The wave of crime which is sweeping over this country is causing much alarm to law-abiding people. No banker, business man or householder seems immune from attack by the burglar, nor is any man, woman or child, when upon the streets, free from the danger of being kidnapped or robbed. The instrumentality which permits such freedom of action on the part of the lawbreaker may well be said to be the indiscriminate use of firearms. While the law prohibits their use except as provided for therein (3 Comp. Laws 1929, § 16749 et seq.), it is a well-known fact that many people do not comply with its provisions. The desperado, while so armed, feels no danger from resistance, and persons who may lawfully carry them are afforded but little, if any, protection thereby, as, when assaulted, they realize that opposition, in most cases, means a speedy death.
The automobile provides a ready means for a quick getaway from the scene of the crime, and murders are frequently committed by men riding therein, particularly if in fear of apprehension. As was said by Mr. Justice STEERE inPeople v. Case, 220 Mich. 379, 388 (27 A.L.R. 686):
"The automobile is a swift and powerful vehicle of recent development which has multiplied by quantity production and taken possession of our highways *Page 617 in battalions until the slower animal-drawn vehicles with their easily noted individuality are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways is a serious question far deeper and broader than their use in so-called 'boot-legging' or 'rum-running,' which in itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes nor on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity and decency to robbery, rape, burglary and murder is a matter of common knowledge. Upon that problem a condition and not a theory confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made."
In People v. Roache, 237 Mich. 215, 220, Mr. Justice CLARK said:
"The automobile has come to be the convenient instrument of bandits and rum-runners. So used, it presents a most difficult problem to officers in their efforts to solve crime. If the rules relative to search and seizure, as applied to the home, be applied with like rigor to the automobile in public places, the automobile bandit and the rum-runner are practically immune. * * * Under most liberal rules as to *Page 618 probable cause to search, the officer's problem remains difficult. We are dealing with a condition, a prevalence of crime, menacing to and destructive of the social order."
The evidence here presented discloses that the attention of the officers was first attracted to the cab in which the defendants were riding by the rate of speed at which it was traveling; that when the car in which they were riding, called the "seventh precinct cruiser," reached the side of the cab, officer Sullivan "noticed the defendant Stein reaching into his pocket as if to take something out, and place his hand behind him;" that the motion he made was "as if he was taking something out of his pocket, and putting it on the seat beside him * * * behind him."
Some persons are naturally more observant than others. They notice everything which occurs in their presence, and their minds, unconsciously perhaps, seek the reason therefor. A police officer, if not endowed with this faculty by nature, has been taught to acquire it by instruction and experience, and, when he sees anything unusual or suspicious occur, he at once seeks to satisfy himself of the reason therefor.People v. Bradley, 243 Mich. 609. The defendant Stein doubtless saw the police car as it came up to the side of the cab and recognized it as some of the officers in it were in uniform. His action cannot be otherwise accounted for. While Sullivan was not permitted to state the "impression" he had when he saw Stein remove something from his pocket and place it on the seat behind him, the movement attracted his attention, and to his observant mind there was a reason therefor, and that reason he at once ascribed to a desire on the part of Stein to conceal a revolver. There was no opportunity to investigate *Page 619 the cause of such action, or to secure a warrant to search the car. If a revolver was being concealed by Stein, he was violating the law. Immediate action was necessary. It was taken. Stein was arrested, and, after search, the revolver was found in the car where Sullivan had seen him place it.
The rule announced for the guidance of police officers inPeople v. Kamhout, 227 Mich. 172, quoted by Mr. Justice FEAD, has been many times approved by this court. Omitting that part of the statement relative to action in reliance upon information received, the paragraph will read:
"What we do state to be the rule by which the court will be governed is, that if an officer, charged with the enforcement of the law, from the exercise of his own senses * * * has reasonable and probable cause to believe," etc.
To justify the arrest, the officer must have had "reasonable and probable cause to suspect that the offense had been committed." People v. Nappo, 251 Mich. 89, 90. Mere suspicion, without cause therefor, is not sufficient. People v. Stewart,232 Mich. 670. By the exercise of his sense of sight, the officer observed the action on the part of Stein which caused him to suspect that he was violating the law, and this action would, in my opinion, have led any officer, trained as Sullivan was in the faculty of observation, to have reached the same conclusion. People v. Licavoli, 245 Mich. 202, andPeople v. Bartoletta, 248 Mich. 499.
The purpose of the constitutional provision is to protect law-abiding citizens from illegal searches and seizures. It was not intended to protect the lawbreaker, and, although in this State the result of the search may not be considered in determining its *Page 620 legality, it should not receive a construction which enables him to violate the law in the presence of an officer who, from his acts and the inference fairly deducible therefrom, believes that he is doing so.
In Carroll v. United States, 267 U.S. 132 (45 Sup. Ct. 280, 39 A.L.R. 790), in speaking of the provision in the Federal Constitution, the court said:
"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens."
The distinction between the search of a store, dwelling house or other structure and a vehicle which "can be quickly moved out of the locality or jurisdiction in which the warrant must be sought" is particularly referred to. In speaking of this provision, it was said in Brent v. Commonwealth, 194 Ky. 504 (240 S.W. 45):
"The framers of that instrument were equally intent upon the proper administration of other governmental functions, among which is the efficacious enforcement of valid laws, to the end that order shall prevail."
The danger to which law-abiding citizens will be exposed by holding that the arrest and search in this case were within the law applicable thereto is, in my opinion, much overestimated. In the desire of such citizens to see the laws enforced and violators thereof apprehended, they are willing to submit to inconvenience and at times to acts in good faith on the part of officers which, under conditions other than those now prevailing, might be deemed oppressive and unlawful.
Reference is made at some length in the Carroll Case to the Federal statutes under which search *Page 621 without warrant is permitted under the revenue laws, under the law prohibiting the bringing of intoxicating liquor into the Indian country, and the laws relating to collections in Alaska, and such searches are said to be not in violation of the constitutional provision.
A few years ago, in an effort to prevent the spread of disease in the corn crop of this State, the agents of the commissioner of agriculture, acting under 1 Comp. Laws 1929, § 5156 et seq., stopped, and at times searched, automobiles passing into a restricted area without a warrant to do so. No complaint of their doing so in violation of the constitutional provision relating to search and seizure reached any of our courts.
Zealous officers should be encouraged in their efforts to rid their communities of violators of the law, and, while they may not make an arrest or search on suspicion alone, they may draw all reasonable inferences from acts done in their presence, and, if an act be so done, and the inference fairly deducible therefrom be such as to cause a prudent and careful officer to believe that the law is being violated, he may make an arrest and a search without the issue of a warrant to do so.
It cannot be doubted that officer Sullivan acted in good faith, and, in my opinion, his observation, acquired by nature, instruction and experience, of Stein's action, when the cruiser reached the side of the cab, in removing something from his pocket and placing it behind him, gave him "reasonable and probable cause to suspect" that in doing so he had handled a revolver.
The extent to which firearms are carried and used in automobiles by violators of the law and the means of escape provided thereby have brought about conditions *Page 622 which seem to demand that the constitutional provision should not now be construed in a manner affording relief from arrest and search when officers, diligent in the discharge of their duties, observe such action as leads them to honestly believe that the law prohibiting their use is being violated in their presence.
In my opinion, the arrest of Stein and the search of the cab in which the revolver which he had attempted to conceal was found were legal, and the trial court was in error in excluding the revolver from the evidence in the case. There was nothing to justify the arrest or search of the defendant Massie, and he was properly discharged.
The order dismissing the case as to the defendant Stein should be reversed and set aside and the cause remanded with direction to proceed to a trial upon the merits, admitting the evidence of the arrest and search. The dismissal of the defendant Massie is affirmed.