Search warrants are available only in pub lie prosecutions and not to enforce private rights; Robinson v. Richardson, 13 Gray (Mass.) 454, where it was said: "Even in those cases, if we may rely on the authority of Lord Coke, their legality was formerly doubt ed ; and Lord Camden said that they crept into the law by imperceptible practice. But their legality has long been considered to be established, on the ground of public neces sity ; because, without them, felons and oth er malefactors would escape detection." At common law they were confined to places, but it is held that a search warrant may be authorized by law for the person ; Collins v. Lean, 68 Cal. 284, 9 Pac. 173.
The constitution does not prevent the fed eral government from requiring ordinary and reasonable tax returns such as are required by the corporation tax law ; Flint v. Stone Tracy Co., 220 U. S. 107, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312 ; nor the issuing of process to require the attendance and testimony of witnesses, the production of books and papers etc.; Interstate Com. Com. v. Brimson, 154 U. S. 447, 155 U. S. 3, 14 Sup. Ct. 1125, 15 Sup. Ct. 19, 38 L. Ed. 1047, 39 L. Ed. 49; Interstate Com. Com. v. Baird, 194 U. S. 25, 24 Sup. Ct. 563, 48 L. Ed. 860; Hale v.. Henkel. 201 U. S. 43, 73. 26 Sup. Ct. 370, 50 L. Ed. 652 ; but a general subpcena duces teculn, which is too sweeping in its terms, may constitute an unreasonable search and seizure, and is equally indefensible as a search warrant would be, if couched in sim ilar terms; Hale v. Henkel, 201 U. S. 76, 26 Sup. Ct. 370, 50 L. Ed. 652, citing Ex parte Brown, 72 Mo. 83, 37 Am. Rep. 426; 4 Ves. 66; L. R. 2 Eq. 59. A statute requiring cor porations to produce their books and papers for investigation, even though they may have been kept outside the state, does not amount to an unreasonable search and seizure ; Ham mond Packing Co. v. Arkansas, 212 U. S. 322, 29 Sup. Ct. 370, 53 L. Ed. 530, 15 Ann. Cas. 645. The compulsory production of docu mentary evidence before the interstate com merce commission under the act does not in fringe against unreasonable searches and seizures guaranteed by the fifth amendment, since that act, as amended (1893), expressly extends immunity from prosecution or for feiture of estate because of testimony given in pursuance of the requirements of the law; lnterst. Com. Com. v. Baird, 194 U. S. 25, 24 Sup. Ct. 563, 48 L. Ed. 860.
The seizure of documents and all books and papers of a defendant's firm, covering their business of importers of silks, laces, etc., was held improper ; U. S. v. Mills, 185 Fed. 318. An act which provided for the is
sue of a search warrant upon the affidavit of a manufacturer of beverages that he has rea son to believe, and does believe, that a per son, in violation of the act, is using any of complainant's bottles, casks, etc., is unconsti tutional ; Lippman v. People, 175 Ill. 101, 51 N. E. 872 ; and where one searching for liq uor under a search warrant, removed the lath and plastering for a space two to four feet around all the rooms on the lower floor and left it for the owner to repair, it was an invasion of his rights ; Buckley v. Beau lieu, 104 Me. 56, 71 Atl. 70, 22 L. R. A. (N. S.) 819 ; and so was taking away an iron safe and breaking it open, the owner refus ing to open it till he had consulted his coun sel ; Blackmar v. Nickerson, 188 Mass. 399, 74 N. E. 932; but breaking open the cellar of a dwelling house after refusal of admis sion was held not illegal ; Bell v. Clapp, 10 Johns. (N. Y.) 263, 6 Am. Dec. 339; and so was breaking and entering a railway depot without first asking permission, there being no one to admit the officer ; Androscoggin R. Co. v. Richards, 41 Me. 233.
When an engineer was indicted for causing the death of persons killed by a boiler explo sion, entry on his employer's premises and taking of the boiler and engine into custody of the police was held to be an unconstitu tional search and seizure ; Newberry v. Car penter, 107 Mich. 567, 65 N. W. 530, 31 L.
R. A. 163, 61 Am. St. Rep. 346.
It does not require actual entry upon prem ises and search for and seizure of papers. A compulsory production of a party's private books and papers to be used against him or his property in a criminal or penal proceed ing, or for a forfeiture, is within the spirit and meaning of the amendment and it is equivalent to a compulsory production of pa pers, to make the non-production of them a confession of the allegations which it is pre tended they will prove ; Boyd v. U. S., 116 U.
S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746 ; Hale v. Henkel, 201 U. S. 43, 71, 26 Sup. Ct. 370, 50 L. Ed. 652.
If officers armed with a search warrant, upon presenting it at the home of one accused of crime, are invited by his mother to enter and search the premises, so that they do not act under the warrant, evidence obtained during the search is admissible against the accused, though the act may have been a tres pass against him ; Com. v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. It. A. (N. S.) 1056.
See Cooley, Const. Lim. (6th Ed.) 364 ; 1 Archb. Cr. Pr. & Pl. 126, note ; 1 Bish. New Cr. Proc. ch. 16; GENFRAT. WARRANT ; SUB PCENA ; INCRIMINATION.