342 N.W.2d 303 (Mich.App. 1983), 67386, People v. Irby

Docket Nº:Docket No. 67386.
Citation:342 N.W.2d 303, 129 Mich.App. 306
Opinion Judge:PER CURIAM.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd IRBY, Defendant-Appellant.
Attorney:[129 Mich.App. 310] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellant Asst. Pros. Atty., Civil and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the people. Daniel J. Blank, Birmingham, for defendant-app...
Judge Panel:Before CYNAR, P.J., and HOOD and JASON [*] , JJ.
Case Date:September 28, 1983
Court:Court of Appeals of Michigan

Page 303

342 N.W.2d 303 (Mich.App. 1983)

129 Mich.App. 306

PEOPLE of the State of Michigan, Plaintiff-Appellee,


Floyd IRBY, Defendant-Appellant.

Docket No. 67386.

Court of Appeals of Michigan.

September 28, 1983

Page 304

Submitted June 30, 1983.

Released for Publication Dec. 15, 1983.

Leave to Appeal Denied Feb. 28, 1984.

Page 305

[129 Mich.App. 310] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellant Asst. Pros. Atty., Civil and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the people.

Daniel J. Blank, Birmingham, for defendant-appellant.

Before CYNAR, P.J., and HOOD and JASON [*] , JJ.


Defendant brings this interlocutory appeal by leave granted to challenge the trial court's denial of his motions to suppress evidence and to quash the information.

The facts of this case are derived from the preliminary examination transcript and the transcript of the September 24, 1982, hearing on defendant's motions. On Sunday, March 28, 1982, sometime after 10 a.m., two neighbors saw defendant, then a 15-year-old boy, take out a garbage can with something inside the can wrapped in a blanket. The neighbors questioned the defendant about the contents of the can. Defendant replied that the [129 Mich.App. 311] can contained trash. However, when defendant attempted to lift the can over the backyard fence in order to place it in the alley, the neighbors observed defendant drop the can, the blanket unwrap, and the semi-nude body of a teen-aged girl fall out of the can. A neighbor summoned the police.

When police officers arrived, defendant told one of them that some boys in a car dropped off the body at his house and told him to get rid of it. Detroit Police Homicide Sergeant Royden Awe, the officer in charge of this investigation, said he arrived at defendant's home about noon after other officers had investigated the scene, canvassed the neighborhood, and removed the victim's body. Other police officers detained defendant in the living room of his house in the presence of defendant's stepfather. Sgt. Awe learned that defendant

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was a juvenile and had made the statement that boys in a car dropped the body at his house for disposal.

Sgt. Awe considered defendant either a witness or a suspect at that time. Although he knew that, as a juvenile, defendant was under the jurisdiction of the probate court and should be taken to the intake division of the youth home, Sgt. Awe instead took defendant and his stepfather to his office at the homicide section of the Detroit Police Department. After Sgt. Awe read investigation reports, he told defendant that he did not believe defendant's earlier statement about boys dropping off the victim's body. Defendant indicated he would make another statement.

In the presence of his stepfather, another police officer, and a Detroit Police youth officer, Sgt. Awe read defendant his Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] ) rights. Both defendant and his stepfather indicated [129 Mich.App. 312] they understood those rights. Sgt. Awe also told defendant that he had a right to have his statement taken at the youth home. Defendant indicated that he understood but preferred to make the statement at the police station. Sgt. Awe typed defendant's two-page statement from 2:55 p.m. until 3:45 p.m. Defendant, his stepfather, the youth officer, and the other officers present signed the statement. In that statement, defendant indicated he understood his right to be taken to the youth home.

In that March 28, 1982, statement defendant said he saw the victim, Pauline Ribble, walking down his street at about 10 a.m. while he was taking out the garbage. Defendant was alone because his mother was in the hospital and his stepfather was at church. Defendant said he and Ms. Ribble were both in the tenth grade at the same high school. Defendant said Ms. Ribble initiated a conversation and sexually propositioned defendant. Defendant said they went upstairs to his bedroom and engaged in consensual sexual relations.

Defendant stated that following this sexual activity, something "came over him" and he began choking Ms. Ribble. She scratched defendant and he continued to choke her until she vomited and stopped moving. Defendant took Ms. Ribble downstairs, cleaned her up, wrapped her in a blanket, and put her in a garbage can. Defendant admitted he lied about boys in a car dropping off Ms. Ribble's body.

Following defendant's statement, the youth officer processed a petition for defendant's entry into the youth home. During this time, a Wayne County medical examiner examined defendant and [129 Mich.App. 313] noted scratches and abrasions on his person. Sometime prior to 6 p.m., the youth officer took defendant to the youth home.

An autopsy was performed on the body of 15-year-old Pauline Ribble on March 29, 1982. The medical examiner said manual strangulation caused her death. Although the medical examiner did not find lacerations or contusions in the victim's vaginal or rectal areas, swab tests of the victim's oral, vaginal, and rectal cavities produced positive evidence of seminal fluid and sperm.

On June 26, 1982, the people charged defendant with (I) the first-degree premeditated murder of Pauline Ribble and (II) the murder of Pauline Ribble while perpetrating or attempting to perpetrate first-degree criminal sexual conduct, both contrary to M.C.L. Sec. 750.316; M.S.A. Sec. 28.548.

At the end of the suppression hearing, the trial court found that the police had probable cause to arrest defendant based upon the information received from the neighbors. The trial court also found that defendant's confession was voluntary and admissible, given the totality of the circumstances. In an October 12, 1982, order, the trial court denied defendant's motion to quash, finding evidence of manual strangulation sufficient to show the element of premeditation necessary for bindover on Count I. Furthermore, the facts presented were sufficient to support all elements of a felony-murder, or murder while perpetrating first-degree criminal sexual conduct.

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Defendant raises two bifurcated arguments in this appeal. First, defendant argues that the trial court erred by failing to suppress his March 28, 1982, statement and the physical exam evidence gathered by the Assistant Wayne County Medical Examiner because (1) the police lacked probable [129 Mich.App. 314] cause to arrest him when he was taken into custody, and (2), even if the police had probable cause to arrest him, his confession must be suppressed because Sgt. Awe took it in violation of his special rights as a juvenile. Second, defendant argues that the trial court erred by denying his motion to quash the information because (1) the people failed to show all the elements of first-degree premeditated murder absent defendant's confession and (2) the people failed to show the elements of felony murder absent his confession.

This Court reviews a trial court's decision on a motion to suppress evidence by both the abuse of discretion and clearly erroneous standards. People v. Potter, 115 Mich.App. 125, 134, 320 N.W.2d 313 (1982); People v. McIntosh, 110 Mich.App. 139, 146, 312 N.W.2d 415 (1981). Under either test, we find the trial court properly denied defendant's motion in this case.

Where there is no probable cause to arrest but police officers take a defendant into custody for investigatory purposes, evidence obtained as a result of that unlawful detention or any statement made by the defendant while unlawfully detained must be suppressed. See, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v. Hamoud, 112 Mich.App. 348, 350-351, 315 N.W.2d 866 (1981), lv. den. 414 Mich. 959 (1982). See also, People v. Brown, 120 Mich.App. 765, 777, 328 N.W.2d 380 (1982).

Where a defendant is detained without a warrant, police must have probable cause to arrest that defendant. Hamoud, supra, 112 Mich.App. p. 351, 315 N.W.2d 866. Police have probable cause to arrest when facts and circumstances within the officers' knowledge are sufficient to warrant a prudent person, or one of [129 Mich.App. 315] reasonable caution, to believe the suspect has committed or is committing a felony. Hamoud, pp. 351-352, 315 N.W.2d 866; People v. Kyser, 106 Mich.App. 216, 218, 307 N.W.2d 447 (1981).

We find that the police who detained defendant in his home had probable cause to arrest him for a felony. The officers found a dead 15-year-old girl in defendant's backyard, nude from the waist down. The officers knew that two neighbors had observed defendant carry that dead girl out of his house concealed in a garbage can. Moreover, the officers were told by defendant that unnamed boys in a car dropped off the body and told defendant to get rid of it. These facts gave the detaining officers more than a mere suspicion that defendant committed a felony. Thus, although defendant was not formally arrested when he was detained, the police had probable cause to arrest him.

The second prong of defendant's first argument is more troublesome. Defendant argues that Sgt. Awe obtained his confession at the police station in violation of his right pursuant to JCR 1969, 3.3(b)(1) and M.C.L. Sec. 764.27; M.S.A. Sec. 28.886 to be taken immediately to the juvenile court. Defendant argues that even if his confession were otherwise voluntary, violation of his rights as a juvenile vitiates the confession. Defendant relies upon People v. Wolff, 23 Mich.App. 550, 552, 179 N.W.2d 206 (1970).

Pursuant to the juvenile court rules, a police officer may take a juvenile under age 17 into temporary custody without a juvenile court order where conditions exist which would make an arrest lawful if the...

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