APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. Albert M. Garcia, Assistant Attorney General, Mr. Richard F. Harless, County Attorney, and Mr. Darrell R. Parker, Deputy County Attorney, for Appellee.
Mr. W. T. Choisser, for Appellant.
[58 Ariz. 410] LOCKWOOD, C.J.
Everett Frye, defendant, was arrested by certain deputies sheriff in his home, and was subsequently informed against for the crime of gaming with a roulette wheel, a misdemeanor. At the time of the entry into defendant's home and his arrest, the deputies were acting under and by authority of a search warrant which had theretofore been issued and which was subsequently, but prior to defendant's trial, quashed by the court.
Defendant, upon his arraignment, entered a plea of not guilty, and proceeded to trial. Upon the trial the deputies were allowed by the court, over the objection of defendant's counsel, to testify as to things seen and observed by them and statements made to them by defendant while they were in his home under [58 Ariz. 411] the search warrant. At the conclusion of the presentation of the state's case, defendant moved for a directed verdict, which was denied, and the jury thereafter found him guilty as charged.
The case comes before us on an appeal and the primary contention is that defendant's constitutional rights and guaranties were violated by the court allowing the deputies to testify as above set forth.
The question presented by the appeal may be stated as follows: When evidence is secured by reason of an entry into a defendant's home, through an illegal search warrant, may such evidence be used against him upon a trial for a criminal offense? The question is one of great importance. It has been raised in almost every jurisdiction in the country, and the decisions are in hopeless conflict. The federal courts, followed by some nineteen of the states, hold that such evidence is not admissible, while the courts of twenty-three of the states hold it is. The question has previously been raised in this court, but we have always expressly reserved a decision on the issue. Thompson v. State, 41 Ariz. 167, 16 P.2d 727; Malmin v. State, 30 Ariz. 258, 246 P. 548. Under these circumstances, it cannot be said that any rule has been definitely established by the great weight of authority, and we think we should examine the question as one of first impression.
Defendant bases his contention upon the Fourth and Fifth Amendments to the Constitution of the United States, which read respectively, so far as material, as follows:
"(Unreasonable searches and seizures.) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or [58 Ariz. 412] affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
"(Criminal actions -- Provisions concerning -- Due process of law and just compensation clauses.) No person... shall be compelled in any criminal case to be a witness against himself,..."
The rights which these two Amendments attempt to protect come down to us from time immemorial through the common law of England, and their general principles have been set forth in the case of Entick v. Carrington, 19 Howell's State Trials, 1030, 1066, 1074, as follows:
"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.... By the laws of England, every ...