Hatcher, James T.

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University of Kentucky

Kentucky Law JournalVolume 20 | Issue 3 Article 111932Admissibility of Evidence Illegally Seized--(Affirmative View)James T. HatcherUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Evidence CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationHatcher, James T. (1932) "Admissibility of Evidence Illegally Seized--(Affirmative View)," Kentucky Law Journal: Vol. 20 : Iss. 3 ,Article 11.Available at: https://uknowledge.uky.edu/klj/vol20/iss3/11KENTucKY LAw JouRNALonly prevention or remedy. Assuming that the federal courts had noconstitutional authority for their stand, and no justification exceptthat the interest of the public demanded the abrogation of a strict ruleof evidence their position would not be open to attack. However thefederal rule, being based upon fundamental constitutional rights andthe necessity of preserving those rights to the people of the U. S., isfast meeting with the approval of state courts of last resort.WnMLz HUm.-ADISSILRIT OF EVIDENCE ILLEGALY SEIZED-(AFFRLATIVE VIEW).-Defendant was charged with keeping and exposing for sale intoxicat-ing liquors. Before the trial he filed a petition for the return of twobottles of whisky taken from him by an officer without a warrant,which was denied. On the trial the defendant objected to the ad-mis§ion of the liquor in evidence on the ground that it wasillegally seized. The objection was overruled. This ruling was sus-tained by the Supreme Judicial Court of Massachusetts which heldthat the competency of evidence is determined by its inherent pro-bative value rather than upon outside circumstances. Commonwealthv. Wilkins, 243 Mass. 356, 138 N. E. 11 (1923).Briefly, the question raised is the admissibility in a criminal caseof evidence illegally seized for the purpose of convicting the owner ofthat evidence.The federal rule, as enunciated in Boyd v. United States, 116 U. S.616 (1885); "We 7s v. United States, 232 U. S. 383 (1914); and Gouledv. United States, 255 U. S. 298 (1921), is-where the federal govern-ment or its agencies has obtained possession of property of a defendantthru an unlawful search and seizure, and such defendant has made atimely demand for the return thereof, which demand has been denied,such property cannot be used in evidence against him without a viola-tion of the fourth and fifth ammentments to the federal constitution.This is called the federal exclusion rule.The emphatic stand of the Kentucky courts is clearly establishedby the decision in "Walters v. Commonwealth, 199 Ky. 182, 25& S. W.839 (1923), where it was held that the admission of evidence underthe above circumstances was violative of the state constitutional pro-visions against unreasonable search and seizure and compulsory self-incrimination.It is the purpose of this note to briefly state the law in those juris-dictions where the federal exclusion rule is rejected and to attempt toshow wherein those jurisdictions have the preferable rule.The law in those courts that admit evidence illegally seized isvery well settled. The contentions they make are that the admissionof evidence is not affected by the way it was obtained, whether lawfulor unlawful, that it is not violative of the constitutidn, and that thetried and established rules of evidence support their holdings. Peoplev. Defore, 242 N. Y. 13, 150 N. E. 585 (1926). Where defendant's roomwas searched without a warrant for a stolen overcoat and a blackjackSTUDENT NOTESwas found, for which defendant was indicted. State v. Black et al.,(N. J.) 135 AUt. 685 (1926). Where books of a corporation were seizedunlawfully and defendants were indicted for conspiracy. Common-wealth v. Hunsinger, 290 Pa. 185, 138 Atl. 683 (1927). Where intoxicat-ing liquor was seized under an invalid search warrant and defendantwas indicted for the possession of it. People v. Mayen, 188 Cal. 237,205 Pac. 435 (1922). Where papers and other articles were seizedunder an improper search warrant and defendant was indicted for anattempt to commit larceny.This was undoubtedly settled as the correct rule of evidence bothIn England and the United States prior to the appearance of the i.l-starred Boyd case, which introduced a novel doctrine into the law ofevidence. Legatt v. Tollervey, 14 East 302 (1811); Commonwealth v.Danza, (Mass.) 2 Met. 329 (1841); Wigmore on Evidence, Vol. 4, Sec.2184. The rule had been followed for almost a century since the adop-tion of the constitution. The fourth and fifth amendments were recog-nized as operative; yet, until the introduction of the rule in this andsubsequent cases, it was never doubted that the admission of evidenceillegally seized was not a violation of either. 19 Il!. Law Review 303.It was almost thirty years later that this doctrine was first followedby the court that created it. Weeks v. United States, supra. Mean-while, it was practically repudiated by Adams v. New York, 192 U. S.585 (1904).Now, since this is a novel doctrine that seeks both to alter a funda-mental rule of evidence and to give a meaning to two of our constitu-tional amendments heretofore not attributed to them, it is altogetherfitting and proper that we understand the impelling reasons for thisradical move.There are two broad grounds used fo support the federal exclusionrule. First, there is the practical argument; or the consequences thatwould ensue if the rule were otherwise. Second, there is the constitu-tional argument; or the contention that a different ruling would violatethe search and seizure amendment or the self-incriminatory amend-ment or both.Dealing with the first contention, we find the courts arguing to theeffect that it would break down and shatter on the rocks the fundamen-tal principles and inalienable rights that we have sought so long tokeep as the most sacred and cherished possessions of society; that ifthe federal exclusion rule were not adopted the secrecy and privacy ofthe home could no longer be maintained, and the age-old tradition that"a man's home is his castle" would no longer remain fixed in the heartsof mankind as the most comforting security. Youman v. Common-wealth, 189 Ky. 152, 224 S. W. 860 (1920). Professor Wigmore callsthis "misguided sentimentality." Sec. 2184.As a matter of fact if the federal exclusion rule is adopted for thispurpose the principle that "the means adopted should be adapted tothe end sought" is not being followed, for it does not cure the evil-The officer is not punished by permitting the criminal to go free. If360 KENTUCKY LAw JOURNALthe high-handed policeman gloats in rampaging thru a man's houseunder apparent color of authority, it is no deterrent to him that thpconviction fails by virtue of his unlawful act. We should remedy thesituation, not by creating another evil, but by appropriate legislationto destroy it directly.Even the federal courts will admit the evidence if there is a validsearch warrant. They do not, in their argument as to the practicalconsequences, go behind the issuance of the search warrant and letjthe test be probable cause for the issuance of it. The small amountof probable cause required to evade the rule permits the same evil toremain. "A Critique of the Carroll Case," 29 Columbia Law Review1068.If it is the right of the citizens to remain secure in their homesand not have their privacy disturbed by officers of the law that thecourts seek to protect, why is it then "they are not so scrupulous aboutevidence brought to them by others"? People v. Defore, supra. Bur-deau v. McDowell, 256 U. S. 465 (1921). Where a private detectiveseized the evidence illegally for the purpose of using it for prosecutionin a criminal case. Schroeder v. U. S., 7 Fed. (2d) 60 (1925). Wherea city policeman procured liquor from a car without a search warrantor probable cause. In both of these cases the court admitted the evi-dence.Thus, having disposed of the practical argument, we will look tothe contention that the admission of such evidence would be unconsti-tutional. The Boyd case said that the fourth and fifth amendmentsshould be construed together, and that each was to throw light on theother in the interpretation of both. This seems to be a hard doctrineto support. First, let us look to the history behind the two amend-ments. The basis for the fourth was an outgrowth of the protest inMassachusetts against the Payton Case. Quincy, Mass. Reports 51(1761), where it was held that general writs or "writs of assistance"might be legally granted, and the officers might, by that authority,search houses at will. This doctrine was also in question in Entick v.Carrington, 19 How. St. Tr. 1030 (1765) where the issuance of generalsearch warrants was held to be illegal. The provision against self-incrimination, however, was embodied in the law before this time. Ithad its origin in the opposition by the law courts in England to the'ex-officio' oath of the ecclesistical courts during the 16th and 17th cen-tury. It was passed on in Liburn's Trial, 3 How. St. Tr. 1315 (1636-1645) where it was held that defendant was not obliged to take an oathwhich would force him to answer all questions asked him. Wigmoreon Evidence, Sec. 2250. It will also be observed that the fourth amend-ment is composed exclusively of the provision against unreasonablesearch and seizure and requisites for a warrant to search, while thereare five distinct provisions in the fifth amendment. It would seemvery logical that had the framers of the constitution intended that theself-incrimination clause be construed along with the search and seizureprovision, they would have made it a part of that amendment ratherSTUDENT Nomsthan inserted it into another amendment the provisions of which didnot so strikingly "throw light on and help to interpret it."It is illogical to suppose that these two amendments can be con-strued together. Wigmore on Evidence, See. 2264, p. 868. One isdesignated to protect an accused against compulsory testimony againsthimself in a criminal trial, and the other to punish the wrongful inva-sion of the home or unwarranted seizure of property, and renderinvalid legislation or judicial decisions having such effect. Lawrencev. State, 103 Md. 17, 63 AtI. 96, 104 (1906).We will now attempt to show that the self-incrimination clause isnot violated by the admission of evidence illegally seized. There is adirect split of authority as to whether this clause applies to evidenceother than strictly testimonial acts of the defendant. Banks v. State,207 Ala. 179, 93 So. 293 (1922) says that it does not. Blum v. Statej94 Md. 375, 51 AtI. 26 (1902) says that it does. It would seem tho,that to hold that it is self-incrimination to give as evidence propertyof the defendant illegally seized would be to give a construction tothat provision that it does not merit.Everyone will admit that the property, if procured legally, wouldnot be inadmissible. Is it any the less incriminatory, any the lessinvoluntarily given, or any the less the property of the accused toadmit it in those cases? People v. Defore, supra, p. 589. As alreadyshown, the courts will admit the evidence if seized illegally by privatepersons. What is the difference between an officer acting wholly outsidehis authority and a private citizen? They are subject to the sameactions. They have committed the same act. Since the seizure is in noway authorized by the government it cannot be deemed as committedby it. The officer is no longer an agent of the state, but a private tres-passer. He, and not the government is responsible for that trespass.Commonwealth v. Wilkins, supra, p. 13. The use of such evidence mightbe as injurious to the accused as a confession forced from him by tor-ture, but since the constitutional provision is not violated the injuriousconsequences are not to be taken into consideration. Commonwealthv. Dabbicenio, 290 Pa. 174, 138 Atl. 679 (1927); Commonwealth v. Hun-singer, 290 Pa. 185, 138 AtI. 683 (1927). Hence, "documents or chattelsobtained from the person's control without the use of process againsthim as a witness are not in the scope of the privilege." Wigmore onEvidence, see. 2264, p. 865.Let us now observe the other constitutional provision, which Is animmunity against unreasonable search and seizure. Even less, can itbe argued that the admission of evidence illegally seized is a violationof this amendment. First, looking at the context of the amendmentitself, the provision is against unreasonable rather than illegal searchand seizure. Unreasonable means not according to reason, whileillegal means not according to law. A search and seizure mightbe absolutely unreasonable and be at the same time accordingto law, were it not for this amendment. Hence, it would seemapparent that the purpose of this amendment was to prevent theK. L. J.-12KENTUCKY LAW JOURNALagencies of the government from making legal searches and seizuresthat are unreasonable. It seems as tho this must necessarily be theextent of the immunity. People v. Mayen, 205 Pac. 435, p. 441. Bythe federal exclusion rule a double immunity is given the people. Oneagainst the legalization of a trespass, and the other affecting a rule ofevidence. There is no provision that after the trespass is committedthe evidence obtained in the course of the illegal act shall ;aot bdadmitted. 19 Ill. Law Review 307. It might be urged that the admis-sion of the evidence condones the method of obtaining it. But howcan we sustain this argument in the face of the fact that the samecourt will subsequently prosecute the officer for the illegal act and willnot recognize as a defense that the evidence was admitted in a priortrial. The trespass is complete when the property is seized. Thegovernment is not committing an illegal act. The individual is theoffender. "A criminal prosecution is more than a game In which thegovernment may be checkmated and the game lost merely because itsofficers have not played according to rule." McGuire v. United, States,273 U. S. 95, 99 (1927).Finally, there is the fact that the federal exclusion rule violates arule of evidence, in permitting improper grounds for objections. Statev. Fahm, 53 N. D. 203, 205 N. W. 67, 69 (1925). This is not denied bythe courts that support the exclusion rule, and is affirmed by all thegreat authorities on evidence. Wigmore on Evidence, sec. 2183, andGreenleaf on Evidence, sec. 254a. It would appear then that the courtswould entertain some hesitancy in openly violating the rules of pro-cedure laid down for them both by the common law and by their codes.In light of the procedure in the federal courts and in those statecourts that adopt the exclusion rule, is it not strange that the greaimass of laymen wonder at the total inadequacy of the American legalsystem to cope with the present day prevalence of crime? It may bethat the constitutional guarantees discussed in this paper have yieldedbenefits that were not deserved. "Neither of the amendments had agenesis that can be said to have been prophetic of the great reputethey have come to enjoy. My impression is, that so many have beenthe criminals who have worshipped at the shrine of the amendments,and so seldom have honest and law-ablding men had occasion to seektheir protection, that their adulation by the law-breaker has given thepeople at large a false conception of their proper breadth and com-pass." Jno. C. Knott, 74 Pa. Law Review 141.We must be cautious in granting a creature powers that will enableit to be a thorn in the side of its creator, and vigilant to forestall aprotector against wielding a sword that wounds its master.JAB. T. HATCEOMCRIMEs-DUTY TO RETREAT "To THE WArt".-In the Kentucky caseof Gibson v. Com wnwealth, A was killed in a drunken brawl. B andC along with D were convicted of manslaughter. The decision of the134 S. W. 926 (1931).

Admissibility of Evidence Illegally Seized--(Affirmative View)

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Admissibility of Evidence Illegally Seized--(Affirmative View)

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