We are asked herein to render an advisory opinion upon the question of whether or not article 2, § 10 of the Michigan Constitution (1908), as amended (1952), is repugnant to the Federal Constitution. There is no constitutional authority for this Court to render advisory opinions; nor does this case requirе our answer to the question posed.
The amendment under attack is as follows:
“The person, houses, papers, and possessiоns 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 *574 without describing them, nor without probable cause, supported by oath or affirmation: .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, automаtic pistol, machine gun, bomb, bomb shell, explosive, blackjack, slwigshot, billy, metallic knuckles, gas-еjecting device, or any other dangerous weapon or thing, seised by any peace officer outside the curtilage of any dwelling house in this State.”
The record which comes bеfore us advises us that a circuit judge held the provision quoted above to be violative оf amendments 4 and 14 of the United . States Constitution. The prosecuting attorney upon .leave granted by this Court seeks reversal.
We are advised by this record that appellee Gonzales is a defendant charged with carrying a concealed weapon and that the motiоn the circuit judge had before him and granted was a motion to suppress evidence — namely a gun. More, we do not know.
The basic Federal constitutional provision relied upon .by thе circuit judge is, the fourth amendment:
“The right of the people to be secure in their per.sons, papers, and effects, against unreasonable searches and seizures, shall not bе violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the pеrsons or things to be seized.”
In recent years this amendment has been held to have a limited applicability to the States as a part of the “The concept of ordered liberty” through the effect of the due process clause of the 14th amendment.
Wolf
v.
Colorado
(1949),
The 4th amendment to the United States Constitution and article 2, § 10 of the Michigan Constitution (1908), however, ban only “unreasonable” searches and seizures. In many instances searches аnd seizures without warrants for arrest or search have been upheld where the arresting officer was held to have probable cause to believe a felony was being committed
Carroll v. United States
(1925),
We-do not know from our current record, (1) where Gonzales was arrested or what he was doing at the time, (2). whether he. was inside or outside the curtilage of his dwelling, (3) where the gun was found, (4) whether thеre was a warrant for arrest or search, and, if not, (5) what if any cause the arresting or searching officer had.
We note that at one point the prosecuting attorney sought to go into some of these questions and that the judge stopped him:
Mr. Joseph: “The amendment concerns the introduction of guns and narcotics. At this time the people would like to present before the court the question of whether or not this factual situation comes within that amendment to article 2, § 10.
*576 “The Court: That is not what we were back here for. We wanted it squarely upon the question of the constitutionality, so we can get a decision from the Supreme Court.”
We believe the triаl judge should have taken testimony on the motion to suppress the evidence, ;and made a prior determination as to whether the arrest and seizure were reasonable or unreasonable. We cannot assume that the seizure was unreasonable in the total absеnce of proofs. There being no facts upon which' a finding of unreasonable search and seizure could be based the proviso of article 2, § 10 of the Michigan Constitution (1908) plainly has no applicability to the case before us.
The motion to suppress evidencе should not have been granted on this record. This case is remanded to the trial court to take such testimony as is needed to establish the reasonableness or unreasonableness of the search and seizure concerned. No costs, a public question being involved.