

Supreme Court of Mississippi

December 31, 1923

Division B

APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER Judge.

Susie Loeb was convicted of violating the prohibition law, and she appeals. Affirmed.

Judgment affirmed.

H. A. Shotts, for appellant.

The writer of this brief, after examining all the authorities available on Search and Seizure, arrived at the conclusion that section 2088, Hemingway's Code, section 1749, Code 1906, as amended by Laws of 1908, page 117, on which all of our search warrants for whisky are issued, is unconstitutional, in that it is in violation of the Constitutional rights of citizens guaranteed them in sections 23 and 26 of the Constitution of the state of Mississippi, as well as in violation of articles 4 and 5 of the Constitution of the United States, because under our present statute any credible person may go before a justice of the peace and make an affidavit that he has good reason to believe, and does believe that a certain person has intoxicating liquor in his possession for the purpose of sale, or to be given away to induce trade and under our statute the justice of the peace regardless of whether he thinks there is probable cause for the issuance of a search warrant or not, is compelled to issue the warrant, while under the Constitution, both state and federal, the only ground on which a lawful search warrant can issue is when probable cause has been shown to the justice of the peace, not as it may appear to the credible person who makes the affidavit, but when the credible person or persons makes the proof before the justice of the peace by stating facts--not what he believes or what some one else has told him, but to state facts so that the justice of the peace, not the affiant making the affidavit may decide from the testimony whether or not there is probable cause from the evidence or facts stated in the affidavit to cause him, the said justice of the peace, to find on consideration of the evidence that there is probable cause for issuing a search warrant.

In 32 Cyc., page 402, defining "Probable Cause" is "Belief founded on reasonable grounds, that apparent state of facts found to exist on reasonable inquiry, i. e., such inquiry as the given case rendered convenient and proper, which would induce a reasonable, intelligent and prudent man to believe the accused person had committed, in a criminal case; 'The Crime Committed.'"

Attention is also called to Livlar & Company v. The State, 53 So. 681. ANDERSON, J., says, after reviewing facts, states in conclusion: "This statute is one of the remedies provided for the enforcement of the laws of this state against the unlawful sale of intoxicating liquor and authorizes searches for seizure, and the destruction of the liquors 'kept,' etc., in violation of law, and, like all laws authorizing searches and seizures, must be strictly construed. 25 Am. and Eng. Encyc. Law (2 Ed.), 151, 152. "

The following authorities hold that affidavits and complaints for warrant of arrest in criminal cases generally must be made upon knowledge, and averments upon information and belief alone are insufficient. State ex rel. Register v. McGahey, 1 Ann. Cas. 653, note; Salter v. The State, 2 Okla. Crim. 464, 25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935; 102 P. 719; State v. Gleason, 32 Kan. 245, 4 P. 363, 5 Am. Crim. Rep, 172; Ex parte Burford, 3 Cranch, 448, 2 L.Ed. 495; United States v. Tureaud, 20 F. 621; State v. Mitchell, 1 S. C. L. (1 Bay) 267; Blythe v. Tompkin, 2 Abb. Pr. 468; People v. Heffron, 63 Mich. 527, 19 N.W. 170; Miller v. United States, 8 Okla. 315, 57 P. 836; Monroe v. The State, 137 Ala. 88, 34 So. 382; Swart v. Kimball, 43 Mich. 451, 5 N.W. 640; Mulkins v. United, 10 Okla. 288, 61 P. 925; United States v. Polite, 35 F. 58; Re Dana, 68 F. 895; United States v. Collins, 79 F. 65; United States v. Sapinkow, 90 F. 694; Johnson v. United States, 30 C. C. A. 612, 58 U.S. App. 313, 87 F. 187, 11 Am. Crim. 349; State v. Wimbush, 9 S.C. 309; Ex parte Dimmig, 74 Cal. 164, 15 P. 619; State v. Boulter, 5 Wyo. 236, 39 P. 883; Lippman v. People, 157 Ill. 101, 51 N.E. 872, 11 Am. Crim. Rep. 356.

An affidavit for a search warrant is not sufficient if it is made on information and belief and is not corroborated or supported in any way. 24 R. C. L. 708; Reg. v. Walker, 13 Ont. Rep. 83; Rex v. Kehr, 11 Ont. L. Rep. 517, 6 Ann. Cas. 612; State ex rel Register v. McGahey, 12 N.D. 535, 97 N.W. 865, 1 Ann. Cas. 650, 14 Am. Crim. Rep. 283; Rose v. State, 171 Ind. 662, 87 N.E. 103, 17 Ann. Cas. 228.

The judge or magistrate before whom the complaint is filed determines the question of existence of probable cause for the issuance of a search warrant and not the person who files or verifies the complaint and asks for the warrant. 24 R. C. L. 707; De Graft v. State, 2 Okla. Crim. Rep. 519, 103 P. 538; Kniseley v. Ham, 39 Okla. 623, 49 L. R. A. (N. S.) 770, 136 P. 427; Chipman v. Bates, 15 Vt. 51, 40 Am. Dec. 663.

The justice of the peace had no jurisdiction to issue the search warrant in question under the common law applicable to this state. Com. v. Hinds, 145 Mass. 182, 13 N.E. 397; Re Swan, 150 U.S. 637, 37 L.Ed. 1207, 14 S.Ct. 225; 19 Enc. Pl. and Pr. 324.

The search warrant being void and the defendant's constitutional right to be secure in her house and effects having been violated, it was the duty of the court to afford her that measure of protection coextensive with her constitutional rights, which could be adequately done only by placing her in statu quo upon her timely application which required the return of the goods seized and the suppression of the evidence. People v. Marxhausen, 204 Mich. 559, 3 A. L. R. 1505, 171 N.W. 557; Weeks v. United States, 232 U.S. 383, 59 L.Ed. 652, L. R. A. 1915B, 834, 34 S.Ct. 341, Ann. Cas. 1915C, 1177; Amos v. United States, 41 S.Ct. 261, 65 L.Ed. 647, and Amos v. U.S. Gould, 41 U.S. Supreme Ct. Rep. 261. And our own court speaking as late as March 6, 1922 in Tucker v. The State, 90 So. 845, in which Justice ANDERSON said, in the conclusion of his opinion, after citing Gouled v. The United States, 41 S.Ct. 261, 65 L.Ed. 647, and Amos. v. U. S. 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654: "There is ample authority holding that the court will not stop to inquire into whether the evidence offered was illegally obtained, and even where it was secured by an illegal search of the premises of the defendant, it will be received, and the only remedy of the defendant is an action for damages against those making the search, but we decline to follow these cases."

Now, in conclusion, allow me to say that the Constitutions of the United States, and of the several sovereign states, are the very foundation of the greatest government that God's sun has ever shown on, and let us be careful that in seeking a remedy for the evil of intoxicating liquor, that we don't thereby drive an entering wedge to split off and destroy that part of the Constitution that makes men and women of our great state of Mississippi secure in their homes.

S. C. Broom, Assistant Attorney-General, for the state.

In the present case we have an affidavit almost if not in the exact language of the statute; and the search warrant is likewise substantially the same if not in the exact language provided for in the statute. The statute having been complied with, the proceedings being regular under the statute, this case is therefore not within the rule as stated in Tucker v. State, 90 So. 845, and other cases following the rule as stated in the Tucker case, and must therefore be affirmed unless the statute itself is unconstitutional.

It is alleged to be unconstitutional because it seeks to define "probable cause" thereby making the finding of "probable cause" an administrative or executive act and not a judicial question. Much has already been written on this subject in cases now pending in this court, but we are going to write some more, not in the hope of adding anything substantial to what has already been said on the subject, but in the hope that we may present the question more clearly than may have been done on some previous occasion.

The case of Felix Goulet v. United States, reported in 65 L.Ed. at page 647, is to my mind one of the best reasoned cases on the subject, and this was followed by our court in the Tucker case. In the Goulet case the court held: "Search warrants may not be used as means of gaining access to a man's house or office and papers, solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful, and provides that it may be taken . . .

"Private papers of no pecuniary value in which the sole interest of the federal government is their value as evidence against the owner in a contemplated criminal prosecution, may not, consistently with the constitutional guaranty against unreasonable searches and seizures, be taken from the owner's house or office under a search warrant."

From this it will be seen that there is a limitation placed upon search and seizure by section 4 of the federal constitution by section 23 of the state constitution, and as I understand the rule to be, if the sole purpose of the search was to procure evidence for the state or, for the government in the prosecution of one charged with a criminal offense, then no search warrant could be obtained for any...