State v. Pluth
| Decision Date | 16 November 1923 |
| Docket Number | 23,555 |
| Parties | STATE v. FRANK PLUTH |
| Court | Minnesota Supreme Court |
Defendant was indicted by the grand jury of St. Louis county charged with the crime of violation of the liquor laws, tried in the district court for that county before Dancer, J., who when the state rested denied defendant's motion to strike from the record all the testimony which was obtained by search, and his motion to dismiss the action, and a jury which found him guilty as charged in the indictment. Defendant's motion for a new trial was denied. From the judgment entered pursuant to the verdict, defendant appealed. Affirmed.
Search of person under arrest.
1. A person lawfully arrested may, as an incident thereto, be searched and incriminating articles found in his possession may be seized.
When officer may arrest without warrant.
2. Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.
When illegal act is not committed in officer's presence.
3. Where the officer does not know of the act constituting the offense, it is not committed in his presence.
When officer may make search without warrant.
4. If an officer without authority to make an arrest may make a search without a warrant under any circumstances, it is only where he has knowledge of facts which would justify the issuance of a warrant and has cause to believe that the articles sought will be beyond reach if he delays acting long enough to procure it.
Authority to seize liquor en route not authority for search.
5. The statute authorizing officers to seize liquor whenever they find it being transported, does not give authority to search but only authority to seize what they may discover without an unlawful search.
Unlawful search not justified by illegal act not a felony.
6. An unlawful search cannot be justified by the fact that it discloses the commission of a crime which is not a felony.
Federal Constitution inapplicable to state courts.
7. The Fourth and Fifth Amendments to the Federal Constitution do not apply to the states nor to proceedings in the state courts.
Construction of Federal Amendments not binding in construction of state laws.
8. The construction given these amendments by the Federal Supreme Court is not binding on state courts in construing similar provisions in state constitutions.
Construction of accused's exemption from giving testimony.
9. This court, in common with the majority of state courts, has held that the use as evidence of incriminating articles wrongfully taken from the possession of the accused, does not compel him to be a witness against himself within the inhibition of the state Constitution. Such holding is not in harmony with the holding of the Federal Supreme Court under the similar provision of the Federal Constitution.
No right of property in liquor held for transportation.
10. It is a crime to transport intoxicating liquor or to have it in possession for transportation and no property right exists in such liquor.
Liquor seized is forfeited to the state.
11. The defendant had no legal right to the liquor seized or to the possession of it, and was not entitled to have it returned to him. The state having obtained possession of it had the right to retain it as property forfeited to the state, and to use it as evidence.
McHugh & ODonnell, for appellant.
Clifford L. Hilton, Attorney General, James E. Markham, Assistant Attorney General, Mason M. Forbes, County Attorney, and Harry E. Boyle, Assistant County Attorney, for respondent.
Defendant was indicted and convicted in the county of St. Louis of the crime of transporting intoxicating liquor and appeals from the judgment.
When arraigned defendant made a motion to quash the indictment on the ground that it had been secured on evidence obtained in violation of the Fourth and Fifth Amendments to the Constitution of the United States, and of sections 7 and 10 of article 1 of the Constitution of the state of Minnesota. In support of the motion, he presented three affidavits to the effect that, while he was proceeding along a public highway in St. Louis county in an automobile inclosed with curtains, his automobile had been wrongfully and unlawfully searched by two officers (deputy sheriffs) without a warrant who found therein and seized 6 one-gallon jugs and 2 water bottles filled with liquid, and that these articles and the evidence obtained in the seizure of them were used in securing the indictment. He asked the court to order that the articles so seized be returned to him, "or to suppress such articles as evidence and to suppress any evidence obtained through the seizure of said articles." The prosecution admitted that the search was made without a search warrant and without a warrant for the arrest of any person in the automobile and without the consent of defendant. The motion was denied and defendant took an exception. At the trial the jugs and water bottles were received in evidence over defendant's objection, and testimony that they contained "moonshine" whiskey was also received over his objection. At the close of the state's evidence defendant made a motion to strike all the evidence whether by way of exhibit or by testimony obtained by reason of the search on the ground that the search was made in violation of his constitutional rights. The motion was denied. He then moved for a dismissal on the ground that the state had failed to establish facts sufficient to constitute a public offense. This was also denied.
Defendant contends that the search of his automobile and the seizure of the liquor found therein was a violation of the rights secured to him by the Constitution, and that the evidence so obtained was not admissible against him either before the grand jury or at the trial.
The court expressly withdrew from the jury all questions raised concerning the right to search the automobile, and told them that the court had determined those questions. The rulings necessarily determined as a matter of law either that the search was lawful, or that the evidence, although obtained by an unlawful search, was admissible to prove the guilt of defendant.
The first question presented is whether the search was lawful. Defendant driving toward Duluth with two companions and the officers driving out from Duluth met on the highway. The road was covered with snow and ice in which there were deep ruts. Defendant, seeing the other car approaching, turned to the side of the road and stopped to permit it to pass. One of the officers recognized defendant and they also stopped. The officers testified to the effect that defendant, in answer to a question, admitted that he was carrying "booze" in his car before they looked into it or made any attempt to search it. Defendant and his two companions denied any such admission was made, and testified that one of the officers rushed up to the car saying he was going to search it and opened the curtains before defendant could object. If, as claimed by the officers, defendant admitted, before any search was made, that he was carrying intoxicating liquor, they doubtless had authority under section 2, chapter 335, p. 507, Laws of 1921, to seize both the liquor and the automobile. But in view of the court's ruling, we must for present purposes take as true defendant's claim that no such admission was made. And, so far as the record discloses, this alleged admission was the only reason the officers had to suspect or believe that defendant was transporting liquor. Consequently the present question is whether the officers, in searching the automobile without a warrant and without any knowledge or information that liquor was being transported in it, violated the rights secured to defendant by the Constitution.
It is well settled that the Fourth and Fifth Amendments to the Constitution of the United States apply only to the United States and to officers and agents of the United States, and that they do not apply to the states nor to proceedings under the laws of the states. See cases cited in annotation to Johnson v. State, 19 A.L.R. 641. Defendant recognizes that he is not within the protection of these provisions of the Federal Constitution, and bases his present contention on substantially identical provisions in our own Constitution. Section 7 of article 1 of our Constitution provides:
"No person for the same offense shall be put twice in jeopardy of punishment, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law."
Section 10 of the same article reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; 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 things to be seized."
The reasons which prompted the founders of our government to embody these provisions in the fundamental law, and the evils which they were intended to prevent, have been set forth in many decisions, notably in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and in the dissenting opinion of Judge Wiest in People v Case, 220 Mich. 379, 190 N.W. 289. We shall not advert to them further than to say that searches under general warrants under which the officers and agents of the English government assumed the power to search any person and any place they pleased for the purpose of discovering violations of the laws, and also for the purpose of enforcing and collecting the obnoxious imposts...
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