Docket No. 47, Calendar No. 46,999.
Decided September 4, 1957.
Appeal from Genesee; Gadola (Paul V.), J. Submitted April 11, 1957. (Docket No. 47, Calendar No. 46,999.) Decided September 4, 1957.
Louis Stolz Gonzales was charged with carrying a concealed weapon. Motion to suppress evidence granted. People appeal. Reversed and remanded.
Thomas M. Kavanagh, Attorney General, Edmund E. Shepherd, Solicitor General, Jerome F. O'Rourke, Prosecuting Attorney, Edward P. Joseph, Assistant Prosecuting Attorney, for the people.
We are asked herein to render an advisory opinion upon the question of whether or not article 2, § 10 of the Michigan Constitution (1908), as amended (1952), is repugnant to the Federal Constitution. There is no constitutional authority for this Court to render advisory opinions; nor does this case require our answer to the question posed.
The amendment under attack is 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: Provided, however, That the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction, or in any criminal proceeding held before any magistrate or justice of the peace, any narcotic drug or drugs, any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bomb shell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing, seized by any peace officer outside the curtilage of any dwelling house in this State."
The record which comes before us advises us that a circuit judge held the provision quoted above to be violative of amendments 4 and 14 of the United States Constitution. The prosecuting attorney upon leave granted by this Court seeks reversal.
We are advised by this record that appellee Gonzales is a defendant charged with carrying a concealed weapon and that the motion the circuit judge had before him and granted was a motion to suppress evidence — namely a gun. More we do not know.
The basic Federal constitutional provision relied upon by the circuit judge is the fourth amendment:
"The right of the people to be secure in their persons, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In recent years this amendment has been held to have a limited applicability to the States as a part of the "The concept of ordered liberty" through the effect of the due process clause of the 14th amendment. Wolf v. Colorado (1949), 338 U.S. 25 (69 S Ct 1359, 93 L ed 1782). As to application of the 14th amendment in barring admission of evidence in State prosecutions on grounds of brutality, see Rochin v. California (1952), 342 U.S. 165 ( 72 S Ct 205, 96 L ed 183, 25 ALR2d 1396); and Breithaupt v. Abram (1957), 352 U.S. 432, dissent, p 440 ( 77 S Ct 408, 1 L ed2d 448).
The 4th amendment to the United States Constitution and article 2, § 10 of the Michigan Constitution (1908), however, ban only "unreasonable" searches and seizures. In many instances searches and seizures without warrants for arrest or search have been upheld where the arresting officer was held to have probable cause to believe a felony was being committed. Carroll v. United States (1925), 267 U.S. 132 ( 45 S Ct 280, 69 L ed 543, 39 ALR 790); Brinegar v. United States (1949), 338 U.S. 160 ( 69 S Ct 1302, 93 L ed 1879); Seawell v. United States (CCA, 1957), 243 F.2d 909; People v. Chyc, 219 Mich. 273; People v. Licavoli, 245 Mich. 202; People v. Locricchio, 342 Mich. 210. See, also, CL 1948, § 764.25 (Stat Ann 1954 Rev § 28.884).
We do not know from our current record (1) where Gonzales was arrested or what he was doing at the time, (2) whether he was inside or outside the curtilage of his dwelling, (3) where the gun was found, (4) whether there was a warrant for arrest or search, and, if not, (5) what if any cause the arresting or searching officer had.
We note that at one point the prosecuting attorney sought to go into some of these questions and that the judge stopped him:
Mr. Joseph: "The amendment concerns the introduction of guns and narcotics. At this time the people would like to present before the court the question of whether or not this factual situation comes within that amendment to article 2, § 10.
" The Court: That is not what we were back here for. We wanted it squarely upon the question of the constitutionality, so we can get a decision from the Supreme Court."
We believe the trial judge should have taken testimony on the motion to suppress the evidence, and made a prior determination as to whether the arrest and seizure were reasonable or unreasonable. We cannot assume that the seizure was unreasonable in the total absence of proofs. There being no facts upon which a finding of unreasonable search and seizure could be based the proviso of article 2, § 10 of the Michigan Constitution (1908) plainly has no applicability to the case before us.
The motion to suppress evidence should not have been granted on this record. This case is remanded to the trial court to take such testimony as is needed to establish the reasonableness or unreasonableness of the search and seizure concerned. No costs, a public question being involved.
DETHMERS, C.J., and SMITH, VOELKER, KELLY, CARR, and BLACK, JJ., concurred with EDWARDS, J.
SHARPE, J., concurred in the result.