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

I dissent. As shown by the record, the writ was issued in this case over my protest.

It appears that the assistant postmaster suspicioned the contents of the package which was wrapped in brown paper, tied with string, postmarked Butte, Montana, and mailed special delivery. He spoke to Bailey, United States customs agent at Havre, about it, who in turn told the sheriff, Timmons, feeling that the subject was beyond his authority. Thereupon Timmons accompanied Bailey to the postoffice and the contents of the package were examined and the discovery made, after which Timmons and Bailey waited in the postoffice for someone to call for the package. They had not long to wait. The defendant in the criminal action called for mail; the package was delivered to her, she receipted for it, placed it under her left arm and was leaving the postoffice when she was accosted by the sheriff and placed under arrest, without a warrant of any kind. The sheriff took hold of her arm and told her she was under arrest and Bailey took the package from her. She was then asked as to the contents of the package and replied that she did not know. They took her up to Mr. Bailey's office, again examined the contents of the package, remained there about thirty minutes, and then took her to the county jail.

Bailey, customs officer, testified: "There was no indication on the package that it was of foreign origin; consequently it was not under my jurisdiction"; and that he turned the case over to Sheriff Timmons and thereupon rendered assistance to him. The sheriff admits that it was upon the information so received that he arrested the defendant, and the county attorney stated that it was his intention, unless restrained, to use the evidence so obtained against her in proof of the offense with which she is charged.

While there is some discrepancy in the evidence, as I read the record, the package was opened by Patterson, the postmaster, in the presence of the sheriff. Timmons the sheriff, testified: "Q. When you went out this package, you say, was unwrapped? A. When? Q. At the time you saw it in the postoffice? A. Mr. Patterson opened it while I was there and I looked at it and he wrapped it back up * * *. Q. You say he opened it in your presence? A. Yes, sir. Q. The defendant was not there at that time? A. No."

Bailey testified that it was beyond his province, officially or otherwise, to intermeddle with packages received through the United States mail originating within the United States, and his conduct in opening the package was accordingly most reprehensible. Conceding that Bailey had obtained positive information by his indefensible independent examination of the contents of the package before the inspection thereof made by the sheriff; and conceding further that the sheriff was entitled to act on the information so furnished by Bailey, the record shows that the sheriff (the state officer) was not satisfied with Bailey's report, and did not act solely thereon, but himself went to the postoffice, where the package was opened for his independent inspection. That act constituted the state officer's independent offense. However that may be, the action of the officers in co-operation was in furtherance of the enforcement of a state law.

I fully appreciate the destructive effects upon humanity, both physically and morally, from the use of narcotics, and the great desirability of suppressing the unlawful traffic therein. I have no patience with a peddler of drugs and feel that they are despicable leeches on society; their activities for profit resulting in the destruction of individuals, who, but for drug addiction, would be useful members of society. But, however necessary and desirable to suppress such traffic and punish infractions of the law, it is more important to the stability of the government and the protection of the guaranteed liberties of our people to uphold and apply our constitutional restrictions. The courts of this country should not on any theory of expediency disregard the sacred and inviolable rights of the people, as the preservation of our constitutional guaranties is far more important than the enforcement of any law. I realize that such laws should and must be enforced for the good of society, but I insist, under our system of government, it may only be done in conformity with the requirements of the Constitution. As was well and appropriately stated by Mr. Justice Brandeis, dissenting, in the recent case (April 9, 1928) of Casey v. United States, 275 U.S. ___, 72 L. Ed. 420, 48 Sup. Ct. Rep. 373, "I am aware that courts — mistaking social values and forgetting that a desirable end cannot justify a foul means — have, in their zeal to punish, sanctioned the use of evidence obtained through criminal violation of property and personal rights or by other practices of detectives even more revolting."

By way of dissent, in the case chiefly relied upon by the relator (State ex rel. Neville v. Mullen, 63 Mont. 50,207 P. 634), followed in the majority opinion, I expressed myself in emphatic terms in denunciation of the arrest of persons by officers of the law without any semblance of a warrant, but merely upon suspicion, and I still adhere to such views. The United States supreme court has in recent decisions given express approval to the rule which I contend applicable. (Agnello v.United States, 269 U.S. 20, 51 A.L.R. 409, 70 L. Ed. 145,46 Sup. Ct. Rep. 4; Byars v. United States, 273 U.S. 28,71 L. Ed. 520, 47 Sup. Ct. Rep. 248; Gambino v. United States, 275 U.S. ___, 52 A.L.R. 1381, 72 L. Ed. 139,48 Sup. Ct. Rep. 137.)

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, the court held that the protection of the constitutional guaranty "reaches all alike, whether accused of crime or not, and the duty of giving it force and effect is obligatory upon all intrusted under our federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which the people of all conditions have a right to appeal for the maintenance of such fundamental rights."

Our late Chief Justice Brantly, in State ex rel. Samlin v.District Court, 59 Mont. 600, 198 P. 362, referring to the above decision by the supreme court of the United States and Montana's like constitutional guaranty (sec. 7 of Article III), speaking for this court, said: "This forceful statement of the learned Justice applies as well to the guaranty found in our own Constitution; for, except that the order in which the several clauses in it are arranged is different, it is expressive of the same fundamental principles and was intended to be equally as effective to prevent an invasion of the rights of the citizen of the state under the guise of law by the state government or any of its officers. Since it was intended to take away from the legislature the power to authorize an invasion of the rights of the citizen by a search of his home or a seizure of his person or property in any other case than it permits, it is to be strictly construed in his favor."

"Constitutional provisions for the security of person and property are to be liberally construed, and it is the duty of courts to be watchful for the constitutional rights of the citizen, and against the stealthy encroachments thereon. (Boyd v. United States, 116 U.S. 616, 635, 29 L. Ed. 746, 6 Sup. Ct. Rep. 524; Gouled v. United States, 255 U.S. 298, 304,65 L. Ed. 647, 41 Sup. Ct. Rep. 261.)" (Byars v. United States, supra.)

"The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against the revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality by which, in reality, strike at the substance of the constitutional right." (Byars v. United States, supra.) And "it is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment." (Agnello v. United States, supra.)

Section 3929 of the Revised Statutes of the United States forbids any postmaster or other person to open any letter entrusted to the mail not addressed to himself. Referring to this section of the statute, Mr. Chief Justice Taft, speaking for the supreme court of the United States in the recent case (June 4, 1928) of Olmstead v. United States, Nos. 493, 532, 533, (U.S.) 72 L.Ed. ___, 48 Sup. Ct. Rep. 564, said: "It is plainly within the words of the Amendment [4th] to say that the unlawful rifling by a government agent of a sealed letter is a search and seizure of the sender's papers or effects. The letter is a paper, an effect, and in the custody of a government that forbids carriage except under its protection," and in the same case Mr. Justice Brandeis, in his dissenting opinion, well said: "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face."

"Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domicils. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, whereever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution." (Mr. Justice Field, in the case of In re Orlando Jackson,96 U.S. 727, 24 L. Ed. 877.)

In Byars v. United States, supra, it was held that where a federal officer participates officially with state officers in a search, so that in substance and effect it is their joint operation, the legality of the search and of the use in evidence of the things seized, is to be tested, in federal prosecutions, as it would be if the undertaking were exclusively his own. And in the case of Gambino v. United States, supra, it was held that: "Evidence obtained through wrongful search and seizure by state officers who are co-operating with federal officers must be excluded." I can see no reason for applying a different rule respecting like action by a state officer assisted by a federal officer in prosecutions arising under state law.

It is manifest that the defendant's constitutional rights were invaded by the joint and separate action of state and federal officers. In my opinion the writ should be denied.