People v. Stein, Motion No. 452.

• Decision Date: 29 December 1933
• Docket Number: Motion No. 452.
• Citation: 265 Mich. 610,251 N.W. 788
• Parties: PEOPLE v. STEIN et al.
• Court: Michigan Supreme Court

265 Mich. 610

251 N.W. 788

PEOPLE

v.STEIN et al.

Motion No. 452.

Supreme Court of Michigan.

Dec. 29, 1933.

Appeal from Recorder's Court of Detroit; John P. Scallen, Judge.

Prosecution by the People against Sam Stein and another for carrying a revolver and a pistol in a vehicle without possessing a license to carry the weapons. Order denying the admission of the weapons in evidence and discharging defendants, and the People appeal in the nature of mandamus.

Writ denied.

Argued before the Entire Bench.Patrick H. O'Brien, Atty. Gen., and Harry S. Toy, Pros. Atty., and William D. Brusstar, and Edmund E. Shepherd, Asst. Pros. Attys., all of Detroit, for the People.

Harry Hanley, of Detroit, for appellee Stein.

Edward H. Kennedy, of Detroit, for appellee Massie.

John C. Bills, of Detroit, amicus curiae.

WEADOCK, J., dissenting, and SHARPE and BUTZEL, JJ., dissenting.

FEAD, Justice.

Defendants were charged with carrying a revolver and a pistol in a vehicle occupied by them, without possessing a license to carry the weapons, contrary to section 227, Act No. 328, Pub. Acts 1931, the Michigan Penal Code.

On examination, before a judge of the recorder's court acting as magistrate, the weapons were denied admission in evidence on the ground that they had been obtained by illegal arrest and search. Defendants were discharged. The people ask writ of mandamus to compel the magistrate to reinstate the proceedings and receive the weapons in evidence. Voorhies v. Judge of Recorder's Court, 220 Mich. 155, 189 N. W. 1006, 27 A. L. R. 706.

About 6:50 p. m. of June 19th last, four police officers were in a cruising car, a Lincoln sedan, on Gratiot avenue in the city of Detroit. Daniel Sullivan was the driver. Patrolman Van Cavage sat with him in the front seat, and Patrolmen Cotter and Vohs were in the back seat. Cotter sat on the left side and was the only one in uniform.

Sullivan's attention was attracted to a taxicab in which defendants were passengers because it was ‘travelling pretty fast,’ about 32 miles per hour. He pursued it about a block and, when he was ‘right abreast of the back rear door’ of the cab, he ‘noticed the defendant Stein reaching into his pocket as if to take something out and place his hand behind him * * * as if he was taking something out of his pocket and putting it on the seat beside him’ or behind him. Stein's motion gave Sullivan ‘the idea that he was putting a gun away.’ He spoke to Van Cavage, forced the cab to the curb, the other officers got out, arrested defendants, searched them, and found a revolver on Massie's person and a pistol on the seat behind where Stein had sat.

The reason for the arrest and search rested upon the testimony of Sullivan, who was recalled twice by the people for examination. Sullivan repeatedly said he did not see what Stein took out of his pocket and ‘we merely arrested him on suspicion’ because of the motion he had made. The officers had no prior knowledge of or acquaintance with either defendant. Defendants were riding in a peaceful manner and ‘minding their own business.’ The record does not indicate that the Lincoln sedan had anything about it to distinguish it as a police car.

An inference that Stein saw and recognized the sedan as a police car because Cotter was in uniform or for any other reason cannot be indulged: First, because, in mandamus proceedings, which enforce only clear legal rights, all reasonable inferences must be drawn in support of the action of the magistrate; and, second, because it is not justified by the facts.

The respective positions of the car and Stein and Cotter negative the inference. The police car came abreast of the cab on the left side, and, when Stein made the motion, the rear seat of the cruiser evidently was not in his sight. Had Stein acted in a surreptitious manner or as though he were hiding something, or had he been watching the cruiser, the officers would have so testified. At least, we must assume that the people developed all the facts in their possession justifying the arrest. Both the magistrate and this court are confined to the testimony.

The issue is whether the arrest was lawful because the search was based solely upon the arrest. The essential question before us is whether the arrest was justified as a matter of law. Or, to otherwise state it, if, in fact, the officers had discovered no weapons and had been sued for false arrest, would the court have been obliged to direct a verdict on the ground that the arrest was lawful?

The pertinent legal principles are not in dispute. The rule is restated by Mr. Justice Sharpe in People v. Kamhout, 227 Mich. 172, 198 N. W. 831, 836, in which the cases are reviewed: ‘What we do state to be the rule by which this court will be governed is that, 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.’

The restatement did not change the rule theretofore existing. It was made with full appreciation of the use of automobiles in criminal operations, the proclivity of lawbreakers to carry weapons, the developed faculties of police officers to detect crime, the attitude of law-abiding citizens toward the enforcement of the law, and also with the realization of the court that the constitutional provision is a mandate and must be preserved for the benefit of good citizens, although, as is usually the case when it reaches the court, it is invoked in favor of the lawbreaker. In People v. Roache, 237 Mich. 215, 211 N. W. 742, 745, this court said: ‘While we may take judicial notice of the fact that rum runners and bandits ride in automobiles, and use them to commit crimes and effect their escape, may we not also take judicial notice of the fact that where there is one bandit or rum runner passing over a public highway, there are thousands of respectable, law-abiding citizens who are doing likewise?’

The record leaves no doubt that the officers arrested defendants on general suspicion, and not for a specific offense. The record does not show that they ever claimed to the contrary. The magistrate so understood Sullivan's statement, several times repeated. The arrest of Massie, who had done no act to even arouse suspicion, confirms it. Mere general suspicion that, perhaps, a crime is being committed by defendants, does not justify an arrest.

What happened seems quite clear from the testimony. There was something about the cab, probably aside from its speed, which suggested to Officer Sullivan that he ought to look over the occupants. When he saw Stein make the motion, his suspicions were aroused generally, and, like a good officer, he decided to investigate further. If, instead of arresting defendants, the officers had searched the cab, but not the persons or baggage of defendants, it may be that defendants could not have complained. The mistake the officers made was in arresting defendants before they had reasonable ground to believe that a crime was being committed by defendants.

It is conceded that the result of the search cannot be taken into consideration in any way in determining the validity of the arrest. If the arrest at bar was justified by the facts known to the officers, so far as they have been given in evidence, and without other facts tending to show criminal acts, no citizen would be safe from the hazard of police annoyance and the disgrace of search of his person while riding in a taxicab if he made a sudden motion with his hands. No single case of carrying concealed weapons nor series of crimes can be permitted to reduce to such a level the immunity the people have preserved to themselves in the Constitution. If conditions demand a special rule of search on highways, the remedy is by amendment of the Constitution.

Upon argument, the question was raised whether a passenger in a taxicab, a common carrier, may question the legality of a search and seizure of his property located elsewhere in the cab than on his person or in his personal baggage or parcel. This refers to the pistol found on the seat behind Stein.

Investigation discloses no case in point and the application of general principles would involve such queries as whether the search is for the misconduct of the passenger and whether the passenger has hired exclusive possession of the cab or only transportation. We need not discuss the general aspects of the question. Assuming the cab was being employed as a public conveyance, in which defendants had hired only transportation, and that the pistol found behind Stein belonged to and was hidden by him, nevertheless it appears that the weapon was procured by means of his unlawful arrest and it, therefore, was not admissible in evidence. People v. Stewart, 232 Mich. 670, 206 N. W. 337, is in point.

Writ denied.

SHARPE, Justice (for reversal as to defendant Stein).

McDONALD, C. J., and POTTER, NORTH, and WIEST, JJ., concurred with FEAD, J.

The wave of crime which is sweeping over this country is causing much alarm to law-abiding people. No banker, business man, or householder seems immune from attack by the burglar, nor is any man, woman, or child, when upon the streets, free from the danger of being kidnapped or robbed. The instrumentality which permits such freedom of action on the part of the lawbreaker may well be said to be the indiscriminate use of firearms. While the law prohibits their use except as provided for therein (3 Comp. Laws 1929, § 16749, et seq.), it is a well-known fact that many people do not comply with its provisions. The desperado, while so armed, feels no danger from resistance, and...