People v. Schaub

About the midnight hour of a September night defendants were sitting in their parked automobile in front of 4751 Canton avenue in the city of Detroit. Two police officers wondered what they were doing, walked over to the curb, heard something fall, asked defendants to get out, searched the car and found therein a mallet and a pinch bar on the floor and a flashlight with a little hole bored underneath so as to "throw the light — the size of your finger;" placed the defendants under arrest, drove the car to the police station and there, upon further search, found underneath the front right panel of the car a tool called " 'an old man,' used to pull the combination off of safes, also two blackjacks and two drift pins." Complaint was thereupon made charging defendants with possessing burglar tools for felonious purposes. At the examination defendants' motion to suppress the evidence, so obtained without a search warrant or reasonable grounds preceding the arrest, was denied and a like motion, when arraigned in the recorders' court, was also denied, and the question is here by appeal.

In support of the motion to suppress the mentioned evidence, counsel for defendants cites our holdings in People v.Marxhausen, 204 Mich. 559 (3 A.L.R. 1505); People v. De LaMater, 213 Mich. 167; People v. Le Vasseur, 213 Mich. 177;People v. Woodward, 215 Mich. 267; People v. Margelis, 217 Mich. 423; People v. Foreman, 218 Mich. 591, and People v.Stein, 265 Mich. 610 (92 A.L.R. 481).

The attorney general and prosecuting attorney state in their brief: "In pursuing the cases cited by appellants in this cause we agree that the cases that counsel for the appellants submits for the perusal of this court in his brief do substantially uphold the contention that he makes relative to the law applicable to search and seizure as of the time that those cases were heard and the opinions rendered. We believe, however, that the trend of opinion and the trend of the courts in general have been away from the decisions cited by counsel," and invoke the dissenting opinion in People v. Stein, supra, and set it forth at length in their brief.

Members of the court are familiar with the majority as well as the minority opinion in that case and, as usual, the majority opinion controls.

The fourth amendment to the Constitution of the United States and article 2, § 10, of the Constitution of this State, at the time of the search and seizure, were identical in protection and restraints.

In addition to what has been repeatedly said by this court on the subject we direct attention to Jones v. Securities Exchange Commission, 298 U.S. 1 (56 Sup. Ct. 654), where it was said:

"The philosophy that constitutional limitations and legal restraints upon official action may be brushed aside upon the plea that good, perchance, may follow, finds no countenance in the American system of government. An investigation not based upon specified grounds is quite as objectionable as a search warrant not based upon specific statements of fact. Such an investigation, or such a search, is unlawful in its inception and cannot be made lawful by what it may bring, or by what it actually succeeds in bringing, to light."

In Byars v. United States, 273 U.S. 28 (47 Sup. Ct. 248), the accused was convicted for unlawfully having in his possession, with fraudulent intent, certain counterfeit strip stamps, of the kind used upon whisky, bottled in bond. The stamps were admitted in evidence over the objection of petitioner that they had been obtained by an unlawful search and seizure. A timely motion, previously made by the petitioner, to return or impound the stamps was overruled. The judgment was affirmed by the circuit court of appeals, (Byars v. United States)4 Fed. (2d) 507. It appears that the State officer had a search warrant issued upon information stating: "that affiant 'has good reason to believe and does believe the defendant has in his possession' such intoxicating liquors, instruments and materials," used in the manufacturing of such liquors. Upon search nothing called for by the warrant was found but in the course of the search the State officer, accompanied by a Federal officer, found and seized the counterfeit stamps.

We quote the following from the opinion of the court:

"The fourth amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right."

The amendment to article 2, § 10, of the State Constitution, operative December 3, 1936, has no retroactive operation and cannot be considered.

The court was in error in not granting the motion, and the case is remanded to the court below with direction to suppress the mentioned evidence and for further proceedings not inconsistent with this opinion.

SHARPE, J., concurred with WIEST, J.