State v. Flynn

• Decision Date: 26 May 1931
• Citation: State v. Flynn, 137 Or. 8, 299 P. 694 (Or. 1931)
• Parties: STATE v. FLYNN ET AL. [a1]
• Court: Oregon Supreme Court

299 P. 694

137 Or. 8

STATE v. FLYNN ET AL. ^[a1]

Supreme Court of Oregon

May 26, 1931

In Bank.

Appeal from Circuit Court, Umatilla County; James Alger Fee, Judge.

Jesse Flynn and others were convicted for possessing liquor, and they appeal.

Affirmed.

The defendants have appealed from a judgment of conviction of the crime of unlawful possession of intoxicating liquor, on the ground that the constitutional guaranty (article 1, § 12) that "no person shall be put in jeopardy twice for the same offense, nor be compelled in any criminal prosecution to testify against himself," has been violated, and on the further and chief ground that section 20 of chapter 141, p 160, General Laws of Oregon 1915 (codified as Or. Code 1930 § 15-136), the act under which the search warrant was issued is unconstitutional, in that it is in violation of article 1 § 9, of the Oregon Constitution, prohibiting unreasonable search and seizure.

On September 12, 1930, S. C. Linville, a prohibition agent, swore to and filed an information with Norborne Berkeley, justice of the peace for Pendleton district, Umatilla county, in words and figures as follows:

"In the Justice Court for Pendleton District,

Umatilla County, Oregon.

"Information

"State of Oregon, Plaintiff, v.

Harriet Flynn, Defendant.

"State of Oregon, County of Umatilla--ss.:

"I, S. C. Linville, being first duly sworn, do on my oath accuse the above named defendant, Harriet Flynn, of the crime of unlawfully keeping and maintaining a place as a common nuisance, committed as follows:

"The said defendant, Harriet Flynn, in the County of Umatilla, State of Oregon, on the 12th day of September, A. D., 1930, then and there being, did then and there unlawfully and willfully keep and maintain as a common nuisance that certain place known and described as the Rex Rooms, known and described as 115 West Webb Street, City of Pendleton, county and state aforesaid, by then and there at said place keeping for sale, barter, and delivery in violation of law, certain intoxicating liquors, to wit, whisky, and by then and there keeping and using in said place certain liquors, bottles, glasses, kegs, pumps, bars, and other vessels containing intoxicating liquors and other property for the purpose of keeping and maintaining said place above described as a common nuisance, contrary to the statutes in such cases made and provided against the peace and dignity of the State of Oregon.

"S. C. Linville.

"Subscribed and sworn to before me this 12th day of September, A. D., 1930.

"Norborne Berkeley, Justice of the Peace."

Based upon the information, the district attorney of Umatilla county filed a motion for the issuance of a search warrant for the purpose of searching the premises occupied by the defendants for intoxicating liquors. Predicated upon the allegations of fact contained in the information, the justice of the peace for Pendleton district issued to the then sheriff of Umatilla county a search warrant, which reads as follows:

"In the Justice Court for Pendleton District, Umatilla County, State of Oregon.

"Warrant for Search, Seizure and Arrest.

"The State of Oregon, plaintiff, v. Harriet Flynn, Defendant.

"In the Name of the State of Oregon

"To the Sheriff of Umatilla County, Oregon, or any peace officer, greeting:

"Whereas an information, on oath, having been this day laid before me charging that a place, to wit, known and described as the Rex Rooms known and described as 115 West Webb Street, City of Pendleton County and State aforesaid in the County of Umatilla, State of Oregon, was and is being kept and maintained as a common nuisance by Harriet Flynn, the defendant above named, and that intoxicating liquors, bottles, glasses, pumps, bars, funnels, kegs, and other property were and are kept and used therein in keeping and maintaining said place above described as a common nuisance. you are therefore commanded, at any time in the day or night, to make immediate search of the above described premises for the following described property, to wit, whisky and other intoxicating liquors, bottles, glasses, pumps, bars, kegs, funnels, siphon hose, labels, corks, caps, cappers, and if you find the same, or any part thereof, to seize the same and the vessels containing said intoxicating liquors and other property kept and used in said place in keeping and maintaining said place as a common nuisance, and bring it forthwith to me at my office, and to securely keep the same until final action be had thereon, and you are hereby further commanded forthwith to arrest the above named Harriet Flynn and bring her before me at my office in said county, or in case of my absence or inability to act, before the nearest or most accessible magistrate in this county.

"Dated this 12th day of September, A. D., 1930.

"Norborne Berkeley,

"Justice of the above entitled court."

Armed with the search warrant, the sheriff, with deputies, state agents, and one federal agent, searched the Rex Rooms, and seized and carried away about a gallon of whisky, a pitcher, some empty pint flasks, whisky glasses, one siphon hose, corks, two funnels, and two empty one-gallon containers, and arrested two persons alleged to have been hired help of "the keeper of said liquors." He then made due return of the execution of the warrant, which return and inventory reads:

"Return and Inventory

"State of Oregon, Umatilla County--ss.:

"I hereby certify that I received the within warrant on the 12th day of September, A. D., 1930, and that I executed the same on the 12th day of September, A. D., 1930, by entering upon the premises described therein and making diligent search for the property described therein, and I found upon said premises the following described property, to wit, Almost one gallon of whisky, a pitcher and two whisky glasses, one towel, fourteen empty pint flasks, one slop jar with ladle, one siphon hose, corks, two empty one gallon containers, two funnels found under circumstances warranting the belief that the same were kept and used in violation of law, and I now have the same in keeping before the court to await final action thereon, and I pursuant to the within order arrested Ed Sloan and Ruth Allen, hired help of the keeper of said liquors to be apprehended.

"Tom B. Gurdane,

"Sheriff of Umatilla County, Oregon,

"By Tom B. Gurdane."

The defendants were indicted by the grand jury of Umatilla county, charged with the unlawful possession of intoxicating liquor. Subsequent to their indictment and prior to trial, they filed a petition in the circuit court of Umatilla county, demanding that the liquors and other articles seized and taken from the Rex Rooms by virtue of the search warrant hereinbefore described be suppressed as evidence, upon the ground that the search and seizure was in violation of their constitutional rights "as guaranteed to them under the Constitution of the State of Oregon, and the laws of the state of Oregon covering searches and seizures." The petition was denied, and this denial constitutes the chief ground of appeal.

RAND J., dissenting.

Homer I. Watts, of Athena (Watts & Prestbye, of Athena, and Peterson & Lewis, of Pendleton, on the brief), for appellants.

C. C. Proebstel, Dist. Atty., of Pendleton, for the State.

BROWN, J. (after stating the facts as above).

Chapter 141, p. 150, General Laws of Oregon 1915, is entitled: "An Act relating to intoxicating liquors; prohibiting the manufacture and sale thereof * * *; declaring certain places and things to be nuisances and providing for their abatement and injunction * * *; and providing for search of premises and seizure and destruction of liquor. * * *"

Section 20 thereof (page 160), the section assailed by the defendants, reads: "Upon the filing of a complaint, information or indictment charging that a place is kept or maintained as a common nuisance by any person or persons, and that intoxicating liquors, bottles, glasses, kegs, pumps, bars or other property are kept or used therein in keeping and maintaining such place as a common nuisance, a warrant shall be issued commanding the officer to whom it is directed to arrest the person or persons charged or described as the keeper or keepers, and to search the place described in such complaint, information or indictment, and to seize and take into his custody all intoxicating liquors, glasses, bottles, kegs, pumps, bars or other property described in said complaint or information which he may find at such place, and safely keep the same subject to the orders of the court. The complaint or information shall be supported by oath or affirmation and shall describe the place to be searched with sufficient particularity to identify the same, and shall describe the intoxicating liquors, or other property alleged to be used in maintaining the same, as particularly as practicable, but any description, however general, that will enable the officer executing the warrant to identify the property to be seized, shall be deemed sufficient. Upon the return of the warrant, the court shall proceed as in other cases against the person or persons arrested."

The defendants assert that this section has deprived the magistrate issuing the search warrant of his right to determine probable cause. The finding of probable cause to issue a search warrant is a judicial function. There are numerous cases in our own and other jurisdictions that hold that an act passed by the Legislative Assembly that attempts to deprive the magistrate of the right to determine probable cause is unconstitutional. We concur in this holding. The people of the state of Oregon, to the end that justice be established, ordained that "no law shall violate the right of the people to be secure in...