State v. Quartier

• Decision Date: 16 June 1925
• Citation: 114 Or. 657,236 P. 746
• Parties: STATE v. QUARTIER.
• Court: Oregon Supreme Court

236 P. 746

114 Or. 657

STATE v. QUARTIER.

Supreme Court of Oregon, En Banc.

June 16, 1925

Appeal from Circuit Court, Multnomah County; T. E. J. Duffy, Judge.

Albert Quartier was convicted of unlawful possession of a still, not registered as required by Laws 1923, p. 47, § 6, and he appeals. Affirmed.

The defendant, Albert Quartier, was indicted, tried, and convicted of the crime of having in his possession a still not registered as required by law, in violation of section 6 c. 30, of the Laws of Oregon of 1923. From the judgment of conviction, defendant appeals. The facts portrayed by the record are substantially as follows:

On or about March 31, 1924, the defendant, together with his wife was the proprietor and in possession of a manufacturing establishment in a certain building at No. 1182 Crystal Springs boulevard, in the city of Portland, Ore. On that date L. R. M. Pierce, a deputy of the state prohibition commissioner, made and filed in the district court for Multnomah county, Ore., an affidavit, the gist of which is as follows:

"That there is in the possession of one Albert and Nettie Quartier, sometimes known as Brown, in a certain building at No. 1182 Crystal Springs boulevard street, in the city of Portland, a still worm, wort, or mash and liquor, in the county of Multnomah, state of Oregon, certain intoxicating liquor, to wit, * * * and that said liquor is in the possession of the said Albert and Nettie Quartier, alias Brown, with the intent of the said Albert and Nettie Quartier, alias Brown, to use it as the means of committing a crime, to wit, the crime of unlawfully possessing intoxicating liquor."

Thereupon Hon. Ashby C. Dickson, judge of that court, before whom the affidavit was made, issued a search warrant for the premises described in the affidavit. The warrant was directed "to any sheriff or constable of Multnomah county."

Mr Pierce, on the trip to serve the warrant, was accompanied by J. H. Beeman, A. C. Schirmer, and J. H. Talley, all of whom at the time were deputy sheriffs of Multnomah county. Mr Beeman, one of the deputy sheriffs, had been engaged in prohibition enforcement work for a number of years. He knew that the defendant had borne in the community for a long time the general reputation of being a manufacturer and seller of intoxicating liquor in violation of law. Through his experience as a prohibition officer, he had also acquired a knowledge of the smell of mash, and was able to detect the presence of mash by its odor. About 10 days before this trip, he had been out in the vicinity of the defendant's home in company with Deputy Sheriff Schirmer, and at that time had smelled mash in the process of distillation in the defendant's home.

The officer, in proceeding to inspect the manufacturing establishment, also occupied by defendant and his wife as their home, smelled mash in the process of distillation before they entered the house. They entered the house and searched the same and placed Albert Quartier under arrest. They found therein and on the premises one complete still of 75 gallons capacity, the dome of another still, 11 full barrels of moonshine whisky, 2 sacks containing bottled moonshine whisky in pints, a number of empty bottles, and 20 mash barrels that had recently been emptied, with the dregs of mash in the process of distillation in each barrel.

Officer Beeman, upon the trial, over the objection of defendant, testified in part as follows:

"A. I found in the basement, in the southeast corner of the basement, a 50-gallon still set up on a stove without the top; there were 20 odd mash barrels, 50 gallon mash barrels; most of them containing a small portion of mash, mash on the edges and side, what we call dregs of mash in the bottom, from which I drained several of them enough to get a good sample of the mash."

The witness Beeman further testified, on his direct examination, that outside in the yard he and the other officers found, buried in a trench, 50 gallons of whisky contained in sacks, pint bottles in sacks, 10 five-gallon kegs, and in a pile of straw the top of the still that was found in the basement, and a condenser, 2 separate parts, making a complete still, and that the defendant, after these articles were found, stated that he had buried the whisky there and worked continually for a certain number of hours in dumping the mash. These articles were identified by the witness, and introduced in evidence over the objection of defendant.

The defendant made timely application, both before the district court and before the circuit court, for the suppression of the evidence seized under the search warrant, and for the return of so much of said property as might be lawfully possessed by him, and for the destruction of the remainder thereof, on the ground that the search warrant was void and of no legal force, and that said property was seized in violation of the rights of defendant and of the Constitution of the state of Oregon.

Austin Flegel, Jr., and Hall S. Lusk, both of Portland, for appellant.

George Mowry and Leon W. Behrman, Deputy Dist. Attys., both of Portland (Stanley Myers, Dist. Atty., of Portland, on the brief), for the State.

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

It is contended by counsel for defendant that the search warrant was void because the affidavit on which it was based was insufficient, in that it failed to state facts as required by section 1854, Or. L., and by article 1, § 9, of the Constitution of Oregon, from which the magistrate could make his findings of probable cause. It is further claimed by defendant that the search warrant was void for the reason that no deposition in writing was taken by the magistrate or subscribed to by the complainant or witnesses in his behalf, as required by section 1855, Or. L. It is also contended by the defendant that the search and seizure was unlawful, in that the search warrant was not executed by the officers to whom it was directed.

The trial court held the search warrant to be void, but denied the prayer of defendant's petition to suppress the evidence obtained by virtue of the search warrant, and received such evidence over the objection of defendant.

The principal questions involved upon this appeal concern the construction of the statute of this state relative to the issuance of a search warrant in connection with article 1, § 9, of our Constitution, which reads as follows:

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

By section 1852, Or. L., a magistrate authorized to issue a warrant of arrest has authority to issue a search warrant, directed to a peace officer, commanding him to search for personal property at any place within his county, and bring it before the magistrate. Section 1853, Or. L., provides, among the grounds upon which a search warrant may be issued, as follows:

"3. When the property is in the possession of any person, with the intent to use it as the means of committing a crime, or in the possession of another to whom he may have delivered it, for the purpose of concealing it or preventing its being discovered, in which case it may be taken on the warrant from the possession of such person, or of the person to whom he may have so delivered it, or from any house or other place occupied by them or under their control, or either of them."

Section 1854, Or. L., reads as follows:

"A search warrant cannot be issued but upon probable cause, shown by affidavit, naming or describing the person, and describing the property and the place to be searched."

And section 1855, Or. L., requires that:

"The magistrate must, before issuing the warrant, examine, on oath, the complainant and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them."

By section 1856, Or. L., if the magistrate is satisfied that there is probable cause to believe in the existence of the grounds of the application, he must issue the warrant, the form of which is provided in that section. Under the provisions of article 1 § 9, of the Oregon Constitution, and of section 1854, Or. L., as well of the Fourth Amendment to the federal Constitution (where the actions of federal officers are involved), a search warrant for the search of a person's house cannot lawfully be issued, unless it is based upon an affidavit stating facts from which the magistrate can make a finding that there is probable cause to believe that the law has been violated, and that the issuance of the warrant is justified. An affidavit on information and belief is not sufficient; nor is an affidavit sufficient which merely alleges the legal conclusions of the affiant. United States v. Pitotto (D. C.) 267 F. 603; Ripper v. United States, 178 F. 24, 26, 101 C. C. A. 152; State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A. L. R. 1284; Giles v. United States (C. C. A.) 284 F. 208; United States v. Kaplan (D. C.) 286 F. 963; Atlantic Food Products Co. v. McClure, (D. C.) 288 F. 982; Smith v. McDuffee, 72 Or. 276, 284, 142 P. 558, 143 P. 929, Ann. Cas. 1916D, 947.

The affidavit in the present case specifically names the person and describes the property and the place to be searched. The question raised is purely whether the affidavit shows probable cause for the issuance of the warrant. Pursuant to section 1855, Or. L., the officiating magistrate, before issuing the warrant, examined on oath the complainant, L. R M. Pierce, and reduced his affidavit to writing, which was subscribed ...