,56 8 1917 (ttnrnfU Cam ^rlynnl ICibrarg Km uifmrn^d v Library In re search warrants : 3 1924 024 647 301 In Re Search Warrants Opinion of Attorney-General 4S451' /v? In re SEARCH WARRANTS September 13, 1917. Gov. Hugh M. Dorsey, State Capitol. Dear Sir :, Since the passage of the Bone Dry Prohibition Acts much confusion has arisen over the interpretation of the statute pro- viding for a search warrant, and you have requested an opinion defining the functions of such warrant. A remarkably large number of lawyers have held that in Georgia such a warrant may issue only for the purpose of searching for stolen goods. Upon consideration of the question submitted I am convinced that such opinioHs were not based upon a careful study of the historical facts connected with the statute and I am of the opinion that such^a study will clear up the confusion and settle the differences upon the subject. The history of the' legislation demonstrates that the right to issue a search warrant, for stolen goods or otherwise," was not the primary purpose of the law ; as a matter of fact the purpose was directly the reverse. "What was sought was the protection of the home from search, and any reference therein of a right of search under any circumstances was an exception to the rule therein stated. . The Georgia statute is the enactment into statute law of the provisions of the Constitutions of the United States and of the State of Georgia. Art. 8, par. 4 of the Constitution of the United States (Fourth Amendment) provides as follows: "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 warrants shall issue but upon prob- able cause supported by oath or affirmation, and particularly de- scribing the place to be searched and the persons or things to be seized." The language of the Constitution of the State of Georgia is I practically identical and likewise the statute of the State of Georgia, (Art. 1, See. 1, par. 16 of the Constitution of Georgia. C. C. Code Sec. 6372; P. C. 1325). Prior to the adoption of the Fourth Amendment to the Con- stitution it had been a custom in England and in the Colonies to issue writs of assistance empowering officers, in their discre- tion, to search suspicious places for smuggled goods held in alleged violation of the revenue laws. The practice had de- veloped into oppression and the violation of the privacy and sanctity of the home to such an extent that James Otis de- nounced conditions then obtaining and pronounced such writs "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book," placing "the liberty of every man in the hands. of every petty officer." The debate in which this statement was made was described by John Adams as the "first scene of the first act of opposition to the arbitrary claim's of Great Britain. Then and there the child indepen- dence was born.". Incidentally it is interesting. to note that we are here discussing one of the fundamental evils which brought about the birth of our nation. In the mother country the Secre- tary of State issued general warrants without limitation as to person or place directing the searching of private houses for the discovery and seizure of books and papers to be used in political prosecutions. The agitation finally led to the famous judgment of Lord Camden which has since been considered one of the permanent monuments to the British Constitution. The prin- ciple herein asserted, as well as the evils encountered in America and in England, were in the minds of the f ramers of this Fourth Amendment to the Constitution; there was not the slighest thought of providing a means for the recovery of stolen goods or even for the discovery of other crime; the sancitity of the home, the right to privacy of person, papers, and home, was first in their minds, and the Fourth Amendment was adopted as an expression of the sentiment of the people under the conditions stated. When provision was thus made for the protection of the people it probably occurred to far-seeing statesmen that this protection of the home might be used as a cloak for the covering up of crime. At any rate a remedy was prescribed for such 2 contingency. It was provided that a search might he made under reasonable circumstances, that a warrant for such search should issue only "upon probable cause, supported by oath or affirma- tion, particularly describing the place to be searched and the persons or things to be seized." It follows that there could have been no reason to limit the exception to the general rule and to authorize the searching of a home or place of business to discover stolen goods only. Why should the law prevent a search of a home to recover goods stolen or even to discover the crime of larceny and prohibit such a search to discover the crime of counterfeiting? "Why permit a search for a mere thing while next door may be a notorious place of debauchery and immorality destroying the character and even the lives of men and women, which could not be searched? If a private dwelling is known to be the scene of a horrible murder, would its owner be permitted for a moment to bar the doors to the entrance of an officer armed with a search warrant, seeking evidence of guilt? Is it possible that the law would force entrance of such a house to disclose the theft of a suit of clothes and prohibit its search to discover the evidence of murder? The exception allowing search was intended to safeguard the statutory provision for the preservation of the sanctity of the home from abuse by its use as a cloak to cover crime. The Constitution simply provides against unreasonable searches, but expressly enacted that a search might legally be made upon reasonable terms. As stated by Justice Miller in Boyd vs. United States, 116 U. S. 640: "The things forbidden by the Fourth Amendment are two; search and seizure. And not all searches or all seizures are for- bidden. Reasonable searches therefore may be allowed. * * * » While tht framera of the Constitution had their attention drawn, no doubt, to the abuses of this power of searching private houses and seizing private papers, as practiced in England, it is obvious that they only intended to restrain the abuse, while they did not abolish the power. Hence it is only unreasonable searches and Seizures that are forbidden, and the means of securing the pro- tection was by abolishing searches under warrants, which were called general warrants, because they authorized searches in aiiy place for anything. This was forbidden, while searches founded on affidavits, and made under warrants which described the thing to be searched for, the person and place to be searched, are still permitted." I have been unable to find any satisfactory reason or precedent upon which to base the conclusion that the Georgia statute limits the issuance of a search warrant to the sole purpose of searching for stolen goods. In other States search warrants were employed to discover: Lottery Tickets: 25 Cyc. 1652, 68th Cal. 284; 5th Gush. (Mass.) 369; 2 Mete. (Mass.) 326. Counterfeiting Plates', dies, etc.; Commonwealth vs. Dana, 2 Mete. (Mass.) 329. Gambling Implements: 155 111. 232; 119 Mass. 332. Policy Shops: 85th Mich. 128. Forged Official Certificates: 133 111. 382. Indecent Books and Pictures: 107 Mich. 575. Liquors in Violation of the Law: 83rd Iowa, 192; 5th Iowa 438, 450; 58th Vt. 140, 594. It seems that Georgia has furnished no case wherein a search warrant was relied upon to discover crime other than larcenies. Our law books are full of cases which treat of unlawful searches and seizures; but the scope of such cases seem limited to ques- tions which turn upon the admissability of testimony procured upon an illegal search and seizure. The leading case appears to be "Williams vs. The State, 100 Ga., 525. It is significant that in this case a search was made not for stolen goods but for in- toxicating liquors. Associate Justice Lumpkin in a well con- sidered opinion, after an exhaustive treatment of the subject of search and seizure without a warrant, clearly implies that a search for liquors held in violation of the law might legally be made under authority of a search warrant. In speaking of a search of a private dwelling for liquors he says: "No search is more unreasonable or more obnoxious to our fundamental law than one without warrant, based upon a bare suspicion that a criminal offense has been committed." The testimony on which this case was based was objected to on the ground that it was obtained from a search of the house "without a search warrant." The State's witness testified: ' ' I had no search warrant to search either the defendant or the house." The case seems to have been tried in the court below by able counsel before a distinguished jurist upon the theory that there could have been no question of the legality of the search if it had been made under authority of a search warrant and the language of the Supreme Court implies that such theory was correct. It is further most significant that the leading case in the Court of Appeals (Walker ys. Dawson, 7 Ga. App. 418) in- volves a search for intoxicating liquors and the opinion of the Court plainly implies the legality of a search for liquors held in violation of law. In setting out the evidence in the case Judge Hill, after describing the search of a private dwelling, says: "Those officers had no search warrant, and did not testify that they had any reason to suspect that the law had been violated by the defendant in his private residence." The legislature expressly declared that a search warrant may so issue. In the laws bearing reference to the City of Savannah it is provided that "The said Mayor * ♦ * * may, by warrant issued as aforesaid, cause suspected places to be entered, in as full and ample a manner as any other magistrate of this State may, with a view to the detection and prevention or punishment of offenses, within said jurisdiction limits, against tlie laws of this State, or the ordinances of said city." Code of 1882, Sec. 4873. Other Georgia cases by inference uphold the legality of searches for the discovery of crime under authority of a search warrant. It is probable that this most important question has not been brought to a direct issue in the Georgia courts by reason of the fact that by common knowledge -and universal custom in this State the right of search has been, in practice, incidental to arrest under criminal warrant; indeed, in certain crimes, such right of search has been held and considered incident to- the commission of the crime without a warrant for arrest. In the famous Mary Phagan case no one thought of procuring a war- rant authorizing the search of the premises wherein that crime was believed to have been committed or the seizure of things therein found believed to be of evidentiary value in discovering the guilty. An officer directed to serve a warrant charging another with the crime of counterfeiting would be considered all but criminally negligent by the general publi.c if in making the arrest he did not follow it immediately with a thorough search of the dwelling wherein the party arrested was alleged to be criminally operating. In cities houses suspected of being the seat of immorality and lewdness are raided and searched period- ically without the semblance of warrant. So long continued, so universal, so well established and so free from question in im- portant eases has been this custom of incidental search with or without a warrant charging crime but always without a search warrant that distinguished lawyers have urged its ofleial recog- nition as legal. The able City Attorney for Savannah has cited authorities which tend to sustain this position. In the Woolfolk case our Supreme Court held that incident to the arrest for crime is the right to search defendant's person even to the extent of forcibly removing all his clothing. Counsel argue the right of protection from such search of the person is as sacred as from search of the home or the business house. See Woolfolk vs. State, 81st Ga. 551. In the case of Smith vs. William Travers Jerome, 93rd N. Y. S. 202, the Court had before it this question, and held as follows: "The police have the power and it is also their duty to search the person of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested. We have no statute defining this power or prescribing this duty, but the ends of justice require that they should exist, and they have been exer- cised under the common law from time immemorial. The author- ities on this head seem to be few, but only because the thing has seldom if ever been questioned. - We have at least one such authority in this State ({loughton vs. Bachman, 47 Barb. 388) and there are several in England. This riglit and duty of search and seizure extend, however, only to articles which furnish evi- dence against the accused. They do not, lor instance, permit the seizure of his money, unless it furnishes evidence of his guilt, and in no other case may a prisoner's money or property be taken from him." I cannot go to the length of holding legal in Georgia this in- cidental right of search and seizure without a search warrant. However important it might prove in any given case, our Con- stitution has declared in effect that the protection from in- vasion in the guise of an unsupported search is of superior im- portance and with that sentiment I am in hearty accord. For the protection of society against crime it is necessary that an 6 officer armed with a criminal warrant shall have the right to enter a house even by force if necessary, to execute the warrant. If after such entry he find in the room where the arrest is made evidence of crime, he may, without doing violence to the inhibi- tions of the Constitution, seize such articles as in his judgment are of evidentiary value and retain the same for such purpose. Further than this he cannot go under the law. The privacy of the home must be held inviolate save under terms fixed bv the Constitution. No man, private citizen or public ofSeial, may legally subject to search the house of another until there is executed in legal form a solemn oath -that there is a reasonable probability of discovering crime — thus subjecting the affiant to criminal prosecution for false swearing 'as well as a civil action for trespass. If in the discretion of the magistrate such pro- cedure is in good faith, he is authorized to issue a warrant for the search of any place for the discovery of any crime. I am convinced that opinions of lawyers indicating that the operation of search warrants is limited to the cases of stolen goods are based upon a more or less hasty construction of the peculiar language of the Section of the Code following the search and seizure. Sections 1325-1329. It is true that no reference is here made to any other class of cases; that these succeeding sections refer peculiarly to stolen goods. However, it should also be noted that the authority for the issuance of the warrants expressed in Section 1325 is not limited in the succeeding sec- tions ; and if those sections do refer to stolen goods it is just as true that sections of the "Bone Dry Law" not yet Codified refer in like measure to the seizure and disposition of liquors held in defiance of law. A search warrant has been legally defined to be : "An exaraination or inspection by authority of law of one's premises or person, with a view to the discovery of stolen, con- traband, or illicit property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense , with which he is charged." 35 Cyc. 1277.. Newberry vs. Carpenter, 107 Mich. 567. I conclude that in Georgia the function of a search warrant is not limited to seeking stolen property. A search warrant legally issued is sufficient authority to an officer to enter and search any home or place or vehicle described in such warrant for the "dis- covery of stolen, contraband, or illicit property" or evidences of guilt of any "crime or offense" alleged upon oath to have been committed. In an opinion written May 11, 1916, I stated that in my judg- ment a city marshal could legally procure a search warrant to search a place where he had good reason to believe whiskey was stored in violation of the law. (Opinions of Attorney-General, 1916, page 370.) In view of your statement of the general im- portance of the questions involved, I have thought it wise to set forth at some length the authorities and reasonings which led me to the conclusion stated. Eespeetfully submitted, Clifford Walker, Attorney-General. I ' rl"lrlil'li t.l' '!'i"f,',i'