State v. Rocca

Decision Date08 April 1932
Docket NumberNo. 25998.,25998.
Citation180 N.E. 577,204 Ind. 198
PartiesSTATE v. ROCCA.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Vanderburgh Circuit Court; John Spencer, Jr., Judge.

Philip Rocca was charged with maintaining a liquor nuisance. From a judgment of acquittal, the State appeals.

Appeal sustained.

E. Menzies Lindsey, of Evansville, James M. Ogden, Atty. Gen., and Merle M. Wall, of Indianapolis, for the State.

W. D. Hardy, of Evansville, for appellee.

MARTIN, J.

Appellee was charged by affidavit with maintaining a liquor nuisance. Section 2740, Burns' 1926. The trial court sustained his motion to suppress the evidence obtained during a search of his premises by the police officers of the city of Evansville under authority of a search warrant, on the ground that such search was unlawful and illegal, for the reasons: First, that section 31, c. 48, Acts 1925, section 2746, Burns' 1926, “does not require a finding of probable cause by the judge or magistrate issuing the search warrant” and “is unconstitutional for the reason that it makes the issuance of a search warrant mandatory upon the filing of an affidavit”; and, second, that the “search warrant was issued upon an affidavit which contained no statement of facts showing probable cause for the issuance of a search warrant,” and that “the Justice of the Peace who issued said search warrant had before him no evidence or facts under oath or affirmation that would tend to establish probable cause.”

Appellee was found not guilty, and in this appeal by the state the parties have argued the reserved question of law presented by the motion to suppress.

[1][2] The section of the Constitution, section 11, art. 1, section 63, Burns' 1926, with which appellee contends section 31, c. 48, Acts 1925, section 2746, Burns' 1926, is in conflict, provides that: “No [search] warrant shall issue but upon probable cause, supported by oath or affirmation. ***” It was decided in Wallace v. State (1927) 199 Ind. 317, 157 N. E. 657, 660, that a search warrant was invalid when based “wholly, *** only and solely” upon an affidavit on information and belief and “not upon any other additional facts or information whatever.” But it does not follow from the fact that an affidavit is made on information and belief that any search warrant issued thereon is issued without probable cause and void for violation of section 11, art. 1, Const. Gwinn v. State (1929) 201 Ind. 420, 423, 166 N. E. 769. Probable cause for issuing a search warrant may be shown to the issuing magistrate either by positive allegation of facts in the affidavit, Seeger v. State (1929) 201 Ind. 469, 168 N. E. 577;Seager v. State (1928) 200 Ind. 579, 164 N. E. 274;Goodman v. State (1929) 201 Ind. 189, 165 N. E. 755;Thompson v. State (1929) 89 Ind. App. 547, 166 N. E. 23, or by sworn testimony; Gwinn v. State, supra; Becker v. State (1928) 200 Ind. 397, 164 N. E. 27;Shepherd v. State (1928) 200 Ind. 405, 164 N. E. 276;Feast v. State (1929) 200 Ind. 457, 164 N. E. 314.

[3][4][5] The appellee contends that, because section 2746, Burns' 1926, provides that, upon the filing of an affidavit for a search warrant, “such justice of the peace, mayor or judge shall issue his warrant, ***” the statute is mandatory and deprives the magistrate of the power to hear and determine probable cause, and that therefore it is violative of section 11, art. 1, Const. The determination of the existence of probable cause for the issuance of a search warrant is a judicial act, Wallace v. State, supra, see both prevailing and dissenting opinions, and we have repeatedly held that this statute does not deprive courts of the power to make such determination. The magistrate passes judicially upon the credibility of the person making the affidavit, and upon the sufficiency of oral evidence that may be offered to prove the existence of probable cause.

[6][7] All laws are to be interpreted, if reasonably possible to do so, in such a manner as to harmonize them with the Constitution rather than in such manner as will render them unconstitutional. Where statutes are capable of a construction that will make them constitutional, they will be so construed and their validity upheld on the theory that the Legislature intended to enact a constitutional law. State ex rel. v. Bowman, Auditor (1927) 199 Ind. 436, and cases cited on page 453, 156 N. E. 394, 399, 157 N. E. 723. The court in issuing a search warrant under the statute is bound by the provisions of the Constitution which require that the warrant shall issue only “upon probable cause, supported by oath or affirmation.” It does not follow that, because a search warrant might be issued under section 2746, supra, which was invalid because it was issued without a showing of probable cause to the issuing magistrate, the statute is invalid. Its provisions will be presumed to be subject to and in harmony with the Constitution rather than in contravention thereof. Merely because some action might be attempted to be taken under the statute that would be in...

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