Montpelier examiner. [volume] (Montpelier, Idaho) 1895-1937, 1915-12-03

illegally disposed of, is such wide
departure from what has heretofore
been considered a citizens inalien-
able rights that to authorize such
search and to justify an officer in
making such search and issuing such
warrant the legislature would be
compelled to be explicit and certain
in all its directions to such officers.
Our constitution provides that the
citizens of the state shall be protect
ed against unreasonable searches and
seizures. The provision of the con-
stitution referred to is as follows:
The right Of the people to be Sc
cure in there persons. houses, papers
and effects against unreasonable
searches and seizures shall not be
violated; and no warrant shall issue
without probable cause shown by af-
fidavit, particularly describing the
place to be searched and the person
or thing to be seized"
This provision Of the constitution
has been almost uniformly construed
to prevent violation Of mans home,
except under most extraordinary cir
cumstances and under specific and
direct legislative direction. This
provision would have the effect, !
am satisfied, of causing our courts
to look strictly into the right OF an
officer to search the home of a citi-
zen or resident of this state, and. as
stated above, no specific authority
or direction is given, but on the con-
trary the re-enactment Of chapter l5,
session laws of 1911. would seem to
imply beyond question that the legis-
Iature intended searches to be had
only in cases involving other than
private residences. 1t mnst be un-
derstood that what is here said has
reference to private residences only,
and would not apply to q dwelling
house that had been converted into
a saloon or was being used for that
purpose.
It might be contended that the
old established law of the state on
the subject Of search warrants con
tanned in chapter 8. title II Of the
revised codes would apply to a search
warrant to be issued for the purposG
of searching a private residence fol
: intoxicating liquor. but q close IN
spection Of this statute (section 1891
reveals that it was not intended t
: apply to circumstances of this kind
Nor is the language therein use
sufficiently explicit to justify tn
} court, in my judgment. in holdin
J, that its provisions wuuld apply t
: the searching of private residence
/ under the 1915 liquor law.
!. Surely when this provision was er
IS acted in 1864, the searching of pr
h vate residences for possession of il
d toxicating liquor was not in the min
# of the territorial legislature. B.
the argument that section 1891. u
er old law on the subject of search wa
n rants, would apply to the new wa
se rant under question here, is met
ce the legislature specifically re-enaC
It. ing chapter Is of the session laws
s- 1911 as an adjunct Of the 1916 la
r. implying the exclusive application
.s- this statute.
n / have gone into the authorities
ng this question fully, but have 4
seen fit TO make citations thereof
IN this statement. and have thoua
on that my conclusions thereon wol
di- be sufficient for this purpose.
OF / conclude, therefore. first. Il
- no magistrate or officer in the st
mo has authority, under senate bill
OF socalled, to issue a search warri
no for the purpose of searching . !
Oh vate residence in the absence of |
.lr- denee that liquor is being sold o.
.eF- legally disposed Of therein or the
az from; and. secondly. that any sea
u warrant attempted to be issued
~ der these circumstance would /
'Aid legal nullity and would afford
protection to an officer acting tn
nat under.
Aees J. H. PETERSON.
lingI Attorney Genera