State v. Lee , 120 Or. 643 ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant contends that the building where the mash, wort and wash were found was within the curtilage of his dwelling-house, and that the search thereof could not be regularly made without a warrant. It is contended on behalf of the state as follows:

"1. This search was legal because the officer followed his nose and located mash then fermenting and a crime was then being committed in his presence.

"2. That section 9, Art. I of the Constitution has no application to intoxicating liquor, mash, wort, wash or stills, because such are contraband in which there can vest no title and are not property, papers, houses or effects within the meaning of that section of the constitution, because in searching for liquor, mash or stills the officer has not searched or seized property, papers or effects of the defendant."

The character of the premises is relevant only in determining the validity or the invalidity of the search and seizure. Premises other than dwellings have been held within the protection of the Fourth Amendment for example a barn. As construed by the courts from the earliest to the latest times the words "dwelling" or "dwelling-house" have been construed to include not only the main but all of the cluster of buildings convenient for the occupants of the premises, generally described as within the curtilage: McFadden on Prohibition, p. 214. A barn is sometimes held to be within the curtilage.

It will be noticed from the statement in the present case that there is no indication that the building or barn in which the mash, wort, wash and still and liquor were found was in any way used for domestic purposes in connection with the dwelling-house of the defendant, but that while it was once used as a barn, the present purpose to which the building was put was as a distillery. Generally speaking, the curtilage is the space of ground adjoining the dwelling-house, used in connection therewith in the conduct of family affairs and for carrying on domestic purposes usually including the buildings occupied in connection with the dwelling-house. It is the propinquity to a dwelling, and the use in connection with it for family purposes which is to be regarded: 17 C.J. 437, 438.

The question in regard to the search of a dwelling-house is not in this case. Article I, Section 9 of the Constitution of Oregon provides that "no law shall violate the right of the people to be secure in their persons, houses, papers and effects against unreasonable search or seizure * * ".

The Supreme Court of Mississippi, in the case of Moore v.State, 138 Miss. 116 (103 So. 485) (see Cornelius, Search Seizure, p. 179), adopting the reasoning applied in the case ofCarroll v. United States, 267 U.S. 132 (69 L. Ed. 348,45 Sup. Ct. Rep. 280, 39 A.L.R. 790), used the following language:

"It thus appears that the reasonableness of a search or seizure is not determined either at common law or under our statutes by the presence or absence of a warrant therefor. It is a judicial question to be determined by the court in each case, taking into consideration the place searched, the thing seized, the purpose for, and the circumstances under which the search or seizure was made, and the presence or absence of probable cause therefor."

There is no intimation in the present case that the building described as a "barn" was used for any family or domestic purpose, but solely as a distillery building for housing a still and storing articles and products necessary for the manufacture and sale of intoxicating liquors. Illicit mash, stills and intoxicating liquor are contraband. No person can hold title or ownership therein. The Constitution invoked in this case is not applicable to searches and seizures of contraband goods situated and found by an officer in the manner described herein: State v. Pluth,157 Minn. 145 (195 N.W. 789); City of Sioux Falls v. Walser,45 S.D. 417 (187 N.W. 821); United States v. Lindsly,7 Fed. 2d 247.

To justify seizure of property without a warrant in a case like this it must appear that there was a violation of the prohibition law in the presence of the officer: United States v. Giovanetti, 6 Alaska, 454; State v. Rouleau, 68 Mont. 529 (219 P. 1096); Stanley v. State, 82 Okla. 294 (200 P. 229); Ashbrook v. State, 92 Okla. 287 (219 P. 347); Blakemore on Prohibition (2 ed.), 458, § 120.

For the purpose of determining whether or not an officer is justified in making a search and seizure, like the one in question, without a warrant, the officer is authorized and justified in acting upon the information he secures through the use of his senses of sight and smell, etc.: State v.McDaniel, 115 Or. 187, 238 (231 P. 965, 237 P. 373);McBride v. United States, 284 Fed. 416; State v. McAfee,107 N.C. 812 (12 S.E. 435, 10 L.R.A. 607); State v. Quartier,114 Or. 657 (236 P. 746, 751); United States v. Boyd,1 F.2d 1019.

The Constitutions, both state and federal, which prohibit unreasonable searches and seizures, are to be construed in conformity with the principles of the common law. At common law officers may arrest those who commit crimes in their presence, and may avert a crime in the process of commission in their presence by arrest, and without a search-warrant may seize the instrument of the crime: Garske v. United States,1 F.2d 620, 624; State v. McDaniel, 115 Or. 238 (231 P. 965, 237 P. 373); United States v.Snyder, 278 Fed. 652; State v. Quartier, 114 Or. 657 (236 P. 746).

It is not essential in making an arrest without a warrant that the officer must absolutely know that an offense is being committed. He must believe it is being committed and must so believe upon the evidence of his own senses: United States v.Rembert, 284 Fed. 1001. Where two prohibition agents entered the premises where no one was living and when within about three hundred yards of the barn they detected the odor of mash and proceeding to the barn found stills in operation, the search was held not an unreasonable one and not unlawful because of the lack of a warrant: Tritico v. United States, 4 F.2d 664. See, also, Huff v. United States, 1 F.2d 493.

In order to justify a search without a warrant upon the ground that a crime is committed in the presence of an officer it is not necessary that the defendant be present: Huff v. UnitedStates, 1 F.2d 493; United States v. Lindsly,7 Fed. 2d 247. See, also, dissenting opinion in Temperani v. UnitedStates, 299 Fed. 365, 370; State v. District Court, 9th Dist., 72 Mont. 77 (231 P. 1107).

We are unable to find from the record that the search and seizure in the case at bar was unreasonable. The evidence sought to be suppressed was admissible. Apart from the finding of articles on the defendant's premises, he admitted his guilt of the crime charged by claiming the mash and liquor found on his father's place.

Finding no error in the record, the judgment is affirmed.

AFFIRMED.

BURNETT, C.J., and BROWN and COSHOW, JJ., concur.