Gore v. State , 24 Okla. Crim. 394 ( 1923 )

Constitutions should be liberally construed. A narrow and technical rule of construction should never be applied to any provision of the Constitution. Scribner v. State, 9 Okla. Crim. 465, 132 P. 933, Ann. Cas. 1915B, 381; Salter v. State, 2 Okla. Crim. 464, 102 P. 719, 25 L.R.A. (N.S.) 60, 139 Am. St. Rep. 935.

The right of the people to be "secure in their persons, houses, papers, and effects against unreasonable searches and seizures" as provided in section 30, art. 2, Constitution of Oklahoma, was clearly violated by the search made in this case.

That right is not "secure" if the government by its own officers, and through the agency of its courts, openly and defiantly violates such provision by an unlawful search, and then permits the fruits of that search to be used as weapons of condemnation and conviction through the same channels that committed the first wrong.

It is not enough to say, in my opinion, that the courts will not stop to inquire into the legality of the means by which such evidence is obtained. Can full expression be given to the intention of our people if such rule is to prevail? I think not. Should the members of this court close their eyes to such a plain mandate against the invasion of personal liberty and domestic security? The answer is no.

I concur in the opinion in so far as it relates to the admission in evidence of property and things seized of the accused under an invalid and illegal search warrant, or where the officers of the state act without a search warrant.

I am inclined to the view that the admission of such evidence is not violative of section 21, art. 2, Constitution of Oklahoma.

Section 30, art. 2, Constitution, is self-executing. In re McNaught, 1 Okla. Crim. 528, 99 P. 241. The protection guaranteed to the people by such self-executing provisions cannot obtain if the people's forums for the redress of their wrongs are to wholly ignore its plain inhibitions, and justify their conduct on grounds of necessity or expediency.

If the courts of this state will hesitate long enough to determine whether an accused's extrajudicial confession is or is not voluntary, that is, to determine whether its admission in evidence could be violative of another of accused's constitutional rights, why should not the courts hesitate here for a sufficient time to determine whether or not this constitutional right of accused has been violated by the government itself — a subtle distinction in practice without difference in principle. If an involuntary confession should not be used against accused without his consent, the fruits of an illegal seizure by government agents should not receive the sanction of evidential competency by the courts over accused's timely objection. The practice of so receiving such evidence necessarily results in widespread invasion of constitutional rights and makes of the Constitution a mockery and myth.

While this court has heretofore adhered to the view expressed by eminent authority that "it is a general rule of evidence that its competency is not affected by the fact that it was wrongfully obtained," I think, in view of the need for uniformity between the rules of evidence prevalent in the federal courts and state courts, the holding of the United States Supreme Court on this subject, as said in the majority opinion, at least should be persuasive in cases where evidence is procured by an illegal search.

Many federal and state statutes overlap, and while the provisions of the Fourth and Fifth Amendments to the federal Constitution are not applicable to the state, nevertheless sections 21 and 30 of article 2, Constitution of Oklahoma, are substantially identical with such amendments, and the protection afforded an accused in the courts of this state should be coequal to that afforded an accused in the federal courts. As the federal courts have departed from the rule, the state courts should follow.

For reasons stated I concur in the conclusion reached that this conviction should be reversed.