Every evening, Wilmington daily commercial., 1922-09-30
ILLEGAL SEIZURE or
LIQUOR DOES NOT
WARRANT RETURN
CONTINUED from pAxe /.

Continued from page 1.
seizure and the use Of the thing seized
Az evidence. The act the constitution
prohibits n the seizure. not tho use OF
the article seized. The violation OF
the constitutional provision would
seem to be complete whom the seizure
Ia made. and in that case tho only
remedy or redress the wronged party
hns n An action against the wrong
doer. tho person who made the seizure.
1T 10 argued that II every article,
the possession Of which is made un-
lawful by statute. Ia admissible In
evidence although Illegally seized. tho
legislature can nullify TO 4 great ex-
tent the constitutional guarantee. The
same argument was formerly unsuc-
cessfully made In many cases against
seizures with n warrant and searches
without a warrant after legal arrest.
But the courts have generally held
that such seizures were not unrcason-
able and that such searches were not
Illegal. And we think that II
articles are illegally seized that belong
TO the corpus deliciti their use in evil
dence n not a violation Of any con-
stitutionai provision.
but the Supreme Court has said
that property illegally seized
cannot be used in evidence and must
returned II restoration In season.
ably asked for. That conclusion may
be Ineligible and reasonable II the
thing taken was something the per-
son had right to hold. Even though
person be suspected OF crime. II
his property has been taken from him
Illegally. II would seem that II should
be returned to him in A proper pro-
ceeding. regardless OF indictment or
approaching trial. II X II his property
and his possession Is lawful II IL con-
ceivable that he has right to II.
restoration. But II does seem TO u,
that II the article illegally seized was
something In which tho suspect could
have no right OF property. its posses
sion was unlawful. and 1t constituted
in fact, the corpus deficit. It should
not be returned or destroyed"
Dissenting Opinion.
Judge Rodney. in his dissentins
opinion, said:
The Constitution OF Delaware con
tains the following provisions:
Article I, Section s. 1.-The peopl
shall be secure in their persons. nous
ee. papers and possessions from un
reasonable searches and seizures: an,
no warrant to search any place. o
to seize any person or thing shal
issue without describing them a
particularly az may be: nor then. un
less there be probable cause supporte
by oath or affirmation"
This article is not only consti
tutional provision but IL forms a par
OF the Bill OF Rights to which Is adde
these impressive words. we declar
that everything in this Article Is Re
served out OF the General Powers {
Government hereinafter mentioned
The posses sion Of liquor by an ir
div.dual is admittedly unlawful. b,
ie that any reason why the State Il
self may unlawfully seize 1t from II
individual?
An unlawful search cannot be ju.
. titled by what is found A search ths
is unlawful when IL begins is not mad
2 lawful when IL ends by the discover
and seizure OF liquor. 1t IL again,
such prying. on the chance OF dl.
covery. that the constitutional amenc
. ment was intended to protect II
people.
Il find myself utterly unable |
agree with the proposition that b,
cause the possession of intoxicatir
:. liquor is prohibited by State la
. (malum prohibitum and not nahum
!. SCI that therefore search for sue
liquors which results in their dL
> covery must not legally be commence
. with a search warrant. Such is Il
natural result OF the majority opinic
> in this case.
= For the reasons indicated above
= feel that no property Of defendal
| Illegally seized upon a search withot
warrant can be used in eviden,
against him IL timely objection
e made thereto