PEOPLE
v.
ROSA.
Docket No. 2,875.
Michigan Court of Appeals.
Decided April 24, 1968. Rehearing denied June 14, 1968. Leave to appeal granted September 5, 1968.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate *159 Lawyer, and Rheo C. Marchand, Assistant Prosecuting Attorney, for the people.
Walter A. Kurz, for defendant.
Leave to appeal granted September 5, 1968. See 381 Mich. 774.
McGREGOR, J.
In June, 1965, cash in the amount of $3,537 and certain contraband were seized from the defendant by the Detroit police during what was undisputedly an illegal search. At the conclusion of the examination in recorder's court for the city of Detroit, the action was dismissed by the judge upon the prosecutor's motion. Motion was made by the defendant in recorder's court for the return of the illegally seized cash. While the opinion of the recorder's judge indicated that the police department had no apparent right to possession of the cash, the standard procedure in Detroit in such cases is to institute civil suit in circuit court against those parties holding the property. Because of a lack of precedents in the area, the judge related that he was unsure of the jurisdiction of recorder's court so far as returning the cash was concerned.
Jurisdictional limits of recorder's court are set out in CL 1948, § 726.11 (Stat Ann 1962 Rev § 27.3561):
"The said recorder's court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this state, for crimes, misdemeanors, and offenses arising under the laws of this state, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city; and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue *160 all writs and process, and to do all acts which the circuit courts of this state within their respective jurisdictions, may, in like cases, issue and do by the laws of this state: Provided, That this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city." (Emphasis added.)
Under the terms of this jurisdiction delimiting statute, in order for the recorder's court to have authority to return the cash, it must first be decided that a circuit court also would have the authority to make disposition in a criminal case of cash obtained under identical circumstances.
In People v. Williams (1961), 363 Mich. 281, seized personal property and cash were claimed by third parties after the information in the case had been quashed. The Supreme Court, in a per curiam opinion, held the remedy, if any, in the Williams Case was "on the civil side of the court." That holding, however, was largely based on a "lack of proper party in interest, neither affiant nor petitioner being party to criminal action in which petition is filed." In cases brought by the accused parties for the return of illegally seized property the return has been ordered. People v. Krol (1943), 304 Mich. 623; People v. Marxhausen (1919), 204 Mich. 599 (3 A.L.R. 1505); also see 20 MLP, Searches and Seizures, § 1, p 228 et seq. It is apparent that such return can be ordered by circuit courts in such cases, therefore, under the statutes, recorder's court can also order such returns.
The question is now raised as to what return procedures would be compatible with the 4th Amendment of the Constitution of the United States, which was made fully applicable to the States by Mapp v. Ohio (1961), 367 U.S. 643 (81 S. Ct. 1684, 6 L Ed 2d *161 1081, 84 ALR2d 933). The people argue that recorder's court is not the appropriate tribunal in which to try complicated questions of title. A similar illegal seizure of cash was faced and decided under the principles of the 4th Amendment in Berkowitz v. United States (CA 1, 1965), 340 F2d 168 (8 ALR3d 463). It was stated in that opinion that the basic concept of our American system incorporated in the 4th Amendment is that men have the right to be left in possession of their property unless valid authority for disturbing that possession can be shown to be based upon law. No complicated questions of title will be faced, as all that need be decided concerning seized property is the superior right of possession as between the seizing authority and the one from whom the property was seized. As pointed out in Berkowitz, this does not mean that an accused is entitled to receive possession of contraband of which the mere possession is per se contrary to public policy. In the case of the seizure of noncontraband property, public policy against the unconstitutional seizure of property is so strong as not to allow undue vexation or delay in recovering property wrongfully seized.
This case is remanded to recorder's court for action consistent with this opinion.
LESINSKI, C.J., and FITZGERALD, J., concurred.