State v. Cairo , 74 R.I. 377 ( 1948 )

I am of the opinion that the search of defendant Cairo's home without his consent and the seizure of his possessions therein were violations of article I, sec. 6, of the constitution of this state. The admission in evidence over his objection of those things was in my opinion tantamount to compelling him to give evidence against himself in violation of sec. 13 of that article, which guarantees an accused against being compelled in a court of common law to give evidence criminating himself. These rights are comparable in kind and degree to those contained in the fourth and fifth amendments of the bill of rights of the federal constitution, and are couched in almost identical language. The United States supreme court has always given those amendments a liberal construction according to their spirit rather than a narrow construction consonant merely with their letter. It is my opinion that the same rule should guide this court in construing secs. 6 and 13 of our state constitution. I think that the court, in the instant case, has not followed that salutary rule and therefore I cannot subscribe to their opinion insofar as the defendant Cairo is concerned.

The application of that rule by the supreme court, persisted in despite criticism of learned commentators on the law of evidence, has resulted in it being now firmly settled federal law that evidence obtained by search and seizure by federal officers in violation of the fourth amendment is inadmissible against the accused whose right to be free from such search and seizure has been violated. Boyd v. UnitedStates, 116 U.S. 616. In that case the supreme court linked the fourth and fifth amendments together insofar as the clause against self crimination in the latter amendment was concerned. This has been called by a distinguished authority in jurisprudence as the great creative act of the court. "The Supreme Court's Construction Of The Self-Incrimination Clause," Corwin, 29 Mich. L. Rev. 203. In that article, after reviewing a series of cases which reaffirmed and followed the Boyd case, the author further says that the principle enunciated in that case "has undergone not only decisive ratification by the Supreme Court, but also progressive acceptance in the state courts, until today it is the prevailing doctrine in the majority of jurisdictions that have had occasion to express themselves on the point in a legally binding way." That article was written in December 1930. Since then the supreme court has, if anything, given greater strength and wider scope to the underlying principle of the Boyd case.

The supreme court as presently constituted is a vigilant and vigorous protector of the rights guaranteed in the bill of rights and especially the fourth and fifth amendments. See UnitedStates v. Di Re, 332 U.S. 581, and Trupiano v. UnitedStates, 334 U.S. 699. In the latter case the court repeated a declaration which it had made in one form or another in numerous cases since the Boyd case. It said at page 700: "* * * the Fourth Amendment is a recognition of the fact that in this nation individual liberty depends in large part upon freedom from unreasonable intrusion by those in authority. It is the duty of this Court to give effect to that freedom." In the former case answering the argument of necessity the court stated its lack of sympathy with such argument as follows at page 595: "It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment." If the supreme court had not adopted the view that evidence obtained in violation of the fourth amendment must be excluded, Professor Zechariah Chafee, writing on "The Progress Of The Law, 1919-1922," says that that amendment would be a dead letter, and he adds that Silverthorne Lumber Co. v. UnitedStates, 251 U.S. 385, which applied the principle further, gives added strength to the constitution. 35 Harv. L. Rev. 673, 695.

Did the defendant in the case at bar act seasonably to exclude the illegal evidence? I think he did. In my opinion he was not bound under our practice to move before trial to suppress the evidence. There is no greater interruption to the trial to pause and inquire into the legality of evidence alleged to have been seized in violation of the fourth amendment than there is to inquire into the legality of a confession which involves the constitutional guaranty against self crimination. There are other occasions also when a trial is interrupted for the purpose of collateral inquiry such as the qualifying of an expert witness and establishing the competency of a child witness. Therefore the common-law rule should not be applied against due inquiry as to whether evidence has been obtained in violation of a constitutional right of the accused. It is the duty of this court to protect an accused in the enjoyment of such rights. Article I of our state constitution expressly declares that the enforcement of such rights "shall be of paramount obligation in all legislative, judicial, and executive proceedings."

The federal rule on this matter is no longer a hard and fast one requiring a motion for return of or to suppress such evidence before trial. In Agnello v. United States, 269 U.S. 20, 34, no such motion was made; nevertheless the court declared that the illegal evidence should be excluded. "Where, by uncontroverted facts," the court said, "it appears that a search and seizure were made in violation of the Fourth Amendment, there is no reason why one whose rights have been so violated and who is sought to be incriminated by evidence so obtained, may not invoke protection of the Fifth Amendment immediately and without any application for the return of the thing seized."

Previously the court had said in Gouled v. United States,255 U.S. 298, 313, of the rule that the court would not pause in the course of a trial to inquire into the legality of otherwise competent evidence, that it was merely one of practice and "must not be allowed for any technical reason to prevail over a constitutional right." See also Amos v. United States,255 U.S. 313. In his article in the Michigan Law Review, supra, Professor Corwin says, at page 26, that as a result of theGouled and Amos cases the rule requiring action before trial is now "confined practically to cases in which the accused has been evidently negligent in the assertion of his rights." For a like view see "Recent Developments In The Law Of Search And Seizure," Fraenkel, 13 Minn. L. Rev. 1.

Even under the federal rule, therefore, defendant's objection to the admission of the articles seized in a search of his home without his consent ought to have been sustained. There was no controversy as to the manner in which the articles were obtained. The state in introducing the evidence admitted that they were obtained as a result of a search without a warrant and without defendant's consent thereto. In such circumstances there was indisputably a violation of sec. 6 of our state constitution, unless it can be said that Mrs. Cairo consented to the search either as the agent of her husband or in her own right as a co-owner of the house with her husband. In my opinion neither ground is sound in law.

Assuming for the moment, without deciding, that Mrs. Cairo actually gave such free and voluntary consent, her action would not bind her husband and foreclose him from the assertion of his constitutional right. In the first place a wife is not the agent of her husband to license a search of his house for stolen goods.Humes v. Taber, 1 R.I. 464. In the second place ownership of the house in common with her husband does not confer authority upon the wife to license a search of the house and a seizure of her husband's possessions. If mere ownership of title were sufficient to enable the owner to authorize a search of the premises then any landlord could authorize a search of his tenant's home and thus deprive him of the full protection of the constitutional privilege. That is absurd.

The rights guaranteed by secs. 6 and 13 of the state constitution are personal to the accused. They are neither limited by nor depend upon any mere question of title. A man's home is his castle whether it be a mansion which he owns or a tenement or room which he rents. Mrs. Cairo's co-ownership of her husband's house was therefore no more potent to vest her with authority to waive his constitutional rights as against the state than it would have been if she had no title at all to the property. Neither as his wife nor as his co-tenant of real property were those rights in her keeping. In my opinion it is unfortunate that this court has today by its decision given the sanction of law to such a claim.

But even if I could concur that such was the law I should nevertheless feel constrained to hold that in the circumstances in which Mrs. Cairo was placed on the night the accused's home was searched there was and could be no real free and voluntary consent on her part. The facts here are not unlike those inAmos v. United States, supra, where the supreme court refused to inquire into the question of consent, saying: "* * * for it is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected." I take the same view of Mrs. Cairo's situation in the case at bar. The Kentucky supreme court in a similar case where a wife invited into her husband's house state officers who had come without a warrant to search the premises held that there was implied coercion of the wife and that the articles seized should have been excluded as evidence upon the defendant's objection thereto.Duncan v. Commonwealth, 198 Ky. 841. See also State v.Lindway, 131 Ohio St. 166.

Since I am of the opinion that the evidence was clearly obtained in violation of sec. 6, that the admission of it against Cairo was a further violation of sec. 13, and that he seasonably asserted those constitutional rights, I think that he is entitled to a new trial. In view of this conclusion, I express no opinion on other questions raised by Cairo. As to the defendant Silvio, I concur in the court's opinion.