People v. Herrera

• Citation: 172 N.W.2d 529,19 Mich.App. 216
• Decision Date: 01 October 1969
• Docket Number: Docket No. 2580,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis HERRERA, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 529

172 N.W.2d 529

19 Mich.App. 216

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis HERRERA, Defendant-Appellant.

Docket No. 2580.

Court of Appeals of Michigan, Division No. 1.

Oct. 1, 1969.

Rehearing Denied Nov. 14, 1969.

Released for Publication Dec. 17, 1969.

Joseph R. Bathey, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Luvenia D. Dockett, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., and T. M. BURNS and J. J. KELLEY, ^* JJ.

LESINSKI, Chief Judge.

Defendant was convicted on April 13, 1966 of unlawful possession of narcotics. ¹ He appeals, contending: (1) that the arrest was unlawful because the police lacked probable cause to arrest him without a warrant; (2) that the arrest was unlawful because the arresting officers had no justifiable excuse for failure to obtain an arrest warrant; (3) that evidence of defendant's possession of narcotics must be suppressed because his arrest for pandering was used as a mere pretext to allow officers to conduct an illegal search, and (4) that the warrantless search of the entire premises where defendant was arrested, even if incidental to a lawful arrest, was unreasonable and requires suppression of any evidence of narcotics obtained thereby.

Regarding defendant's first contention, that his arrest was illegal due to the lack of probable cause, C.L.1948, § 764.15 (Stat.Ann.1954 Rev. § 28.874), provides the general rule:

'Any peace officer may, without a warrant, arrest a person * * *

'(d) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it.'

This Court amplified that rule in People v. Wolfe (1967), 5 Mich.App. 543, 548, 147 N.W.2d 447, 450, citing Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142:

'When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would 'warrant a man of reasonable caution in the belief' that an offense has been committed."

The Wolfe Court further cited George, Constitutional Limitations on Evidence in Criminal Cases (1966, Institute of Continuing Legal Education) pp. 12, 13:

"It is important to note that the officer must 'believe' and not merely 'suspect' that the person arrested has committed the felony. Cf. Beck v. Ohio (1964), 379 U.S. 89, (85 S.Ct. 223, 13 L.Ed.2d 142). Often this is a verbal distinction which laymen do not make, but officers should be trained to testify in terms of belief and not of 'suspicion'. Even if there is belief, the trial court must later determine whether the belief was reasonable under the circumstances. Wong Sun v. United States (1963), 371 U.S. 471, (83 S.Ct. 407, 9 L.Ed.2d 441); Henry v. United States (1959), 361 U.S. 98, (80 S.Ct. 168, 4 L.Ed.2d 134). If the arrest is viewed as a subterfuge for a search and seizure, it may be viewed as unlawful on that basis alone. Jones v. United States (1958), 357 U.S. 493, (78 S.Ct. 1253, 2 L.Ed.2d 1514). The standards in the federal cases control so far as the states are concerned, as a result of Mapp v. Ohio, 367 U.S. 643, (81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933). Cf. Stoner v. California (1964), 376 U.S. 483, (84 S.Ct. 889, 11 L.Ed.2d 856).

"The officer's reasonable belief must be based on what he observes or what he learns from reiable sources. Offenses are committed in the officer's presence if they are ascertainable through sight, sound, smell or touch. Information supplied from a reliable citizen source is probably enough to found a reasonable belief; if it comes from a criminal informant, the state or government must be prepared to submit data establishing the reliability of the informant on the basis of past experience, E.g., Draper v. United States (1959), 358 U.S. 307 (79 S.Ct. 329, 3 L.Ed.2d 327)." Wolfe, supra, pp. 549, 550, 147 N.W.2d p. 451.

The defendant in the instant case was originally arrested without a warrant for the felony of enticing a female to become a prostitute (C.L.1948, § 750.455 (Stat.Ann.1954 Rev. 28.710)). A review of relevant facts concerning the arrest indicates that the arrest occurred following the interrogation of a prostitute who was the complaining witness. The prostitute was brought to police headquarters about 3 p.m. on September 10, 1965, after she attempted suicide. Upon questioning by police officers she complained that the defendant and four other named persons had enticed her into prostitution. She provided details, including naming the place where she was taken by defendant to obtain contacts for prostitution, the date when she started and the period over which she indulged in prostitution. She further informed police that defendant was located at a certain motel, was leaving town that same day at about 10 p.m., and was in possession of marihuana. The police officers checked her background by contacting her family and the Women's Division of the Detroit Police Department. Moreover, officers alternated in interviewing her over approximately a two-hour period to check the veracity and accuracy of her statements. Furthermore, the police, through independent surveillance, possessed evidence that prostitution occurred in the place named by the complainant. Based upon these facts, the reliability of the complainant was established and there was probable cause to warrant a man of reasonable caution to believe that the crime of pandering had been committed by defendant. Therefore, the trial court did not err in determining that the police officers had probable cause to arrest the defendant.

Defendant next contends that his arrest without warrant was unreasonable and unlawful because the arresting officers had no justifiable excuse for failure to obtain an arrest warrant prior to his arrest. In connection with this contention, he cites Chapman v. United States (1961), 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Johnson v. United States (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; United States v. Lefkowitz (1931), 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775; Agnello v. United States (1925), 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; and Eng Fung Jem v. United States (CA 9, 1960), 281 F.2d 803, 86 A.L.R.2d 981. Regarding defendant's citation of Lefkowitz, he acknowledges in his brief that he substitutes the word 'arrest' for the word 'search' in contending that the same principles found in Lefkowitz regarding search apply to arrest warrants. Upon analysis of Lefkowitz, we find the rule of law therein to apply only to the reasonableness of a search without a warrant and not to the reasonableness of an arrest without a warrant. Similarly, analysis of the remaining cases cited by defendant to support his contention that his arrest without a warrant was unreasonable, discloses that each involves the reasonableness of the failure to obtain a search warrant as opposed to the failure to obtain an arrest warrant. Defendant has cited no case support for his contention that the same standards should apply to the necessity of obtaining arrest warrants as apply to search warrants. Furthermore, he provides no authority to support his contention that an arrest without warrant is unlawful where the police have sufficient opportunity to obtain a warrant prior to the arrest. Upon consideration of U.S.Const., Am. 4 and Const.1963, art. 1, section 11, we find no valid basis for the adoption of defendant's cited standard for reasonableness regarding searches as the standard to be applicable to arrests. Furthermore, our research discloses no case support for defendant's position. ² Indeed ample authority exists to the contrary, numerous courts holding that an arrest without a warrant is not unlawful even though the police have adequate opportunity to obtain an arrest warrant prior to the arrest. ³ Upon the basis of this authority and the lack of contrary authority, we conclude that in the instant case defendant's arrest without a warrant was lawful and reasonable and failure to obtain a warrant does not require reversal of his conviction.

Defendant further contends that the evidence used to convict him must be suppressed because his warrantless arrest for pandering was used by the officers as a mere pretext for gaining admission to his motel room to search for narcotics. In support of his contention, defendant relies upon United States v. Harris (CA 6, 1963), 321 F.2d 739, especially the dissenting opinion. Federal narcotics agents in Harris received information from an informant that Harris had a quantity of bulk narcotics in his apartment which he was putting into capsule form, and that upon completion of the task Harris would move to another location. The officers surrounded the apartment, knocked on defendant's door and told defendant that they were police officers and that he was under arrest. When defendant attempted to slam the door in their faces, the officers at the main and bedroom doors forced their entrance into the apartment and conducted an extended search. The majority opinion stated:

'It is well established that a valid search of the premises under control of an arrested person may be made as an incident of a valid arrest. * * *

'An arrest may not be used as a pretext or subterfuge for making a search of premises without a search warrant where ordinarily one would be required under the Fourth Amendment. If, in fact, the Primary purpose of forcibly entering a person's home is to search for evidence with which to convict him of crime, the evidence so obtained is not admissible in court.' (Emphasis supplied.)

The Harris majority found Harris' arrest to be a mere pretext for a search. A factor in this conclusion was the fact that successful prosecution of Harris for...