Massantonio v. People

• Citation: 77 Colo. 392,236 P. 1019
• Decision Date: 01 June 1925
• Docket Number: 11053.
• Parties: MASSANTONIO v. PEOPLE.
• Court: Supreme Court of Colorado

236 P. 1019

77 Colo. 392

MASSANTONIO v. PEOPLE.

No. 11053.

Supreme Court of Colorado, En Banc.

June 1, 1925

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 385 P.2d 996

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 392 P.2d 294

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 398 P.2d 35

Error to District Court, Fremont County; James L. Cooper, Judge.

Julius Massantonio was convicted of unlawfully possessing intoxicating liquor, and he brings error.

Affirmed.

James T. Locke and Augustus Pease, both of Canon City, for plaintiff in error.

Wayne C. Williams, Atty. Gen., Riley R. Cloud, Asst. Atty. Gen William L. Boat-right, Atty. Gen., and Jean S. Breitenstein Asst. Atty. Gen., for the People.

BURKE J.

Plaintiff in error, hereinafter referred to as defendant, was fined $300 and sentenced to jail for 60 days on a verdict of guilty of unlawfully possessing intoxicating liquor. To review that judgment he brings error.

Defendant contends that the only evidence supporting the verdict was obtained by an unlawful search of his residence, made by the sheriff without warrant, and that prior to and during the trial defendant took all proper steps to recover, suppress and strike out said evidence. Assuming, without deciding, the correctness of these contentions we address ourselves to the admissibility of such evidence.

Section 7, article 2, of the Colorado Constitution reads:

'That the people shall be secure in their persons papers, homes and effects, from unreasonable searches and seizures; [77 Colo. 394] and no warrant to search any place or seize any person or thing shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.'

The Fourth Amendment to the federal Constitution reads:

'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 warrant 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 18 of article 2 of the Colorado Constitution reads in part:

'That no person shall be compelled to testify against himself in a criminal case. * * *'

Amendment 5 of the federal Constitution reads in part:

'Nor shall any person * * * be compelled, in any criminal case, to be a witness against himself. * * *'

So far as the question, now under consideration, is concerned these federal and state provisions are identical, and the same may be said in general of said federal provisions and the constitutional provisions of other states where this question has been considered. These state authorities are in hopeless conflict. About 12 of them are unequivocally committed to the rule admitting such evidence, and approximately an equal number to the rule excluding it. Others have shifted their positions from one side to the other. A number of these cases are notable for the strength and logic of dissenting opinions, and in some there is room for the argument that the rule has been stated obiter. There has been some uncertainty and divergence in the decisions of the United States District and Circuit Courts, and for that reason, and the further reason that said courts are governed by the decisions of the United States Supreme Court, we do not now notice these cases. The United States Supreme Court holds firmly to the rule that when timely motion is made for the return of the seized evidence it cannot, over objection, be used by the prosecution. Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. U.S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177; Gouled v. U.S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Amos v. U.S., 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.

The first 10 amendments to the United States Constitution are limitations on the federal power, and not applicable to the states. 12 C.J. p. 744, § 163. The United States cases are therefore persuasive, but not controlling.

Among the more important of the state cases supporting the rule that the evidence in question is inadmissible are: Youman v. Kentucky, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303; People v. Castree, 311 Ill. 393, 143 N.E. 112, 32 A.L.R. 357; State v.

Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383 .

Among the state courts holding the contrary may be noted: People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383; State v. Aime, 62 Utah 476, 220 P. 704, 32 A.L.R. 375; State v. Tonn, 195 Iowa 94, 191 N.E. 530.

Apparently but two cases in our own court have approached the subject (Pasch v. People, 72 Colo. 92, 209 P. 639) in which no constitutional question was discussed; and Imboden v. People, 40 Colo. 142, 90 P. 608, in which the seizure was by individuals, and there was no motion to suppress the evidence. The precise point is therefore apparently before us for the first time. So thoroughly has this question been examined by courts and text-writers, so exhaustive their reasoning, and so forceful their statements of conclusions, that a re-examination here could shed no additional light on the subject, and an attempted restatement result only in an experiment of doubtful value. Suffice it to say we have examined all these authorities with diligence and considered them with care, and have endeavored to follow that rule which, in our judgment, leaves the law a sword to the state and a shield to the citizen without converting it into a bomb proof dugout for their enemies. It remains therefore only to state, and briefly quote from the authorities whose reasoning and conclusion we adopt.

The general principal is thus stated by Greenleaf:

'Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.' Greenleaf on Evidence, p. 348, § 254.

Professor Wigmore, in his great work on Evidence, traces the history of this question in the United States Supreme Court from the far-reaching and alleged erroneous decision in Boyd v. U.S., supra, in 1885, to Adams v. N.Y., 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575, reversing that court's position in 1904; thence to Weeks v. U.S., supra, returning to the rule of the Boyd Case of 30 years earlier, but with the qualification that the legality of the seizure must first be determined under a motion to return. He notes the influence of the Boyd Case on the state courts, which followed the rule there established, and points out the fallacy of the assumption that an investigation of collateral issues was avoided by a motion to return the evidence and a preliminary hearing thereon.

'Since the enactment of the Eighteenth Amendment and its auxiliary legislation, a new and popular occasion has been afforded for the misplaced invocation of this principle; and the judicial excesses of many courts in sanctioning its use give an impression of maudlin complaisance which would be ludicrous if it were not so dangerous to the general respect for law and order in the community. * * *

'Looking still deeper, the mainstay of the special doctrine of Weeks v. U.S. is that the party whose documents were obtained by illegal search has a right to obtain their return by motion before trial. But no such consequence [77 Colo. 397] is implied in the Fourth Amendment. The object of the amendment was to protect the citizen from domestic

...