State v. District Court of Fourth Judicial Dist., in and for Ravalli County

• Decision Date: 05 January 1925
• Docket Number: 5666.
• Citation: State v. District Court of Fourth Judicial Dist., in and for Ravalli County, 232 P. 201, 72 Mont. 213 (Mont. 1925)
• Parties: STATE ex rel. v. DISTRICT COURT OF FOURTH JUDICIAL DIST., IN AND FOR RAVALLI COUNTY et al. BROWN et al.
• Court: Montana Supreme Court

232 P. 201

72 Mont. 213

STATE ex rel. BROWN et al. v. DISTRICT COURT OF FOURTH JUDICIAL DIST., IN AND FOR RAVALLI COUNTY et al.

No. 5666.

Supreme Court of Montana

January 5, 1925

Application for a writ of prohibition by the State of Montana on relation of James Brown and others, against the District Court of the Fourth Judicial District, in and for the County of Ravalli James M. Self, a judge thereof, and another. Writ denied, and proceedings dismissed.

L. A Foot, Atty. Gen., and L. V. Ketter, Asst. Atty. Gen., for respondents.

STARK J.

The affidavit filed in connection with this application for a writ of prohibition will be referred to as the complaint, and the parties designated as plaintiffs and defendants.

On July 2, 1924, at Victor, Ravalli county, E. T. Lockeridge, sheriff of said county, and William Grimes, his deputy, without a search warrant, searched a Dodge automobile discovered in possession of the plaintiffs, which they had driven from Hamilton, in said county, and found therein, amongst other articles, 20 gallons of whisky in three 5-gallon crock demijohns and one 5-gallon barrel. Having discovered this whisky in the automobile, the officers thereupon took possession of it and its contents and arrested the plaintiffs.

On July 3, 1924, the defendant J. D. Taylor, as county attorney of Ravalli county, filed an information in the district court charging the plaintiffs jointly with the unlawful possession and the unlawful transportation of intoxicating liquor, which offenses were alleged to have been committed in said county on July 2, 1924. To this information the plaintiffs subsequently entered pleas of not guilty, and the trial of said action has been set down for the January term of said court.

On July 7, the sheriff filed a return in the district court of said county, reciting, amongst other things, that on July 2, 1924 at Ravalli county, he discovered the plaintiffs in the act of illegally transporting intoxicating liquor in a five-passenger Dodge automobile; that he seized the automobile and its contents, consisting of 20 gallons of intoxicating liquor, together with some personal property and arrested the plaintiffs. This return also contained a description of the liquor and property seized, recited that the seizure was made on the main street of Victor, and asked the court to issue a warrant commanding him to hold in his possession all of the seized property until a hearing and adjudication be had on the return. Upon this return such proceedings were had that an order of court was made commanding the sheriff to hold the seized property in his possession until discharged by process of law.

About September 8, 1924, plaintiffs filed a petition in the district court of Ravalli county, praying that the above-described seized property be ordered returned to them, and for an order suppressing said property and all evidence obtained in connection with its seizure as evidence on the ground that the search of the automobile and the seizure of the property were unlawful. Upon this petition an order was issued by the district court requiring the sheriff, his deputy, and the county attorney to show cause why the order prayed for should not be granted. A hearing on this order was had during which the petitioners therein introduced testimony for the purpose of sustaining their allegations, a transcript of which is attached to and made a part of the complaint filed in this court.

Thereafter the plaintiffs filed their complaint in this court, setting forth the foregoing facts, alleging that the search of the automobile and the seizure of its contents violated the rights guaranteed to them by section 7, article 3 of our state Constitution, and were therefore illegal and unreasonable, but that the defendants would, unless restrained from so doing by an order of this court, use said property and the evidence acquired by reason of the search and seizure of said automobile as evidence at the trial of the plaintiffs under the information filed against them in the district court of Ravalli county, and asked that an order of this court be issued to prevent them from doing so.

Upon the filing of this complaint an alternative writ of prohibition was issued directed to the defendants, requiring them to show cause why they should not be restrained from using said property and the evidence obtained in connection with the search and seizure of the automobile upon the trial of the charges contained in the above-mentioned information.

At the return day of the alternative writ the defendants appeared by answer in which the allegations of the complaint were admitted, except that the search and seizure of the automobile were without lawful authority, or that they were made in violation of the constitutional rights of the plaintiffs, or that they were entitled to the possession of the property seized. The matter was submitted to this court upon the complaint and answer.

The contention of the plaintiffs is that the search of their automobile was illegal, therefore unreasonable and violative of the rights guaranteed to them by section 7, article 3, of the state Constitution, because (1) the officers had no warrant for their arrest and no search warrant directing a search of the automobile; (2) that they were not, as a matter of fact, engaged in transporting liquors in violation of the law in the presence of the officers at the time of the arrest, search, and seizure; or (3) if they were so engaged, the officers had no personal knowledge of that fact and therefore no probable cause existed warranting the search of the automobile, seizure of the liquor, and their arrest without a warrant.

1. That the officers were not acting under a warrant of arrest or search warrant is admitted in the answer.

2. As to the second contention: The complaint contains formal recitals to the effect that the plaintiffs were not in fact engaged in the commission of any offense against the liquor laws at the time of the arrest, search, and seizure. However, these allegations are wholly negatived by other recitals of fact contained in it, which disclose that the car in question, loaded with intoxicating liquors, and three men in it, had been driven from Hamilton to Victor, at which place it was found in possession of the plaintiffs and the liquors discovered therein. With child-like confidence the plaintiffs advise the court in paragraph 8 of the complaint:

"That the said 20 gallons of whisky contained in the three 5-gallon demijohns, and the one 5-gallon barrel, as aforesaid, were concealed in said automobile, the same being contained in burlap sacks and placed at the bottom of said automobile, and covered and wrapped with a blanket and an automobile robe, in addition to all the other property aforementioned, so that the same was not open

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