State v. Bass

• Decision Date: 27 March 1926
• Parties: STATE v. BASS.
• Court: Tennessee Supreme Court

281 S.W. 936

153 Tenn. 162

STATE v. BASS.

Supreme Court of Tennessee.

March 27, 1926

Appeal from Criminal Court, Davidson County; J. D. B. De Bow, Judge.

W. F Bass was indicted for violating the liquor laws. On motion by defendant, the search warrant was quashed and liquor restored to defendant, and the State appeals. Appeal dismissed.

W. H Swiggart, of Union City, for the State.

J. C Edwards, of Nashville, for appellee.

COOK J.

The grand jury presented W. F. Bass (1) for keeping in stock intoxicating liquors intended for sale contrary to chapter 3, Acts of 1917; (2) for possessing intoxicating liquor contrary to chapter 12, Acts of 1917. There was no arraignment upon the presentment and no defense to it by either motion, demurrer or plea.

The record shows that the cause was heard upon the motion of W. F. Bass by his attorney to quash the search warrant, under which certain liquor was seized at the Bass residence, and for a return of the liquor. The trial court found that a dwelling, a garage, and an outbuilding stood on the lot referred to in the affidavit and search warrant, and the description therein might refer to any of the three, and the description was insufficient because the warrant left it to the discretion of the police as to which of the three buildings on the lot should be searched. Cooly, Const. Lim. (5th Ed.) 370; Tiedeman, Lim. Police Power, 445.

To prevent disturbance of good citizens by the unlawful intrusion of the police, the Constitution and statutes provide that no warrant shall issue to search any citizen's premises without particularly describing the place to be searched. This requirement is met by a description which particularly points to a definitely ascertainable place so as to exclude all others. Spears v. State (Miss.) 99 So. 361. And the description is sufficient under this rule which enables the officer to locate the place to be searched with reasonable certainty, without leaving it to his discretion. Definite reference to a street number in a given city and state meets the requirement of this rule. Steele v. U. S., 45 S.Ct. 414, 267 U.S. 498, 69 L.Ed. 757; U.S. v. Friedman (D. C.) 267 F. 856; Donnelly v. State, 142 N.E. 219, 194 Ind. 136.

As a matter of course where there are two streets in the same city bearing identical names and numbers, or if there be more than one building located at the designated street number, or a number of occupants in possession of different rooms or different apartments at the particular street number, reference to the street number would not afford an accurate description of the premises to be searched. U.S. v. Innelli (D. C.) 286 F. 731; Nestor v. Commonwealth, 261 S.W. 270, 202 Ky. 748.

A broad statement of the general rule underlying the foregoing cases is that the description is sufficient which enables the officer to locate the place to be searched with reasonable certainty without leaving to his discretion the choice between one or more places occupied by strangers to the process. Having found the seizure illegal, the court quashed the search warrant and ordered the liquor restored to the owner. The state excepted to the action of the court and appealed, and upon review in a former opinion this court held that the question of the insufficiency of the search warrant could not be made in an independent or collateral proceeding, and that a proceeding seeking restoration of the seized property should be by a direct defense before the justice of the peace to whom the warrant was first returned, or if aggrieved by his determination, by a review upon certiorari, and the judgment of the trial court was reversed.

Upon petition of the appellee a rehearing was granted, and upon reconsideration we are of opinion that the procedure indicated by the former conclusion of the court is not permissible under our statutes regulating the issuance of search warrants, and under the practice which maintains in this state, because section 7309 of Shannon's Code provides that where the property seized is contraband, that is, possessed with intent to use it in violation of the law, it is the duty of the justice of the peace, before whom the warrant is returned, to retain the seized property in his possession subject to the order of the court to which he is required to return the search and seizure proceedings, and by section 7310 all the proceedings before the justice of the peace must be returned to the circuit or criminal court where action may follow by indictment or presentment.

The practice in the federal courts is that after the case is taken up for trial upon an indictment following the search and seizure, the court will not pause to determine whether the evidence was illegally obtained, and that a defendant desiring to exclude evidence unlawfully seized and to have it restored to his possession must make application to the trial court by motion or petition before the trial commences. Weeks v. United States, 34 S.Ct. 341, 232 U.S. 383, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. But this is not an invariable rule in the federal courts. The cases present some exceptions not necessary to discuss here.

In most of the state courts where the federal rule, excluding evidence illegally obtained, is observed, it is held necessary to seek a return of the property by motion or petition before the trial of the cause, and generally state courts that follow the federal rule refuse to pause in the midst of the trial to determine the legality of a search. In a few jurisdictions it is held that if the question is made at the trial of the accused, the evidence illegally obtained and offered in support of a prosecution will be excluded, and the court will pause in the midst of the hearing to determine the competency of such evidence by a hearing apart from the jury, and that a motion may then be made for a return of the property illegally seized, and if such property is illegally seized, that it may be restored to the defendant either during the trial after it appears that it was taken through unlawful search, or at any time subsequent thereto. It is generally held, in both federal and state courts that follow the exclusion rule, that a determination of the question as to whether the property was unlawfully seized, and an order to restore the property, is interlocutory and not appealable. Wise v. Mills, 31 S.Ct. 597, 220 U.S. 549, 55 L.Ed. 579; United States v. Mattingly, 285 F. 922, 52 App. D. C. 188.

In the Mattingly Case the court said:

"The court by the order determined nothing finally. It passed upon the means by which the government secured possession of the liquor, and upon nothing more. * * * An order by the lower court, directing the return of liquor illegally seized by officers of the government, was held to be not final * * * in United States v. Marquette et al. [ C. C. A.] 270 F. 214."

Certiorari to review the issuance of a search warrant by a justice of the peace was unknown at common law and is not authorized by statute. Under our statutes the custody of the justice of the peace of all the records and proceedings in the search and seizure ends with his determination and when the papers are returned to the circuit or criminal court. After that no proceeding was pending before the justice of the peace, and he was in possession of no records and papers for a superior court to bring up for review upon certiorari. Quan Chick v. Coffey, 17 P. 427, 75 Cal. 371; State, Farrow, Prosecutor, v. Springer, 31 A. 215, 57 N. J. Law, 353; Hoxsey v. Woodruff, 39 N. J. Law, 72.

Another reason that would forbid certiorari to review the action of the justice of the peace in a search warrant proceeding is that under our statutes it is apparently the initial step to a criminal proceeding. It is a part of the criminal proceeding, and the action of the justice of the peace in impounding the property is not a final determination, for the property is seized and held subject to the orders of the circuit or criminal court, to which the justice is required to report his action in its entirety. Under well-defined practices and modes of procedure already adopted in this state, an aggrieved citizen is afforded full means of redress for wrongs done in a search and seizure proceeding.

In Hughes v. State, 238 S.W. 588, 145 Tenn. 544, 20 A L. R. 639, this court approved the proposition stated by the federal courts and 14 or more state courts, that the state in dealing...