Lowrey v. Gridley

Dutton, J. The defendant in an action of trespass has justified under a warrant, issued as is admitted in strict conformity with the provisions of the act of this state regarding the sale of spirituous liquors. The plaintiff denies the validity of the proceedings, upon the ground chiefly that the provisions of the statute regarding the issuing of warrants are unconstitutional. It always presents a subject of grave importance when the judiciary are called upon to declare the acts of the legislative department null and void. In the present instance the inquiry is peculiarly important, because a decision declaring the law unconstitutional, would affect the validity of other statutes, and condemn a course of practice which it is believed has been generally followed. In this case the oath of the three men of good moral character who signed the complaint, was, “ that they have reason to believe and do believe to be substantially true the allegations in said complaint; ” iu certifying which the justice adds, “ whereupon I find that probable cause exists for said complaint.” Attached to the complaint and certificate, he issued the warrant. The plaintiff insists that this proceeding, and the statute authorizing it, are in violation of the last clause of the 8 th section of the constitution of the state, which is as follows:—“ No warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation.” He insists that the oath must specify and cover the particular facts and circumstances from which the conclusion that probable cause exists is to be drawn. The defendant insists that this conclusion may be drawn from the oath of the complainant, that he believes and has reason to believe that an offense has been committed. It is well known that the late Judge Swift was a prominent member of the convention which formed the constitution. The prominent'position which he held at the time as a jurist would lead to the conclusion that he either drafted it or carefully examined its provisions. What his views of this particular clause were may be inferred from the fact that a few years afterwards he was chairman of a committee who made a revision of the statute laws of the state. In — 456 — that revision under title 41st, “ Gaming,” is the following provision in section fourth. “ On information made in writing or otherwise, by any informing officer, or by the selectmen in any town, or the major part of them, that he or they have cause to suspect that any billiard table, or O E table, is kept or concealed in any house, building or place in their town, and which shall specify such house, building or place, it shall be lawful for any two justices of the peace for that county to issue their warrant, directed to any proper officer, or, if need require, to an indifferent person, him requiring, taking to himself proper assistance, to enter such Iiouse, building or place, and search’ for such table, and on finding the same to seize and carry it away,” Ac. This statute has remained in the statute book ever since, notwithstanding the subsequent revision and the compilations of the same, and has been repeatedly acted upon without any objection being raised to its constitutionality. In 1836 a statute was passed authorizing a similar search warrant, “ upon complaint on oath by any grand-juror, or by any two credible persons, to any judge of the supreme court of errors, or county court, that he or they suspect or have cause to suspect that any house or other building in the county in which such judge resides, is used for the purpose of printing, binding, depositing or selling any book, pamphlet, ballad, or printed sheet, or any painting, print, drawing or figure of any kind, of an obscene or licentious character,” Ac. This statute as well as the other passed under the review of the revisors and the legislature in 1843 and 1849. In the second volume of Swift’s Digest, which was published soon after the constitution was adopted, is the form of a complaint for a search warrant for stolen goods, made by the owner, in which the certificate specifies “ that he made solemn oath to the truth of the complaint,” (referring to the allegations regarding the theft,) “ and that he has just grounds to suspect and does suspect that the goods were taken by the said and that they are secreted and concealed by him,” Ac. This we have reason to believe has been the form of a search warrant, adopted in practice, without question, ever since. It is worthy of remark that in the statute in question, the rights of individuals are more — 457 — carefully guarded than in either of the other instances referred to. In the case of a search warrant for stolen goods, the oath of the person who lost the goods, and who might be considered therefore as liable to bias, is alone required. In the other cases the oath of two only is necessary. Under this statute it must be that of “ three persons of good moral character and of full age.” In the case of Gray v. Davis, (27 Conn., 447,) which was the counterpart of this case, and which was sharply contested, numerous objections were made to the validity of the warrant, yet this point was not raised by the able counsel for the plaintiff, although the complaint and oath were liable to the same objection as they are here, if it is tenable. Scores of complaints and warrants have been issued, adopting the form given in the statute, and yet the unconstitutionality of the law in this particular was never questioned, it is believed, until it was suggested, as we are informed, by the court and not by counsel, in the case of Clark v. Nott, in the United States circuit court in this district. In view of this general acquiescence of the legislature, the judiciary, and the bar, we should not have regarded it necessary to give the subject a very thorough investigation, were it not for the contrary opinion of the able and learned judge who tried the case to which we have referred. Judge Ingersoll does indeed put a construction on the statute, which enables him to relieve it from the charge of unconstitutionality. He says however:—“ It looks very much as if the legislature intended to authorize a justice to find probable cause, and to issue a warrant to break into a man’s premises and to search for and seize his pi’operty, upon the oath merely of the complainants that they had reason to believe and did believe the allegations in the complaint to be true. This is not such an oath or affirmation as is required by the constitution, the supreme law of the land, when it requires and provides that no warrant shall issue to search any place or to seize any thing without probable cause, supported by oath or affirmation. The oath required by the constitution is an oath to some fact or facts which show that an offense has been committed. The belief of a man, or of any number of men, that an offense has — 458 — been committed, is not sufficient to justify a justice or a court to find probable cause and upon sucli finding to issue a warrant.” As we believe that the legislature did intend to authorize a warrant to issue on such an oath as was administered in this case, the question arises directly, whether these propositions of the learned judge are sound law or not. It is worthy of remark that the judge refers to no authority to sustain his views. In view of the fact that search warrants in the case of concealed stolen goods have almost from time immemorial been issued on just such an oath as he condemns, something more would seem to be required than a mere assertion to establish the doctrine contended for. It may be urged that in the case of a search warrant for stolen goods there is an oath to the fact of the theft. But it is obvious that this alone lays no foundation for a, search or seizure. There must be probable cause for the charge of concealment of the stolen goods, or there would be no compliance with the constitution. But further, the constitution does not in terms provide that the particular facts from which probable cause is to be inferred shall be sworn to, or that the magistrate who issues the warrant shall find probable cause. The constitution merely provides that the warrant shall not issue “ without probable cause, supported by oath or affirmation.” If any thing more is required than an oath or affirmation that there is probable cause, or what is equivalent, as an oath that the complainant believes and has reason to believe that an offense has been committed would be, it must be made out by construction. As the constitution is a mere limitation on the powers of the legislative department, nothing should be regarded as prohibited which is not so either expressly or by fair and reasonable implication. Again., no inference by mere construction ought to be allowed whichis calculated to defeat the ends of justice and allow criminals to escape. It is better that innocent men should suffer temporary inconvenience, than that the .guilty should escape punishment. From the nature of the case prosecutors may have proofs of probable cause which can not be detailéd in — 459 — a complaint and presented in a specific form to a magistrate. The appearance, peculiarity of conduct, situation and associations of a suspected person, may, to a practised eye, lay a foundation for the detection of an offender, and produce a conviction of the existence of a probable cause, which could not be exhibited to the officer who is called on to issue the warrant. Probable cause is often made out from what would not be legal evidence on a trial to the jury. In an action against a party for procuring a groundless prosecution against the plaintiff, charging him with fraudulently selling a patent right, the supreme court of Vermont were inclined to the opinion that a general report that the plaintiff had fraudulently sold the same right in other instances, would tend to make out a case of probable cause. Barron v. Mason, 31 Verm., 189. Suppose a burglary has been committed, and the prosecutor has ascertained by a secret and confidential communication from an accomplice who the principal offender was, and where the stolen property is secreted, is he to be allowed to escape with his booty because these circumstances can not be detailed in a complaint without a breach of good faith or a loss of evidence ? It is not easy to see why the oath of the prosecutor to his conviction of the existence of a probable cause, arising from impressions made upon his own mind, should not be as fully a compliance with the requirements of the constitution, as the inference which the magistrate would draw from an imperfect presentation of the same facts and circumstances which produced this conviction. An examination of the clause in question will show that there is the same necessity for an oath of probable cause in the case of an ordinary arrest for a crime, as in the case of a search warrant. Indeed it would be strange if a cask of liquor was more sacred in the eye of the law than a man’s person. But it has never been thought necessary that in the case of a common warrant it should be preceded by any thing but the complaint or information of a prosecuting officer. He is never understood as making oath that the facts alleged are within his personal knowledge. He could in scarcely an instance honestly take such an oath. The meaning of such a — 460 — complaint or information is, that he has officially made an investigation, and has reason to believe and does believe that the allegations are true. It is surprising that it did not occur to the learned judge, to whom we have referred, who for a number of years ably and faithfully discharged the duties of the office of attorney for the state, that he had repeatedly obtained bench warrants for the arrest of criminals on his mere statement to the judge holding the court, that in his opinion a bench warrant ought to issue, without any specification of facts and circumstances, and without any oath but his oath of office. We are therefore clearly of the opinion that the warrant was legal. The decision of this point renders the consideration of several other questions which have been discussed unnecessary. It is insisted however that the place in which the liquors were found did not correspond with the warrant. The officer was directed to seize certain goods in a brick store, occupied > by the present plaintiff as a grocery store. It appears that the principal part of the liquors were in an addition of wood, opening into and used with the brick part as one store, and that the whole was called “ the brick store,” to distinguish it from another wooden one" in the neighborhood. We think this objection is rather hypercritical. It was substantially a brick store. There is some wood in the construction of every brick building. Neither the plaintiff nor any one else would be liable to be misled by this description. Indeed the point does not seem to be relied upon. We advise judgment for the defendant. In this opinion the other judges concurred.