Defendant, on January 26, 1956, was jury-convicted of robbery armed. 1 By leave granted, defendant is here on appeal from an order denying Ms motion for leave to file a delayed motion for new trial and other relief.
Defendant argues 2 points: first, that the fruit of an illegal search and seizure (automatic pistol) was erroneously admitted into evidence although no motion to suppress ivas made before trial; and, second, that the testimony of an accomplice ivho confessed during a period of alleged illegal detention should have been excluded at defendant’s trial. The brief amicus, in general support of defendant’s first contention, phrases the question in this manner: “Was it proper for the trial court, on the ground that a motion to suppress had not been filed prior to the trial, to allow the introduction of a gun into evidence over defense counsel’s objection that it had been illegally seized, where defendant had been unrepresented by counsel at the examination in which the gun was not offered in evidence?” By way of reply, the prosecuting attorney rejects the arguments of defendant and of the amicus curiae, adding that the search and seizure was not illegal.
The first question is whether the court in defendant’s 1956 trial should have granted defendant’s motion to suppress, under the circumstances. Two men, one armed with a pistol, robbed a saloon employee of money sometime after midnight on the morning of September 26, 1955, in the city of Flint. Two suspects, one of whom was defendant, were arrested in the apartment of a third person about 8 a.m. that same morning.
An officer testified that he was admitted to the apartment by the third party who was a tenant from whom permission to search was obtained, there *93 being no warrant. A .38 caliber Colt automatic pistol was found in the apartment during the search. Witnesses testified that defendant wielded the pistol during the robbery. The pistol was not introduced at the preliminary examination in municipal court, although defendant was identified as the gun-wielding robber. Defendant was not represented by counsel at the examination. After the binding over to circuit court, the prosecuting attorney filed an information describing the weapon as “a .38 caliber Colt automatic pistol, serial No. 36144.” Defense counsel was appointed in circuit court on December 15, 1955, and the case was tried January 26, 1956. At trial, defense counsel made the following motion when the prosecutor offered the pistol into evidence:
“I object to this being offered into evidence. There has been no showing of a search warrant,— or it was admittedly taken from the home of the defendant without a search warrant. I object.”
The trial judge treated it as a motion to suppress on account of an alleged illegal search and seizure. He denied the motion, ruling that defendant’s failure to move in advance of trial served as a waiver. As to the illegal search and seizure question, we limit review to the question of whether, under the circumstances, the trial court should have entertained defendant’s motion to suppress first made during trial of the case.
It is said in
People
v.
Heibel,
“The rule is well established that the illegality of seizure of evidence, where such illegality is known before trial, must first be raised by a motion to suppress the evidence, timely made. The legality or illegality of the search and seizure is a collateral matter and the court will not turn aside from the *94 trial of the case to consider such a collateral matter.”
It has been held, however, in
People
v.
Bass,
Although the discretionary feature of the rule came into being on application of a court rule, it is consonant with the general application of the law and is expressly adopted as such. In restatement, the rule is as quoted above from People v. Heibel, supra, to which may be added: “except under special circumstances the trial court may, within its sound discretion, entertain at trial a motion to suppress.” We dare not attempt to define “special circumstances” for by inclusion in the definition we may be construed as excluding other valid circumstances. However, we cite this situation as an example: where facts constituting the illegality are not known before trial, it is consonant with the general rule for the trial judge to exercise his discretion and turn aside from the trial of the case and consider such a motion. This does not mean that defendant must have had an awareness of the law, but that he had knowledge of factual circumstances constituting the illegal seizure. See Isaacs v. United States (CA 10, 1960), 283 F2d 587, for application of similar principle under Rule 41(e) of the Federal rules of criminal procedure. 2 In such a situation, if the fac *95 tual circumstances are known to defendant in advance of trial, he is responsible for communicating them to his lawyer immediately and his lawyer, in turn, is responsible for making a proper motion in advance of trial. People v. Bass, supra. If, however, factual circumstances are not known sufficiently in advance of trial to permit such a motion then the trial court may exercise its discretion and consider the motion at trial.
In the instant case, we do not find that the trial court abused its discretion by refusing defense counsel’s motion to suppress under the circumstances before him at the trial. There was no claim either then or now that defendant did not know of the factual circumstances surrounding the alleged illegal seizure. In truth, all facts seem to point to the conclusion that defendant was indeed aware. The warrant accused defendant of being armed with “a gun” at the time of robbery. At the preliminary examination, he was identified as the gun wielder; in circuit court, the information not only made the same accusation but specifically identified the weapon by manufacture, model, and serial number. At the very least, we may say that defendant must have been keenly aware by the time of his arraignment in circuit court that he was accused of being armed with a weapon which had been completely and minutely identified. Having been so accused and the alleged weapon so identified and directly tied to defendant, the suggestion is very strong that he knew how the police secured the weapon.
3
All of this
*96
would go to the question only of whether factual circumstances surrounding the alleged illegal seizure were known to defendant prior to trial. As to this point, of course, we return to the crucial factor that neither defendant nor his counsel asserted at trial that defendant had no knowledge of the factual circumstances. The burden of asserting and proving was upon the motioner.
People
v. Robinson,
Defendant’s second argument is that the confession of his accomplice, Dolphus Miller, was obtained as a direct result of illegal detention and that such confession should not have been admitted into evidence at defendant’s trial. Defendant says the rule in
People
v. Hamilton,
In the Hamilton Case, where a defendant was not arraigned without unnecessary delay, according to a relevant statute, his detention was unlawful, and *97 where such illegal detention was continued for the purpose of extracting a confession, and where during such detention defendant was denied even limited conference with his counsel, a confession obtained during such detention was thereby rendered involuntary, hence, inadmissible at defendant’s trial. It is unnecessary to discuss extending the rule in Hamilton to confessional testimony of an accomplice, because nothing appears of record to show that Miller was illegally detained or, if so, that it was for the purpose of extracting a confession. We need go no further, inferring nothing as to the merits of the question.
Affirmed.
Notes
See CL 1948, § 750.529 (Stat Ann 1954 Rev § 28.797).
That Rule 41(e) is a restatement of existing Federal law and *95 practice, with certain minor exceptions, see Notes of Advisory Committee on Rules, Rule 41(e), Federal rules of criminal procedure, 18 USCA, and cases cited thereunder.
Corroboration of a kind is found in the affidavit of one Russell Haines, tenant in the searched apartment in 1955. His affidavit, made November 28, 1961, was filed in support of defendant's present motion. Deponent says the police “began searching the apartment” while Ferguson (defendant) “was getting dressed.”