Purkey v. Mabey

• Decision Date: 22 October 1920
• Citation: 33 Idaho 281,193 P. 79
• Parties: L. E. PURKEY, Appellant, v. GEORGE MABY, Respondent
• Court: Idaho Supreme Court

193 P. 79

33 Idaho 281

L. E. PURKEY, Appellant, v. GEORGE MABY, Respondent

Supreme Court of Idaho

October 22, 1920

ASSAULT-JUSTIFICATION OF-SEARCH AND SEIZURE.

A search-warrant issued under C. S., sec. 2637, for the search of a place where there was probable cause to believe intoxicating liquors were sold, furnished, delivered, given away or otherwise disposed of in violation of law, or kept for such purposes, cannot be extended so as to constitute authority for the officer to whom it is issued to search a person not connected in any way with the place being searched, who merely happens to be upon the premises and who is not mentioned or described in the affidavit of probable cause upon which the warrant was issued.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action for damages for assault. Judgment for defendant. Reversed.

Reversed and remanded. Costs awarded to appellant.

Edens &amp Anderson, for Appellant.

Our constitution provides in relation to searches and seizures "And no warrant shall issue without probable cause shown by affidavit particularly describing the place to be searched, the person or thing to be seized." (Art. 1, sec. 17.)

"The law knows of no such warrant as one to arrest suspected persons without naming them, without any complaint against any person, leaving it to the officer to suspect whom he pleases, or to arrest every person that any other person suspects." (Grumon v. Raymon, 1 Conn. 40, 6 Am. Dec. 200.)

An officer who executes a search-warrant which does not describe the place to be searched is a trespasser. (Reed v. Rice, 2 J. J. Marsh. (Ky.) 44, 19 Am. Dec. 122.)

It may be said with greater force, that an officer who searches a man not described or named in the warrant is liable. The person is more sacred than property. (People v. Glennon, 37 Misc. 7, 74 N.Y.S. 794.)

Budge & Merrill, for Respondent.

The object and purpose of the act was to enable an officer to seize any intoxicating liquors which might be unlawfully kept upon any premises, and the description of the place to be searched was simply to enable the officer to identify it.

Officers should have great latitude in the discharge of their duties when they are endeavoring to enforce the law. The contention of the plaintiff is highly technical, and not in keeping with the spirit of our statute. (Collins v. Lean, 68 Cal. 284, 9 P. 173.)

RICE, J. Morgan, C. J., concurs. Budge, J., did not participate in the decision.

OPINION

RICE, J.

This is an action for damages for assault alleged to have been committed upon the person of appellant. Upon the trial respondent attempted to justify upon the grounds that he was an officer of the law and was acting under the authority of a search-warrant duly issued by a court of competent jurisdiction. The search-warrant was issued to respondent as sheriff of Bannock county, requiring him as such officer to search the Bank Cigar-store in the city of Pocatello for intoxicating liquors. It was issued under C. S. , sec. 2637, formerly chap. 15, sec. 8, p. 34, 1911 Sess. Laws. The appellant was not connected with the Bank Cigar-store as owner or employee, but was a mere bystander or visitor there. Respondent, while executing the search-warrant, proceeded to search the person of appellant. The court instructed the jury to return a verdict for respondent.

Art. 1 sec. 17 of the constitution, provides: "The right of the people to be secure in...