People v. Andrews , 21 Mich. App. 731 ( 1970 )

21 Mich. App. 731 (1970) 176 N.W.2d 460

PEOPLE
v.
ANDREWS

Docket No. 8,052.

Michigan Court of Appeals.

Decided February 12, 1970. Leave to appeal denied August 4, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Owen J. Galligan, Assistant Prosecuting Attorney, for the people.

Jack J. Kraizman, for defendant on appeal.

Before: LESINSKI, C.J., and McGREGOR and V.J. BRENNAN, JJ.

Leave to appeal denied August 4, 1970. 383 Mich. 813.

LESINSKI, C.J.

Defendant George Cooper Andrews appeals his jury conviction on the charge of carrying a concealed weapon.^[1]

The records of the preliminary examination and the trial reveal that defendant was arrested in an area where a murder had occurred six or seven hours earlier. The arresting officer testified that defendant "fit the description" of one of the murderers.^[2] Upon arresting the defendant, the officer searched the defendant and discovered a .38-caliber blue steel Cobra revolver in his pants pocket. Prior to trial, defendant moved to suppress this evidence as being the product of an unreasonable search and seizure.^[3] The motion was denied without an evidentiary hearing or written opinion. At trial defendant renewed his motion. The trial court again denied the motion stating:

"This does not involve the question at this time as to the validity of the arrest. This raised the question as to the admissibility of the evidence. All of the matters were disposed of and under the constitutional proviso, article 1, section 10, [sic] I believe, of the Constitution of 1963, and decided in the case of the People v. Vanlandingham of 6 Mich. App. 128 and in the Blessing case and other decisions of the Michigan Supreme Court, the proviso is that after referring to the protection of a person from unreasonable searches and seizures — and I will read it for purposes of the record: `Article 1, section 11. 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 protection of this section shall not apply to bar from evidence in any criminal proceeding any narcotic drugs, firearm, bomb, explosive or any other dangerous weapon seized by a peace officer outside the curtilage of any dwelling house in this state.'

"This has been passed upon by our Court of Appeals. The constitutionality of our constitutional proviso has been upheld. The Michigan Supreme Court has upheld this. This court is obliged to follow the decisions of the Court of Appeals, of the Supreme Court of this state, and of the United States Supreme Court. Let the record indicate that this constitutional proviso was adopted by the delegates to the constitution following the decision of Mapp v. Ohio, that the Court of Appeals in the Vanlandingham case and the Supreme Court have upheld the proviso and there has been no decision of law on the part of any court which has jurisdiction over our appeals that would indicate that our proviso is not constitutional and under its term the evidence is admissible." (Emphasis supplied.)

The evidence was admitted.

During trial plaintiff objected to defense counsel's attempted questioning of the arresting officer regarding the basis of defendant's arrest. In the absence of the jury the court stated:

"The court already ruled that regardless of the reasonableness of [sic] probable cause for the arrest, that this evidence is admissible because of the constitutional proviso and the court pre-trial also indicated that in its opinion there was probable cause here and I am not going to go into this again." (Emphasis supplied.)

In the court's instructions to the jury, reference was again made to the search and seizure:

"I do want to charge you as a matter of law that that has bearing in this case at all because, regardless of the validity of the arrest, a firearm seized outside the curtilage of a dwelling by a peace officer comes within the search and seizure proviso of article 1, section 11 of our 1963 Constitution, following an amendment adopted by the people in 1963 and which was continued from the old constitution into the present one, and the search and seizure amendment reads as follows: [Reading Const 1963, art 1, § 11.]

* * *

"So the court, as a matter of law, has ruled that the evidence that was introduced as Exhibit 1 was properly introduced as evidence under the search and seizure proviso." (Emphasis supplied.)

The various rulings and statements of the trial court have placed the issue of the constitutionality of the last sentence of Const 1963, art 1, § 11, squarely before this Court.

In Mapp v. Ohio (1961), 367 U.S. 643 (81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 ALR2d 933), the United States Supreme Court declared that the exclusionary rule, implementing the Fourth Amendment^[4] prohibition of unreasonable search and seizures, applies to the states through the Fourteenth Amendment.^[5] In a separate opinion in People v. Barker (1969), 18 Mich. App. 544, 549, Judge CHARLES LEVIN spoke critically of the consistent refusal of the courts of this state to consider the applicability of Mapp to the cited provision of the Michigan Constitution. The result has been to set Michigan apart as the one state in the union refusing to protect the constitutionally-guaranteed rights of criminal defendants subjected to unreasonable search and seizures in this limited area. A review of the record in the instant case convinces us that passive acceptance of the validity of the constitutional provision is no longer permissible. The trial judge, relying on Michigan case authority, refused to decide the issue of the legality of defendant's arrest (and hence, the reasonableness of the warrantless search of defendant's person^[6]) holding that the revolver was admissible into evidence in any event under the terms of the last sentence of Const 1963, art 1, § 11. This position cannot prevail. The last sentence of article 1, § 11 of the Constitution of 1963 conflicts with the Fourth Amendment to the United States Constitution.^[7] In such an instance the Supremacy Clause controls.^[8]

In reaching our decision today, we are mindful of the fact that on January 5, 1970 the United States Court of Appeals for the Sixth Circuit decided Lucas v. Michigan (CA 6, 1970), 420 F2d 259, a case arising on a habeas corpus proceeding, wherein it was held "that the last sentence of article 1, § 11 of the Michigan Constitution of 1963 is in conflict with the Fourth Amendment to the Constitution of the United States as applied to the states in Mapp v. Ohio." 420 F2d 259, 263. Since the Federal Court of Appeals also indicated that state (of Michigan) prisoners aggrieved by trial court rulings incorrectly applying art 1, § 11, would no longer be required to exhaust state remedies before seeking Federal relief, we find it most important to settle the instant question to avoid the unseemly situation where "Michigan litigants find it necessary to seek the protection of the Federal courts for vindication of rights enjoyed without question by all in the other 49 states." People v. Barker, supra, at 558.

In view of the possible erroneous admission of evidence and the clearly erroneous instruction to the jury, we reverse. In the event the motion to suppress is once again renewed, the trial court shall hold a full evidentiary hearing and determine the admissibility of the evidence in accordance with this opinion.

Reversed and remanded for new trial.

All concurred.

NOTES

[1] MCLA § 750.227 (Stat Ann 1962 Rev § 28.424).

[2] The officer apparently had "heard from other officers [involved in the murder investigation]" that the suspects were two male Negroes. One was a "light-skinned male Negro, tall slim build with an Afro-American haircut". The other was "a male Negro, smaller than [the first man], huskier, and dark complexion". Both "were wearing dark clothing". Defendant was "light-skinned" and was wearing a "fairly dark blue smoking jacket". His hair was in an "Afro-American" cut. The officer testified that outside of a description and the defendant being in the Six Mile Road — Dequindre area, he was not doing anything which caused the officer to believe he had been guilty of a felony. The officer arrested defendant immediately upon seeing him.

[3] Defendant argued in the trial court (as he does on appeal) that his arrest was made without probable cause and that, therefore, the subsequent search violated US Const, Ams 4, 14, as applied to the states by Mapp v. Ohio (1961), 367 U.S. 643 (81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 ALR2d 933).

[4] US Const, Am 4.

[5] US Const, Am 14.

[6] See United States v. Rabinowitz (1950), 339 U.S. 56 (70 S. Ct. 430, 94 L. Ed. 653).

[7] See Lucas v. Michigan (CA 6, 1970), 420 F2d 259.

[8] Reynolds v. Sims (1963), 377 U.S. 533, 583 (84 S. Ct. 1362, 12 L. Ed. 2d 506).