Defendant was charged with and convicted of having had unlawfully in his possеssion one half pint of whisky, and he has appealed. Defendant by motion timely made sought return of the whisky as having been unlawfully obtained аnd was refused. He was not charged with the possession of other intоxicating liquor. Due objection to the use of the whisky in evidence was made.
Police officers, in plain clothes as we infer, visited а near beer saloon of one Decker in Detroit. They had no warrant for arrest or for search. One officer entered the saloon, the others remaining without, and said to Decker “I want a shot.” Decker beckoned to defendant and said, “John, go and get sоme stuff.” Defendant left the saloon, went by a side stairway to the living rooms upstairs. The officers took charge of Decker to prеvent his making outcry and one officer followed defendant and mеt him returning at the foot of the stairway. It was dark. Nothing was said to defendant. Officer Sharp testified:
*425 “When he came down I grabbed him around the аrms like that (indicating), tussled around, rolled on the floor, and the bottle fell out of his pocket. * * * I kind of wrestled him through the door and threw him to the flоor, and when I got up my partner had the bottle. That was in the saloon:”
Another officer testified:
“I heard some one coming in through the door. In rolled Margelis and Mr. Sharp, and just as they fell, this bottle fell out of Mr. Margelis’ pocket therе, spilled on the — a part of it spilled on the floor, so— I saw the bottle roll from his pocket.”
The officers then searched the premises, including the living rooms of Decker, and in such rooms found a jug of intoxicating liquor, with the unlawful possession of which Decker was chargеd and .arrested, but later released, because of the unlawful search and seizure of the jug of liquor.
Counsel for the peoplе say that there were sufficient reasons of belief to justify an arrest of defendant Margelis without warrant for felony, that what has been related constituted a lawful arrest, and that it was lawful to take from his рerson the bottle of whisky after his arrest. The infirmity of this is the assuming a lawful arrest. Defendant, when seized by the officer, was not advised that he was under arrest. There was neither a present intention to arrest nor submissiоn to arrest. The treatment he received was for the sole purpose, the record shows, of securing for the purpose of evidence the whisky supposed to be on his person. It was not аn arrest. 5 C. J. pp. 385-387. It was error to receive in evidence the whisky so obtained. Art. 2, § 10, State Constitution; People v. Halveksz,
“And this broad protection against unlawful search and seizure applies with equal force to the person, and, subject to the exception that an arresting officer has the right to search the person of a prisoner lawfully arrеsted, and take from his person and hold for the disposition of the court any property connected with the offense for which hе is arrested that may be used as evidence against him, or any weаpon or thing that might enable the prisoner to escape or do some act of violence, it is as great a violation of the constitution for an officer to search a person, or baggage carried about by him, without a warrant authorizing it, as it is to search his premises.”
See, also, 13 A. L. R. 1303, 1316; Hubbard v. Garner,
Reversed. Defendant discharged.