258 N.W.2d 406 (Mich. 1977), 18, People v. Doran

Docket Nº:18, .
Citation:258 N.W.2d 406, 401 Mich. 235
Opinion Judge:MOODY, Justice.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold William DORAN, Defendant-Appellant.
Attorney:[401 Mich. 237] Eugene C. Penzien, Prosecutor, Bay City, Debra Russell, Legal Secretary, for plaintiff-appellee's brief and appendix on appeal. Kathleen M. Cummins, Asst. Defender, Detroit, Reda Marsh, Legal Asst., for defendant-appellant's appendix.
Case Date:October 04, 1977
Court:Supreme Court of Michigan
 
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Page 406

258 N.W.2d 406 (Mich. 1977)

401 Mich. 235

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Harold William DORAN, Defendant-Appellant.

No. 18, .

Supreme Court of Michigan.

October 4, 1977

Page 407

       [401 Mich. 237] Eugene C. Penzien, Prosecutor, Bay City, Debra Russell, Legal Secretary, for plaintiff-appellee's brief and appendix on appeal.

       Kathleen M. Cummins, Asst. Defender, Detroit, Reda Marsh, Legal Asst., for defendant-appellant's appendix.

       MOODY, Justice.

       On December 18, 1975, defendant was arrested in Bay City, Michigan, and charged with receiving and concealing stolen property. M.C.L.A. § 750.535; M.S.A. § 28.803. The charge arose out of defendant's possession of a truck in which he had driven to Michigan from Arizona.

       The Bay City Police immediately notified the authorities in Maricopa County (Phoenix), Arizona. On January 7, 1976, the Arizona authorities issued a warrant for defendant's arrest charging theft of a motor vehicle or, in the alternative, theft by embezzlement. ARS 13-672(A), 13-1645, 13-661 13-663, 13-671(A); ARS 13-682, 13-688.

       [401 Mich. 238] On January 12, 1976, defendant was arraigned in Michigan as a fugitive. The Bay City charge was eventually dismissed. However, the time of defendant's confinement as a fugitive was extended by the Bay County magistrate to allow additional time for his arrest to be made under a warrant of the governor of Michigan upon a requisition of Arizona's governor.

       The Uniform Criminal Extradition Act, of which both Michigan and Arizona are signatories, M.C.L.A. § 780.1 M.C.L.A. § 780.31; M.S.A. §§ 28.1285(1) (31); ARS 13-1301 ARS 13-1328, limits the period of confinement following arrest as a fugitive to 30 days with a permissive extension period of 60 days. M.C.L.A. §§ 780.14, 780.16; M.S.A. §§ 28.1285(14), 28.1285(16).

       On February 11, 1976, Arizona issued a requisition for extradition. The requisition was accompanied by the original complaint and warrant, plus two supporting affidavits. On March 22, 1976, a governor's warrant was issued. Defendant was arraigned thereon on March 29, 1976, some 102 days after his arrest on the Bay County charge, but well within 90 days after the issuance of the Arizona warrant on January 7, 1976, and defendant's arraignment on the fugitive warrant on January 12, 1976.

       The defendant twice petitioned the arraigning court for a writ of habeas corpus attacking the validity of the governor's warrant on the grounds that it was not issued in conformity with the Uniform Criminal Extradition Act. That court denied both writs. The Court of Appeals denied both defendant's application for leave to appeal the first habeas corpus petition and defendant's original habeas corpus petition subsequently filed in the Court of Appeals. This Court granted leave [401 Mich. 239] to appeal on November 1, 1976. 397 Mich. 886.

       I

       Defendant initially maintains that he must be discharged because the governor's warrant issued more than 90 days after his original arrest. Defendant claims that while he was nominally arrested on December 18, 1975, on the Michigan charge of receiving and concealing stolen property, that arrest was a pretext. In actuality, defendant contends, he was held as a fugitive. Therefore, he is entitled to be discharged since more than 90 days elapsed after his original arrest before the governor's warrant issued on March 22, 1976.

       We do not agree. Even if defendant is correct in his factual premise that the Michigan charge was a pretext and he was entitled to be released after 90 days, he is still subject to extradition.

       There is ample authority for the proposition that although a fugitive is entitled

Page 408

to be discharged from confinement or bail upon expiration of the 90-day period, he or she may, nevertheless, be extradited pursuant to a valid governor's warrant issued subsequent to the expiration of the 90-day period. People ex rel. Green v. Nenna, 53 Misc.2d 525, 279 N.Y.S.2d 324 (1965); aff'd 24 A.D.2d 936, 264 N.Y.S.2d 211 (1965), aff'd 17 N.Y.2d 815, 271 N.Y.S.2d 267, 218 N.E.2d 311 (1966); Miller v. Warden, Baltimore City Jail, 14 Md.App. 377, 287 A.2d 57 (1972).

       In People ex rel. Gummow v. Larson, 35 Ill.2d 280, 220 N.E.2d 165, 167 (1966), the court reasoned thus:

"The purpose of these sections of the extradition law is to prevent unreasonably lengthy periods of confinement[401 Mich. 240] of fugitives pending consummation of extradition proceedings by the demanding State. (citations omitted). There is, however, no indication of any legislative intent to restrict the period within which the Governor * * * may issue his rendition warrant to the period within which the court which issues the fugitive warrant may commit the accused or require him to give bond."

       Therefore, even if defendant was entitled to be released from the confinement which followed his original arrest, it is clear that he could be re-arrested on the strength of the subsequent governor's warrant.

       II

       Defendant next maintains that he cannot be extradited where the demanding state's warrant and affidavits supporting the requisition for the Michigan governor's warrant do not reflect an adequate showing of probable cause.

       We agree. In Kirkland v. Preston, 128 U.S.App.D.C. 148, 152, 154-155, 385 F.2d 670, 674, 676-677 (1967), the United States Court of Appeals for the District of Columbia held that a governor's requisition must be supported by a showing of probable cause. Absent a grand jury indictment or a judicial determination of probable cause, the affidavit accompanying the governor's requisition should contain more than conclusory statements. The affidavit should be in such form as would support a finding of probable cause for the issuance of an arrest or search warrant under the Fourth Amendment decisions of the United States Supreme Court.

       In the case at bar, there is no indictment or document reflecting a prior judicial determination [401 Mich. 241] of probable cause. The Arizona complaint 1 and arrest warrant 2 are both

Page 409

phrased in conclusory language which simply mirrors the language of [401 Mich. 242] the pertinent Arizona statutes. More importantly, the two supporting affidavits fail to set out facts which could justify a Fourth Amendment finding of probable cause for charging defendant with a crime.

       The complaining police officer's initial affidavit 3 [401 Mich. 243] in support of the arrest warrant is factually void:

Page 410

       [401 Mich. 244] Kirkland v. Preston, supra, discussed at length the requirements for federal rendition. The federal statute requires "an indictment found or an affidavit made before a magistrate * * * , charging the person demanded with having committed treason, felony, or other crime." 18 U.S.C. § 3182.

       The Michigan statute, based on the Uniform Criminal Extradition Act, supra, provides for the furnishing of "certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or magistrate, and the warrant issued thereupon, stating the offense with which the accused is charged." Significantly the statute further provides that the "indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under [401 Mich. 245] the law of that State." M.C.L.A. § 780.3; M.S.A. § 28.1285(3). (Emphasis added).

       The police officer's affidavit in Kirkland read, in its pertinent part, as follows:

" * * * (O)n the 23rd day of July A.D., 1965, in the County and District aforesaid (Dade County) one Oliver Lee Kirkland & Elizabeth Maria Smith DID THEN AND THERE: unlawfully, wilfully, maliciously and feloniously set fire to and burn or cause to be burned a certain building, to wit: The Hut Bar, located at 2280 S.W. 32nd Avenue, City of Miami, Dade County, Florida, a further and more particular description of said bar being to the affiant unknown, the said bar being the property of one Fredrich Ritter." Kirkland, supra, 128 U.S.App.D.C. 150, 385 F.2d 672.

       The Kirkland court found the warrant factually deficient and stated its holding thus:

"We hold that, for purposes of extradition, the section 3182 'affidavit' does not succeed in 'charging' a crime unless it sets out facts which justify a Fourth Amendment finding of probable cause."

       The Kirkland result is also consistent with the Uniform Act's requirement that the indictment, information or affidavit "substantially charge" the person demanded

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with having committed a crime under the laws of the demanding state.

       Judge J. Skelly Wright speaking for the court in Kirkland eloquently set forth at length its rationale for refusing extradition on the basis of an insufficient affidavit:

"There is no reason why the Fourth Amendment, which governs arrests, should not govern extradition...

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