People v. Kyser

• Citation: 106 Mich.App. 216,307 N.W.2d 447
• Decision Date: 06 May 1981
• Docket Number: Docket No. 47265
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rudean KYSER, Defendant-Appellant. 106 Mich.App. 216, 307 N.W.2d 447
• Court: Court of Appeal of Michigan (US)

Page 447

307 N.W.2d 447

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rudean KYSER, Defendant-Appellant.

Docket No. 47265.

106 Mich.App. 216, 307 N.W.2d 447

Court of Appeals of Michigan.

May 6, 1981.

Released for Publication July 13, 1981.

[106 MICHAPP 217] James R. Neuhard, State Appellate Defender, Kim R. Fawcett, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael W. Labeau, Pros. Atty., James G. Petrangelo, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and KAUFMAN and KELLY, JJ.

PER CURIAM.

Defendant was convicted by a jury in Monroe County Circuit Court of larceny from the person, M.C.L. § 750.357; M.S.A. § 28.589. Defendant was sentenced to 61/2 to 10 years imprisonment, with credit for 178 days already served. It is from this conviction and sentence that defendant now appeals as of right, pursuant to GCR 1963, 806.1.

On appeal, defendant raises four issues, only one of which we deem merits our consideration. Defendant claims that she was denied effective assistance of counsel where defense counsel failed to bring a pretrial motion to suppress a lineup identification because it was the product of an illegal arrest of defendant. It is the issue of the legality of [106 MICHAPP 218] defendant's arrest to which we shall address ourselves.

The statutory authority for an officer to arrest without a warrant is set forth in M.C.L. § 764.15; M.S.A. § 28.874, which provides in pertinent part:

"A peace officer may, without a warrant, arrest a person * * *

"(d) when the peace officer has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the person has committed it."

In People v. Summers, 407 Mich. 432, 286 N.W.2d 226 (1979), the Court noted that probable cause for an arrest has been defined as any facts which would induce a fair-minded person of average intelligence to believe that the suspect has committed a felony, and that such facts upon which such belief is based must be present at the moment of arrest. Further, in reviewing a claim that a police officer lacked probable cause to arrest, this Court must determine whether facts available to the officer at the moment of arrest would justify a fair-minded person in believing that the suspect had committed a felony.

In the instant case, at the time of defendant's arrest, the police had the following information: (1) Mrs. Janet Compeau's wallet and credit cards had been taken from her by two black women after she had pulled into a rest area on I-75, (2) Mrs. Compeau described the women as wearing dark shoulder length wigs and one as wearing a beige coat with a fur collar, (3) each of the two perpetrators was approximately 5'5 tall and weighed about 120 pounds.

Defendant contends that because she was only 5'1 tall and weighed only 110 pounds, Mrs. Compeau's description of her was erroneous and could [106 MICHAPP 219] not have possibly provided the police with the probable cause necessary for her arrest. Under the peculiar circumstances of the instant case, we cannot agree.

Mrs. Compeau was robbed by two women at a rest stop near Monroe, Michigan. She was returning home from work and had pulled into the stop-area because she was feeling ill due to an attack of hypoglycemia, a condition from which she suffered. She testified that she passed out for a brief period and, upon regaining consciousness, she saw two women (whom she later positively identified at a postarrest lineup as defendant and Evelyn Michaels, defendant's sister) at the front of her car. Mrs. Compeau stated that she honked her horn and motioned to defendant and Mrs. Michaels to come to her aid. Both women approached Mrs. Compeau's window on the driver's side and questioned her about her situation. She testified that she told them she was ill and needed some help. Mrs. Compeau stated that when the women approached her car she rolled down the window and was able to see their faces very clearly, the car having been parked in a well-lighted area near the rest rooms.

Mrs. Compeau testified that about one-half hour after this conversation, the women returned to her car. Defendant reached into the window on the driver's side, unlocked the back door on that side, entered the car, and unlocked the front passenger side door, whereupon the other woman climbed into the front...