443 Mich. 744 (1993) 506 N.W.2d 209

SITZ
v.
DEPARTMENT OF STATE POLICE

Docket No. 93851, (Calendar No. 5).

Supreme Court of Michigan.

Argued March 2, 1993. Decided September 14, 1993.

Mark Granzotto, Deborah L. Gordon, and William Gage, for the plaintiffs.

*746 Frank J. Kelley, Attorney General, and Thomas L. Casey, Solicitor General, for the defendants.

Amici Curiae:

Rizik & Rizik, P.C. (by Michael B. Rizik, Jr.), for MADD Michigan.

John R. Minock for Criminal Defense Attorneys of Michigan.

Pepper, Hamilton & Scheetz (by Abraham Singer), and Robert Teir, General Counsel, for American Alliance for Rights and Responsibilities.

Varnum, Riddering, Schmidt & Howlett (by Joseph J. Vogan), and Michele McDowell Fields and Stephen L. Oesch, for the Insurance Institute for Highway Safety, the Alliance of American Insurers, Allstate Insurance Company, the American Insurance Association, Amica Mutual Insurance Company, Farmers Insurance Group of Companies, Liberty Mutual Group, Lumbermens Mutual Casualty Company, National Association of Independent Insurers, Nationwide Mutual Insurance Company, Progressive Casualty Insurance Company, Prudential Property and Casualty Insurance Company, Royal Insurance, State Farm Mutual Automobile Insurance Company, the Travelers Indemnity Company, and United Services Automobile Association.

BOYLE, J.

The case before us concerns a challenge to the use of sobriety checkpoints by the Michigan State Police. The United States Supreme Court held that the checkpoint scheme does not constitute a violation of the Fourth Amendment of the United States Constitution. Michigan Dep't of *747 State Police v Sitz, 496 US 444; 110 S Ct 2481; 110 L Ed 2d 412 (1990). On remand from that Court, a two-judge majority of the Michigan Court of Appeals determined that sobriety checkpoints violate art 1, § 11 of the Michigan Constitution. Because there is no support in the constitutional history of Michigan for the proposition that the police may engage in warrantless and suspicionless seizures of automobiles for the purpose of enforcing the criminal law, we hold that sobriety checklanes violate art 1, § 11 of the Michigan Constitution.

I

The following facts in this case are undisputed and are set forth in the Court of Appeals opinion, 170 Mich App 433, 435-437; 429 NW2d 180 (1988):

1982 PA 310 established the Michigan Drunk Driving Task Force in the Department of State Police, MCL 257.625j; MSA 9.2325(10). The Task Force was charged with reviewing all aspects of the drunk driving problem in the state. In September, 1985, the Task Force submitted its final report which set forth thirty-five recommendations for combating alcohol-related traffic accidents. One suggestion was the implementation of sobriety checkpoints on public highways. Due to legislative opposition, defendants did not attempt to implement sobriety checkpoints at that time.

In his State of the State Address on January 29, 1986, Governor Blanchard directed defendants to implement a sobriety checkpoint pilot program. In February, 1986, defendant Gerald L. Hough, Director of the Michigan Department of State Police, appointed a Sobriety Checkpoint Advisory Committee, composed of representatives of the State Police, local law enforcement officials, prosecuting attorneys, and the University of Michigan Transportation Research Institute. The committee drafted guidelines for the program. The guidelines *748 set forth procedures as to site selection, publicity, and operation of the checkpoint, including briefing, scheduling, safety considerations, motorist contact, staffing and assignment of duties.

Under the program, checkpoints would be established at certain sites along state highways. All motorists would be stopped upon reaching a checkpoint and would be examined for signs of intoxication. Should the examining officer find indications of intoxication, the officer would direct the driver to an out-of-traffic location, check the driver's license and car registration, and possibly conduct further sobriety tests, including a Breathalyzer test. If the officer concluded that the driver was intoxicated, the officer would have discretion to arrest the driver; should the officer conclude the driver was not intoxicated, the driver was to be released.

The first sobriety checkpoint operation was conducted at Dixie Highway and Gretchen Road in Saginaw County on May 17 and 18, 1986. The Saginaw County Sheriff's Department cooperated in the operation which lasted from about 11:45 P.M. to 1:00 A.M. One hundred twenty-six vehicles passed though the checkpoint in that time, with an average delay to motorists of twenty-five seconds or less. Two drivers were retained for sobriety field tests; one was arrested for driving while under the influence of alcohol. A third driver drove through the checkpoint without stopping, was pulled over by an officer in an observation vehicle, and was arrested for driving under the influence.

This action was commenced on May 16, 1986, with the filing of plaintiffs' complaint for a declaratory judgment and injunctive relief. Plaintiffs are licensed drivers of the State of Michigan who regularly travel throughout the state in their automobiles. During the course of the initial proceedings, defendants agreed to delay implementation of the sobriety checkpoint program pending resolution of the case.

Trial took place from May 29, 1986, through *749 June 3, 1986. In its opinion dated June 24, 1986, the trial court found that, although there was statutory authority for the operation of the sobriety checkpoints, the plan violated the Fourth Amendment to the United States Constitution and art 1, § 11 of the Michigan Constitution.

On August 1, 1988, the Court of Appeals unanimously affirmed the trial court's ruling that the sobriety checkpoints violated the Fourth Amendment, finding it unnecessary to decide if the state constitution offered greater protection.

Following a denial of leave to appeal to this Court, 432 Mich 872 (1989), the defendants appealed to the United States Supreme Court, which granted certiorari. The United States Supreme Court reversed the decision of the Court of Appeals, finding that the Michigan sobriety checkpoint program did not violate the Fourth Amendment of the United States Constitution.^[1]

On remand, the Court of Appeals held that "the indiscriminate suspicionless stopping of motor vehicles in the form of roving roadblocks violat[es] art 1, § 11 of the Michigan Constitution." 193 Mich App 690, 699; 485 NW2d 135 (1992). This Court granted leave to appeal, 441 Mich 869 (1992).

II

At the outset, we note, as did the United States *750 Supreme Court, that this case involves a facial challenge to the constitutionality of the checkpoint program:

It is important to recognize what our inquiry is not about. No allegations are before us of unreasonable treatment of any person after an actual detention at a particular checkpoint. See [United States v Martinez-Fuerte, 428 US 543, 559; 96 S Ct 3074; 49 L Ed 2d 1116 (1976)] ("claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review"). As pursued in the lower courts, the instant action challenges only the use of sobriety checkpoints generally. We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard. [Sitz, 496 US 450-451. Emphasis in the original.]

Because the United States Supreme Court established that Michigan's sobriety checkpoints do not violate the Fourth Amendment of the United States Constitution, the specific question presented in this case is whether sobriety checkpoints are unreasonable under art 1, § 11 of the Michigan Constitution. Before addressing this issue, we must first address the more fundamental question, how we interpret the Michigan Constitution.

A

During the decade of United States Supreme Court jurisprudence "commonly characterized as the `criminal law revolution of the Warren Court,'" the Supreme Court "rapidly extend[ed] the reach of various constitutional provisions applicable *751 to the criminal justice process...." 1 LaFave & Israel, Criminal Procedure, § 2.1, p 56 and n 1. Subsequent decisions of the Burger Court were characterized by some commentators as pulling back from, suspending, or weakening the scope of constitutional protections, including the specific guarantees of the Bill of Rights. In 1977, Justice William J. Brennan, the "patron saint of the revival of interest in state constitutional law,"^[2] commented on the "trend" in a landmark article, urging state activism in interpretation of state law:

[T]he very premise of the cases that foreclose federal remedies constitutes a clear call to state courts to step into the breach. With the federal locus of our double protections weakened, our liberties cannot survive if the states betray the trust the Court has put in them. And if the trust is, for the Court, strong enough to override the risk that some states may not live up to it, how much more strongly should we trust state courts whose manifest purpose is to expand constitutional protections. With federal scrutiny diminished, state courts must respond by increasing their own. [Brennan, State constitutions and the protection of individual rights, 90 Harv L R 489, 503 (1977).]

The movement Justice Brennan heralded and strengthened with his article came to be called "New Federalism." One commentator has noted:

Today's New Federalism movement has its roots in two phenomena. The first is the liberal reaction in the mid-1970s to the jurisprudence of the Burger Court. As the Burger Court slowed the expansion of constitutionally protected individual rights begun by the Warren Court, many liberals *752 began to look to state courts to take up the Warren Court's legacy in the form of rights-protective state constitutional rulings. The second phenomenon is a much older and sparser tradition of criticizing state courts for ignoring state constitutions as a source of law and for failing to develop vigorous and independent bodies of state constitutional law irrespective of the character of the constitutional jurisprudence of the U.S. Supreme Court. [Gardner, The failed discourse of state constitutionalism, 90 Mich L R 761, 771 (1992).]

Awakened to the potential for a reappraisal of claims based on state constitutional grounds, members of the Michigan bar joined their colleagues across the country^[3] in pressing claims seeking interpretations of state law that provided more expansive criminal procedure protections than those recognized under federal law. By 1983, the number of rights-expansive claims based on state law had proliferated to the point that guidance from this Court was deemed both appropriate and necessary.

Thus, in People v Nash, 418 Mich 196; 341 NW2d 439 (1983), the Court conducted the first modern-day comprehensive survey of the circumstances surrounding the creation of Const 1963, art 1, § 11 to determine whether our constitution required a higher level of search and seizure protection than the Fourth Amendment of the United States Constitution. Our conclusion in Nash, that "[t]he history of Const 1963, art 1, § 11, and its plain import,... suggest that its further expansion ... should occur only when there is a compelling reason to do so," id. at 214, was intended to clarify for the bench and bar that claims that art 1, § 11 should be interpreted more expansively than the Fourth Amendment must rest on *753 more than a disagreement with the United States Supreme Court.

B

Our analysis in Nash began by noting that the federal and state constitutional provisions that forbid unreasonable searches and seizures are nearly identical.^[4] The primary difference, and the center of the debate surrounding the adoption of a search and seizure provision, was the anti-exclusionary-rule proviso first added to the Michigan Constitution of 1908, art 2, § 10, by amendment in 1936:

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 firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bomb shell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous *754 weapon or thing, seized by any peace officer outside the curtilage of any dwelling house in the state. [1935 Joint Resolution No 1, ratified November 3, 1936.][^[5]]

The convention focus on retention of the proviso was prompted by the decision of the United States Supreme Court in Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), applying the exclusionary rule to the states.^[6] The Nash Court discussed at length the legislative debate:

The focus of the Michigan Constitutional Convention of 1961 was on the effect of Mapp on the third sentence of Const 1908, art 2, § 10. The Committee on Declaration of Rights, Suffrage, and Elections proposed that the final sentence of Const 1908, art 2, § 10 be deleted in favor of the phrase "Evidence obtained in violation of this section shall not be used except as authorized by law." The committee reasoned that the broad holding of Mapp may have invalidated the final sentence of Const 1908, art 2, § 10. The merits of that sentence were also considered by the committee. The committee added the phrase "except as authorized by law" because:

"Should the definition of the federal limits imposed on the States with respect to the admissibility of evidence change in the future, the Michigan Legislature and the Michigan courts could incorporate, in statute and court decisions, those rules with respect to the admissibility of evidence which reflect the opinion of the Legislature and the Michigan courts as to what ought to constitute sound practice in this State, subject only to the *755 continuing recognition of the limits set by federal constitutional supremacy." Committee Proposals and Reports, Constitutional Convention 1961, Supporting Report, Committee Proposal No 15, pp 7, 10.

It therefore appears that the committee was attempting to allow for the possibility of a less stringent application of the exclusionary rule if allowed by federal law, rather than attempting to strengthen Michigan search and seizure protection.

The debates of the committee of the whole at the convention considered both the merits of, and the effect of Mapp on, Const 1908, art 2, § 10. See 1 Official Record, Constitutional Convention 1961, pp 464-484, 488-533, 674-688. The view that Mapp was limited to searches of dwellings and that a limitation on the exclusionary rule was proper on the merits carried the day. Attempts to unite Michigan and United States search and seizure law by adopting the exact language of the Fourth Amendment in the proposed Michigan Constitution were defeated. Instead, the anti-exclusionary-rule proviso of Const 1908, art 2, § 10 was amended back into the proposed constitution. 1 Official Record, Constitutional Convention 1961, pp 531-688. Ultimately, language substantially similar to that of Const 1908, art 2, § 10, as amended, was adopted by the convention and recommended to the people.

The convention's address to the people stated that proposed Const 1963, art 1, § 11 was "No change from Sec. 10, Article II, of the present constitution except for improvement in phraseology." 2 Official Record, Constitutional Convention 1961, p 3364. Indeed, the common understanding of the people upon reading the proposed constitutional provision could be nothing but the belief that the search and seizure provision of the new constitution represented no change. There had been no substantive alterations. There is no indication that in readopting the language of Const 1908, art 2, § 10 in Const 1963, art 1, § 11 the people of this state wished to place restrictions on law enforcement *756 activities greater than those required by the federal constitution. In fact, the contrary intent is expressed. [Id. at 211-213.]

The historical analysis found in Nash is unassailable. The creators of Const 1963, art 1, § 11 were forcefully asserting state sovereignty by reacting to the Mapp decision with the readoption of the limited anti-exclusionary-rule proviso. At the same time, they were reiterating the venerable standard of reasonableness for seizures and an exclusionary remedy that preceded the full federalization of the Fourth Amendment by forty-two years.^[7] On the basis of the historical reality surrounding the adoption of art 1, § 11, this Court concluded in words we repeat for their import on our present inquiry:

When the people of this state adopted the third sentence of Const 1963, art 1, § 11, they also adopted the first two. Those sentences, nearly identical to those contained in the Fourth Amendment, had been part of Michigan's Constitutions since 1835. See Const 1835, art 1, § 8; Const 1850, art 6, § 26. It was under those sentences that this Court created a body of state constitutional search and seizure law and adopted an exclusionary rule, all before either was subject to a federal floor. We cannot necessarily view the final sentence of Const 1963, art 1, § 11 as an interdiction against evolving concepts of reasonableness under the first two sentences. Though the people of the State of Michigan have corrected this Court when they have believed it to have gone too far, the historical general power of this Court to construe the constitutional provision relating to searches and seizures *757 has not been removed. The history of Const 1963, art 1, § 11, and its plain import, however, suggest that its further expansion, with the concomitant expansion of the exclusionary rule to enforce it,[^[8]] should occur only when there is a compelling reason to do so. [Id. at 214.]

This analysis has been applied consistently since Nash.^[9]

*758 C

Today we clarify that the compelling reason test must be interpreted in the context of our observation that the proviso should not be read as "an interdiction" of the first two clauses, under which this Court "created a body of state constitutional search and seizure law and adopted an exclusionary rule, all before either was subject to a federal floor." Nash, supra at 214. Thus, "compelling reason" should not be understood as establishing a conclusive presumption artificially linking state constitutional interpretation to federal law. As illustrated by the question presented today, a literal application of the term would force us to ignore the jurisprudential history of this Court in favor of the analysis of the United States Supreme Court announced in Sitz. Properly understood, the Nash rule compels neither the acceptance of federal *759 interpretation nor its rejection. In each instance, what is required of this Court is a searching examination to discover what law "the people have made." People v Harding, 53 Mich 481, 485; 19 NW 155 (1884).

The judiciary of this state is not free to simply engraft onto art 1, § 11 more "enlightened" rights than the framers intended. By the same token, we may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection.

III

The Constitution of 1963, art 1, § 11 does not confer a right upon Michigan citizens to exclude unreasonably seized weapons or narcotics discovered outside the curtilage of a dwelling house. As noted in Nash, supra at 212, "The view that Mapp was limited to searches of dwellings and that a limitation on the exclusionary rule was proper on the merits carried the day." It was not until after adoption of the proviso that it became clear that the Fourth Amendment of the United States Constitution does confer such a right.

Under the Supremacy Clause, the courts of this state are obliged to enforce the rights conferred by the United States Supreme Court even if the state constitution does not provide such rights.^[10] Thus, in People v Pennington, 383 Mich 611, 620; 178 *760 NW2d 471 (1970), the Court recognized that "the anti-exclusionary provision of Article 1, § 11, Michigan Constitution of 1963, cannot, under Federal decisions, stand against the Fourth and Fourteenth Amendments to the United States Constitution and the decision in Mapp."^[11] However, while the Court in Pennington correctly recognized the supremacy of federal law, the conclusion that the proviso itself was unconstitutional was based on an incorrect premise.

The Michigan Declaration of Rights, like the federal Bill of Rights, is "drawn to restrict governmental conduct and to provide protection from governmental infringement and excesses...." Woodland v Citizens Lobby, 423 Mich 188, 204; 378 NW2d 337 (1985). When there is a clash of competing rights under the state and federal constitutions, the Supremacy Clause, art VI, cl 2, dictates that the federal right prevails. Where a right is given to a citizen under federal law, it does not follow that the organic instrument of state government must be interpreted as conferring the identical right. Nor does it follow that where a right given by the federal constitution is not given by a state constitution, the state constitution offends the federal constitution. It is only where the organic instrument of government purports to deprive a citizen of a right granted by the federal *761 constitution that the instrument can be said to violate the constitution.

On its face, the anti-exclusionary-rule provision does not purport to deprive an individual of a right guaranteed under the federal constitution. The intent of the framers of the proviso as originally adopted was to affirm and limit the application of the exclusionary rule. The intent of the framers of art 1, § 11, as readopted, was to reaffirm the "same" principles and prevent Michigan courts from using the state constitution to extend the federally declared exclusionary right granted under Mapp. No conflict of rights exists between the last sentence of art 1, § 11 and the Fourth Amendment because the Michigan Constitution as enacted simply failed to extend the federal right to certain categories of evidence.

Because the anti-exclusionary-rule provision does not purport to deprive a Michigan citizen of a federally guaranteed right, a conflict exists under art 1, § 11 and the Fourth Amendment only when state courts ignore the rights conferred by the United States Constitution and admit into evidence items unreasonably seized under the Fourth Amendment. It is by virtue of such state action that the Supremacy Clause is offended.

Thus, appropriate analysis of our constitution does not begin from the conclusive premise of a federal floor.^[12] Indeed, the fragile foundation of the *762 federal floor as a bulwark against arbitrary action is clearly revealed when, as here, the federal floor falls below minimum state protection. As a matter of simple logic, because the texts were written at different times by different people, the protections afforded may be greater, lesser, or the same.^[13]

The statement in Collins that art 1, § 11 will be construed to provide the same protection as the United States Supreme Court's interpretation of the Fourth Amendment should not be understood as having created a ladder of precedent that is contrary to the language of the Michigan Constitution. Nor should the statement be read to require us to ignore the "body of state constitutional search and seizure law" created pursuant to "the *763 historical general power of this Court to construe the constitutional provision relating to searches and seizures...." Nash, supra at 214.

The historical review required when analyzing the constitution as articulated in People v Catania, 427 Mich 447, 466; 398 NW2d 343 (1986), and Collins, supra at 31, illustrates^[14] that we did not intend to obscure the appropriate inquiry regarding the constitutional role of the courts of this state. The "compelling reason" test is a convenient formulation of the overarching responsibility to find a principled basis in the history of our jurisprudence for the creation of new rights. What is to be gleaned from our former cases is that the courts of this state should reject unprincipled creation of state constitutional rights that exceed their federal counterparts. On the other hand, our courts are not obligated to accept what we deem to be a major contraction of citizen protections under our constitution simply because the United States Supreme Court has chosen to do so. We are obligated to interpret our own organic instrument of government.

We now turn to the crux of the instant case: whether sobriety checkpoints are unconstitutional under the Michigan Constitution.

IV

Over one hundred years ago, Chief Justice *764 COOLEY set forth the judiciary's task in construing the Michigan Constitution:

[I]n seeking for its real meaning we must take into consideration the times and circumstances under which the State Constitution was formed — the general spirit of the times and the prevailing sentiments among the people. Every constitution has a history of its own which is likely to be more or less peculiar; and unless interpreted in the light of this history, is liable to be made to express purposes which were never within the minds of the people in agreeing to it. This the court must keep in mind when called upon to interpret it; for their duty is to enforce the law which the people have made, and not some other law which the words of the constitution may possibly be made to express. [People v Harding, supra at 485.]

The intent of the framers as expressed to the people of Michigan was that the Constitution of 1963 represented "no change" from the Constitution of 1908. Thus, to understand what art 1, § 11 means regarding suspicionless seizures of automobiles, and, thus, what level of protection is required under the Michigan Constitution, we look to interpretation of the previous, nearly identical, constitutional provision. A review of the cases construing Const 1908, art 2, § 10 discloses no support for the proposition that the police may engage in warrantless, suspicionless seizures of automobiles.

A

What is legally required to seize and search an automobile is not a new question in Michigan. *765 During Prohibition,^[15] this Court had many opportunities to review the level of cause necessary to make such a stop or search.

In People v Case, 220 Mich 379; 190 NW 289 (1922), this Court determined that a warrant was not a prerequisite to the valid search of an automobile. In arriving at this conclusion, the Court discussed its constitutional role in determining the "reasonableness" of a search or seizure:

Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made. [Id. at 389.]

In arriving at this conclusion, the Court took guidance from federal authority:

The generally recognized rule is fairly stated in the following annotation to 11 Fed Stat Ann (2d ed), p 354:

"The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to." [Id. at 388.]

While the federal decisions that lead to this annotation were no more binding on the Michigan Supreme Court than the decisions of the Ohio Supreme Court, this Court chose to adopt their reasoning as instructive.

Case was relied on and explained two years later *766 in People v Kamhout, 227 Mich 172; 198 NW 831 (1924). In upholding the search of an automobile, the Court articulated a search and seizure standard that came to be generally applied in future cases involving automobiles:^[16]

There must be no misunderstanding on the part of officers as to the right of search and arrest under our holdings. They have no right to stop and search an automobile or other conveyance for the purpose of ascertaining whether it is being used as a means of transporting liquor illegally unless they have such reasonable grounds of suspicion as induce in them, and as would induce in any prudent man, an honest belief that the law is being violated.... What we do state to be the rule by which this court will be governed is, that if an officer, charged with the enforcement of the law, from the exercise of his own senses, or acting upon information received from sources apparently so reliable that a prudent and careful person, having due regard for the rights of others, would act thereon, has reasonable and probable cause to believe that intoxicating liquor is being unlawfully transported in an automobile in his presence, he may arrest the offender or search for and, if found, seize the contraband therein without a warrant to do so. [Id. at 187-188. Emphasis added.]

Kamhout's observation that "reasonable grounds" are required by the Michigan Constitution before the seizure or search of an automobile may occur, remains unmodified by precedent.

In People v Roache, 237 Mich 215; 211 NW 742 (1927), this Court was presented with, but did not directly decide, "Whether an officer may stop, indiscriminately, travelers on the highway and demand of them that they produce license cards is a question we do not and need not determine." Id. *767 at 219 (CLARK, J., dissenting).^[17] While the majority rested its decision on the lack of reasonable grounds for the search of the automobile, the Court discussed the grounds needed to justify a search and seizure:

No one will contend that an officer may promiscuously stop automobiles upon the public highway and demand the driver's license merely as a subterfuge to invade the constitutional right of the traveler to be secure against unreasonable search and seizure. Yet that is exactly what was done here. The officer cared nothing about seeing a driver's license, but he says he was suspicious that there was liquor in the car, and almost immediately after stopping the defendant he ordered him out of his car and proceeded to search it for liquor. [Id. at 222.][^[18]]

After applying Kamhout, and dismissing the search and seizure justifications of the officers as lacking reasonable grounds, the Court concluded with a warning as appropriate today as it was in 1927:

While we may take judicial notice of the fact that rum runners and bandits ride in automobiles, and use them to commit crimes and effect their escape, may we not also take judicial notice of the fact that where there is one bandit or rum runner passing over a public highway, there are thousands *768 of respectable, law-abiding citizens who are doing likewise? The protection afforded by the Constitution to such persons must be regarded as paramount to any right to be given a police officer to enable him to verify his ungrounded suspicion that a law is being violated.

The granting, if such a thing were possible, to over-zealous officers, of powers, the performance of which would invade constitutional rights of the citizen, would do more to retard the enforcement of law than to promote it. [Id. at 224-225.]

Perhaps the most famous, or infamous opinion, depending on perspective, to discuss the relationship between the search and seizure provision of Michigan and the automobile is People v Stein, 265 Mich 610; 251 NW 788 (1933), the case that led to the amendment of Const 1908, art 2, § 10.

The amendment, the addition of the anti-exclusionary-rule proviso, was a response by the people of Michigan to the Stein Court's use of the exclusionary rule to reverse a conviction, which relied on an unconstitutionally seized weapon. The proviso, while casting doubt on the Stein Court's view of the exclusionary rule, does not invalidate its analysis of the reasonableness of the stop.

The issue in Stein was "whether the arrest was lawful because the search was based solely upon the arrest [the suspicion for which was the speed of the car and a furtive gesture]. The essential question before us is whether the arrest was justified as a matter of law." Id. at 613. The Court began its analysis by quoting from both Kamhout and Roache, observing of the former

[that the rule from that case] was made with full appreciation of the use of automobiles in criminal operations, the proclivity of law-breakers to carry weapons, the developed faculties of police officers to detect crime, the attitude of law-abiding citizens *769 toward the enforcement of the law, and also with the realization of the court that the constitutional provision is a mandate and must be preserved for the benefit of good citizens, although, as is usually the case when it reaches the court, it is invoked in favor of the law-breaker.

* * *

If conditions demand a special rule of search on highways, the remedy is by amendment of the Constitution. [Stein, supra at 613-615.]

The Court then focused on the level of proof required for the arrest that led to the search. The majority noted:

If, instead of arresting defendants, the officers had searched the cab, but not the persons or baggage of defendants, it may be that defendants could not have complained. The mistake the officers made was in arresting defendants before they had reasonable ground to believe that a crime was being committed by defendants. [Id. at 614-615.]

This statement implies that something less than probable cause might justify the search of a car, but nothing less will justify an arrest. Stein produced three vigorous dissents, two of which still required some level of cause before an arrest or search could be made.^[19] Only Justice WEADOCK, *770 after citing Case, supra, for the proposition that whether a search is reasonable is a judicial question, implied that general suspicion was enough to justify expansive police activity:

It is the common knowledge of wardens, penologists, psychiatrists and other students of crime that every sizable community has persons who have no visible means of support but live well, who have criminal records and consort with known criminals. Yet society must wait until a crime is committed. They sit back quietly and plan. We know they are doing it. But we must not anticipate their move. When circumstances are to their liking we gaze into a gun held by a man we knew was a criminal, but whom the law would not permit us to hunt. Any city can be cleared of known criminals in 48 hours, if the hands of the police are unshackled and if the powers that be will assure them of backing and support. [Id. at 624-625.]

In People ex rel Attorney General v Lansing Municipal Judge, 327 Mich 410; 42 NW2d 120 (1950), the Michigan case most analogous to the present one, the Court struck down

the provisions of PA 1948 (1st Ex Sess), No 43 (CL 1948, § 300.21 et seq. [Stat Ann 1949 Cum Supp § 13.1231(1) et seq.]) subjecting to search without a warrant the boat, conveyance, vehicle, automobile, hunting or fishing camp, fish box, fish house, net house, fish basket, game bag, game coat, or any other receptacle, car or conveyance in which wild *771 life may be kept, carried or transported, of any person exercising the privilege of hunting, fishing or trapping, et cetera, and empowering conservation officers to require a person to permit such officers to