People ex rel. Roth v. Younger

• Decision Date: 03 April 1950
• Docket Number: No. 246,246
• Parties: PEOPLE ex rel. ROTH, Attorney General, v. YOUNGER, Municipal Judge. Notion
• Court: Michigan Supreme Court

Page 120

42 N.W.2d 120

327 Mich. 410

PEOPLE ex rel. ROTH, Attorney General, v. YOUNGER, Municipal Judge.

Notion No. 246.

Supreme Court of Michigan.

April 3, 1950.

Stephen J. Roth, Attorney General, Edmund E. Shepherd, Solicitor General, Lansing, Nicholas V. Olds, Assistant Attorney General, Charles R. MacLean, Prosecuting Attorney for the County of Ingham, Lansing, for plaintiff.

Louis D. McGregor, Flint, Raymond R. Campbell, Lansing (of counsel), for defendant.

Before the Entire Bench.

DETHMERS, Justice.

The Michigan Constitution of 1908, art. 2, § 10, secures the person, houses, papers and possessions of every person from unreasonable searches and seizures. The test of the reasonableness of a search without a warrant is whether the officer making it had, prior to the search, knowledge of such facts or reasonable cause to believe the existence of such facts as would amount to the probable cause which is made a prerequisite to the issuance of a search warrant under the provisions of said section 10. People v. Hagadorn, 255 Mich. 121, 237 N.W. 526; People v. Miller, 245 Mich. 115, 222 N.W. 151; People v. Kamhout, 227 Mich. 172, 198 N.W. 831; People v. Keller, 238 Mich. 543, 213 N.W. 683; People v. Roache, 237 Mich. 215, 211 N.W. 742. Anonymous information does not meet the test. People v. Guertins, 224 Mich. 8, 194 N.W. 561; People v. Miller, supra. In considering the validity of a search, without a warrant, of an automobile, this court, in People v. Miller, supra, held such search reasonable and the officer making it to have been acting upon probable cause when [245 Mich. 115, 222 N.W. 152] 'from the exercise of his own senses or acting upon information received from sources apparently reliable, a prudent and careful person, having due regard for the rights of others, would be induced to the honest belief that a felony was being committed in such automobile. People v. Kamhout, 227 Mich. 172, 198 N.W. 831.' Similarly, in Carroll v. United States, 267 U.S 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790, the court held such search valid if made upon probable cause and that such probable cause exists only if facts and circumstances within the officer's knowledge and of which he has reasonable trustworthy information, are sufficient in themselves to warrant a man of prudence and caution in believing that an offense has been or is being committed. A like view of the reasonableness of a search without a warrant is reflected in People v. Orlando, 305 Mich. 686, 9 N.W.2d 893; People v. Nappo, 251 Mich. 89, 231 N.W. 130; People v. Absher, 240 Mich. 107, 214 N.W. 954, and in People v. Goss, 246 Mich. 524, 224 N.W. 364, in which the court said: '* * * to justify a search and seizure, the officer must act on some fact or circumstance or upon such information that would create in his mind a reasonable and honest belief that the law was being violated.' Likewise, in Carroll v. United States, supra, it was said that persons entitled to use the highways have a right to free passage without interruption or search except upon probable cause for believing the law to be violated. Furthermore, the mere refusal of a person to submit to search is not such a fact as gives rise to probable cause to believe that an offense is being committed entitling the officer to proceed with the search. State v. Gibbs, 252 Wis. 227, 31 N.W.2d 143. Neither may an officer make a search on the basis of mere suspicion without probable cause to believe that the law is being violated. See People v. Stein, 265 Mich. 610, 251 N.W. 788, 92 A.L.R. 481, and People v. Roache, 237 Mich. 215, 211 N.W. 742, in which this court held that an officer may not stop automobiles upon public highways promiscuously and demand the showing of drivers' licenses as a subterfuge for the purpose of invading the travellers' constitutional rights and then searching the automobiles for liquor.

The probable cause referred to in the cases as affording the basis for reasonable search is invariably probable cause to believe that an unlawful act has been or is being committed. Never yet has it been held that probable cause to believe that a lawful act has been, is being, or in the future will be committed, renders a search based thereon reasonable. Accordingly, the provisions of P.A.1948, 1st Ex.Sess., No. 43, C.L.1948, § 300.21 et seq., Stat.Ann.1949 Cum.Supp. § 13.1231(1) et seq., subjecting to search without a warrant the boat, conveyance, vehicle, automobile, hunting or fishing camp, fish box, fish house, net house, fish basket, game bag, game coat, or any other receptacle, car or conveyance in which wild life may be kept, carried or transported, of any person exercising the privilege of hunting, fishing or trapping, etc., and empowering conservation officers to require a person to permit such officers to inspect and examine, without warrant, all wild life and any hunting, fishing or trapping apparatus, guns or ammunitions in such person's possession or under his control merely upon the officer's reasonable belief that the person in question has been, is, or is about to be engaged in hunting, fishing or trapping of wild life or is in possession of such wild life or apparatus, but without probable cause to believe that such person has been or is violating the law, such provisions of the act are in undoubted contravention of the Michigan Constitution, art. 2, § 10.

It is urged, however, that a person may waive his constitutional rights against unreasonable search and, in fact, invite such search (People v. Weaver, 241 Mich. 616, 217 N.W. 797, 58 A.L.R. 733); that, like Esau of old selling his birthright for a mess of pottage, a person may barter his constitutional rights in exchange for some privilege; and, finally, if the full force of plaintiff's logic herein is to be recognized that it follows as a natural next step (a disguised non dequitur) that a person may be compelled by law to waive his constitutional rights in exchange for and upon his exercise of the privilege of hunting, fishing, trapping or possessing wild life. Assuming at this point that the statute goes no further than to affect the constitutional rights of persons exercising the mentioned privilege (and it does go further), it is to be observed that the alleged waiver is, at best, involuntary except in the sense that the person in question may exercise or refrain from exercising the said privilege at his option. Having exercised it, the statute would leave him no option as to the waiver of his constitutional rights against unreasonable search.

In support of this waiver theory, to what Michigan authorities are we cited? Mention is made of Surtman v. Secretary of State, 309 Mich. 270, 15 N.W.2d 471; Larr v. Secretary of State, 317 Mich. 121, 26 N.W.2d 872; People v. Thompson, 259 Mich. 109, 242 N.W. 857, in which it was held that in accepting a license from the state to operate a motor vehicle upon public highways one must also accept all reasonable conditions imposed by the state thereon, such as the requirement that he stop and give assistance in cases of accidents, or that he comply with the financial responsibility act. But these cases do not hold, and it has not yet been held in Michigan, that use of the highways involves waiver of one's constitutional rights against unreasonable search. That such waiver is not involved appears from such cases as People v. Kamhout, 227 Mich. 172, 198 N.W. 831. Can it be plaintiff's position that this is true solely because the legislature has not yet seen fit to require waiver of such constitutional immunity as a condition precedent to the use of the highways? To ask the question is to glimpse the lengths to which we shall one day be led, if, in the instant case, the 'inspect and examine' requirements of the statute are upheld on a waiver theory. But more of that later.

Next, we are directed to People v. Harley, 230 Mich. 676, 203 N.W. 531, and Mutchall v. City of Kalamazoo, 323 Mich. 215, 35 N.W.2d 245. The Harley case involved the constitutionality of a city ordinance providing for licensing of public lodging houses and in the Mutchall case licensing so-called 'bottle clubs', under which ordinances it was provided that the premises so used should be subject to inspection by city police and health officers. In neither of these cases was decision upholding the constitutionality of the ordinance predicated on the theory that the owner of the premises had traded in his constitutional rights for his license. Rather, in the Harley case, the reasoning upholding the validity of the inspection requirement is contained in just two sentences, as follows [230 Mich. 676, 203 N.W. 533]: 'It must be remembered that this is not a private dwelling house, but is a public rooming house. See Keiper v. City of Louisville, 152 Ky. 691, 154 S.W. 18.'

The Kentucky case held simply that an ordinance providing for inspection of foods in places where offered for sale, to prevent the sale of impure foods, did not violate the constitution because it did not authorize an unreasonable search. The Mutchall case advances no particular reasoning on the subject other than to rely on the authority of the Harley case and also of Robison v. Haug, 71 Mich. 38, 38 N.W. 668, 669; People v. Henwood, 123 Mich. 317, 82 N.W. 70; People v. Shuler, 136 Mich. 161, 98 N.W. 986. In the Robison case it was held that the constitutional stricture on unreasonable search was not violated by a statute requiring that in places where liquor is sold all curtains, screens or other things that obstruct the view therein from outside shall be removed during hours when liquor may not be sold. In the opinion in that case we find a similar rationale to that in People v. Harley, supra, the court saying of the constitutional objections raised that they 'would undoubtedly be correct were the provisions of such a statute sought to be applied to one's dwelling, or to any place where any useful business, profession, trade, or...