
    Charles Billings v. State of Nebraska.
    Filed January 16 1923.
    No. 22990.
    1. Criminal Law: Evidence Unlawfully Obtained: Admissibility. Where articles or information are offered in evidence, which are pertinent to the issue, the court will not exclude them because they may have been obtained in an irregular or illegal manner.
    2. -: -: -Where an officer acting under a search warrant seizes property beyond the scope and terms of the writ, such act under certain circumstances is a violation of section 7, art. I of our Constitution, but the mere fact that the constitutional right of search and seizure has been violated does not militate against receiving in evidence, against the party from whose possession they were obtained, the articles so seized and . the information so procured.
    3. Searches and Seizures: Application of Federal Provision. The fourth amendment to the -Constitution of the United States relating to searches and seizures only applies to the federal government and its agencies.
    4. Courts: State Constitution: Effect of Federal Decisions. Decisions of the supreme court of the United States construing the fourth amendment to the federal Constitution are not controlling or necessarily binding on this court in the construction of section 7, art. I of our Constitution. • •
    5. Instructions examined, and held to correctly submit the' issues to the jury.
    Error to the district court for Antelope county: An-son A. Welch, Judge.
    
      Affirmed.
    
    
      J. F. Boyd-, for plaintiff in error.
    
      Clarence A. Davis, Attorney _ General, and Charles 8. Reed, contra.
    
    Heard before Morrissey, C. J., Letton, Day and Flansb-urg, JJ., Shepherd, District Judge.
   Day, J.

Charles.Billings, hereinafter designated defendant, was convicted upon an information charging him with unlawfully having in his possession a still or equipment for the manufacture of intoxicating liquors, and also for unlawfully having in his possession ten gallons of mash to be used in the manufacture of intoxicating liquors. He was adjudged to pay a fine of $500 and costs, and to' be imprisoned in the county jail for a period of 30 days. To review this judgment he has brought the record of his conviction, to this court.

The defendant contends that the trial court erred in overruling his motion, made before the commencement of the trial, for a return to him of all articles seized by the sheriff under a search warrant, and also to suppress the evidence thus secured, for the reason that the articles seized and the information obtained were beyond the scope of the search warrant, both as to the articles to be seized and the place to be searched. Defendant also contends that it was error for the court, over his objection, to permit the articles so.seized to be introduced in eviednce, and also to permit the officers to testify concerning information obtained by them in the execution of the writ.

The record shows that the county judge of Antelope county upon a proper affidavit issued and delivered to the sheriff of said county a search warrant commanding him to search the “residence and buildings” of the defendant for intoxicating liquor, the residence and ¡buildings being described as situate on a specifically described quarter section of land. While the sheriff was executing the writ, his attention was attracted to some suspicious circumstances which he proceeded to follow up, and out in the field some distance from the residence and buildings he discovered a still fully set up and equipped, which was concealed by being covered over with hay. He also found on the premises concealed in the same manner a quantity of rye mash. The sheriff took possession of these articles under the writ, and also arrested the defendant. Thereupon the sheriff filed a complaint upon which this information is based against the defendant, charging him with the unlawful possession of a still and mash for the manufacture of intoxicating liquors.

. It is argued by the defendant’s counsel that, in view of the fact that the articles seized by the sheriff were not specifically described in the search warrant, and that the place where they were found was not the place designated to be searched, therefore the articles themselves as well as the information gained by the -sheriff were illegally obtained, and that in allowing such evidence to be received upon the trial the fourth amendment to the Constitution of the United States, as well as section 7, art. I of our own Constitution, was violated.

The provisions of the federal and state constitutions above referred to are in identical language, and are as follows: “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 tbe place to be searched,- and the person or things to be seized.”

We first consider the question presented in the light, of our own Constitution. Assuming for the purpose of this decision that the sheriff in seizing the still and mash exceeded the authority which the search warrant gave him, does it follow that the articles so obtained and the information gathered cannot be introduced in evidence? The great weight of authority as announced by the state courts, our own included, seems to favor the doctrine that evidence which is pertinent to the issue being tried is admissible without regard to the manner in which it was obtained. Involuntary confessions, however, rest upon a different footing. This court for a period of more than 45 years has steadily adhered to this doctrine. In Geiger v. State, 6 Neb. 545, an objection was made to the receiving in evidence of a letter from the defendant to his wife, which had been procured by the state. Notwithstanding a section of our statute which renders the husband and wife incompetent to testify concerning any communication made by one to the other during the marriage, the court held that, where papers or letters are offered in evidence in the trial of a case which are pertinent to the issue, they should be admitted, and the court-will not take notice how they were obtained, nor will it form a collateral issue to determine that question. In Russell v. State, 66 Neb. 497, a pair of old shoes worn by the defendant at the time he was arrested was taken from the jail in his absence and without his consent and received in evidence, and it was held not to be a violation of his constitutional right to be secure against unreasonable searches and seizures.' In Younger v. State, 80 Neb. 201, shoes which had been forcibly taken from the defendant were offered and received in evidence over his objection, and it was held that, where articles are offered in evidence which are pertinent to the issue, the court will not exclude them on' account of the manner in which they were obtained. In Nixon v. State, 92 Neb. 115, the action was a prosecution for violating the liquor laws of this state. It was held that it was not error to permit the state to introduce a federal liquor license issued to the defendant which was obtained from the defendant by stealth.

Among the many well-reasoned decisions upon the precise point in issue, we quote from the case of People v. Mayen, 188 Cal. 237. In that case articles were taken under an invalid search warrant. The trial court denied á return of the articles to the defendant, and they were afterwards received in evidence. In disposing of the ease, the court said:

“Without at all minimizing the gravity of such offense, or the sacredness of the right of every citizen to be secure in his person, home, and property from any unlawful invasion by the state, it does not follow that the subsequent detention and introduction in evidence of the property thus wrongfully taken constituted error on the trial of the appellant. The trespass committed in the wrongful seizure of these personal effects by unauthorized officers, and the subsequent use of the same in evidence on the part of the prosecution, were in legal effect entirely distinct transactions with no necessary or inherent relation to each other. * * * No authority, so far as we have been able to discover, has suggested that the subsequent use of articles so taken as evidence is in itself any part of the unlawful invasion of such constitutional guaranty. The search and seizure are complete when the goods are taken and removed from the premises. Whether the trespasser converts them to his own use, destroys them, or uses them as evidence, or voluntarily returns them to the possession of the owner, he has already completed the offense against the Constitution when he makes the search and seizure, and it is this- invasion of the rights of privacy and the sacredness of a man’s domicile with which the Constitution is concerned. The Constitution and the laws of. the land are.not solicitous to aid persons charged with crime in their efforts to conceal or sequester evidence of their iniquity. From the necessities of the case the- law countenances many devious methods of procuring evidence in criminal cases. The whole system of espionage rests; .largely upon deceiving and trapping the wrongdoer into some involuntary disclosure of his crime. It dissimulates a way into his confidence; it listens at the keyhole and peers through the transom light. It is not nice, but it is. necessary in ferreting out the crimes against society which are - always done in darkness and concealment. Thus it is that almost from time immemorial courts engaged in the trial of a criminal prosecution have accepted competent and relevant evidence without question, and have refused to collaterally investigate the source or manner of its procurement, leaving the parties aggrieved to whatever direct remedies the law provides to punish the trespasser, or recover the possession of goods wrongfully taken. * *.*• The fallacy of the doctrine contended for by appellant is in assuming that the constitutional rights of the defendant are violated by using his private papers as evidence against him; whereas it was the invasion of his premises and the taking of his goods that constituted the offenses irrespective of what was taken or what use was made of it; and the law having declared that the articles taken are competent and admissible evidence, notwithstanding the unlawful search and seizure, how can the circumstance that. the court erred in an- independent proceeding for the return of the property on' defendant’s demand add anything to or detract from the violation of defendant’s constitutional rights in. the unlawful search and seizure?”

In Commonwealth v. Tibbetts, 157 Mass. 519, it was said: “Evidence which is pertinent to the issue is admissible although it may have been procured in an irregular or even an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally; but his testimony is not thereby rendered incompetent.”

We cite a few of the many cases supporting this general doctrine: Gindrat v. People, 138 Ill. 103; State v. Pomeroy, 130 Mo. 489; State v. Griswold, 67 Conn. 290; State v. Flynn, 36 N. H. 64; State v. Madison, 23 S. Dak. 584. The same rule is announced in Adams v. New York, 192 U. S. 585.

Some of the decisions sustaining the general doctrine, especially with reference to the seizure of liquor, are based upon the idea that there was no property right in the individual in intoxicating liquors, and hence taking the property illegally was no invasion of constitutional rights. City of Sioux Falls v. Walser, 187 N. W. (S Dak.) 821; United States v. Fenton, 268 Fed. 221. Other cases hold that the seizure of intoxicating liquor illegally held is not unreasonable.

The only doubt which has been cast upon the correctness of this rule is based upon the decisions of the United States supreme court in Boyd v. United States, 116 U. S. 616, Weeks v. United States, 232 U. S. 383, and Silverthorne v. United States, 251 U. S. 385. Without attempting a general analysis of these cases, we think it may be conceded that the general conclusion is that, where the federal government or its agents has obtained possession of the property of a defendant through an unlawful search and seizure, and where the defendant has made a timely application for a return to him of the property so seized, which demand has been denied, it is error for the court to permit such property to be used against him upon the trial, as it violates the fourth and fifth amendments to the federal Constitution.

The rule is well settled that the fourth amendment to the federal Constitution relating to searches and seizures only applies to the federal government and its agencies, and has no application to the officers of state governments or to individuals. The decisions of the supreme court of. the United States in construing the federal Constitution are of course supreme; but, as to those provisions of the Constitution of the United States which go no further in their application than to the officers and agencies of the government,, such decisions are not binding upon the state courts. Weeks v. United States, 232 U. S. 383; Gindrat v. People, 138 Ill. 103; People v. Mayen, 188 Cal. 237; 12 C. J. 744, sec. 161.

In view of the fact that our own decisions are in harmony with the great weight of authority, and that the rule announced has been enforced for so many years, we are not disposed to depart from it.

It is suggested that the sheriff was rightfully upon the premises, and that the taking of the property under the circumstances disclosed by the record was not illegal. In the view we have taken, it seems unnecessary to pass upon that phase of the case.

The defendant also complains of certain instructions of the court as being misleading. An examination of the instructions, considered as a whole, clearly shows that the case was fairly submitted to the jury for its consideration.

Upon an examination of the entire record, no error is found, and the judgment is, therefore,

Affirmed.  