The fact that papers which are pertinent to the issue may have
been illegally taken from the possession of the party against whom
they are offered is not a valid objection to their admissibility.
The court considers the competency of the evidence, and not the
method by which it was obtained.
There is no violation of the constitutional guaranty of
privilege from unlawful searches and seizures in admitting as
evidence in a criminal trial, papers found in the execution of a
valid search warrant prior to the indictment, and by the
introduction of such evidence defendant is not compelled to
incriminate himself.
It is within the established power of a state to prescribe the
evidence which is to be received in its own courts. The provisions
of §§ 344
a and 344
b of the Penal Code of New York
making the possession of policy slips by a person other than a
public officer presumption of possession
Page 192 U. S. 586
knowingly in violation of law are not violative of the
Fourteenth Amendment, are not unconstitutional as depriving a
citizen of his liberty or property without due process of law, and
do not, on account of the exception as to public officers, deprive
him of the equal protection of the laws. A suggested construction
of a state statute which would lead to a manifest absurdity and
which has not and is not likely to receive judicial sanction will
not be accepted by this Court as the basis of declaring the statute
unconstitutional when the courts of the state have given it a
construction which is the only one consistent with its purposes and
under which it is constitutional.
This is a writ of error to the supreme court of the State of New
York. The plaintiff in error at the April term, 1903, of the
supreme court of the State of New York, was tried before one of the
justices of that court and a jury, and convicted of the crime of
having in his possession, knowingly, certain gambling paraphernalia
used in the game commonly known as policy, in violation of §
344
a of the Penal Code of the State of New York. This
section and the one following, section 344
b, relating to
the offense in question, are as follows:
"SEC. 344
a. Keeping Place to Play Policy. -- A person
who keeps, occupies, or uses, or permits to be kept, occupied, or
used, a place, building, room, table, establishment, or apparatus
for policy playing, or for the sale of what are commonly called
'lottery policies,' or who delivers or receives money or other
valuable consideration in playing policy, or in aiding in the
playing thereof, or for what is commonly called a 'lottery policy,'
or for any writing, paper, or document in the nature of a bet,
wager, or insurance upon the drawing or drawn numbers of any public
or private lottery; or who shall have in his possession, knowingly,
any writing, paper, or document, representing or being a record of
any chance, share, or interest in numbers sold, drawn, or to be
drawn, or in what is commonly called 'policy,' or in the nature of
a bet, wager, or insurance, upon the drawing or drawn numbers of
any public or private lottery, or any paper, print, writing,
numbers, device, policy slip, or article of any kind such as is
commonly used in carrying on, promoting, or playing the game
commonly called 'policy;' or who is the owner, agent,
superintendent, janitor, or caretaker of any place, building, or
room where policy playing
Page 192 U. S. 587
or the sale of what are commonly called 'lottery policies' is
carried on with his knowledge, or, after notification that the
premises are so used, permits such use to be continued, or who
aids, assists, or abets in any manner, in any of the offenses,
acts, or matters herein named, is a common gambler and punishable
by imprisonment for not more than two years, and in the discretion
of the court, by a fine not exceeding one thousand dollars, or
both."
"SEC. 344
b. Possession of Policy Slip, etc.,
Presumptive Evidence. -- The possession, by any person other than a
public officer, of any writing, paper, or document representing or
being a record of any chance, share, or interest in numbers sold,
drawn, or to be drawn, or in what is commonly called 'policy,' or
in the nature of a bet, wager, or insurance upon the drawing or
drawn numbers of any public or private lottery, or any paper,
print, writing, numbers, or device, policy slip, or article of any
kind, such as is commonly used in carrying on, promoting, or
playing the game commonly called 'policy,' is presumptive evidence
of possession thereof knowingly and in violation of the provisions
of section three hundred forty-four
a."
The assignments of error in this Court are:
"
First. That the court erred in holding that, by the
reception in evidence of the defendant's private papers seized in
the raid of his premises, against his protest and without his
consent, which had no relation whatsoever to the game of policy,
for the possession of papers used in connection with which said
game he was convicted, his constitutional right to be secure in his
person, papers, and effects against unreasonable searches and
seizures was not violated, and that he was also thereby not
compelled to be a witness against himself, in contravention of the
Fourth, Fifth and Fourteenth Articles of Amendment to the
Constitution of the United States."
"
Second. That the court erred in holding that the
statute, sections 344
a, 344
b, of the Penal Code
of the State of New York, under which the indictment against the
plaintiff in error was found and his conviction was had, did not
deprive him of rights, privileges, and immunities secured to other
citizens of
Page 192 U. S. 588
the United States and of said State of New York, nor of liberty
or property, without due process of law, nor of the equal
protection of the laws, in violation of section 1 of the Fourteenth
Article of Amendment to the Constitution of the United States."
"
Third. That the court erred in affirming the judgment
of conviction, and in refusing to discharge the plaintiff in error
from custody."
The game of policy referred to in the sections of the statute
quoted is a lottery scheme carried on, as shown in the testimony,
by means of certain numbers procured at the shop or place where the
game is played, and consists in an attempt to guess whether one or
more of the series held by the player will be included in a list of
twelve or at times thirteen of the numbers between one and
seventy-eight, which are supposed to be drawn daily at the
headquarters of the operators of the game. A person desiring to
play the game causes the numbers to be entered on series of slips
or manifold sheets. One of these pieces of paper containing the
combination played by the person entering the game is kept by him
and is known as a policy slip. Drawings are held twice a day, and
the holder of the successful combination receives the money which
goes to the winner of the game. About 3,500 of these slips were
found in the office occupied by the plaintiff in error, which was
searched by certain police officers holding a search warrant. The
officers took not only the policy slips, but certain other papers,
which were received in evidence against the plaintiff in error at
the trial, against his objection, for the purpose of identifying
certain handwriting of the defendant upon the slips, and also to
show that the papers belonged to the defendant, and were in the
same custody as the policy slips.
So far as the case presents a federal question, the Court of
Appeals of the State of New York held (176 N.Y. 351) that the
Fourth and Fifth Amendments to the Constitution of the United
States do not contain limitations upon the power of the states, and
proceeded to examine the case in the light of similar provisions in
the Constitution and Bill of Rights of that state.
Page 192 U. S. 594
MR. JUSTICE DAY delivered the opinion of the Court.
We do not feel called upon to discuss the contention that the
Fourteenth Amendment has made the provisions of the Fourth and
Fifth Amendments to the Constitution of the United States, so far
as they relate to the right of the people to be secure against
unreasonable searches and seizures and protect them against being
compelled to testify in a criminal case against themselves,
privileges and immunities of citizens of the United States of which
they may not be deprived by the action of the states. An
examination of this record convinces us that there has been no
violation of these constitutional restrictions, either in an
unreasonable search or seizure or in compelling the plaintiff in
error to testify against himself.
No objection was taken at the trial to the introduction of the
testimony of the officers holding the search warrant as to the
seizure of the policy slips; the objection raised was to receiving
in evidence certain private papers. These papers became important
as tending to show the custody by the plaintiff in error, with
knowledge, of the policy slips. The question was not made in the
attempt to resist an unlawful seizure of the private papers of the
plaintiff in error, but arose upon objection to the introduction of
testimony clearly competent as tending to establish the guilt of
the accused of the offense charged. In such cases, the weight of
authority as well as reason limits the inquiry to the competency of
the proffered testimony, and the courts do not stop to inquire as
to the means by which the evidence was obtained. The rule is thus
laid down in Greenleaf, vol. 1, section 254
a:
Page 192 U. S. 595
"It may be mentioned in this place that, though papers and other
subjects of evidence may have been illegally taken from the
possession of the party against whom they are offered or otherwise
unlawfully obtained, this is no valid objection to their
admissibility if they are pertinent to the issue. The court will
not take notice how they were obtained, whether lawfully or
unlawfully, nor will it form an issue to determine that
question."
The author is supported by numerous cases. Of them, perhaps, the
leading one is
Commonwealth v. Dana, 2 Met. 329, in which
the opinion was given by Mr. Justice Wilde, in the course of which
he said:
"There is another conclusive answer to all these objections.
Admitting that the lottery tickets and materials were illegally
seized, still this is no legal objection to the admission of them
in evidence. If the search warrant were illegal, or if the officer
serving the warrant exceeded his authority, the party on whose
complaint the warrant issued, or the officer, would be responsible
for the wrong done; but this is no good reason for excluding the
papers seized as evidence if they were pertinent to the issue, as
they unquestionably were. When papers are offered in evidence, the
court can take no notice how they were obtained, whether lawfully
or unlawfully; nor would they form a collateral issue to determine
that question. This point was decided in the cases of
Legatt v.
Tollervey, 14 East 302, and
Jordan v. Lewis, 14 East
306, note, and we are entirely satisfied that the principle on
which these cases were decided is sound and well established."
This principle has been repeatedly affirmed in subsequent cases
by the Supreme Judicial Court of Massachusetts -- among others,
Commonwealth v. Tibbetts, 157 Mass. 519. In that case, a
police officer, armed with a search warrant calling for a search
for intoxicating liquors upon the premises of the defendant's
husband, took two letters which he found at the time. Of the
competency of this testimony, the court said:
"But two points have been argued. The first is that the
criminatory articles and letters found by the officer in the
defendant's possession were not admissible in evidence because
Page 192 U. S. 596
the officer had no warrant to search for them, and his only
authority was under a warrant to search her husband's premises for
intoxicating liquors. The defendant contends that, under such
circumstances, the finding of criminatory articles or papers can
only be proved when, by express provision of statute, the
possession of them is itself made criminal. This ground of
distinction is untenable. Evidence which is pertinent to the issue
is admissible although it may have been procured in an irregular or
even in an illegal manner. A trespasser may testify to pertinent
facts observed by him, or may put in evidence pertinent articles or
papers found by him while trespassing. For the trespass he may be
held responsible civilly, and perhaps criminally, but his testimony
is not thereby rendered incompetent."
Commonwealth v. Acton, 165 Mass. 11;
Commonwealth
v. Smith, 166 Mass. 370.
To the same effect are
Chastang v. State, 83 Ala. 29;
State v. Flynn, 36 N.H. 64. In the latter case, it was
held:
"Evidence obtained by means of a search warrant is not
inadmissible either upon the ground that it is in the nature of
admissions made under duress or that it is evidence which the
defendant has been compelled to trade and commerce; that the
evidence has been unfairly or illegally obtained, even if it
appears that the search warrant was illegally issued."
State v. Edwards, 51 W.Va. 220;
Shields v.
State, 104 Ala. 35;
Bacon v. United States, 97 F. 35;
State v. Atkinson, 40 S.C. 363,;
Williams v.
State, 100 Ga. 511;
State v. Pomeroy, 130 Mo. 489;
Gindrat v. People, 138 Ill. 103;
Trask v. People,
151 Ill. 523;
Starchman v. State, 62 Ark. 538.
In this Court, it has been held that, if a person is brought
within the jurisdiction of one state from another, or from a
foreign country, by the unlawful use of force which would render
the officer liable to a civil action or in a criminal proceeding
because of the forcible abduction, such fact would not prevent the
trial of the person thus abducted in the state wherein he had
committed an offense.
Ker v. Illinois, 119 U.
S. 436;
Mahon v. Justice, 127 U.
S. 700. The case most relied upon in argument by
plaintiff in error is the leading one of
Page 192 U. S. 597
Boyd v. United States, 116 U.
S. 616. In that case, a section of the customs and
revenue laws of the United States authorized the court in revenue
cases, on motion of the government's attorney, to require the
production by the defendant of certain books, records, and papers
in court, otherwise the allegation of the government's attorney as
to their contents to be taken as true. It was held that the act was
unconstitutional and void as applied to a suit for a penalty or a
forfeiture of the party's goods. The case has been frequently cited
by this Court, and we have no wish to detract from its authority.
That case presents the question whether one can be compelled to
produce his books and papers in a suit which seeks the forfeiture
of his estate on pain of having the statements of government's
counsel as to the contents thereof taken as true and used as
testimony for the government. The Court held, in an opinion by Mr.
Justice Bradley, that such procedure was in violation of both the
Fourth and Fifth Amendments; the Chief Justice and Justice Miller
held that the compulsory production of such documents did not come
within the terms of the Fourth Amendment as an unreasonable search
or seizure, but concurred with the majority in holding that the law
was in violation of the Fifth Amendment. This case has been cited
and distinguished in many of the cases from the state courts which
we have had occasion to examine.
The Supreme Court of the State of New York, before which the
defendant was tried, was not called upon to issue process or make
any order calling for the production of the private papers of the
accused, nor was there any question presented as to the liability
of the officer for the wrongful seizure, or of the plaintiff in
error's right to resist with force the unlawful conduct of the
officer, but the question solely was were the papers found in the
execution of the search warrant, which had a legal purpose in the
attempt to find gambling paraphernalia, competent evidence against
the accused? We think there was no violation of the constitutional
guaranty of privilege from unlawful search or seizure in the
admission of this testimony. Nor do we think the accused was
compelled to incriminate himself. He did not take the witness stand
in his
Page 192 U. S. 598
own behalf, as was his privilege under the laws of the State of
New York. He was not compelled to testify concerning the papers or
make any admission about them.
The origin of these amendments is elaborately considered in Mr.
Justice Bradley's opinion in the
Boyd case,
supra. The security intended to be guaranteed by the
Fourth Amendment against wrongful search and seizures is designed
to prevent violations of private security in person and property
and unlawful invasion of the sanctity of the home of the citizen by
officers of the law, acting under legislative or judicial sanction,
and to give remedy against such usurpations when attempted. But the
English and nearly all of the American cases have declined to
extend this doctrine to the extent of excluding testimony which has
been obtained by such means if it is otherwise competent. In
Boyd's case, the law held unconstitutional virtually
compelled the defendant to furnish testimony against himself in a
suit to forfeit his estate, and ran counter to both the Fourth and
Fifth Amendments. The right to issue a search warrant to discover
stolen property or the means of committing crimes is too long
established to require discussion. The right of seizure of lottery
tickets and gambling devices such as policy slips under such
warrants requires no argument to sustain it at this day. But the
contention is that if, in the search for the instruments of crime,
other papers are taken, the same may not be given in evidence. As
an illustration, if a search warrant is issued for stolen property,
and burglars' tools be discovered and seized, they are to be
excluded from testimony by force of these amendments. We think they
were never intended to have that effect, but are rather designed to
protect against compulsory testimony from a defendant against
himself in a criminal trial, and to punish wrongful invasion of the
home of the citizen or the unwarranted seizure of his papers and
property, and to render invalid legislation or judicial procedure
having such effect.
It is further urged that the law of the State of New York §
344
b, which makes the possession by persons other than a
public officer of papers or documents, being the record of chances
or slips in what is commonly known as
Page 192 U. S. 599
policy, or policy slips, or the possession of any paper, print,
or writing commonly used in playing or promoting the game of policy
presumption of possession thereof knowingly in violation of section
344
a is a violation of the Fourteenth Amendment to the
Constitution of the United States in that it deprives a citizen of
his liberty and property without due process of law. We fail to
perceive any force in this argument. The policy slips are property
of an unusual character, and not likely, particularly in large
quantities, to be found in the possession of innocent parties. Like
other gambling paraphernalia, their possession indicates their use
or intended use, and may well raise some inference against their
possessor in the absence of explanation. Such is the effect of this
statute. Innocent persons would have no trouble in explaining the
possession of these tickets, and, in any event, the possession is
only
prima facie evidence, and the party is permitted to
produce such testimony as will show the truth concerning the
possession of the slips. Furthermore, it is within the established
power of the state to prescribe the evidence which is to be
received in the courts of its own government.
Fong Yue Ting v.
United States, 149 U. S. 698,
149 U. S.
729.
It is argued lastly that section 344
b is
unconstitutional because the possession of the policy tickets is
presumptive evidence against all except public officers, and it is
urged that public officials, from the governor to notaries public,
would thus be excluded from the terms of the law which apply to all
nonofficial persons. This provision was evidently put into the
statute for the purpose of excluding the presumption raised by
possession where such tickets or slips are seized and are in the
custody of officers of the law. This was the construction given to
the act by the New York courts, and is the only one consistent with
its purposes. The construction suggested would lead to a manifest
absurdity, which has not received, and is not likely to receive,
judicial sanction. We find nothing in the record before us to
warrant a reversal of the conclusions reached in the New York Court
of Appeals, and its
Judgment will be affirmed.
