People v. Bass , 235 Mich. 588 ( 1926 )

I am unable to concur in the result reached by the Chief Justice. I am not persuaded that the facts appearing on this record justify the ingrafting of an exception on the rule announced in People v. Marxhausen, 204 Mich. 559 (3 A.L.R. 1505), and consistently followed by this court since. Defendant's counsel sought to raise the question on the trial but at the same time recognized the holdings of this court on the question of practice and asked permission to then make the motion to suppress. In my judgment the trial judge had the power and it was within his discretion under section 2, Circuit Court Rule No. 15, to then send the jury out, permit the defendant to make the motion to suppress, hear the testimony on the motion and determine it in the absence of the jury. If there was an abuse of such discretion this court should reverse, but I am not persuaded that the trial judge in the instant case abused his discretion, in view of the fact that defendant himself knew the day following the search that it had been made and that the officers then had the articles in their possession which were introduced in evidence on the trial. Knowing that the officers had made the search and had the evidence secured thereby in their possession, it was the duty of defendant to so inform his attorney. This duty did not rest on the officers. In the Agnello Case cited by my Brother, the defendant Frank Agnello, whose conviction was reversed, had no knowledge of the search of his room or that the officers possessed the cocaine until it was produced on the trial on his cross-examination. It is possible that later Federal decisions have somewhat modified the holdings up to the time theMarxhausen Case was written, but no Federal question is here involved. We are dealing with the provisions of the Michigan Constitution. I have been and am now steadfast in protecting the individual from unreasonable and unlawful search, in his rights secured by the Constitution, but this court has mapped out an orderly procedure for the protection of those rights. That procedure prevents the introduction upon the trial of collateral issues and at the same time furnishes ample protection to the defendant. I perceive no reason to ingraft upon it exceptions which weaken or modify it. I think the conviction should be affirmed.

SHARPE, SNOW, STEERE, and WIEST, JJ., concurred with FELLOWS, J.