Commonwealth v. Courtney

Rugg, C.J. This complaint charges the defendant in one count with keeping and exposing intoxicating liquor for sale and in another count with maintaining a liquor nuisance. The defendant before the trial filed a petition for the return of property illegally seized. He there alleged that certain police officers on the date named in the complaint, being armed with a search warrant, entered his premises for the ostensible purpose of making search and seizure of intoxicating liquors, but in reality wilfully to destroy property of the defendant; and that in execution of that real purpose, they destroyed and seized property not intoxicating liquor. The prayer of the petition was that the court order that search and seizure were unreasonable, that the property seized be returned to him and that it be not used against him as evidence. This petition was denied rightly. This is not an action against the officer and hence his liability need not be considered. There was in the petition no averment that the warrant did not authorize the seizure of the intoxicating liquor. The petition is founded on the theory that, because something not within the protection of the warrant was done by the officer serving the warrant, therefore all that was done pursuant to the direction of the warrant became tainted with such extraneous illegality. That contention is untenable. The words used with respect to a similar situation in Commonwealth v. Intoxicating Liquors, 113 Mass. 13, at page 20, are decisive of the case at bar. “ It is very clear that upon principle the facts here cannot make the officer a trespasser ah initia as to the whole property seized. Where an officer under legal process seizes several separate articles, [366] some of which he can lawfully seize and some not, the seizure is illegal only as to those which he has no right to seize, and legal as to the others.” This principle was reaffirmed and followed in Commonwealth v. Intoxicating Liquors, 203 Mass. 585, Adams v. New York, 192 U. S. 585. At the trial of the complaint before the jury, there were offered in evidence intoxicating liquors, to which the defendant objected, setting forth that the evidence was obtained as a result of the illegal seizure, and requested that he be heard with evidence at that time on that collateral issue. This objection and offer of evidence we interpret as presenting in legal substance and effect the same question as that raised by the defendant’s petition. For the reasons already stated there was no error in law in overruling the defendant’s objection and in excluding his offered evidence. If the objection and offer were grounded on the theory that the intoxicating liquor admitted in evidence was obtained without warrant or color of authority, then there was no error in the course taken by the trial court for the reasons stated in Commonwealth v. Wilkins, ante, 356. Exceptions overruled.