noting that the place to “be searched should be designated with sufficient accuracy to prevent the officer from searching the premises of one person under a warrant directed against those of another”
How later courts described this case
- noting that the place to “be searched should be designated with sufficient accuracy to prevent the officer from searching the premises of one person under a warrant directed against those of another”
Written by the judges who cited it.
The opinion
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Me,. Chiee Justice Gee-est
(dissenting).
It seems to me that in this case the Court has sanctioned procedure below which flouts the provisions of Section 7, article 1, of the Tennessee Constitution and Section 118991 of the Code. The constitutional provision protects the people “in their persons, houses, papers and possessions, from unreasonable searches and seizures,” and the Code section provides that a search warrant “can only be issued on a probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched. ’ ’
The affidavit upon which the search warrant herein issued was based on information given to the affiant by a reliable person that “he saw a quantity of intoxicating liquors stored” in the dwelling house of the defendants.
There are many varieties of intoxicating liquors. The receipt, possession and transportation of .intoxicating liquors with an alcoholic content of less than five per cent is permissible in all counties of the State. While Wilson County is what is known as a dry county, since the enactment of Chapter 69 of the Acts of 1933, as amended by Chapter 170 of the Acts of 1935/ it is not an offense to possess these liquors of small alcoholic content in that territory.
To charge one with the possession of intoxicating liquors in a dry county is not equivalent to a charge of an offense, or of the possession of an article “with the intent to use it as a means of committing a public offense.
’7
Certainly in volume more beer and light wines will be found in .the possession of people over the State than whiskey, brandy or other ardent spirits.
Under the statutory requirement probable cause must exist for the issuance of a search warrant. There is only
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possible canse for the issuance of that writ when one is charged broadly with the possession of intoxicating liquors. A search warrant issued upon the possibility of a violation of the law is a search warrant issued on suspicion, and a search based on mere suspicion is hot anywhere regarded as a reasonable search.
I do not understand how the majority opinion can be justified in the face of the statute’s prohibition of the issuance of a search warrant except upon affidavit “particularly describing the property, and the place to be searched.” A particular description of articles is a specific description — a designation of a “subclass which falls under some general concept.” Webster’s New International Dictionary.
Reasonable particularity would surely require more than a general description embracing both things lawfully received and possessed and things unlawfully received and possessed. We have repeatedly held that a description of the place, equally applicable to another place, was bad. The statute requires that place and property be described with like precision. Our statute should control regardless of decisions elsewhere, and in passing it may be noted that the cases cited in the majority opinion arose when all intoxicating liquor was contraband. I do not mean to suggest that liquors should be described by brand but the affidavit should describe them as whiskey or brandy or some liquor which might properly be seized.
The basis of the Court’s opinion must be that beer, ale, light wines and liquors of that character are not intoxicating liquors. In the opinion it is said, “One invited to have a drink of Tiquor’ would be surprised and usually disappointed by tender of a bottle of beer.” I am not prepared to controvert this suggestion as to the reaction of the majority, when responding to an invitation to have
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a drink of liqnor, they are offered beer. It remains, however, that our statutes and the decisions of this Court have always treated beer, ale and wines as intoxicating liquors. Many sections of the Code dealing with intoxicating liquors. Sections 11208, 11215, and others, refer to “intoxicating liquors, including wine, ale, and beer.” The Legislature thus undertook to remove any question about the matter.
McKeel v. State,
156 Tenn., 331 , 1 S. W. (2d), 784 , cited by the majority, decided prior to the Act. of 1933, did not hold that home brew was not an intoxicating liquor, but following
Hayes
v.
State,
145 Tenn., 629, 630 , 237 S. W., 1104 , merely held that the bare possession of home brew was not an offense. ’ The cause was remanded for a new trial, defendant having been indicted for selling and transporting as well as for possessing intoxicating liquors. It was said that the court should instruct the jury that if defendant did not personally transport, nor receive the home brew from another but made it on his own premises, he would not be guilty of unlawfully possessing liquor.
Iiayes
v.
State
dealt with whiskey. The bare possession of whiskey was there held not to be an offense. It was no more intended in the one case than in the other to say that the liquor dealt with was not intoxicating.
Other authorities relied on fail to sustain the Court’s conclusion herein. A comparison of the affidavit for a search warrant with an indictment is wholly inapt. An indictment is a mere pleading. An affidavit is the evidence upon which the magistrate adjudges that the warrant shall issue. While an indictment charging merely the possession of intoxicating liquors received from another might be good I presume that no conviction would
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be sustained unless it was proven that the liquors were of an alcoholic content exceeding five per cent.
Armstrong
v.
State,
150 Tenn., 416 , 265 S.
W.,
672 (1924), rather supports my view of the case. It was there said that in common use the word liquor was taken to mean intoxicating liquor and that the search warrant need not further describe the property. The affidavit upon which the search warrant issued charged a transportation of whiskey and a sale of whiskey. I still think that the word liquor is taken to mean intoxicating liquor and further that it includes beer.
This Court has gone far in sustaining searches in the effort to aid law enforcement. There are limits, however, beyond which we should not stretch’ constitutional and statutory restrictions. The right of search is carefully guarded by the constitution and by the statutes. The experience of our ancestors required such precautions.
If the affiant desiring a search warrant, or his informant, really knows anything, it is an easy matter for him to say that the intoxicating liquor unlawfully possessed is whiskey or brandy or liquor of that class.
The defendant Lea in the case before us was doubtless bootlegging and is entitled to no great sympathy. I think, however, the principle to be drawn from the decision will give trouble. There' are many things such as food, drugs, seeds, and even papers which may be possessed illegally or with intent to use “as a means of committing a public offense.” Any of these things may be described by a general term which would include things lawful as well as things illicit.. Under the ruling herein the grocer, the druggist, the seed merchant and the citizen may have his premises entered and ransacked upon an affidavit, the statements of which are entirely consistent with his innocence.
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It does not help to describe property to be seized as property possessed illegally or with illegal intent. That commits to the officer the judicial discretion which the magistrate should exercise as to what property is to be seized.