Salt Lake City v. Wight

• Decision Date: 09 February 1922
• Docket Number: 3733
• Citation: 205 P. 900,60 Utah 108
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. WIGHT, Judge

205 P. 900

60 Utah 108

SALT LAKE CITY v. WIGHT, Judge

No. 3733

Supreme Court of Utah

February 9, 1922

Rehearing denied April 21, 1922.

Application by Salt Lake City for a writ of certiorari to L. B. Wight, as Judge of the District Court of Salt Lake County. Defendant on petition of Mrs. R. C. Jones, entered an order suppressing as evidence against petitioner certain intoxicating liquor ordering it destroyed, and ordering that a marked silver dollar be returned to petitioner. Plaintiff brings certiorari.

ORDER VACATED.

Wm. H Folland, City Atty., and Shirley P. Jones, Asst. City Atty., both of Salt Lake City, for plaintiff.

R. Gilray and F. C. Loofbourow, both of Salt Lake City, for defendant.

CORFMAN, C. J. WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CORFMAN, C. J.

The plaintiff, Salt Lake City, a municipal corporation, applied for and was granted a writ of certiorari requiring the defendant, as a judge of the district court of Salt Lake county, to certify to this court for review a transcript of certain collateral proceedings had before him as said judge for the purpose of determining why certain personal property alleged to have been unlawfully seized and held by the plaintiff should not be returned to the claimant without first being used or received in evidence as exhibits upon a trial of a criminal case pending before said district court wherein Salt Lake City is plaintiff and one Mrs. R. C. Jones is the defendant. Said record has been duly certified to this court and the matter brought on for hearing in the usual way.

The record shows that on January 6, 1921, said Mrs. R. C. Jones was tried and convicted by a jury in the city court of Salt Lake City upon a complaint of the plaintiff charging her with having committed the offense of selling intoxicating liquor in violation of the ordinances of Salt Lake City. From said conviction an appeal was taken to the said district court, where the case was regularly brought on for trial before the defendant as judge sitting with a jury January 17, 1921. After the evidence had been taken and the case submitted, the jury failed to arrive at a verdict. Thereupon said jury was discharged and the case reset without date for further trial. Before said case was again brought on for trial, February 2, 1921, the said defendant, Mrs. R. C. Jones, served upon the plaintiff and filed in said district court a petition setting forth in substance that her home, the Rio Hotel, No. 168 1/2 Regent street, in Salt Lake City, had been wrongfully and unlawfully entered by officers of the plaintiff city without a legal warrant or other due process of law, and that they, on said occasion, arrested petitioner and took her to the city jail, where she was searched and a marked silver dollar taken from her person; that a pint bottle with its contents had also been taken from a guest at said hotel and carried away against the protests of and without the petitioner's consent; that petitioner did not consent in any way to the searching of her premises, but strongly protested against any search being made by said officers; and that said silver dollar and said bottle with its contents are the property of petitioner and that she is entitled to the possession of the same.

Petitioner prayed for the return of said property to her possession and also that an order be made by the said court that said marked dollar and said bottle with its contents are inadmissible in evidence against her at any trial to be had of the aforesaid case. Thereupon March 2, 1921, the plaintiff, by a special appearance before the court for the purpose, moved to strike said petition from the records and files in the case upon several grounds, mainly to the effect that the court was without jurisdiction to hear said petition and that upon its face it stated no facts entitling the petitioner to the relief for which she prayed. Said motion was denied by the court, and thereupon the city answered and admitted that certain officers of the police department of plaintiff city had arrested petitioner and at the time of the arrest caused her to be searched and a marked silver dollar to be taken from her person; denied the other allegations of the petition; and, as a further defense thereto, affirmatively alleged that the petitioner had theretofore applied for and was granted by plaintiff city, pursuant to its ordinances, a license to transact business as a rooming house keeper at said 168 1/2 Regent street; that said ordinances with reference to rooming houses and the licensing thereof in part provides:

"It is also hereby made the duty of the chief of police, after a license has been granted to keep a rooming house, to investigate and examine the place licensed as a rooming house in regard to the matters hereinafter stated, and if it shall appear from such investigation and examination that the general reputation and character of the person to whom such license has been granted, or that the general reputation and character of the persons lodging or entertained at the place licensed is bad, or that such person or place, or any person connected therewith or lodging therein, has a United States government or other license to sell or dispose of any kind of liquor, or that any law of the state or ordinance of the city has been violated since the granting of such license, or if any spirituous, vinous, fermented or malt liquor has been sold or kept for sale in said house or place, or any place connected with it, by any person, since the granting of such license, * * * the chief of police shall at once report the particular facts in regard to such matters * * * to the board of commissioners with recommendation in regard to revoking such license, which board shall take such action in regard to the revocation of such license as it may deem just and proper."

That the said officers of the plaintiff, upon the occasion mentioned in said petition, entered the premises of the petitioner, in accordance with the provisions of said ordinance for the purpose of investigating and examining the same to determine if any intoxicating liquors had been sold or were being kept for sale thereat; that petitioner was present in person at the time of the visit of said officers and had personal charge of said Rio Hotel; that while the said officers were investigating and examining the same, the said petitioner was in the possession of intoxicating liquor contained in a pint bottle, which said liquor she attempted to drink or otherwise dispose of in the presence of said officers; that under the provisions of Comp. Laws Utah 1917, § 8714, subd. 1, the said officers did thereupon then and there arrest the petitioner and took her in custody and caused her person to be searched; that upon search of her person the said marked silver dollar was found in her possession, and the same, together with said bottle of intoxicating liquor, was taken and held as evidence against her in the said criminal case now pending before the court; that many complaints had theretofore been made to plaintiff's police department concerning the character of the persons frequenting said Rio Hotel, and that persons had been observed coming therefrom in an intoxicated condition, and that the acts and conduct of said officers complained of by petitioner were actuated by the sole motive of enforcing the law, as required by the ordinances of Salt Lake City and the laws of the state of Utah prohibited any person doing business under sufferance of a license from the plaintiff from violating such ordinances and laws.

The petitioner filed a reply in effect alleging that the entrance of the said officers was unlawful and contrary to the rights of petitioner, under the provisions of the Fourth Amendment to the United States Constitution and article 1, § 14, of the Constitution of the State of Utah.

Upon the issues thus formed, the district court proceeded to hear the evidence of the respective parties, and found therefrom that the arrest of the petitioner had been made for an alleged misdemeanor not committed in the presence of the officers making the arrest, and further to the effect that the taking of said property and the holding of them from petitioner's possession was violative of her constitutional rights. The court thereupon made and entered its order suppressing as evidence against the defendant in said criminal action the said personal property, and further ordered that the marked silver dollar be forthwith returned to the possession of petitioner and that the intoxicating liquor and the bottle in which it was contained be forthwith destroyed.

The evidence concerning the conditions and circumstances under which plaintiff's officers seized and took possession of...