State v. Ladue

• Decision Date: 12 June 1925
• Docket Number: 5689.
• Citation: 237 P. 495,73 Mont. 535
• Parties: STATE v. LADUE.
• Court: Montana Supreme Court

237 P. 495

73 Mont. 535

STATE v. LADUE.

No. 5689.

Supreme Court of Montana

June 12, 1925

Appeal from District Court, Lake County; James M. Self, Judge.

Elmer Charles Ladue was convicted of manufacturing and possessing intoxicating liquor, and he appeals. Affirmed.

A. J Lowary, of Polson, for appellant.

L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for the State.

MATTHEWS J.

On January 12, 1924, Sheriff Kelly of Lake county, and one J. C Curtis, a federal enforcement agent, purporting to act under a search warrant, visited the ranch of defendant near Ronan and seized a still, a quantity of mash, and three-fourths of a gallon of moonshine whisky.

An information was thereafter filed charging defendant with the manufacture and possession of intoxicating liquor, to which a plea of not guilty was entered. The case was set for trial, but, just before it was reached on the calendar, defendant moved to suppress the seized articles as evidence, supporting his motion by his affidavit to the effect that his premises were searched and the articles found and seized without a search warrant. The motion was overruled, and, on the trial, the articles were admitted in evidence, resulting in a verdict of guilty, and judgment thereon. Defendant moved for a new trial upon the ground that the evidence should have been suppressed, which motion was overruled. This appeal is from the judgment, and from the order denying the motion for a new trial.

Defendant makes four assignments of error: (1) That the court erred in overruling the motion to suppress, and (2) in admitting the seized articles in evidence, (3) that the verdict and judgment are against law and the evidence, and (4) that the court erred in denying the motion for a new trial. But one question is, however, presented, to wit, Was the evidence lawfully obtained? If it was, no error was committed in admitting such evidence or in denying defendant a new trial, and, under the evidence, if properly admitted, the verdict and judgment are justified.

1. On the hearing to suppress, it appeared that, if the officer had a warrant at all, it was issued irregularly, and without the approval of the county attorney, and was therefore invalid (chapter 116, Laws of 1923; State ex rel. Skrukrud v. District Court, 71 Mont. ---, 230 P. 1089), and the seizure cannot be justified thereunder.

2. However, as stated in United States v. McBride (D. C.) 287 F. 214 [certiorari denied], 261 U.S. 614, 43 S.Ct. 359, 67 L.Ed. 827:

"The constitutional inhibition is against 'unreasonable search and seizure.' This word 'unreasonable' was put in there in full knowledge of its meaning. There is no guaranty against searching and seizing, nor against searching without a warrant. The question as to whether a search is unreasonable does not depend altogether on whether a warrant was held by the officer. * * * If * * * the search was not prohibited as unreasonable, it does not matter whether or not the officer had a warrant."

Thus it is held that an officer may make search and seizure without a warrant when he has probable cause for believing that an offense is being committed. Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035; Carroll v. U.S. Co-Op., 45 S.Ct. 280, 69 L.Ed. ---; State ex rel. Brown v. District Court, 71 Mont. ---, 232 P. 201. And an officer may seize articles used in the commission of a crime when the offense is being committed in his presence. State ex rel. Neville v. Mullen, 63 Mont. 50, 207 P. 634; State ex rel. Merrell v. District Court, 71 Mont. ---, 231 P. 1107.

3. On a motion to suppress, the movant, being the party asserting that a seizure is illegal, has the burden of establishing its illegality. State ex rel. Brown v. District Court, above; State ex rel. Hanson v. District Court, 71 Mont. ---, 233 P. 126.

The testimony offered by defendant on the hearing, it is true established the illegality of the search warrant, and that the officers entered upon his lands without a valid search warrant. He further testified that, after announcing that he had a search warrant, the sheriff "went ahead and searched the place," and that he did not "think they could see" him "manufacturing moonshine from the road." In refutation of these two statements, the officers testified that no search of the premises was made, and that they entered but the one building, after they had seen a still in operation therein. Curtis testified that, having been "informed" that a still would be in operation there at that time, he, with the sheriff, drove to defendant's ranch, which they had been watching for some time; that before they left the road they could see smoke rising from this building; that they drove up to within 10 feet of it, when defendant came out, leaving the door wide open, and, through the door, and before they got out of the car, he saw a still on a gasoline stove, and said to defendant, "Well, it...