Meisinger v. State

Pattison, J., delivered the opinion of the Court. On September 19th, 1927, the appellant, George Meisinger, was indicted in the Circuit Court for Cecil County for having in his possession, in said county, intoxicating, spirituous., or fermented liquors, with intent then and there to unlaw ¹⁹⁶ fully sell the same within, the limits of said county, in violation of sections 179 and 180 of chapter 532 of the Acts of 1898. The appellant moved to quash the indictment and, upon his motion being overruled, he pleaded “not guilty.” The case was tried by the court, sitting as a jury, and the defendant was found guilty and sentenced to confinement in the Maryland House of Correction for six months. From that judgment this appeal was taken.

In the course of the trial two exceptions were taken to the admission of evidence procured under a search warrant issued by a justice of the peace, at the instance of the state’s attorney for Cecil County, directed to the sheriff of "that county, to search the premises of the appellant in said county for intoxicating liquors and to seize the same if found. The question presented for our decision, both by the motion to quash and the exceptions to' the evidence, arises from the opposite contention of the parties as to the admissibility of evidence secured under and by virtue of what is conceded to be an illegal search warrant. This question has been the subject of a great number of decisions by the Supreme Court, the federal courts, and the appellate courts of many, if not all, of the states. These decisions show a great diversity of opinion, and it is impossible to harmonize the opinions or the reasoning employed therein as expressed by the various courts, or even in some instances to show consistency between the decisions of the same court.

We find that not infrequently courts, both federal and state, have expressed one view in one opinion, later reversing that decision, and later still returning to the opinion first expressed. In a copious note to the case of State v. Wills, 91 W. Va. 659 , 24 A. L. R. 1398, decided in 1922, the annotator has collected the cases supporting each side of this contention, and at page 1409 states: “It is, or at least was, a general rule of evidence that its competency is not affected by the fact that it was wrongfully obtained; or, to state it more fully, that the court in which papers or other articles are offered in evidence can take no notice whether they were lawfully or unlawfully obtained, nor will it frame a collateral issue to ¹⁹⁷ determine that question. What is the effect upon this rule of evidence of the rights secured by the Fourth Amendment to the United States Constitution and by the similar provisions in state constitutions ? Up to within a few years, there were but few cases in which the constitutional right had been held to interfere with the rule, but in 1914 the decision by the Supreme Court of the United' States in Weeks v. United States, 232 U. S. 383 (infra) held the constitutional rights supreme when asserted before trial, and the later cases in that court in effect hold that the constitutional right is to be recognized though first asserted at the trial.” Since these decisions of the Supremo Court, a number of cases in state courts have taken a similar view.

The correctness of the position taken in these later cases is denied, and the earlier rule defended, by Professor Wigmore in an article appearing in the American Bar Association Journal, August, 1922, page 479, which article was replied to in the following October number of the same journal by Mr. Connor Hall, each author vigorously contending for the correctness, of his view. The authorities are divided into those supporting what may be termed the old doctrine, that is, the rule that such evidence is admissible, and those adhering to the new rule, deciding against its admissibility. Among the former this court is to be found, it having definitely determined that the rule which allows evidence of this character to be admitted is in force for the guidance of the courts and the admission of testimony therein in this state. This conclusion was reached by our predecessors in the case of Lawrence v. State, 103 Md. 17 , and must be taken now as conclusive on the question, so far as this state is concerned.

It was said in that case: “In the recent and valuable work on Evidence of Professor Wig-more it is affirmed, upon an exhaustive and discriminating review of the authorities, that it is universally conceded that chattels and documents in the possession of an accused party are within the protection of the constitutional provisions in question, if sought to be produced in evidence through process against him as a witness: but if obtained from him otherwise ¹⁹⁸ than by the use of such process they are not within the privilege which these provisions confer. 4 Wigmore on Evidence, sec. 2264.” The court then adopts the rule as laid down in 1 Greenleaf on Evidence, sec. 254, that “though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice of how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.” This statement of the rule has been adopted in the opinion of many of the courts, and may with certainty be denominated the rule more largely adhered to throughout the Union. In People v. Defore, 242 N. Y. 13 , decided in 1926, sustaining the old rule, Judge Cardozo1, speaking for the court, said: “The new doctrine has already met the scrutiny of courts of sister states. The decisions have been brought together for our guidance through the industry of counsel.

In forty-five states (exclusive of our own) the subject has been considered. Eourteen states have adopted the rule of the Weelcs case either as there laid down, or as subsequently broadened. Thirty-one have rejected it. Typical among these are Massachusetts (Comm. v. Wilkins, 243 Mass. 356 ; Comm. v. Donelly, 246 Mass. 507 ); California (People v. Mayen, 188 Cal. 237 ); Connecticut (State v. Reynolds, 101 Conn. 224 ); Ohio (Rosanski v. State, 106.

Ohio St. 442); Kansas (State v. Johnson, 116 Kan. 58 ; 116 Id. 179 ) ; Iowa (State v. Rowley, 197 Iowa 977, 979 ); and Virginia (Hall v. Comm., 138 Va. 727 ). To what is there written little of value can be added. The controversy, starting with the courts, has been taken up by the commentators, and with them has been the theme of animated argument. For the most part, there has been adherence to the older doctrine (4 Wigmore on Evidence [2nd ed.], pars. 2183, 2184; Harno, Evidence Obtained by Illegal Search and Seizure, 19 111.

Law. Rev. 303; Knox, Self-incrimination, 74 Penn. Law Rev. 139; ¹⁹⁹ Fraenkel, Concerning Searches and Seizures, 35 Harv. L. R. 361, 386.

Contra, Chafee, The Progress of the Law, 35 Harv. L. R. 673, 694; Atkinson, Unreasonable Searches and Seizures, 25 Col. Law Rev. 11). With, authority thus divided, it is only some overmastering consideration of principle or of policy that should move us to a change.

The balance is not swayed until something more persuasive than uncertainty is added to the scales.” The reason upon which the rule rests is that, in the trial of criminal cases, the admissibility of evidence is to he determined by its pertinency to the issue under consideration, and in eases like the one before ns the court is not concerned with tho collateral question of how such evidence may have been procured. The question of the guilt or innocence of the accused cannot be affected by its method of procurement, if the evidence offered is in itself germane and pertinent to the issue to be decided. If this case were the first in this court involving the question now under consideration, we would be at liberty to examine and comment upon the authorities and the reasons supporting them in other jurisdictions, but, it having been definitely decided by our predecessors that when evidence offered in a criminal trial is otherwise admissible, it will not bo rejected because of the manner of its obtention, we feel bound by that decision, and are entirely content to follow tho reasoning therein employed, especially in that it is supported and fortified by the weight of authority elsewhere. The seizure of the liquor admitted in evidence was unlawful, there being no statute, applicable to 'Cecil County, authorizing the issuance of a search warrant in cases of this character.

The warrant should not have been issued, and the sheriff in serving the warrant was a trespasser. Comm. v. Tibbetts, 157 Mass. 519 ; People v. Defore, supra. Nevertheless, .the liquor so seized was admissible in evidence, under the decisions of this court. Therefore, the judgment appealed from will be affirmed.

Judgment affirmed, with costs to appellee. ²⁰⁰ Parke, J., filed the following dissenting opinion. The premises of the traverser were invaded by the sheriff, who there searched and seized intoxicating liquor, and utensils and material used in its making, which he took into- his possession and removed. Upon the evidence so secured, the traverser was arrested, indicted, convicted, and sentenced. There was no statutory or other valid ground for the search warrant under which the sheriff acted; and the sheriff was a trespasser and all he did was unlawful.

Notwithstanding this evidence was admittedly obtained in violation of the constitutional rights of the traverser, the decision of this court holds this evidence admissible^ on the ground that consideration of the question is foreclosed by the case of Lawrence v. State, 103 Md. 17 . The doctrine of stare decisis makes for the interests.of the state and of the individual, and the proper administration of justice by assuring stability and uniformity in the declaration and enforcement of law. But the application of the doctrine is not according to rigid rules, and must be determined in each case from its particular facts and circumstances. Thus, it is most strictly applied when decisions have settled rules of property upon which rights are based, and under which titles have vested, especially when the decisions relate to realty and where they have become the basis of contractual relations.

If the decisions do not concern such matters but deal with a question which affects the right or extent of personal liberty, the enforcement of the principle is less strict and is governed by that general consideration which favors certainty and uniformity in the law. The rule of stare decisis rests upon the primary assumption that the prior judicial determination of a legal principle is sound, and, therefore, must be followed; but, if no question affecting land, contract, vested interest, or right be involved, and if it appear that the court was in error, the fundamental basis and utility of the doctrine in the particular instance is gone; and so, in matters affecting vital or weighty public or private rights as defined above and the decision is to put them upon a fixed basis for the future, it is the duty and the ²⁰¹ right of the court to review its former decisions and to suffer no former error to control its judgment. If the doctrine were not thus limited, it would serve to perpetuate error by never permitting a mistake to be corrected. It is therefore, strictly within the province of this appellate tribunal to examine its decision in Lawrence v. State, 103 Md. 17 , to see whether it was decided that, if the citizen’s domicile be unlawfully invaded for the purpose of learning if a misdemeanor has been committed upon his premises, the evidence so procured may bo used against him in a subsequent criminal prosecution.

The differences between the facts in the case of Laivrence v. Slate, supra, and the one at bar are significant. In the ■first case, the accused was under arrest on the charge of a conspiracy to defraud and in the custody of the police, who sent to the hotel where the prisoner had been and got the satchel which the accused had left there. In the presence of the prisoner, the police either took from this satchel, according to their version, or from the person of the accused, as he testified, certain securities, which were later offered and admitted in evidence to show guilty knowledge. The accused was stopping temporarily at the hotel, and the satchel while there was in the possession of the hotel keeper as bailee, and the bailee could have been compelled to have produced the satchel under a subpoena duces tecum, to be disposed of as the court directs. 1 Bishop’s New Crim.

Proc., sec. 211; Wharton’s Crim. Pl. & Pr. (8th Ed.), sec. 60. Lawrence v. State, supra, quotes with approval this language of State v. Height, 117 Iowa, 650 : “There are, of course, limitations as to the immunity from search and seizure for the purpose of securing evidence of crime.

It is well settled that when one charged with an offense is arrested, the officers may, without further legal procedure, seize weapons with which the crime has been committed, property which has been obtained by means of the criminal act, or articles which may give a cine to the commission of the crime or identify certain of the criminals.” (Page 37.) Such a search of the person and seizure of property in the possession of the accused at the time of his arrest or in that of his bailee is an incident ²⁰² to a lawful arrest; and, therefore, does not constitute an unreasonable search and seizure within the protection of the Constitution of the United States and the Bill of Bights of Maryland, nor would the evidence so obtained be barred as compelling the traverser to testify. It follows that Lawrence v. State, supra, is, on its facts, not an authority supporting the prevailing opinion in the instant case, because here the traverser was not charged with a crime, nor was he under arrest when his premises were searched. The owner was not committing a crime nor exposing contraband goods in the presence of an officer of the law, but, because the state’s attorney thought he had probable cause to believe that the local liquor law was being violated, he procured an illegal search warrant whereby the sheriff unlawfully entered upon the traverser’s premises for the sole purpose of discovering if a crime were being committed and of securing the evidence to convict the traverser, if his search and seizure proved successful. It, therefore, needs no argument to enforce the point that, because of wide and fundamental difference in facts, the decision in Lawrence v. State, supra, is not controlling, unless because it contains the declaration of some applicable principle of law.

In determining the admissibility of the incriminatory papers there offered in evidence, this court held that the objection could only go to the means of their procurement, and that the manner in which the State secured control of these articles did not make them inadmissible in evidence. In the course of its discussion of the immunity afforded an accused party by the Fourth and Fifth Amendments to the Constitution of the United States and article 22 of the Bill of Bights, this court referred to cases and authorities to illustrate its theory, and cited with approval the general conclusion of both Greenleaf and Wigmore that chattels and documents in the possession of an accused party are within the constitutional provisions mentioned, if sought to be produced in evidence through process against him as a witness, but if obtained from him otherwise they were not within the protection afforded by these constitutional mandates. ²⁰³ The