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STATE v. WARNER12/26/1967
andoned.
In 1921, the United States Supreme Court in Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 65 L.Ed. 647, 652 (1921), distinguished between the seizure of, on the one hand, the instrumentalities of the crime, the fruits of the crime, contraband and weapons by which an escape might be effected and on the other hand a type of objects which they described as merely evidentiary materials. The former could lawfully be the subject of search and seizure — the latter could not. (In passing we should mention that this briefly held distinction was never applied to searches of the person incident to an arrest). Although the courts of this state had never recognized this distinction, the "mere evidence" rule became binding upon us in 1961 when the United States Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) made federal exclusionary rules applicable to state court trials. The "mere evidence" rule became the subject of much criticism by courts and commentators and on May 29, 1967, that Court, after again examining the rationale for the rule and its history, rejected the distinction as "wholly irrational" and "attributable more to chance than considered judgment". Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Although this present defendant's conviction in the superior court occurred before the decision in Hayden, the conclusion of the court in Hayden that the Fourth Amendment does not support any distinction as to mere evidentiary materials removes any basis for the present defendant's objection. The United States Supreme Court has in substance stated that the Fourth Amendment has never forbidden reasonable seizures of mere evidentiary materials of a non-testimonial nature and that decisions so holding were applying an erroneous rule.
Our own determination as to this Point on Appeal would be the same if the United States Supreme Court's decision in Hayden had not been announced. In our opinion the materials here seized and as to which testimony was presented over defendant's objection fall within the classification of "the instrumentalities and means by which a crime is committed". Harris v. United States, supra. The offense here charged includes the element that the defendant was under the influence of intoxicating liquor while driving a car and intoxicating liquor is the means by which this prohibited condition results. Liquor itself is not "mere evidence" as, for example, a check with which a defendant may have purchased such liquor might be. A jury might properly conclude that empty beer cans or bottle tops were some evidence from which they should infer drinking on the part of a defendant and that the presence of certain quantities of unopened containers, along with the presence of empty containers or bottle caps, was evidence from which, along with other evidence in the case, they should infer that the drinking was recent and continuing rather than remote. The jury might find that such evidence, viewed with other evidence in the case, had reasonable probative value as to the guilt of defendant or the jury might reject it as unconvincing.
For case holding that objects seized were the means by which the crime was committed, see Kneeland v. Connally, 70 Ga. 424 (1883) (faro and roulette tables seized on a charge of conducting a gambling room); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) (a ledger containing entries of liquor purchased, receipts, expenses, bribes, etc. as part of the equipment actually used to commit the offense on a charge of violating the National Prohibition Act); United States v. Guido,
251 F.2d 1 (7th Cir. 1958), cert. den. 356 U.S
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