embodied, in the constitutions of the various states. It was not created by these instruments, for it is one of the fundamental rights of civilized society, but its invasion is prevented and its existence secured by them.

To understand the reasons for placing such restrictions in the constitution we have but to look to the history of those times and see the grievous wrongs done under the proceedings known as "general warrants." These were either blank warrants ready to be filled in by the officer serving them at his caprice, or authorized the officers to search all suspected places and seize all suspected persons. These in the hands of corrupt officials became instruments of extortion and inquisition, and it was not until 1763 that they were declared illegal.30 Of course the fourth amendment governs the actions of national courts alone, and for the rules in each state we must look to the provisions in that particular state, but as they are nearly all copied after the federal constitution, and are designed to accomplish the same ends, the federal provision may be taken as the foundation for this discussion.

In order to determine what are unlawful searches and seizures, we first must know the requisites of lawful searches and seizures.

§ 514. Requisites of Lawful Seizures.-The federal constitutional provision seems to have two sections, the first guaranteeing security from unreasonable searches and seizures, the last providing that all warrants be upon probable cause, supported by oath or affirmation, and particularly describing the place

30 Wilkes v. Wood, 19 How. St. Tr. 1153; Entick v. Carrington, 19 How. St. Tr. 1030; 2 Story on the Constitution, sec. 1902; Black on the Constitution, 504.

to be searched and the persons or thing to be seized. This, it is apparent, does not forbid searches and seizures without warrants, but provides that they must be upon probable cause. Hence, a house may be entered and search made for a felon, or, if it is necessary, to destroy a building to prevent the spread of fire.31 So, too, if an officer arrests one for a crime, it is not unlawful to search him for evidence of his crime or for concealed weapons." 32 Or if he has entered a place open to the public and finds gambling going on, he is not guilty of an unlawful seizure by taking into his possession the tools or implements used in the game to be used as evidence against those using them,33 unless indeed, the arrest itself is unlawful, and in that case the search is an aggravation of the original wrong.34

§ 515. Constitutions Regulate Issuance of Searchwarrants. On the other hand, this amendment does not prohibit issuance of warrants, but only regulates it; and, first, a search under a warrant must be reasonable. So, if the search be instituted and pursued upon complaint, but in order to secure a merely personal advantage, and not for the purpose of aiding the administration of justice in penal matters or

31 See Black on the Constitution, 501, 502.

32 Cunningham v. Baker, 104 Ala. 160, 53 Am. St. Rep. 27, 16 South. 68; Holker v. Hennessy, 141 Mo. 527, 64 Am. St. Rep. 524, 42 S. W. 1090.

33 People v. Hess, 85 Mich. 128, 48 N. W. 181; Boyd v. State, 116 U. S. 616, 6 Sup. Ct. Rep. 524; Spalding v. Preston, 21 Vt. 9, 50 Am. Dec. 68; O'Connor v. Bucklin, 59 N. H. 589; Holker v. Hennessy, 141 Mo. 527, 64 Am. St. Rep. 524, 42 S. W. 1090; Ex parte Hurn, 92 Ala. 102, 25 Am. St. Rep. 23, 9 South. 515; Rusher v. State, 94 Ga. 363, 47 Am. St. Rep. 175, 21 S. E. 593; Cunningham v. Baker, 104 Ala. 160, 53 Am. St. Rep. 27, 16 South. 68; Closson v. Morrison, 47 N. H. 482, 93 Am. Dec. 459.

34 Cunningham v. Baker, 104 Ala. 160, 53 Am. St. Rep. 27, 16 South. 68.

those of public interest, such use of the warrant must be held unreasonable and unwarranted.35 A statute, then, which provides for issuing a warrant by judges of insolvency on complaint of an assignee to search for property is unconstitutional where a state constitution has a provision similar to the fourth amendment.30

§ 516. May be Used for What Purposes.--The earliest use of search-warrants was to recover property which had been stolen, these only being used in criminal cases. Even then it had crept in by imperceptible degrees, and was even denied to be proper by distinguished jurists and writers. Now, however, it is used in any matter which is of public importance-as is said in an Illinois case, among the things which may be searched for and seized without violation of the Bill of Rights, are "books and papers of a public character, retained from their proper custody, forged bills or papers," counterfeit coin, notes or instruments used to make the same.3

§ 517. Probable Cause for Issuing.—Again, it is prescribed that the warrant must have probable cause, which must be supported by an oath or affirmation. This must be probable cause for issuing the warrant, and is essentially the same as probable cause, as shown in malicious prosecution; i. e., facts sufficient to cause a reasonable man to believe that a cause for a warrant exists.38 If the oath does not aver facts showing probable cause, the warrant issued thereon is invalid, and any search or seizure made thereunder

35 See Anderson v. Cowles, 72 Conn. 335, 77 Am. St. Rep. 310, 44 Atl. 477.

36 Robinson v. Richardson, 13 Gray, 454.

37 Langdon v. People, 133 Ill. 383, 24 N. E. 874 (quotation from Cooley on the Constitution).

38 Ante, sec. 421.

is illegal. So where a complaint was sworn to upon mere suspicion, and not upon belief, as is required,30 and if the oath of three competent witnesses of reasonable ground for belief that liquors are kept for illegal sale is required, a warrant issued upon oath of less number is improperly issued;40 or if the testimony of the witnesses is not taken as required,41 an arrest, search, or seizure thereunder is unlawful.

§ 518. Description of Place.-Lastly, the warrant must specifically describe the place to be searched, and the persons or property to be seized. As is said in an early Connecticut case: "If such preliminary requisites be omitted, or if the warrant be general, the proceeding is coram non judice, and the magistrate who issues the warrant, and the officer who executes it, are liable in trespass to the party injured.” 42 The description of the place must be so definite as to identify the place to be searched, and no other. Thus it is held that the same particularity must be used as is required in a deed.43 So "the premises of Hiram Ide and Henry Ide";44 "a certain building situated in Plum street called a shed":45 "premises of John Doe, alias, in the town of B- or in the neighborhood thereof, in the county of S ".46 "houses or stores of Messrs. Thomas Sanford & Co. of May"47are all void for want of particularity. But giving the street and number on the street, together with what

39 Commonwealth v. Ccrtain Lottery Tickets, 5 Cush. 369; Humes v. Taber, 1 R. I. 464.

40 State v. Spirituous Liquors, 39 Me. 262; State v. Staples, 37 Me. 228; Jones v. Fletcher, 41 Me. 254.

41 Jones v. Fletcher, 41 Me. 254; State v. Staples, 37 Me. 228.

42 Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200.

43 Jones v. Fletcher, 41 Me. 254.

44 Humes v. Taber, 1 R. I. 464.

45 State v. Robinson, 33 Me. 564.

46 Ashley v. Peterson, 25 Wis. 621.

47 Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151.

rooms are to be searched,48 48 even where the building is known by two numbers, and as well known by one as the other, either number may be used.49 And "granary, outbuildings or straw stacks upon the premises, etc.," 50 "dwelling-house of Proctor Dwin,"50 nels, mentioned in the information, which is annexed," and which says, "The dwelling-house of Proctor Dwinnels of Rowley, in said county," if there is no other Proctor Dwinnels,51 are all valid descriptions. But nothing outside of the place or places indicated in the description may be searched, and the description must be strictly construed.

So a warrant to search the "dwelling-house" of a person refers only to the house where such person lives, and does not authorize an entry into a house owned by him but rented to another.52 Again, "outbuildings within the curtilage thereof" does not refer to any building not in the same inclosure with the one specifically mentioned and separated by a narrow passageway;53 nor does a warrant designating “a cabaret at the southwest corner" of two streets justify the breaking into an adjoining house and searching it; and if a search is made of such premises as are not included in such description, it is a trespass and illegal. "Search-warrants must be construed strictly." 55

54

48 Commonwealth v. Dane, 2 Met. 329; Commonwealth v. Gaming Implements, 119 Mass. 332.

49 Commonwealth v. Certain Intoxicating Liquors, 6 Allen, 596. 50 Meek v. Pierce, 19 Wis. 300.

51 Dwinnels v. Boynton, Allen, 310.

52 Humes v. Taber, 1 R. I. 464.

53 Commonwealth v. Intoxicating Liquors, 140 Mass. 287, 3 N. E. 4.

54 Larthet v. Forgay, 2 La. Ann. 524, 46 Am. Dec. 554.

55 Larthet v. Forgay, 2 La. Ann. 524, 46 Am. Dec. 554.