# State v. Tonn > Supreme Court of Iowa · January 16, 1923 · 195 Iowa 94 URL: https://www.frixlaw.com/law-library/cases/7120073 ## Case - **Full name:** State of Iowa v. Henry Tonn - **Court:** Supreme Court of Iowa - **Decided:** January 16, 1923 - **Citations:** 195 Iowa 94 - **Precedential status:** Published - **Opinion:** Dissent by Weaver - **Judges:** Arthur, Evans, Faville, Graee, Preston, Stevens, Weaver - **Cited by:** 73 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7120073 ## How later opinions describe it (automated extraction) - recognizing the decided weight of state authority against the rule of a federal case and determining we would forge a different path - rejecting the exclusionary rule adopted by the United States Supreme Court for seizures of evidence by federal agents - rejecting a lockstep approach to the interpretation of article I, section 8 of the Iowa Constitution in favor of an interpretation of the warrant requirement adopted by other states ## Opinion text Weaver, J,— (dissenting). I concur in the majority opinion in so far as it relates to the error found in the trial court’s charge to the jury, but beg leave to dissent from the argument and conclusion therein expressed upon the admissibility of the evidence obtained by seizure and search of the defendant’s property. Stated as briefly as practicable, the reasons which influence me to withhold my concurrence in this holding by the majority are as follows: I. Without attempting to follow in detail the discussion indulged in by the majority, I have first to say that there is no apparent good reason why we should overrule our former holdings as to the inadmissibility of evidence against the defendant which has been obtained by unreasonable or unlawful search or seizure, in violation of the eon *117 stitutional prohibition of such acts. That guaranty of protection has its origin in the express language of the Fourth Amendment to the Constitution of the United States, and was adopted and re-enacted as a part of the Constitution of Iowa, Article 1, Section 8. Naturally and properly, when the construction of this provision came up for consideration by the Iowa court, one of its first inquiries had reference to ■ the construction, if any, placed upon it by the Supreme Court of the United States. There is no better established rule than that, when a state court undertakes to interpret or apply a statute which has been borrowed or adopted from a sister state, it will follow the judicial construction which has been placed upon it by the courts of the state in which it had its origin. The reason and propriety of this rule as between the several states apply with even stronger force as between the state and the Federal government; and the latter having by its court of last resort clearly interpreted the meaning and effect of the provisions, we could not reasonably do otherwise than recognize its controlling authority. This we did in State v. Height, 1Í7 Iowa 650; in State v. Sheridan, 121 Iowa 164 ; and in State v. Rowley, recently decided, and now pending on a petition for rehearing. That those cases were properly decided is shown by the repeated decisions of the Federal court. Boyd v. United States, 116 U. S. 616 ; Gouled v. United States, 255 U. S. 298 ; Amos v. United States, 255 U. S. 313 ; Weeks v. United States, 232 U. S. 383 . And see Newberry v. Carpenter, 107 Mich. 567 ; Town of Blacksburg v. Beam, 104 S. C. 146 ( 88 S. E. 441 ); Silverthorne w. United States, 251 U. S. 385 . It is, of course, to be admitted that certain state courts seem to be committed to the opposite view; but many, if not most, of the cases cited by the majority as opposed to the doctrine of the Federal cases are not really in point, in that they have been decided in states not having a constitutional guaranty identical with that of the Fourth Amendment to the national Constitution, and in others, the constitutional provision discussed has been one which Iowa does not have in express terms, to the effect that the defendant in a criminal prosecution shall not be compelled to be a witness against himself. The substance of the holdings in these cases is that pertinent evidence is not inad *118 missible, or at least not necessarily inadmissible, merely because of tbe means employed in obtaining it.' The very most which can be said for the view expressed by the majority is that there are two diverging lines of precedents upon the proposition involved, each of which has the support of respectable authority. We have long since chosen to follow the one established and adhered to by the Supreme Court of the United States, and I have yet to see or hear any sound argument for introducing confusion into our cases by reversing ourselves and repudiating the lead of the one court which above all others is in position to speak upon the subject with controlling effect. Moreover, as an original proposition, I insist that, if the constitutional guaranty which is discussed in the Weeks, Boyd, Gouled, and Silverihorne eases by the Federal court, and by the I-Ieiglit, Sheridan, and Rowley cases by this court, means anything, if it is not to' be reduced to a mere soulless form of words, no construction thereof is possible which is not substantially in accord with the doctrine of those precedents. In the face of our constitutional guaranties, I confess it is not a little disconcerting to find the Supreme Court of Iowa putting itself on record in quoting approvingly and giving its adherence to the proposition that evidence is admissible “however unfairly and illegally obtained,” even when it is procured under the circumstances which “meet with the unqualified disapprobation of the courts,” so long as the accused has not been “compelled to-do some positive, affirmative act inculpating himself.” It is to the everlasting credit of the Supreme Court of the United States that it has firmly resisted the inclination to thus even inferentially lend its powerful influence to the breaking down of the protection which the Constitution provides for all citizens; the prisoner at the bar, no less than the richest and most .exalted individual in society. Upon this feature of the case I cannot forbear quoting from the opinion of Holmes, J., in the Silverthorne ease, supra. In that case, as in this, the prosecutor had obtained certain documents taken from the office of the defendants without legal authority, and, as in the present case, a motion was made to require a return or surrender to the owiier of the material so obtained. ' The prosecution sought to avail itself of the evi *119 dence so ■ obtained, on the theory adopted by the majority in this case. Refusing to permit it, the court said: ‘ ‘ The government, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means, which otherwise it would not have had. The proposition could not be presented more nakedly. It is that, although, of course, its seizure was an outrage which the government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained, to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession, but not any advantages that the government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383 , to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required, instead of one. In our opinion, such is not the law. It reduces the Fourth Amendment to a form of words. * * * The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. Of course, this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be proved like any others; but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed.” It seems little less than solemn mockery for us to protest our devotion to the “sacred constitutional right,” or our virtuous purpose to rigidly enforce it, and in the same breath declare our approval of the admission of “evidence without any inquiry as to how that evidence was obtained.” The principle so involved finds a suggestive parallel in the case of the candidate for office who maintains his equipoise on the question of prohibition by declaring himself in favor of the law, but opposed to its enforcement. The suggestion that the person whose rights are invaded by a wrongful sekrch or seizure has his remedy in an action for damages against the individual committing the trespass is scarcely worthy of the court which refuses to *120 give him the protection to which he is entitled under the charter which is supposed to command the obedience of the judiciary, as well as of the private citizen. It is this growing disregard of fundamental rights and orderly methods of justice which has given rise to the infamies of the so-called “sweat-box” and “third-degree” practices which cast discredit upon our professions of loyalty to law. The reasoning which justifies those things, and justifies a rule by which the court will refuse to inquire into the means employed to obtain evidence, if carried to its logical results, would be equally effective to admit evidence procured by physical torture, and restore the rack and thumbscrew to the dignity of judicial aids in the prosecution of alleged criminals. True, torture has been nominally outlawed in civilized lands, and the court would undoubtedly so declare, were that concrete question presented for its consideration; but the legal and constitutional guaranties of protection against the use of the torture chamber are not a whit less sacred than those which guarantee each and every citizen against illegal searches and seizures. II. "While it is, perhaps, unnecessary, for the purposes of this dissent, I desire to express peculiar regret that a case such as is presented by this record should be made the occasion for an opinion of such far-reaching consequences. The question of the constitutionality of the statute under which the appellant has been convicted is not discussed by the majority, and, for the purposes of this opinion, I shall assume its validity. It is the product of conditions created by the recent world war — an extraordinary piece of legislation which finds its moral justification, if any it has, in the exercise of the war power of the state for its protection against the machinations of its enemies from within its borders, as well as from without. Since it was devised for such commendable purposes, the average loyal citizen yielded cheerful obedience thereto, and few, if any, were disposed to object to its enforcement. With the return of peace, many have felt that the statute in at least some of its features has outlived its usefulness, and should be repealed or materially modified. In many respects, this statute is not unlike the Alien and Sedition Laws which were enacted by Congress in 1798, in anticipation of .a threatened war with France, and which were *121 the subject of much political strife. They were, however, enacted as temporary measures, and expired by their own limitation in two years. Had the present act been made to expire with the return of settled peace, few jijst criticisms would now be heard of such legislation. It is, nevertheless, true that, as a piece of permanent statutory law, it contains much which is ill adapted to normal conditions of society in a republican or democratic form of government, and many of its provisions, from their very obscurity and vague and boundless generalities, afford material for endless trouble. No conviction under it 'should be sustained, unless it be upon the clearest and most satisfactory evidence, and in my judgment, the ease made by the State falls far short of this requirement. It is, at best, an aggregation of trifles, no one of which is inconsistent with innocence of crime or criminal intent. The case seems to have been tried below on the theory (which the majority come dangerously near approving) that proof of membership in what is known as the ‘ ‘ I.W.W. ’ ’ is all that is required to sustain the conviction. That such is not the law is not open to doubt. To hold that no crime is shown is not to approve or indorse the teachings or purposes of the society. These may be economically unsound or wild and sociologically impossible, without exposing their adherents to a charge of crime. Even the best of men are not all cast in one mold. Their theories of life, its duties and responsibilities, and their ideas of social order and the regulation of personal and property rights, may and do vary between wide extremes. It is the legitimate right of government to exact obedience to all constitutional legislation, but it is not within its authority to impose a penalty upon the operation of the citizen’s mind or conscience or belief. Liberty of mind and conscience does not, of course, justify any infraction of the law of the land, but it does demand that the individual shall not be harassed by criminal prosecution for anything less than a well proved violation of the criminal law. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7120073. Public record. Not legal advice.