State v. District Court of Fourth Judicial Dist. in and for Missoula County
| Decision Date | 29 March 1924 |
| Docket Number | 5496. |
| Parties | STATE EX REL. KING v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR MISSOULA COUNTY ET AL. |
| Court | Montana Supreme Court |
Application for writ of prohibition by the State, on the relation of Robert F. King, against the District Court of the Fourth Judicial District in and for the County of Missoula, Theodore Lentz, Judge, and Dwight N. Mason, County Attorney of Missoula County. Writ issued.
Charles A. Russell, of Missoula, for relator.
W. D Rankin, Atty. Gen., and Dwight N. Mason, of Missoula, for respondents.
This is an original application by Robert F. King for a writ of prohibition directed to the district court of Missoula county and to Hon. Theodore Lentz, one of the judges thereof, and to Dwight N. Mason, county attorney of that county, to stay further action in a search warrant proceeding instituted by one Vean Mosher under what are commonly known as the prohibition enforcement laws. The respondents have appeared by answer.
In view of the conclusion at which we have arrived we do not deem it necessary to consider an interesting question respecting the sufficiency of the "probable cause" underlying the issuance of the search warrant. Suffice it to say that upon a complaint filed by Mosher, fortified by a "deposition" given by him, a justice of the peace issued the search warrant. In the complaint for the search warrant, which was substantially in the form prescribed by section 11071, R. C. 1921, as amended (chapter 116, Session Laws 1923, p. 284), Mosher alleged that he had just and probable cause to believe and did believe that intoxicating liquor then was being unlawfully manufactured "at and within a certain dwelling house upon the following described property: The southeast quarter (SE1/4) of section 22, Tp. 11 N., R. 20 W., M. P. M., Missoula county, Montana, now occupied by Bob King." Then followed reasons for his belief. In the deposition (sections 12397, 12398, R. C. 1921) given in aid of the complaint Mosher said he was satisfied liquor was being manufactured "in the house or a little shed close to it." The search warrant commanded the officer--
"to make immediate and diligent and careful search in that building described as a dwelling house and all outbuildings situated upon those premises described as: The southeast quarter (S. E. 1/4) of Sec. 22, Tp. 11 N., R. 20 W., M. P M., Missoula county, Montana, for intoxicating liquor and if any intoxicating liquor be found there, to seize the same with the vessels containing the same and all implements, furniture and vehicles kept or used for the purpose of violating, or with which to violate, any law of this state or of the United States," etc.
In pursuance of the warrant the sheriff made return that he did "thoroughly search the premises described in the warrant," and that he "found therein" and took away certain articles, including copper stills, moonshine whisky (8 gallons), five 100-pound sacks of sugar, "and the following property was destroyed at ranch at time of seizure: Ten 50-gallon mash barrels, one 3-gallon keg, 80 gallons moonshine whisky." The warrant was issued on January 8, 1924, and return made the same day. Thereafter the justice of the peace filed with the district court the complaint, deposition, search warrant, return, and inventory, as he was required to do by section 12413, R. C. 1921. In the meantime the county attorney had filed an information against King charging him in two counts with possessing intoxicating liquor and manufacturing intoxicating liquor on or about the 8th of January, 1924.
After the justice of the peace had made his return as aforesaid, King filed in the district court his petition to suppress the evidence obtained under the search warrant. He alleged it was the purpose of the county attorney and sheriff in procuring the search warrant to obtain evidence against him and to use the same in prosecuting him, and that the information filed was based upon the evidence thus secured.
Apparently it was the theory of the county attorney that the description contained in the complaint could be made to aid that in the warrant. This theory is erroneous. If the warrant had contained the description given in the complaint we should sustain it; but the warrant did not contain that description; the essential words "now occupied by Bob King" were omitted, and without them the description was far too general.
The warrant assumed to authorize the sheriff to search "that building described as a dwelling house and all outbuildings," etc. What building described as a dwelling house? The warrant does not say, and a warrant as to description must be complete in itself. Based upon the complaint and the supporting deposition, the limit of search which should have been authorized was "the dwelling house occupied by Bob King and the little shed close to it." The sheriff in his return said that he did thoroughly search "the premises described in the warrant," and that he "found therein" the articles which he took. No one can say from the warrant definitely what he was authorized to search, nor can any one say from his return what particular building he did search, nor where he found the articles he seized. In the proceeding to suppress testimony it was contended by King and witnesses who gave affidavits for him that there were three dwelling houses and several outbuildings on the premises; on the other hand, the county attorney proffered evidence to the effect that there was but one dwelling house thereon, the other buildings being bunkhouses, barns and the like. Through this confusion there shines out the guiding principle that when it comes to the search and seizure of the property of a citizen there must not be any obscurity or uncertainty.
Section 7, article 3 of the Constitution of Montana provides:
"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 person or thing to be seized, nor without probable cause, supported by oath or affirmation, reduced to writing."
Substantially this provision is a reiteration of the Fourth Amendment. Thus it traces back to the determination of the framers of the national Constitution to place unmistakably in the fundamental law safeguards to protect the people from unreasonable searches and seizures, such as had been permitted under general warrants in the form of writs of assistance by the authority of the government in colonial times, by which there had been invasions of the homes and privacy of the citizens, and outrageous seizures of their private papers in support of real or imaginary charges against them. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; 24 R. C. L. 703. "Resistance to these practices," said Mr. Justice Day in Weeks v. United States, "had established the principal which was enacted into the fundamental law in the Fourth Amendment, that a man's house was his castle and not to be invaded by any general authority to search and seize his goods and papers." Weeks v. United States, 232 U.S. 383, 34 S.Ct. 34, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The erudite justice observed that the effect of the amendment is to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. The protection reaches all alike, whether accused of crime or not, and the duty of giving it force and effect is obligatory upon all intrusted with the enforcement of the law. The United States Supreme Court has reaffirmed the doctrine of the Weeks Case in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, and Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.
This court, speaking through Mr. Chief Justice Brantly, followed and expressly approved it in State ex rel. Samlin v. District Court, 59 Mont. 600, 198 P. 362. We again express our adherence to it. We have considered with interest the opinions of able courts who by plausible but as we think specious reasoning have refused to follow the pronouncement of the Supreme Court of the United States on the subject. These courts, while claiming admiration for the high and splendid principle of the constitutional mandate, refuse to put it into effect. That is not our idea of enforcing the law; it is mere lip service. Our idea is that every citizen of the republic, every agency of government, every officer of the nation or state, from the highest to the lowest, is charged with the preservation and enforcement of the fundamental law.
Of course only unreasonable searches and seizures are prohibited. The constitutional provision was not designed to aid the lawbreaker. But every search and seizure which is not lawful and which is not conducted as the law prescribes, is unreasonable. State v. Wills, 91 W.Va. 659, 114 S.E. 261, 24 A. L. R. 1398.
The power to make searches and seizures is absolutely necessary to the public welfare. United States v. Innelli (D C.) 286 F. 731. But the process may be invoked only in furtherance of public prosecutions. Statutes providing for their issuance and execution are sustained under the constitutional provisions forbidding unreasonable search and seizure only as a necessary means in the suppression of crime and the detection and punishment of criminals, and these are required to be cautiously framed and carefully pursued, in order that the constitutional rights of...
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