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(220 Mich. 155, 189 N. W. 1006.) cannot restrict the operation of a rant was issued early enough in the statute expressly covering the sub- day to permit its execution in the dayject.

time does not make illegal its execuSearch and seizure delay in execu- tion in the night. tion effect.

[See note in 10 A.L.R. 1556.] 6. The mere fact that a search war

Search and

seizure-warre- rant--statute

other

statutes.

earlier one.

APPLICATION by plaintiff for a writ of mandamus directing defendant to reinstate a certain case and proceed with the examination of persons charged with violation of the liquor law. Writ granted.

The facts are stated in the opinion of the court.

Messrs. Paul W. Voorhies in propria The legislative purpose, as expersona and W. McKay Skiliman for

pressed in some of the earlier acts, plaintiff.

limiting service of search warrants Messrs. Percy W. Grose and How

to the daytime, unless specially auard H. Colly for defendant.

thorized otherwise, is easy of comMoore, J., delivered the opinion of prehension to one familiar with the the court:

history of such warrants; but it The recorder held that a search does not follow that warrant duly issued under Act No. the legislature may 338, Public Acts 1917, as amended not omit the by Act No. 99, Public Acts 1921, striction, or that, tion to daytime

limiting execucould not be executed in the night- when in fact omit- -effect on time, and, upon the preliminary ex- ted, it is to be added amination of two persons charged by the court as a part of the law. with violation of the liquor law, re- At early common law the writ fused to consider the evidence pro- only issued to search for stolen cured under the search warrant, and goods, and its exe

-curbing later discharged the accused.

cution seems to have statate by We are asked to issue the writ of been limited to the mandamus directing the recorder to daytime. The purpose and province reinstate the case and proceed with of the writ have expanded under legthe examination. The search war- islative enactments to effect aderant was issued during the forenoon quate enforcement of the criminal of November 21, 1921, and the of- law, and we may not go to old enficer made the search about 11 actments for a curb upon a later one,

o'clock that night. nigl.

so long as such later statute is clear It is urged in support of the hold- and unambiguous, and without limot vioi ing of the recorder that all of the

itation to execution in the daytime. statutes of this state authorizing the There seems to be nothing amissuance of search warrants fall biguous about this statute. Το

vithin the doctrine, in pari materia, or search

grasp its clear meaning, we are not provision nd, as some of them limit search to

driven to examine the policy undermited.

le daytime, unless special cause is lying or expressed in previous statin pari own and authority granted in the

utes authorizing search warrants. irrant to search in the nighttime, The rule in pari materia cannot be search warrants should be held to

invoked here, for the reason that the s statute governed by the policy of execu- language of the statute is clear and

unambiguous. As was said in :p policy, the statute under which the Schaeffer v. Burnett, 221 Ill. 315, 77 bsequent found in rch warrant was issued contains N. E. 546: "In the construction of from the provision limiting service to the

statutes it is within the province of ytime, and the attorney for the courts to determine, from the words ople insists that the search was used, what was intended by the legghtfully made in the nighttime. islature, and in so doing resort may

mon law

struction-in

be had to former and other existing served in the nighttime as in the laws; but where the language used daytime; and a direction in a waris clear and unambiguous, and there rant to serve it, without limitation is no room for construction, no duty as to the hour of the day, is a didevolves upon courts to determine or rection to serve it in the nighttime speculate as to the motives impelling as much as in the daytime. The inlegislative action. Whether or not tention of the legislature to aua statute is productive of injustice, thorize the execution of the warrant inconvenience, is necessary, or in the nighttime is shown by prootherwise, are questions with which viding for and by prescribing a di. courts, as such, have no concern.” rection in the warrant which in

The rule in pari materia does not cludes that, instead of the direction permit the use of a previous stat- to search in the daytime, which it Statutes-con

ute to control by required in the ordinary search war

way of former pol- rant." pari materia.

icy the plain lan- It is claimed that it is unreasonguage of a subsequent statute, much able to execute a search warrant in less to add a condition or restric- the nighttime, and so recognizedtion thereto found in the earlier at common law, and in earlier statstatute and left out of the later one. utes in this state, except when speThe contention made, if allowed, cially authorized. If execution of a would go beyond the construction of search warrant in the nighttime the statute, and ingraft upon its falls within the term of unreasonprovision a restriction which the able search, prohibited by the Conlegislature might have added, but stitution, then, of course, no statute left out.

could authorize such execution. The The fact that in some previous provision in some of the statutes statutes the legislature confined ex- expressly permitting execution of ecution to the daytime, except upon search warrants in the nighttime a showing and express authority in does not violate the

Search and the warrant to execute the same in constitutional pro- seizure-constita. the nighttime, discloses no settled hibition against un- cution of warpolicy binding upon subsequent leg- reasonable searches rant in night. islative enactments. Neither does and seizures, neither does a statute the policy of the common law per- not limiting search to the daytime mit us to place

so offend. -common-law

the restriction conlimitation,

It is also claimed the search was tended for in the illegal, because made in the nightstatute. We are dealing here with time under a warrant issued in the statutory authority, and not process daytime, at a period of the day when under the common law.

it might have been executed in the In Com. v. Hinds, 145 Mass. 182, daytime. It is true that execution 13 N. E. 397, the question here pre- of a search warrant sented was before the court, and up

should speedily fol- delay in erecuon consideration of earlier statutes

low its issuance, but of that state, limiting the execution

we discover no good reason for holdof search warrants to the daytime, ing the point well taken in this inand the claim that a subsequent stance. statute authorizing a search war- The learned Recorder was in error rant without limitation as to the

in his holding, and he is directed to hour of the day should be executed

reinstate the case and proceed with only in the daytime, the court said: the examination. “The general rule is that process, The writ will issue, but without civil or criminal, can be as well costs.

tion-effect.

ANNOTATION.

Constitutional guaranties against unreasonable searches and seizures as applied

to a search for or seizure of intoxicating liquor.

1. Introduction, 709. II. Intoxicating liquors as proper sub

ject of search and seizure, 709. III. Conformity to constitutional require

ments: a. Generally, 710. b. Necessity of warrant for search

or seizure: 1. Cases holding search war.

rant necessary, 711. 2. Cases holding search war

rant not necessary: (a) Statement, 715. (b) Under statute, 716. (c) In case of lawful ar

rest, 716. (d) Search of premises of

third party, 718.
(e) Licensed business,

719.
(f) Consent, 720.
3. Particular circumstances:

(a) In general, 724.
(b) Private dwelling, 724.
(c) Buildings in general,

728.

III. b, 3—continued.

(d) Bars and soft-drink

places, 730. (e) Fields, woods, etc.,

732. (f) Automobiles, 733. (g) Things carried by a

person, 739. c. Sufficiency of showing of prob

able cause: 1. In general, 742. 2. Strict construction, 744. 3. More liberal construction,

750. d. Description of place to be

searched, 751. e. Naming person accused, 753. f. Description of property to be

seized, 754. g. Manner of executing warrant,

755.
h. Time for execution of warrant,

756.
i. General matters, 757,

j. Miscellaneous, 759. IV. Miscellaneous, 760.

1. Introduction. This annotation is supplemental to the annotations in 3 A.L.R. 1514, and 13 A.L.R. 1316.

For construction and effect of the Volstead Act in general, see the annotation in 10 A.L.R. 1553.

For Federal constitutional or legislative provisions as to intoxicating liquors as affecting state legislation, see the annotation in 10 A.L.R. 1587, and the supplement thereto in 11 A.L.R. 1320.

For indictment based on evidence illegally seized, see the annotation in 24 A.L.R. 1432.

For admissibility of evidence obtained by illegal search and seizure see the annotation in 24 A.L.R. 1408.

Many of the cases in the last-mentioned annotation, in 24 A.L.R. 1408, relate to intoxicating liquors. It will be seen that in those jurisdictions where it is held that evidence obtained by illegal search and seizure is admissible, the question is generally not reached as to whether the

search and seizure were illegal, that being immaterial in such jurisdictions, where the question arises as to the admissibility of evidence. II. Intoxicating liquors as proper sub

ject of search and seizure. (Supplementing annotations in 3 A.L.R. 1515, and 13 A.LR. 1317.)

In Baker v. State (1923) Tenn. -, 248 S. W. 548, the court, after stating that counsel did not point out wherein the Tennessee Storage Act violated the search and seizure clause of the Tennessee Constitution, said: "It cannot be contended, under the facts, that the search was unlawfui, for the officers were advised that the defendant was engaged in unlawfully selling intoxicating liquors at his place of business, and, upon such information, they procured a search warrant, and went to his place of business and seized the bottles of whisky that the defendant undertook to make away with. In other words, under the facts disclosed by the rec

No ques

ord, we are of the opinion that, if violated by receiving the exhibits in there was a search in this case, it was evidence." not an unreasonable one.

In a civil action for illegal search tion was raised as to the seizure of of an automobile under a South Carothe whisky being unlawful. The lina search warrant, it was said: liquor was not introduced in evidence, “Every constitutional or statutory and no motion was made for its re- provision must be construed with the turn."

purpose of giving effect, if possible, Where the petitioner objected that to every other constitutional or statuthe search and seizure in question tory provision, and in view of new were made for the purpose of obtain- conditions and circumstances in the ing evidence to be used against peti- progress of the nation and the state. tioner, the court said: “It has not been

Hence, the provisions of Fedmade to appear that this search war- eral and state Constitutions forbidrant was used ‘solely for the purpose ding unreasonable searches must be of making search to secure evidence.' construed in the light of the constitu

Nor does the mere fact that tional provision against the sale, manthe property thus lawfully seized may ufacture, and transportation of intoxbe used as evidence against the owner icating liquors. No man can have any thereof necessarily invalidate such right of property in contraband liquor, seizure, nor the search warrant on or any right to transport it. As soon which the latter was based.” Bar- as it comes into existence, it is forber's Petition (1922) 281 Fed. 550. feited.” Elrod v. Moss (1921) 278

In Sioux Falls v. Walser (1922) 45 Fed. 123. S. D. 417, 187 N. W. 821, where there But, on the other hand, see United was a conviction of violation of a city States v. Boasberg (1922) 283 Fed. ordinance prohibiting the manufac- 305, where it was said: “Search warture of wine, the court said: “The rants under the National Prohibition property seized was, at the time and Act are regulated by statutes that are place of seizure, being used and in- to be strictly construed not only betended to be used not only in violation cause of derogation of fundamental of $ 25, National Prohibition Act, not principles of individual liberty, but only in violation of g 10,244, Rev. Code also because of the constitutional in1919 of this state, but also in viola

hibition." tion of the ordinance for violation of

See also infra, III. b, 1, for cases which appellant was convicted.

where liquors, etc., seized, were orThe evidence shows that the officers

dered returned. were admitted to the house without III. Conformity to constitutional use of force or claim of official au

quirements. thority; that they then made known

a. Generally. their mission, and that they were act

(Supplementing annotation in 13 ing under a search warrant; that it

A.L.R. 1317.) was under such warrant that they

"Search warrants under the Nationmade their search and seizure." And

al Prohibition Act are regulated by after further recital of the circum

statutes that are to be strictly constances, including admissions of the

strued, not only because in derogation defendant, the court continued: “It

of fundamental principles of individwill be seen from the above that the ual liberty, but also because of the exhibits were property which, because constitutional inhibition.” United of its use, stood forfeited, -property States v. Boasberg (1922) 283 Fed. to which defendant could claim no 305. title. No right of defendant was vio- In People v. Musk (1922) Mich. lated by its seizure; and this regard- 192 N. W. 485, it was said: “The less of whether the search was right- Constitution and legislative acts of ful. The seizure being rightful, no this state prescribe, as a prerequisite constitutional right of defendant was to search one's home or possessions,

re.

that the place to be searched and the thing to be searched for shall be alTeged on oath. These elements have always been regarded as important and indispensable to valid process. Bullock v. Ward (1914) 182 Mich. 448, 148 N. W. 651. The proceeding is a drastic one, and legislation for its enforcement should be strictly construed.”

In Zimmerman v. Bedford (1922) 134 Va. 787, 115 S. E. 362, it was held that the search warrant in question was not a general warrant of search or seizure prohibited by $ 10 of the Virginia Constitution, which provided: “Sec. 10. General Warrants of Search or Seizure Prohibited.—That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.” The warrant conformed to and issued upon an affidavit stating that “I," affiant, “do hereby make affidavit that I believe Ed Zimmerman has liquor or other ardent spirits in his possession (house & stable) on W. Main St., in the town of Bedford, which said ardent spirits are held against the laws of Va. & the ordinance of the town of Bedford, Va. I have watched his place and from the nature of the people going in and out of his premises, I am satisfied he has liquor there."

275 Fed. 49; United States v. Armstrong (1921) 275 Fed. 506; Connelly v. United States (1921) 275 Fed. 509; Berry v. United States (1921) 275 Fed. 680; United States v. Ray & Schultz (1921) 275 Fed. 1004; O'Connor v. Potter (1921) 276 Fed. 32; Central Consumers' Co. v. James (1922) 278 Fed. 249; United States v. Alexander, 278 Fed. 308; United States V. Boasberg (1922) 283 Fed. 305; Giles v. United States (1922) 284 Fed. 208; United States v. Jajeswiec (1923) 285 Fed. 789; Salata v. United States (1923) 286 Fed. 125; United States v. Innelli (1923) 286 Fed. 731; United States v. Kaplan (1923) 286 Fed. 963; United States v. Casino (1923) 286 Fed. 976; Jozwich v. United States (1923) 288 Fed. 831; Pressley v. United States (1923) 289 Fed. 477. See also United States v. Myers (1923) 287 Fed. 260.

Delaware. See State v. Chuchola (1922) — Del. 120 Atl. 212.

Florida. See Tillman v. State (1921) 81 Fla. 558, 88 So. 377 (search of person).

Indiana. Thompson State (1921) Ind. — 130 N. E. 412; Callender v. State (1923) Ind. 138 N. E. 817.

Kentucky.-Ash v. Com. (1922) 193 Ky. 456, 236 S. W. 1032; Helton v. Com. (1922) 195 Ky. 679, 243 S. W. 918 (search of person); Colley v. Com. (1922) 195 Ky. 706, 243 S. W. 913; Price v. Com. (1922) 195 Ky. 711, 243 S. W. 927; Cline v. Com. (1922) 195 Ky. 806, 243 S. W. 1019; Mills v. Com. (1922) 195 Ky. 813, 243 S. W. 1022; Mabry v. Com. (1922) 196 Ky. 626, 245 S. W. 129; Carter V. Com. (1923) — Ky. —, 247 S. W. 3; Craft v. Com. (1923) Ky. -, 247 S. W. 722; Holbrooks v. Com. (1923) Ky.

247 S. W. 751 (search of person); Mattingly v. Com. (1923) Ky. — 247 S. W. 938; Taylor v. Com. (1923)

Ky. 249 S. W. 1035; Duncan v. Com. (1923) – Ky. – 250 S. W. 101; Potowick v. Com. (1923) Ky. 250 S. W. 102; Mattingly v. Com. (1923) - Ky. —, 250 S. W. 105; Childers v. Com. (1923) - Ky. 250 S. W. 106; Jordon v. Com. (1923) Ky.

V.

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b. Necessity of warrant for search or

seizure.

1. Cases holding search warrant neces

sary. (Supplementing annotations in 3 A.L.R. 1516, 1517, and 13 A.L.R. 1317.)

There are many recent cases in which it was held that a search for or seizure of intoxicating liquors, etc., without a search warrant or a valid search warrant, was illegal.

United States. United States v. Kelih (1921) 272 Fed. 484; United States V. Mitchell (1921) 274 Fed. 128; Holmes v. United States (1921)

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