State v. Lee

Decision Date23 February 1927
Citation253 P. 533,120 Or. 643
PartiesSTATE v. LEE.
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Washington County; Geo. R. Bagley, Judge.

Leslie Lee was convicted of possessing mash, wort, and wash fit for distillation or for the manufacture of intoxicating liquors and he appeals. Affirmed.

The defendant was indicted, tried, and convicted of the crime of having in his possession mash, wort, and wash fit for distillation, or for the manufacture of intoxicating liquors. From a judgment of sentence defendant appeals.

A search warrant was secured by the sheriff of Washington county upon affidavit, to authorize the search of the premises known as the Elizabeth Lee place, occupied by James Lee. The premises consisted of several acres of land. Pursuant to the search warrant the sheriff and his deputies proceeded to search the house and outbuildings of James Lee where they found a quantity of moonshine and mash. After the search of the James Lee place, they went into the barnyards where the sheriff smelled mash. The sheriff proceeded along the automobile tracks leading toward the barn of Leslie Lee the defendant, about 850 feet from the house of James Lee the barn of Leslie Lee being approximately 350 feet from the barn on the premises of James Lee. The nearer he approached the Leslie Lee premises the stronger and more pronounced the odor became. Arriving at the barn of Leslie Lee, the odor of mash was extremely strong and pronounced. The barn was locked, and, upon going to the residence occupied by Leslie Lee, no one was found at home. Returning and passing the Leslie Lee hogpen, the sheriff discovered mash thrown into the hogpen. Retracing his steps from there to the barn, he again found the fumes of mash distinctly noticeable. The sheriff entered the barn by displacing the board which covered a manure hole and then unfastened the barn door from the inside, and his assistants entered this structure, or so-called barn. In a pen which was entirely inclosed and lined with heavy paper a complete still was set up ready for operation with a capacity of 100 gallons, including the pressure burners, and a huge vat filled with water for cooling and condensing purposes. In the upper story of the building, which had once been a hayloft, was found a tent, put up and inclosed. Inside of this tent were six vats, each of the capacity of 100 gallons, and containing corn mash. In this tent was a coal oil stove with fire burning for the purpose of keeping the mash at the proper temperature for fermentation purposes. Some of the mash was still going through the process of fermentation. A portion of it was ready to run through the distillery. All of the mash was fit for distillation. There was found upon the premises a quantity of finished moonshine. There was also found some old mash and fixtures, appliances, and apparatus used for the purpose of making and selling moonshine.

One of the deputies was left to watch for the defendant and arrest him upon his return. This deputy arrested defendant on the road to his home, and in his vehicle at the time were supplies to be used in making moonshine. The defendant admitted to the officers that the still that they had found in his barn was his still; that the mash and moonshine found were his; and also admitted that all of the mash and moonshine found on the James Lee premises was his. He admitted that all of the moonshine apparatus and appliances found by the sheriff on the premises occupied by him was his, and that the building where they were found was upon the premises occupied and controlled by him under a lease from one Jennie Lee. The premises occupied by the defendant consisted of about 1 1/2 acres of ground.

After the search and before the trial, to wit, on November 24, 1925, the defendant filed in the circuit court a petition praying that all of the evidence in regard to matters and things obtained with respect to the search and seizure be suppressed for the reason that the sheriff did not have a search warrant for the search of his premises and that said search was in violation of section 9, art. 1, of the Constitution of the state of Oregon. After a hearing and the taking of the testimony upon the application, the circuit court denied the same.

R. F. Peters, of Hillsboro (Hare, McAlear & Peters, of Hillsboro, on the brief), for appellant.

E. B. Tongue, of Hillsboro, for the State.

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

The defendant contends that the building where the mash, wort, and wash were found was within the curtilage of his dwelling house, and that the search thereof could not be regularly made without a warrant. It is contended on behalf of the state as follows:

"(1) This search was legal because the officer followed his nose and located mash then fermenting and a crime was then being committed in his presence.
"(2) That section 9, art. 1, of the Constitution has no application to intoxicating liquor, mash, wort, wash, or stills, because such are contraband in which there can vest no title and are not property, papers, houses, or effects within the meaning of that section of the Constitution, because in searching for liquor, mash, or stills the officer has not searched or seized property, papers, or effects of the defendant."

The character of the premises is relevant only in determining the validity or the invalidity of the search and seizure. Premises other than dwellings have been held within the protection of the Fourth Amendment; for example a barn. As construed by the courts from the earliest to the latest times, the words "dwelling" or "dwelling house" have been construed to include not only the main but all of the cluster of buildings convenient for the occupants of the premises, generally described as within the curtilage. McFadden on Prohibition, p. 214. A barn is sometimes held to be within the curtilage.

It will be noticed from the statement in the present case that there is no indication that the building or barn in which the mash, wort, wash, still, and liquor were found, was in any way used for domestic purposes in connection with the dwelling house of the defendant, but that, while it was once used as a barn, the present purpose to which the building was put was as a distillery. Generally speaking, the curtilage is the space of ground adjoining the dwelling house used in connection therewith in the conduct of family affairs and for carrying on domestic purposes, usually including the buildings occupied in connection with the dwelling house. It is the propinquity to a dwelling and the use in connection with it for family purposes which is to be regarded. 17 C.J. 437, 438.

The question in regard to the search of a dwelling house is not in this case. Article 1, § 9, of the Constitution of Oregon provides that--

"No law shall violate the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure. * * *"


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31 cases
  • State v. Kruchek
    • United States
    • Oregon Court of Appeals
    • October 28, 1998
    ...9 acknowledges the common law rule by requiring a search warrant for articles or contraband hidden from the senses. See State v. Lee, 120 Or. 643, 253 P. 533 (1927) (holding that no search or seizure occurred when an officer, in a place where he was lawfully entitled to be, smelled the odor......
  • State v. McCollum
    • United States
    • Washington Supreme Court
    • March 16, 1943
    ...would be lost. In State v. McDaniel, 115 Or. 187, 231 P. 965, 972, 237 P. 373, which is not discussed in State v. DeFord, supra, and State v. Lee, supra, is the following logical discussion the question: 'Our attention is called to the proposition that the Constitution is addressed only to ......
  • State v. Flores
    • United States
    • Oregon Court of Appeals
    • October 30, 1984
    ...precedents from other jurisdictions helpful but not binding. See, e.g., State v. Duffy, 135 Or. 290, 295 P. 953 (1931); State v. Lee, 120 Or. 643, 253 P. 533 (1927); State v. Laundy, 103 Or. 443, 495-497, 204 P. 958, 206 P. 290 (1922). Although in a few instances it appeared to treat federa......
  • State v. Hoover
    • United States
    • Oregon Supreme Court
    • November 25, 1959
    ...for believing in the guilt of the accused, the fact that the search precedes the arrest does not render it illegal. In State v. Lee, 1927, 120 Or. 643, 253 P. 533, 535, another case arising under prohibition, police officers acting under a valid warrant were searching a house when the odor ......
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