State v. De Ford

• Decision Date: 12 October 1926
• Citation: 250 P. 220,120 Or. 444
• Parties: STATE v. DE FORD.
• Court: Oregon Supreme Court

250 P. 220

120 Or. 444

STATE v. DE FORD.

Supreme Court of Oregon

October 12, 1926

In Bank.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

C. F De Ford was indicted on the charge of unlawfully possessing and transporting intoxicating liquor. From a judgment of acquittal, based on a directed verdict, the State appeals. Appeal sustained.

The state appeals from a judgment of acquittal based on a directed verdict. The defendant was indicted by the grand jury of Tillamook county charged with the crime of unlawful possession and transportation of intoxicating liquor. At the trial, the following stipulation was entered into:

"This stipulation and agreement made and entered into this 19th day of May, 1925, by and between the plaintiff and defendant, witnesseth:

"That whereas, the defendant has duly filed herein an amended petition to suppress evidence, and this is the time set by the court for the hearing thereof, and the parties hereto being willing to stipulate as to what certain witnesses for the state would testify to in connection with said hearing of said petition it they were called and sworn as witnesses herein:

"Now therefore, it is hereby stipulated and agreed by and between the parties hereto that if Leslie Lucas and H. H Hogan, deputy sheriffs for Tillamook county, Or., they being the officers who made the search and seizure as alleged in defendant's amended petition herein, and John Aschim, sheriff of Tillamook county, Or., were present in court, duly sworn, and testified, that they would testify as follows, to wit:

"The said deputy sheriffs Lucas and Hogan would testify: That they made the search and seizure complained of in defendant's petition herein; that they had no personal knowledge prior to such search and seizure of and from defendant's automobile that the defendant was then and there engaged in the unlawful transportation of intoxicating liquor, nor that he was then and there in the unlawful possession of the same, nor were they, or either of them, prior to the said search and the seizure from said automobile of a 5-gallon oak keg almost filed with moonshine whisky, in possession of any facts within their own personal knowledge other than herein set forth, giving them reasonable cause or grounds to believe defendant was then and there in the unlawful possession of intoxicating liquor, or that defendant was then and there, and while in the possession of and driving his automobile along the highway in question, engaged in the transportation of intoxicating liquor; that the only knowledge which they or either of them, had or possessed concerning said matters prior to such search and seizure, was that about 15 minutes prior to the time they started from the courthouse in Tillamook, Or., to and along the highway leading from Tillamook to Portland, Or., by way of Hebo, Sheridan, and McMinnville, for the purpose of intercepting the defendant and his automobile upon their return to Tillamook county and making a search of said automobile, they were called into the office of John Aschim, sheriff of Tillamook county, Or., in the said courthouse, and were then and there informed and instructed by the said John Aschim, that defendant was transporting intoxicating liquor, and for them to proceed along the highway in question, intercept and stop the defendant and his automobile, and make a search of the same for intoxicating liquor, and that they acted upon that information and those instructions, without further personal knowledge, investigation, or instructions.

"That the said John Aschim, sheriff aforesaid, would testify: That, prior to giving said instructions to his said deputies Lucas and Hogan, a certain citizen of Tillamook, Or., over the age of 21 years, came to the office of said sheriff in the courthouse aforesaid, and then and there verbally told the said sheriff, John Aschim, that the defendant was driving his automobile from Portland to Tillamook, and that he was then and there transporting intoxicating liquor, amount, and kind unknown, in said automobile, that said statement of said citizen was not under oath nor reduced to writing; that, acting upon the said information so given him by said citizen, the said sheriff issued the orders and directions to said deputy sheriffs Lucas and Hogan, and the search and seizure of and from the defendant's automobile on said highway were accordingly made."

A petition to suppress the evidence as outlined in said stipulation was timely made and allowed. During the trial the state made its offer of proof and rested its case. The appeal was taken by the state by virtue of Or. L. § 2224--59. It is contended on the part of the defendant that Or. L. § 2225--5, is unconstitutional and therefore void, and that the liquor having been seized after a search without a warrant was not admissible as evidence against the defendant; timely petition having been presented for the return of said liquor and the suppression of the same as evidence. The circuit court sustained both contentions. The state challenges in this appeal the correctness of both said rulings.

Willis S. Moore, of Salem, and C. W. Barrick, of Tillamook, for the State.

Vinton & Tooze, of McMinnville (Roy Sparks, of McMinnville, amicus curiæ on the brief), for respondent.

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

"The general rule is that courts approach with hesitancy the question of declaring a statute unconstitutional, and, so long as a reasonable doubt exists, a statute will not be held to be in contravention of the Constitution. The courts will declare a statute void when its repugnancy to the Constitution is clear, palpable, and free from reasonable doubt. Cook v. Port of Portland, 20 Or. 580, 27 P. 263, 13 L. R. A. 533." Smith v. Cameron, 106 Or. 1, 10, 210 P. 716, 719 (27 A. L. R. 510); State v. Kozer, 116 Or. 581, 586, 242 P. 621; State v. Laundy, 103 Or. 443, 457, 204 P. 958, 206 P. 290; Miller v. Henry, 62 Or 4, 124 P. 197, 41 L. R. A. (N. S.) 97. The section of the Constitution claimed in this action to have been offended is section 9 of article 1, which reads as follows:

"No law shall violate the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

It follows as a necessary conclusion that, if section 2225--5, Or. L., is not repugnant to the Constitution, the court erred in suppressing the evidence and directing a verdict of acquittal in the instant case.

It must be noticed first of all that the inhibition of said section 9 of the Constitution is against unreasonable searches and seizures only. This language implies that there were reasonable searches and seizures recognized as such at the time our Constitution was framed and adopted. That is the plain meaning of the language used. The simple and natural construction of the words used in said section 9, read by one unrestrained by legal technicalities, is that unreasonable searches and seizures only are prohibited. Any other construction ignores the word "unreasonable." If searches and seizures without a warrant were considered unreasonable, the framers of the Constitution would have so declared. They would have used language that would not have been of doubtful meaning. It would have been very easy to have written, "All searches and seizures not authorized by warrant are prohibited." They did not do so, and it is our duty to give full force and effect to every word used in the sentence, unless it clearly appears that to do so is to defeat the meaning and purpose of the framers of the Constitution. In construing different parts of the Constitution effect should be given to all the words. Rugh v. Ottenheimer, 6 Or. 231, 25 Am. Rep. 513.

"The object and purpose of the law, whether fundamental or otherwise, must be considered, and the Constitution must not be interpreted on narrow or technical principles, but liberally and on broad general lines, in order that it may accomplish the objects intended by it and carry out the principles' of government. The whole Constitution must be construed together. When two constructions are possible, one of which raises a conflict or takes away the meaning of a section, sentence, phrase, or word, and the other does not, the latter construction must be adopted, or the interpretation which harmonizes the Constitution as a whole must prevail. In this connection it must also be kept in mind that the Constitution of a state, unlike that of our national organic law, is one of limitation, and not a grant, of powers, and that any act adopted by the legislative department of the state, not prohibited by its fundamental laws, must be held valid; and this inhibition must expressly or impliedly be made to appear beyond a reasonable doubt." State v. Cochran, 55 Or. 157, 179, 105 P. 884, 887, and authorities there cited and examined.

To eliminate the effect and force of the word "unreasonable" in said section 9 would offend against this uniform and universal canon of construction.

The great weight of authority of this country sustains this construction of the search and seizure section of the Constitution. Mr. Chief Justice Taft in Carroll v. U. S., 267 U.S. 132, 149, 45 S.Ct. 280, 283, 69 L.Ed. on page 549 of the latter edition says:

"On reason and authority the true rule is that, if the search and seizure without a warrant are made upon probable cause--that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and

...