People v. Case

190 N.W. 289, 220 Mich. 379, 27 A.L.R. 686, 1922 Mich. LEXIS 913

• Court: Michigan Supreme Court
• Decided: November 2, 1922
• Docket: Docket No. 97
• Status: Published

Opinions

Steere, J.

Defendant was convicted under an information charging that on September 20, 1921, he unlawfully and feloniously had in his possession “a certain quantity of spirituous and intoxicating liquor, to wit, six quarts of whisky,” in Midland township, county of Midland. He was arrested on the fair grounds near the city of Midland where the county fair was then being held. He had on the grounds a Ford truck, suitable for transferring horses, with a canvas top and entrance at the rear over which hung a blanket, or canvas curtain. On the evening of his arrest this truck was found parked within the fair grounds hear the fence by the sheriff of Midland county who, with the president of the agricultural society and two deputy sheriffs, was making a search of the grounds for intoxicating liquor. Finding no one in charge when they went up to the truck they proceeded to investigate and the sheriff with one of his deputies went inside of it through the rear entrance. They then saw some bottles on the floor, two valises, and a jug sitting on the floor at the head of a cot upon which was some clothing. Liquor was found in the jug and one or more of the bottles which by its odor they recognized as whisky. The valises were found to also contain bottles of intoxicating liquor. The sheriff then took charge of the vehicle and its contents. No person appearing to claim them, he left a deputy named Carey there and went with another deputy to look for a man they “thought was connected with the liquor deal.”

While they were away defendant came up to the truck and Carey asked him if he owned it. Receiving an affirmative answer, he inquired if defendant also owned the liquor which was in it, and he said he did. What further passed between them at that time is not disclosed, but when the sheriff returned defendant was yet there with Carey, who said to the sheriff, “This is the man who owns the truck.” The sheriff then asked defendant if that was his truck and his whisky, and he replied that they were his. Asked “Is this man with you?” he said, “No, sir, I am alone.” In the course of events which followed he begged the sheriff to let him go and he “would get off the grounds and not come back,” naming Detroit as his destination ; but his proposal was not favorably entertained. The sheriff kept possession of the liquor then seized and this prosecution followed. On the trial the jug and the bottles with their contents were introduced in evidence against defendant’s objection, with expert testimony that the contents was intoxicating liquor. Defendant offered no testimony. It was conceded that the officers had no search warrant or other process when they found and seized the liquor.

Before commencement of the trial defendant’s counsel filed a motion to quash the information and for an order requiring return of the property seized on the ground that the officers had no authority to search for and seize the same. This motion was supported by an affidavit of defendant stating he was a truck driver by occupation residing in Detroit, and while he was in the city of Midland on September 20, 1921, “in the lawful pursuit of his business, that the officers of Midland county searched his Ford automobile truck and obtained therefrom one gallon of whisky.” This motion was denied and during the trial the question was saved for review by timely objections, motions, requests and exceptions.

Defendant’s counsel say in their brief that the single question raised is,

“Under the laws of this State, can an automobile truck or an automobile be searched without process, and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws of this State?”

In support of their negative contention on that query counsel urge as conclusive section 10, article 2, of our State Constitution forbidding unreasonable searches and seizures as construed by this court adverse to the claims of the prosecution in the following cases involving violations of the prohibition law: People v. Marxhausen, 204 Mich. 559 (3 A. L. R. 1505) ; People v. DeLaMater, 213 Mich. 167; People v. LeVasseur, 213 Mich. 177; People v. VanderVeen, 214 Mich. 21; People v. Mayhew, 214 Mich. 153; People v. Halveksz, 215 Mich. 136; People v. Woodward, 215 Mich. 267; People v. Margelis, 217 Mich. 423.

In the first place it is to be noted that all those cases turned on the validity of search and seizure in occupied buildings on private premises made either in reliance on a void search warrant or without any process at all. In five of them the privacy of homes, or private residences, was invaded. It is a well-settled rule that any statements and comments in an opinion concerning some rule of law or debated legal proposition not necessarily involved nor essential to determination of the case in hand are, however illuminating, but obiter dieta and lack the force of an adjudication. The court was dealing in those cases with invasion of private premises, not automobiles found by officers, on the highway or standing in a public place, and the controlling question in each was whether under the undisputed facts the general rule that entry without permission for search of private premises and seizure of property there found without legal process is an unreasonable search and seizure violating constitutional rights. That property so seized in violation of an accused’s constitutional protection against unreasonable search and seizure cannot be used as evidence against him upon his trial, is settled for this State by those decisions in harmony with the majority of decisions in other jurisdictions, including the recent utterance of the United States Supreme Court in Amos v. United States, 255 U. S. 313 (41 Sup. Ct. 266), which also involved search of the accused’s home without process. If the seizure of this liquor was lawful it was competent evidence against defendant. Counsel cite us to no case holding illegal the examination of an automobile or other vehicle found by officers of the law in a highway or other public place and seizure of contraband goods in it evidencing that a crime is being committed.

The Michigan constitutional provision against search and seizure follows in phraseology that of the United States, and our prohibition law relative to forfeiture of property rights in intoxicating liquor possessed or transported in violation of it is similar in that respect to the Volstead act. Section 31 of our prohibition law (as amended by Act No. 336, Pub. Acts 1921) provides in part:

“No property right of any kind shall exist in any intoxicating liquor, had, kept, transported or possessed contrary to law or in or to any receptacle or container of any kind whatever in which said liquors may be found, and all such are hereby declared forfeited to the State and shall be seized, * * * Any sheriff or other peace officer may arrest without a warrant any person violating this act in the presence of such officer. * * * Any officer making an arrest for any violation of this act may seize all evidence of the commission of such violation including any wagon, buggy, automobile * * * or other vehicle or conveyance in which such liquors are had, kept, transported or possessed contrary to law.”

Provision is also made for forfeiture to the State and sale of such vehicle. By these direct and plain provisions of the statute the. person possessing or transporting intoxicating liquor contrary to law has no property rights in it. When its illegal possession or transportation begins it at once becomes the property of the State. One searching for and seizing it does not search for and seize property of the person in illegal possession, and if the State makes the seizure it is but taking possession of its own property. Distinguishing between seizure of such contraband property and property privately owned both State and Federal courts have in certain instances held that property so forfeited to the State or Government could be used in evidence by the prosecution though perhaps irregularly seized. State v. Krinski, 78 Vt. 162 (62 Atl. 37) ; State v. Bradley, 96 Me. 121 (51 Atl. 816) ; State v. Simmons, 183 N. C. 684 (110 S. E. 591); Taylor v. United States, 44 U. S. 197; Boyd v. United States, 116 U. S. 616 (6 Sup. Ct. 524) ; United States v. Fenton, 268 Fed. 221, which involved search and seizure from an automobile, without process, as did United States v. Bateman, 278 Fed. 231, wherein it was held (quoting from the syllabus):

“In view of the impossibility of procuring warrants for the search of automobiles suspected of transporting intoxicating liquors, the officers have a right, without warrant, to stop and search automobiles, and the finding of liquor therein justifies the search.”

Conceding, however, that the question of permitting property secured by unlawful search and seizure to be used as evidence against the accused has been- negatively settled in this State, as bearing upon 'the question of unreasonable search and seizure the distinction between searching and seizing contraband property belonging to the State and that privately owned is a circumstance of significance. In the Boyd Case, where it was held seizure of defendant’s private papers was in contravention of his constitutional protection against unreasonable search and seizure precluding their introduction in evidence against him, the subject is instructively discussed in part as follows:

“The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid payment thereof, are totally different things from a search for and seizure of a man’s private books and papers * * * In the one¡ case, the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by congress is to regulate the collection of duties, the act of July, 1789 (1 U. S. Stat. pp. 29-43), contains provisions to this effect. As this act was passed by the same congress which proposed for adoption the original amendments to the Constitution, it is clear the members of that body did not regard searches and seizures of this kind as ‘unreasonable,’ and they are not embraced within the prohibition of the amendment. * * * Not all searches nor all seizures are forbidden, but only those that are unreasonable. Reasonable searches, therefore, may be allowed and if the thing sought be found, it may be seized.”

While it is an accepted doctrine that the Constitution stands unalterable and what it meant when adopted it continues to mean, conditions to which it applies do change and new ones arise. Our Constitution contains both a provision against intoxicating liquor and against unreasonable search and seizure. Every constitutional provision, as well as statutory, should be construed where possible to give effect to every other constitutional provision in the instrument. Neither our State or the Federal Constitution directly prohibit search and seizure without a warrant as is sometimes asserted. Only “unreasonable” search and seizure is forbidden. They are substantially the same upon that subject. The two concise sentences in our Constitution (Art. 2, § 10) read as follows:

“The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.”

It is contended that the second sentence of this section must be construed as forbidding any and all searches and seizures without a warrant prepared and issued as prescribed by it, whether reasonable or otherwise. If such was the intention a few apt words easily added to the second prohibition would have made the intention plain beyond a doubt. It has been often asserted in substance and judicially declared by Chief Justice Marshall that “the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to. have intended what they have said.” Gibbons v. Ogden, 9 Wheat. (U. S.) 1, 188, but if the construction contended for by defendant is accepted it must be extracted by a circumlocution which throws the word “unreasonable” into the discard, leaving the first prohibition a positive, unqualified mandate forbidding search and seizure, negatived by the second prohibition recognizing inferentially search and seizure under a prescribed warrant and forbidding it otherwise. The first prohibition thus disposed of, it might also be claimed that the second prohibition with its disjunctive “or” permits commission of felonies in all cases to proceed undisturbed, even in the presence of an officer, until the required process is obtained, for it says:

“No warrant * * * to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.”'

But taking the plain meaning of all words employed in their natural sense, there is no occasion, for strained construction in dealing with the two-separate prohibitions in that simple section. Each is clear, independent and complete by itself. The first recognizes search and seizure regardless of process, but restricted by a comprehensive, master adjective compelling in performance exercise of moderation and good judgment to exclusion of prejudice, temper and passion. The second deals with warrants where time and circumstances permit or in reason require them,, specifying restrictive essentials which protect the-officer serving them, if fair on their face, even though ultimately shown unfounded and unreasonable, a wise precaution for his protection, as well as the public, especially when viewed in the light of the then recent, notorious abuses perpetrated under general search, warrants for political purposes by officials of the government from which the United States had but recently seceded, at the time the Federal Constitution was framed and when many of England’s laws were being adopted with constitutional or statutory restrictions and modifications.

These constitutional restrictions like others of that type are concisely stated in general but apt terms and it was left for the courts of the country to determine in each case or class of cases what under the conditions shown constituted “excessive bail,” “excessive fines,” “freedom of speech,” “cruel and unusual punishment,” “unreasonable search and seizure,” etc. The generally recognized rule is fairly stated in the following annotation to 11 Fed. Stat. Ann. (2d Ed.), p. 354:

“The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to.”

The automobile is a swift arid powerful vehicle of recent development which has multiplied by quantity production and taken possession of our highways in "battalions until the slower animal-drawn vehicles with their easily noted individuality are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their .advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called “bootlegging” or “rum running,” which in itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes nor on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity and decency to robbery, rape, burglary and murder is a matter of common knowledge. Upon that problem a condition and not a theory confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made.

In the instant case defendant had gone upon a public fair ground where the county fair was then in progress with an automobile covered by canvas containing intoxicating liquor, unlawfully in his possession and as such by operation of law forfeited to the State. He was committing a felony by taking and having it at such a gathering. Police surveillance on such occasions is generally recognized as essential to the orderly conduct of the proceedings and protection of those assembled there. The officers performing that duty had occasion to search the grounds for liquor. There was nothing unreasonable or illegal in their looking into this vehicle which they found standing alone on the grounds. By simply pushing aside a canvas curtain they had from what they saw probable grounds to believe a felony was being committed, confirmed by the odor emitted from the containers in sight on the floor. Defendant admitted while their investigation was in progress that the truck and whisky were his, and later filed an affidavit in the case so stating. In view of the time, place and all the circumstances under which this seizure and defendant’s arrest were made, we are of opinion neither was unreasonable or unlawful.

The conviction is affirmed.

McDonald, Clark, Sharpe, and Moore, JJ., concurred with Steere, J.