People v. Pennington

• Court: Michigan Supreme Court
• Writing for the Court: DETHMERS; BRENNAN, C.J., and BLACK, T. M. KAVANAGH, and T. G. KAVANAGH, JJ., concurred with DETHMERS; BLACK; KELLY; ADAMS, J., concurred with KELLY
• Citation: People v. Pennington, 178 N.W.2d 471, 383 Mich. 611 (Mich. 1970)
• Decision Date: 11 July 1970
• Docket Number: No. 13,A,13
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence J. PENNINGTON, Defendant-Appellant. pril Term.

Page 471

178 N.W.2d 471

383 Mich. 611

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence J. PENNINGTON, Defendant-Appellant.

No. 13, April Term.

Supreme Court of Michigan.

July 11, 1970.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Department, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for appellee.

Before the Entire Bench.

DETHMERS, Justice.

This is a search and seizure case involving the admissibility into evidence of the fruits thereof. Two questions are presented. First, was the search of defendant's automobile and seizure of a loaded revolver from its glove compartment violative of the Fourth Amendment to the Constitution of the United States and of Article 1, § 11, of the Michigan Constitution of 1963, guaranteeing security from unreasonable searches and seizures? Second, should that portion of Article 1, § 11, Michigan Constitution of 1963, expressly making the exclusionary rule in criminal proceedings inapplicable with respect to drugs and certain dangerous weapons unlawfully seized by a peace officer outside the curtilage of any dwelling house in this State, be held to be unconstitutional under the Fourth Amendment to the United States Constitution as applied to State action by the Fourteenth Amendment to the Federal Constitution by reason of the decision of a majority of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081?

Pertinent facts in this case follow: A private citizen saw defendant driving an automobile on Telegraph Road in Detroit in what he described as an erratic manner. He reported it as a State Police post. An officer answered the call, followed defendant's car and observed defendant driving in the manner as reported. The officer ordered defendant to the curb, found him to be intoxicated, and placed him under arrest for drunk driving. He took defendant's car keys, placed defendant in the police car and called a wrecker to tow defendant's automobile to a gas station across the street from the police post.

The officer took defendant into the post, interrogated him for approximately 15 minutes and turned him over to the custody of the desk officer. He then went to the gas station and searched defendant's car without defendant's consent and without a search warrant. He entered the car, found the glove compartment locked, and opened it with a key taken from defendant. In the glove compartment he found a partly filled bottle containing some whiskey and a loaded revolver. These he took. He then returned to the post and informed defendant that he was under arrest for carrying a concealed weapon. Soon thereafter defendant was charged with carrying a dangerous weapon in a motor vehicle contrary to M.C.L.A. § 750.227 (Stat.Ann.1962 Rev. § 28.424).

On trial the people offered the bottle containing whiskey and the revolver and bullets found in it into evidence. The trial court ruled the search and seizure unlawful and excluded the bottle of whiskey for that reason, but received the revolver and bullets because of the provision in Michigan Constitution of 1963, Article 1, § 11, forbidding the barring of the gun and bullets, for that reason, from evidence. Defendant was found guilty of carrying a dangerous weapon in a motor vehicle contrary to the said statute.

Defendant appealed to the Court of Appeals. It affirmed for the expressed reason that this Court had not yet determined the anti-exclusionary provision of Article 1, § 11, to be unconstitutional under the United States Constitution despite the holding in Mapp v. Ohio, supra. The case is now here on leave granted to defendant to appeal.

Considering now the first question--were the search and seizure lawful? While differences in the facts between this case and those about to be considered are pointed out by the people, such as length of time between the arrest and the search, we do not deem those differences to be decisive or controlling, so as to require a different result, and, hence, think that under our decision in People v. Carr, 370 Mich. 251, 121 N.W.2d 449, and the decisions of the United States Supreme Court in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, and Dyke et al. v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538, it must be held that the search and seizure in the instant case were too remote in time or place to be incidental to the arrest which was made for driving while under the influence of intoxicating liquor, as to which offense the search and seizure and fruits thereof could have had no reasonable relationship whatsoever. The reason for the arrest gave no cause for the search of the automobile after defendant was already in custody. We are satisfied with the trial court's finding that the search and seizure were unlawful. Defendant says the trial court erred, after finding the search and seizure unlawful, in receiving the revolver and bullets into evidence. This he did under the anti-exclusionary provision of Article 1, § 11, Michigan Constitution of 1963, reading as follows:

'The provisions of this section (prohibiting unreasonable searches and seizures) shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.'

This brings us to the second question in this case: Is that provision of the Michigan Constitution unconstitutional under the Federal Constitution?

Going back to the doctrine of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, decided in 1914, evidence secured in violation of the Fourth Amendment was inadmissible in Federal courts. In Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, decided in 1949, the United States Supreme Court held that such exclusionary rule was not, by the Fourth and Fourteenth Amendments, made applicable to a prosecution in a State court for a State crime. That holding in Wolf was overruled in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, decided in 1961. The court then held that evidence obtained by searches and seizures in violation of the Fourth Amendment to the Federal Constitution is inadmissible in a criminal trial in a State court by reason of the provisions of that and the Fourteenth Amendment. The court said:

'Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be 'a form of words', valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom 'implicit in the concept of ordered liberty."

In Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the United States Supreme Court said:

'* * * the * * * prohibition of unreasonable searches and seizures of the Fourth Amendment * * * are * * * to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.'

Article VI, Clause 2, of the United States Constitution provides:

'This Constitution, and the Laws of the United States which shall be made in pursuance thereof; * * * shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding.'

Where a conflict between the Federal and a State Constitution exists, the Supremacy Clause controls. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506.

It is said that what a majority of the electorate of Michigan, voting at elections in 1936, 1952, and again in 1963, have incorporated into the Constitution of Michigan governing a rule of evidence in criminal proceedings in the courts of this State ought not to be susceptible of being stricken down by five men on the Potomac, never elected to their office nor directly responsible to the people. In his opinion in People v. Blessing, 378 Mich. 51, 69, 142 N.W.2d 709, Justice Black, of this Court, wrote that the United States Supreme Court, on successive bids of Winkle (reference was to Winkle v. Bannan, 368 U.S. 34, 82 S.Ct. 146, 7 L.Ed.2d 91, Winkle v. Bannan, 379 U.S. 645, 85 S.Ct. 611, 13 L.Ed.2d 551, and Petition for Rehearing by Winkle, denied in 380 U.S. 967, 85 S.Ct. 1102, 14 L.Ed.2d 157) had had opportunities to strike down the anti-exclusionary provision of the Michigan Constitution, utilizing the previously decided Mapp decision, but that it had not yet done so. Justice Black went on to write that he had no disposition, in that connection, to 'attempt to outrun the Supreme Court of the United States.' This writer, in People v. Simon, 324 Mich. 450, 36 N.W.2d 734, wrote:

'In consideration of federal constitutional questions we are bound by what a majority of that court (United States Supreme Court) has heretofore held, not by...