People v. Bass

• Decision Date: 22 July 1926
• Docket Number: No. 154.,154.
• Citation: 235 Mich. 588,209 N.W. 927
• Parties: PEOPLE v. BASS.
• Court: Michigan Supreme Court

235 Mich. 588

209 N.W. 927

PEOPLE

v.BASS.

No. 154.

Supreme Court of Michigan.

July 22, 1926.

Mike Bass was convicted of attempted robbery while armed with a dangerous weapon, and he brings exceptions before sentence. Conviction affirmed.

Argued before the Entire Bench.

Bird, C. J., and Clark and McDonald, JJ., dissenting. Harry C. Howard, of Kalamazoo, for appellant.

Andrew B. Dougherty, Atty. Gen., and LeRoy H. Bibby, Pros. Atty., of Kalamazoo, for the People.

BIRD, C. J. (dissenting).

Mike Bass was charged in the Kalamazoo circuit court with attempted robbery; he being at the time armed with a dangerous weapon. He was convicted, and he reviews the proceedings in this court on exceptions before sentence.

The people showed, in substance, that at about midnight on the 29th of August, 1925, defendant met one Fred McGovern in a deserted locality of Kalamazoo, pulled a gun on him, at the same time saying, ‘Stick 'em up.’ McGovern grabbed him and got the gun away from him. After some further tussle McGovern left and reported the assault to the police, leaving with them a description of his assailant. Within a short time defendant was arrested and lodged in jail. He denied that he was the assailant, and the bulk of the testimony bore upon the question of identification. It was learned that his home was in Battle Creek, and the following day Kalamazoo officers went to Battle Creek, and in company with officers of that city they proceeded to defendant's room and opened his trunk and found therein a leather holster, which fitted the gun which it was claimed he used on the night of the assault; also cartridges which fitted the gun. These were offered in evidence. It appeared in the testimony that the officers making the search had no search warrant. When these facts were disclosed defendant's counsel stated that he was taken by surprise and objected to the evidence on the ground that the articles had been obtained unlawfully. The trial court than permitted the people to show that defendant was informed the day following the trip to Battle Creek; and the articles offered were exhibited to him, and he was informed that they found them in his trunk in his room at Battle Creek. In view of this testimony the trial court was of the opinion that defendant should have made the motion, under the rule, to suppress the proffered evidence before trial. The question whether the trial court was in error in admitting the evidence is the principal question in the case.

This court is committed to the rule that, where defendant in a criminal case claims that his property has been seized unlawfully, and therefore cannot be used as evidence against him, he must move to suppress the evidence before trial; that the trial court will not pause in the trial of a case to determine whether the proffered evidence has been unlawfully obtained. People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, 3 A. L. R. 1505. Since this rule was announced it has been adhered to in subsequent cases, and it was held in People v. Vulje, 223 Mich. 656, 194 N. W. 582, that the motion to suppress must be a four-day notice, under the rule.

The instant case presents a somewhat different state of facts than the former cases. Defendant's counsel had no knowledge of the search of defendant's trunk at his home until the trial was in progress. As soon as the fact appeared in evidence he makes an objection to the admission of the evidence. He is reminded by the prosecutor and trial court that he should have made the motion before trial. Tested by the rule of reason, this is no answer at all to defendant's objection. Counsel did not know that an unlawful search had been made. As soon as he learned of it he made timely objection. He certainly could not move until he learned of it. No court ought to require one to perform an act to protect his constitutional rights before he knows, or ought to know, the necessity for it. But it is said the defendant himself knew of the seizure. The articles seized were exhibited to defendant the following morning and he was informed that they were taken from his trunk in Battle Creek. He was not informed that they were unlawfully seized; neither was he informed that they were seized without a search warrant. Defendant was not obliged to assume that the officers violated the law in seizing his property. He had a right to assume that the officers had secured his property lawfully. Even with this testimony it appears defendant himself was as ignorant of the unlawful seizure as his counsel was. Neither knew the property had been seized without a search warrant. While I think the rule in the Marxhausen Case should be adhered to, I think an exception should be made to that rule where defendant first learns of the unlawful seizure of his effects from the testimony given upon the trial. Without this exception the rule in the Marxhausen Case unjustly deprives a defendant of his constitutional rights.

A case recently decided by the Supreme Court of the United States is interesting on this question. Defendant was arrested and his home was searched without a search warrant. Until the trial he was ignorant of the fact that his house had been searched and cocaine found therein. The cocaine claimed to have been found was offered in evidence and admitted over defendant's objection. The court said, in part:

‘The government contends that, even if the search...