1. When it is clear and undisputed that property used in
evidence against a defendant on a criminal trial was procured by
the Government through an unconstitutional search and seizure in
his home, his petition for its return is not too late when made
immediately after the jury was sworn, and his motion to exclude the
property, and testimony concerning it, from evidence should not be
denied as inviting a collateral issue. P.
255 U. S.
316.
2. The act of a man's wife in allowing government officers to
enter his home without a warrant upon their demand for admission
for the purpose of making a search is
held not to be a
waiver of his constitutional
Page 255 U. S. 314
privilege against unreasonable search and seizure, even assuming
that a wife may waive her husband's right in that regard. P.
255 U. S. 317.
Reversed.
MR. JUSTICE CLARKE delivered the opinion of the Court.
The plaintiff in error, whom we shall designate defendant, as he
was in the court below, was tried on an indictment containing six
counts. He was found not guilty on the first four counts, but
guilty on the fifth, which charged him with having removed whisky
on which the revenue tax had not been paid to a place other than a
government warehouse, and also on the sixth, which charged him with
having sold whisky on which the tax required by law had not been
paid.
After the jury was sworn, but before any evidence was offered,
the defendant presented to the court a petition, duly sworn to by
him, praying that there be returned to him described private
property of his which it was averred the District Attorney intended
to use in evidence at the trial and which had been seized by P. J.
Coleman and C. A. Rector, officers of the Government, in a search
of defendant's house and store "within his curtilage," made
unlawfully and without warrant of any kind, in violation of his
rights under the Fourth and Fifth Amendments to the Constitution of
the United States.
Upon reading of this petition and hearing of the
application,
Page 255 U. S. 315
it was denied, and, exception being noted, the trial
proceeded.
Coleman and Rector were called as witnesses by the Government,
and testified: that, as deputy collectors of internal revenue, they
went to defendant's home, and, not finding him there, but finding a
woman who said she was his wife, told her that they were revenue
officers and had come to search the premises "for violations of the
revenue law"; that thereupon the woman opened the store and the
witnesses entered, and in a barrel of peas found a bottle
containing not quite a half pint of illicitly distilled whisky,
which they called "blockade whisky"; and that they then went into
the home of defendant, and, on searching, found two bottles under
the quilt on the bed, one of which contained a full quart and the
other a little over a quart of illicitly distilled whisky. The
Government introduced in evidence a pint bottle containing whisky,
which the witness Coleman stated
"was not one of the bottles found by him, but that the whisky
contained in the same was poured out of one of the two bottles that
had been found in defendant's house on the bed under the quilt, as
stated."
On cross-examination, both witnesses testified that they did not
have any warrant for the arrest of the defendant, nor any search
warrant to search his house, and that the search was made during
the daytime, in the absence of the defendant, who did not appear on
the scene until after the search had been made.
After these two government witnesses had described how the
search was made of defendant's home without warrant either to
arrest him or to search his premises, a motion by counsel to strike
out their testimony was denied and exception noted.
This statement shows that the trial court denied the petition of
the defendant for a return of his property, seized in the search of
his home by government agents without warrant of any kind, in plain
violation of the
Page 255 U. S. 316
Fourth and Fifth Amendments to the Constitution of the United
States, as they have been interpreted and applied by this court in
Boyd v. United States, 116 U. S. 616, in
Weeks v. United States, 232 U. S. 383, and
in
Silverthorne Lumber Co. v. United States, 251 U.
S. 385, and also denied his motion to exclude such
property and the testimony relating thereto given by the government
agents after both were introduced in evidence against him, when he
was on trial for a crime as to which they constituted relevant and
material evidence, if competent.
The answer of the Government to the claim that the trial court
erred in the two rulings we have described is that the petition for
the return of defendant's property was properly denied because it
came too late when presented after the jury was impaneled and the
trial, to that extent, commenced, and that the denial of the motion
to exclude the property and the testimony of the government agents
relating thereto, after the manner of the search of defendant's
home had been described, was justified by the rule that in the
progress of the trial of criminal cases courts will not stop to
frame a collateral issue to inquire whether evidence offered,
otherwise competent, was lawfully or unlawfully obtained.
Plainly, the questions thus presented for decision are ruled by
the conclusions this day announced in No. 250,
Gouled v. United
States, ante, 255 U. S. 298.
There is nothing in the record to indicate that the allegations
of the petition for the return of the property, sworn to by the
defendant, were in any respect questioned or denied, and the report
of the examination and appropriate cross-examination of the
government's witnesses, called to make out its case, shows clearly
the unconstitutional character of the seizure by which the property
which it introduced was obtained. The facts essential to the
disposition of the motion were not and could not be denied; they
were literally thrust upon the attention of the court
Page 255 U. S. 317
by the Government itself. The petition should have been granted,
but, it having been denied, the motion should have been
sustained.
The contention that the constitutional rights of defendant were
waived when his wife admitted to his home the government officers,
who came, without warrant, demanding admission to make search of it
under government authority, cannot be entertained. We need not
consider whether it is possible for a wife, in the absence of her
husband, thus to waive his constitutional rights, for it is
perfectly clear that, under the implied coercion here presented, no
such waiver was intended or effected.
It results that the judgment of the District Court must be
reversed and the case remanded for further proceedings in
accordance with this opinion.
Reversed.