State v. Dillon.

• Citation: 34 N.M. 366,281 P. 474
• Decision Date: 01 October 1929
• Docket Number: No. 3333.,3333.
• Parties: STATEv.DILLON.
• Court: Supreme Court of New Mexico

34 N.M. 366

281 P. 474

STATE

v.DILLON.

No. 3333.

Supreme Court of New Mexico.

Oct. 1, 1929.

Syllabus by the Court.

In a prosecution for keeping intoxicating liquor for sale, denial of a motion to return and to suppress as evidence liquors seized under an illegal search warrant is not violative of the constitutional immunities from unreasonable searches and seizures and from compulsory self-incrimination (Const. N. M. art. 2, §§ 10, 15; Const. U. S. Amends. 4 and 5).

Additional Syllabus by Editorial Staff.

Laws 1927, c. 89, § 4a, which provided that evidence obtained by reason of any search warrant might be used in any court of competent jurisdiction in an action brought under the act, held not by implication to prohibit the use of evidence obtained by illegal search warrant.

Appeal from District Court, Eddy County; Kiker, Judge.

W. L. Dillon was convicted of possessing intoxicating liquor for sale, and he appeals. Affirmed and cause remanded.

Refusal to suppress evidence obtained under illegal search warrant held not violative of immunities from unreasonable searches and seizures. Const. art. 2, §§ 10, 15.

O. O. Askren, of Roswell, for appellant.

R. C. Dow, Atty. Gen., and F. H. Patton, Asst. Atty. Gen., for the State.

WATSON, J.

Appellant was convicted of the possession of intoxicating liquor for sale. The only error here urged is in the overruling of his motion to return to him and to suppress as evidence certain liquors which the sheriff had seized under a search warrant which the trial court found, and the Attorney General apparently concedes, to have been illegal.

[1] The overruling of the motion was based upon the trial court's understanding that this court, in State v. Hammond, No. 3010, had laid down the rule “that evidence, however obtained, whether legally or illegally, is admissible.” The opinion referred to has not been published; the cause having become moot by reason of the death of the appellant during the pendency of a motion for rehearing. Since it is the sole basis of the decision, and the single point of difference here, we cannot do better than insert it in this opinion. It follows:

“Botts, J. The question before us is whether or not papers are rendered inadmissible in evidence against a party by reason of their having been seized in an unreasonable search of his premises. The case in which the question arises is civil, the order of the court directing the search and seizure having been made in proceedings supplemental to execution. In the making of this search and seizure there can be no question but that appellant's rights guaranteed to him by section 10 of article 2 of the New Mexico Constitution were violated. Robinson et al. v. Richardson, 13 Gray (Mass.) 454. In fact there is no serious contention to the contrary. That section reads as follows:

‘The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.’

On this question the courts of the several jurisdictions fail to harmonize. No attempt will be made herein to discuss or cite the very numerous cases dealing with the subject, but reference is made to the notes appearing in 24 A. L. R. at page 1408, and 32 A. L. R. 408, with the several cases to which the notes are appended, for a collection of the various authorities. For some cases decided since the date of the last note, see Voorhies v. U. S. et al. (C. C. A.) 299 F. 275; State v. Warfield, 184 Wis. 56, 198 N. W. 854; State v. Dinger, 51 N. D. 98, 199 N. W. 196; Simmons v. Commonwealth, 203 Ky. 621, 262 S. W. 972; Thomas v. State, 27 Okl. Cr. 264, 226 P. 600; Foster v. State, 270 Okl. Cr. 270, 226 P. 602; Temperani v. U. S. (C. C. A.) 299 F. 365; State ex rel. Stange v. District Court et al., 71 Mont. 125, 227 P. 576; Bush v. State, 112 Neb. 384, 199 N. W. 792; State v. Reynolds, 101 Conn. 224, 125 A. 636; State v. Griffin, 129 S. C. 200, 124 S. E. 81, 35 A. L. R. 1227; State v. Brown, 129 S. C. 286, 124 S. E. 87.

The Supreme Court of the United States has adopted a rule of construction excluding from consideration in a criminal case evidence which has been obtained by a search and seizure in violation of the Fourth Amendment to the Federal Constitution, that amendment being in substance the same as the section of the New Mexico Constitution above quoted. This rule has been followed by a number of the state courts. On the other hand, many of the state courts of last resort have refused to accept that doctrine, and permit evidence to be admitted against a defendant without regard to the means by which it has been obtained. Many of the courts even fail to agree within themselves, as is evidenced by the large number of dissenting opinions. We have not taken a poll of the several jurisdictions in an effort to ascertain on which side stand the greater number. Suffice it to say that an opinion deciding the point either way might be written in an hour's time, with ample and respectable authority to sustain it; but we have rather endeavored to discover the fundamental underlying principle by which a correct conclusion must be governed.

The development of the federal rule is indicated by an examination of the following cases: Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Adams v. New York, 192 U. S. 585, 24 S. Ct. 372, 375, 48 L. Ed. 575; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 344, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Flagg v. U. S. (C. C. A.) 233 F. 481, the principle of which is specifically adopted by reference in the opinion of the Supreme Court in the Silverthorne Case, and Gouled v. U. S., 255 U. S. 299, 41 S. Ct. 261, 65 L. Ed. 647. That rule seems to be based on a combined consideration, or an amalgamation of the two guarantees against unreasonable search and self-incrimination, in that the conclusion is, in effect, that the admission of evidence obtained on a search violating the Fourth Amendment is a compelling of the defendant to incriminate himself in violation of the provisions of the Fifth Amendment. The rule has been severely criticized, Wigmore on Evidence (2d Ed.) § 2184, notwithstanding which it still has its champions.

In so far as appellant's rights under our constitutional guaranty against self-incrimination are concerned, all question with reference thereto would seem to be settled by the case of State v. Barela, 23 N. M. 395, 168 P. 545, 547, L. R. A. 1918B, 844, which also contains language strongly indicative of a disapproval of the federal rule now under consideration. The court speaking through Mr. Justice Parker, now Chief Justice, said:

‘The general rule, as gathered from the foregoing authorities, may be stated to be that the admissibility of evidence is in no way determined or affected by the manner in which, or the means by which, it is obtained. If it is otherwise competent and relevant to the issues in the case, it is admissible, and does not violate either the constitutional guaranty against unlawful searches and seizures, or against involuntary self-incrimination. The provisions against unreasonable searches and seizures, and against compulsory self-incrimination, are limitations upon this general rule, and have much narrower scope and effect than is sometimes given them. The provision against unreasonable searches and seizures refers to searches and seizures by the government through legislative or judicial sanction, and not to the private acts of individuals. The provisions against self-incrimination are limited to testimonial compulsion under process of some kind directed against the defendant as a witness. It does not and cannot logically apply to actions of the defendant under compulsion of persons or officers without judicial sanction. In such cases the physical facts speak, not the defendant as a witness.’

Here there is no question or threat of testimonial compulsion under process of some kind directed against the defendant as a witness; but it is argued that what is said in the Barela Case with reference to searches and seizures has no present application, because here the search was made under judicial sanction. Assuming that to be true, we shall examine the question anew.

The theory, upon which many of the cases holding evidence obtained by an unlawful search is not thereby rendered inadmissible, is that in the trial of a criminal case the court should not stop to form an issue to determine the collateral question of the source of the evidence; but that theory has no application here, because the effort to have the evidence suppressed is not put forth in a criminal case; but in a civil cause an injunction is asked which has the purpose and, if granted, would have the effect of suppressing the evidence, so obtained, in criminal cases, some of which seem to be threatened and others now pending. The question before the court, therefore, was not collateral to the question of a defendant's guilt.

The rule just suggested was applied by the Supreme Court of the United States in Adams v. New York, supra; but in the case of Weeks v. United States, supra, evidence obtained by unlawful search was held to be inadmissible, and the Adams Case was distinguished by the fact that there the objection to the admission of the evidence was first made at the trial, while in the Weeks Case a motion had been made for the return of the seized evidence prior to the trial. The distinction so made has been frequently criticized on the ground that the issue as to the source of the evidence did not cease to be collateral simply because it was raised and determined ahead of the main issue; but, even if that criticism be well...