Opinion
Opinion filed January 4, 1933.
Searches and Seizures — Admissibility of Evidence Obtained by Illegal Search and Seizure — Harmless Error.
1. Search and seizure in violation of protection afforded individual by Declaration of Rights, Vermont Constitution, Ch. 1, Art. 11, cannot be legalized by what is found, though contraband.
2. In prosecution for unlawful possession and transportation of intoxicating liquor, admission of evidence, though obtained by illegal search and seizure, held without error.
3. Doctrine of United States Supreme Court holding inadmissible evidence obtained by search and seizure contrary to federal Constitution is not binding upon State in interpreting search and seizure clause of its own Constitution.
4. Error, if any, in excluding evidence as to method used by officer in obtaining information on which he made search and seizure, held harmless, where even upon assumption that search and seizure were illegal, evidence obtained thereby was admissible.
INFORMATION charging respondent with unlawful possession and transportation of intoxicating liquor. Plea, not guilty. Trial by St. Albans city court, M.H. Alexander, City Judge. Finding of guilty, and judgment and sentence thereon. The respondent excepted. The opinion states the case. No error.
Wm. R. McFeeters for the respondent.
A.B. Rowley, State's attorney, for the State.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Acting on a "tip" that the respondent was on the road with intoxicating liquor in his car, the chief of police of the city of St. Albans went to a place outside that city and waited for him. When his car approached, the officer stopped it; and, without a warrant or other precept, he searched the car and found a small bottle of liquor in it. Then, noticing a bulging of the respondent's coat, he searched him and found and seized several bottles of liquor that were in the pockets of his clothing. Thereupon, he arrested the respondent and a complaint was brought against him for unlawful possession and unlawful transportation. At the trial in the city court of St. Albans, the respondent was convicted and sentenced. He excepted.
The principal question in the case is raised by the exception saved when the court admitted in evidence the liquor found on the respondent's person. For the purposes of this discussion, we assume, as the respondent contends, that the search of the respondent was in violation of the protection afforded him by our Bill of Rights, Art. 11, which declares that "the people have a right to hold themselves, their houses, papers and possessions, free from search and seizure." This assumption strips the officer of all legal justification and stamps his search and seizure as illegal from the beginning. Such illegal acts are not and cannot be legalized by what is found, though it be contraband. Burnett v. State, 199 Ind. 49, 155 N.E. 209, 211; Byars v. United States, 273 U.S. 28, 71 L. ed. 520, 47 Sup. Ct. 248.
But this does not put the trial court in error. The evidence was admissible. This rule has been so many times applied by this Court, and has been so recently considered and approved, that we are not at all inclined to change it. At the very last term of this Court, in State v. Stacy, 104 Vt. 379, 160 A. 257, 266, upon a consideration of our previous holdings and other authorities therein referred to, and for the reasons therein specified, we reaffirmed the admissibility of evidence unlawfully obtained. This doctrine is supported by the great weight of authority, though it is contrary to the holdings of the Supreme Court of the United States, which, of course, are not binding upon us, since they are made under the federal Constitution, while ours are made under our own Constitution. State v. Stacy, supra. Our rule has, perhaps, no clearer or more convincing defense than is found in People v. Defore, 242 N.Y. 13, 150 N.E. 585, wherein Mr. Justice Cardozo re-examines the whole subject and adheres to the rule previously adopted in New York, which is in harmony with our own.
There is nothing further to be considered. The only other point briefed by the respondent relates to the method of obtaining the information on which the officer acted, but inasmuch as we have assumed that he acted unlawfully, any error in the exclusion of the evidence was harmless.
Judgment that there is no error in the record and that the respondent takes nothing by his exceptions. Let execution be done.