State v. Chuchola

• Decision Date: 29 September 1922
• Citation: 32 Del. 133,120 A. 212
• Court: Court of General Sessions of Delaware
• Parties: STATE v. WASYL CHUCHOLA

120 A. 212

32 Del. 133

STATE v. WASYL CHUCHOLA

Court of General Sessions of Delaware, New Castle County

September 29, 1922

Court of General Sessions for New Castle County, September Term 1922.

Indictment for illegal possession of spirituous liquors, No. 22, May term, 1922. Motion for the return or destruction of liquor illegally seized.

Before pleading to the indictment, and, therefore, before trial the defendant presented the following petition:

"The petition of Wasyl Chuchola, the defendant in the above-entitled case, respectfully represents:

"1. That he is a resident of the city of Wilmington, New Castle county and state of Delaware, and resides in said city at No 429 Bradford street.

"2. That on the day of April, A. D. 1922, certain police officers of the city of Wilmington did enter his residence without authority of law, and did search the same and did seize certain alleged alcoholic liquor in said house.

"3. That said house is occupied as a dwelling house.

"4. That said dwelling house is occupied by your petitioner, his wife, and by certain other men who are boarders in the house.

"5. That the said officers who searched said house and arrested your petitioner had with them a certain search warrant which was not sufficient in law in that the said search warrant did not describe the premises to be searched, and was further defective in that the said search warrant did not describe the intoxicating liquors to be seized; and the said search warrant was further defective in that it was served in the nighttime; and the said search warrant was further defective in that it was issued without sufficient cause.

"Your petitioner, therefore, prays this honorable court to make an ordef upon the Attorney-General of the state of Delaware to return to the owner or said property the property so taken and held or to destroy same, and your petitioner will ever pray," etc.

There was filed in the case the following agreed statement of facts:

"On this 11th day of May, A. D. 1922, it is agreed by and between Sylvester D. Townsend, Jr., Attorney-General, for the state of Delaware, and Philip L. Garrett, Esq., J. Frank Ball Esq., George W. Lilly, Esq., Ayres J. Stockly, Esq., and J Paul Green, Esq., counsel for Wasyl Chuchola, that the following agreed statement of facts shall be submitted to the court upon the petition filed by the defendant in the above-stated case, for the opinion of the court, the defendant reserving unto himself any rights he may have with respect to suing out a writ of error:

"1. That on or about the 21st day of April, A. D. 1922, the defendant above named was arrested on a charge of having in his possession more than one quart of spirituous liquors, contrary to law, and subsequently an indictment was found against him by the grand jury of New Castle county.

"2. That said arrest was made under the following circumstances, viz.:

"On the day above mentioned, duly constituted police officers of the city of Wilmington, having in their possession a search warrant for the searching of the defendant's said house, entered the same and upon searching said premises found in said house certain containers containing more than one quart of spirituous liquor, which said containers containing the said spirituous liquors the said police officers then and there seized.

"3. The said police officers also then and there upon the finding of said spirituous liquors placed under arrest the said defendant.

"4. That the said search warrant mentioned in the preceding paragraph was defective and void.

"5. If the court should be of opinion that the intoxicating liquors referred to in the above-agreed statement of facts cannot legally be used as evidence in the trial of the said defendant in the above-stated case, then the court shall direct that said intoxicating liquors shall be excluded from use in evidence in the trial of said case and said liquors shall be ordered destroyed; otherwise, that the prayer of the petition be refused and the petition dismissed."

Defendant's petition dismissed.

Aaron Finger and Clarence A. Southerland, Deputy-Attorneys-General, for the State.

Philip L. Garrett, J. Frank Ball, George W. Lilly, Ayres J. Stockly and J. Paul Green for defendant.

PENNEWILL, C. J., RICE and RODNEY, J. J., sitting.

OPINION

PENNEWILL, C.J.

In this case, which may be termed a "house" case, in contradistinction to a "street" case, the house of the defendant was searched by police officers, resulting in the discovery and seizure of more than one quart of spirituous liquor.

It is admitted by the state that the warrant under which the search was made was insufficient and illegal, not being in the form prescribed by law, and that the court may, therefore, consider that the search and seizure were made without a warrant.

The statute under which the defendant was indicted is in part as follows:

"It shall be unlawful for any person * * * to have in his [or her] possession, at any one time, more than one quart of spirituous liquors." Chapter 10 (2), 29 Laws of Delaware, 19.

There are two questions to be considered:

1. Must the liquor that was seized be returned or destroyed by order of the court, upon the application of the defendant made before the trial, so that it cannot be used against him as evidence at his trial?

2. Can the defendant be indicted for the unlawful possession of liquor when paragraph 9 of the law of this state commonly known as the "Loose Law" provides that the person in charge of the premises where such liquors are found shall be subject to trial on the charge of selling or keeping or storing for sale unlawfully such liquors?

The first question is particularly important both to the accused and the state, and its importance is intensified by the fact that the Supreme Court of the United States has in several cases passed upon questions which the defendant claims are identical in principle with the one before this court.

The real question before us is, can spirituous liquors, the possession of which is unlawful, found and seized in defendant's house without a warrant, be used as evidence against him at his trial?

Whatever may have been the law before, the United States Supreme Court has held in the later cases that papers, documents and other private property, seized in the house or office of the owner, without a warrant, cannot be used in evidence at the trial, if their return is asked for at the proper time, because the seizure was in violation of the Fourth Amendment to the federal Constitution, which provides that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," etc

The corresponding provision of the Delaware Constitution is substantially similar.

It has also been decided by said Supreme Court that property seized without a warrant must be returned to the owner if application therefor is seasonably made before the trial. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; and other cases.

The history of the law under consideration is interesting, but it cannot be gone into here at any length.

Prior to the decision by the Supreme Court in 1884 of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, the admissibility of evidence does not seem to have been affected by the illegality of the means through which the evidence was obtained, and this doctrine had and still has the strong support of Mr. Wigmore, as well as the endorsement of the majority of the state courts. See article by Mr. Wigmore in Amer. Bar Ass'n Journal for August, 1922, in which the cases are collected.

In 1841 Wilde, J., in Com. v. Dana, 2 Met. 329, stated the law as follows:

"Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done. But this is no good reason for excluding the papers seized * * * if they were pertinent to the issue."

In that case the possession of lottery tickets was held to be unlawful, and the tickets liable to be seized as belonging to the corpus delicti. The law declared in this case was the generally accepted law until the decision in the Boyd Case.

In Adams v. New York State, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575, decided in 1903, the court said:

"The weight of authority, as well as reason, limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained."

The rule laid down in Greenleaf, Vol. 1, § 254A, was distinctly approved, as well as the law of Com. v. Dana, above stated.

Then came the Weeks Case in 1914, in which the court distinguished the Adams Case on the ground that papers incidentally seized in the execution of a search warrant for gambling paraphernalia were competent evidence against the accused and their offer in testimony did not violate his constitutional privilege against unlawful search and seizure, and on the further ground that the courts in the course of trial would not make an issue to determine the question of unlawful seizure.

In the Weeks Case application was made in the court below, before the trial, for the return of private papers. This was not done in the Adams Case.

Assuming that the Weeks Case correctly states the law, it nevertheless seems to us that the return of the property, or its destruction, must...