Newberry v. Carpenter

Grant, J.

The facts in this case are 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.

Upon the hearing of this motion the prosecutor filed an affidavit, from which it appears that, after the police department took possession of the debris, an arrangement was made between him and Mr. Thompson, through his attorney, and the relator, that certain persons (expert -engineers) should, on behalf of the respective parties, have free access to the engines, boilers, machines, and the premises, for the purposes of examination. The learned prosecutor further states in his affidavit that this property is essential to be used as exhibits upon the trial of Mr. Thompson, as well as for the further investigation into the causes of the disaster by the grand jury, and claims the right of the prosecution to hold them until all criminal cases connected with the disaster are tried. It thus appears that the prosecution had the entire control and charge of this property for a period of 10 days prior to the making of this order, and have had ample opportunity for an examination thereof by the officers and experts to determine the cause of the disaster, so far as it can be determined from these articles. 1

The importance of this case to the relator is apparent from the statement of her counsel in their brief that she is threatened with civil ' suits for damages upon the ground that she was guilty of negligence. Not only, therefore, is she by this order deprived of her private property, which she may desire to use in her business, but may be deprived of the evidence which may establish her innocence of any fault. She is charged with no crime. .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. he 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; Ex parte Hurn, 92 Ala. 102; Woolfolk v. State, 81 Ga. 551; Spalding v. Preston, 21 Vt. 9; O’Connor v. Bucklin, 59 N. H. 589. 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 offense with which the defendant is charged.” The citation from Bishop goes no further. In Ex parte Hurn, money was taken from the possession of the prisoner, and delivered to the sheriff, who was afterwards served with a writ of garnishment at the suit of an attaching creditor of the prisoner. The sheriff paid the money into court, and asked instructions as to what he should do with it, while the prisoner asked an order for its restoration to himself. It was held that the case could not be reviewed upon mandamus. Many cases are cited and reviewed in that decision, none of which sustain the present case. That court quotes with approval the case of Boyd v. U. S., hereinafter referred to. The conclusion of the court in that case is that “it is the duty of an officer, having no other authority than the right to make the arrest, to search the party arrested, and seize and remove from him any dangerous weapon found on his person.” That authority is confined by the decision to the seizuré of articles found upon the person, and connected with the offense. In Woolfolk v. State, the respondent was charged with murder. During the progress of the inquest he was required to remove his clothing, and while so doing he made statements which were introduced upon the trial. It was objected that the circumstances surrounding the defendant amounted to force and compulsion, but the testimony was held proper. In deciding that case the court discusses the right of seizure, and speaks only of seizure from the person. In Spalding v. Preston, a large number of pieces of German silver, of the precise size and thickness of Mexican dollars, and made in that form for the purpose of being stamped and milled into counterfeit coin of that description, were taken by a sheriff from the person who was carrying them at the time to a place of manufacture, for the purpose of having them finished, so that he could put them in circulation as genuine coin, and were detained by the sheriff to be used as evidence against the person from whom they were taken, and also for the purpose of preventing their circulation. These were material to be used in counterfeiting. It was held that “the owner of them, in the absence of evidence that they were put in that form, without his hnowledge or against his consent, could not sustain trover against the sheriff therefor.” O’Connor v. Bucklin is another case of taking property found upon the person of the party accused.

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.

In the case of Boyd v. U. S., 116 U. S. 616, Mr. Justice Bradley, in delivering the opinion of the court, quotes with approval the language of Lord Camden in Entick v. Carrington, 19 Howell, St. Tr. 1029:

“No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass, and even treading upon the soil. If he admits the fact, he is bound to show, by way of justification, that some positive law has empowered or excused him. The justification is submitted to1 the judges, who are to look into the books, and see if such a justification can be maintained by the text of the statute law, or by the principles of the common law. If no such excuse can be -found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.”

The right of search and seizure is very fully and ably discussed in the Boyd case, at page 622 et seq.

In Hibbard v. People, 4 Mich. 125, an act to authorize the issue of a warrant to seize liquor, and,retain it to abide the order of the court, to be used in evidence upon a trial, was held to be unconstitutional. This decision was approved in Robison v. Miner, 68 Mich. 557.

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 pretenses; (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. No intimation is found in any statute of this State, or in any decision of this court, that a prosecutor may cause to be' seized the property of third parties, the possession, ownership, and use of which are not prohibited by law, and which are useful and required in the legitimate prosecution of their businesses, and their private inclosures to be entered for that purpose. Such seizures are unwarranted, unreasonable, and prohibited by the Constitution of the United States and of this State. Important as is the proper administration of the criminal law, the power to administer must be exercised with due regard to the constitutional rights of the citizen, among which is the right to the possession and control of his lawful property. 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.

See, also, Cooley, Const. Dim. (6th Ed.) 364-370; 2 Hare, Const. Law, 830; Potter v. Beal, 49 Fed. 793.

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.

1 See Com. v. Mudgett, alias Holmes, 4 Pa. Dist. R. 739, 174 Pa. St. 211.