Buckley v. Beaulieu , 104 Me. 56 ( 1908 )

Emery, C. J.

The decisive question in this case is whether the defendants in their execution of a warrant to search the plaintiffs dwelling house for intoxicating liquors went so far as to violate the constitutional guaranty that "the people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures.” This court in State v. Guthrie, 90 Maine, 448, in considering the duty of an officer entrusted with a search warrant used the following language, viz: "It is a sharp and heavy police weapon to be used most carefully lest it wound the security or liberty of the citizen. It was unknown to the early common law and came into use almost unnoticed in the troublous times of English history. Lord Coke denied its legality, but finally the courts and parliament, recognizing its great efficiency, contented them-' selves with carefully restricting and controlling its use. Entick v. Carrington, 19 Howell’s State Trials, 1030. The danger of its abuse has been so clearly apprehended in this country that constitutional barriers have been erected against it.” This constitutional limitation upon its use is to be observed by the officer executing the warrant, as well as by the magistrate issuing it.

Whether the conduct of the officer in a given case was reasonable or unreasonable must be determined by all the circumstances of that case. No definite line can be drawn. The division is rather by a zone within which reasoning men might reasonably differ, but outside of which there would be a general concurrence of reasoning, thinking men. The general principle, however, is that while the officers should search thoroughly in every part of the described premises where there is any likelihood that the object searched for may be found, they should also be considerate of the comfort and convenience of the occupants, should mar the premises themselves as little as possible, and should carefully replace so far as practicable anything they find it necessary to remove. As said in Tiedman on The Police Power, vol. 2, page 787: "Under a constitutional government, of which the liberty of the citizen is the cornerstone, the privacy of one’s dwelling is rarely ever invaded, and then only in extreme cases of public necessity and under such limitations as will serve to protect the citizen from any unusual disturbance of his home life.”

In the case at bar the following facts appear from the testimony of the defendant officers themselves : They had a warrant to search the plaintiffs dwelling house for intoxicating liquors alleged to be unlawfully kept therein by the tenant. From the prior and contemporaneous conduct of the tenant and his wife the officers believed, and had reason to believe, that intoxicating liquors were somewhere in the house. They searched the house "thoroughly,” and without hindrance, from attic to cellar inclusive, and even dug into the floor of the cellar. They examined the walls and floor of the cellar and the walls and floors of each room, including the attic, but found no liquors, nor any indications of any receptacles, secret panels or openings, or communications with receptacles, nor any other indications as to where liquors might be hid. They sounded the walls "pretty thoroughly” with hammers, but no such indications were thereby discovered. The officers, nevertheless, insisted to the tenant and his wife that intoxicating liquors were somewhere in the house, and that unless the location was revealed they should break into the walls of the various rooms. The tenant and his wife declared there were no liquors then in the house, the officers having already by a prior search of the stable taken all they had. The officers thereupon, using an axe, pickaxe and crowbar, broke into and tore out a strip from the interior walls of all the rooms below stairs from kitchen to front hall inclusive, entirely round each room, tearing off the paper, plastering and lathing, and dropping the debris upon the floors and carpets. This strip was of varying width, mainly from two to four feet, and was so wide as to require an entire re-papering of the rooms besides the repairs of lathing and plastering. They did all this in the hope of finding, not the liquors, but some pipe or other clue leading to the liquors. The officers then departed, leaving the occupants to remove the torn paper, plaster and broken laths and dust from the carpets and floors of their dwelling, and leaving the plaintiff, the owner, to restore his house and make it again habitable.

Upon these facts we think it clear that the manner and extent of the search in this case were unreasonable and in excess of the officers’ authority. Even if under all the circumstances, not believing any liquors to be concealed there, they could lawfully have probed the walls in the hope of finding a pipe or other clue of the existence of which they had found no indications, such probing could have been sufficiently made with some slender probe with comparatively little injury. The destructive use of axe, pickaxe and crowbar for that purpose was unnecessary and unreasonable, and hence unlawful.

It may be conceded that the defendants acted in good faith in the full belief and with reason to believe that the occupant was keeping liquors in the house in violation of law, but that is not a defense. In this civil action against them they are to be judged by their conduct, not by their motives except as to the assessment of damages. Officers must not allow their zeal and beliefs to blind them to the rights of the owners and occupants of the dwelling house they search. Those rights, as well as the interests of the prosecutors, are to be regarded and protected by officers. In this case the tenant was not convict but only accused, and only of a misdemeanor. The owner was not even accused.

However confident the officers were of the guilt of the occupant, the house and its owner were not thereby outlawed.

Motion sustained.

Verdict set aside.