People v. Alverson , 226 Mich. 342 ( 1924 )

On exceptions before sentence reversal of a conviction under the prohibition law is sought. The sheriff and a deputy went to defendant Alverson's farm home to serve on him a paper in a civil cause. They found no one at the home. They had no warrant for arrest, or for search. No circumstance to justify a search without warrant is claimed. They broke, entered and searched the dwelling house and entered and searched some outbuildings. The knowledge thus obtained was used by the deputy sheriff to make an affidavit under the prohibition law for a search warrant. After starting the deputy on his way for the search warrant, the sheriff remained on defendant's premises for several hours until the deputy returned with a warrant for search of the dwelling house and an outbuilding. The usual equipment of the moonshiner, including intoxicating liquor, was taken, and at the trial was received in evidence.

Of the questions properly saved for review, we consider one, that in procuring the evidence against defendant the search and seizure provision of the State Constitution was violated, and that, therefore, the evidence should have been suppressed and defendant discharged. Had the search of defendant's dwelling and the seizure and removal of the liquor, etc., been completed without a search warrant, concededly it would have been the duty of the trial court on the motion to suppress the evidence and to discharge the prisoner. But here, before the search warrant was issued, the search was complete, and in effect the property had been seized. It is apparent on the record that the sheriff remained in charge while the deputy was getting the warrant. Upon his return with the warrant, nothing remained to be done but to change the locus of the property from defendant's premises to the sheriff's repository. Procuring a search warrant under the circumstances gave the search and seizure no legality. Defendant's motion to suppress and for discharge ought to have been granted.

A case in point is State v. Gibbons, 118 Wash. 171 (203 P. 390). In United States v. Boasberg, 283 Fed. 305, a case parallel in facts, the indictments were quashed. See Underhill's Criminal Evidence (3d Ed.), §§ 749, 750; Blakemore on Prohibition, 314; Burdeau v.McDowell, 256 U.S. 465 (41 Sup. Ct. 574, 13 A.L.R. 1159);Silverthorne Lumber Co. v. United States, 251 U.S. 385 (40 Sup. Ct. 182); 24 A.L.R. 1408. The cases of People v.Flaczinski, 223 Mich. 650, and People v. Czckay, 218 Mich. 660, and others of like import, are not controlling. A sufficient reason is that in the case at bar the search and seizure had taken place before the warrant was issued.

The conviction is set aside. Defendant is discharged.

BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred. McDONALD, J., did not sit.