People v. Roache , 237 Mich. 215 ( 1927 )

In searching the defendant's automobile without a warrant the officer exceeded his authority and invaded a constitutional right of the defendant. The evidence against him was obtained by an unlawful search and seizure, and the motion to suppress, timely and properly made, should have been granted. To permit the searching of automobiles by one invested with official authority, under such circumstances as obtain in the instant case, can mean but one thing, the right to indiscriminately stop any one driving along the public highway and subject him to the ignominy of a search of his personal and private effects at the mere caprice of such officer. Such right does not exist and cannot be conferred. According to the quoted testimony of the officer in the opinion of Mr. Justice CLARK, the most that can possibly be claimed for it, as giving him reasonable and probable cause to believe that the defendant was unlawfully transporting intoxicating liquor, is that the occupants of the car looked back at him after they had passed, and that the driver was going slower than the majority of cars driven along this highway. This made the officer suspicious.

No one will contend that an officer may promiscuously stop automobiles upon the public highway and demand the driver's license merely as a subterfuge to invade the constitutional right of the traveler to be secure against unreasonable search and seizure. Yet that is exactly what was done here. The officer cared nothing about seeing a driver's license, but he says he was suspicious that there was liquor in the car, and almost immediately after stopping the defendant he ordered him out of his car and proceeded to search it for liquor.

For the disposition of this case the rule laid down by Mr. Justice SHARPE in the majority opinion of the court inPeople v. Kamhout, 227 Mich. 172, may be accepted, and, when applied to the facts here, makes it clear that the search was illegal. The rule, page 187 of said case:

"There must be no misunderstanding on the part of the officers as to the right of search and arrest under our holdings. They have no right to stop and search an automobile for the purpose of ascertaining whether it is being used as a means of transporting liquor illegally unless they have such reasonable grounds of suspicion as induce in them, and as wouldinduce in any prudent man, an honest belief that the law is being violated. * * * The fact that intoxicating liquor is found as a result of the search cannot be said, in itself, to justify the search, while it may be urged in support of the good faith of the officer in making it. What we do state to be the rule by which this court will be governed is, that if an officer, charged, with the enforcement of the law, from the exercise of his own senses, or acting upon information received from sources apparently so reliable that a prudent and carefulperson, having due regard for the rights of others, would act thereon, has reasonable and probable cause to believe that intoxicating liquor is being unlawfully transported in his presence, he may arrest the offender or search for and, if found, seize the contraband therein without a warrant to do so."

What was there in the situation in the instant case that would lead "a prudent and careful person, having due regard for the rights of others" to have reasonable and probable cause to believe that liquor was being unlawfully transported in defendant's automobile? The officer had no information whatever from any source concerning this automobile or its occupants, and he saw no liquor or anything indicating the presence of liquor. The automobile was proceeding slowly, 17 miles per hour. What significance could this possibly have? Surely one has the right to drive at this rate of speed without being interfered with by a traffic policeman. The occupants looked back at the officer. We ask, May one not look at a policeman on a motorcycle? Can such ordinary happenings as these, or the combination of the two, sustain an officer's claim that he had probable cause to believe the automobile contained liquor? The answer is obvious. No other cause for suspicion was advanced by the officer. If such usual and trivial things are held to give the right to search an automobile on the public highway without a warrant, no officer will ever be at a loss to find some excuse for his misconduct. He could surely as well claim he became suspicious from the fact it was going slow; he could claim that its occupants were well dressed, or that they were poorly dressed; that they were bold and impudent, or that they were modest and respectful; that they stared at him, or that they avoided looking in his direction; that their car was muddy or that it was too highly polished; or any other of a thousand ordinary and immaterial things that might be mentioned. Suppose this officer had gone before a magistrate and made affidavit that he had met two boys in an automobile driving slowly, and that after he passed they turned and looked at him, and had, on this showing, asked for a search warrant, could it be for a moment considered that such an affidavit was a showing of cause? It would have been an abuse of discretion to issue a search warrant based on such a showing. Yet, upon the same showing here, we are asked to hold that without a warrant the search was justified and the seizure lawful.

It is said that the officer acted "at his peril" in searching this automobile. If, then, he had found nothing, it is certain that a defense of reasonable cause in a civil suit against him, under his testimony, would have been unavailing. And it is equally certain that in a criminal case, notwithstanding the fact that liquor was found, his means of search cannot be justified, nor the seizure held lawful.

While we may take judicial notice of the fact that rum runners and bandits ride in automobiles, and use them to commit crimes and effect their escape, may we not also take judicial notice of the fact that where there is one bandit or rum runner passing over a public highway, there are thousands of respectable, law-abiding citizens who are doing likewise? The protection afforded by the Constitution to such persons must be regarded as paramount to any right to be given a police officer to enable him to verify his ungrounded suspicion that a law is being violated.

The granting, if such a thing were possible, to overzealous officers, of powers, the performance of which would invade constitutional rights of the citizen, would do more to retard the enforcement of law than to promote it. The motion to suppress should have been granted.

The verdict is reversed, and as a conviction cannot be secured without the liquor as evidence, the defendant is discharged.

BIRD, FELLOWS, WIEST, and McDONALD, JJ., concurred with SNOW, J.