*1 Kеnnedy. Kennedy v. opinion Mr. with the Justice In accordance views, I would affirm. Voelker, not sit. did J., Smith,
PEOPLE WINKLE. Nonjury Weapons. Criminal Law — Case —Concealed prejudiced nonjury Defendant motorist against reason admission in prosecution him in n carrying weapоns possession concealed and for burglar permissible tools of articles not mentioned as amendment of Constitution, search and seizure clause of State where some articles were found in his car that men' admissible, being tioned therein place search took dwelling outside the aof house and ear had been highway (Const 1908, on 2, for traffic violation art 10, 1948, 750.116). as last in 1952; amended CL § Appeal B.), (Rex Lenawee; Martin J. Sub- (Docket mitted 1959. October No. Calendar . 47,895.) January No. Decided 4, 1960 George carrying H. Winkle was convicted of a con- weapon possession burglar cealed tools. Affirmed. Attorney Adams,
Paul L. General, Samuel J. Tor- una, General, Solicitor and Kenneth B. Jr., Glaser, Prosecuting Attorney, people. for the Durst,
Baker £ for defendant. References for Points in Headnotes Jur,
. 47 Am Searches and Seizures 18. Appellant guilty was found J. Voelkbr, single following.his information trial below .under carrying containing charging the crime of counts weapon possession and the crime of concealed *2 burglar tools. Trial was had before the circuit jury offending judge, a been waived. The all of were into evidence articles, which admitted by seized 2 trial, and State .discovered by following officers a search made of .them by stopped along a car after he was driven Winkle by highway for a traffic violation just which which the to officers-had observed and pleaded guilty. present subsequently timely suppress' all case the. moved tó defendant by motion "evidence obtained overruled, admitted, all the articles and Upon granted, , the de- convictions resulted. leave propositions: appealed urging here, 3 fendant has that that in actually officers; was never arrested he any arrest the traffic offense event an light) through (driving not warrant a red did in the car admission evidence-in search of present and obtained; and, case of the articles Michigan finally, 2, 10, of Consti- article (1908),-as again 1952, in 1936 amended tution repugnant agаinst to the and is Constitution offends States. of the United Constitution
Article (1908), amended, as last reads as follows: possessions papers person, houses, “The every person searches from be. secure unreasonable shall any No seizures. warrant things any person place shall issue to seize or or probable describing them, nor without supported by Provided, oath or affirmation: cause, provisions shall section however, That ' any court bar not' construed proceed- jurisdiсtion, or in criminal criminal 553 v. Winkle. ing any magistrate justice held or peace, any drug drugs, any narcotic firearm, pistol, pistol, gun, revolver, rifle, bomb, billy, automatic machine explosive, blackjack, slungshot, shell, bomb gas-ejecting any by any knuckles, deviсe, metallic dangerous weapon things, seized peace any dtvelling outside the officer (Matter house this State.” added tbe amend- italicized.) ments is complained of the car
The search which is of here up quantity turned a loadеd .38 revolver, calibre nitroglycerin, cutting certain wood and metal implements, burning pry an drill, electric pair 10-inch bars, cutters, wire 7 assorted chisels, picks, keys, large lock 3 sledge an assortment skeleton gas supply generous
hammer, masks, сaps, profes- of detonator besides numerous other adjuncts complete sional and accessories of the bur- *3 glar. All articles were admitted in evidence objection. over It should be added that none of they these artiсles could be seen the when officers car the Winkle for noted traffic offense any knowledge nor had the officers information or any felony being, that had was or was been, about it to be committed. So far as be relevant to a dеcision in this main reason for the of- appears making been ficers the search to have unsatisfactory conflicting answers response passenger gave officers in fellow questions put by they to them who about they they were, where and whither were from, bound. in the
The revolver was described set forth charged information, first count of the weapon; nitroglycerin carrying concealed caps all the and detonator as well as other articles (except rеvolver) above set forth and were described information, in the included second count of the Michigan Reports. which, possession charged in usual form count burglar tools. Mich Gonzales, 356 Court unanimously (except
recently Mr. Justice held sit) that thе noted amend who did Kavanagh, did not offend United ment to our Constitution any It its amendments. Constitution States to our that the amendment observed will further be words “revolv includes both Constitution State er” and “explosive” among the articles there “burglar tool” that the note We also enumerated. statute §28.311]) (CL [Stat §750.116 Ann “nitroglycerine, other ex specifically includes plosive.” appears it that in decision Gonzales our
Since determined it has been once amend- of the occurred, in the words sеizure has dwelling any house ment, “outside deter- it further been and once has in this State” offered evi- seized and the articles mined among proceeding those are in a criminal dence (both of which in that enumerated so here) the arrest аnd circumstances then the prickly frequently seizure, or question search and seizure or not the of whether totally appear ir- to become “unreasonable,” any phase As Mr. criminal case. relevant 264): (p tersely in Gonzales wrotе Justice Smith * * * amendment] [the we conclude “When the United repugnant Constitution disposed before us.” the case States, we circumstances there are is whether The brought properly *4 the records us case, it broad rule take without the briefs, аnd Gonzales. none. think there are We n police go dance in the prosecutors and Before warning-is-in The order. two a word streets,- v. Winkle. persists still nevertheless whether there possible are no situations similar cir- legality might cumstances whеre the of the search become relevant or even crucial. We think there very suggests be and that this case it does present some of them. We have here situ- part ation it where on the face of of the results of appеar regardless admissible of the valid- ity (the nitroglycerin of the search det- caps), they onator since are embraced within both “burglar the amendment and tool” statute, again in the same case a situation the ad- where missibility part of anоther results of the same (the “burglar search seized) bulk tool” articles here depends upon
in turn reasonableness judge the search. The admitted all of them, evidently theory on the that the search un- good, If reasonable. the search wаs then all the admissible, articles were and his decision was cor- rect, amendment or no amendment. Had he been wrong, especially however, and had there also been jury might trial in this not the defendant arguably prejudiced by at least havе been the erro- many neous admission of so articles of such a patent “burglar along character, toolish” with the 1 admissible articles virtue of regardless illegality especially happen if it should latter 1 or might 2 articles if admitted and cоnsidered alone susceptible arguably least be of innocent work- aday rights uses? And aside from the of a defend- might people gratuitously ant, not in- jecting proof given (legality in a case a matter search) they otherwise need not have they charge had raised instead confined only clearly offer to those articles em- braced the amendment? And not a should careful prosecutor propriety fair also consider *5 358 danger joining-
possible in these circumstances оf separate single information, here, in a as was done anticipate offenses which ultimate the introduction part into of to of articles, seized clearly (such applies the amendment as the lone count) weapon rеvolver in the concealed and, as to charge “burglar part the count, the tool” within of the seized articles are embraced the amend- part Might people ment and possibly less not? the find themselves a situation of neverthe- validity to maintain the of the though (or most) even even some seized amend- scope clearly within the the articles were of possible prickly ques- ment? These are of some suggested general situation this tions case. Despite get foregoing, going we are not to into of the reasonableness the search in questions case. None of these was raised or this assuming argued Even hinted at here below. might arguendo certainly bad, that the here have been some these articles would never- amendment, re- under the theless been admissible gardless very perhaps, At that fact. most, delayed. particular might In the have been considering the na- circumstances clearly would have been articles that ture admissible we are not alone, offered under the judge, going that the circuit to assume unduly swayed, jury, sitting or unduly prejudiced pos- defendant was (which pass we do erroneous admission sible on) along with other articles additional certain regardless pos- that were admissible articles illegality the above search. We raise sible ap- questions than for the future more for finally plicability not undertake this case. We do that a word them. We assume to answer concerned those most sufficient, wisе Winkle. implications foregoing ponder duly will remarks. note that 1 final observation. We remains
There the search and who made the State *6 candidly trial that admitted at the below, testified the hour this one here, at kind made searches a.m.), (around with their “routine” made was stopped legally fоr a in a department, a car is once second time This offense. minor traffic questioned of this kind searches that few months have come other. We was the us. Gonzales noted amendment either the that do not understand or our decision рolice authorizes Gonzales inquisitors make in- or to motorized to become discriminate searches following persons cars being of- legally for minor traffic their fenses. policy If the settled this is indeed suggest police it forthwith we others, Stаte practice cease. reviewed and affirmed. below are The convictions JJ., and with Kelly, Smith, Black, concurred J. Voelker, (concurring result). I J. concur with Edwards, It that at result. is obvious Justice Voelker’s of the automobile in time of the seаrch this case, and the trial of this officerswere People upon relying Davis, 247 Mich v. as au- thorizing contemporaneous of the automobile arrest. little result, with traffic As a effort was justification offer made in court to felony probable cause to believe in terms being committed. People Gonzales, 247, 256, 356 Mich v. we
recently But overruled Davis. as Mr. points out, also stands Gonzales Justice Voelker (under the 1936 in evidence for admission authority Const article Mich 10,§ 1952 amendments dyna- [1908]) revоlver, dynamite, in the trunk de- which were found mite caps items evidence With these car. fendant’s ample exhibits, record offers I agree the convictions. to sustain error. no prejudicial there was Kavanagh, JJ., J., Carr, C. Dethmers, Edwards, J. with concurred v. SPECKER. LаBLUE *7 Pleading. Appeal to Dismiss — and Error —Motion 1. must- plaintiff’s well-pleaded amended declaration All faets granting appeal on an true order considered to dismiss. defendants’ motion Words and Phrases —Child—Person. 2. (even mere, child, regarded person. as a en ventre sa A a child Injury Loss. Children —Action Infants —Posthumous 3. living at the death are considered as Posthumous children injury or while parents for an loss sustained sue sa mere. en ventre [1] [2] [3] [4] [9,10] [11] [12] [5] [8] [6, Nonstatutory ALR 1069. 16 Am 27 41 Am Am 16 Am 30 Am 30 Am 27 Am Am Am Am Jur, Jur, Jur, Jur, Jur, Death Jur, Intoxicating Liquors Jur, Jur, Intoxicating Jur, References Jur, Infants Death Infants Pleading Intoxicating Liquors duty Infants Infants § of father § § 3.§ 95. 330. § 3; § for Points 238 § 3. 7 Am 3. Liquors et seq. Jur, support § Bastards 526. in Headnotes 525. 549. illegitimate § 69. child.