People v. Bressler

• Decision Date: 19 July 1923
• Docket Number: No. 124.,124.
• Citation: 194 N.W. 559,223 Mich. 597
• Parties: PEOPLE v. BRESSLER.
• Court: Michigan Supreme Court

223 Mich. 597

194 N.W. 559

PEOPLE

v.BRESSLER.

No. 124.

Supreme Court of Michigan.

July 19, 1923.

Error to Circuit Court, Calhoun County; Walter H. North, Judge.

Frank Bressler was convicted under an information charging him with unlawfully transporting and having in his possession intoxicating liquors, and brings error. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ. D. G. F. Warner, of Lansing, for appellant.

Clyde C. Cortright, Pros. Atty., of Marshall, and Andrew W. Lockton, Asst. Pros. Atty., of Battle Creek, for the People.

McDONALD, J.

Frank Bressler was convicted in the Calhoun circuit court under an information charging him with unlawfully transporting and having in his possession certain intoxicating liquors.

At the time of his arrest the defendant was living with his family at 106 Third street in the city of Battle Creek, Mich. Two officers of the Battle Creek police department were set out by the chief to look for a couple of automobiles, one of which belonged to the defendant. About 10 o'clock in the evening they secreted themselves in an alley near defendant's home. A young man came by having in his possession an empty bottle. When accosted, he told them he was on his way to buy some liquor; that he could get it at three places, one of which was defendant's; and that defendant was in the habit of bringing the liquor home in his automobile. After receiving this information, they waited for the defendant. The officer who made the arrest testifies:

‘We kept this boy there all the time, probably 40 minutes, when we saw this defendant drive into his yard with an automobile, and this man that was with us says, ‘that man drives in there with it now,’ so we goes over and places this man under arrest. I am the man who told him he was under arrest. I said, ‘You are under arrest.’ We placed him under arrest by reason of instructions that we had from our chief to look out for these cars, and from the information furnished by the man that was with us, for the violation of the liquor law or prohibition law. Respondent was in his car when we told him he was under arrest. He didn't say anything.'

The order officer testified:

‘Q. What did you say to him? A. Merely told him that he was under arrest and to come to the station with us.

‘Q. Did you make a search? A. No, sir.

‘Q. What was done then? A. Well, we ordered him to drive us to the station. Officer Hensley got into the front seat with him. I got into the rear seat. As I got into the rear seat I saw a container in the automobile, a one-gallon jug. We made no search for it at all. It was there in plain sight. On the way to the station he wanted a drink and wouldn't drive any further, but we induced him to go to the station, and we gave him in charge of Chief of Police Fonda.’

At the station the chief searched the automobile and, in addition to the gallon jug of whisky, found two quart jars also containing whisky, packed away in the rear of the car. The liquor and automobile were retained, and a warrant duly issued.

When arraigned, the defendant stood mute, and a plea of not guilty was entered for him by order of the court. The questions relied on by the defense were preserved by timely and appropriate motions, objections, and exceptions. Before the jury was impaneled, a motion to quash was made and denied. A motion was also made for the suppression of the evidence obtained by searching the automobile, and for the return of the property, including the liquor, to the defendant. These motions were denied. A motion for a directed verdict was disposed of in a similar manner. No testimony was offered by the defense. After the jury had returned a verdict of guilty the defendant, by his counsel, made a motion in arrest of judgment, and the court again determined the legal questions involved adversely to him.

The first question presented by the record is stated by counsel as follows:

‘The court erred in not granting the motion of the respondent which was made and filed prior to the impaneling of the jury, which motion was to the effect that the place where the alleged liquor was obtained and taken from was the respondent's private property, his automobile, which automobile at the time was upon his own premises, and that the same was seized and taken without any search warrant and against the constitutional rights of the respondent.’

The question of a search and seizure without the authority of a search warrant is not in this case. There was no invasion of the private premises of the defendant for the purpose of searching for liquors. The officers went upon his premises to make an arrest, acting on information which they had previously received. They did not go there to search for liquor, nor was any search made of the automobile until after the defendant had driven it to the station. If the evidence secured by the search of the automobile was unlawfully obtained, it was not because of a search and seizure on defendant's private premises without warrant, but because the arrest was illegal. So that the question we are called upon to determine is, not whether there was an unlawful search and seizure, but whether the officers were justified in arresting the defendant without a warrant. The transportation and possession of intoxicating liquors is a felony. An officer may arrest without warrant in cases of felony upon information that would justify a reasonable man in acting upon it. Ross v. Leggett, 61 Mich. 445, 28 N. W. 695,1 Am. St. Rep. 608.

‘No one [without a warrant] has any right to make an arrest * * * in the absence of actual belief, based on actual facts creating probable cause of guilt. Suspicion without cause can never be an excuse for such action. The two must...