State v. Johnson

• Decision Date: 10 May 1924
• Docket Number: 25,048
• Parties: THE STATE OF KANSAS, Appellant, v. JOHN JOHNSON, Appellee
• Court: Kansas Supreme Court

226 P. 245

116 Kan. 58

THE STATE OF KANSAS, Appellant, v. JOHN JOHNSON, Appellee

No. 25,048

Supreme Court of Kansas

May 10, 1924

Decided January, 1924

Appeal from Phillips district court; WILLARD SIMMONS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

LIQUOR LAW--Liquor Still and Apparatus Taken By Officers Acting Without Authority May Be Admitted in Evidence Against the Possessor Thereof. A liquor still and apparatus taken from a dwelling house during the owner's absence, by the sheriff and county attorney, acting without semblance of lawful authority to search or seize, may be retained by the sheriff and may be used as evidence in a criminal prosecution against the possessor for maintaining a liquor nuisance, although he made timely application to the court for return of the articles, possession of them having become a crime before the application was made.

C. B. Griffith, attorney-general, John F. Rhodes, assistant attorney-general, and W. N. Moore, county attorney, for the appellant.

A. W. Relihan, T. D. Relihan, J. T. Reed, all of Smith Center, and J. F. Bennett, of Phillipsburg, for the appellee.

Burch J. Harvey, J., dissenting.

OPINION

BURCH, J.:

The state appeals from an order requiring return of a liquor still and apparatus, obtained by unlawful search and seizure, and held for use as evidence in the trial of a liquor case.

On February 10, 1923, the persons holding the offices of sheriff and county attorney visited the premises of defendant. He was not at home and, without warrant for arrest, search, or seizure, or any pretense of lawful authority, they entered his dwelling house and other buildings, and found and carried away the articles referred to. On February 12 complaint was filed before a justice of the peace, charging defendant with making and selling intoxicating liquor and with maintaining a liquor nuisance. On February 19 he was found guilty by a jury of maintaining a nuisance, judgment was rendered on the verdict, and he appealed to the district court. On April 18 he filed in the district court a motion for an order requiring the sheriff to return the articles to him, on the ground they were unlawfully seized and held to be used as evidence against him. As indicated, the court sustained the motion. The sheriff is holding the articles pending disposition of the state's appeal.

The following statute took effect on March 23, 1923, a month after defendant appealed to the district court, and nearly a month before he filed his motion:

"It shall be unlawful for any person to manufacture or have in his possession any still, boiler or other vessel or apparatus to be used for the purpose of distilling or separating by any process of evaporation alcoholic spirit from any fermented substance, or any part of any such still, boiler or other vessel or apparatus, and any person so doing or having any such still, boiler or other vessel or apparatus, or part thereof, in their possession shall be deemed guilty of a misdemeanor and punished as herein provided." (R. S. 21-2111.)

Defendant relies on the decision in the case of Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652, 34 S.Ct. 341, and other decisions of the supreme court of the United States creating and enforcing sanctions to the 4th and 5th amendments to the constitution of the United States, analogs of which may be found in the constitution of this state. (Bill of Rights, §§ 15 and 10.)

The decisions of the supreme court of the United States are not, of course, binding on this court, because they deal with restraints on action of the federal government only. Partly because of what this court regards as unsoundness of view, and partly because of the wavering character of those decisions, they have not been persuasive, and no attempt has been made to reconcile our own decisions with them.

In the case of The State v. Miller, 63 Kan. 62, 64 P. 1033 (1901), 64 P. 1033, the syllabus reads:

"The fact that bottles, glasses, liquors and other articles may have been taken by an officer from the possession of the defendant in an unauthorized search of his premises does not constitute a valid objection to the admissibility of such articles in evidence against him, if they are otherwise pertinent and competent." (P 3.)

When made, that declaration of law was in full accord with the overwhelming weight of authority. It was not in accord with the opinion in the case of Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524 (1885), which amalgamated the 4th and 5th amendments, the court perceiving no difference between seizure of private papers to be used in evidence against the owner, and compelling him to be a witness against himself.

In the case of Adams v. New York, 192 U.S. 585, 48 L.Ed. 575, 24 S.Ct. 372 (1903), an officer having a search warrant for gambling paraphernalia, went outside his authority and seized private papers, which were subsequently admitted in evidence against the defendant. The court held that illegality of seizure did not affect admissiblity of the seized documents in evidence. In support of the decision the court quoted, as this court had done in the Miller case, section 254-a of Green-leaf on Evidence, as follows:

"Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question."

The court cited numerous cases which this court had cited in the Miller case, and quoted from some of them. A part of the quotation from Commonwealth v. Tibbitts, 157 Mass. 519, 32 N.E. 910, is as follows:

"Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular or even in an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally; but his testimony is not thereby rendered incompetent." (p. 521.)

The 4th amendment provides that no search warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the thing to be seized. Therefore there can be no lawful seizure of anything not particularly described in a warrant duly supported and issued. Seizure of what the officer may happen to discover is not legalized because he had a search warrant for something else. The 5th amendment forbids compelling a person to be a witness against himself in a criminal case. The purpose of these amendments was illustrated and stated in the Adams case as follows:

"The right to issue a search warrant to discover stolen property or the means of committing crimes, is too long established to require discussion. The right of seizure of lottery tickets and gambling devices, such as policy slips, under such warrants, requires no argument to sustain it at this day. But the contention is that, if in the search for the instruments of crime, other papers are taken, the same may not be given in evidence. As an illustration, if a search warrant is issued for stolen property and burglars' tools be discovered and seized, they are to be excluded from testimony by force of these amendments. We think they were never intended to have that effect, but are rather designed to protect against compulsory testimony from a defendant against himself in a criminal trial, and to punish wrongful invasion of the home of the citizen or the unwarranted seizure of his papers and property, and to render invalid legislation or judicial procedure having such effect." ( Adams v. New York, 192 U.S. 585, 598, 48 L.Ed. 575, 24 S.Ct. 372.)

This was a repudiation of the non sequitur in Boyd's case that unlawful seizure renders articles seized inadmissible in evidence and, if common English words bear their ordinary signification, the repudiation was rested on grounds which make the subject of introduction of a collateral issue at the time the evidence is offered inconsequential.

In the Weeks case, 232 U.S. 383 (1914), the ruling was that, if timely application be made for return of papers seized by officers acting without warrant, the papers may not be admitted in evidence at the subsequent trial of the applicant for crime. In attempting to distinguish the Adams case, the unlawful conduct in that case was minimized by saying the documents were "incidentally" seized in lawful execution of a warrant. Greenleaf's rule contains two propositions: 1st, the court will not take notice of how offered evidence was obtained, whether lawfully or unlawfully; 2d, nor will it form an issue to determine that question. In distinguishing the Adams case the court restated this doctrine so that it took this form: The court "in the course of a trial" will not make an issue to determine legality or illegality of seizure. Finally it was said the decision in the Adams case was rested on application of the doctrine that a collateral issue will not be raised to ascertain the source from which testimony obtained in a criminal case comes (p. 396). The conclusion was unsuccessful effort before trial to get back property unlawfully seized renders it inadmissible in evidence at the trial. It is respectfully submitted that this is emasculation by the gentle art of distinguishing and, in the case of Gouled v. United States, 255 U.S. 298, 65 L.Ed. 647, 41 S.Ct. 261 (1921), the court said a rule of practice must not be allowed, for any technical reason, to prevail over a...