McGUIRE v. UNITED STATES.

McGuire was convicted in the District Court for northern New York of the crime of possessing intoxicating liquor in violation of the National Prohibition Act (Comp. St. § 10138 1/4 et seq.), 300 F. 98. On review of the judgment of conviction, the Court of Appeals for the Second Circuit certified to this court two questions concerning which it desires instructions. 6 F.(2d) 576; section 239, Judicial Code (Comp. St. § 1216).

The certificate states that before the filing of the information on which McGuire was convicted, a search warrant was issued by a United States commissioner commanding certain revenue agents to enter and search described premises for liquors alleged to be posessed by McGuire. The officers named, acting under the warrant, searched the premises, discovering several gallons of intoxicating liquor which they seized. While there, they destroyed without court order or other legal authority all the seized liquor, except one quart of whisky and one quart of alcohol, which they retained as evidence. On the trial the liquor retained was received in evidence over the objection that it was inadmissible because of the destruction of the other liquor. The questions certified are:

'(1) Were the officers of the law by reason of their action in destroying the liquors seized trespassers ab initio?

'If the answer to the first question is in the affirmative, we ask

'(2) Was the admission in evidence of the samples of liquor unlawful?'

It is contended that the officers by destroying the seized liquor became trespassers ab initio; that they thus lost the protection and authority conferred upon them by the search warrant; that therefore the seizure of the liquor, both that destroyed and that retained as evidence, was illegal and prohibited by the Fourth Amendment; and that the reception of the liquor in evidence violated the Fourth and Fifth Amendments to the Constitution. This conclusion has received some support in judicial decisions. United States v. Cooper (D. C.) 295 F. 709; cf. Godat v. McCarthy (D. C.) 283 F. 689. But the weight of authority is against it. Hurley v. United States (C. C. A.) 300 F. 75 (overruling United States v. Cooper, supra); Giacolone v. United States (C. C. A.) 13 F.(2d) 108; In re Quirk (D. C.) 1 F.(2d) 484; United States v. Clark (D. C.) 298 F. 533; People v. Schregardus, 226 Mich. 279, 197 N. W. 573.

That the destruction of the liquor by the officers was in itself an illegal and oppressive act is conceded.1 But it does not follow that the seizure of the liquor which was retained violated constitutional immunities of the defendant or that the evidence was improperly received. The arguments advanced in behalf of the accused concern primarily the personal liability of the officers making the search and seizure for their unlawful destruction of a part of the liquor seized. They have at most a remote and artificial bearing upon the right of the government to introduce in evidence the liquor seized under a proper warrant.

The doctrine of trespass ab initio, chiefly relied upon, is usually traced to the Case of the Six Carpenters, 8 Coke, 146(a). There in a civil action for trespass, the principle was announced that where one enters the premises of another under authority of law, his subsequent misconduct while there taints the entry from the beginning with illegality. See as to the origin of the rule, Commonwealth v. Rubin, 165 Mass. 453, 455, 43 N. E. 200. This fiction, obviously invoked in support of a policy of penalizing the unauthorized acts of those who had entered under authority of law, has only been applied as a rule of liability in civil actions against them. Its extension is not favored. See Salmond, Law of Torts (5th Ed.) § 54; Jeremiah Smith, Surviving Fictions, 27 Yale Law Journal, 147, 164 et seq. Thus it has been held to have no application in criminal actions against the trespasser. State v. Moore, 12 N. H. 42. Nor does the unlawful distraint or attachment of certain articles make unlawful the seizure of property otherwise rightfully taken at the same time. Harvey v. Pocock, 11 M. & W. 740; Wentworth v. Sawyer, 76 Me. 434, 441; Cone v. Forest, 126 Mass. 97, 101. Cf. Dod v. Monger, 6 Mod. 215.

Even if the officers were liable as trespassers ab initio, which we do not decide, we are concerned here not with their liability but with the interest of the government in securing the benefit of the evidence seized, so far as may be possible without sacrifice of the immunities guaranteed by the Fourth and Fifth Amendments. A criminal prosecution is more than a game in which the government may be checkmated and the game lost merely because its officers have not played according to rule. The use by prosecuting officers of evidence illegally acquired by others does not necessarily violate the Constitution nor affect its admissibility. Cf. Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159; Adams v. New York, 192 U. S. 585, 24 S. Ct. 372, 48 L. Ed. 575; Weeks v. United States, 232 U. S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The Fourth and Fifth Amendments protect every person from the invasion of his home by federal officials without a lawful warrant and from incrimination by evidence procured as a result of the invasion. Weeks v. United States, supra; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654. Cf. Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319. Here there was no such invasion. The seizure of the liquor received in evidence was in fact distinct from the destruction of the rest. Its validity so far as the government is concerned should be equally distinct. We can impute to the one the illegality of the other only by resorting to a fiction whose origin, history, and purpose do not justify its application where the right of the government to make use of evidence is involved.

It follows that neither the seizure of this liquor nor its use as evidence infringed any constitutional immunity of the accused. In this view of the case, the answer to the second question in the certificate is not dependent upon the answer to the first which pertains to the personal liability of the officers. Interpreting the second question as an inquiry whether the samples of intoxicating liquor should have been excluded as evidence, the answer is:

No.

Mr. Justice BUTLER concurs in the result.