United States v. Rembert

• Decision Date: 08 November 1922
• Docket Number: 1367.
• Citation: 284 F. 996
• Parties: UNITED STATES v. REMBERT.
• Court: U.S. District Court — Southern District of Texas

284 F. 996

UNITED STATES v. REMBERT.

No. 1367.

United States District Court, S.D. Texas, Houston Division.

November 8, 1922

H. M Holden, of Houston, Tex., for plaintiff.

Johnson & Gilmore, of Houston, Tex., for defendant.

HUTCHESON District Judge.

In this case the defendant, Tom Rembert, has filed a motion to quash the information filed against him, and suppress the evidence which will be offered in support of the information. The evidence establishes that the officers had no warrant, either of arrest or for search of the defendant or his car, and that the search was made without his consent, and that in and by the search alone the evidence was obtained upon which they seek to convict him. The motion of the defendant must be sustained, unless the circumstances detailed by them gave the officers the right to arrest and search the defendant and the automobile without warrant.

The circumstances as testified to by the officers on the hearing of the motion, which I find to be true, are these: About midnight on a moonlight night on a country road on the outskirts of Houston prohibition officers saw approaching them a Ford car driven by the defendant. The progress of the vehicle, as testified to by the officer, was marked by such a zigzagging course that he concluded the driver was intoxicated, and the vehicle being used to transport liquor. On that belief he arrested the vehicle, and on search of it discovered the bottle of liquor in question and that the defendant had been drinking.

The principle invoked by the defendant is so fundamental, and the right of the people to be secure in their persons, houses papers, and effects against unreasonable searches and seizures is so clearly guaranteed by the Constitution (amendment 4), that it would seem that the limits of the rights of an officer in the enforcement of law, and of a citizen in the enjoyment of his liberties, ought to be as well understood and as well observed as copybook maxims, for there can be no liberty except where there is a just and proper law enforcement, and there can be no proper law enforcement where liberty is unlawfully infringed.

The fact, which is all too evident, on the one hand, that overzealous officers are not nice to find these limits and live within them, and, on the other hand, that the peaceable and law-abiding citizen is loth to enter upon a dispute with officers of the law when his guaranteed rights are infringed makes it not only permissible, but desirable, that the court now briefly state the legal principles which control the matter of arrest and searches in such clear and definite form as that no federal officer can hereafter claim the excuse of ignorance when he violates a fundamental law, in order to secure evidence of the violation of some other law, and that well-disposed and law-abiding citizens may be advised of their obligations in the premises.

It must be first premised that, where an officer politely and decently, and without physical threat has assumed to act in his official capacity, he is acting de facto, if not de jure, and a peaceful citizen should not forcibly resent the action, even though he knows the officer is, as to the act, greatly exceeding his authority, resting confidently upon the belief that this submission will not impair any of his constitutional rights; for, as the courts have repeatedly held, such action will not be taken to be a consent to an unlawful search or arrest, but merely a peaceful submission to officers of the law. United States v. Slusser (D.C.) 270 F. 819; Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 864, 13 A.L.R. 1303; Amos v. United States, 255 U.S. 317, 41 Sup.Ct. 266, 65 L.Ed. 654.

Any other course on the part of the citizen would place him in the difficult and dangerous position of undertaking to protect by force the rights which in his opinion the officers are seeking to impair, when it may turn out that the officer in fact has the authority, and his action may, in fact, be legal. This principle, that the courts of the United States will not put the citizen to the alternative of contesting by force with officers, or waiving his constitutional rights, runs throughout the federal decisions, and gives character and meaning to their emphatic holding that evidence illegally obtained cannot be used, and that the submission of a citizen to the officer cannot deprive him of his constitutional rights, unless the evidence clearly shows that the submission was really voluntary and with a desire to invite search, and not done merely to avoid resistance.

In this case, therefore, the defendant, Rembert, has lost no right by his failure to forcibly resist the officers, and, if the action of the officers was illegal, the fact that intoxicating liquor was found in his car does not in any manner prejudice him on this motion. United States v. Slusser (D.C.) 270 F. 819, puts the matter very well thus:

'An unlawful search cannot be justified by what is found. A search that is unlawful when it begins is not made lawful when it ends by the discovery and seizure of liquor. It was against such prying, on the chance of discovery, that the constitutional amendment was intended to protect the people.'

The decision of the motion, then, depends entirely upon whether the officers, under the circumstances testified to by them, needed a search warrant or a warrant of arrest in order to justify what they did. The defendant invokes the constitutional protection against search and seizure, asserting that no search and seizure could be made of his person, his house, his papers, or his effects without a warrant authorizing such search.

In this broad statement the defendant errs. If this were a question of the search of a private residence without warrant, the motion should be sustained. On the other hand, it is equally well settled that the provision invoked is not against reasonable searches and seizures, but against unreasonable searches and seizures, and as the author of Ruling Case Law well puts it:

'The framers of the Constitutions of the United States and of the states merely sought to provide against any attempt by the Legislature or otherwise, to authorize any unreasonable search and seizure. This restriction was intended to operate on legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event be made lawful; upon executives, so that no law violative of this constitutional inhibition should ever be enforced; and upon the judiciary, so as to render it the duty of the courts to denounce as unlawful any unreasonable search and seizure, where without color of authority, or where sought to be justified under legislative sanction.'

And it results that in each case where an arrest has been made, or a search or seizure effected, it is the duty of the court to determine whether, if it was made under any particular law, the law was itself constitutional, or, if not made under the authority of a statute, whether in the particular case the method employed by the officers was reasonable or unreasonable.

So profound has been the influence upon English and American law of the conception that the privacy of one's home is essential to the maintenance of one's manhood and self-respect, that, in short, an Englishman's home is his castle, that practically no American legislation has been found which has not declared in terms against the search of a private dwelling without a warrant, and so profound is the judicial conception of the necessity for the maintenance of that right in its Anglo-Saxon vigor and strength, that the courts have held that a statute which would undertake to authorize a general search of private houses, either without a warrant or upon a general warrant, was unconstitutional and void. So in Ruling Case Law, vol. 24, p. 705, the matter is thus stated:

'The means generally invoked, and the only legal means that can be invoked, to search the premises of a private individual, is a search warrant. This protection of the home and private books, papers, and effects of the individual is guaranteed by the federal, as well as the state Constitution, and a private person or an officer who breaks into the privacy of the home and subjects its occupants to the indignity of search for evidence of crime, without a legal warrant for that search, renders himself liable in damages.'

And again, in the same volume, at page 711, quoting White v. Wagar, 185 Ill. 195, 57 N.E. 26, 50 L.R.A. 60, it was said:

'A search warrant, like the oath or affidavit on which it is based, must conform strictly to the constitutional and statutory provisions providing for its issuance, for there is not a description of process known to the law the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effect.'

A people which has guaranteed to it the right of the ballot, and the right, individually and collectively, to manage its own affairs, deserves to be and is protected against the prying impudence of a general search by persons merely because they have commissions as officers of the law. This protection is fully guaranteed, and no officer has the right, upon mere suspicion, to search the premises of any person for the evidence of the commission of any crime; while in the case of the laws of the United States it has not been left to the courts alone to protect the citizen as to his private residence against this species of humiliating indignity, but the Congress of the United States has declared that--

'Any officer, agent or employee of the United States engaged in the enforcement of the National Prohibition Act, or any other law of the...