State Ex Rel. Kuhr v. District Court , 82 Mont. 515 ( 1928 )

On application of Max Kuhr, county attorney for Hill county, this court issued an alternative writ of supervisory control to the district court of Hill county and the judge thereof, commanding the respondents to show cause on May 1, 1928, if any they had, why an order of that court suppressing evidence in a pending criminal case should not be annulled. On the return day respondents appeared by counsel and moved to quash the writ, and the matter was fully argued and duly submitted for decision. From the record the following facts appear:

On December 16, 1927, one Rella Bolton was, by information filed by relator, charged with the crime of unlawful possession of morphine and thereafter moved to suppress the evidence in the hands of the state officials. On the hearing of this motion Rella Bolton showed to the court that on December 8, 1927, she went to the postoffice at Havre and there received a special delivery package addressed to Ruth Foster, under which name she often received mail, and that, as she was leaving the building, she was arrested by the sheriff of Hill county and one Daniel P. Bailey, and the package was taken from her. The county attorney then admitted that, unless restrained, he would use the package and its contents as evidence against the woman on her trial under the information referred to.

On behalf of the state it was then shown that, when the package was received at the Havre postoffice, it was unsealed but so wrapped that its contents were undisclosed and tied up with string; it bore the necessary postage and a special delivery stamp. For reasons undisclosed, the postmaster suspected that the package contained narcotics and called Bailey, United States customs agent, into the office and the two unwrapped the package and found that it contained fifteen grains of morphine. Bailey's authority extended only to the seizure of articles illegally transported into the United States and, as the package did not disclose, externally or internally, that it came from a foreign country, he decided that he was without jurisdiction in the matter and took no further action, except that he told the sheriff of Hill county of his discovery.

On learning of the contents of the package the sheriff went with Bailey to the postoffice where the postmaster again unwrapped the package and he recognized its contents as morphine. The package was then rewrapped and the sheriff and Bailey waited until Rella Bolton received the package and passed out of the postoffice with it in plain sight, when the sheriff placed her under arrest; Bailey received the package from her and handed it to the sheriff.

Relator contends that the arrest and seizure were lawful under the circumstances and therefore the order of suppression was erroneous and worked gross injustice upon the state in that it deprived the prosecution of evidence on which to convict, for which it has no remedy by appeal or otherwise; while counsel for Rella Bolton, appearing herein for respondents, contends that the arrest was unlawful and the taking of the package constituted an unreasonable seizure, in violation of the Fourth Amendment to the federal Constitution and section 7 of Article III of the state Constitution, as state and federal officers were acting jointly. A determination as to which of these positions is correct depends upon the application of the following propositions of law to the facts and circumstances set out above.

1. A peace officer may make an arrest without a warrant either (1) for a public offense committed in his presence, or (2) when a person arrested has committed a felony, although not in his presence, or (3) when a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it. (Sec. 11753, Rev. Codes 1921.)

The possession of morphine, except under certain circumstances enumerated in the statute, constitutes the commission of a felony (sec. 3200, Rev. Codes 1921, and sec. 3202, Id., as amended by Chap. 38, Laws of 1925).

"The utmost that can be exacted of an officer who arrests[1] without a warrant is that the circumstances shall be such that upon them alone he would be justified in making a complaint upon which a warrant might issue," and in either making complaint or making an arrest without a warrant the officer need not have actual personal knowledge of the facts which constituted the offense. (State v. McCaffery, 16 Mont. 33, 40 P. 63; Stateex rel. Neville v. Mullen, 63 Mont. 50, 207 P. 634.)

The "reasonable cause" for believing the party arrested to have committed a felony is the same as "probable cause" for the institution of a criminal prosecution or seizure without process. (5 C.J. 417; State ex rel. Neville v. Mullen, above.)

The necessary elements of the grounds on which the officer may act are a belief in the person's guilt, based either upon facts and circumstances within the officer's own knowledge, or upon information imparted to him by reliable and credible third persons, provided there are no circumstances known to the officer materially to impeach the information received. (Burt v. Smith, 181 N.Y. 1, 2 Ann. Cas. 576, 73 N.E. 495, quoted in State ex rel. Neville v. Mullen, above.)

Where an arrest is lawfully made, the arresting officer may[2] take into his possession any articles in the possession of the party arrested which may reasonably be of use on the trial. (State ex rel. Neville v. Mullen, above.)

When, therefore, the sheriff was informed by federal officers,[3] whose reliability and credibility is not questioned, that the package in question contained morphine and he thereafter saw the package in the possession of the person arrested, the facts and circumstances in his possession constituted reasonable cause for his belief that that person had committed, or was then committing, a felony, and he was justified in making the arrest without a warrant, even without his personal inspection of the contents of the package, and, on making the arrest, he was warranted in taking possession of the package and holding it as evidence; indeed, it was his duty to do so.

2. Counsel for respondents, however, urges that, as Rella[4] Bolton told the officer that she did not know what was in the package as she had not opened it, the officer could not know that a crime was being committed.

Section 3200, above, makes possession of the drugs therein enumerated prima facie evidence of guilt and her lack of knowledge on the subject, if it existed, is a matter of defense to be passed upon by the jury. Further, the reasonable or probable cause required "does not depend on the actual state of the case in point of fact, for there may be probable cause for commencing prosecution against a party although subsequent developments may show his absolute innocence" (quoted in Stateex rel. Neville v. Mullen, above).

3. Conceding for the purposes of this opinion that the[5] information that the package contained morphine was originally obtained by the federal officers by illegally prying into a private piece of mail matter, did that illegal act render the evidence, later obtained, subject to suppression?

The Fourth Amendment to the Constitution of the United States is a prohibition against federal officers only and has no application to states or state officers. (Hammond Packing Co. v. State, 81 Ark. 519, 126 Am. St. Rep. 1047, 100 S.W. 407; affirmed, 212 U.S. 322, 53 L. Ed. 530, 29 Sup. Ct. Rep. 370;National Safe Deposit Co. v. Snead, 250 Ill. 584, Ann. Cas. 1912B, 430, 95 N.E. 973; affirmed, 232 U.S. 58, 58 L. Ed. 504,34 Sup. Ct. Rep. 209; Mr. Chief Justice Taft in Gaines v. Stateof Washington (U.S.), 72 L.Ed. ___, 48 Sup. Ct. Rep. 468, opinion rendered May 14, 1928.)

Likewise, the similar provisions against unreasonable searches and seizures found in state Constitutions are restrictions upon the activities of state officers alone and cannot be invoked as against independent action by federal officers or private persons. (State v. Gardner, 77 Mont. 8, 52 A.L.R. 454,249 P. 574, and cases there cited; State v. Lacy, 55 N.D. 83,212 N.W. 442; Imboden v. People, 40 Colo. 142, 90 P. 608;Davidson v. Commonwealth, 219 Ky. 251, 292 S.W. 754; State v. Barrett, 121 Or. 57, 254 P. 198.)

The provisions of the "Bill of Rights" against unreasonable searches and seizures "was not intended to furnish an asylum for the violators of the law, but a protection against oppression." (Fitzpatrick v. State, 169 Ala. 1, 53 So. 1021.) So while the courts jealously guard against a circumvention of this provision by the procuration of others to do that which the officers themselves may not do, whether those officers be acting for the state or the federal government, where evidence unlawfully obtained comes innocently into the hands of the officers its use cannot be prevented by the courts.

In a recent opinion by the supreme court of the United States it was held that evidence, obtained by New York troopers acting independently and without the knowledge of federal agents and later turned over to the federal officers, was properly suppressed (Gambino v. United States, 275 U.S. ___, 52 A.L.R. 1381, 72 L. Ed. 139, 48 Sup. Ct. Rep. 137, and this opinion was heralded as a reversal of former decisions of that court. However, the case made against Gambino was for illegally transporting liquor from Canada to the state of New York after that state had repealed it prohibition laws, and the opinion is based solely upon the showing that the troopers were acting, under the direction of the governor of New York, and under the provisions of the federal law solely in aid of federal enforcement of the federal prohibition laws and thus directly co-operating with federal agents, although not acting under their direction or with their knowledge. In the opinion Mr. Justice Brandeis declared that "the conclusion here reached is not in conflict with any of the earlier decisions of this court in which evidence wrongfully secured by persons other than federal officers has been held admissible in prosecutions for federal crimes. For in none of those cases did it appear that the search and seizure was made solely for the purpose of aiding the United States in the enforcement of its laws."

Of the opinion in Weeks v. United States, 232 U.S. 383, Ann. Cas. 1915C, 1177, L.R.A. 1915B, 834, 58 L. Ed. 652,34 Sup. Ct. Rep. 341, in which it was held that evidence obtained by police officers in making an unlawful arrest and an unlawful search was admissible in a federal prosecution, Mr. Justice Brandeis, in the Gambino opinion, said: "It was not shown there that either the arrest or search was made solely for the purpose of aiding in the prosecution of the federal offense. A law of the state made criminal the acts with which the defendant was charged, and the seizure may have been made in enforcing the state law."

In the case at bar, when the postmaster and the customs agent opened the package addressed to Rella Bolton as "Ruth Foster," it is clear that they were not acting in any manner in aid of the prosecution of a state offense, but solely for the purpose of determining whether a federal law had been violated. Having determined that he had no jurisdiction over the nonmailable matter found in the mail, and knowing that the state law prohibited possession of such article, Bailey notified the state officer that an offense against a state law was about to be committed and thereafter proved his statement by showing the sheriff the contents of the package. It is true that Bailey thereafter remained as an interested spectator and assisted the sheriff to the extent of receiving the package from the person arrested, but the illegal act by which the woman's constitutional rights had been violated, if there was such a violation, had already been accomplished and that without the knowledge, co-operation or collusion of the sheriff and not in his aid. The sheriff's situation with reference to the knowledge obtained was no different than it would have been had a private citizen advised him that, by an illegal entry, such citizen had discovered a cache of stolen goods and thereafter the informer had gone with the sheriff to point out the place and then assisted the sheriff in arresting the thief as he emerged with the stolen goods. Acts of this nature are not such as render the evidence inadmissible and do not constitute a violation of our constitutional provision relied upon. (State v. Gardner, above; Brown v. United States (1926, C.C.A. 9th),12 Fed. 2d 926.)

The order of the district court suppressing the evidence is, therefore, annulled.

Order annulled.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS and STARK concur.