1061. NEWBERRY v. CARPENTER

SUPREME COURT OF MICHIGAN. 1895

107 Mich. 567, 65 N. W. 530

MANDAMUS by Helen H. Newberry, trustee, to compel William L. Carpenter, circuit judge of Wayne county, to vacate an order impounding certain property belonging to relator, for use as exhibits in a criminal cause. Submitted November 22, 1895. Granted December 24, 1895. The facts in this case were as follows: The relator was the owner of a large building in the city of Detroit, occupied by a printing establishment and other business enterprises. A large number of persons were employed in it. A steam engine and boilers were used in heating the building, and situated in the basement. On November 6, 1895, one or both of the boilers exploded, completely wrecking the building, causing the death of 37 persons, and injury to others. It was claimed by the prosecutor of the county that one Thompson, the engineer, caused the explosion by his criminal negligence in the management of the engine and boilers, and was therefore guilty of manslaughter. An indictment was promptly returned by the grand jury against him, charging him with that crime. Immediately after the explosion, the police department of the city of Detroit took possession of the building, and removed the debris and the bodies of those killed. On November 16th the prosecuting attorney appeared before one of the circuit judges of the county of Wayne, and upon his verbal statement, without any sworn petition or affidavit, the following order was made:

"On motion of O. F. Hunt, assistant prosecuting attorney, and after hearing argument of H. E. Boynton and Otto Kirchner, friends of the Court therein, it is ordered that the steam engine, boiler or boilers, and materials surrounding the same, and now upon the premises known as 45 and 47 Larned Street, west, be and the same are ordered into the custody of the police department of the city of Detroit as exhibits in said cause: the same, however, not to be removed from said premises. This order to remain in force only until the decision of a motion for injunction now pending before Judge LILLIBRIDGE, and subject to the terms of an order this day made by him."

The relator moved to vacate this order, which the Court refused, and the object of this proceeding is to set aside that order.

Wells, Angell, Boynton & McMillan (Otto Kirchner, of counsel,) for relator.

Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney (John G. Hawley, of counsel), for respondent.

GRANT, J. [after stating the case as above]. . The broad claim of the learned prosecutor is that the courts possess the power, upon

his motion, to enter upon the premises of private persons, and seize any property which may, in his judgment, have any bearing upon a crime with which another is charged. If the order in this case be sustained, it results in holding that a citizen's team, with which he earns a livelihood, may be seized by the police authorities because the prosecutor believes that such team was used by an alleged criminal in the commission of a crime. If A be arrested, charged with arson in the burning of B's house, and there be some evidence in the house believed to connect A with the crime, the police authorities may seize and hold possession of the house for months, and until the trial, and prevent the owner from rebuilding. So, under like circumstances, a manufacturer might be deprived of the possession of his property necessary for the successful carrying on of his business. Other illustrations will readily suggest themselves. The power is certainly an extraordinary one, and those who assert it ought to be able to find some common or statute law authorizing it. The exercise of power no more arbitrary than this has caused-revolutions.

The learned prosecutor cites the following authorities in support of his contention: Whart. Cr. Pl. & Prac. § 60; 1 Bish. New Cr. Proc. §§ 210, 211. . . . These authorities do not even hint at such an arbitrary and broad power. The citation in Wharton says only that

"those arresting a defendant are bound to take from his person any articles which may be of use as proof in the trial of the offence with which the defendant is charged."

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The citation from Bishop goes no further. . . . In my judgment, no case cited in the opinion of my brother, the chief justice, sustains the power here asserted. In Closson v. Morrison, 47 N. H. 482, the property was taken from the person of the respondent, and was levied upon by attaching creditors while in the hands of the sheriff; the decision quotes the statute of that State authorizing search and seizure, and maintains the right of the officer to take weapons from the prisoner, and also money or other articles of value found upon him, by means of which, if left in his possession, he might procure his escape. Commercial Exchange Bank v. McLeod, 65 Iowa, 665, is a similar case, where the property of the prisoner taken from his person upon arrest, was attached in the hands of the officer. In Langdon v. People, 133 Ill. 382, the property seized was a forged official certificate. It was held not to be private property, and was seized upon a search warrant made upon due complaint. .

The people of this State, through their Legislature, have made ample provisions for the seizure of property in criminal cases, and they are summarized as follows: (1) Personal property stolen, embezzled, or obtained by false pretences; (2) counterfeit, or spurious coin, forged bank notes, or other forged instruments, or any tools, machines, or other materials provided or prepared for making them; (3) obscene

matter; (4) lottery tickets; (5) gaming apparatus. Section 9619, 2 How. Stat. provides what shall be done with the articles so seized. These statutes are declaratory of the legislative will upon the subject of search and seizure, and cannot be extended by the courts to include the right to enter the inclosures of private citizens, and seize their lawful property, to be held as evidence against alleged criminals. . . . Justice Cooley says:

"The only lawful mode of making search upon one's premises is under the command of search warrants, and these are allowed to discover stolen or smuggled goods, or implements of gaming, and in a few other cases, for which provision must be found in the statutes. The authority to issue them is liable to great abuses, and the law is justly strict regarding their requirements." Cooley, Torts, 295. . . .

The order of the circuit judge was without authority of law, and must be set aside. The writ will issue. LONG, MONTGOMERY, and HOOKER, JJ., concurred with GRANT, J. MCGRATH, C. J. (dissenting). ... It is contended on behalf of relator that there is no warrant in law for the order of the circuit judge. . . . The right of an officer to pursue a fleeing criminal in and upon my premises, and into my dwelling, does not depend upon the statute. There is no statute which authorizes an officer to take from a prisoner such evidence of guilt as may be found on the person, the bloody knife, the revolver with an empty chamber, garments stained with blood, the shoe or boot which fits the track, the coat with the missing button, the knife with the broken blade, the hat found at the scene of the crime. Such taking and use do not violate the rule that the prisoner shall not be compelled to furnish evidence against himself. It is not only the right, but the duty, of an officer making an arrest to take from the prisoner, not only stolen goods, but any articles which may be of use as proof in the trial of the offence with which the prisoner is charged. . . . This right of sequestration is plain, notwithstanding the property may be claimed by a third party; and stolen goods may be held as against the owner, if necessary for use as evidence, however clear the title of the claimant may be. Ex parte Hurn, 92 Ala. 102; Closson v. Morrison, 47 N. H. 482; Commercial Exchange Bank v. McLeod, 65 Iowa, 665; Woolfolk v. State, 81 Ga. 551. . . . It is not the fact that there is a contest over the ownership of stolen goods that gives the people the right to retain them, but rather that they are of the res gestae and evidential. The prisoner's consent does not give the owner the right of possession, as against the people. The right to the possession and enjoyment of property must be subordinated to the law of overruling necessity. It is subject to the necessary burdens and restrictions imposed by the general police power of the State, in order to secure the general comfort, health, security, and protection of the citizen. The limitations upon the police power and its execution do not embrace

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such reasonable judicial orders as may be found necessary, in the course of the administration of the criminal law, for the detention of witnesses and the preservation of evidence. Police officers must be given a reasonable latitude in the pursuit of offenders, the detection of crime, and the collection of evidence; and the courts vested with jurisdiction to try such offenders must be allowed to exercise a reasonable discretion respecting the preservation of the evidence of crime in matters before them. The principle of the rule that permits the traveller upon the highway to go upon the abutting land when the highway is impassable; that permits entry upon my premises in case of fire, and the destruction of my property, if deemed necessary to stay the conflagration; that permits the inspector to enter my close, extends to measures necessary for the prevention of crime, the detection, pursuit, and arrest of offenders, and the preservation of criminating evidence. All are matters not alone of individual interest, but of public concern. It cannot be said that the court would not have the power, had it been found necessary, to compel witnesses to give sureties for their appearance, or to commit them on refusal so to do. If this be true, can it be seriously contended that this exploded boiler cannot be impounded? . . . It frequently happens that animals affected with infectious diseases are killed by the public authorities to prevent the spread of the disease; and if the poor man's team had been stolen, and taken from the thief, the necessity for its use would not necessarily determine the owner's right to its possession. If, in a partially burned building, there were found a package of combustible material saturated with kerosene, would there be any question of the right of the authorities to take and preserve the package for use a's evidence?

The cases of Entick v. Carrington, 19 How. St. Tr. 1029 [supra, No. 1058]; Boyd v. U. S. [supra, No. 1059], and Potter v. Beal, 49 Fed. 793, are cases of paper searches and seizures. . . . These cases do not hold that all searches and seizures are unreasonable. They do hold that the invasion of the privacy of one's home, and the seizure of private papers and documents, is an unreasonable search and seizure, and is within not only the article of the Constitution prohibiting unreasonable searches and seizures, but also the article that no person shall be compelled to give evidence against himself. . . . Illustrations of what might be readily held to be unreasonable seizures could be multiplied without effort, but they would be without force. The prohibition is against unreasonable seizures, and all seizures are not regarded as unreasonable. The question here is whether this is an unreasonable seizure. .

The writ should be denied.

Section 2. Action under a Valid Warrant

(a) MISTAKE AS TO PERSON OR PROPERTY

1062. ANON. A Treatise Concerning Trespasses Vi et Armis. (1704. p. 107.) ... A capias issues against J. G. of Dale, Gent., and there are two of the same name and mystery within the same village; the sheriff at his peril ought to take him which is sued. Brooke, Tit. Faux Imprisonment, Pl. 19, 11 H. 4. 91.

1063. McMAHAN v. GREEN

SUPREME COURT OF VERMONT. 1861

34 Vt. 69

TRESPASS for assault and battery and false imprisonment. The facts sufficiently appear in the opinion of the court. The court at the January Term, 1861, PIERPONT, J., presiding, directed a verdict for the defendant, to which the plaintiff excepted.

Thrall, for the plaintiff.

Everts, for the defendant.

ALDIS, J. The plaintiff was arrested by William Edgerton, a deputysheriff, upon a warrant issued against John McManus for an assault with the intent to commit rape. The defendant was required by the officer to assist him in making the arrest, and in obedience to such command he accompanied the officer in making the arrest and in committing the plaintiff to prison. The plaintiff's name is John McMahan instead of John McManus, and upon this ground he claims that the warrant was void, against him, and that the defendant is liable to an action of trespass and false imprisonment in thus assisting the officer.

1. When a warrant or other process is regular on its face it protects the officer who does what it enjoins. He is not required to investigate the proceedings anterior to the warrant to see that they are regular and valid. But in civil cases, where there is misnomer, in mesne process, which has not been waived, though it be executed upon the person against whom it was intended, the officer will be liable in trespass. Thus in Shadgett v. Clipson, 8 East, 328, where "Josiah" Shadgett was arrested upon process against him by the name of "John," the officer was held liable in an action for false imprisonment; the Court said that process ought to describe the party against whom it is meant to be issued; and the arrest of one person cannot be justified under a writ sued out against another. . . .

2. No case has fallen under our notice where the same rule has been applied to process in strictly criminal cases. There seem to be some reasons why it should not be so applied. The facility with which criminals pass from one part of the country to another, where they are wholly unknown, the various names by which they pass, and the difficulty of ascertaining their true names, especially of foreigners,