State v. Rocca

Martin, J. Appellee was charged by affidavit with maintaining a liquor nuisance. (§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 un *201 lawful and illegal, for the reasons: First, that §31, ch. 48, Acts 1925, §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. The section of the Constitution—§11, art. 1; section 63, Burns 1926, with which appellee contends §31, ch. 48, Acts 1925, §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 §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 *202 (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; Shepard v. State (1928), 200 Ind. 405, 164 N. E. 276; Feast v. State (1929), 200 Ind. 457, 164 N. E. 314. The appellee contends that because §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 §11 Art. 1 Const. The de-' termination 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. All laws are to be interpreted, if reasonably possible to do so, in such a maner as tó 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 p. 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 requires that the warrant shall issue only “upon probable cause sup *203 ported by oath or affirmation”. It does not follow that because a search warrant might be issued under §2746, supra, which was invalid because it was issued without a showing of probable cause to the issuing magistrate, that 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 violation of the Constitution, does not make the statute unconstitutional. ' The affidavit upon which the search warrant in this case was issued was, in part, as follows: “That intoxicating liquor is possessed in violation of the law on the premises hereinafter described; that because of the above fact he has reasonable cause to believe and does believe that John Doe, whose lawful name is unknown, has in his possession intoxicating liquor ... at the following premises,” etc. The facts thus stated on oath are not merely upon information and belief, they directly and positively charge the possession of intoxicating liquor and are sufficient to support a judicial finding of probable cause for the issuance of the search Warrant, and this court will not inquire as to what knowledge the affiant had upon which he based his sworn statement. Seeger v. State, supra; Seager v. State, supra. It follows that the objections to the search warrant made by the appellees were not valid and sufficient and that the court erred in sustaining his motion to suppress the evidence. The appellee has filed a petition for an oral argument but the same is denied for the reason that the case has been thoroughly briefed, the questions involved have been clearly stated and nothing could be gained thereby. Allgaier v. State (1929), 200 Ind. 583, 164 N. E. 315; Gale v. State (1929), 201 Ind. 532, *204 168 N. E. 241; Parrett v. State (1928), 200 Ind. 7, 159 N. E. 755; Young v. State (1923), 194 Ind. 221, 141 N. E. 309, and for the further reason that the court in the cases cited herein has definitely decided the questions here presented. Chandise v. State (1928), 200 Ind. 493, 163 N. E. 266; Seeger v. State, supra, and upon such questions there is no longer serious controversy. Malich v . State (1930), 201 Ind. 587, 169 N. E. 531. The appeal, as taken upon the question reserved by the State, is sustained, at the costs of appellee. Travis, C. J., dissents. Myers, J., absent. Petition for rehearing denied.