969 think when they come to arrest too readily, the purpose for protecting the criminal, but for the purpose of protecting the citizen. It is still sc, even in this country, that by far the major part of the population are going about attending to their business as peaceful and law-abiding, and only a small percentage of our people are criminals, the magazines to the contrary. The laws are being quite well enforced, some of these people to the contrary. And even in this country we are not all criminals yet; and the rights of the citizen against the Government-the right of the citizen as opposed to the right of the man holding a commission and a badge is still regarded as paramount, and I think it will continue; as long as civilization exists it will be so regarded. It is far more important that a reasonable measure of liberty be enjoyed by the citizen and crime be stopped. If it were conceivable that by increasing the forces of the law so as to enforce obedience, every act of every citizen could be supervised and policed and nobody could commit crime, I should secure my passport to another country without delay, because that kind of condition where men live under surveillance constantly is not law; it is tyranny. It seems the court is going a long way around in this matter to decide a little question of seizure, but I have to do that to fortify my gorge against the natural repulsion which I feel from letting a man who I know to be guilty to go free, and I think it is necessary for officers especially, and for citizens particularly, to keep constantly reminding themselves of the fact that any particular transgression is of no importance, a probable offense is of small consequence; it is the continual law enforcement that is of importance. And so while it is probably desirable for the Congress to extend the right, as they have done in many statutes, and the State also, of search and seizure without warrant, the Supreme Court has held recently that any law which authorizes the search of a home without warrant is void, but while it is permissible to extend it without a warrant, it ought to be, in the interest of decent government, the statute be not given any effect to destroy the constitutional guaranty against unreasonable searches and seizures, and in each case where the offier acting under the authority of the statute has made a search without a warrant, he shall be required to show to the satisfaction of the judicial officer who examines the evidence that the grounds for dispensing with the warrant in fact existed. So the Supreme Court has reached in the Carroll case and announced it, the idea which existed not so very far back, that it was proper for highways built and maintained by the State and Federal Government to be policed and patrolled by zealous officers, with the consequence of subjecting mer. driving on those highways to the necessity of stopping and making an account to the officer just because the officer wanted him to do it-the Supreme Court, I say, has clearly settled that that can not be done and the general stopping of the roads can not be done by anybody, and if it is true, as some say, that if they put a cordon across the public highways and compel the traveler to stand and deliver not only what he has got, but what he has not got, that the law can not be enforced, it is better that the law not be enforced. I would rather see the highways open for the 95 per cent of the citizens who drive them than to be subject to interference by officers, and let the other 5 per cent get by, rather than to see the highways stopped in order to catch the 5 per cent. And when I say I would rather, I am not talking personally, but I think I am speaking for the law. So if this were the case, where an immigration officer or a customs officer, or any other kind of officer had just thrown the barrier across the highway and said to the citizen, 'You stand and deliver, I want to see what you have got; you can not get by until I pass you,' I would have no hesitancy at all in saying that the search was absolutely unwarranted, and, further, that the officers who were the superiors of the person who made such a search ought to instruct their men better. Of course, I can see that is an administrative matter. If I were driving along the highway and an officer-customs officer or person authorized to look for anything that I might have-would have me stop, and in a polite and agreeable way ask me if I would mind assisting in catching some criminal, and ask me if I would mind him looking in my car, I would not be offended, unless I had something in there. But I do not think it is possible to issue a regulation or a rule to people searching the roads that way which will not be abused, because it is very difficult to put Chesterfields on the highways to handle that feature of the law, and it is difficult to handle a case without some man being disagreeable to the officer, or the officer being disagreeable to them. So far as I am concerned, they will have to make a very clear case on an open highway where a man is searched, and I will have to have some present knowledge before any person stopped on a highway will be considered at all. "This case, however, presents a very close question, in view of the nature of the place where the search occurred, and not only its proximity to the river, but the character of the road, the blocked-off cul-de-sac that was then being used, and the fact of the location of the search, coupled with the action of one of the men in the car in running when he saw the officer, has given me a great deal of trouble in deciding the primary question, whether if the officer had the power to make the search for liquor-and there are two counts in the case-whether the officer had that power, and, second, whether he exercised it properly. The peculiar facts in this case have made it very difficult for me to say whether that search was unreasonable if made by an officer authorized to search. I certainly would not want to lay down any general rule that a search made on a road of that character and that close to a river bank, where, from the mere appearance of an officer, one of the men in the car runs away, would not be good, if the officer who made it would testify that he believed from the place and the circumstances that there was contraband in the car. I say I would not like I would not want-any decision in this case to be considered as a holding by me that a search under these circumstances might not be justified, as a search made upon a sincere belief by an officer if he so testified and exhibited those circumstances. I certainly think that the closer the search is made to the border, the actual place of passage from one sovereignty to the other, the less overt facts would be required to justify it. I do not think, however, this case requires me to decide whether under those circumstances these officers were justified in making the search, because I believe that under the law they are special officers whose authority is limited to a search for aliens, and that their authority does not extend in any way to either an arrest or search for liquor, unless circumstances would be sufficient to justify a citizen in making such an arrest. Now, I know of no authority, at least I have never seen any, which authorizes a citizen to make a search. That seems to be a matter which is confided alone to officers, and usually under a warrant, and only without a warrant where I mean, without a warrant only where the officer believes and has good ground to believe that there is an offense committed, so that if I am right in my conclusion that the officers in this case had no right to search that car for liquor-I mean that immigration officers or patrol officers have no right to search for liquorthat is not their business-and if I believe that that is what they were doing, then the case is settled against the Government by the limitation which he law puts upon the authority of the officer, because there were no facts to justify a search if it had been done by a private citizen instead of an officer. I want to qualify what I said about a private citizen. I think if a private citizen made an arrest in a lawful way, he could search for the evidence of the crime just like an officer could. "Now, the statute which gives the immigration officer authority should not be given too tight a construction. It says that they have the authority to arrest an alien who is entering or attempting to enter the United States and to search any vehicle in which he believes aliens are being brought into the United States. Now, construed by the canons of precisions, that language will probably limit search to the actual act of entry, but by canons of reasonable construction it could not be construed that way without disturbing the act, since there would be no way to search a man who was actually entering, because he would be suspended in air-he would either be on the territory of the foreign country, where the officer had no right to go, or he would be suspended in the air with his body resting nowhere, and besides the statute refers to the right to search aliens within the territory or vessels within the territorial waters, which would indicate what the statute means-persons who are in the act of entering or of making their entry good. It is not the mere fact of crossing over the line, but it means making their entry good, and I think the reasonable construction of this statute would authorize the patrol officers to search vehicles upon reasonable ground, not only as they are crossing the border line, but after they enter the United States, and within any reasonable number of miles from a border. So that if I believed that the officers in this case searched that automobile for aliens with a reasonable ground, or believed that they had aliens in there, I think they would have had the right to do it, and I think they would not only have had the right to do it outside of that gate, but almost anywhere where an alien is likely to be after he gets into the United States, do I think the authority extends. The law has a practical purpose, and it must have a practical application, and if you limit the right of search to point of entry, it would be a foolish construction. "Now, did these officers make that search believing that there were aliens in the car? I do not think so. Or in defense to the testimony of the officer that was doing it, I mean this, that I do not think he believed he was therebelieved the alien was there and further, if he did believe he was, I do not believe he had any ground to believe it. So the frame of the finding is not made. I think that the statute which states that you can search when he believes must be construed to mean when he has ground to believe, and there being no evidence to indicate that there were any aliens in that car, and no evidence whatever to indicate that there was any information that there were any in the car, would be a kind of assumption instead of belief to say that the officer thought there was an alien in there. So far, then, as the authority of the patrol inspector who made the search in this case was by the statute limited to a search for the purpose of discovering aliens in a case in which he believed there were aliens in the vehicle, I find that the notion is well taken and that the evidence should be suppressed, and I do not decide whether if the search had been made by a customs officer or other officer authorized to search for liquor or other smuggled goods, it would have been reasonable. I leave that matter, as in fact I would have to do it if I decided this case, to the fact of each case, and the law is that with each particular case the officer mking the search must, as a matter of fidelity to his service in the first place and fidelity to the law in the second place, and at the peril of having no case in the third place, be able to demonstrate if his search is attacked that he believed that the law was being violated at the time and place of the search, and that there were reasonable grounds for his belief. In this case, since the officer could not have searched for liquor, no matter what his grounds of belief were, it is not necessary for me to decide primarily upon, and I turn the case upon the lack of the authority of the officer to make the search for liquor at all. The evidence is suppressed, and if that is all the evidence the Government has, there will be no trial. The Government and the defense can decide about that." |