People v. Burrill

• Decision Date: 14 February 1974
• Docket Number: No. 17,17
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence BURRILL, Defendant-Appellant. 391 Mich. 124, 214 N.W.2d 823
• Court: Michigan Supreme Court

Page 823

214 N.W.2d 823

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence BURRILL, Defendant-Appellant.

No. 17.

391 Mich. 124, 214 N.W.2d 823

Supreme Court of Michigan.

Feb. 14, 1974.

Philip D. Schaefer, Bauckham, Reed, Lang & Schaefer, Kalamazoo, for defendant-appellant.

Donald A. Burge, Pros. Atty., Stephen M. Wheeler, Asst. Kalamazoo Co. Pros., Kalamazoo, for plaintiff-appellee.

Before the Entire Bench.

LEVIN, Justice.

Clarence Burrill was convicted of an act of gross indecency with another male. ¹

He contends that his conviction should be set aside because the arrest warrant was issued on a complaint containing conclusory statements with no statement of underlying facts, the police officer who signed the complaint did not have personal knowledge of the facts and the magistrate did not examine witnesses having personal knowledge.

We granted by-pass of the Court of Appeals because of the importance of the question to the administration of justice in light of the statements in People v. Hill, 44 Mich.App. 308, 317, 205 N.W.2d 267, 273 (1973), that the reasoning of People v. Mosley, 338 Mich. 559, 564, 61 N.W.2d 785 (1953), is inconsistent with Fourth Amendment requirements for the issuance of an arrest warrant, and which suggest that upon a timely objection 'before the defendant submits to the jurisdiction of the court by pleading to the information,' a defendant who is arrested under an arrest warrant which does not comply with federal constitutional requirements could properly challenge the court's jurisdiction to try him. ²

We conclude that while the arrest warrant was indeed invalid because of the inadequacy of the allegations in the complaint this did not divest the trial court of jurisdiction to try the offense charged in the information. Burrill's conviction is affirmed.

I

In Michigan the complaint serves a dual function. It both initiates the judicial phase of the prosecution and provides a basis for the issuance of an arrest warrant.

Whether a complaint adequately supports the issuance of an arrest warrant raises a federal question under the Fourth Amendment as applied to the states through the Fourteenth Amendment. However, whether the judicial phase of a prosecution is properly initiated by a complaint infirm under Fourth Amendment standards is primarily a question of Michigan law. ³ While the statute, from 1846 to the present, has required a magistrate, upon presentation of a complaint that a criminal offense 'not cognizable by a justice of the peace' has been committed, 'shall examine on oath the complainant and any witnesses who may be produced by him,' ⁴ and has provided that an arrest warrant shall issue '(i)f it shall appear from such examination' that an offense has in fact been committed, ⁵ the practice has not been to conduct such an examination.

The disparity between the letter of the statute and the actual practice has been challenged from time to time by defendants. This Court has consistently responded that a defendant may not impeach a complaint made on purported personal knowledge by offering evidence that the complainant lacked such knowledge and that no witnesses having personal knowledge were examined by the magistrate. People v. Mosley, 338 Mich. 559, 564, 61 N.W.2d 785 (1953). ⁶ The early precedents were most recently reviewed by this Court in People v. France, 370 Mich. 156, 161, 121 N.W.2d 476 (1963), and again adhered to with a caveat by a majority of the Court that 'under a proper record we might well want to re-examine some existing precedent.' ⁷

In this case Burrill carefully preserved the question by a motion made at the commencement of the preliminary examination, by a motion to quash the information and by renewing that motion at the commencement of the trial. A record was made which clearly establishes that the police officer who signed the complaint did not have personal knowledge of the commission of the offense. Nor did the magistrate examine any other witness before issuing the arrest warrant.

We are persuaded that it would be unwise to set aside the settled construction of the statute reaffirmed in Mosley and France.

Focusing on the complaint (and the issuance of an arrest warrant) as the process by which the judicial phase of a prosecution is initiated, it is understandable why our judicial predecessors did not require ex parte examination of the complainant and witnesses.

A prosecutor may not file an information ⁸ unless a magistrate has bound over the accused person following a preliminary examination on findings that an offense has been committed and there is probable cause for charging the accused with its commission. ⁹ The examination is required to be held within 12 days after the accused is arraigned following his arrest. ¹⁰ At the examination, the complainant and other witnesses produced by the prosecutor are examined in an adversary proceeding; the accused is entitled to be represented by counsel, to cross-examine the witnesses produced by the prosecutor and to produce, swear and examine his own witnesses. ¹¹

We recognize that a preliminary examination is not required to be conducted in every case, but in this case, as in all felony and in some misdemeanor cases, Burrill was entitled to a preliminary examination. ¹²

To require in every case that the complainant and witnesses be examined first ex parte upon the filing of a complaint and again 12 days later at a preliminary examination would require a substantial enlargement of judicial and supporting personnel and would further inconvenience the victims of crime and other witnesses.

Bearing in mind the limited use of arrest warrants to justify or effectuate the physical arrest of accused persons, ¹² we have concluded that the added protection of an ex parte examination of witnesses upon the filing of every complaint does not justify our imposing, through a belated revisionary construction of the statutory language, this added expense on the State and the inconvenience of still another court appearance on victims and other witnesses.

II

While the inadequacies of the complaint--the conclusory form of the allegations and the failure to state the underlying or operative facts--and the magistrate's failure to examine witnesses did not vitiate the efficacy of the complaint as the document initiating judicial proceedings or affect the jurisdiction of the court, it is manifestly true that the arrest warrant, issued on the basis of the complaint, was invalid.

In Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 565, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971), the United States Supreme Court held that a complaint which 'consists of nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense described in the complaint' was inadequate to support the issuance of an arrest warrant and violated the petitioner's constitutional rights under the Fourth and Fourteenth Amendments. Accordingly, physical evidence obtained in a search of his automobile as an incident to the arrest should have been excluded at trial:

'The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.' Whiteley v. Warden, Supra, p. 564, 91 S.Ct. p. 1035.

In earlier decisions the Court had held that the reliability and particularity requirements for obtaining search warrants ¹⁴ also govern the issuance of arrest warrants. ¹⁵

However, contrary to Burrill's contentions, the invalidity of the arrest warrant did not oust the circuit court of jurisdiction. The sole sanction imposed by the United States Supreme Court for the invalidity of an arrest warrant has been the suppression of evidence obtained from the person following his illegal arrest.

The Court has consistently held that a court's jurisdiction to try an accused person cannot be challenged on the ground that physical custody of the accused was obtained in an unlawful manner. In Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952), the Court declared:

'This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he has been brought within the court's jurisdiction by reason of a 'forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.' ¹⁶

On the rationale of Frisbie v. Collins and the authority of the long line of cases preceding and including France and Mosley, we conclude that the invalidity of the arrest warrant in this case did not affect the court's jurisdiction to try Burrill.

Also noteworthy is that while the United States Supreme Court has generally required the police to show exigent circumstances justifying searches and seizures without a warrant, ¹⁷ the Court has avoided deciding whether the police may Arrest a person without a warrant in the absence of exigent circumstances making it impracticable to obtain a warrant. ¹⁸

In Whiteley, after deciding that the arrest warrant was invalid and although there was time to have sought a proper warrant, the Court went on to consider whether the arresting officer did in fact have probable cause to arrest the defendant. ¹⁹ In this case, it appears...