People v. De Cesare

Bird, J. {dissenting). Defendant drove into Howell with a Packard automobile and stopped at the curb. He had been there only a short time when the. sheriff of Livingston county came to the car and demanded admittance. After defendant learned of him who he was he was admitted. The sheriff inquired what he had in the suit cases which were in the car. Defendant made no reply, whereupon the sheriff attempted to open one but found it locked. He broke it open and found it contained several bottles of whisky. He then arrested defendant and took him to jail. In the justice’s court, and afterwards in the circuit court, defendant, through his counsel, applied for an order directing the return of the liquor to him on the theory that it was illegally seized, but both applications were denied. The liquor was admitted in evidence on the trial against defendant’s objection. Defendant assigns several errors in this court, the important one being that his constitutional rights were invaded by search of his car and the breaking open of his suit cases — 419 — without the authority of a search warrant. The constitutional provisions relied upon are: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U. S. Constitution, 4th Amendment. “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.” Michigan Constitution, art. 2, § 10. “No warrant shall be issued to search a private-dwelling occupied as such, unless some part of it is used as a store or shop, hotel or boarding house, or for any other purpose than a private residence, or-unless such private dwelling is a place of public: resort.” * * * Act No. 336, Pub. Acts 1921, §; 30. Ruling Case Law has this to say upon the scope and meaning of these constitutional provisions: “An unreasonable search is an examination or inspection without authority of law of one’s premises or person, with a view to the discovery of stolen, contraband or illicit property, or for some evidence of guilt, to be used in the prosecution of a criminal action. The right of individuals to be exempt from such searches is guaranteed by the 4th Amendment to the Constitution of the United States, and such amendment is incorporated generally in the constitutions of the several States. These provisions apply to all invasions on the part of the government and its employees, of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitute the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private prop — 420 — erty, where that right has never been forfeited by his conviction of some public offense. * * * “The violation of the right to be secure in one’s home does not require actual entry on the premises and a search for and the seizure of property, in order to constitute it an unreasonable search and seizure.” 24 R. C. L. pp. 717-719. It will be noted that the legislative provision deals only with private dwellings. It is not as broad as the constitutional provision. This deals with and seeks to protect against unreasonable searches of the person, houses, papers, as well as possessions. This Packard car was defendant’s possession. The suit cases were private baggage of defendant and clearly came within the constitutional provision. If the sheriff had the right to do what he did, he would have had the same right to follow the car into the garage in the rear of defendant’s private dwelling and there make a search and seizure. Had the suit cases contained defendant’s private papers, it would hardly be contended that the sheriff would have had a right to break them open and examine the contents. The constitutional provision seeks to protect one’s possessions as well as his dwelling against invasions of this character. Youman v. Commonwealth, 189 Ky. 152 (224 S. W. 860), cited with approval in People v. Margelis, 217 Mich. 423. The case of Town of Blacksburg v. Beam, 104 S. C. 146 (88 S. E. 441, L. R. A. 1916E, 714), supports this view. The facts in that case were that: “The defendant is a young, white farmer, and lives near Kings Creek, a few miles out from Blacksburg. He had been to Union court house where he bought whisky from a dispensary; he put the liquor in his trunk, and checked the trunk to Blacksburg, where he disembarked from the railroad cars, bought a ticket to Kings Creek (towards York), and had his trunk rechecked to that place. Pending his passage from one line of railroad to another, the chief of police at — 421 — Blacksburg, without any process, searched the defendant’s person, got therefrom his trunk key, opened the trunk and seized the whisky, arrested and incarcerated defendant,” etc. Beam was found guilty and the case found its way to the supreme court. In disposing of the appeal it was said: “We have no doubt but that a conviction under the recited circumstances is unlawful. Some things are to be deplored more than the unlawful transportation of whisky; .one is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity with the laws of the land. There are two reasons for this: One to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from-its mandates. “In the instant case the possession of the liquor was the body of the offense; that fact was proven by a forcible and unlawful search of the defendant’s person, to secure the veritable key to the offense. It is fundamental that a citizen may not be arrested and have his person searched by force and without process in order to secure testimony against him. * * * It is better that the guilty shall escape than that another offense shall be committed in the proof of guilt.” If the chief of police had no right to search defendant’s trunk while in transit, did the sheriff of Livingston county have the right to demand admittance to the car, and when admitted, break the lock on defendant’s private baggage and examine the contents? But the argument is made that the sheriff found the prohibited thing which made defendant guilty of a felony. So did the chief of police find the whisky in the trunk, but he found it by such an invasion of defendant’s rights that the court would not approve of it. So with the sheriff in the present case. He had no real knowledge that defendant was trans — 422 — porting liquor and lie learned of it only by a clear invasion of defendant’s constitutional rights. It will hardly do to say that the sheriff has a right to break open one’s private baggage, and if he finds whisky he is justified, and if he does not that he is only liable for a trespass. This question is treated by the case of Pickett v. State, 99 Ga. 12 (25 S. E. 608, 59 Am. St. Rep. 226). In that case defendant was indicted for an assault with intent to murder a police officer. The officer had arrested defendant’s brother and some person told the officer that the defendant was armed. The officer then went to the defendant and claimed the right to search him. This right the defendant denied, but the officer insisted .upon exercising it, and claimed that in so doing he discovered a pistol, after which an altercation followed in which the defendant and the officer, it is claimed, shot at each other. The defendant claimed that he did not have any weapon on his person and did not do any shooting. On the trial the court charged the jury that “if the defendant had been violating the laws of the State, and the officer had been informed of it, he had a right to arrest the defendant whether he had a warrant or not, and, after the arrest had the right to search defendant and take such weapon as would be calculated to result in harm.” The supreme court, in disposing of this instruction, said: “While, under section 4728 of the Code, an officer may, without a warrant, make an arrest for an offense committed in his presence, he has no authority, upon bare suspicion or upon mere information derived from others, to arrest a citizen and search his person in order to ascertain whether or not he is carrying a concealed weapon in violation of law. The constitution of this State expressly declares in the bill of rights that: — 423 — “ ‘The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.’ Code, § 5008. “If any search is unreasonable and obnoxious to our fundamental law, it is one of the kind with which we are now dealing. Even if the person arrested did, in fact, have a pistol concealed about his person, the fact not being discoverable without a search, the offense of thus carrying it was not, in legal contemplation, committed in the presence of the officer, and the latter violated a sacred constitutional right of the citizen in assuming to exercise a pretended authority to search his person in order to expose his suspected criminality.” This case very effectively disposes of the argument of the sheriff in the case under consideration that defendant was committing a felony in his presence and, therefore, he had a right to arrest him. He was not satisfied to confine the searching to his person to see if defendant had any weapons upon him or any evidence of the guilt of the offense involved, but he attacks his private baggage and breaks the lock before he finds evidence of his criminality. Our own court has recently considered these constitutional provisions. In People v. Marxhausen, 204 Mich. 559 (3 A. L. R. 1505), it was said: “By these provisions the rights of the individual are secured; the provisions of the Federal Constitution securing the citizen from arbitrary, unlawful conduct on the part of the Federal government and its officers, and the provisions of the State constitutions securing the citizen from arbitrary, unlawful conduct on the part of the State and its officers. These provisions not only secure the individual in his person, his home, and his property from invasion through unbridled legislation, but they also secure the individual in his person, his home, and his property frorn invasion through unbridled and unrestrained executive or administrative will. It ought not to be necessary to recall the fact that it is of the essence of a free government that the individual shall be secure in his person, — 424 — his home and his property from unlawful invasion, from unlawful search, from unlawful seizure.” The recent case of People v. Foreman, 218 Mich. 591, appears to be decisive of the present one. In that case the defendant, Foreman, alighted from an interurban car and entered a hotel in Grand Haven and set his suit case on the floor. An officer followed him into the hotel, opened the suit case and found therein a quantity of moonshine whisky. The officer had neither á warrant for Foreman’s arrest nor a search warrant. Foreman made the defense that his constitutional rights had been invaded by the officer. The officer insisted that Foreman consented to the search. Foreman was convicted and appealed to this court. After reviewing the case at some length, Mr. Justice Moore, in reversing the case, said: “The jury should have been instructed by the judge that as the officer had no warrant for the arrest of defendant and no search warrant that he had no right to search the grip, unless he was invited to do so, and that in the absence of such invitation they should find the defendant not guilty.” The present case is a more grievous one because the sheriff broke the lock of defendant’s suit case, whereas in the case cited the suit case was unlocked. Th,e question involved in the present case is an important one to the people of the State. If we should affirm the action of the lower court, the effect of the decision may be felt by anyone at any time who is driving an automobile over the public highways of this State. It will say, in effect, to the police, you may go out and stop any one of the thousands of automobiles traveling upon the Michigan highways. You may search the car. You may break open the locks on the personal luggage in the car, and be immune whether you find any liquor or not. The tendency of this rule among people who are not advised as to the law will — 425 — breed altercations and bloodshed. Besides this, such a construction as this would weaken and destroy the force of our constitutional provision which has served as a protection and shield to the people ever since we became a State. The prohibition law .is here and •it should be enforced in an orderly and lawful way as other criminal laws are enforced. If it cannot be enforced without trampling under feet one’s constitutional rights, it should not be enforced. Cooley on Constitutional Limitations (3d Ed.), p. 348. The prohibition law should be enforced the same as any other offense against our laws is enforced, with a full recognition of the constitutional rights of the citizen. What was said in a very late opinion by the Supreme Court of the United States in Gouled v. United States, 255 U. S. 298 (41 Sup. Ct. 261), in speaking of the 4th and 5th Amendments to the Constitution, is apropos here: “It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616 [6 Sup. Ct. 524] ; in Weeks v. United States, 232 U. S. 383 [34 Sup. Ct. 341, L. R. A. 1915B, 834] ; and in Silverthorne Lumber Co. v. United States, 251 U. S. 385 [40 Sup. Ct. 182]) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments. The effect of the decisions cited is: That such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty, and private property’; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual eitizen, — the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly .decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of — 426 — courts or by well-intentioned but mistakenly overzealous executive officers.” Our conclusion is that the trial court was in error in admitting the whisky in evidence on the trial. For this error the judgment should be reversed and a new trial ordered. Fellows, C. J., and Wiest, J., concurred with Bird, J.