Wallace v. State
| Decision Date | 30 June 1927 |
| Docket Number | 25,177 |
| Parties | Wallace v. State of Indiana |
| Court | Indiana Supreme Court |
1. SEARCHES AND SEIZURES.---Determination of probable cause for issuing search warrant is judicial.---The action of a court or magistrate in determining the question of probable cause on which to base the issue of a search warrant, is judicial p. 325.
2. SEARCHES AND SEIZURES.---The existence of probable cause for issuing a search warrant, within the meaning of the Constitution, is not for ministerial determination. p. 326.
3. SEARCHES AND SEIZURES.---Sufficiency of affidavit for search warrant.---An affidavit in support of probable cause for issuing a search warrant must bear the countenance of truth which is so infallible that either an action for damages or a criminal charge of perjury may be legally predicated thereon if the statements therein are untrue. p. 326.
4. SEARCHES AND SEIZURES.---All present authority to issue a search warrant, and the exercise of authority thereunder result from written law, either the Constitution or the statutes or both. p. 326.
5. SEARCHES AND SEIZURES.---A search warrant and the statements on oath or affirmation on which probable cause for issuing it is based must conform strictly to the Constitution and the statutes. p. 326.
6. SEARCHES AND SEIZURES.---Search and seizure statutes must be strictly construed.---Statutes relating to search and seizure must be strictly construed in favor of the constitutional right of the people. p. 327.
7. SEARCHES AND SEIZURES.---Constitutional guaranty must be liberally construed.---The constitutional guaranty against unreasonable search and seizure must receive a liberal construction in its application to the rights of the people. p. 327.
8. SEARCHES AND SEIZURES.---Formalities required by law must be strictly complied with in executing warrant.---In executing a search warrant, there must be a strict compliance with whatever formalities are required by law. p. 327.
9. SEARCHES AND SEIZURES.---Evidence secured by unlawful search inadmissible.---Evidence secured by unreasonable search and seizure may not be admitted against an accused over timely objection. p. 327.
10. SEARCHES AND SEIZURES.---All searches and seizures executed in violation of law are unreasonable. p. 327.
11. SEARCHES AND SEIZURES.---State has burden of sustaining questioned search warrant.---On a motion to quash a search warrant and to suppress the evidence obtained thereby, the state has the burden of sustaining the writ. p. 327.
12. INTOXICATING LIQUORS.---If section of Prohibition Law of 1925 (2746 Burns 1926), authorizes issue of search warrants on affidavit based on information and belief alone, it is invalid.---If it was intended by 31 of the Prohibition Law of 1925 (2746 Burns 1926) to declare that an affidavit embodying the allegation that an affiant has reason to believe and does believe that there is intoxicating liquor or a still or distilling apparatus on certain described premises is alone sufficient to show probable cause for issuing a search warrant and to warrant a magistrate to issue such warrant without further evidence, the legislature exceeded its power, and the section is invalid. p. 328.
13. SEARCHES AND SEIZURES.---Affidavit on information and belief insufficient basis for finding of probable cause.---A search warrant issued on an affidavit of mere belief, or on information and belief, is insufficient upon which to base a finding of probable cause for issuing a search warrant. p. 329.
14. SEARCHES AND SEIZURES.---Search warrant issued on affidavit on information and belief held void.---A search warrant, issued without other evidence of probable cause than an affidavit on information and belief that the accused had in his possession intoxicating liquor, a still and other property for the manufacture of intoxicating liquor, was void because it was not issued upon probable cause in violation of Art. 1, 11 of the Constitution ofIndiana (63 Burns 1926). p.337.
15. CRIMINAL LAW.---Information obtained by illegal search warrant inadmissible in evidence and should be suppressed.---Where a search and seizure under search warrant was illegal because the warrant was not issued on probable cause, and therefore unreasonable, the information obtained and the articles seized by means of such search were inadmissible in evidence over objection of the defendant and the court erred in overruling his motion to suppress the evidence. p. 337.
From Henry Circuit Court; John W. Craig, Special Judge.
James Wallace was convicted of unlawful possession of intoxicating liquor and the control and use of a still and distilling apparatus for the manufacture of intoxicating liquor, and he appeals.
Reversed.
Paul Brown and John F. Robbins, for appellant.
Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.
OPINION
One alleged error is presented to sustain this appeal, based upon the action of the trial court overruling appellant's verified motion to quash the search warrant, the return of the officer of the service of the search warrant, and the affidavit upon which the search warrant is predicated.
Appellant is charged by an affidavit approved by the prosecuting attorney, in one count, with the unlawful and felonious possession and control and use of a certain still and distilling apparatus for the unlawful manufacture of intoxicating liquor. Acts 1925, ch. 48, § 6, § 2719 Burns 1926.
Before arraignment, appellant filed his verified motion to quash the search warrant, the return thereon, and the affidavit for the search warrant, and that all evidence of the finding and seizure of any alleged intoxicating liquor or any still or distilling apparatus, or mash, or any property whatever, be suppressed, and not be permitted to be used by the state against the defendant, and that the testimony of the officers who served the search warrant, or who were present when such warrant was served, and each of them, with respect to what they, or any of them, observed, heard, learned or did, while making said search and seizure, be suppressed, and that none of such facts or information thus obtained be permitted to be introduced in evidence by the state against the de-defendant in said cause. The state answered appellant's verified motion to quash the writ for the search by general denial. The issue thus formed was submitted to the court, and evidence was introduced both in support of the verified motion and the general denial. The court overruled appellant's verified motion to quash the writ of search warrant, and thereafter appellant pleaded not guilty to the affidavit which charged the offense, and the matter was submitted to the court, trial had, which resulted in a finding by the court of guilty as charged and the court rendered judgment against him by fine of $ 100 and imprisonment in the Indiana State Prison for a period not less than one year and not more than five years.
The affidavit for the search warrant was sworn to before the prosecuting attorney and by the prosecuting attorney filed with the justice of the peace, who issued the search warrant. The affidavit, search warrant, and return thereon by the officer, are in words as follows:
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- Wallace v. State
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Becker v. State
... ... by a positive affidavit alleging facts or by a hearing of ... evidence by the issuing magistrate. The affidavit was upon ... information and belief and the magistrate heard no evidence ... In such a case, under the rule established by ... Wallace v. State (1927), 199 Ind. 317, 157 ... N.E. 657, (Martin and Gemmill, JJ., dissenting), the evidence ... obtained by the search is inadmissible, and, upon the ... authority ... ...
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Becker v. State, 25188.
...and belief, and the magistrate heard no evidence. In such a case, under the rule established by Wallace v. State (1927) 199 Ind. 317, 157 N. E. 657 (Martin and Gemmill, JJ., dissenting), the evidence obtained by the search is inadmissible, and upon the authority thereof this judgment is rev......