People v. Smith, Docket No. 7217

• Decision Date: 22 March 1971
• Docket Number: No. 2,Docket No. 7217,2
• Citation: 188 N.W.2d 16,31 Mich.App. 366
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Harry James SMITH, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 16

188 N.W.2d 16

31 Mich.App. 366

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Harry James SMITH, Defendant-Appellee.

Docket No. 7217.

Court of Appeals of Michigan, Division No. 2.

March 22, 1971.

Rehearing Denied April 26, 1971.

Released for Publication June 29, 1971.

Milton R. Henry, Pontiac, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for defendant-appellee.

Before McGREGOR, P.J., and DANHOF and LARNARD, ^* JJ.

DANHOF, Judge.

On August 13, 1967, the defendant was charged with possessing or having under his control a narcotic drug, to wit, Cannabis Sativa (marijuana) and not having a license therefor, contrary to M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123).

On September 26, 1967, a preliminary examination was held and the defendant was bound over to circuit court for trial. On November 24, 1967, the defendant moved to suppress the evidence and quash the information. The motion was argued on March 11, 1968, and on March 13, 1968, the circuit judge denied the defendant's motion. Subsequently, on April 16, 1968, the defendant renewed his motion and the motion was granted on May 15, 1968, for reasons which will be discussed subsequently.

The facts disclosed at the preliminary examination show that at approximately 9:30 p.m. on the night of August 13, 1967 the defendant approached the Rolladium Drome skating rink in Pontiac, Michigan. He purchased a ticket and attempted to enter the skating rink. Over the entrance doors of the skating rink is a large sign which states that in order to enter the skating rink all persons must be searched. The sign is in large letters and has been posted for a long time. The skating rink employed a private guard, one Alvin Leon Gunn. Mr. Gunn was employed as a Sergeant by Young's Private Patrol and had been employed at the skating rink for some period of time. As the defendant approached Mr. Gunn at the doors of the skating rink Mr. Gunn told the defendant that the general procedures at the Rolladium Drome skating rink were that each person was searched as he entered. Mr. Gunn inquired of the defendant if this was his first time at the skating rink and the defendant answered no. Mr. Gunn advised the defendant that the search was voluntary, but that if he wished to enter the skating rink he would have to be searched. Mr. Gunn informed the defendant that he was going to search him if the defendant decided to enter the skating rink. The defendant replied that he would not let Mr. Gunn search him. Thereafter the facts become less clear, but it appears the defendant took one step backwards and Mr. Gunn two steps backwards at which point the defendant placed his hands in his pockets whereupon Mr. Gunn 'judo chopped' him and pushed him out into the lobby. The defendant still had his hand in his pocket. Mr. Gunn then took the defendant's hand and forced it behind him. At that time some aluminum foil dropped from the defendant's hand. The defendant was then handcuffed by Mr. Gunn at which time he picked up the aluminum foil.

Subsequently, the Waterford Township Police Department was called and when the police arrived the aluminum foil package was turned over by Mr. Gunn to a police officer. Mr. Gunn then finished searching the defendant in the presence of the two officers and discovered a pack of cigarette papers. These too were turned over to the Waterford Township Police Department. Mr. Gunn testified that the reason he 'judo chopped' the defendant was that the defendant could have had a razor blade concealed in his hand, and that he was apprehensive of the defendant. Mr. Gunn testified that his work at the skating rink was of a private nature, that he was a private policeman licensed in the State of Michigan, and that he had a Detroit license to be a private patrol watchman under a Detroit ordinance.

It was stipulated by the prosecutor and defense counsel that the contents of the aluminum foil package were marijuana.

There is no evidence on the record to show that Mr. Gunn was working in conjunction with, or was in any way assisting or acting under the authority of the Waterford Township Police Department.

The defendant moved to suppress the evidence alleging that it had been obtained by an illegal search and seizure and moved to quash the indictment. At the hearing on this motion on March 11, 1968, the people made a three-fold argument:

(1) The motion should be denied because the search was not in fact unreasonable.

(2) That assuming Arguendo that the search was unreasonable, the illegal search and seizure would not bar the marijuana from evidence since Mr. Gunn was not a police officer, nor was he working as the agent of the police, and, therefore, his conduct was not proscribed by either the Fourth Amendment of the U.S. Constitution or Const.1963, art. 1, § 11.

(3) That assuming Arguendo that the search and seizure were unreasonable, the Michigan Constitutional Proviso (Const.1963, art. 1, § 11) allowed the introduction of the marijuana because it was a narcotic drug.

The circuit judge did not consider the first two theories advanced by the people, but denied the motion and held that the evidence was a narcotic drug and therefore was admissible under Const.1963, art. 1, § 11.

On April 16, 1968 the defendant renewed the motions to suppress and quash and at that time the prosecutor stipulated in open court that marijuana was not properly classified as a narcotic drug in the Medical sense of the word. The circuit judge then held that if it was agreed that marijuana was not properly classified as a medical narcotic the constitutional proviso contained in Const.196o, art. 1, § 11 did not apply, and the motions to suppress and quash were granted and an order to that effect was entered on May 15, 1968. In the order the trial judge stated the following:

'This matter was heard on the record in open Court. It appeared that the Court previously denied a Motion to Suppress Evidence and Quash the Information because of Article 1, § 11 of the Michigan Constitution which reads as follows:

"The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section 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 Court would have granted the earlier Motion except for the provisions of the Michigan Constitution aforesaid and because in particular the Court believed a narcotic drug was involved.

'Upon this subsequent argument and there being a Stipulation on the record that Marihuana medically is not a narcotic drug, the Court therefore concludes the aforesaid constitutional provision is not applicable.

'The details of the arrest, search and circumstances of obtaining the evidence are a matter of record at the preliminary examination and was noted in the pleadings.

'NOW, THEREFORE, this Court concluding and by an absence within the constitutional sense of a narcotic drug and otherwise this Court being prevailed upon that the matter of search, arrest and circumstances of obtaining the evidence of the Respondent was illegal; the Motion to Suppress Evidence and Quash the Information hereby is granted.'

The people filed an application for leave to appeal which was granted.

It is evident from reading the order entered by the circuit judge, although there is no opinion with the order, that the circuit judge had to make three decisions. First that marijuana was not a narcotic drug under Const.1963, art. 1, § 11, and second that the search was unreasonable, and third, even though the search was conducted by a private person it was subject to the protection of the Fourth Amendment of the U.S. Constitution and Const.1963, art. 1, § 11, and hence the evidence was to be excluded.

We determine that the action of the trial court was erroneous and we order the matter remanded for trial.

At the outset we note that part of the problem which has arisen is due to the fact that the prosecutor took it upon himself to stipulate that marijuana was not a narcotic drug in the medical sense of the wrod. We are not here concerned with a medical fact, but rather, an enactment of the Legislature. Laudable as it may be to raise this particular point we know of no authority which allows a prosecutor to endeavor to stipulate away the provisions of a duly enacted statute. Such conduct on behalf of the prosecutor amounts to prosecutorial legislation, and while the prosecutor may have discretion as to whether or not to authorize a warrant we doubt that he has the power to alter a statute. Nor, on the basis of public policy, should he have authority to delete or unilaterally change any part of a duly enacted statute. M.C.L.A. § 335.151 (Stat.Ann.1970 Cum.Supp. § 18.1121) states:

'Sec. 1. The following words and phrases, as used in this act, shall have the following meanings, unless the context otherwise requires:

'(2) 'Narcotics' includes the following:

'(f) All parts of the plant Cannabis Sativa. The term 'Cannabis' as used in this act shall include all parts of the plant Cannabis Sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from seeds of such plant, other compound manufacture, salt, derivative, mixture...