(dissenting).
I.
The propriety of denial of defendant’s pretrial motion to suppress evidence must he tested against the testimonial record made at the preliminary examination, and additional testimony produced later at trial may not be considered. See, on this point, Mr. Chief Justice T. M. Kavanagh’s opinion in People v. Kaigler (1962), 368 Mich 281, 297, 298, and the cases there cited and discussed.
II.
Upon the testimony given at the examination, was the search of defendant reasonable? I answer that it was not. The testimonial record of the examination may he summarized: Officer McNamara testified that early one afternoon he heard a radio message in his scout car directing three other scout cars to go to a retail jewelry store in Detroit. The record of the examination proceedings does not reveal for what purpose the other scout cars were dispatched to the store or that Officer McNamara knew that purpose. Although they were not ordered to do so by the radio message, Officer McNamara and his partner proceeded to the store and arrived there before the other scout cars. Upon entering the store, they observed two men, one of whom was defendant, talking to a saleslady. According to Officer McNamara, the saleslady stated “that nothing was wrong in the store”. The manager of the store was 10 to 15 feet away from the saleslady toward the rear of the store and had been talking on the telephone when the officers entered the store. *72After the, manager finished his telephone conversation, Officer McNamara and he proceeded to a back room where they conversed. The following then ensued:
“A. [By Officer McNamara] Then I went back out in front of the store, and I started to talk to the two men out there and questioned them as to their business in the store there.
“Q. All right. What did you say to the defendant, Richard Charles Blessing, and what did he say to you?
“A. I asked Richard Charles Blessing to identify himself to me, and as to what his purpose was as to being in that location there, and he stated to me that he was there in regards to making a purchase of some jewelry, and that he had made an appointment with the manager, Herbert Kay, to come back at 4:30 that day, to make a purchase.
“Q. All right. -What did you say to the defendant, Michael Donald Martin, and what did he say to you?
“A. I asked Mr. Martin for his identification, and he did not produce any identification, and he told me he was Father John Moore and that he was,— or rather, I asked him where they were located, and Richard Blessing stated at that time that they had just gotten into towm, and they had no address here at this time.
' “Then upon question Mr. Martin, he stated that he was staying at the University of Detroit for 6 weeks, visiting with the faculty.
“Q. Now, did the defendant, Michael Donald Martin, show you any identification?
“A. No sir, Martin did not show me any identifi- ' cation.
“Q. How was the defendant, Michael Donald Martin, dressed at that time?
“A. He was dressed as a priest.
*73“Q. All right, and what did you do then, Officer?
“A. I went to talk to Blessing, and I wanted to take bim in the back room and try and figure out their story, and as we walked back there I informed him that I was going to search him, and upon searching him I found a pair of handcuffs, as well as a loaded .38 revolver on his hip.”
Upon this testimonial record, the search of defendant was illegal. There is nothing in this record to indicate that probable cause existed to believe that defendant had committed a felony. In essence, the evidence offered at the examination was: the officers heard a radio message dispatching other scout cars to a jewelry store; they proceeded to the store, where they found two men, one of them the defendant, talking to a saleslady who said there was nothing- wrong; the officers then talked to the manager (but about what is not disclosed) and to the two men, who gave plausible explanations for their presence; thereupon the officers searched defendant.
Surely these facts, and it is upon these facts alone that the legality of the search must be judged, do not give rise to probable cause to believe that defendant had committed a felony. Absent such probable cause belief, defendant could not lawfully be arrested and searched without a warrant. At the very most, one might say the circumstances were “suspicious”, but suspicion does not authorize search without a warrant. “Neither may an officer make a search on the basis of mere suspicion without probable cause to believe that the law is being violated.” People, ex rel. Attorney General, v. Lansing Municipal Judge (1950), 327 Mich 410, 425. Had the State brought out at preliminary examination, as it well could have, all of the circumstances known to Officer McNamara before he searched defendant, *74the result we reached might have been different;1 but the State neglected to do so, and those facts being beyond the evidentiary record we may properly consider for purposes of this appeal, we need make no finding thereon.
However much we may be convinced of defendant’s guilt, the complete testimonial record of the trial considered, our task is limited to review of the denial of defendant’s motion to suppress made during the preliminary examination. Our appellate judgment must be based exclusively, as was the examining magistrate’s judgment we reviewed, on the evidence offered by the people at the examination to establish the legality of the search during which the evidence sought to be suppressed was seized. The prosecutor failed to offer at the examination evidence in support of the reasonableness of the search which the subsequent trial record reveals was, or should have been known by him to be, available. When the examining magistrate decided de*75fendant’s motion to suppress, he did not have such evidence before him; nor do we in reviewing the judgment he made.
III.
Mr. Justice Kelly argues again2 that even if the search were unreasonable, and so forbidden by the; Fourth Amendment to the United States Constitu-' tion and the forepart of article 2, § 10 of the 1908 Michigan Constitution,3 effective at the time of the crime charged herein, nonetheless the evidence seized as a result of the illegal search, a revolver, is admissible in evidence against defendant because of a proviso added to section 10 in 1935, which read thusly in 1963:
“Provided, however, That the provisions of this' section shall not be construed to bar from evidence-in any court of criminal jurisdiction, or in any criminal proceeding held before any magistrate or. justice of the peace, any narcotic drug or drugs, any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bombshell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing, seized by any peace officer outside the curtilage of any dwelling house in this State.”
This issue does not warrant extensive discussion. In Wolf v. Colorado (1949), 338 US 25 (69 S Ct 1359, 93 L ed 1782), the United States Supreme Court held that the Fourth Amendment’s guarantee against unreasonable searches and seizures was binding upon the States. In Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L ed 2d 1081, 84 ALR2d 933), the Supreme Court held that State courts *76must exclude from evidence items seized in violation of the Fourth Amendment’s prohibition. Article 6, § 2 of the United States Constitution provides :
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The Fourth Amendment does not distinguish between items which are protected from unreasonable search and seizure and those which are not, and the State of Michigan has no unilateral power to modify that amendment. Hence, the provision of the 1908 Constitution and its counterpart provision in the 1963 Constitution, which in effect permit the admission into evidence over defendant’s objection of certain items which are the fruits of unreasonable search and seizure, are invalid.
Ker v. California (1963), 374 US 23 (83 S Ct 1623, 10 L ed 2d 726), emphasizes my conclusion that the standard by which the reasonableness of a search is to be determined is a Federal standard established by the Fourth Amendment. The Fourth Amendment, as it has been construed by the United States Supreme Court, recognizes no exceptions to the rule that evidence seized in an unreasonable search may not be received in a criminal proceeding, State or Federal. This is evident from an examination of the passages from Ker quoted by Justice Kelly, including therein, as indicated by capitalization, significant language overlooked by my Brother (pp 31, 34):
*77* Mapp, however, established no assnmpi tion by this Court of supervisory authority over State courts, cf. Cleary v. Bolger (1963), 371 US 392, 401 (83 S Ct 385, 9 L ed 2d 390), and, consequently, it. implied • no total ■ obliteration of State laws • relating to arrests and .searches in favor of Federal law. Mapp sounded no death knell for our federalism; Rather, it Echoed the Sentiment of Elkins v. United States [(1960), 364 US 206, 221 (80 S Ct 1437, 4 L ed 2d 1669)] That ‘A Healthy Federalism Depends. Upon the Avoidance op Needless Conflict Between State and Federal Courts’ by Itself ' Urging -That ‘Federal-State Cooperation in the Solution of Crime Under Constitutional Standards Will Be Promoted, ip Only by Recognition of Their Now Mutual -Obligation to Respect -the same fundamental criteria in Teleir Approaches.’ ” (Italics added by United states• Supreme Court.) * * *
“The States are not thereby precluded from developing -yorkable. rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, Provided That Those Rules Do Not Violate the Constitutional Proscription op Unreasonable Searches and Seizures and the Concomitant Command That Evidence So Seized Is Inadmissible .Against One Who Has Standing/to Complain.”
IV.
Finally, it well might be argued that the proviso of article 2, § 10 which purported to permit into evidence certain illegally seized evidence already has been effectively unanimously overruled by this Court. In People v. Lee (1963), 371 Mich 563, the Court reversed a conviction for possession of narcotics because there had been admitted into evidence against defendant narcotics which the Court *78found had been illegally seized from defendant’s automobile. The Court quoted only this portion of article 2, § 10 (p 568):
“ ‘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 issue of admissibility of the narcotics in light of the section 10 proviso and the Mapp Case was raised at trial and in the briefs before this Court. The Court’s eloquent silence on this issue and its reversal of defendant’s conviction mean to me that the Court concluded that the Michigan constitutional proviso permitting introduction in evidence of the narcotics unreasonably seized could not survive the Fourth Amendment’s prohibitory mandate as interpreted by the United States Supreme Court in the Mapp Case. If this were not so, this Court would have had to discuss the issue since it had concluded that the search was unreasonable.
The conviction should be reversed.
T. M. Kavanagh, C. J., concurred with Souris, J.Thus, at trial, the manager of the jewelry store testified that the defendant and his companion:
«* * * * passed the store together looking into the store each time and looking all around and several times by themselves they passed the store, and this man sitting closest to me—
“The Court: Get his name for the record.
“Q. (By Mr. Fritz) : Mr. Blessing?
“A. Mr. Blessing passed the store by himself several times and one time when I noticed him passing by himself, I went to the iront of the store to see what he was doing. He stopped two doors away and was looking up and down the street for several minutes. Then, when he noticed me looking at him he started walking the other way.”
He testified further that the men asked to see a 3 or 3-1/2 carat diamond, because the man in priest’s garb was to officiate the next day at defendant Blessing’s marriage ceremony; and that both men seemingly were ignorant as to diamond styles, settings, and price ranges. The manager asked them to leave and return later in the day. Officer McNamara, at the trial, but not at the examination proceedings, testified as to his conversation with the manager:
“He stated that he had saw them in front of the store for quite a period of time prior to their entering the store and that they had came in and they wanted to see a large ring and after some conversation they made an appointment, X believe, to come back around 4:30 and he said that after this conversation that they had stayed in the store and he had beeome suspicious of their habit.”
See In re Winkle (1964), 372 Mich 292, certiorari denied 379 US 645 (85 S Ct 611, 13 L ed 2d 551).
See, currently, Const of 1963, art 1, § 11.