State v. Arregui, 4704

• Court: United States State Supreme Court of Idaho
• Writing for the Court: TAYLOR, J.
• Citation: 44 Idaho 43,254 P. 788
• Parties: STATE, Respondent, v. MATEO ARREGUI, Appellant
• Decision Date: 26 March 1927
• Docket Number: 4704

254 P. 788

44 Idaho 43

STATE, Respondent,
v.
MATEO ARREGUI, Appellant

No. 4704

Supreme Court of Idaho

March 26, 1927

CRIMINAL LAW-EVIDENCE WRONGFULLY OBTAINED-MOTION TO SUPPRESS-VALIDITY OF WARRANT AND SEARCH-CONSTITUTIONAL LAW-ENFORCEMENT OF CONSTITUTIONAL PROVISIONS-INTOXICATING LIQUORS - SEARCHES AND SEIZURES - LAW APPLICABLE - AFFIDAVIT FOR SEARCH-WARRANT - SUFFICIENCY - VIOLATION OF CONSTITUTIONAL RIGHTS-DUTY OF STATE COURTS-MOTION TO QUASH INFORMATION-GROUNDS-INCLUSION OF CERTAIN GROUNDS IN STATUTE-EFFECT.

1. Validity of warrant and search, under Const. U.S. Amend. 4, and Const. Idaho, art. 1, sec. 17, may properly be tested by motion to suppress evidence at the trial, since, in view of C. S., sec. 2637, and sec. 9456, subd. 6, no independent action could be maintained to secure fruits of illegal search and seizure, and refusal to permit motion to suppress evidence would operate to deny raising question of violation of constitutional rights.

2. Law and court-made rules of expediency must not be placed above the constitution.

3. C. S., sec. 2637, providing for search and seizure under state prohibition laws, held applicable to search made under authority of purported federal search-warrant, where evidence seized thereunder was turned over to state officers.

4. Affidavit by federal prohibition agent for search-warrant to effect that he had been informed that liquor was sold on certain premises, and that he knew defendant had reputation of dealing in liquor, held insufficient, under Const. U.S. Amend. 4, and Const. Idaho, art. 1, sec. 17, and admission of evidence secured thereunder constituted a violation of Const. U.S. Amend. 5 and Const. Idaho, art. 1, sec. 13.

5. Search-warrant, issued on information and belief, unsupported by facts submitted to magistrate, and based on conclusions of affiant rather than facts, is illegal, and search conducted thereunder is unlawful and in violation of constitutional provisions with relation to searches and seizures.

6. A charge in affidavit for search-warrant is not supported by affidavit unless it is supported by evidence.

7. Liquor search-warrant must be supported by facts sufficient upon which to find reasonable cause to believe that defendant is violating the law by possession or sale.

[44 Idaho 44]

8. Facts to support a search-warrant need not be sufficient upon which to base a verdict of the jury, but they must be sufficient on which to find probable cause for issuance of warrant.

9. Affidavits for search-warrant which go no further than to allege conclusions of law or of fact are insufficient.

10. State court has not only the power but the duty to prevent the violation of the rights of a citizen by federal authorities in violation of state and federal constitutions.

11. Under C. S., sec. 8863, made applicable to an information under sec. 8812, court properly denied motion to quash information based on ground that evidence was obtained in an unlawful search under void search-warrant.

12. Inclusion of certain grounds of motion to quash information in statute excludes consideration of any other. [44 Idaho 45]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Defendant appeals from the judgment of conviction of the unlawful possession of intoxicating liquor. Reversed.

Reversed.

Reddoch & Hunter, for Appellant.

A search-warrant issued upon an affidavit, based upon information and belief, should disclose the source and nature of the information, or the informants' affidavits should be taken by the magistrate before issuing the warrant, and a warrant issued without these necessary requisites is invalid, and a search and seizure thereunder unreasonable and unwarranted. (4th and 5th Amendments to U. S. Const.; Const. of Idaho, art. 1, secs. 13, 17; sec. 25, tit. 2, Nat. Prohibition Act, 41 St. at Large, 315; 4 U. S. Comp. St. 1923, Ann. Supp., sec. 10138 1/2m; sec. 3, Espionage Act, 40 St. at Large, 228, 2 U. S. Comp. St. 1919, Ann. Supp., secs. 10496 1/4c, 10496 1/4d, 10496 1/4e; C. S., secs. 2637, 9321, 9322; 9323; Schencks v. United States, 55 App. D. C. 84, 2 F.2d 185; People v. Elias, 316 Ill. 376, 147 N.E. 472; Abraham v. Commonwealth, 202 Ky. 491, 260 S.W. 18; State v. District Court, 70 Mont. 202, 224 P. 866; State v. Lock, 302 Mo. 400, 259 S.W. 116; State v. Smith (Mo. App.), 262 S.W. 65; Gore v. State (Okla. Cr.), 218 P. 545; Foster v. State (Okla. Cr.), 226 P. 602; Craven v. State, 148 Tenn. 517, 256 S.W. 431; State v. Baltes, 183 Wis. 545, 198 N.W. 282; Davis v. State, 187 Wis. 115, 203 N.W. 760; State v. Peterson, 27 Wyo. 185, 13 A. L. R. 1284, 194 P. 342.)

The usual test for determining the sufficiency of an affidavit to authorize the issuance of a search-warrant is whether it contains statements which would authorize the prosecution of the affiant for perjury, if any material statement therein is false. This cannot be done, where the affidavit is made upon information and belief, unless it discloses the source and nature of the affiant's information. (United States v. Keleher (D. C. App.), 2 F.2d 934; People v. Elias, [44 Idaho 46] 316 Ill. 376, 147 N.E. 472; People v. Prall, 314 Ill. 518, 145 N.E. 610; Goode v. Commonwealth, 199 Ky. 755, 252 S.W. 105; State v. Quartier, 114 Ore. 657, 236 P. 746.)

Where evidence is obtained by means of an unlawful search and seizure and the same is used as the basis of a criminal charge against the owner, upon timely application by him, the court will order the articles so seized returned, or it will issue its order suppressing the same as evidence, and if it should refuse to do so, and admit such articles and information so obtained against him, over his objection, such action constitutes reversible error. (Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, Ann. Cas. 1915C, 1177, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Giles v. United States, 284 F. 208; State v. Sheridan, 121 Iowa 164, 96 N.W. 730; Batts v. State, 194 Ind. 609, 144 N.E. 23; Youman v. Commonwealth, 189 Ky. 152, 13 A. L. R. 1303, 224 S.W. 860; Poston v. Commonwealth, 201 Ky. 187, 256 S.W. 25; Simmons v. Commonwealth, 203 Ky. 621, 262 S.W. 972; People v. Marxhausen, 204 Mich. 559, 3 A. L. R. 1055, 171 N.W. 557; Owens v. State, 133 Miss. 753, 98 So. 233; State v. Gardner, 74 Mont. 377, 240 P. 984; State v. Owens, 302 Mo. 348, 32 A. L. R. 383, 259 S.W. 100; State v. Warfield, 184 Wis. 56, 198 N.W. 854; State v. Wills, 91 W.Va. 659, 24 A. L. R. 1398, 114 S.E. 261; State v. Anderson, 31 Idaho 514, 174 P. 124; State v. Myers, 36 Idaho 396, 211 P. 440; State v. McLennan, 40 Idaho 286, 231 P. 718; State v. Dawson, 40 Idaho 495, 235 P. 326; State v. West, 42 Idaho 214, 245 P. 85.)

Where intoxicating liquor or evidence of the defendant's possession thereof has been secured through an unlawful search and seizure, neither the liquor so seized nor the evidence of the possession thereof is admissible against him in a prosecution for the alleged offense. (Amos v. United States, [44 Idaho 47] 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Callender v. State (Ind.), 136 N.E. 10; State v. Rowley (Iowa), 187 N.W. 7; Youman v. Commonwealth, supra; Ash v. Commonwealth, 193 Ky. 452, 236 S.W. 1032; People v. Foreman, 218 Mich. 591, 188 N.W. 375; Tucker v. State, 128 Miss. 211, 24 A. L. R. 1377, 90 So. 845; Gore v. State (Okla. Cr.), 218 P. 545; Town of Blacksburg v. Beam, 104 S.C. 146, 88 S.E. 441, L. R. A. 1916E, 714; Hughes v. State, 145 Tenn. 544, 238 S.W. 588; State v. Gibbons, 118 Wash. 171, 203 P. 390.)

A. H. Conner, Attorney General, John W. Cramer and Bartlett Sinclair, Assistant Attorneys General, for Respondent.

The search-warrant was legally issued on a proper affidavit by a United States prohibition agent disclosing the source and nature of the information, upon probable cause, stating the time (a recent date), naming defendant and describing the property and place to be searched, and therefore not an unreasonable search and seizure. (Sec. 3, Espionage Act, 40 St. at Large, 228, 2 U. S. Comp. Stat. 1919, Ann. Supp., sec. 10496 1/4c; sec. 3, National Prohibition Act, Oct. 28, 1919, 41 St. at Large, 305, art. 18, sec. 2, U. S. Const.; 4 U. S. Comp. Stat., art. 1, sec. 17; Const. of Idaho, art. 2; C. S., tit. 22; United States v. Lepper, 288 F. 136; Goode v. Commonwealth, 199 Ky. 755, 252 S.W. 105; Blackburn v. Commonwealth, 202 Ky. 751, 261 S.W. 277; Sutton v. United States, 289 F. 488; Lipschutz v. Quigley, 287 F. 395; Yopp v. Commonwealth, 202 Ky. 716, 261 S.W. 251; State v. Rice, 73 Mont. 272, 235 P. 716; State v. Quartier, 114 Ore. 657, 236 P. 746; United States v. McGuire, 300 F. 98; United States v. Vatune, 292 F. 497; State v. Chuchola (Del.), 120 A. 212; Loeb v. State, 133 Miss. 883, 98 So. 449; Commonwealth v. Tibbetts, 157 Mass. 519, 32 N.E. 910; State v. Lyman, 22 Idaho 387, 125 P. 1042.)

Evidence, if competent and relevant, is admissible irrespective of the manner in which it was obtained. (Commonwealth v. Tibbetts, supra; State v. Myers, 36 Idaho 396, 211 P. 440; Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; Chastang v. State, 83 Ala. 29, 3 So. 304; State v. Anderson, 31 Idaho 514, 174 P. 124; People v. Mayen, 188 Cal. 237, 24 A. L. R. 1383, 205 P. 435; State v. Johnson, 116 Kan. 58, 226 P. 245; State v. Aime, 62 Utah 476, 32 A. L. R. 375, 220 P. 704; City of Sioux Falls v. Walser, 45 S.D. 417, 187 N.W. 821; People v. Castree, 311 Ill. 392, 32 A. L. R. 357, 143 N.E. 112; Welchek v. State, 93 Tex. Cr. 271, 247 S.W. 524; McFadden, Prohibition Law & Practice, par. 154, subd. 3; Massantonio v. People, 77 Colo. 392, 236 P. 1019; United States v. Vatune, supra; State v. Reynolds, 101 Conn. 224, 125 A. 636; 4 Wigmore on...