proceedings and is actuated by malicious motives; but trespass will not lie against a person who has procured, or an officers who has executed, a search warrant for stolen goods if the warrant be duly issued and regularly executed.

$142. How Executed. Every such warrant must be executed by a public officer, and not by a private citizen,* though it is proper that the complainant should be present and assist, because he knows and may identify the goods.

A constable may serve a warrant which was issued upon the complaint of himself and another person. If the warrant does not expressly authorize a search in the night, it must be done in the day-time, between sunrise and sunset."

$143. Forcible Entrance." The officer may break open any outer or inner doors or window of a house, or anything therein, if, after notice of his authority and purpose, he is refused admittance, using no more force than is necessary." No precise form of words is required to be used in giving the notice. It is sufficient if the party is informed by the officer of his business and apprized that he does not come as a trespasser, but claims to act under proper authority.10 The notice of authority and demand of admittance is only necessary when there is some person present to whom it may be given or of whom it can be made." The officer may break into boxes after the keys have been demanded and refused.12

11 Arch. C. P. & Pl., 146; Beatty v. Perkins, 6 Wen., 382; Plummer . Dennett, 6 Greenl., 421; Luddington v. Peck, 2 Conn., 700; Bill v. Clapp, 10 John, 263; Hayden v. Shed, 11 Mass., 500; Morris v. Scott, 21 Wen., 281. 2 Beatty v. Perkins, 6 Wen., 382.

3 Barnard v. Bartlett, 10 Cush., 501.

4 R. S., 404, § 374; 1 Chitty Cr. L., 65; Cooley Const. L., 305.

* 1 Arch. C. P. & Pl., 145; Smythe, 235; Barb. Cr. L., 500; Entick v. Carrington, 11 St. Tr., 313, 321; 2 Wills, 275.

1 Bish. Cr. P., § 242; Com. v. Certain Intoxicating Liquors, 6 Allen, 596. Crock. on S. & C., § 80.

2 Hale P. C., 151; 1 Bish. Cr. P., § 203, 208; Barb. Cr. L., 500; 3 Bos. & Pul., 258; 6 B. & Cres., 332; Banks v. Farwell, 21 Pick., 156.

R. S., 404, § 376.

10 Barb. Cr. L., 501, 502.

11 Androscoggin Railroad v. Richards, 41 Me., 233.

221 Bish. Cr. P., 208; 2 Hale P. C., 157; 3 Bos. & Pul., 258; Banks v. Farwell, 21 Pick., 156.

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In

§ 144. Officer, when Protected in Executing the Warrant. executing the warrant, if the officer searches any other place,' or seizes any other goods," than such as are described in the warrant, he will be a trespasser unless the goods not specified in the warrant are likely to furnish evidence of the identity of the articles stolen or of the guilt of the prisoner.3 Where, therefore, a warrant was granted to seize stolen sugar, and the officer seized tea, he was held to have exceeded his authority and to be liable to the party aggrieved for a trespass. But if he seizes goods which correspond with and come within the description of those stolen, he will be justified in taking them, though they do not prove to be the goods lost by the complainant. If the officer pursues strictly the

directions of the warrant, he will be justified though the goods are not found in the place directed to be searched, nor will it make any difference if the warrant was improperly granted if it be regularly granted and regular in form.?

§ 145. Return. "The return of the officer shall particularly specify the property taken, and the place where and the person from whom the property is taken.”

FORM OF A RETURN TO A SEARCH WARRANT.

State of Illinois,

County.

}

SS.

day of, A. D. 18—,

In obedience to the within writ I did on theenter the premises therein described, and make search for the goods and chattels therein set forth, and there found of the said goods and chattels the

1 Nun. & Walsh, 258; 1 Bish. Cr. P., 209; McGlinchey v. Barrows, 41 Me., 74.

'Barb. Cr. L., 500; Cooley Const. Lim., 304; Sanford v. Nichols, 13 Mass., 286.

3

› Crozier v. Cundy, 9 D. & Ry., 224; 6 B. & Cres., 333.

Crozier v. Cundy, 9 D. & Ry., 224; 6 B. & Cres., 332; State v. Brennan's Liquors, 25 Conn., 278.

Crock. on S. & C., 80; Stone v. Dana, 5 Met., 98.

Cooley Const. L., 307; 1 Bish. Cr. P., §§ 203, 208; Barnard v. Bartlett, 10

Cush., 501.

1 Bell v. Clapp, 10 John., 273; Sanford v. Nichols, 13 Mass., 236; Grumon

. Raymond, 1 Conn., 40; State v. Mann, 5 Ired., 45, ante § 46.

R. S., 405, § 377.

following-named articles: three pairs of shoes (or insert a list of the articles found), and took the same from the dwelling-house of C. D., situate in the town of in said county, from the said C. D., and have them now in court (and did also arrest the said C. D. in whose possession the said property was found, and have him now in custody here in court), as commanded, this day of, A. D. 18—.

J. S., Const. of Co., Ills. 146. Disposal of Property. "When an officer, in the execution of a search warrant, finds stolen or embezzled property, or seizes any of the other things for which a search is allowed. by this act, all the property and things so seized shall be safely kept by the direction of the judge, justice or court, so long as necessary for the purpose of being produced or used as evidence on any trial. As soon as may be afterwards all such stolen and embezzled property shall be restored to the owner thereof, and all the other things seized by virtue of such warrants shall be burnt, or otherwise destroyed, under the direction of the judge, justice or court."

$147. Costs Against Complainant. —— "If, on the hearing, it appears that there was no probable cause for suing out the warrant, the whole cost may be taxed against the complainant, and execution awarded."

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$148. Searching Prisoners. An officer has no right to search a prisoner unless he has a warrant authorizing him to make the search. The practice of taking from those arrested every thing they have, ought not to be continued. Yet, on the proper complaint being made, the prisoner may be searched. in the cases specified by statute. Every thing taken from

5

'R. S., 405, § 378. A statute authorizing a condemnation or other final dis position of property, without notice to the owner and an opportunity for a hearing afforded him, has been held to conflict with the Constitution, and therefore to be void. Cooley Const. Lim., 305; Fisher v. McGirr, 1 Gray, 1; Hibbard v. People, 4 Mich., 126; and see Gear v. Bullerdick, 34 Ills., 75. R. S., 405, $379.

2

R. S, 59, Con. of Ills., Art. II., § 6.

1 Bish. Cr. P., §§ 210-212; 1 Hays Dig., 70; Reg. v. McKay, 3 Crawf. & Dix. C. C., 205; Rex v. Jones, 6 Car. & P., 343; Rex v. Donnell, 7 Car. & P., 138.

R. S., 404, 22 372-380; Houghton v. Bachman, 47 Barb., 388.

the prisoner not furnishing any evidence of his guilt, the magistrate or court, on motion founded upon affidavit showing the facts, should order restored to him.'

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$149. Searching for Dangerous Weapons. The statute provides that "when a person charged with a felony is suspected by the judge or justice of the peace before whom he is brought to have upon his person a dangerous weapon, or anything which may be used as evidence of the cominission of the offense, the judge or justice may direct him to be searched in his presence, and such weapon or other thing to be retained, subject to the order of the court in which the defendant may be tried.2

150. Evidence. The constitution of this state and of the United States provide that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated." It has been believed that under this provision the seizure of one's papers on a search warrant, in order to obtain evidence against him, is clearly forbidden. Lord Camden said, "To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition-a law under which no Englishman would wish to live an hour." But it has been held that evidence obtained by means of a search warrant is not inadmissible, either upon the ground that it is in the nature of admissions made under duress, or that it is evidence which the defendant has been compelled to furnish against himself, or on the ground that the evidence has been unfairly or illegally obtained, even if the search warrant was illegally issued."

§ 151. Search Warrant may Issue for Records.

"If any per

1 1 Arch. C. P. & Pl., 134, 146, 573; 1 Bish. Cr. P., § 212; Rex v. Kinsey,

7 Car. & P., 447; Rex v. Barnett, 3 Car. & P., 600; 4 Wash. C. C. Rep., 710. R. S., 405, § 380.

3 Con. Ills., Art. II., § 6; Amend. Con. of U. S., Art. IV.

Cooley Const. Lim., 305, 306, n. 5.

Entick v. Carrington, 19 St. Tr., 1029; S. C., 2 Wills, 275; Huckle v. Money, 2 Wills, 205; Robinson v. Richardson, 13 Gray, 456.

1 Bish. Cr. P., § 246; State v. Flynn, 36 N. H., 64.

son whose office shall be abolished by law, vacated or determined by removal from office, resignation, death, expiration of the time for which he was elected or appointed, or other cause; or his executors, administrators, or other persons, neglect or refuse to deliver over any records, papers, documents or other writing, or other articles of property pertaining to such office, when thereto lawfully required by the successor to such office, or other person entitled to the custody thereof, the judge of any court of record in the proper county may, upon the affidavit of any competent person, setting forth proper facts, issue his warrant, directed to the sheriff or coroner of the proper county, commanding him to seize all the records, books, papers, documents and other public property belonging or appertaining to the said office, and deliver the same to the person entitled to the custody thereof, to be named in such warrant.'

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§ 152. Execution of the Process."The officer executing any warrant issued as aforesaid may break open any doors, trunks or places in which any of the records, books, papers, documents or other public property in such warrant commanded to be seized and secured, may be concealed, or in which he may suspect them to be; and, in case of resistance, may arrest any person who may resist the execution of such warrant, and carry him before some judge or justice of the peace, to be dealt with as other persons obstructing the execution of such process; and the officer executing such warrant may call to his assistance the power of the county in the same manner as in the execution of such process. Any officer to whom any such warrant may be directed and delivered, who shall neglect or refuse to execute and return the same according to law, or otherwise fail to perform any of the duties herein required of him, shall forfeit and pay a sum not exceeding one thousand dollars, nor less than one hundred dollars, to be recovered by indictment, to the use of the county in any court of competent jurisdiction."