People v. Weaver

• Decision Date: 14 February 1928
• Docket Number: No. 128.,128.
• Citation: 241 Mich. 616,217 N.W. 797
• Parties: PEOPLE v. WEAVER.
• Court: Michigan Supreme Court

241 Mich. 616

217 N.W. 797

PEOPLE

v.WEAVER.

No. 128.

Supreme Court of Michigan.

Feb. 14, 1928.

Error to Circuit Court, Muskegon County; John Vanderwerp, Judge.

Amelia Weaver was convicted of unlawful possession of intoxicating liquor and she brings error. Reversed, and defendant discharged.

Argued before the Entire Bench.

Oliver M. Green, of Grand Rapids, for appellant.

William W. Potter, Atty. Gen., and M. M. Larmonth, Asst. Atty. Gen., and R. Glen Dunn, Pros. Atty., and Harold H. Smedley, Asst. Pros. Atty., both of Muskegon, for the People.

FELLOWS, J.

In September, 1925, James Weaver, husband of defendant, was convicted of violating the prohibition law and was placed on probation for two years upon his execution of the following instrument:

‘To Ben Peterson, Probation Officer:

‘Having been convicted of the so-called liquor law, and being desirous of being placed on probation for that offense, I hereby agree that:

‘1. I will abstain from the use of intoxicating liquor during the term of my probation.

‘2. I will not have intoxicating liquor in my possession during the term of my probation.

‘3. I will not allow intoxicating liquor or implements used for the manufacture of intoxicating liquor to be or remain on the premises I now occupy or shall occupy either as a residence, business place, or otherwise during the term of my probation.

‘4. I will not allow any member of my family living with me to violate any provision of the so-called liquor law, nor will I, myself, violate any provision of the so-called liquor law.

‘To that end, I hereby authorize, license and grant to Ben Peterson, probation officer, or any officers of the law authorized by him in writing, to enter, inspect and search for intoxicating liquors without a search warrant or order of any court or magistrate, the premises now occupied by me or which shall be occupied by me during the term of my probation. This shall apply to any place of business or dwelling house occupied by me during the term of my probation.

‘I hereby waive my constitutional or statutory privilege in regard to such inspection and search and authorize Ben Peterson or the parties authorized by him to seize any intoxicating liquor, implements or furniture used in the manufacture or possession of intoxicating liquor.

‘Dated at Muskegon, Mich., this 1st day of October, A. D. 1925.

‘[Signed] James Weaver.’

It was made to appear on the motion to suppress in the instant case that the home occupied by Mr. and Mrs. Weaver when he was convicted was owned by Mrs. Weaver, or at least that she was buying it on a contract and that she alone was paying for it; that after Mr. Weaver's conviction when he was in Muskegon Heights he stayed at this place, but he was much of the time away from home working, and that when the search here involved was made he had gone to Benton Harbor to work, and that she had instituted divorce proceedings against him. She was keeping roomers and boarders. On June 11, 1927, without any search warrant, or any warrant against defendant, and claiming to act solely under the authority of the waiver signed by Mr. Weaver, officers searched her home and found in the pocket of an overcoat in one of the boarder's rooms a half pint of moonshine whisky and in the refrigerator in the house a quantity of home brew beer of slight alcoholic content. Her prosecution for unlawful possession followed. The question presented is whether the waiver signed by the husband of defendant precludes defendant under the facts in the instant case from asserting her constitutional right under section 10, art. 2 of the Constitution of this state, to immunity from the unreasonable search of the home owned and occupied by her.

When the case was submitted it did not appear at first blush to be fraught with difficulties, but an examination of the works of text-writers and the decisions of other courts demonstrates a divergence of views. In some instances the conclusion arrived at is no doubt due to a failure to analyze carefully the authorities relied upon. As a general rule it may be stated that the authorities agree to the proposition that one may waive the issuance of a search warrant and by consent permit the search of his premises. Cases where this question has arisen have frequently been cases where the search warrant was defective but the search had been invited, and the courts have in the main recognized the distinction between the submission to apparent authority of the officer, and unqualified consent, although this distinction has not been noted in some of the cases. In the instant case Mr. Weaver gave his unqualified consent, and if he were defendant here could not be heard to complain. But that is not the question here involved. The question before us is whether the constitutional right of the defendant to immunity from the unreasonable search of her home, one owned by her, may be waived by another, that other being for husband from whom she is seeking divorce.

We need not consider the cases dealing with search by consent generally, but will confine our consideration to those dealing with consent by parties other than the owner and will first consider those that are thought to sustain such right. Sheftall v. Zipperer, 133 Ga. 488, 66 S. E. 253,27 L. R. A. (N. S.) 442, is regarded as a leading case. The action was a civil one brought to recover for an unlawful entry and illegal search. The plaintiff counted in trespass, and the case really was made to turn on the question of pleadings. The defendants had entered the premises by permission of the wife of the plaintiff, and it was held on the authority of the case of the Six Carpenters, 8 Coke, 146a, that they were not trespass ab initio. The court recognized, however, that the plaintiff was entitled to recover damages for the illegal search, but held that so to do he must count in case and not trespass. In Commonwealth v. Tucker, 189 Mass. 457, 76 N. E. 127,7 L. R. A. (N. S.) 1056, the evidence (broken pieces of a knife) was obtained by searching the place where defendant resided, consent having been given to make the search by his mother although the officers had a search warrant. It does not appear from the opinion whether the house was owned by the mother or son. Upon the authority of earlier cases, it was held that the evidence was admissible. In Smith v. McDuffee, 72 Or. 276, 142 P. 558,143 P. 929, Ann. Cas. 1916D, 947, the...