Opinion
No. 25,150.
Filed October 13, 1931.
1. SEARCHES AND SEIZURES — Search Warrant Issued without Showing of Probable Cause for Search — Affidavit Insufficient. — A search warrant was issued without a sufficient showing that there was probable cause for the search where there was neither a positive allegation of facts in the affidavit for the warrant nor a hearing of evidence by the issuing magistrate. p. 684.
2. CRIMINAL LAW — Evidence Obtained by Unlawful Search under Unauthorized Search Warrant — Not Admissible. — Liquor seized and information gained by officers while searching premises under a search warrant issued on an affidavit made on information and belief and without hearing any evidence is not admissible in a criminal prosecution. p. 684.
From Vanderburgh Circuit Court; Charles P. Bock, Judge.
George Smith was convicted of violating the Prohibition Law (§ 2717 Burns 1926), and he appealed. Reversed.
William D. Hardy, for appellant.
Arthur L. Gilliom, Attorney-General, for the State.
Appellant was convicted for violating § 4, ch. 48, Acts 1925, § 2717 Burns 1926. Errors assigned here present the question of the admissibility in evidence of intoxicating liquor seized 1, 2. and information gained by police officers while making a search of appellant's premises under a search warrant (provided for by § 31, ch. 48, Acts 1925, § 2746 Burns 1926). The search warrant was issued without a sufficient showing that reasonable and probable cause existed for the search — there being neither a positive allegation of facts in the affidavit for the search warrant, nor a hearing of evidence by the issuing magistrate. Becker v. State (1928), 200 Ind. 397, 164 N.E. 27; Gwinn v. State (1929), 201 Ind. 420, 423, 166 N.E. 769; Seeger v. State (1929), 201 Ind. 469, 474, 168 N.E. 577.
Judgment reversed, with instructions to sustain appellant's motion for a new trial.
Myers, J., absent.