People v. Schaub

272 N.W. 867, 279 Mich. 457, 1937 Mich. LEXIS 774

• Court: Michigan Supreme Court
• Decided: April 28, 1937
• Docket: Calendar 39,273
• Status: Published

Opinions

In People v. Lewis, 269 Mich. 382, in approving of the search of an automobile and the seizure of concealed weapons therein without a warrant, we held "that the arresting officers had reasonable ground to believe that a felony was being, or about to be committed in their presence," etc.

In the present case the circumstances were such as to justify the arrest, search and seizure. It was after midnight when the officers saw two men in a car parked in a dark place on the street. It is a matter of common knowledge that thieves who steal cars or strip them of tires and accessories lie in wait in dark places, where they cannot be observed, for opportunities to commit crimes and then make a quick "get away" after the crime has been committed. When the officers walked over to the car, they heard something drop. The men were told to get out and when questioned admitted that they resided a long distance from where the car was parked. After the men had alighted, the officers saw a pinch bar, also called a tire bar, together with a mallet lying on the floor of the car. The officers could see what was lying on the floor without entering the vehicle.

"It surely cannot be the law that an officer charged with the duty of detecting crime may not use his eyesight in doing so unless aided by a search warrant. People v. Kamhout, 227 Mich. 172,184.

The men were then taken to the police station and when the car was more carefully examined, blackjacks and a tool called "an old man," a well-known burglar tool used to open safes, were found hidden behind a panel board.

Section 10, article 2, Constitution (1908) of Michigan, then read:

"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."

This section, like the fourth amendment to the Federal Constitution, does not denounce all searches and seizures, but only such as are unreasonable. SeeCarroll v. United States, 267 U.S. 132 (45 Sup. Ct. 280, 39 A.L.R. 790).

The statute, Act No. 328, § 116, Pub. Acts 1931, makes it illegal for one to possess burglarious instruments with intent to use them unlawfully. We said in People v. Case, 220 Mich. 379,388 (27 A.L.R. 686):

"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 was made must be looked into."

The court also observed in People v. Case, supra, that modern automobiles furnish "for successful commission of crime, a disguising means of silent approach and swift escape. * * * 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 People v. Cardella, 233 Mich. 505, the police officers, acting without a warrant for either arrest or search, investigated an unlighted parked car in an alley about 2:00 a. m. As one of the officers "came up to the rear of the car and turned his flashlight upon it, he saw lying on its floor in the rear most of the burglar tools which defendants were convicted of having unlawfully in their possession." The arrest was made and the search followed. Defendants moved to quash the information and asked to be discharged from custody claiming the evidence against them had been obtained by an unlawful search and seizure. The motion was denied and we affirmed the conviction.

In the instant case, while the evidence, other than the sound of a falling object, an automobile clock, was not perceived by the officers until after the occupants had alighted from the car, nevertheless, as we said in People v. Kamhout, supra:

" 'Peace officers may lawfully arrest thugs and burglars, when their actions are such as to reasonably lead the officers to believe that they are actually engaged in a criminal act, without giving the criminals time and opportunity to escape while the officers go away to make application for a warrant.'Lambert v. United States (C.C.A.), 282 Fed. 413, 417."

To paraphrase the concurring opinion in People v. Lewis,supra, I think the acts of the defendants, after they knew the officers were interested in the car, afforded reasonable belief by the officers that the occupants were either illegally armed or were attempting to conceal criminal goods. This would justify the officers in making a prompt arrest and search in order "to prevent the commission of a greater felony."

The burglar tools, etc., are admissible in evidence against defendants; their motion to suppress was and should have been denied. The order of the lower court is affirmed with costs.

BUTZEL, POTTER, and CHANDLER, JJ., concurred with BUSHNELL, J.