The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1915-12-03
GENERAL PETERSON IN
TERPTS SEARCH AND SEIZURE

to the duty of peace officers and
prosecutors in enforcing the new
liquor law to go into effect in this
state the first of the year and COM
monty referred to as senate bill oO.
Attorney General Peterson has issued
a statement bearing upon the search
of private residences in which he de-
clares that no such search could be
legally made unless there were adj
vance evidence of violation OF the
law and that any search warrant at
tempted to be issued under these cir-
cumstances would be a legal nullity
and would afford no protection to an
officer acting Hereunder"
The attorney generals statement is
as follows:
Since the decision of the supreme
court in the case of in re Crane,
which held constitutional the enact
ment Of the last legislature. common
" known as senate bill so. and which
had to do with the liquor question in
the state of Idaho, this Office has been
deluged with inquiries concerning the
extent of the courts decision, the duty
of peace officers and prosecutors un-
der said decision, and especially the
question has. been raised as to the
authority of magistrates to issue
search warrants to search private resi-
dences in the absence of any evidence
that liquor is being sold or illegally
disposed of in such residences.
This inquiry has raised very
grave and serious question through
out the entire state, and it is for the
purpose of giving such officers the
benefit of what | conceive to be the
law and avoiding future legal entang-
lements, and perhaps personal vio-
lence, that feel impelled to give my
views in the matter this publicity.
Senate bill so, above referred to.
makes the possession of Intoxicating
liquor in the state of Idaho a misde
meanor. and there is no question but
that this possession extends to prl-
vate residence as we'll as a place of
business.
The question naturally recurs. there
fore, whether an officer in the pre-
paration of a case might apply to a
magistrate to issue a search warrant
to him for the purpose of searching a
private residence to procure evidence
of the illegal possession of liquor, in
the absence of any showing of the IL
legal sale of such liquor in or from
such residence.
Search and Seizure Act.
Senate bill so provides (Sec. 23),
that the provisions of chapter IS. ses-
sion laws of 1911, are hereby specific
ally extended to and made applicable
in the enforcement of this act. Chap
ter IS, referred to, is what is known
in this state as the search and seiz-
ure act" and was intended to make eff
fective the liquor law of the state as
enacted at that time.
This act provided, among other
things, for the issuance of search
warrants, but solely for the purpose
of searching premises where evidence
was at hand showing that Intoxicating
liquor was being illegally disposed OF
therein, and had no reference to the
question of the possession of intoxi-
eating liquor in private residence
which was not being sold or illegally
disposed of.
at would seem, therefore. that in
specifically re-enacting this portion
of the 1911 law, and making no direct
provision for the issuance of search
warrants for searching residences
where no evidence is at hand tending
to show the illegal sale of liquor, that
the legislature had no intention of all.
thorizing search of private residences
under these circumstances, and by a
specific reference to this chapter oil
the 1911 law it would seem it was the
intention of the legislature to limit
| public officers to the searches author.
lied by said chapter
81 have no hesitancy is saying that
the searching of private residences
for the purpose of ascertaininp
whether Intoxicating liquor is there
without evidence of its being sold OF
J illegally disposed of, is such a wide
I departure from what has heretofore
been considered a citizens inalienablt
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 direction:
to such officers.
The Constitution.
| Our constitution provides that the
citizens Of the state shall be protect
ed against unreasonable searches anC
seizures. The provision of the consti
tuition referred to is as follows:
THE right of the people to be
secure in their persons, houses,
papers and effects against unrea-
sonable searches and seizures
shall not be violated; and no war
rant shall issue without probable
cause shown by affidavit, particu-
larly 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 a mans home
except under the most extraordinar,
circumstances and under specific anc
direct legislative direction. This pro
vision would have the effect, am sat
isfed. of causing our courts to looE
strictly into the right of an officer tc
search the home of citizen or resi-
| dent Of this state and nc sfataJ akoya