State ex rel. Wong You v. District Court of Thirteenth Judicial Dist. in and for Yellowstone County

• Decision Date: 15 March 1938
• Docket Number: 7798.
• Citation: 78 P.2d 353,106 Mont. 347
• Parties: STATE ex rel. WONG YOU v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. IN AND FOR YELLOWSTONE COUNTY et al.
• Court: Montana Supreme Court

78 P.2d 353

106 Mont. 347

STATE ex rel. WONG YOU v. DISTRICT COURT OF THIRTEENTH JUDICIAL DIST. IN AND FOR YELLOWSTONE COUNTY et al.

No. 7798.

Supreme Court of Montana

March 15, 1938

Rehearing Denied April 19, 1938.

Original proceeding for writ of prohibition, by the State of Montana on the relation of Wong You, against the District Court of the Thirteenth Judicial District in and for the County of Yellowstone, and others, to restrain the court from using evidence acquired as a result of a search and seizure, in the trial of relator for violation of the lottery law.

Respondents' motion to quash the alternative writ sustained and proceeding dismissed.

Rockwood Brown, Horace Davis, M. N. Hoiness, and Franklin S. Longan all of Billings, for relator.

Geo. S Smith, of Billings, for respondents.

ANDERSON Justice.

This is an original proceeding by which a writ of prohibition is sought against the district court of Yellowstone county, the presiding judge thereof, and the county attorney of that county.

Relator was accused by information with the commission of a misdemeanor (violation of the lottery law). The defendant made a timely motion to suppress certain evidence obtained as a result of a search and seizure by a policeman of the city of Billings without a warrant, which, after hearing, was denied by the court. A bill of exceptions was settled containing all of the proceedings occurring at the hearing of this motion. By this proceeding it is sought to restrain the court from using all of the evidence acquired as a result of the search and seizure, upon the trial of the relator under the offense charged in the information. The respondents have filed a motion to quash the alternative writ heretofore issued out of this court.

Angelo Ferro, a policeman of the city of Billings, was informed by another policeman that Clyde Baker, a colored boy, was selling lottery tickets. Ferro inquired of Baker if he was selling lottery tickets, who informed the officer that he was selling punches on a punchboard and giving away lottery tickets to the purchasers. At the request of Ferro, Baker exhibited some of the lottery tickets which Ferro retained. Baker informed Ferro that the lottery was in "Chinese Alley," and offered to take the policeman to the location of the lottery. When they arrived there, Baker opened the door and, pointing to relator, said: "There is the man running it." An attempt to verify the statement by relator brought no response. The policeman then said to relator, "Where is your lottery at?" Relator pointed to a stairway, and leading the way, was followed by Ferro. As they descended the stairs, the relator began speaking in the Chinese language. When they arrived on the basement floor the policeman saw another Chinaman who was attempting to conceal some lottery tickets. Ferro took these tickets away from the second Chinaman and inquired as to the location of the rest of the lottery. The latter took the policeman into another room where he turned on a light, and where there was located a lottery cage on which a license to operate a punchboard, to which the Chinaman pointed, was exhibited. The policeman searched the cage and found some more lottery tickets, a home-made punchboard, and a punch. The officer retained these articles of property. He then, together with the second Chinaman, returned to the first floor of the building, where he found the relator. The officer inquired who was in charge, and relator said he was. The arrest of relator followed. The policeman had neither a search warrant nor a warrant of arrest.

The room which the policeman and the colored boy first entered contained the usual laundry equipment, including some clothing. In support of his motion to suppress the relator filed an affidavit in which he referred to the premises searched as the "home or premises" of relator. The policeman testified that he saw no evidence of sleeping or living quarters on either the floor where the laundry was located or the basement. The building had a second story, which the policeman did not enter.

It is the contention of relator that the search of the premises, the arrest of relator, and the seizure of the articles of property were in violation of the rights guaranteed to him by sections 7 and 18 of article 3 of the Constitution, therefore unlawful, and hence the motion to suppress the evidence should have been sustained.

When an arrest is lawfully made, the person arresting may take from the possession of the arrestee articles of property which reasonably would be of use on the trial. State v. Neidamier, 98 Mont. 124, 37 P.2d 670; State v. Hum Quock, 89 Mont. 503, 300 P. 220; State ex rel. Neville v. Mullen, 63 Mont. 50, 207 P. 634, 636; State ex rel. Kuhr v. District Court, 82 Mont. 515, 268 P. 501.

The right of the state to introduce evidence secured by an officer while making an arrest or a search must be determined on the hearing of a motion to suppress. State v. Gardner, 77 Mont. 8, 249 P. 574, 52 A.L.R. 454; State ex rel. Samlin v. District Court, 59 Mont. 600, 198 P. 362; State v. Rice, 73 Mont. 272, 235 P. 716; State v. Gotta, 71 Mont. 288, 229 P. 405; State v. McDaniels, 75 Mont. 61, 243 P. 810; State v. Neidamier, supra. The burden of establishing the irregularity of the seizure is on the movent. State ex rel. Hansen v. District Court, 72 Mont. 245, 233 P. 126; State v. Ladue, 73 Mont. 535, 237 P. 495; State v. Gardner, supra; State v. Neidamier, supra.

The court has defined the right of an officer to arrest without a warrant, in the case of State ex rel. Neville v. Mullen supra, as follows: "Whatever else may be said upon that subject, the utmost that can be exacted of the officer who arrests without a warrant is that the circumtances shall be such that upon them alone he would be justified in making a complaint upon which a warrant might issue. In other words, if the circumstances are such that the officer could properly secure a warrant of arrest, he may arrest without a warrant if the offense which the circumstances tend to establish was committed in his presence; and it is settled in this jurisdiction that the officer need not have actual, personal knowledge of the facts which constitute the offense in order to be able to make complaint and secure a warrant. The question was settled in State v. McCaffery, 16 Mont. 33, 40 P. 63, wherein the court said: 'It seems to us that the proper construction of the words "probable cause," as used in the Constitution, may be facts embodied in a complaint which charges the offense...