State v. Pluth

• Decision Date: 16 November 1923
• Docket Number: No. 23,555.,23,555.
• Citation: 157 Minn. 145
• Parties: STATE v. FRANK PLUTH.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

157 Minn. 145

STATE v.FRANK PLUTH.¹

No. 23,555.

Supreme Court of Minnesota.

November 16, 1923.

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.

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.

TAYLOR, C.

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 7and10 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 Sup. 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 and taxes which the English government had laid on the Colonies, was one of the inciting causes which led to the Revolution; and that the purpose of these provisions was to effectually prohibit such practices.

The Supreme Court of the United States has decided repeatedly that the Fourth Amendment to the Federal Constitution forbids the officers or agents of the United States from searching the premises, papers or effects of an accused person without a warrant; and that this amendment taken in connection with the Fifth forbids the use, in the courts of the United States, against a person accused of crime, of evidence obtained by such officers or agents in an unlawful search of his premises, papers or property.Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. ed. 746;Weeks v. United States, 34 Sup. Ct. 341, 232 U. S. 383, 58 L. ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1916C, 1177;Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. ed. 319;Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. ed. 647;Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. ed. 654.

Provisions substantially the same as the quoted provisions of sections 7and10 of article 1 of our Constitution are found in the Constitutions of all the states.The state courts, generally, construe the provisions of section 10 as forbidding a search without a warrant except when made as an incident to a lawful arrest.

Only unreasonable searches and seizures are prohibited.A person lawfully arrested may, as an incident thereto, be searched, and articles found in his possession which are the subject of crime or the means of committing it, or which may be of use as evidence at the trial, or which may be used in committing violence or in effecting an escape, may be seized.2 Am. & Eng. Enc. 860;2 R. C. L. 467, 5 C. J. 434.

In the cases in which a person may be lawfully arrested without a warrant, he may also be lawfully searched without a warrant.The cases in which a person may be arrested without a warrant are defined and prescribed in section 9066,G. S. 1913, which reads:

"A peace officer may, without warrant, arrest a person:

1.For a public offense committed or attempted in his presence.

2.When the person arrested has committed a felony, although not in his presence.

3.When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

4.Upon a charge made upon reasonable cause of the commission of a felony by the person arrested."

The crime charged against defendant is punishable only by a fine and imprisonment in the county jail and therefore is not a felony under our statute.Seesection 8466,G. S. 1913.Consequently the officers could not lawfully arrest him therefor without a warrant, unless the offense was committed or attempted in their presence.It cannot be said that a criminal offense is committed in the presence of an officer,...