People v. Kamhout

• Decision Date: 08 May 1924
• Docket Number: No. 143.,143.
• Citation: 198 N.W. 831,227 Mich. 172
• Parties: PEOPLE v. KAMHOUT.
• Court: Michigan Supreme Court

227 Mich. 172

198 N.W. 831

PEOPLE

v.KAMHOUT.

No. 143.

Supreme Court of Michigan.

May 8, 1924.

Exceptions from Circuit Court, Ottawa County; Orien S. Cross, Judge.

Louis Kamhout was convicted of possessing and transporting intoxicating liquor, and he brings exceptions before sentence. Exceptions overruled, with direction.

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

Bird, Fellows, and Wiest, JJ., dissenting.Fred T Miles, of Holland, Pros. Atty., for the People.

Charles E. Misner, of Grand Haven, for respondent.

BIRD, J.

Lawrence De Witt, a night policeman of Grand Haven, came out of the Grand Trunk Station about 2 o'clock in the morning, and saw defendant sitting in his Ford car in front of his own house, leaning on the steering wheel. The car was built up to resemble a bread wagon, with doors in the rear. De Witt stepped on the running board, turned on his flashlight immediately behind the seat to see what he could discover in defendant's car. He discovered nothing there, and went to the rear of the car, and saw, with the aid of his light through a broken window in the door, a carton. He pulled it out, and found two jugs inside. He smelled of the corncobs, which served as corks, and pronounced it ‘moonshine whisky.’ At this juncture defendant came around to the rear of the car, and objected to the officer taking the jugs. De Witt then arrested defendant without a warrant for possessing and transporting liquor. Subsequently an altercation occurred, in which both jugs were broken and the liquor ran out.

After defendant's examination before the justice, his counsel made a motion to suppress the evidence of the finding of the whisky because illegally obtained. This motion was denied, and upon the trial defendant was convicted.

Counsel assigns several errors, the important one being whether the officer had reasonable cause for believing defendant was committing a felony in his presence. It is insisted that no such reasonable cause existed, and that the arrest was unlawful. This raises the question whether in an arrest without warrant evidence discovered before the arrest by means of an unlawful search can be used for the purpose of building up and supporting a ‘reasonable ground of suspicion’ which would justify the arrest.

The courts have pretty generally held that evidence obtained under such circumstances cannot be used for this purpose. The case of Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639, is an interesting one, and is in point. The circumstances of the arrest involved an automobile, and were very similar to those in the present case, and the same contentions were made by the people. In the course of the opinion of the appellate court it was said in part:

‘It is contended for the state that the arrest was lawful, notwithstanding it was made without a warrant, for the reason that the plaintiff in error was engaged in the commission of an offense in the presence of the officers. The circuit judge was of the opinion that this arrest was authorized because after the arrest it was found that the plaintiff in error had intoxicating liquor in his possession.

‘It does not follow from the fact that evidence discovered upon the arrest proved the commission of an offense, that the arrest itself was authorized. Under our statute * * * an officer may without a warrant arrest a person for a public offense committed in his presence. That means that the offense, or the facts constituting the offense, must be revealed in the presence of the officer. An officer cannot lawfully arrest a person without a warrant and search his person for the purpose of ascertaining whether or not he has violated the law. Even if the person [in question] were in fact violating the law the offense was not in legal contemplation committed in the presence of the officer, and such an arrest is unauthorized, where the facts constituting the offense are incapable of being observed, or are not observed by the officer.’

See, also, Tiffany's Criminal Law, pp. 71, 72; 5 C. J. 399, 400.

In People v. Foreman, 218 Mich. 591, 188 N. W. 375, the defendant, Foreman, alighted from an interurban car and entered a hotel in Grand Haven, and set his suit case on the floor. An officer followed him into the hotel, opened the suit case, and found therein a quantity of moonshine whisky. The officer had neither a warrant for Foreman's arrest nor a search warrant. Foreman made the defense that his constitutional rights had been invaded by the officer. The officer insisted that Foreman consented to the search. Foreman was convicted, and appealed to this court. After reviewing the case at some length, Mr. Justice Moore, in reversing the case, said:

‘The jury should have been instructed by the judge that as the officer had no warrant for the arrest of defendant and no search warrant that he had no right to search the grip unless he was invited to do so, and that in the absence of such invitation they should find the defendant not guilty.’

In the case of Douglass v. State, 152 Ga. 379, 110 S. E. 168, one Ivans accepted a proposition for a reward for each automobile containing whisky caught by his aid. Ivans made an agreement with the defendant for delivery of the consignment of whisky at an appointed time and place. The officers having been notified were present, and there was a fight in which the sheriff was killed. After the shooting, it was discovered that the Ford automobile contained 26 gallons of whisky. The sheriff had no warrant, but was undertaking to make the arrest on information conveyed to him by telephone from Ivans. On the material question the court said:

‘Admittedly, the officer was without a warrant. First: Was the offense committed in his presence? Under authority of the case of Pickett v. State, 99 Ga. 12, 25 S. E. 608,59 Am. St. Rep. 226, this question must be answered in the negative. There it was held that ‘an arresting officer has no authority, without a warrant, upon mere information that another is carrying a concealed pistol, to arrest the latter and search his person for the purpose of ascertaining whether or not he is in fact violating the law prohibiting carrying concealed weapons. Even if he was so doing, the offense was not, in legal contemplation, committed in the presence of the officer, and such an arrest and search are unauthorized by law, and are, within the meaning of the Constitution, unreasonable.’'

In Allen v. State (Wis.) 197 N. W. 808, it appeared that Allen was walking along the street in Fond du Lac, when he was accosted by a policeman, who inquired of him if he had any liquor on his person. He replied that he did, whereupon the policeman searched him, and found a pint of liquor. At the station house another bottle was found. Before the trial defendant's counsel made a motion to suppress the evidence obtained by the search. This was denied, and defendant was convicted. In reversing the conviction the court, in part, said:

‘It will be noted that none of these sections change the common-law rule, unless it be subdivision 13, § 6209, which makes it the duty of a police officer to ‘arrest with or without process * * * every person * * * violating any law of the state.’ But this section must be read as a whole, and so read it is clear that police officers are given the powers of constables to arrest without warrant any person found violating any law of the state. Gunderson v. Struebing, 125 Wis. 173, 104 N. W. 149. In the instant case the police officers did not find the defendant violating any law of the state until after his illegal search and illegal arrest, when they discovered evidence leading them to believe he was violating a law of the state. This statute cannot be construed to give police officers the right to find a person guilty of the offense by illegal arrest or illegal search. Policemen are not to try the accused. If they see him in the act of committing an offense, they may arrest him without a warrant. But if the accused is searched, without warrant as a basis of arrest, or if arrested without warrant as a basis of search, in order to ascertain that the accused is committing an offense, the proceedings are void from the beginning.

‘Had the officers made a legal arrest they would have been justified in their search of the defendant; or, had the officers made a legal search of the defendant, they would have been justified in making an arrest upon finding defendant violating the law. But the officers did neither. They had no warrant to arrest; they had no warrant to search. So, assuming that the arrest was made before the search, the arrest was illegal, and the search following was illegal; or, assuming the search was made before the arrest, the search was illegal, and the arrest based thereon without a warrant was illegal. * * *

‘The defendant was peacefully going his way. He was officiously restrained-illegally restrained. He was searched-illegally searched. The test is not that the officers found liquor upon the defendant. Suppose they had not found it. They would have been guilty under the law of illegal search-of violation of the defendant's sacred right under the Constitution to walk the street unmolested. That the officers found liquor could not change the original wrong into a right. That wrong was not blotted out by what they found. The test is the right of an innocent pedestrian against unlawful invasion of his person. And the innocent cannot be protected if officers are permitted to search the person of every one who has been accused by hearsay or humor. If these officers might waylay a pedestrian without warrant and search his person, opportunity would be open wide for the night prowler and robber to hold up their victims under pretense of official authority, search their persons, and take their valuables without resistance. The answer is that it cannot be done.’

In the recent case of Falkner v. State (Miss.) 98 South....