holding that “the fact of a lawful arrest does not, in our view, automatically render constitutional any contemporaneous search and seizure”
How later courts described this case
- holding that “the fact of a lawful arrest does not, in our view, automatically render constitutional any contemporaneous search and seizure”
- driving at night with only one headlight; concealable weapon found stuck in front seat.
- contraband weapon in open view
Written by the judges who cited it.
The opinion
*264 Smith, J.
(concurring). When we conclude that article 2, § 10, of the Michigan Constitution (1908), as amended in 1952, is not repugnant to the Constitution of the United States, we have disposed of the case before us.
With this holding, my concurrence ends. The balance of what is written concerns the concept of liberty under our constitutional guarantees. More specifically, whether the search of an automobile after the' arrest of the driver for a minor offense against the traffic laws violates our basic freedoms.
The Constitution does not define liberty, nor do we. In an absolute sense it does not exist. A myriad of commands we follow daily. But not every intrusion upon our person or property is an encroachment so gross that the spirit becomes hostage to the act and we are no longer free. .Much will depend upon the circumstances attendant. The car search itself, in the vicinity of a prison break, may be more an act of mercy than an act of oppression. The concept of freedom, then, has no fixed content. Always there is the problem of balance. The freedom of one man necessarily involves the correlative restraint of his brother. Specifically, and with reference to the criminal law, we are sensitive to the constitutional rights of alleged or convicted criminals. (See dissent, People v. Moore, 344 Mich 137 , reversed, Moore v. Michigan, 355 US 155 [ 78 S Ct 191 , 2 L ed2d 167].) But equally sensitive are we-to .the demands of our people that they be as secure as may be from violence and pillage. All too often, as we know judicially, the automobile is handmaiden to the assassin. Learned Hand put the problem we will some day reach in these words: *
“The protection of the individual from oppression and- abuse-.by the 'police and-other enforcing officers *265 is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.”
The day for that problem, however, is not this day. The case before us is governed by a specific and valid constitutional enactment. The issue presented is whether or not certain evidence should be suppressed. Whether the search is reasonable or unreasonable is, under our Constitution, upon these facts, immaterial. Having thus necessarily ruled that the evidence should not be suppressed, our judicial function is exhausted.
Por the present, then, I have no more to say respecting search and seizure upon a public highway than will be found herein and in my dissenting opinion in People v. Robinson, 344 Mich 353 .
Subject to the above, I concur in reversal and remand.
Black and Voelker, JJ., concurred with Smith, J.
Kavanagh, J., did not sit.
In re Fried (CCA), 161 P2d 453, 465 (1 ALR2d 996).