People v. Zeigler

• Decision Date: 01 June 1958
• Docket Number: No. 50,50
• Citation: 100 N.W.2d 456,358 Mich. 355
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Donald ZEIGLER, Defendant and Appellant. ,
• Court: Michigan Supreme Court

Page 456

100 N.W.2d 456

358 Mich. 355

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Donald ZEIGLER, Defendant and Appellant.

No. 50, June Term, 1958.

Supreme Court of Michigan.

Jan. 4, 1960.

James B. Stanley, Kalamazoo, for defendant-appellant.

Luther I. Daines, Pros. Atty., Van Buren County, Paw Paw, for the People.

Before the Entire Bench.

DETHMERS, Chief Justice.

This is appeal from conviction on a criminal charge of possession of policy or pool books and other wagering memoranda. Admissibility of evidence, in turn dependent upon the validity of a search and seizure, is the question presented.

Defendant was driving an automobile on a public highway. He was stopped by two police officers for failing to stop at a stop sign for a through highway. He was arrested and one of the officers issued him a summons for the traffic violation. The officers asked if he had any contraband in his car. He said, 'No, go ahead and search the car.' The car was searched but no contraband was found. Defendant was asked if he had contraband on his person and he handed one of the officers 40 National Basketball Forecast cards, now labelled Exhibit 1, which he had had in his outside overcoat pocket. The other officer asked defendant if he could search defendant's person. The officer testified that he did not recall that defendant answered. The officer then made a move towards defendant, reached into defendant's inside coat pocket and removed a memorandum book, now marked Exhibit 2, which listed bets and wagers. Defendant 'was reluctant to give the book up,' 'didn't want to let it go' and 'made a motion to pull it back.' The officers removed from defendant's wallet certain newspaper clippings containing the results of basketball games. These are marked Exhibit 3. These three exhibits were received into evidence over defendant's objection at the preliminary examination. After he was bound over for trial, he moved to suppress this evidence. The motion was denied. At trial the exhibits were received into evidence over objection. On appeal he claims error in denial of his motion to suppress and in receiving the exhibits into evidence.

The people agree with defendant that search of an automobile by an officer without a search warrant is unlawful if not based on probable cause to believe that a crime has been or is being committed and that evidence thereof is to be found in it. Both quote in that connection from People v. Miller, 245 Mich. 115, 222 N.W. 151, 152:

'In applying the test to modern conditions, this court has held that an officer, charged with enforcement of the law, may search an automobile on the highway or in a public place, when, from the exercise of his own senses or acting upon information received from sources apparently reliable, a prudent and careful person, having due regard for the rights of others, would be induced to the honest belief that a felony was being committed in such automobile.'

But it is not enough for an officer to testify that he had acted upon information received from sources which, in his judgment, were apparently reliable. The Miller case makes it clear that testimony of the officer's determination of the reliability of the source of his information, without disclosing that source to the court, does not suffice to establish the existence of probable cause. Having stressed that 'the officer did not give the source of his original information nor identify his informant' this Court went on to say, in Miller, that 'anonymous information does not meet the test', citing People v. Guertins, 224 Mich. 8, 194 N.W. 561, and reversed the conviction on the ground that it rested on 'evidence obtained by illegal search.'

What about probable cause in the case at bar? The only showing before the circuit court on the motion to suppress consisted of the testimony presented at the preliminary examination. Amplifying testimony later taken at trial cannot be considered. We are limited to that taken at the examination. People v. Miller, supra. With respect to all such testimony concerning complaints or tips about defendant received by the officers before the arrest, it must be said, as in Miller, that 'the officer did not give the source of his information, nor identify his informant.' In fact, when defendant's counsel questioned the officer, at the preliminary examination, as to the source of his information, he replied that it was confidential, and the examining magistrate sustained the prosecuting attorney's objections to defense counsel's further questioning on the subject. As said in Miller, then, the anonymous information did not meet the test. There was no other information, free from the infirmity of being anonymous, disclosed to the court by the officer on which a claim of probable cause for the search could be planted. Probable cause was not established.

It is for good reason, then, that the people, while not expressly conceding that the search and seizure in this case cannot be upheld on the ground of probable cause, nowhere contend, in their brief or otherwise, that it can be so upheld. In their brief they say:

'Nor, do we argue with counsel when he says that anonymous information fails to meet the test. People v. Guertins, 224 Mich. 8 . We believe, and it is our claim that the record will bear us out, that here we have a motorist who was observed in a traffic violation, was issued a summons, identified by the officers as one against whom they had received reliable and confidential information, whereupon the simple question was asked of him whether he had any contraband in his car or on his person. Without hesitancy the defendant promptly handed over 40 National Basketball Forecast cards. The record fails to show that this was merely submissive search as defendant would contend. The reasonable conclusion is that the defendant acted freely and voluntarily when he told the officers to conduct the search and when he handed the cards to Detective Menzies. He told the officers he had more cards at his home in Kalamazoo, and permitted his mother and sister, accompanied by a Kalamazoo detective to go to his home and obtain them. Defendant then, in detail, explained how the cards were played, even to obtaining the results of games on T.V. and in newspapers. By consenting to the search, defendant waived his constitutional rights.'

From this, it is clear that the people predicate their claim of admissibility of the questioned evidence upon defendant's alleged waiver of constitutional rights, and not at all on the grounds that there had been a valid search and seizure based on probable cause.

Were the search and seizure lawful because made while defendant was lawfully under arrest for traffic violation? For reasons stated in the majority opinion of Mr. Justice Edwards in People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16, applicable here, we hold in the negative. In that opinion the announced principles determinative of the legality of a search made, without a search warrant, contemporaneously with a lawful arrest, were drawn from Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. True it is that in Agnello the search which was held to be illegal was of a house and the court noted a distinction in that respect from Carroll v. United States, 267 U.S. 132, 45 SCt. 280, 69 L.Ed. 543, where the court upheld a search, without a warrant, of an automobile. It is to be noted, however, that the distinction made on that account between search of a house or of an automobile related to the requirement of a search warrant, but not at all to the need for probable cause, the court recognizing in Carroll that even the search, without a search warrant, of an automobile is unlawful unless made upon probable cause. As said in Henry v. United States, 80 S.Ct. 168, 172:

'The fact that the suspects were in an automobile is not enough. Carroll v. United States, supra, liberalized the rule governing searches when a moving vehicle is involved. But that decision merely relaxed the requirements for a warrant on grounds of practicality. It did not dispense with the need for probable cause.'

Furthermore, the evidence challenged in the instant case derived not from the search of the automobile but of defendant's own person. Let it be understood that we do not hereby hold--nor did we so say in Gonzales--that a lawful search of an automobile, based upon probable cause, is rendered illegal by an attending arrest for a traffic law violation, but only that a search, if otherwise illegal because made without probable cause, is not rendered legal by such arrest.

The people contend, however, as above noted, that defendant voluntarily waived the right to be secure against unreasonable search and seizure by telling the officer to search his car and by himself removing the 40 Forecast cards from his pocket and handing them to the officer. In this connection the people quote, with respect to the constitutional right to be secure against unreasonable search and seizure, the following from Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477:

'But those rights may be waived.'

Involved in Zap was a contract between the United States government and Zap under which he was to do experimental work for the navy. The contract provided that the government was given the right, also conferred by statute, to examine his books and records. In exercising that right the government discovered evidence later used against him in a prosecution for pressing a false claim for payment against the government. Such were the circumstances under which Zap was held to have waived his right with respect to search and seizure. This is not such a case. Rather, in point is Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 267, 65 L.Ed. 654. In that case officers went to defendant's home, did not find him but did find his wife present and told her that they were revenue officers and that they had come to search the...