People v. Bawiec

• Decision Date: 24 July 1924
• Docket Number: No. 98.,98.
• Citation: 199 N.W. 702,228 Mich. 32
• Parties: PEOPLE v. BAWIEC.
• Court: Michigan Supreme Court

228 Mich. 32

199 N.W. 702

PEOPLE

v.BAWIEC.

No. 98.

Supreme Court of Michigan.

July 24, 1924.

Exceptions from Circuit Court, Presque Isle County; Frank Emerick, Judge.

Joseph Bawiec was convicted of violating the Prohibition Law, and he excepts before sentence. Reversed, and defendant discharged.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Arthur Wilcox, Pros. Atty., of Onaway, for the People.

Frank T. Hinks, of Alpena, for respondent.

FELLOWS, J.

Defendant here reviews his conviction of a violation of the Prohibition Law (Pub. Acts 1917, No. 338) 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 5, in 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, 221 Mich. 578, 192 N. W. 485, the premises searched were 932 Elwood avenue upon a warrant naming 926 Elwood avenue. It was held that the search and seizure were invalid, and it was there said:

‘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 Elmwood 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, 221 Mich. 609, 192 N. W. 625, although the wrong block was given, the building to be searched was specifically described so as to leave no discretion to the officer, and the conviction was sustained. This case was followed in People v. Lienartowicz, 225 Mich. 303, 196 N. W. 326, and in People v. Urban, 199 N. W. 701 (handed down herewith). In People v. Preuss, 225 Mich. 115, 195 N. W. 684, it was said by Mr. Justice Steere speaking for the court:

‘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, 221 Mich. 578. The duty and rights of an officer executing a search warrant are strictly limited to its mandate, both as to place and thing.’

This is in consonance with the general rule. In Hampton v. State, 148 Tenn. 155, 252 S. W. 1007, it was thus stated:

‘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...