Wilder v. Miller , 190 Wis. 136 ( 1926 )

Vinje, C. J.

The seizure and sale of the automobile and liquor in question were made under the provisions of sub. (2), par. (j), and sub. (23), sec. 165.01, Stats. The first subsection cited provides:

“The commissioner or any peace officer may examine any vehicle he has good reason to believe is being used in unlawfully transporting liquors and may open and examine any package contained therein or any package in 'the possession of a carrier which he has good reason to believe contains contraband liquors.”

The later subsection cited provides:

“When the commissioner, his deputies or any peace officer shall discover any person in the act of unlawfully transporting intoxicating liquors in any wagon, automobile, water or air craft, or other vehicle, it shall be his duty to seize the same together with any team used in connection therewith, and arrest any person in charge thereof.”

Sec. 11, art. I, of our constitution provides:

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Under these statutory and constitutional provisions the question arises whether the search and seizure in this case were valid. Plaintiff relied upon the case of Hoyer v. State, 180 Wis. 407, 193 N. W. 89, to sustain his claim that the search was unlawful. In that case the officer testified that he smelled something “funny” before he began the search. He did not claim that he smelled the odor of eau de vie which he afterwards found in the car, though he said he was familiar with its odor. It also appeared in that case that alcohol had been put into the radiator and that it was broken and leaked. Upon such testimony the court held that there was no reasonable cause for the search and hence it was invalid. Plere we have the testimony of the officer that he smelled alcohol from the car before he touched it, and the evidence shows that a can of alcohol was leaking, from which the smell no doubt came. The officer was therefore, by the sense of smell, advised that the car contained alcohol. This information constituted reasonable grounds for the search and distinguishes the case from that of Hoyer v. State.

The constitution does not prohibit all searches without a search warrant, but only unreasonable searches, and statutes like ours, providing for the search and seizure upon probable cause of vehicles carrying contraband articles, have been held not violative of either state or federal constitutional provisions relative to searches and seizures. Carroll v. U. S. 267 U. S. 132, 45 Sup. Ct. 280. This case contains a full and illuminating discussion of the subject, and it says:

“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”

See, also, People v. Cardella, 233 Mich. 505, 207 N. W. 141, and Hester v. U. S. 265 U. S. 57, 44 Sup. Ct. 445.

Since we hold that the search and seizure were lawful, it becomes unnecessary to determine the validity of plaintiff’s lien.

By the Court. — Judgment affirmed.