# State v. Tonn

> Supreme Court of Iowa · January 16, 1923 · 195 Iowa 94

URL: https://www.frixlaw.com/law-library/cases/7120074

## 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 Preston
- **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/7120074

## 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

Preston, C. J.
(dissenting). At the very outset, I desire to call attention to the all-important fact, and emphasize it, that, before the trial, the defendant made application for the return of the papers, which it is conceded were unlawfully seized. *122 While there is a conflict in the authorities as to the admissibility in evidence of' such papers when objection is raised for the first time when the evidence is offered, there is little, if indeed there is any, conflict where such an application is made, overruled, and then the evidence is objected to at the trial. This is, as I think; the real distinction between the cases cited and relied upon in the majority opinion and those cited in the dissents. The rule is well stated in 10 Ruling Case Law 933 thus:
“It is obvious and the courts have frequently declared that, if letters and private documents may be seized in violation of the constitutional safeguard, and held and used in evidence against a citizen accused of a crime, then the constitutional provision is ineffectual and of no value. From this it may correctly be inferred, notwithstanding the many cases in which papers obtained by an unlawful search and seizure have been received in evidence over the objection of the violation of constitutional privilege, that there is a method by which the use of such evidence may be prevented. The principle underlying the decisions admitting the evidence is that an objection to an offer of proof made on the trial of a case raises no other question than that of the competency, relevancy, and materiality of the evidence offered, and that consequently the court, on such an objection, cannot enter on the trial of a collateral issue as to the source from which the evidence was obtained. But since there is a right, there must of necessity be a remedy, and the remedy is to be found in the making of a timely application to the court for an order directing the return to the applicant of the papers unlawfully seized. On such an application, the question of the illegality of the seizure may be fully heard, and if the court erroneously refuses to order a return of the papers, and thereafter receives them in evidence against the applicant, over his objection, it is an error for which a judghient of conviction must be reversed.”
The importance and force of-this seems to have been overlooked and substantially ignored in the majority opinion. It holds that there is no remedy, even though the constitutional guaranty has been violated. The New Jersey case and the Iowa case cited on this proposition are not at all in point, because the facts therein brought the cases within the rule that it is not an *123 illegal seizure to take articles from the person at the time of an arrest. The brief discussion of the majority on the-question as to the filing of the petition puts the wagon before the horse. The majority opinion first determines that the evidence is admissible, and then says that, because of this, there was no error in overruling the petition. The point I wish to make is that, though it should be held that the evidence is admissible if no petition is filed, it is not admissible if the petition is filed. By filing the petition, the defendant does all he can to protect his constitutional rights, and does not waive his right to object to the testimony if the petition is erroneously overruled. It seems to me that filing the petition is not a collateral attack, but a direct proceeding to recover the papers. Whether the ruling on the petition can be reviewed on appeal is entirely beside the mark. If it is overruled, it renders the evidence inadmissible. The petition and ruling form the basis for the objection at the trial, and the admissibility depends on the question whether the application has been made. This is the holding of all the cases under such circumstances, so far as I have been able to observe. As seen, the underlying principle of the cases and the sole ground for holding the evidence admissible is that the courts will' not stop a few minutes to investigate the legality of the seizure, and that, therefore, rather than to do so, it is better to render ineffective the guaranty of the Constitution. It is common practice to stop and investigate, where it is claimed that a confession has been obtained by duress.
I shall refer to this matter later herein, and cite many cases to support the doctrine above quoted. I should be inclined to follow the eases, including all our own, holding that the evidence is inadmissible even though no petition for return had been filed. In no other way can the constitutional guaranty against unreasonablé searches and seizures be given full force. But when such an application is made, I think there can be no question about it. The cases are all one way, and, as we shall see later, there is really little, if any, conflict between the state and Federal courts. The “cogent reasons” for overruling everything do not exist.
I cannot agree to Paragraph 2 of the majority opinion. I concur in Paragraph 1 of the dissenting opinion of Mr. Justice *124 Weaver. Conceding the force of his dissent, it may be that I should not attempt to add anything thereto. However, I desire to add a few observations.
It may be thought that, since the defendant and the organization to which he belongs are seeking to destroy the government which protects him, if that be the fact, he is not entitled to protection. But one may be entirely out of sympathy with such purposes, and yet favor upholding the sacredness of the constitutional provisions, not only as to any one individual, but as to all the people, innocent as well as guilty. Hard cases make bad law sometimes. If the majority opinion based its ruling upon the proposition that the defendant consented to the abstraction of the papers from his suitcase, and that he waived his constitutional rights, there might be force in such a position. But for some reason it is thought necessary at this time to base the decision on another proposition, and to overrule and overturn all prior decisions of this court, other courts, and the United States Supreme Court, and follow the decisions of courts in states where, in some cases at least, the state Constitution was not, as in Iowa, copied from the Federal Constitution. The majority opinion says: “The constitutional provision is a sacred right, and one which the courts will rigidly enforce.” But the opinion concededly is opposed to all the decisions of the Supreme Court of the United States, the highest court in the land, and many other courts, and, as I think, makes these constitutional provisions valueless. There may be a bare shred left when it is said, in effect, that the remedy is an action for damages for such a trespass, which may be committed by an officer or a private ■ individual. The bond of the officer may be wholly inadequate, or the individual may be wholly impecunious, — a small recompense for a person who has been convicted and is serving a prison term upon evidence illegally secured and used. This is the protection guaranteed by the Federal and state Constitutions against unreasonable searches and seizures. When I say that these constitutional provisions are made of no value, I but voice the language of the Supreme Court of the United States, where it says, in the Silverthorne and Weeks eases, infra: “It reduces the Fourth Amendment to a form of words.” It seems to be the fashion, *125 just now, to whittle away, little by little, the old landmarks; to take a nibble at the Constitution here and another nibble there; to smooth out the old-fashioned wrinkles and put in a newfangled fad; and in this way, without any apparent effort, to make a mere form of words of a Constitution, and to do it quickly, while the iron is hot. Something must be changed all the time. It has been said that “a precedent embalms a principle.” Uniformity of appellate decisions for the benefit of all the people ought to be the aim, rather than the individual interests of a litigant.
It is admitted that there is a conflict in the authorities on the question as to the admissibility of the evidence where no application to return the property has been made. This being so, this court could have adopted the other view, although it seems to me that the rule that was adopted was the only proper one. We did adopt a rule many years ago, as shown in the cases cited in State v. Rowley, (Iowa) 187 N. W. 7 , and the cases cited by Mr. Justice Weaver in his dissent herein. A rule having been adopted, and, as I think, the right one, I am unable to see any reason why, at this particular time, all prior decisions should be overruled, some of them before the ink is dry, and a holding adopted which is directly opposite; and that, too, when the modern cases, particularly the decisions by the Supreme Court of the United States, are adhering strongly to the Boyd case, decided in 1885. It seems to me that there are good reasons why we should not change the rule. We have always held that, where a statute of this state has been borrowed from another state, and the Supreme Court of that state has construed that statute, we follow such construction. In the instant case, the section of the Iowa Constitution is the same as the Fourth Amendment to the Federal Constitution. The Supreme Court of the United States having repeatedly construed that provision, it seems to me that we should follow the interpretation of that court, and that we should follow the procedure of the Federal court, and return the property, on motion or petition, as well as hold that the evidence is inadmissible. In the Rowley case, supra, the sheriff had a warrant of arrest for the defendant. The arrest was made, and the defendant taken to jail by the sheriff’s deputy. Thereupon, the sheriff proceeded to ransack *126 the home for private papers, and. took with him private letters and other property, without any search warrant or any warrant of any kind, and without any authority. To my mind, a more unreasonable and high-handed proceeding is inconceivable. Some of the cases hold that a search without a search warrant is, from that fact alone, an unreasonable search. The holding of the majority opinion necessarily overrules the Rowley case, and requires the granting of á rehearing, since it is now pending on rehearing. Under this ruling, an officer or other person can, without let or hindrance, and in violation of the Constitution of this state and of the United States, go into any home, any lawyer’s office, and the office of any business man, and ransack his private papers pertaining to confidential, professional, and business secrets, and take away with him such as he chooses to take.- If, perchance, anything is secured which would be of benefit to an opponent in a lawsuit or a business rival, or if blackmail is attempted, though the party searched is wholly innocent of any wrongdoing, the person aggrieved can sue the officer or private individual for damages! In Gouled v. United States, 255 U. S. 298 ( 65 L. Ed. 647 ), the very thing which I have suggested was done. A person who was not an officer abstracted papers from plaintiff’s offices, not under a search warrant, but as a friend. The Federal court ruled that this violated the Constitution, ordered the documents returned, and held that they were not admissible in evidence. The majority opinion in this case is opposed to such a holding.- In the instant case, defendant’s luggage was seized and searched, either while it was in his room at a hotel or in the lobby in the hotel, and papers abstracted and taken away, without the knowledge or consent of the defendant. It.is conceded that there was no suspicion directed towai*ds the defendant before the seizure; so there was no probable cause for a search warrant, had it been asked. Under the majority holding, the luggage of a man or woman on a train, in a depot, or in a hotel room or lobby may be searched, without any suspicion against such person, their traveling bags ransacked, and contents removed and taken away. This is to be the rule, not only as to this defendant, but as to all other persons, even if there be no suspicion against them. *127 Many other similar situations than those mentioned will occur to anyone upon a moment’s reflection.
The last ease on this subject which I am able to find is State v. Wills; 114 S. E. 261 , where the Supreme Court of Appeals of West Virginia considers the question' very fully, and cites many of the cases on either side. In the Silverthorne ease, referred to and quoted from by Mr. Justice Weaver, there was an illegal search and seizure, and a clean sweep of the company’s office was made, and its books, papers, and documents were taken. The court ordered the return; but before they were returned, the district attorney made photographic copies, and kept them. The company was then summoned to produce the originals. It refused? and an officer of the company was imprisoned for contempt. In reversing the judgment of contempt, the court used the language quoted by Justice Weaver. It is said by the majority, in effect,- — and some of the cases cited do so hold, — that the courts do not care how the evidence is secured, or the source, if the evidence is competent. To this I cannot assent. The courts do care, and ought to care. So far as I know, no court has ever upheld so-called third-degree methods. It is said that men of the strongest character, absolutely innocent of crime, can be made to confess guilt, as a means of escaping the torture of the inquisition practiced, and where the methods employed are always with the tantalizing reward of rest and escape from the ordeal, held out as the price of confession. Thus a defendant is compelled to incriminate himself. The Supreme Court of the United States has held, and reiterated the holding in some of the cases cited, that the Fourth Amendment, prohibiting unreasonable searches and seizures, is closely allied to the Fifth Amendment, in regard to compelling one to incriminate himself. If the majority opinion stands, then every jail and detention office should be equipped with all the modern paraphernalia to carry out third-degree methods. If it be thought, as is held in some of the-cases cited to sustain the majority opinion, that to inquire involves a collateral proceeding, and that the courts cannot stop to investigate, then it seems to me that this proposition is effectually answered in the Wills case, supra, and the cases therein cited, People v. Marxhausen, infra, and 10 Ruling Case Law 933, where, as here, ap *128 plication was made to return the property before trial. I am unable to agree with my brothers that the overwhelming weight of authority sustains the majority opinion. As said, some of those cases are under Constitutions which were not copied from the Federal Constitution. I shall cite some, without attempting to cite all, the cases opposed thereto. Some of them are cited by Judge Weaver. State v. Height, 117 Iowa 650 ; State v. Sheridan, 121 Iowa 164 ; State v. Rowley, supra, and cases therein cited; 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 ; Silverthorne v. United States, 251 U. S. 385 ; Newberry v. Carpenter, 107 Mich. 567 ; Town of Blacksburg v. Beam, 104 S. C. 146 ( 88 S. E. 441 , L. R. A. 1916 E, 714) ; Youman v. Commonwealth, 189 Ky. 152, 157 ( 224 S. W. 860 , 13 A. L. R. 1303); Ash v. Commonwealth, 193 Ky. 452 ( 236 S. W. 1032 ) ; Tucker v. State, 128 Miss. 211 ( 90 So. 845 ); People v. Marxhausen, 204 Mich. 559 ( 171 N. W. 557 , 3 A. L. R. 1505); People v. Foreman, 218 Mich. 591 ( 188 N. W. 375 ); Callender v. State, (Ind.) 136 N. E. 10 ; State v. Gibbons, (Wash.) 203 Pac. 390 ; Hughes v. State, (Tonn.) 238 S. W. 588 . The Weeks case, supra, is referred -to in L. R. A. 1915 B, 834, and cited in Ex Parte Rhodes, 202 Ala. 68, 76 (1 A. L. R. 568, 582). See, also, State v. Fowler, 172 N. C. 905, 911 ; State v. Harley, 107 S. C. 304, 306; Barnard v. Judge, 191 Mich. 567, 572 ; State v. Anderson, 31 Idaho 514, 525 ; Rippey v. State, 86 Tex. Or. Rep. 539, 545; State v. Hennessy, 114 Wash. 351, 369 ; State v. District Court, 59 Mont. 600, 610, 613 , and eases therein cited.
In the Rippey case, supra, at page 546, it is said that entry into a house for the purpose of search and seizure of stolen property, without a search warrant and over objection, may be resisted even to the extent of taking life; and that the person so entering does so at his peril. It occurs to me that the majority holding encourages such proceedings rather than orderly procedure, such as requiring the return of property unlawfully seized, upon proper application.
A large number of Federal cases all over the country cite the Weeks and others of the Supreme Court decisions. Naturally, it may be thought that they do, as they should, follow the *129 decisions of the higher court. The discussion and reasoning in some of the Cases are instructive and helpful. Many of them are directly in point. Under the circumstances, I feel that I should not prolong the dissent by giving the title of such cases. There are many of them.
Some of the cases make a distinction (properly so, doubtless, though that question is not in this case) between a search and seizure in occupied buildings on private premises, and the seizure of intoxicating liquor 'in a public place. People v. Case (Mich.), 190 N. W. 289 , and eases. In that case, the seizure was from an automobile in a fair ground, under a statute which provided for a forfeiture of the vehicle. In that case, it was held that a person possessing or transporting intoxicating liquor contrary to law has no property rights in it, and that, when the.possession or transportation begins, it at once becomes the property of the state; so that there is no search or seizure of the property of the defendant. The opinion cites the Boyd case and the discussion therein in regard to the search and seizure of stolen or forfeited goods, as distinguished from search and seizure of a man’s private books and papers.
I should have stated before that it has been thought that the Boyd ease has been modified by some of the later decisions of the Supreme Court, and particularly by Adams v. New York, 192 U. S. 585 ( 48 L. Ed. 575 ). But Mr. Justice Day, who wrote the opinion in both the Adams and -Weeks cases, says in the latter case that the Boyd case had been frequently cited by that court, and that there was no wish to detract from its authority. Tt was said by the Michigan court, in the Marxhausen ease, 204 Mich., at 559 ( 171 N. W., at page 561 ):
“We are impressed, however, that a careful consideration of the Boyd case, in connection with the Adams ease and the decisions of the state courts, some of which are cited above, * * * taken in the light of what was said by the court in the Weeks case, demonstrates that, in the main, the United States Supreme Court and the courts of last resort of the various states are in accord, and that the Boyd case does not conflict, as its critics claim, with the holdings of the many state courts. The Adams case and many state cases along the line of that case belong to one line of cases, while the Boyd and Weeks eases belong to *130 another class of eases. In the Adams and similar cases, the question of the legality of the search and seizure was sought to be raised collaterally, not by direct proceedings. In these cases, the objection was not made until the article or' paper unlawfully seized was offered in evidence.”
It is true that in the Adams case it was held that, where objection was first made when the evidence was offered, it was a collateral attack, and that the objection was not well taken. This seems to be the theory of one line of cases. The other line of cases is, I take it, that, where there is a petition asking for the return of property and papers unlawfully seized, this' is a direct attack, and that the proper procedure is to sustain the petition. Such a petition was made in the instant case, and overruled. I think it should have been sustained. If it had been, the evidence could not have been offered, and the question as to collateral attack would not arise. However, in the Wills case, supra, at pages 265 and 266, on the proposition as to whether the court will stop to hear testimony as to whether a confession was voluntary, the court said:
“We think this ground is untenable. It is not unusual, but, on the contrary, common practice, to stop the course of the trial and exclude the jury, while the court hears the testimony to determine whether it is competent. The jury returns, and the evidence, if competent, is heard by it; if incompetent, it is excluded. An instance familiar to every lawyer is where the State attempts to introduce a confession which the accused avers was obtained by duress or other unlawful means. It is done in other numerous instances, and it makes no difference whether the case be criminal or civil. The practice in no sense introduces a collateral issue. ’ ’
I think the same rule should apply in the instant ease; or, if the majority opinion is to stand, to be at all consistent, it should be held hereafter that the court “will not stop to investigate” in any case, to determine whether a confession is voluntary or otherwise, but admit it, whether or no. The same underlying principle should apply to both or to neither.
The Weeks case, supra, and other cases hold that, where articles are illegally seized by an officer without a search warrant, upon the accused’s premises, and where they would aid *131 in establishing his gnilt, they will not be competent evidence, if a motion is made in the trial court, before the commencement of the trial, to return the articles seized in the course of the unlawful search, and objection is seasonably made to their introduction as evidence. It holds that immunity from unreasonable searches and seizures has been denied the accused, where the court has refused the application for the return of the letters and documents and permitted their use in evidence at the trial.
Other reasons occur to me why it seems to me that the majority opinion ought not to be adopted, but those stated will suffice, for present purposes. After the Declaration of Independence, the Articles of Confederation, the adoption of the Constitution, and the separation from the mother country were complete, it was found necessary, under conditions then existing, that the people — innocent people — all the people — should be pro-' tected from the then existing encroachments of the government, or rather, the over-zeal of its officers; and so, for that reason and purpose, the first ten amendments were proposed by Congress to the legislatures of the several states, and they were ratified. This was in 1789. For 134 years, until now, the protection guaranteed by the Constitution has meant something more than a “form of words.” I would continue the protection, and follow the rule of the Supreme Court of the United States, that evidence secured by an unlawful search or seizure, as here, is incompetent, where a petition or application is made to return the property. When such a petition is filed, a hearing would be had thereon, and this would at least avoid the question as to whether the objection made when the evidence was offered on the trial raised a collateral issue. It seems to me that the majority opinion gives little, if any, weight to the fact that defendant did make such an application, and decides the case under authorities holding that the objection may not be made when the evidence is first offered on the trial. All the Federal cases hold that, if the proper application is made and overruled, the objection may then be made at the trial, and that it is error to admit the evidence.
It is said that- enforcement of the criminal law would be handicapped by a strict adherence to the rule contended for: that is to say, if the Constitution is adhered to, upheld, and *132 defended, such would be the result. That may be so in some eases, but I submit that is not a sufficient answer. It should not be forgotten that the rights and interests of innocent people, guilty of no crime, are at stake.
The majority opinion has been rewritten and some changes made therein since this dissent was written. This is so as to the question of waiver. Otherwise, the opinion is not materially different. I would reverse on the ground that this evidence was improperly admitted, as well as upon the ground that the instruction was erroneous.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7120074. Public record. Not legal advice.