People v. Case

• Citation: 220 Mich. 379,190 N.W. 289
• Decision Date: 02 November 1922
• Docket Number: No. 97.,97.
• Parties: PEOPLE v. CASE.
• Court: Michigan Supreme Court

220 Mich. 379

190 N.W. 289

PEOPLE

v.CASE.

No. 97.

Supreme Court of Michigan.

Nov. 2, 1922.

Exceptions from Circuit Court, Midland County; Ray S. Hart, Judge.

Altice Case was convicted of having possession of intoxicating liquor. On exceptions before sentence. Conviction affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Wiest, J., Fellows, C. J., and Bird, J., dissenting. Collins & Thompson, of Bay City, for appellant.

Chester E. Morris, Pros. Atty., of Midland, for the People.

STEERE, J.

Defendant was convicted under an information charging that, on September 20, 1921, he unlawfully and feloniously had in his possession ‘a certain quantity of spirituous and intoxicating liquor, to wit, six quarts of whisky,’ in Midland township, county of Midland. He was arrested on the fairgrounds near the city of Midland, where the county fair was then being held. He had on the grounds a Ford truck, suitable for transferring horses, with a canvas top and entrance at the rear, over which hung a blanket, or canvas curtain. On the evening of his arrest this truck was found parked within the fairgrounds near the fence by the sheriff of Midland county, who, with the president of the agricultural society and two deputy sheriffs, was making a search of the grounds for intoxicating liquor. Finding no one in charge when they went up to the truck, they proceeded to investigate, and the sheriff, with one of his deputies, went inside of it through the rear entrance. They then saw some bottles on the floor, two valises, and a jug sitting on the floor at the head of a cot upon which was some clothing. Liquor was found in the jug, and one or more of the bottles which by its odor they recognized as whisky. The valises were found to also contain bottles of intoxicating liquor. The sheriff then took charge of the vehicle and its contents. No person appearing to claim them, he left a deputy named Carey there, and went with another deputy to look for a man they ‘thought was connected with the liquor deal.’ While they were away defendant came up to the truck, and Carey asked him if he owned it. Receiving an affirmative answer, he inquired if defendant also owned the liquor which was in it, and he said he did. What further passed between them at that time is not disclosed, but when the sheriff returned defendant was yet there with Carey, who said to the sheriff, ‘This is the man who owns the truck.’ The sheriff then asked defendant if that was his truck and his whisky, and he replied that they were his. Asked, ‘Is this man with you?’ he said, ‘No, sir; I am alone.’ In the course of events which followed he begged the sheriff to let him go, and he ‘would get off the grounds and not come back,’ naming Detroit as his destination, but his proposal was not favorably entertained.

The sheriff kept possession of the liquor then seized, and this prosecution followed. On the trial the jug and the bottles, with their contents, were introduced in evidence against defendant's objection, with expert testimony that the contents was intoxicating liquor. Defendant offered no testimony. It was conceded that the officers had no search warrant or other process when they found and seized the liquor.

Before commencement of the trial defendant's counsel filed a motion to quash the information, and for an order requiring return of the property seized, on the ground that the officers had no authority to search for and seize the same. This motion was supported by an affidavit of defendant stating he was a truck driver by occupation, residing in Detroit, and while he was in the city of Midland on September 20, 1921, ‘in the lawful pursuit of his business, that the officers of Midland county searched his Ford automobile truck and obtained therefrom one gallon of whisky.’ This motion was denied, and during the trial the question was saved for review by timely objections, motions, requests, and exceptions.

Defendant's counsel say in their brief that the single question raised is:

‘Under the laws of this state can an automobile truck or an automobile be searched without process, and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws of this state?’

In support of their negative contention on that query counsel urge as conclusive section 10, art. 2, of our state Constitution, forbidding unreasonable search and seizure, as construed by this court adverse to the claims of the prosecution in the following cases involving violations of the prohibition law: People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, 3 A. L. R. 1505;People v. De Lamater, 213 Mich. 167, 182 N. W. 57;People v. Le Vasseur, 213 Mich. 177, 182 N. W. 60;People v. Venderveen, 214 Mich. 21, 182 N. W. 61;People v. Mayhew, 214 Mich. 153, 182 N. W. 676;People v. Halveksz, 215 Mich. 136, 183 N. W. 752;People v. Woodward, 215 Mich. 267, 183 N. W. 901;People v. Margelis, 217 Mich. 423, 186 N. W. 488.

In the first place it is to be noted that all those cases turned on the validity of search and seizure in occupied buildings on private premises, made either in reliance on a void search warrant or without any process at all. In five of them the privacy of homes, or private residences, was invaded. It is a well-settled rule that any statements and comments in an opinion concerning some rule of law or debated legal proposition not necessarily involved nor essential to determination of the case in hand are, however, illuminating, but obiter dicta, and lack the force of an adjudication. The court was dealing in those cases with invasion of private premises, not automobiles found by officers on the highway or standing in a public place, and the controlling question in each was whether, under the undisputed facts, the general rule that entry without permission for search of private premises and seizure of property there found without legal process is an unreasonable search and seizure violating constitutional rights. That property so seized in violation of an accused's constitutional protection against unreasonable search and seizure cannot be used as evidence against him upon his trial is settled for this state by those decisions in harmony with the majority of decisions in other jurisdictions, including the recent utterance of the United States Supreme Court in Amos v. U. S., 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, which also involved search of the accused's home without process. If the seizure of this liquor was lawful it was competent evidence against defendant.

Counsel cite us to no case holding illegal the examination of an automobile or other vehicle found by officers of the law in a highway or other public place and seizure of contraband goods in it evidencing that a crime is being committed.

The Michigan constitutional provision against search and seizure follows in phraseology that of the United States, and our prohibition law relative to forfeiture of property rights in intoxicating liquor possessed or transported in violation of it is similar in that respect to the Volstead Act (41 Stat. 305). Section 31 of our prohibition law as amended by Act 336, Pub. Acts 1921, provides in part:

‘No property right of any kind shall exist in any intoxicating liquors had, kept, transported or possessed contrary to law or in or to any receptacle or container of any kind whatever in which said liquors may be found and all such are hereby declared forfeited to the state and shall be seized. * * * Any sheriff or other peace officer may arrest without a warrant any person violating this act in the presence of such officer. * * * Any officer making an arrest for any violation of this act, may seize all evidence of the commission of such violation including any wagon, buggy, automobile, * * * or other vehicle or conveyance in which such liquors are had, kept, transported or possessed contrary to law.’

Provision is also made for forfeiture to the state and sale of such vehicle.

By these direct and plain provisions of the statute the person possessing or transporting intoxicating liquor contrary to law has no property rights in it. When its illegal possession or transportation begins it at once becomes the property of the state. One searching for and seizing it does not search for and seize property of the person in illegal possession, and, if the state makes the seizure, it is but taking possession of its own property. Distinguishing between seizure of such contraband property and property privately owned, both state and federal courts have in certain instances held that property so forfeited to the state or government could be used in evidence by the prosecution though perhaps irregularly seized. State v. Krinski, 78 Vt. 162, 62 Atl. 37;State v. Bradley, 96 Me. 121, 51 Atl. 816;State v. Simmons (N. C.) 110 S. E. 591;Taylor v. United States, 3 How. (44 U. S.) 197, 11 L. Ed. 559;Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746;United States v. Fenton (D. C.) 268 Fed. 221, which involved search and seizure from an automobile without process, as did United States v. Bateman (D. C.) 278 Fed. 231, wherein it was held (quoting from the syllabus):

‘In view of the impossibility of procuring warrants for the search of automobiles suspected of transporting intoxicating liquors, the officers have a right, without warrant, to stop and search automobiles, and the finding of liquor therein justifies the search.’

Conceding, however, that the question of permitting property secured by unlawful search and seizure to be used as evidence against the accused has been negatively settled in this state, as bearing upon the question of unreasonable search and seizure, the distinction between searching and seizing contraband property belonging to the state and that privately owned is a circumstance of significance. In the Boyd Case, where it was held seizure of defendant's private papers was in contravention of his...