People v. Roache

• Decision Date: 03 January 1927
• Docket Number: No. 176.,176.
• Parties: PEOPLE v. ROACHE.
• Court: Michigan Supreme Court

237 Mich. 215

211 N.W. 742

PEOPLE

v.ROACHE.

No. 176.

Supreme Court of Michigan.

Jan. 3, 1927.

Exceptions from Circuit Court, Genesee County; Edward D. Black, Judge.

Merwin Roache was convicted of possessing and transporting intoxicating liquor, and he brings exceptions before sentence. Reversed, and defendant discharged.

Argued before the Entire Bench.

Sharpe, Steere, and Clark, JJ., dissenting. Thomas A. Lawler and John F. Berry, both of Lansing, for appellant.

Andrew B. Dougherty, Atty. Gen., and Wm. R. Roberts, Pros. Atty., of Flint, for the People.

CLARK, J.

Defendant was convicted of possessing and transporting intoxicating liquor. His exceptions present the question that the evidence against him was obtained by unlawful search and seizure, made without warrant.

His automobile, coupé body, in which he rode, was being driven by one Powers on an improved highway, in the daytime, at a speed of 18 to 20 miles per hour. A motorcycle officer, who had served 5 years as such, in uniform, met and observed them in passing, turned and followed for some time, and overtook and stopped them. He testified:

‘Q. State whether or not you stopped that automobile at that time and place. A. I did.

‘Q. How did you come to do so? A. I was driving south on a motorcycle, passed this car, noticed the two boys in it. As I went by the car they kept watching me, so I turned around and came back, stopped the car, questioned them as to whether they had a driver's license. Pat Powers, he didn't have one.

‘Q. Who was driving the car at that time? A. Pat Powers; and Mr. Roache claimed the car. So I asked him to unlock the back deck. As he was doing it, I asked him what he had in the car. He told me five cases of beer. So I told him never mind unlocking the deck. So I got in the car; was 12 quarts of gin in a pasteboard carton with an overcoat over it. So I had the two boys get back in the car; I drove them to Flint.

‘Q. Why did you stop this car? A. I stopped the car because the men were watching me. I suspected them.

‘Q. What? A. I suspected the men because they looked suspicious to me; they were watching me as I passed, as I went on the road on the motorcycle.

‘Q. You say you stopped them because they looked suspicious. What was there about them that looked suspicious? A. As I went by they were driving slower than an ordinary person, a person on the highway. As I went on down the road I kept turning around, looking around; these lads were turning around watching me at the same time. As I was in uniform, it aroused my suspicion.

‘Q. You have driven a motorcycle as an officer how long? A. Nearly 5 years, 5 years of motorcycle season.

‘Q. When you say they looked suspicious, you base that upon your experience as a motorcycle officer driving cars? A. Yes, sir.

‘Q. They were not violating any speed regulations? A. No, sir.

‘Q. They gave no evidence of being intoxicated, either one of them? A. No, sir.

‘Q. You saw no evidence of any liquor anywhere? A. No, sir.

‘Q. So that was the only reason why you stopped them, because you were suspicious of them? A. Absolutely.

‘Q. That is the sole and only reason for your act? A. Yes, sir.’

To support a motion to quash, to suppress, and to discharge, Roache and Powers made affidavits and also testified, contradicting the officer in some particulars respecting what happened after he stopped the car. The motion was denied, unqualifiedly, by formal order before trial. When the people's first witness was sworn at the trial, defendant, as an objection to evidence, urged again the substance of the motion, and it was overruled.

The evidence establishes defendant's guilt beyond dispute. The bulk of the testimony taken at the trial relates, not to the question to be tried, namely, defendant's guilt or innocence of the crime charged, but to the collateral question of whether the evidence against him had been procured lawfully. The trial judge in addition to submitting the question, which it was the province of the jury to determine, also undertook to submit the collateral question, which he had previously determined.

Defendant was entitled to a trial by jury of the offense charged against him. He was not entitled to have the jury pass on the collateral question. That was for the court to determine on a motion presenting it before trial. People v. Marxhausen, 204 Mich. 559, 171 N. W. 557, 3 A. L. R. 1505. And that is true, although the facts shown upon the hearing of the motion were in dispute.

We have held that it is not reversible error for the court to submit, on disputed facts, the collateral issue to the jury. People v. Cardella, 233 Mich. 505, 207 N. W. 141. But the court should not pause and suffer delay in a jury trial in determining the collateral question.

What the judge said in his charge relative to the collateral matter is important only with respect to the question before the jury—the guilt or innocence of the accused. But that is here without substance, for, the evidence of guilt being undisputed, the judge might have instructed the jury that it was their duty to bring in a verdict of guilty, subject, of course, to the limitations set forth in People v. Heikkala, 226 Mich. 332, 197 N. W. 366.

This brings us to the main question in the case, Did the court err in denying the motion to quash, suppress, and discharge?

Section 4 of Act 186, Public Acts of 1923, amending a former act relative to licensing of operators of motor vehicles, provides for issuing a license card or tag to each licensee, and requires:

‘Said license card or tag shall at all times be carried by the licensee when he or she is operating a motor vehicle along the public highways of this state and shall be given up by him or her for examination upon demand by any proper officer.’

Whether an officer may stop, indiscriminately, travelers on the highway, and demand of them that they produce license cards, is a question we do not and need not determine, for if it be granted that the officer has that power, it makes no difference here. Such statute does not provide way or means of invading the constitutional right here claimed by defendant, the right to be secure against unreasonable search and seizure. When the officer directed the defendant to unlock the back deck of the car, his search was then on. What happened afterward was merely a continuation of it. The quoted statement of defendant at to the beer was made under duress of search and by reason of it.

When the officer directed that the car be unlocked, he was then to be governed by the following rule:

‘If an officer, charged with the enforcement of the law, from the exercise of his own senses, or acting upon information received from sources apparently so reliable that a prudent and careful person, having due regard for the rights of others, would act thereon, has reasonable and probable cause to believe that intoxicating liquor is being unlawfully transported in an automobile in his presence, he may arrest the offender or search for and, if found, seize the contraband therein without a warrant to do so.’ People v. Kamhout, 227 Mich. 172, 198 N. W. 831.

It is not claimed that the officer had any information, respecting defendant, other than that gained by the use of his senses at the time. The court might, and it seems did, resolve the disputed question of fact as between the officer and this defendant and his companion in favor of the officer, and the court held, in effect, that the officer's testimony disclosed reasonable ground to believe that the defendant was transporting intoxicating liquor, and that therefore the search of the car was not unreasonable, not unlawful.

The automobile has come to be the convenient instrument of bandits and rum runners. So used, it presents a most difficult problem to officers in their efforts to solve crime. If the rules relative to search and seizure, as applied to the home, be applied with like rigor to the automobile in public places, the automobile bandit and the rum runner are practically immune. That there is a necessary difference between the search of a home and the search of an automobile is recognized. Cardella Case, supra. Under most liberal rules as to probable cause to search, the officer's problem remains difficult. We are dealing with a condition, a prevalence of crime, meancing to and destructive of the social order. We are not confronted with theory in the abstract. The well-known constitutional provision does not denounce ‘all searches or seizures, but only such as are unreasonable.’ Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790;People v. Case, 220, Mich. 379, 190 N. W. 289, 27 A. L. R. 686.

Whether the search in question was reasonable is to be determined in view of the facts and conditions before us. The officer was patrolling the Dixie Highway, a main artery from Detroit into the state. It was his duty to stop and seize liquor-carrying automobiles. As was said in the Carroll Case:

‘Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the most active...