
    LIQUOR SEIZURES UNDER SEARCH WARRANTS.
    Common Pleas Court of Montgomery County.
    Gust. Kovacs v. The State of Ohio.
    Decided, December, 1921.
    
      Search, and Seizure — What Should he Contained in an Affidavit upon Which, a Search, Warrant is Issued — Testimony not Required as a Pre-requisite to Issuance of Warrant — Affiant Speaks upon Belief Based on Good Cause — Seizure of Liquor under the Prohibition Act — John Doe Warrants not Available When — Liquor Illegally Seized may not be Used as Evidence.
    
    1. For the purpose of a search warrant, intoxicating liquor illegally held in this state is on the same basis as stolen property; but search and seizure of such property under a John Doe warrant commanding arrest is without legal sanction where there is no description of the person believed to have illegal possession of such property or allegation that his real name is unknown.
    2. Search and siezure if illegal is “unreasonable” and violates constitutional rights.
    3. It is the duty of a trial court to exclude as evidence things taken from a defendant' in violation of his constitutional- rights when timely objection is made.
   Snediker, J.

These were prosecutions under the prohibition act of that state of Ohio, in. which such proceedings were had that the plaintiffs in error were convicted and sentenced and petitions in error filed in this court.

They have been submitted to us on two principal questions, first, as to whether or not the search warrants, which were issued in the coúrt below for the purpose of obtaining evidence in the prosecutions, were illegal; second, whether, if they were illegal, the property seized thereunder may, notwithstanding the objection on that ground by the parties against whom it was offered or intended to be offered as evidence and after an application made by tlpn-ÍQí^retum of the property for the reason that the search warrants were illegal, be used as evidence. By the term “legal” is meant legal in its issuance, its form and its service.

The consideration of the second question being dependent upon the determination of the first, we will now decide as to what constitutes a legal warrant under the law of this state. . Preliminary to doing so, we ought to understand the history and nature of the warrant we are discussing.

A search warrant is an order in writing, in the name of the state, signed by a court or by its clerk, directed to an officer whose duty it is to conserve the peace, commanding him to search for and bring before the court specified property claimed on oath, or, affirmation, to be illegally held by some person named or particularly described and specifying particularly the place where such property has been claimed to be kept. Its legitimate use is to aid in detection and punishment of crime, and then only when the court, or, magistrate, can say he has probable cause for issuing it.

For our purpose the provisions of the Constitution of the state of Ohio, and the laws made in pursuance thereof in this behalf, need only be consulted. 194 U. S., p. 447 ; 232 U. S., p. 71.

There ife but slight difference between the section of the Constitution of the state of Ohio which relates to searches and 'seizures and. that of the Constitution of the United States. They are practically the same.

Article I, Section 14, of the Constitution of the state of Ohio, reads:

‘ ‘ The right of the people to be secure in their persons, houses, papers and possessions against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.”

As we have said, in a former opinion, any search and seizure, made in accordance with a law which does not offend the foregoing constitutional provision, is not unreasonable. It is not contended that the Ohio criminal code does so offend, and we may, therefore, resort to its provisions to determine when and how and in what form our warrant is available. ,

When is it authorized?

Section 4 of the act to ‘ ‘ prohibit the liquor traffic, ’ ’ recites:

* # * warrant may issue and proceedings had thereunder, as provided in Sections 13182 and 13483, inclusive, of the General Code, as far as the same may apply, and such liquor and containers thereof, and such porperty as seized, shall be subject to such disposition as the court may make thereof. If it ife found such liquor or property designed for the unlawful manufacture of liquor shall be destroyed, unless the court shall order it to be disposed of as provided in public act 66 of the federal statutes. No such warrant shall issue to search any private dwelling occupied as such unless it is being used for some business purpose, such as a store, shop, restaurant, hotel or boarding house. The term ‘private dwelling’ shall be construed to include the room or rooms used and occupied, not transiently but solely, as a residence in an apartment house, hotel or boarding house. The property seized with any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process.”

Section 13482, referred to in Section 4, just quoted, provides that a justice of the peace or police judge may issue warrants to search a house or place for certain property In such section named in four subdivisions. Section 4 of the prohibition act may be said to add an additional subdivision to Section 13482.

Section 13483 reads:

“A warrant for search shall not be issued until there is filed with the magistrate an affidavit particularly describing the house or place to be searched, the person to be seized, and the things to be searched for, and alleging substantially the offense in relation thereto, and that affiant believes, and has good cause to believe, that such things are there concealed.”

This section is self-explanatory and makes the initial step in procuring the warrant an affidavit, which shall contain (a) a particular description of the house or place to be searched, (b) a particular description of the person to be seixed, (c) a particular description of the things to be searched for, and it must charge the offense in relation to the property for which the ’search is to be made. The person making such affidavit must say that he believes, and has good cause to believe, that such things are concealed in the house or place in the affidavit particularly described.

Often a search warrant is used for the purpose of procuring evidence of crime only and at a time when the offender is in custody.

We understand, therefore, that the description of the person required by the section and by the constitution is only a necessary part of the affidavit when the purpose of the warrant is to seize the person as well as the property. It has been the practice is this state to so construe the law. (26 O. £>., 140-3).

It will be observed that ¡section 13483 does not embody all the terms of Section 14, Article I of the Constitution of the state, which, in addition to the requirements found in the code in its section, provides that "no warrant shall issue but upon probable cause. ’ ’

What is meant by this language of Section 14 of Article 11

It is claimed by counsel for the defendant that this means that the court issuing the writ must have a hearing — examination of witnesses — and, having weighed the evidence, must determine therefrom that there is probable cause.

In a former opinion, we called attention to Section 13496. which provides:

‘ ‘ When an affidavit, charging a person with the commission of an offense, is filed with the .justice of the peace, mayor or police judge, if he has reasonable ground to believe that the offense charged has been committed, he shall issue a warrant for the arrest of the accused.”

And also to the fact that it had never been the practice in this state under this last section to require testimony or the consideration of testimony on the part of the court before the issuance of the warrant, and we expressed an opinion that it was not-necessary, either under Section 1-3483 of .the code or under the constitutional provision, with respect to probable cause. We have since discovered that we are supported in this by the decision of Justice Bradley, of the Supreme Court of the United States, rendered on the circuit, in the case of “In the matter of a rule of court prescribing the duty of circuit court commissioners in certain cases”, 3 Wood’s Rep. 502-3:

“It is plain from this fundamental enunciation, as well as from the books of authority on criminal matters in the common law, that the probable cause referred to, and which must be supported by oath or affirmation, must be submitted to the committing magistrate himself, and not merely to an official accuser, so that he, the magistrate, may exercise his own judgment on the sufficiency of the ground shown for believing the accused person guilty; and this ground must amount to a probable cause of belief or suspicion of the party’s guilt. In other words, the, magistrate ought to have before him the oath of the real accuser,’ presented either in the form of an affidavit, or taken down by personal examination, exhibiting the facts on which the charge is based and on which the belief or suspicion of guilt is founded. The magistrate can then judge for himself, and not trust to the judgment of another, whether sufficient and probable cause exists for issuing a warrant.
“It is possible that by exercising this degree of caution, some guilty persons may escape public prosecution, but it is better that some guilty ones should escape than that many innocent persons should be subjected to the expense and disgrace attendant upon being arrested upon a criminal charge, and this was undoubtedly the beneficent reason upon which the constitutional provision referred to was founded.”

The court was here considering a case in which an affidavit, was made solely upon information derived from others, whose names are not given, by a person who swears that he has good reason to believe and does believe that a certain .person, naming him, committed an offense against the laws, describing it.

It will be observed that, while the act of the court is judicial and while an examination of witnesses is approved of, it is not essential; and that the charge complies with the constitutional provision if it is presented in the form of an affidavit, subscribed by a person who is able to say that he believes and has good cause to believe tha.t the facts stated in such affidavit are true.

This is not an unreasonable construction. When a man makes a statement under oath, a court is justified in entertaining the presumption that he is telling the truth and, if his statement charges, in a legal way, a violation of law, the court with which it is filed has more than a mere suspicion that he has probable cause to believe that there is an oceassion requiring action on its part.

Section 13434 of the General Code reads;

“The warrant for search shall be directed to the proper officer and, by a copy of the affidavit inserted therein or annexed or referred to, shall show or recite all the material facts alleged in the affidavit, and particularly describe the thing to be searched for, the house or place to be searched, and the person to be seized. Such warrant shall command the officer to search such house or place for the property or other things, and, if found, to bring them, together with the person to be seized, before the magistrate or another magistrate of the county having cognizance thereof. The command of the warrant shall be that, the search be made in the day time, unless' there is urgent necessity for a search in the night, in which case a search in the night may be ordered. ”

In regard to these search warrants, the point is made that the last direction — the last sentence of the section — has not been obeyed. Apparently, the Legislature required that the command of the warrant should be so worded for the purpose of avoiding inconvenience of a night search to those whose homes and property are invaded by the officer. This was a requirement of the common law.

Hale, in his Pleas of the Crown, vol. 2, p. 112, says:

‘ ‘ In case of a complaint and oath of goods stolen, and that he suspects the goods are in such a house, and shows the cause oí his suspicion, the justice of the peace may grant a warrant to search in those suspected places mentioned in his warrant, and to attach the goods and the party in whose custody they are found, and bring them before him or some justice of the peace to give an account how he came by them, and farther to abide such order as to law shall appertain.
“And this is warrantable by law, and without it felons could not in many cases be discovered, and is the constant practice at this day, notwithstanding the opinion of My Lord Coke in bis Jurisdiction of Courts, p. 176.
“But in this case it is convenient, 1. That the searches be made in the day time. 2. That the party suspecting be present to give the officer information of his goods. 3. There can be no breaking open of doors to make the search, but he must enter por ostia operta, or upon the voluntary opening of the door by the housekeeper or his servants; and the reason is, because the bare having of stolen goods in his house does not necessarily make a man either a felon or accessory. 4. But because the having of stolen goods in his custody is prima facie an evidence of a felony and a good cause of suspicion, it is a lawful clause in the warrant to attach the party, in whose custody they are found, to come before the justice. 5. The goods being found ought not to be delivered to the party complaining, but to remain in the constable’s hands, till either by a writ of restitution upon the conviction of the felony, or by due order of the court they be delivered.
“The warrant of a justice of the peace ought regularly to mention the name of the party to be attached, and must not be left in generals or with blanks to be filled up by the party after-wards.”

In the foregoing quotation we are interested to find not only the rule with reference to night searches, but also in discovering that the provisions of our naiional and state constitutions are but a recitation of what had before been a part of the common law, intended to protect every citizen of the British nation from unreasonable encroachment.

The Legislature, by .Section 13494, puts a night search on the ground of urgent necessity. It ought to be confined to that, and a search ought not to be conducted at night merely for the convenience of the officer making it. What is an urgent necessity must be determined at the time by the court, from all the circumstances, using a wise discretion in his decision. It is, however, unnecessary that those things which make for urgent necessity be stated out in the affidavit. It is clear that the Legislature did not so intend as, by Section 13485 of the General Code, they provide a form of search warrant which they say if substantially complied with shall be sufficient, and in that they make no provision for stating out the urgent necessity where the search is to be made in the night time. We are of the opinion that the de» termination of the court as to urgent necessity need not be on evidence, but must be from the nature of the ease and .of the affidavit before him. Further, the officer serving the warrant should strictly act within its terms and should fiot search at night unless so directed to do. Tf he does, his acts are vain.

Another question which presents itself is as to what may be defined to be night under this section. Our construction is, as it has been held with respect to burglary:

“The night extends from the termination of day light, beginning at the time when the countenance ceases to be reasonably discerned, to the dawn of the next morning when the countenance becomes thus discernable.”

In some of the search warrants which have been before us there is contained the words “in the day time (in the night time) ”, and there has been no erasure of either. This condition arises from a neglect of the court- below to cross out either one or the other of these terms. In considering the language of these search warrants we do not regard it as necessary, even under such, conditions, to hold that the expression ‘ ‘ (the night time) ’ ’ is parenthetical, or, in other words, intended as explanatory or as qualifying the sentence in which it is contained. Any such construction would be a violation of common sense. Under these circumstances, unless there is an erasure of the words “in the day time,” our reading of the warrant is that it is to be served in the day time, and that there is no intention on the part of. the court below that it shall be served in the night season. It there is an erasure of the words “in the day time,” then, of course, the court plainly intends that it shall be served in the night time, and the presumption being that he has acted within the law, we are entitled to find that he has determined that there is an urgent necessity that it shall be so served; for as we have before said, the form of warrant found in Section 13485 does not make, necessary that any further order shall be in the warrant than the mere direction that it shall be served “in the night time. ’ ’

Another objection to some of these warrants is that the person who is charged to have the illegal possession of the property is not particularly described but is named as “John Doe.” John Doe and Richard Roe are two fictitious personages in the law who formerly and, we suppose, first made their appearance in suits in ejectment. John was the plaintiff and Richard was the defendant; but long since the fiction on which their appearance was based was abolished by the common law procedure act and now, accordingly, they do not appear in England, where they were created!. In America, however, we attempt to substitute John Doe for other names unknown, and. in criminal cases John still retains his old popularity in some jurisdictions, and is named as the offender in default of the real name. In this state, even in civil eases, the rule is that where a fictitious name is used a party’s ignorance of the right name must be real and not wilful, or, such as might be removed by inquiry or resort to means of information. This rule ought to be more strictly insisted upon with regard to these warrants, even where there is a possibility of describing the person and not naming him; for, in our opinion, a full description of the person without the name is sufficient in these warrants. A name is only one form of description and is not indispensible. In this we are supported by an opinion rendered in the Fifth Circuit Court of Ohio, in the case of Daugherty v. Gilbert (Tappan’s Ohio Rep., 38), in which the court say:

“A warrant may be legal although the name of the person charged is not inserted in it, provided he be properly described and it be stated that his name is unknown.”

But, when the command of the warrant is to attach the party in whose custody the goods are found and there is no description of the person and not even a statement that his real name is unknown, the use of “John Doe” for the purpose of describing the offender or the one in whose possession illegal property is located is unreasonable and is not a compliance with the law. When both the name and description of the offender are unknown the warrant ought to be issued for purposes of search and seizure of the property only. Let it be-remembered, as was said by the court in the Daugherty case, “the search warrant is a process of undoubted importance and necessity, yet, such is the law that every person, suing out one does so at his peril.” “John Doe” does not particularly describe any person. A particular description is one which telLs the officer what or whom he is going after and enables him to identify the person or thing when he gets there. Such a “John Doe” warrant may be designated as a general warrant, and, with respect to these, Blackstone, in the Fourth Book- of his Commentaries, at page 291, says:

“A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty; for it is the duty of the magistrate, and) ought not to be left to the officer, to judge of the ground of suspicion.”

The only other section of the code relating to search warrants which is here important in 13485,.to which we have referred as incorporating a copy of warrant for search. This section, of course, together with the form therein contained, is to be considered in connection with the other sections of the act relating to search warrants, and these we have reviewed.

We now come to a consideration of the second question, which is as to the admissibility as evidence against a defendant of property seized under an illegal search warrant where, before his trial, he has, in a collateral proceeding, by application, objected to its use on account of illegal seizure.

It is claimed by counsel for the state that no such proceeding is known to the law of Ohio and that, therefore, it ought not to be entertained by a court in this state.

It will not be denied that these plaintiffs in error have a right to insist upon all the privileges afforded by the Constitution of the state and, if it be necessary for them to make such application to secure such privilege, the right to make it ought not to be denied.

As said in the 10th R. C. L., 933:

“But since there is a right there must of necessity be a remedy, and the remedy is to be found in the making of a timely application to the court for an order directing the return to the applicant of the papers (here, things) unlawfully seized. On such an application the question of the illegality of the seizure may be fully heard and, if the court erroneously refuses to order a return of the papers (here, things) and thereafter receives them 2n evidence against the applicant over his objection it is an error for which a judgment of conviction must be reversed.”

We know of no rule of procedure which excludes the making of such an application in this state, and when it was made in the court below, in our opinion, it was properly considered.

Had the things taken under the warrants in question been so seized at the command of a legal search warrant, then it would have been easy to have applied the rule laid down by Hale, in his Pleas of the Crown (Vol. 2, p. 150) to this effect:

“Now, upon the return of this warrant executed, the justice before whom it is returned hath these things to do; first, as touching the goods brought before him. If it appears that they were not stolen they are to be restored to the possessor; if it appears that they were stolen, they are not to he delivered to the proprietor but deposited in the hands of the sheriff or constable to the end the party robbed may proceed by indicting and convicting the offender to have restitution,” etc.

It must not be lost sight of that, for the purposes of a search warrant, intoxicating liquors unlawfully held in this state are on the same legal plane as stolen property.

Originally search warrants were issued for the seizure of stolen property only, and the issuance of such warrants for other purposes as are permitted by the General Code of Ohio has been the outgrowth of public necessity.

The warrant being illegal, we may not apply the law as stated by Hale, which contemplates the use of the property as evidence, if, when an application is made by a party before trial, he- is entitled to have whatever is seized under an illegal search warrant excluded.

For the determination of this question we ha ye endeavored to find some authority in this state which might aid us, but have been unable to do so. There was decided, by the circuit court of Cuyahoga county, in the 16 C.C.(N.S.), 170, the case of Cohen v. State of Ohio, in which the court say:

“Perhaps it should be said that the evidence obtained was unlawfully obtained under the search and seizure law. I suppose that was true. If one does an unlawful thing and thereby evidence is obtained that another has committed a crime, I think it is an unheard of thing that the evidence can not be used. If one breaks into my house and obtains evidence by such breaking in, which is unlawful, that I have committed a crime, that evidence against me can be used. There is nothing in that that should justify a reversal here. We do not consider whether the evidence was lawfully or unlawfully obtained.”

At first blush this would seem to be in point on the question before us; but we are unable to determine from this language or from anything else in the opinion that there was any more done in this case than the making of an objection to the evidence at the time it was offered at the trial. It does not appear that there had been before the trial an application for the return of the property and to exclude the evidence.

What, then, is our duty in this state of the case, if we find ■that the Supreme Court of the United States and the courts of last resort of sister states have passed upon the question? Undoubtedly it is to give them their proper recognition.

With respect to a decision of the Supreme Court of the United States, Black, in his work on the Law of Judicial Precedents, at page 362, says:

“But the fact that a decision of the Supreme Court of the United States may not be of controlling authority in a given ease in a state court does not mean that it may not possess very high persuasive authority. ‘We will not forget,’ says a territorial supreme court, ‘that the decisions of federal supreme courts upon all questions are of the most exalted authority, and should and will be received with the greatest respect, and even reverence, and given the most careful consideration. ’ And in fact it is the constant practice of courts in all the states, where they are not constrained by previous rulings of their own, and especially in regard to the vexed and mooted questions of the law, to turn to the decisions of the supreme federal court for guidance and instruction, and to regard an applicable judgment of that tribunal as the most sure and satisfactory basis on which to rear a superstructure of doctrinal jurisprudence. Thus, for instance, the Court of Appeals of New York in a recent case remarked: ‘Substantially this doctrine has recently been decided (by the United States Supreme Court in a case which it cited.) The reasoning of that case seems to us accurate and decisive, and we follow it without hesitation.’ So the court in North Carolina, on a question of insurance law, said: ‘A recent decision in the Supreme Court of the United States is so direct and clear upon the point that it seems wholly needless to search for other authorities in the state courts or in the wrnrks of elementary writers on the subject.’ * * * These authorities, in connection with our own, remove all hesitation concerning the reeitude of the judgment of the court below. If, however, the question were one of first impression, and to be settled on the ground of public morality and judicial policy, we could hardly fail to reach the same conclusion.”

Counsel for the state have referred us to certain decisions, notably those in 100 and 125 Georgia, which are to the effect that ‘ ‘ although the search and seizure may have been unlawful, unwarranted, unreasonable and reprehensible this did not affect the admissibility of the evidence obtained as a result thereof.”

These and other authorities which the state submitted and which are referred to under' a general rule laid down in the 36 Cyc., at pages 1271, 1272, are not in point on the question before us, for the reason that they are not intended to apply to a case where an application has been made before the trial for the return of the property and the exclusion of the evidence.

The rule laid down by the Georgia court and referred1 to in Cyc. is only intended to extend to cases where there has been an attempt to offer the evidence at the trial and no such collateral application previously made. It is, of course, true that, where evidence is offered, if it be otherwise competent and relevant, an objection to its reception on the ground that it has been secured by an unreasonable search and seizure will not be entertained by the court, and that is what the rule here contended for lays down and what these authorities declare to be the law.

We take it that the law is that, as said by the Supreme Court of Michigan, 204 Mich., 559.

“Where it is made to appear before the-trial that articles have been taken from the possession of the defendant in violation of his constitutional rights and by unlawful search and seizure and without any search warrant at all, it becomes the duty of the trial court do order the return of the articles thus unlawfully taken.”

It is well for us here to keep in mind that an illegal search warrant is void and is no search warrant at all.

In the case just quoted from, the court (p. 567), says:

“Did the trial judge commit error in ordering the return of the liquor thus seized? It must be borne in mind that we are not here dealing with the search of a jailor of one lawfully under arrest upon warrant duly issued before placing him in his cell, and the retention of the proceeds of such search; nor are we considering a case where under a lawful search warrant duly issued a search and seizure has been effected; here we are dealing with the right to retain the liquor taken without a search warrant.”

After the consideration of numerouus authorities, at page 573, the court continued:

“From this consideration of these cases it is obvious that the rule underlying them is that when defendant in a criminal ease for the first time upon the trial objects to the admission in evidence of articles taken by unlawful search and seizure, and they are admissible under general rules governing the admissibility of proof, the court will not pause in the trial of the case to determine the collateral question of whether the prosecution became unlawfully possessed of such articles; but that where it is madq to appear before the trial that articles have been taken from the possession of the defendant in violation of his constitutional rights and by unlawful search and seizure and without any search warrant at all, that it then becomes the duty of the trial court to order the return to the defendant of the articles thus unlawfully taken.”

The entire opinion of Judge Fellows in the Michigan case is one of the most able and interesting that it has ever been our pleasure to examine. The position there taken by him is supported by numerous federal authorities.

It is true that until recently the Supreme Court of the United States had not decided many cases giving construction to" the search and seizure section of the Constitution, but its declarations on that subject within the past year or so are all to a like effect as those of the Supreme Court of Michigan. There had been several eases of importance with respect to search and seizure and the freedom from compulsion in every case of a man to be a witness against himself. These were,- notably, the Boyd'cas'e, Adams case and Weeks ease.

In the Silverthom case (251 U. S., 385, decided January 26, 1920), Justice Holmes, in delivering the opinion of the court, in passing upon the right of ■ a defendant to not produce property which had been previously taken upder an unconstitutional search and seizure, and had been examined by the government, says.

“The proposition eo.uld not be presented more nakedly. It is that although of course its seizure was an outrage which the government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that, the protection of the Constitution covers the physical possession but not any advantages that the Government can give over the object of its pursuit by doing the forbidden act. # * # The absence of a provision forbidding the- acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used by the court but that it shall not be used at all. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government’s own wrong can not be used by it in the way proposed.”

There are other authorities to the same effect, both in state and federal courts, but it seems to us that reference to the Michigan case and to the Silverthorn case is ample for the purpose of elucidating the principle involved.

It has been contended by the state that, if the rights of the plaintiffs in error have been violated in the seizure, their full remedy is afforded by an action for damages. The rights which have been violated are constitutional rights, and no man can or ought to be allowed to regard a money consideration as paying him for the invasion of any such rights.

It has also been claimed by counsel for the state that the articles seized are contraband and ought not to be returned to the defendants. This is not the question, we are deciding.

In view of the foregoing, we are of the opinion that such evidence as referred to in the second question before us may not be used under the conditions there specified.

Let entries be drawn accordingly.  