2. Constitutional law 46(2) Objection to evidence held not to raise question under Constitution, protecting against compulsory incriminating testimony.

An objection that the conduct of officers in searching defendant's automobile and seizing liquor therein without a search warrant violated his constitutional rights against unreasonable search and seizure does not raise the objection that thereby accused was compelled to give evidence against himself, contrary to Const. art. 1, § 9.

3. Criminal law 395-Searches and seizures 7-Constitutional protection applies only to governmental acts, and not to evidence of individuals unlawfully obtained.

The provisions of the federal and state Constitutions against unreasonable searches and seizures protect the citizens only against action by the federal or state governmental agencies, respectively, and do not make inadmissible evidence unlawfully obtained from accused by private individuals.

4. Criminal law 395-Evidence procured by state agents in violation of constitutional protection cannot be used.

Where agents or officers of the state procure evidence against accused by an unreasonable search and seizure, contrary to Const. art. 1, 9, the state will not be permitted, in prosecution of accused, to use such evidence against him.

5. Arrest 71-Person lawfully arrested may be searched.

Though the statutes authorize search only by search warrant, under Shannon's Code, §§ 7296 to 7311, or by order of the magistrate and in his presence, under section 7312, searches are allowable at common law in all cases where a person is lawfully arrested, for the purpose of taking from him dangerous weapons or articles which may be used in evidence against him.

6. Arrest 63(3)-Transportation of liquor concealed from sight is not an offense in the presence of an officer.

A person who is engaged in transporting liquor does not commit the offense in the presence of an officer, so as to authorize the officer to arrest without warrant, where the liquor was concealed from the officer's sight prior to

the arrest.

7. Arrest 63(4)-Information leading officer to believe offense had been committed does not authorize.

An arrest by an officer without warrant is not justified by the fact that the officer had information leading him to believe that an offense was being committed.

8. Arrest 63(3)-May be made to prevent threatened breach of the peace in officer's presence.

An officer may lawfully arrest a person without warrant, if a breach of the peace, which includes unlawful transportation of liquor, is threatened in his presence, and in such a case it is not necessary for the officer to see and know that the law is being violated. 9. Arrest ~63(3), 71-Criminal law Facts held to warrant belief offense was about to be committed in officer's presence, justifying arrest and search, and evidence seized was admissible.

395

Where an officer had seen accused bringing to his automobile a keg having the appearance of a nail keg from a direction in which there was no store or other place where nails could be obtained, and knew that accused was reported to be engaged in the unlawful sale of liquor, the officer was justified in believing that a violation of the law against transportation of intoxicating liquors, which was a breach of the peace, was about to be committed, and in arresting accused without warrant, and searching him for evidence to be used against him, so that liquor seized by the officer at the time of making the arrest is admissible in evidence against accused.

Error to Criminal Court, Putnam County; J. M. Gardenhire, Judge.

P. D. Hughes was convicted of violating the prohibition law, and he brings error. Affirmed.

Worth Bryant and V. E. Bockman, both
of Cookeville, for plaintiff in error.
Wm. H. Swiggart, Jr., of Nashville, for the
State.

L. D. SMITH, Special Judge. Plaintiff in error, P. D. Hughes, was convicted in the criminal court of Putnam county on an indictment charging him with violating the provisions of chapter 12 of the Acts of 1917, prohibiting the receipt, possession, and transportation of intoxicating liquors. By consent the trial was had before the trial judge without the intervention of a jury, who after hearing the evidence found the plaintiff in error guilty, and after overruling motion for new trial entered judgment against him for a fine of $50 and a sentence of six months in the workhouse.

The questions presented for our determination arise upon the action of the trial court on exceptions to the testimony introduced by the state.

The state introduced three witnesses, namely, C. N. Gracey, a United States

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(238 S.W.)

deputy collector, W. M. Stout, sheriff of Put-fact of the officers in arresting the plaintiff nam county, and Bill Gailbreath, who seems in error and in searching his car was a vionot to have held any official position. The tes- lation of the constitutional rights of the timony of each of these witnesses, to which ex- | plaintiff in error, which protect him against ception was taken, is substantially that giv- unlawful searches and seizures; and, second, en by Sheriff Stout, and is as follows: if the method of making evident this violation of the law was of itself unlawful, and violated the constitutional rights of the plaintiff in error, was the evidence nevertheless admissible, and can it properly be made the basis of a conviction?

to the citizen under our own Constitution. The evidence introduced by the state un- If any constitutional right of plaintiff in erquestionably made a case of violating the liq-ror has been violated in this case, it is referuor laws of the state against the plaintiff able to section 7, and therefore it will be in error, and the only question for our deter- unnecessary to consider whether his rights mination is whether this evidence can be under section 9 were also violated. rightfully made the basis of conviction, hav- There is much apparent, if not actual, coning been obtained and procured in the man-flict in the decisions with respect to the adner indicated. This involves the considera- missibility of testimony obtained by unlawful tion of two questions: First, whether the arrest and search. This court had occasion

to review the subject quite fully in the case of Cohn v. State, 120 Tenn. 61-75, 109 S. W. 1149, 17 L. R. A. (N. S.) 451, 15 Ann. Cas. 1201. The question has more recently come under review by the Supreme Court of the United States in the case of Amos v. U. S., 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, decided February 28, 1921, published by Lawyers' Co-operative Publishing Company in Advance Sheets of April 1, 1921, and in Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647, decided at the same time and published in the same number of the Advance Sheets.

were soon followed by a crowd; that witness and those who were with him watched the persons inside for an hour; that Lem Horton and Charles Perkins sold, and received money for, a great many drinks of whisky and beer, certainly more than three; that they saw a large box of cigarette papers, and saw Lem Horton reach under the bar, take out this box, and sell a book of them to a customer, one Henry Ewing; that he rang up this sale of the cigarette papers, just as he did the drinks, in the cash register; that the witness and the others with him got the cigarette papers and the sale book and [3] There is no conflict of authority upon brought them to court. It was further testithe proposition that the constitutional pro-fied that Horton and Perkins worked for visions relied upon can only be invoked in Cohn. this way to protect the citizen against the When this evidence was given, Cohn, by activities of the government. For example, his counsel, moved the court to strike out the the provisions of the federal Constitution entire testimony, because it was inadmissible can only be invoked as against the activities and incompetent upon the ground that it was of the agencies of the federal government, obtained illegally and contrary to the laws and likewise the rights of the citizens in- of the state and of the state and federal volved in the constitutional provisions re- Constitutions. The trial court overruled the ferred to are only protected against the ac- exception, and his action thereon was the tions of officers of the state government. basis of the appeal to this court. The court It is only when persons are acting under sustained the action of the trial court, and color of authority from the government that held that the evidence thus obtained was not evidence developed in violation of the law in violation of the constitutional provisions can be at all rejected. Cohn v. State, 120 against unreasonable searches and seizures, Tenn. 61, 109 S. W. 1149, 17 L. R. A. (N. S.) nor violative of the constitutional inhibition 451, 15 Ann. Cas. 1201; Boyd v. U. S., 116 against compelling a party in criminal cases U. S. 619, 6 Sup. Ct. 524, 29 L. Ed. 746; to give testimony against himself. In so Adams v. New York, 192 U. S. 586, 24 Sup. holding the court said: Ct. 372, 48 L. Ed. 575. None of the cases go to the extent of holding that because evidence has been obtained by unlawful means it is therefore inadmissible; it is only when evidence has been obtained by means of unlawful conduct of government officials in violation of the provisions of the Constitution referred to that it has been held inadmissible in any of the cases.

In the Cohn Case, supra, Cohn had been convicted for the offense of selling liquors and cigarette papers on Sunday, contrary to the statute. The case was made out against him by the testimony of John Yeaman, a deputy sheriff of Davidson county, and another witness. He testified in substance: That he and two deputies went to Cohn's place about 6 o'clock on Sunday morning, January 13, 1907, and mounted a stairway leading up by the side of the saloon, and, after they had reached a point about half up the stairway they stopped and removed some bricks from the wall, and the mortar along with them, being careful to draw the bricks and the mortar out upon the stairway, so as to give no indication, in the saloon, of what they were doing on the stairway; that the hole thus made was smaller on the inside of the saloon than on the outside; that, having made this peephole, they sat and watched occurrences in the saloon; that they saw Lem Horton and Charles Perkins enter the barroom by a rear door, and they

"We think the evidence was competent. The the constitutional provision was designed to unreasonable search and seizure against which operate was that made through governmental agency, and has no bearing upon the unauthorized acts of private persons, or of petty officers of the law. Nor has the inhibition against compelling a person charged with crime to incriminate himself any more bearing upon the present controversy, since the plaintiffs in error were not required to testify. Nor was any presumption indulged or permitted against them because of their silence. Nor were the plaintiffs in error required to produce any private papers that would so speak as to incriminate them. It is true that the act of Yeaman and his companions in making a hole in the wall and spying upon the inmates of the building was an unlawful one, for which they were subdence was thus procured, it would not be reject to punishment. Still, although the evijected by the court, if relevant to the issue. 4 Wigmore on Evidence, §§ 2183, 2264; 1 Greenleaf on Evidence, § 254a; 2 Elliott on Evidence, § 1013."

In support of the conclusion above quoted the court referred to quite a number of cases from different jurisdictions. In some of the cases the testimony was held admissible upon the theory that, the evidence being proper in itself, the court could take no notice of how it was obtained. In other cases it was held that the restrictions of the Constitution were intended to operate only upon legislative

(238 S.W.)

bodies, so as to render ineffectual any ef- thus unlawfully obtained by its agents. The fort to legalize by statute what the people Cases of Amos and Gouled, supra, are direct expressly stipulated could in no event be authority for the proposition just stated. made lawful; upon executives, so that no In the Amos Case, supra, the government's law violative of this constitutional inhibition witnesses were deputy collectors of internal should ever be enforced; and upon the judi- revenue. They went to the defendant's ciary, so as to render it the duty of the home, and, not finding him there, but finding courts to denounce as unlawful every reason- a woman who stated she was his wife, told able search and seizure, whether confessed- her that they were revenue officers and had ly without any color of authority, or sought to be justified under the guise of legislative sanction. In still other cases the theory of admissibility was that, when an official of the state exceeded his authority, he would be deemed as acting, not for the state, but for himself only, and therefore he alone, and not the state, should be held accountable for his

acts.

come to search the premises for violations of the revenue law. Thereupon the woman opened the store, and the witnesses entered and in a barrel of peas found a bottle containing blockade whisky. On cross-examination these witnesses testified that they had no warrant for the arrest of the defendant, nor any search warrant to search his house. Thereupon their testimony was excepted to, but the trial court admitted it over the defendant's objection. With respect to this action of the trial court the Supreme Court said:

The reasoning of the cases referred to in the Cohn Case is not necessarily established by the decisions upon the facts of that case. In that case the officer of the law went about discovering the evidence in an unlawful way; but it was not a case in which the citizen was compelled to produce evidence of his own guilt, nor one in which an unlawful act of the officer itself disclosed the unlawful act of the defendant. It was a case in which the officers of the law themselves violated the law in order to place themselves in a situation to testify as to the facts, and not one in which the officers produced and disclosed a violation of the law by an invasion of the defendant's constitutional right against unlawful search and seizure. Many of the cases may be reconciled by observing the distinction just indicated. This distinction is illustrated by the case of Burdeau v. McDowell, decided by the Supreme Court of the United States, June 1, 1921, and reported in 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. - It is pointed out in the dissenting opinion of Mr. Justice Brandeis, concurred in by Mr. Justice Holmes, that the distinction made by the majority of the court in that case is one without a difference. Nevertheless this may account for the apparent conflict in the cases themselves. It was held by the major- | stated by the court, was this: ity of the court in that case that the constitutional guaranties against unreasonable searches and seizures and self-incriminations are not violated, where federal prosecuting authorities, to whom incriminating papers stolen by private persons have been delivered, retain them with a view to their use in subsequent investigations, where said papers will be part of the evidence against the accused, and may be used against him on the trial, should an indictment be returned; the government having had no part in the wrongful taking.

"The answer of the government to the claim that the trial court erred in the two rulings we have described is that the petition for the return of defendant's property was properly denied, because it came too late when presented after the jury was impaneled and the trial, to that extent, commenced, and that the denial of the motion to exclude the property and the testhereto, after the manner of the search of detimony of the government agents relating fendant's home had been described, was justified by the rule that in the progress of the trial of criminal cases courts will not stop to frame a collateral issue to inquire whether evidence offered, otherwise competent, was lawfully or unlawfully obtained.

"Plainly, the questions thus presented for decision are ruled by the conclusions this day announced in No. 250, Felix Gouled v. United States."

[4] But in cases where the action of the governmental authorities is unlawful and violative of the constitutional rights of the citizen, and directly developed and disclosed the facts of the violation of the law, the government cannot rely upon the evidence

The court thereupon held the action of the trial court in admitting the evidence aforesaid to be reversible error. The reasoning of the court by which this result was reached had been stated by the court in its opinion in the Case of Gouled. The Gouled Case, as

"In a joint indictment the plaintiff in error, Gouled, one Vaughan, an officer of the United States army, and a third, an attorney at law, were charged in the first count with being parties to a conspiracy to defraud the United States, in violation of section 37 of the federal Criminal Code [Comp. St. § 10201], and, in the second count, with having used the mails to promote a scheme to defraud the United States, in violation of section 215 of that Code [Comp. St. § 10384]. Vaughan pleaded guilty, the attorney was acquitted, and Gouled, whom we shall refer to as the defendant, was convicted, and thereupon prosecuted error to the Circuit Court of Appeals, which certifies to this court six questions which we are to consider. the admission in evidence of a paper sur"Of these questions, the first two relate to reptitiously taken from the office of the defendant by one acting under direction of officers of the Intelligence Department of the army of

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the United States, and the remaining four re- must infer that it was admitted, either because late to papers taken from defendant's office un- it appeared that the possession of it was obder two search warrants, issued pursuant to tained without the use of force or illegal coerthe act of June 15, 1917 (40 Stat. 217, 228, cion, or because the objection came too late. Comp. Stat. §§ 104964a-104964b, Fed. Stat. * Anno. Supp. 1918, pp. 120, 128. It was ob- "The prohibition of the Fourth Amendment jected on the trial, and is here insisted upon, is against all unreasonable searches and seizthat it was error to admit these papers in evi-ures and if for a government officer to obtain dence, because possession of them was obtained entrance to a man's house or office by force by violating the rights secured to the defendant by the Fourth and Fifth Amendments to the Constitution of the United States.

"The Fourth Amendment reads: "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 warrant 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.'

or by an illegal threat or show of force, amounting to coercion, and then to search for and seize his private papers would be an unreasonable and therefore a prohibited search and seizure, as it certainly would be, it is impossible to successfully contend that a like search and seizure would be a reasonable one if only admission were obtained by stealth instead of by force or coercion. The security and privacy of the home or office and of the papers of the owner would be as much invaded and the. search and seizure would be as much against his will in the one case as in the other, and it must therefore be regarded as equalbe compelled in any criminal case to be a wit-ly in violation of his constitutional rights. ness against himself.""

"The part of the Fifth Amendment here involved reads: 'No such person shall

"Without discussing them, we cannot doubt that such decisions as there are in conflict with

Two of the questions certified to the Su- this conclusion are unsound, and that, whethpreme Court for answer were:

First. "Is the secret taking, without force, from the house or office of one suspected of crime, of a paper belonging to him, of evidential value only, by a representative of any branch or subdivision of the government of the United States, a violation of the Fourth Amendment?"

er entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment, and therefore the answer to the first question must be in the affirmative. "Upon authority of the Boyd Case, supra, The facts upon which the answer to these this second question must also be answered in two questions depended were:

Second. "Is the admission of such paper in evidence against the same person, when indicted for crime, a violation of the Fifth Amendment?"

"The facts derived from the certificate, essential to be considered in answering the first two questions, are: That in January, 1918, it was suspected that the defendant, Gouled, and Vaughan were conspiring to defraud the government through contracts with it for clothing and equipment; that one Cohen, a private in the army, attached to the Intelligence Department, and a business acquaintance of defendant Gouled, under direction of his superior officers, pretending to make a friendly call upon the defendant, gained admission to his office, and in his absence, without warrant of any character, seized and carried away several documents; that one of these papers, described as 'of evidential value only' and belonging to Gouled, was subsequently delivered to the United States district attorney, and was by him introduced in evidence over the objection of the defendant that possession of it was obtained by a violation of the Fourth or Fifth Amendment to the Constitution; and that the defendant did not know that Cohen had carried away any of his papers until he appeared on the witness stand and detailed the facts with respect thereto as we have stated them, when, necessarily, objection was first made to the admission of the paper in evidence."

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*

the affirmative. In practice the result is the obliged to supply evidence against himself or same to one accused of crime, whether he be whether such evidence be obtained by an illegal search of his premises and seizure of his private papers. In either case he is the unwilling source of the evidence, and the Fifth Amendment forbids that he shall be compelled to be a witness against himself in a criminal

case."

This result is said to follow from the spirit of the decisions dealing with these constitutional provisions, and which the court describes as follows:

"It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, in Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B,. 834, Ann. Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is that such rights are declared to be indispensable to the 'full The court's answer to these questions is: enjoyment of personal security, personal lib"The ground on which the trial court over-erty, and private property'; that they are to ruled the objection to this paper is not stated, be regarded as the very essence of constitubut from the certificate and the argument we tional liberty; and that the guaranty of them