State v. District Court of Sixteenth Judicial Dist., in and for Custer County
| Decision Date | 06 May 1921 |
| Docket Number | 4824. |
| Citation | 198 P. 362,59 Mont. 600 |
| Parties | STATE EX REL. SAMLIN v. DISTRICT COURT OF SIXTEENTH JUDICIAL DIST., IN AND FOR CUSTER COUNTY ET AL. |
| Court | Montana Supreme Court |
Original application by the State, on the relation of John Samlin, for a writ of prohibition directed to the District Court of the Sixteenth Judicial District in and for Custer County, and another. Peremptory writ ordered, with directions.
Frank Hunter, Daniel L. O'Hern, and William Truscott, all of Miles City, for relator.
W. D Rankin, Atty. Gen., L. A. Foot, Asst. Atty. Gen., W. C Packer, of Miles City, and C. A. Spaulding, of Helena, for defendants.
Original application for a writ of prohibition, directed to the district court of Custer county and to Hon. S.D. McKinnon one of the Judges thereof, to stay further action in a search warrant proceeding instituted by one R. B. Hayes, under the provisions of chapter 143 of the Session Laws of 1917, commonly called the Prohibition Enforcement Act.
On February 11 of this year Hayes filed a "complaint" in the district court of Custer county, the part of which material here is the following:
The defendant judge issued the warrant, which was put in the hands of Martin Golden, chief of police of Miles City, for execution. This he did by a search of the premises described, and found there a quantity of whisky in bottles, which he seized, certifying in his return that he held the same in his possession, subject to the order of the court. He further certified that, having found no one in possession of the whisky, he posted a copy of the warrant on the door of the garage on the premises in which the whisky was found. On February 19 the judge made an order fixing March 3, at 10 o'clock a. m. as the time for a hearing to determine whether the whisky should be adjudged forfeited. A copy of the order was served on the relator. On that date he appeared by counsel and moved the court to quash the warrant and to order the whisky forthwith returned to the premises and to his possession, on the ground, among others, that the issuance of said alleged warrant was and is without and in excess of jurisdiction because in violation of the provisions of the Fourth and Fifth Amendment to the Constitution of the United States, of section 7 of article 3 of the Constitution of Montana, of sections 7 and 8 of the Prohibition Enforcement Act, and of the sections of the Revised Codes providing for the issuance of search warrants. The motion was denied, and the hearing was continued to May 9 at 10 o'clock a. m. Thereupon application for the writ was made to this court. An alternative writ was issued and made returnable for hearing on March 14. The defendants appeared by counsel and moved that the writ be quashed and the application dismissed, on the ground that upon the facts stated in the complaint the relator is not entitled to relief. The application was thereupon submitted for decision on the merits.
It will be noted that the statement in the complaint is that "he [affiant] has probable cause to believe, and does believe, that on the 5th day of February, A. D. 1921," etc. The ultimate question submitted for decision is whether this statement, in the form of a conclusion by the affiant, though under oath, was sufficient to give the court or judge jurisdiction to issue the search warrant. The solution of this question depends upon the meaning of the section of our state Constitution prohibiting unreasonable searches and seizures, upon which the relator relies, and the provisions of law on the subject enacted in pursuance of it.
Consideration of the scope and application of Amendments 4 and 5 of the Constitution of the United States is not pertinent. It is well settled that the prohibitions embodied in them are not limitations upon the power of the several states, but operate exclusively upon the delegated powers of the federal government. It is not necessary here to do more than call attention to some of the decisions of the Supreme Court of the United States which have discussed them and defined their application. Barron v. City of Baltimore, 7 Pet. 243, 8 L.Ed. 672; Fox v. Ohio, 5 How. 434, 12 L.Ed. 213; Smith v. State of Maryland, 18 How. 76, 15 L.Ed. 269; Withers v. Buckley, 20 How. 90, 15 L.Ed. 816; Twitchell v. Commonwealth, 7 Wall. 327, 19 L.Ed. 223; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915B, 1177. Indeed, the rule announced in these cases applies to all the amendments, unless a contrary purpose is clearly expressed or implied by the terms in which they are couched. United States v. Cruikshank, supra.
The provision of our state Constitution referred to is:
"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."
The general provisions relating to search warrants are sections 9676 to 9696 of the Revised Codes. Section 9677 enumerates the grounds upon which they may issue. The first subdivision of this section applies to cases where property has been stolen or embezzled; the second, to cases where property has been used as a means of committing a felony; the third, to cases where property is in the possession of any person who intends to use it as a means of committing a public offense, or is in possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered.
Sections 9678, 9679, 9680, and 9681 provide:
"A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched." Section 9678.
"The magistrate must, before issuing the warrant, examine on oath the complainant, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them." Section 9679.
"The depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist." Section 9680.
"If the magistrate is satisfied of the existence of the grounds of application or that there is probable cause to believe their existence, he may issue the warrant. * * *" Section 9681.
Section 7 of the Prohibition Enforcement Act (Laws 1917, p. 241) declares:
"If, upon the sworn complaint of any person, it shall be made to appear to any judge of the district court that there is probable cause to believe that intoxicating liquor is being manufactured, sold, exchanged, given away, * * * such judge shall, with or without the approval of the county attorney, issue a warrant directed to any peace officer in the county, and commanding him to search the premises designated and described in such complaint and warrant, and to seize all intoxicating liquor there found, together with the vessels in which it is contained," etc.
We shall not undertake to enter into a detailed discussion of the reasons, from a historical point of view, which prompted the incorporation in the federal Constitution of a specific guaranty against unreasonable searches and seizures, nor why, though couched in somewhat varying terms, it appears in the Constitutions of the several states. It is sufficient to say that when the colonies had gained their independence and were engaged in establishing the federal and the several state governments under written Constitutions, they deemed it wise to incorporate in them in crystallized form the principles laid down as a part of the English Constitution by Lord Camden in his decision in the case of Entick v. Carrington, 19 St. Tr. 1030, and make them applicable to all invasions on the part of any of the several governments or any of their employees, of the sanctity of the home of a citizen, his personal security, personal liberty and private property where there is not probable cause to believe that his rights in this behalf have been forfeited by his own criminal conduct. As new states were formed from time to time, they also incorporated the guaranty in their Constitutions, until now it is found, in some form, in those of all the states.
Speaking of the Fourth Amendment to the Constitution of the United States, Mr. Justice Day, in 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, said:
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