DocketNumber: Docket No. 98.
Citation Numbers: 199 N.W. 702, 228 Mich. 32, 1924 Mich. LEXIS 730
Judges: Clark, McDonald, Bird, Sharpe, Moore, Steere, Wiest
Filed Date: 7/24/1924
Status: Precedential
Modified Date: 10/19/2024
Defendant here reviews his conviction of a violation of the prohibition law on exceptions before sentence. The place to be searched is described in the affidavit as:
"* * * a two-story frame house unpainted, partly shingled upon the sides, located on the north half of the northeast quarter of section five, * * * in the township of Krakow, in said county and State, and occupied by Joe Bawiec and John Bawiec, as a private dwelling and as a place for the manufacture, storage, sale, furnishing and giving away of intoxicating liquor."
The warrant followed the affidavit. The place searched was an old log house some 18 or 20 feet away and disconnected from the frame house, but within the curtilage, and the sole question presented is whether the search warrant authorized the search of any building other than the one described in the affidavit and writ. Section 10, art. 2, of the State Constitution provides:
"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."
In People v. Musk,
"The proceeding is a drastic one and legislation for its enforcement should be strictly construed. * * *
"We are of the opinion that the action of the officer in searching number 932 Elwood avenue and seizing liquor therein was an unjustifiable trespass and a violation of defendant's constitutional and legislative rights."
24 R. C. L. p. 713, and Larthet v. Forgay, 2 La. Ann. 524 (46 Am. Dec. 554), were there cited and quoted from. In People v.Flemming,
"The constitutional provision prohibiting unreasonable search and seizure makes plain that search warrants, which can only issue on probable cause supported by oath or affirmation, must describe the place to be searched, and the person or thing to be searched for and seized if found. People v. Musk,
This is in consonance with the general rule. InHampton v. State,
"Because the Constitution forbids general warrants, the magistrate should see that the place to be searched is sufficiently described to enable him to carry the description in the warrant, so that the warrant may direct the officer where to search, without leaving any discretion to the officer as to what place he may search. This is important so as to exclude search of places not contemplated by the warrant. The warrant must *Page 35 tell the officer what to search for, as well as where to search."
It will thus be seen that while this court has treated as surplusage misdescriptions where the place to be searched has been otherwise described with such definiteness as to leave no discretion in the officer, we have not thus far held that a search warrant made valid by a definite description pointing only to a specific building and directing a search therein justifies a search of another building not described although located in the same vicinity. Nor do we think we should so hold. It is permissible to direct in one warrant the search of the house and outbuildings within the curtilage.Caudill v. Commonwealth (Ky.),
"The warrant was not void. It was not what is termed a traveling warrant. It did not direct the officer 'to search all suspected places;' nor, as in Sandford v. Nichols,
In the instant case, however, the outbuildings were not included in the warrant which was the mandate and the only mandate to the officer. This mandate gave the authority to the officer to make the search and at the same time limited the scope of his authority. If we should construe a dwelling house (definitely described) to include outbuildings within the curtilage (not described at all) it would follow as a necessary corollary that we should so construe the term as used in the concluding provision of section 30, Act No. *Page 36
336, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 7079 [30]). This would give to the outbuilding the immunity given the dwelling house by this provision (see People v. Hertz,
The exceptions of the defendant must be sustained. The officer exceeded the mandate of the writ. As the only evidence produced against defendant was obtained by this unlawful trespass, the reversal will be without a new trial and the defendant will be discharged.
CLARK, C.J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, and WIEST, JJ., concurred.
People v. Lienartowicz. , 225 Mich. 303 ( 1923 )
People v. MacKey , 121 Mich. App. 748 ( 1982 )
People v. Woodward , 231 Mich. 559 ( 1925 )
State v. Mills , 246 N.C. 237 ( 1957 )
People v. McGhee , 255 Mich. App. 623 ( 2003 )
People of Michigan v. Brigitte Louise Derousse ( 2022 )