Evening journal., 1921-03-01
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Ccontlnued From First paeel


whether he does suspect that a man
is carrying liquor concealed from
view.
"A police officer" he remarked, "is
peace officer and IL is his duty to
arrest any person with or without
warrant who violates the law in his
presence. Can It be said that Der
rickson, as he walked along the
street, carrying a grip and acting in
suspicious manner. was violating
the law in the presence of the Of
ficer2 The officer had no informa-
ton at all as to what was in the
grip"
Judge Hastings decides that the
liquor taken as evidence against
Derrickson and Gillespie cannot be
admitted as evidence against the de-
PENDANTS. in view OF its having been
illegally seized. He orders that Der
rickson's grip be returned to him,
but refused the petition for the re-
turn of the seized liquor 70 Der
rickson and Gillespie, setting forth
that II cannot be returned. as II
would be lending aid TO the COM
mission OF a crime, the liquor con-
sisting OF more than one quart
which a person legally cannot have
! In his possession in Delaware.
Judge Hastings. in the course Of
his decision. which covers fourteen
long typewriter pages, says:
In the above-stated cases coun-
sci for defendants made prelimi-
nary motion for the return of GER
tain evidence obtained from the de-
PENDANTS by police officers OF tho
city of Wilmington, the contention
Of tho counsel being that the evil
dence had been taken in violation OF
the Constitution OF the United States
and the Constitution OF the State OF
Delaware; and that In order to pre-
vent the admissibility OF evidence
which the officers so obtained. Il was
necessary 10 make this preliminary
motion and determine the issue thus
raised as to whether the evidence
was legally or illegally taken. With
out passing upon the question as to
whether such preliminary motion
was proper procedure. the court de-
cided to hear the facts raised in the
petition.
"The evidence produced shows the
following facts: a police officer saw
the Defendant Derrickson get or a
street car carrying a grip which he
subsequently placed on his shoulder.
The Defendant Derrickson's attitude
was such as created suspicion In the
mind OF the officer and he deter
mined to follow him. The officer
did follow him. and Derriclxson look
ing back, found he was being follow
ed and started to run. He ran 10
1.-THE barber shop OF the Defendant
| Gillespie, opened the door quickly
and closed and locked II There were
other officers about the place at tho
time. and some OF them went 70 the
door Derrickson entered and tried q
get in, while others went to another
door adjoining which entered into
hallway From anything that ap
pears in the evidence. this hallwa,
!, door was open at the time. The OF
ficers passed along the hallway
short distance and pushed open
side door leading into a room bacl
OF the barber shop. which room wa
apparently occupied by Gillespie a.
a bedroom or sitting room.
when the officers entered thel
found Derrickson in possession OF {
grip which had in Il several quarts
OF alcoholic liquor. They also founC
in the room n demijohn containing
more than one quart OF spirituoui
lnouor. They Immediately arrested
both defendants. seized the grip con
tanning the liquor as we'll as tn
demjohn.
1T appears from the evidence tina
there was no warrants issued eithe
for the arrest OF these men. OF a war
rant for the search Of the premises
There Is nothing to Indicate wha
, crime. IL any, the officer suspectel
= lDorrickson had committed; there /
I nothing 10 indicate that the officer
when they entered the place had an
thought that there was more spiritu
Gus liquors in the place than the lay
allows. Indeed, the officers did nc
! know Gillespie was in the place.
"rhe only question raised as {
n whether or not this was a legal seiz
p ure applies TO Derrickson only. an
! as 10 him the question is whether q
= not the offence was being committe
III the IIEENAlNt OA AAAN NIAA'Ans
o "A police officer of Wilmington
: peace officer and IL Is his duty
/, arrest any person with or withoI
warrant who violates the law in IA
presence. Can it be said that Del
rickson as he walked along the stree
carrying a grip and acting in a SUI
picious manner was violating n
law in the presence OF the officer
} The officer had no information I
! an as to what was in the grip. Il
could not get this information will
out properly arrcsting the defendan
d or without having a search warrai
e to examine the contents OF his gri
n Certainly. the right Of an officer
i make an arrest when a crime
committed in his presence is base
upon the knowledge on his part thi
d the crime is being committed;
k other words, that he sees the GRIN
- committed.
/" "He could not in this instance Sc
!" and could not therefore, know tn
l. crime was being committed In h
presence. II the defendant had bee
lr carrying the intoxicating liquor
he the open so that il could be seen I
g the officer. the question would
~ entirely different
ry i am satisfied, therefore, that 4
re crime was committed In view OF n
r. officer within the meaning Of u
statute; that the entry Of the office
into the house was unlawful: the a
rest Of the defendants was unlawful
the seizure of tho grip, bottles, den
t..ta.