Milford chronicle., 1922-10-06
ILLEGAL SEIZURE OF
LIQUOR DOES NOT
WARRANT RETURN
Majority of Court Also Rules it
May Be Used AS Evidence
In Prosecution.

May Be Used As Evidence
In Prosecution.
JUDGE RODNEY DISSENTS
In the case of the State of Della
ware VS.. Wasyl Chuchola, an indict-
ment for the illegal possession OF
spirituOus liquors, Chief Justice Pen
Inewill handed down last week the foa-
lowing opinion on a motion for the 1e-
turn or destruction of liquors illegal
ly seized:
"The statute under which the de-
fendant was indicted is in part as fol-
lows: 1T shall be unlawful for any
person to have in his or her posses
sion, at any one time, more than one
quart of spirituOus liquors. Chapter
10 (2), 20 Laws of Delaware, 10.
There are two questions to be con-
sidered: 1. Must the liquor that was
seized be returned or destroyed by or
der of the court, upon the application
of the defendant made before the trial,
so that it cannot be used against him
as evidence at his trial?
SO. Can the defendant be indicted
for the unlawful possession of liquors
when paragraph of the law of this
state, commonly known as the Loose
Law" provides that the person in
charge of the premises where such
liquors are found, shall be subject to
trial on the charge of selling or keep
ing or storing for sale unlawfully such
liquors?
"The rea1 question before us is, can
intOxicating$ liquors, the possession of
which is unHawftl, found and seized
in defen ldant's house without Il war
rant, be used in evidence against him
at his trial?
Whatever may have been the law
before, the U. S. Supreme Court has
held in the latter cases that papers,
documents and other private property,
seized in the house or Office of the
owner, without warrant, cannot be
used in evidence at the trial, if their
return is asked for at the proper time,.
because the seizure was in violation
of the Fourth Amendment to the Fed
eral Constitution, which provides that
The right of the people to be secure
in their possessions, houses, papers
and effects, against unreasonable
and seizures, shall not be
etc.
"It has also been decided by the
said Supreme Court that property seiz- !
ed without a warrant must be return
ed to the owner if application there :
for is seasonably made before the
trial.
-, 10
tional connection between the illegal
seizure and the use Uf the thing seiZ-
ed as evidence. The act the constitu-
tion prohibits is the seizure, not the ,
use of the article seized. The violation /
Of the constitutional provision would .
seem to be complete when the seizure
Is made, and in that case the only
remedy or redress the wrOnged party
has is an action against the wrong
loer, the person who made the seiz-
Ire.
at is argued that if every article,
he possession of which is made un-
awful by statute, is admissible in ev-
dence although illegally seized, the
legislature can nullify to a great ex-
ent the constitutional guarantee. The
made in many cases against
seizures with warrant and searches T.
Without a warrant after legal arrest.
But the courts have generally held
hat such seizures were not unreasOn-
.ble and that such searches were not
Illegal. And we think that if articles
ire illegally seized that belong to the
corpus deliciti their use in evidence is
lot violation of any constitutional
PROVISION.
"But the Supreme Court has said
that property illegally seized
annot be used in evidence and must
,e returned if restoration is season.
bly, asked for. That conclusion may
e Ineligible and reasonable if the
hing taken was something the per-
on had a right to hold. Even though
person be suspected of a crime, if
is property has been taken from him
legally, it would seem that it should (
e returned to him in a proper pro-
eeding, regardless of indictment or
pproaching trial. If it is his property
nd his possession is lawful it is con-
eivable that he has right to its re-
toration. But it does seem to us that
the article illegally seized was some
hing in which the suspect could have
o right of property, its possession
-as unlawful, and it constituted in
lct, the corpus deficit, il should not
e returned or destroyed"
Dissenting Opinion
Judge Rodney, in his dissenting
pinion, said:
"The Constitution of Delaware con-
inns the following provisions:
Article 1, Section 6. "'The people
lal be secure in their persons, hous-
), papers and possessions from un- y
,asonable searches and seizures; and q
} warrant to search any place, or to
,ize any person or thing shall issue
ithout describing them as particu-
rly as may be; nor then, unless
ere be probable cause supported by
Lth or affirmation.
"This article is not only a consti-
tional provision but it forms a part
the Bill of Rights to which is added
ese impressive words, we declare
at everything in this Article is Re
rived out of the General Powers of
)vernment hereinafter mentioned
''The possession of liquor by an in
vidual is admittedly unlawful, but is
at any reason why the State itself
ay unlawfully seize it from the in
vidual?
can unlawful search cannot be JUS